Clement v. Spear

Tiie opinion of the court was delivered by Ross, 'J. I. Whether interest eo nomine, is allowable in ascertaining the damages in actions of tort, is a subject on which the authorities are in conflict. 2 Hill. Torts 134; Lindsey [403] v. Danville, 46 Vt. 144. All agree that the lapse of time from the commission of the wrong to the time of recovery, may be considered by the jury in determining what sum will fairly compensate the party for the injury received. Whether it is called interest or damages for the detention of the compensation which should have been paid at the time the wrong was inflicted, makes no difference. In Thrall v. Lathrop, 30 Vt. 307, and Grant v. King et al, 14 Vt. 367, both actions of trover, without -discussion by counsel or the court, it is generally said, that the value of the property at the time of the conversion with interest thereafter is the rule of damages. Generally interest eo nomine' is applicable to a principal sum of money which is not paid when due. (See Roberts’ Digest, Title Interest). The charge by the County Court, doubtless, is, philosophically speaking, an exact statement of the law on this subject. At least it contains no error of which the defendant can complain, as it does not -appear that the jury added anything to the value of the heifer at the time of the conversion, in assessing the damages. On the exceptions the judgment of the County Court is affirmed. II. The defendant claims that a new trial should be granted him on his petition' therefor, for the misconduct of one of the jurors during the trial. It appears that the trial occupied a part of two weeks. When the court adjourned on Saturday, it strictly cautioned the jury not to converse with any one about the case during the recess. While on his way home the juror fell in with two men interested in the case, apparently for the defendant, and they inquired what case was on trial. On being informed by the juror, one of them further inquired how the case was coming out. The juror replied, “ Clement is going to beat.” On being inquired of what made him think so, he said-lie would not say anything further, that he was one of the jurors and the court had charged him not to talk about the case. This is what the petitioner’s testimony shows. It is to be observed that the juror did not say that he thought Clement ought to beat, although what he said perhaps implied that, inasmuch as no ver [404] diet could be rendered for the plaintiff without his concurrence. The juror’s opinion might be as to what he thought the action of the other jurors would be, and be based on what he had observed or heard from them. He may have, for the moment, forgotten the charge of the court. It would rather seem that he did, as he recalled the fact so quickly and refused to talk further. His conduct, .from whatever cause arising, was most reprehensible, and if he alone were to suffer from it this court would not hesitate to visit upon him the payment of the judgment and costs in the case. The petitioner took the juror’s testimony. The petitioner objects to'its use. The general rule is that a juror’s testimony may be used to uphold the verdict, but not to impeach it. Under this rule we think the juror’s testimony admissible. From his testimony it appears, uncontradicted, that he and two other jurors were for a recovery by the defendant, and that he was the last to yield to the views of the majority, and then only to save the expense of a re-trial of a. small case. From this testimony, it appears that the juror in the opinion, if his own, then expressed, was not so firmly fixed, but that he was open to change and conviction by the further evidence of the defendant in support of his contention in the case; and that the misconduct of the juror really worked the defendant no harm. ’Whether the party petitioning has been harmed by the misconduct of the juror is largely determinative, but not wholly, of whether a new trial should be granted. The misconduct may be so gross that public policy would require the court to set aside the verdict, although the petitioner did not show it was particularly harmful to him. Carlisle v. Sheldon, 38 Vt. 440; McDaniels v. McDaniels, 40 Vt. 363; Peacham v. Carter, 21 Vt. 515; Winslow v. Campbell, 46 Vt. 746. The plaintiff and his friends were entirely free from fault in-regard to the misconduct of the juror. The expression was unwittingly called out by those friendly to the petitioner. The case is small in the amount involved, and expensive to the parties and the State. As the petition is addressed considerably to the discretion of the court, while we emphatically condemn the mis [405] conduct of the juror, we do not think that the petitioner has shown that he has been especially injured thereby, and that neither the interest of the parties nor of the State require that we should reopen the litigation. The petition is dismissed, but considering the occasion the petitioner had for bringing it, without cpsts to either party.