Wightman v. Butler County

Granger, J. 1. appeal from order granting new trial: record: review. I. The motion for a new trial was based on assignments that the verdict was contrary to the instructions given; that it was not sustained by the evidence; that the court erred m refusing and admitting evidence; in giving and refusing instructions; and of the misconduct of one of the jurors during the trial. Upon what one or more of these assignments the court based its ruling the record does not inform us. The court merely “sustained said motion, and set aside the verdict of the jury. ” We can only disturb the action of the court upon an affirmative showing of its error. Its ruling being general, if there is one ground of the motion as to which error does not affirmatively appear, its action must be sustained, for it may have been on that ground that it sustained the motion. The appellant’s counsel, with a view evidently to meet the emergency, have discussed the several grounds of the motion for a new trial in the light of the record, urging that it is manifest therefrom that the court in granting the [693] motion exceeded its discretionary power. A consideration of one of the grounds of the motion will be sufficient for a proper determination of the case here. 2. _. conflict of evidence. II. The affidavit of one E. P. Eox was filed in support of the motion for a new trial, in which it appears that during the progress of the trial, and while the court had adjourned for dinner, he entered a billiard saloon, and the only person there was one of the jurors, whom he then did not know, but supposed him to be the proprietor of the saloon; that he there entered into a discussion with him as to the merits of the case on trial; that, after they had “discussed and argued the-merits of the case,” the juror informed him who he was; “that he had made up his mind how he should decide it, and that the lawyers could not change him;” but it further appears that at that time the evidence for the defense had not- closed, and no part of the rebutting evidence had been introduced. In resistance of the motion the affidavit of the juror was filed, in which it is stated that the statements in the affidavit of Eox, in so far as they relate to a talk or conversation with him, are “wholly false;” that he had no talk whatever with Eox in the billiard hall, and never discussed or argued the merits of the case with him, and never told him he had made up his mind how he should decide the case, or that the lawyers could not change him. These affidavits constitute all the evidence for and against the motion. It is not urged to us but that, if the statements in the affidavits of Eox are true, the district court could properly grant a new-trial for that reason; but it is urged that the court could not “reasonably so hold.” The evidence is clearly conflicting. The juror surely had as strong motives to falsify as did the witness Eox. There is no rule in such a case in a law proceeding upon which we can determine the facts against the findings by the district court. If the ruling [694] of the court below was upon this ground of the motion, which we may assume in support of its judgment, there is no theory of the law upon which we can or should disturb its action. The evidence is such that its findings of fact for either party under the issue would conclude us. With this view, error does not affirmatively appear, and the order of the district court must be affirmed.