Chalmers v. Whittemore

Gileillan, C. J. Where any unauthorized communication is made to a juror in a cause on trial, which may have influenced his mind in favor of the successful party, a new trial will be granted for that reason ; but if it is apparent that the communication could not have had such influence, it is no ground for a new trial. In this case the statement made by the defendant’s witness Pray to the juror Copeland tended to support the defence, and to prejudice the juror in favor of defendant, but could not possibly influence him in favor of plaintiff. The remark by the juror McHerron to the witness Wis-hart, made while the trial was pending, that the defendant “ was catching it, and was making a fool of himself,” showed that the juror had at that time got an impression of the case, apparently from the proceedings already had in the trial, but not that there was any prejudice in his mind against the defendant, or any impression other than such as the evidence may have produced; and his communicating [308] such impression was misconduct, for which he might have been punished by the court below, but furnishes no ground for a new trial. We can see from the evidence how the jury may have properly arrived at the damages allowed, and we cannot say they were not justified as to the amount. As the plaintiff had testified that he had been engaged in the kind of work in question during the year previous to the trial, it was evident that he must have had skill and knowledge of that kind of work, beyond that which men generally have, sufficient to justify the court in allowing him to state what was the quhlity of work done. There was sufficient evidence to go to the jury on the point that the work was done as required by the contract, and, so far as the evidence presented the case, the charge of the court left it to the jury fairly. The question put to the witness Hugh W. Greene upon the issue as to the quality of the slate used, “What is the reputation of the quarry ? ’ ’ — referring to the quarry from which the slate was taken — was certainly incompetent. Proof of reputation is sometimes admitted, from necessity, to establish particular facts — as to prove the character of an individual; but the quality of slate yielded by any designated quarry is susceptible of proof without the necessity of resorting to proof of reputation. Had the witness stated the reputation in answer to the question, the error would have been material. But his answer was — he having shown that he knew the quarry very well, and had been at and examined it frequently — “ To the best of my knowledge, it is the best slate produced in Slatington., with the exception of one quarry.” He here speaks of the quality of the slate, and not the reputation of the quarry. The error in overruling the objection did not result in any prejudice. Order affirmed.