Johnson v. Seel

EisK, J. This cause was tried to a jury and resulted in a verdict and judgment for defendant. A motion for a new trial was made solely upon the grounds of the alleged misconduct of the jury, of the defendant, and of his attorney, which motion was supported merely by the affidavits of two of the jurors, and of plaintiff’s attorney. The affidavits of the two jurors are to the effect that a third juror, one fdesler, in a conversation had with them during the trial of the case, made certain statements to them of and concerning the plaintiff of a very derogatory nature, and tending to, and which in fact did, influence and prejudice them against the plaintiff, and which statements disclosed, on the part of kfesler, strong bias and hostility toward plaintiff. Such affidavits also contain statements of a hearsay character, tending to show that juror Mesler, during the time the case was on trial, visited the office of defendant’s attorney, where he was treated to beer, and that two other of the jurors admitted having visited such attorney’s office during the term of court for the purpose of drinking beer, although whether this occurred while the case at bar was. being tried is not shown. The affidavit of plaintiff’s attorney sets forth conversations had by such attorney with hlesler and certain other jurors, wherein they admitted to him that they had thus visited the office of defendant’s attorney at various times during the term of court at which this cause was tried, and there drank beer as invited guests. Such conduct on the part of defendant’s counsel and the members of the jury, if established to be true by proper evidence, would be most reprehensible, and would justly deserve the severest condemnation, and no doubt would be good ground for vacating the verdict and granting a new trial. But we are clear that the misconduct thus attempted to be shown was not properly established, and that the trial court therefore did not err in declining to consider [303] such affidavits, as be must bave done in denying tbe motion for a new trial. Appellant’s contention that § 7063, Eev. Codes 1905, expressly authorizes sucb misconduct to be proved by tbe affidavits of jurors, is clearly untenable. Subdivision 2 of tbis section in unmistakable language limits tbe use of sucb affidavits to misconduct consisting of a resort by tbe jury to a determination of tbe issues by cbance, and there is no warrant in tbe statute for tbe use of sucb affidavits to impeach tbe verdict upon other grounds of misconduct, sucb as is here attempted. Tbe authorities, in construing a like statute, are, we think, unanimous in support of our views as above expressed. We will content ourselves by tbe citation of a few. People v. Azoff, 105 Cal. 632, 39 Pac. 59; People v. Findley, 132 Cal. 301, 64 Pac. 472; Saltzman v. Sunset Teleph. & Teleg. Co. 125 Cal. 501, 58 Pac. 169; Turner v. Tuolumne County Water Co. 25 Cal. 398, 1 Mor. Man. Rep. 107; Ewing v. Lunn, 22 S. D. 95, 115 N. W. 527; Murphy v. Murphy, 1 S. D. 316, 9 L.R.A. 820, 47 N. W. 142; State v. Andre, 14 S. D. 215, 84 N. W. 783. In support of tbe general proposition that affidavits of jurors are inadmissible to impeach their verdict, see in addition to tbe foregoing authorities, Sanitary Dist. v. Cullerton, 147 Ill. 385, 35 N. E. 723; Re Merriman, 108 Mich. 454, 66 N. W. 372; Jones, Ev. 2d ed. ¶¶ 766, 767; 4 Wigmore, Ev. §§ 2345, 2348, 2349, p. 3271. Nor was tbe affidavit of plaintiff’s counsel admissible. Sucb affidavit merely recites admissions made to tbe attorney by certain members of the jury. Manifestly, if tbe affidavits of tbe jurors were inadmissible, tbe affidavit of a third person merely narrating admissions made by sucb jurors is likewise inadmissible. If authorities are desired in support of tbis, see Siemsen v. Oakland, S. L. & H. Electric Co. 134 Cal. 494, 66 Pac. 672; People v. Ritchie, 12 Utah, 180, 42 Pac. 209. Tbe judgment and order appealed from are affirmed.