Flesher v. Hale

SeydeR, Judge: The court having set aside the verdict and granted a new trial upon the facts before stated, the single question presented to this Court is, did the court in so doing err? Our statute provides that: “No irregularity in any writ of venire facias, or in the drawing, summoning, or impaneling of jurors, shall be sufficient to set aside a verdict, unless the party making the objection was injured by the irregularity, or unless the objection was made before the swearing of the jury.” Acts 1882, sec. 19, chap. 83, p. 190. Applying the spirit of said statute and, perhaps, extending the rule and policy of it, the courts of Virginia and of this State have repeatedly held, and it is now the settled kvw of this State, in both criminal and civil trials, that the verdict of the jury will not be set aside for objections to jurors, on [48] grounds which existed before they were sworn, unless it is made to appear that by reason of the existence of such grounds the party objecting has suffered wrong or injustice. Sweeney v. Baker, 13 W. Va. 228, and cases there cited. In this class of cases the objections to the jurors were of such character that, if made before the jury was sworn, they would have been sustained and the jurors objected to held to be disqualified; but notwithstanding this and the fact that the parties were ignorant of any grounds of disqualification until after the verdict, the court refused to set aside the verdict, because it did not appear that said grounds had operated so as to'inflict injustice. The rule is, however, different in cases where the disqualification arises from the misconduct of the jurors after they have been sworn. "While it requires clear and satisfactory proof-to establish misconduct in a member of the jury after he has been sworn, because the presumption of right acting which obtains with reference to the conduct of every person acting in an official position unless the contrary is shown, applies in full force with reference to the conduct of sworn jurors, yet when misconduct is established of .such a nature that prejudice might have resulted from it, a presumption of prejudice arises from it, which unless rebutted by the successful party will vitiate the verdict and require a new trial. Woods v. State, 43 Miss. 364-72; State v. Cartwright, 20 W. Va. 32; State v. Robinson, Id. 713. “Where facts are established which show that improper influences were brought to bear upon the jury, or that they were guilty of improper conduct, such as might have resulted prejudicially to the losing party, a presumption arises against the purity of their verdict; and unless there is testimony which shows that their verdict was not affected by such influences or conduct, it will be -set aside; and the burden of producing such testimony is upon the party claiming the right to keep the verdict. The rule is one of public policy. In order to preserve public confidence in the administration of justice, it is not only necessary that judicial trials should be conducted with reasonable regularity, but that verdicts should be free from the taint of suspicion of improper conduct or influences.” — Thomp. & Mer. on Juries, § 439; Phil [49] lip’s Case, 19 Gratt. 485; Com. v. Roby, 12 Pick. 496; Thompson v. State, 26 Ark. 323. ■While these are the general rules established by the courts in regard to verdicts where the disqualification or misconduct of the jurors was unknown to the parties until after verdict, there is another rule which limits these rules and applies to all classes of cases, whether the disqualification of the jurors existed before being sworn or arose out of misconduct during the trial. All the authorities agree that, where a new trial is asked on account of irregularity or misconduct of the jury, it must appear that the party so asking called the attention of the court to it at the time it was first discovered or as soon thereafter as the course of the proceedings would permit, and if lie fail or neglect to do so, he will be held to have consented to hav.e waived all objections to such irregularity-or misconduct, and, unless it be a matter which could not have been waived, or which could not have been remedied or obviated, if attention had been called to it at the time it was first discovered, he will be estopped from urging it as a ground for a new trial. — Dilworth’s Case, 12 Gratt. 