Bryant v. Brady

Conley Byrd, Justice. This litigation arises over a contract whereby appellant Paul Bryant employed ap-pellee V. J. Brady to do certain clearing. Brady initiated suit claiming that after credit for payment of $1,000 he was entitled to a balance of $1,933.50. Bryant denied that Brady had performed his contract and filed a cross action claiming damages, among other things, for loss of rental, for loss on sales of cows, and for pain and mental anguish, all ini the amount of $6,050. From, a jury verdict awarding Brady a judgment of $1,500, appellant appeals, contending that he was not permitted sufficient time to make discovery; that the verdict was excessive and not warranted by the facts; and that the “jurors did not truthfully answer questions proposed to them by the judge as to their knowledge and acquaintance with the plaintiff as they were qualified.” Since we reverse the pase upon the third point, we do not reach the first two. The record on the third point shows that juror Estel York had known Brady all of his life and that during the time of the lawsuit Brady was purchasing gasoline from him. He did not recall Judge Roberts’1 asking the jurors, “Do you, or any of you, know the plaintiff or the defendant?” Juror T. F. Bryant (not related to appellant) had known Mr. Brady all of his life. During 1960 and 1961 he and Brady had together bought a cotton stripper and used it in their farming operations. When first asked if he recalled Judge Roberts’ asldng him, “Do you know the plaintiff or defendant?” juror Bryant answered, “No sir, that question was not asked.” Subsequently juror Bryant testified that he did remember Judge Roberts excusing one or two jurors. Thereafter the following occurred: “Q Do you know what questions were asked of them? A Well, not particularly I don’t. Seems like one of them had business with him the last year or two or something, maybe currently doing business with him. Q What prompted that answer — that response, Mr. Bryant, by that prospective juror ? A I don’t know. Maybe he was asked, I don’t know. Maybe be was currently doing business with him. Q Well, are you saying that these jurors may have been asked some question that prompted that response, or you don’t know, or didn’t hear, or what is your recollection of that? A Well, I believe the question was asked, ‘Have you done business with Mr. Brady, or currently doing business with him, in the last year or so?’ Q You did hear that question, ‘Have you done business with Mr. Brady in the last year or so?’ A Yeah. Q You heard that question? A Yeah. Q And did you see anyone that made a response to it? A Well, there was some left the room; I suppose that was the cause of it.” Juror J. M. Cartwright testified that he had known Mr. Brady for a long time and that he did not respond when Judge Roberts asked if any of them knew the plaintiff or the defendant. Juror Ellis Lasley testified that he had known Brady all of his life, that he had operated a gin from 1920 to 1963 and that Brady had ginned cotton with him. He recalled Judge Roberts’ asking some questions and people raising their hands and indicating an answer or response to those questions. He remembered that a Mr. Hiegel had made a statement and that Judge Roberts had excused Mr. Hiegel. When specifically asked, “Do you remember Judge Roberts asking the jury panel, ‘. . . Do any of you know the plaintiff or defendant?’ ” juror Lasley answered, “I don’t know whether he said that or not.” The record on the motion for a new trial obviously shows that Judge Roberts, in qualifying the jury, asked if any of the jurors knew Brady or Bryant and if any of the jurors were doing business with either Brady or Bryant. The record also establishes that these four jurors remained silent to the questions of the judge, although other prospective jurors raised their hands or otherwise responded to the judge’s questions. In Missouri Pac. Transportation Co. v. Johnson, 197 Ark. 1129, 126 S. W. 2d 931 (1939), we recognized that the silence of a juror in a situation such as this amounts to an answer. Certainly here, where other jurors understood the questions and responded, we must accept the jurors’ silence as a responsive answer to the court’s questions. In D. F. Jones Construction Co. v. Fooks, 199 Ark. 861, 136 S. W. 2d 487 (1940), two of the jurors were qualified by the trial court on the basis that they had not formed any opinion about the lawsuit and “that they had not been talked to by anyone relative to the case.” On motion for a new trial it was shown that one Clyde Robins, prior to the trial, had offered the two jurors a bribe to return a verdict for Fooks. In holding that the trial court abused its discretion in failing to set aside the verdict, we said: “The jury system is a great institution and should hold itself aloof from any and all corrupt influences. Members of juries owe it to themselves and to the great system to preserve the integrity of their verdicts. If there is substantial evidence in the case to support the verdict of the jury this court will not try a case de novo, but will accept and receive the verdict of the jury as final on issues involving not only property rights, hut issues involving life and death. The only way to preserve the integrity of the verdicts of juries and keep the stream of justice pure is to set aside verdicts returned by juries which have been tampered with or attempted to he tampered with. ’ ’ Here we think the trial court abused its discretion by not setting aside the verdict. Obviously, the jurors did not fairly answer the questions put to them by the court. Of course, truthful answers to the questions would not necessarily have disqualified the jurors, but how can we assert that they returned a fair verdict when they did not give fair answers to questions of the court? When viewed from the standpoint that “justice ought not only to be fair but appear to be fair,” Arkansas State Hwy. Comm’n v. Young, 241 Ark. 765, 410 S. W. 2d 120 (1967), we think the trial court under the record here abused its discretion in not setting aside the verdict. Appellee argues that the motion for new trial can not be considered because it was not verified as required by Ark. Stat. Ann. § 27-1905 (Repl. 1962), which provides : “Norm of application. — The application must be made by motion, in writing, setting forth in separate paragraphs the grounds or assignments of error relied upon for reversal of the verdict or decision. The grounds mentioned in the second, third and seventh subdivisions of section 1536 [§ 27-1901] must be sustained by affidavits or other competent testimony, showing their truth, and may be controverted in the same manner. [Civil Code § 374; C. & M. Dig., § 1315; Pope’s Dig., § 1540; Acts 1939, No. 167, § 1, p. 402.]” We do not agree with appellee’s interpretation of the statute. As amended by Act 167 of 1939, the statute requires only that the grounds mentioned in the second, third and seventh subdivisions of Ark. Stat. Ann. §27-1901 (Repl. 1962) must be sustained by “affidavits or other competent testimony, showing their truth.” In this case appellant sustained his grounds by the sworn testimony of the jurors in open court. Furthermore, the motion for new trial may be considered as having been brought under the first section of § 27-1901, which is not affected by § 27-1905. Reversed and remanded. Jones, J., dissents. Footnotes [1] Although Judge Roberts qualified the jury, he disqualified himself, and Hon. Rolland Bradley was elected to serve as special judge in his stead.