Akin v. Lake Superior Consolidated Iron Mines

START, O. J. This is a personal injury action, brought by the plaintiff, for the benefit of his minor son, against the Take Superior Consolidated Iron Mines, the Oliver Iron Mining Company, hereinafter referred to as the-“Oliver Company,” and the Roberts-Kingston Contracting Company, hereinafter referred to as the “Kingston Company.” The case was dismissed as to the first-named defendant. The jury returned a verdict in the sum of $10,000 in favor of the plaintiff against the Oliver Company, and a verdict in favor of the defendant Kingston Company against the plaintiff. Thereupon the Oliver Company made a motion for judgment notwithstanding the verdict or for a new trial. The plaintiff and the Kingston Company were made parties to the motion, which was based on the ground, among others, that the Kingston Company, by one of its officers, was guilty of misconduct in relation to the jury, whereby the Oliver Company was deprived of a fair trial. The trial court denied the motion for judgment, but was of the opinion that there was. such wrongdoing on the part of the defendant Kingston Company that the verdict in its favor should not stand as against one who, complaining, would be adversely affected thereby. Thereupon the court made its order denying the motion for a new trial as- against the plaintiff, and further ordered that, as between the Oliver Company and the Kingston Company, the verdict in favor of the latter should be vacat [208] ed and set aside; 'that as between them such verdict and the judgment to be entered thereon should be without force or effect; and, further, that the Oliver Company should not. be prevented thereby from successfully prosecuting an action for indemnity against the Kingston Company, if it should be so advised. The Oliver Company appealed from the whole order. Both the plaintiff and the defendant Kingston Company were made parties to the appeal, and they severally appeared and litigated in this court with the Oliver Company the questions raised by its appeal. It is not claimed in this court by the appellant that it was entitled to judgment notwithstanding the verdict, and the assignments of error relate only to the alleged misconduct and to the charge to the jury. The conclusion we have reached on the first question makes it unnecessary to consider the second one. A brief statement of the issues is necessary to an understanding of the claim of misconduct on the part of the Kingston Company. On August 27, 1905, the plaintiff was in the employ of the Kingston Company, and while he was going, on that day, from his place of work to his boarding place, he fell into a test pit, which the complaint al-. leged was negligently left unguarded by the defendants, whereby he was seriously injured. The complaint alleged that the test pit was on a certain forty acres of land which was in the possession of the Oliver Company for the purpose of removing the iron ore therefrom; that it entered into a contract with the Kingston Company to strip the land of waste material, and thereupon it entered into possession thereof jointly and severally with its codefendants. The complaint further alleged that the defendants, and each of them, negligently permitted the test pit to remain unguarded. The defendants answered separately, putting in issue the allegations of the complaint; or, in other words, the plaintiff claimed that both of the defendants were liable, while each of them claimed that it was not liable. Such being the issues, the trial court instructed the jury with reference thereto as follows: “You may find a verdict against either one or both of these defendants. You may find a verdict in favor of either one or both, according as you believe and apply the evidence. It is with you to say. The alleged negligence of the defendants is that up [209] on which plaintiff bases his claim to recover, and there can be a recovery against that defendant only as to which negligence has been established, if as to one only; if as to both, then as to both. If, un'der all the circumstances, you find that either of the defendants was not negligent, there can be no recovery as to such defendant.” There was evidence justifying the giving of the instruction. Each defendant, then, as against his codefendant, was entitled to a fair consideration, by an unbiased jury, of the question of its liability, in case only one of them was liable. The alleged misconduct on the part of the Kingston Company related to an attempt to improperly influence one of the jurors. The moving papers and evidence on the part of the appellant on the motion for a new trial tended to show that one of the jurors impaneled to try the case was a tailor and the proprietor of a shop; that the secretary of the Kingston Company was a witness on its behalf on the trial of the action; that on the second day of the trial, and before testifying in the case, he went to the shop of the juror and placed an order for an overcoat of the value of $40; that he went to the shop on two different occasions, but did not find the juror in either time; that the juror, however, knew of the order; that the secretary on the third day of the trial said, during a conversation about the case, to a third party, that he did a good piece of work the day before; that before testifying in the case he went to the shop of one of the jurors, who was a tailor, and placed an order for a fine overcoat; that he did not need the coat, and, continuing, he said, “that will not do any harm,” at the same time winking. The secretary, denied having this conversation. He admitted ordering.the overcoat, but denied that he gave the order from any improper motive, and claimed that he was innocent of any intentional wrong in the premises. The trial court found, in effect, that there was misconduct, as alleged, on the .part of the Kingston Company, and attempted to right the wrong so far as possible without disturbing the verdict in favor of the plaintiff against the Oliver Company. It must be assumed, then, for the purposes of this appeal, that the Kingston Company, by its secretary, was guilty, as charged, of misconduct with reference to the juror. It is urged on behalf of respondents, respectively, that the appel [210] lant’s-rights as against the Kingston Company, if any it has, are fully protected by the order appealed from, and, further, that the alleged misconduct could not have affected unfavorably appellant’s rights. The plaintiff is absolutely innocent of any misconduct, and if, in the proper administration of justice, it shall become necessary to set aside his verdict for the wrong of another, it will be a matter of keen regret. The plaintiff, however, is not the only party to the action whose rights must be conserved. It is not sufficient to say that the plaintiff might have omitted to bring his action against the Kingston Company, or that he might have dismissed the action as to it any time before trial; for the fact remains that the action was against both companies and was tried against both by the same jury. Even if it be conceded that the appellant’s right of contribution against its co-defendant is preserved, yet, if there had been a judgment against both, the enforcement of contribution would have been a much simpler matter by virtue of R. R. 1905, § 4281. Again, the Oliver Company was entitled to have the question whether it or its codefendant was liable, in case the jury were of the opinion that only one was liable, determined by a jury of twelve men, none of whom had been approached by its codefendant. It cannot, then, be said with any degree of certainty that the Oliver Company was not prejudiced by the alleged misconduct of its codefendant in attempting to fix one of the jurors. Where there is in fact misconduct by interfering with the jury in the performance of t^ieir duty, it is unreasonable to require the party urging such misconduct to show that he was in fact prejudiced. It is sufficient if the misconduct may reasonably have had an effect unfavorable to him. Hayward v. Knapp, 22 Minn. 5; Koehler v. Cleary, 23 Minn. 325; Woodbury v. City of Anoka, 52 Minn. 329, 54 N. W. 187; Rush v. St. Paul City Ry. Co., 70 Minn. 5, 72 N. W. 733. Where a prevailing party attempts to corrupt or improperly influence the action of any of the jurors in a case, a new trial should, as a matter of sound public policy, be granted, without reference to the question whether or not the attempt was successful. The jury system has been deservedly pronounced “the best achievement of civilization.” Any failure of the system in particular cases is not due to the system, but to its administration; and courts should be earnest in their efforts [211] to safeguard the right of every party to an action to a fair trial by an uncorrupted jury. We are therefore of the opinion, and so hold, that the order appealed from should be reversed, and a new trial granted, as to all of the parties, on account of the misconduct of the Kingston Company, with judgment in favor of appellant for costs and disbursements in this court against the Kingston Company. So ordered. On February 7, 1908, the following opinion was filed: