Goodeve v. Thompson

Mr. Justice Eakin delivered the opinion of the court. 1. There are five assignments of error. The first two relate to the admission in evidence of testimony of the [413] witness MacLean to the effect that in September or October, 1911, the defendant said to him that he had been after a girl for approximately 10 years, and that he had finally succeeded in landing her. The witness could not say that the remark related to the plaintiff, but that the girl referred to had come from Tacoma or Vancouver; he did not remember which. This statement was communicated to plaintiff as having reference to her, and she talked it over with the defendant in the presence of Grant. Plaintiff had returned from Vancouver about that time and was in Portland, and defendant was associating with her. The circumstances were sufficient to permit the testimony to go to the jury as to whether or not the defendant had reference to the plaintiff. 2. The third and fourth assignments of error relate to the action of the court in reproving the witness Terry in the presence of the jury, to which the defendant now excepts. In the absence of proof of what did take place, or of what was the misconduct of the witness, we must accept the statement of the judge as to the circumstances calling for the reproof. The witness was reproved by the judge at least twice, once for including argument in his testimony, and, again, for nodding his head and making demonstrations constantly in the courtroom. Evidently the judge thought he was attempting to exert an influence on the jury or the witnesses, and, if so, it was the court’s duty to reprove him and prevent such conduct. There is nothing in the record that discloses error in that regard. 3. The only other assignment of error relates to the denial of the defendant’s motion to set aside the judgment and to grant a new trial. Three grounds are assigned: (1) Newly discovered evidence material to the defense, and which he could not with reasonable [414] diligence have discovered and produced at the trial; (2) improper conduct of a juror; and (3) excessive damages given under the influence of passion and prejudice. The motion was supported by several affidavits, that of Mrs. W. B. Works and Lucille Ayres as to their knowledge of facts alleged to be material, and others relating to the misconduct of the juror. These affidavits were met by affidavits on the part of the plaintiff, and those followed by counter-affidavits especially relating to the misconduct of the juror. Whereupon the court proceeded to hear the oral evidence of many witnesses for and against the motion, all of which is reduced to writing and reported to this court, consisting of 150 pages, and upon consideration of the proofs by the court the motion was denied. It appears in the affidavits of Mrs. Works and Mrs. Ayres that they had certain conversations with the plaintiff with reference to her relations with the defendant. There is testimony tending to show that Mrs. Works and Mrs. Ayres were, at the time of the trial, residents of Portland, with whom defendant was acquainted, and that one or both of them were in the courtroom during the trial within the knowledge of the defendant, and that by the exercise of diligence the testimony, if material, could have been ascertained by the defendant for the trial. 4. The court tried out the question of the misconduct of the juror at great length. A perusal of the evidence taken on the hearing on the motion to set aside the judgment is convincing that the conduct of the juror Wallis in meeting and conversing with the. plaintiff under the circumstances disclosed was misconduct on the part of both the plaintiff and the juror; and, in view of the extravagant amount of damages awarded to the plaintiff, we cannot ignore this circum [415] stance, nor say that the misconduct was not prejudicial to the defendant’s rights. 5. The trial court found that there was misconduct by both the juror and the plaintiff, but says he was constrained to think it was by procurement of the defendant. There is no doubt but that the misconduct complained of was sufficient ground to set aside the judgment, unless the misconduct was procured by the defendant; but such a conclusion can only be a surmise. There is no direct evidence of fact to that effect, and it is not sufficient to justify the court in ignoring the facts. . It is said in Davidson v. Manlove, 2 Cold. (Tenn.) 346: “Such conduct on the part of a suitor is highly improper and reprehensible, and should call forth the severe censure of the court. Men must not be permitted to tamper with jurors before whom their suits are being tried; and, being seen in close conversation with them during the trial, or while they are considering of their verdict, the circumstance, unexplained, is sufficient to authorize the circuit judge to grant a new trial, and to subject the party to punishment by the court for contempt. The fountains of justice must be kept pure and free from suspicion, or the citizen will lose all respect for the laws, and the rights of person and property will become insecure. Suitors-and jurors must not place themselves in a position where their conduct creates suspicion.” The judgment is reversed and the cause remanded for further proceedings. Reversed : Rehearing Denied. Mr. Chiee Justice McBride, Mr. Justice Bean and Mr. Justice McNarx concur. [416] Decided January 6, 1914.