689; Coleman v. Moody, 4 H. & M. 1; Dower v. Church, 21 W. Va. 23; Fox v. Hazelton, 10 Pick. 275 ; Oleson v. Meader, 40 Iowa 662; Lee v. McLeod, 15 Nev. 158 ; State v. Tuller, 34 Conn. 280; Dolloff v. Stimpson, 33 Me. 546; Martin v. Tidwell, 36 Ga. 332; Parks v. State, 4 Ohio St. 234; State v. Daniels, 44 N. H. 383. The knowledge of the attorney in such case is the knowledge of his client. — Russell v. Quinn, 114 Mass. 103; Fessenden v. Sayer, 53 Me. 531; Parker v. State, 55 Miss. 414; Cox v. People, 80 N. Y. 500. This rule proceeds upon the ground that a party ought not to be permitted, after discovering an act of misconduct which would entitle him to claim a new trial, to remain silent and take his chances of a favorable verdict, and afterwards, if the verdict is against him, bring it forward as a ground for a new trial. A party cannot be permitted to lie by, after having knowledge of a defect of this character, and speculate upon the result, and complain only when the verdict becomes unsatisfactory to him. — Selleck v. Sugar H. T. Co., 13 Conn. 453; Orrok v. Com. Ins. Co., 21 Pick. 456; Rex v. Sutton, 8 Barn. & Cres. 417. [50] • It follows, therefore, that when a party moves for.a new trial on the ground of misconduct on the part of the jury, which took place during the trial, he must aver in his motion and show affirmatively that both he and his counsel were ignorant, until alter the jury had retired, of the fact of such misconduct. Thomp. & Mer. on Juries, § 428 and eases cited; Id. § 456. In the' case at bar, the counsel certainly, and, we may presume from his being present at the trial, the defendant also had notice of the misconduct of the juror, Snow, at the time it occurred. In fact, “it was mutually agreed that -the case might be tried and determined by the remaining eleven jurors.” This agreement was made in the presence of the judge of the court-by the counsel both of the plaintiff and defendant." Alter this agreement was made, no motion or effort'was -made to remove the said Snow from the jury box. He was not even requested to retire-, and, probably,' he had no knowledge of the agreement, and so he continued on the jury. Afterwards when, during the subsequent progress of the trial, the- court called attention to the fact that said Snow was still on’the jury, the counsel for the plaintiff and defendant, “agreed that it was immaterial what became of said Snow,” and he was, no doubt, in consequence of said agree-meirt allowed to remain on the jury until after the verdict. Certainly by this conduct the defendant consented to have the said- Snow remain on the jury after he'knew of his misconduct, and, under the rule of law before stated, he thereby waived all right to object to the verdict on that ground and estopped himself from relying on said misconduct as a ground for a new trial, unless his situation and rights were such at the time he made the discovery, that the objection could riot have been obviated, Or that his right, was such that no waiver or consent could conclude him. If he-had made the Objection and insisted on it, the court could, under our statute, have had another juror sworn in his place. Code, ch. 159, § 7. Or by consent the cause might have been tried by the court, or by the remaining jurors or seven of them. Code, ell. 116, § 29; Dilworth’s Case, 12 Gratt. 708; Tooel's Case, 11 Leigh 714; State v. Van Matre, 49 Mo. 268. The objection, therefor, if it had been made could have been obviated at the time, and that the rights of the defend [51] ant were sucia that lae could waive them is equally clear. This is a civil action and in such cases any consent of the parties is binding. They relate .to and affect only individual rights which are entirely within their personal control, and which they may part with at their pleasure. The design of such actions is the enforcement of merely private obligations and duties. Any departure from legal rules in the conduct of such actions with the consent of the litigants is, therefore, a voluntary relinquishment of what belongs' to them exclusively. — Thomp. & Mer. on Juries, § 8; Cancemi v. People, 18 N. Y. 128 ; Durham v. Hudson, 4 Ind. 501; Commonwealth v. Dailey, 12 Cush. 80 ; Sarah v. State, 28 Ga. 576. Upon the foregoing authorities as wTell as upon justice and reason it is plain, that the defendant could have waived- a"s in fact he did waive the irregularity arising from the misconduct of the said juror, Snow, and his. coaaduct and acquiescence after he was apprised of the misconduct of-said juror, in permitting him to remain on the j ury, must be regarded as a consent that he should so remain notwithstanding such misconduct; and, consequently, it would be unjust to permit the defendant, after having taken his chance, of a favorable verdict, to take an. ad vantage of an irregularity, which he had waived and consented to, for the purpose of avoiding an unfavorable verdict. I am, therefore, of opinion that the said order of the cir-, euit court setting aside the verdict of the jury and granting a new trial is erroneous and must be reversed with costs to the plaintiff in error; and this Court proceeding to enter such judgment as the said court ought to have entered, it is considered that the defendant’s motion to set aside the verdict be overuled and that the plaintiff recover from the defendant the sum of two hundred and seventy-one dollars and twenty-seven cents, the amount of. the verdict .of the jury, with interest thereon from the 16th day of March, 1882, till paid and his costs in the prosecution of his action in 'said circuit court expended, which is ordered to be certified to said. court. . The Otheii Judges Concurred. Judgment Reversed.