Nelson v. Kuhfeld

Holt, J. Plaintiff recovered a verdict for personal injuries, and from the order denying his motion for a new trial defendant appeals. The only error assigned in this court is the refusal to grant a new trial for misconduct of plaintiff’s counsel. The record discloses that the trial began on the morning of March 19, 1923, and at 5 o’clock the next day this took place: “The court wishes to call the attention of the jury to the caution that has already been given them in regard to talking about the case or permitting any one to speak to you. And I wish to add to that caution one other suggestion, that it is improper for members of the jury to mingle with the witnesses or any of the litigants in the court room during intermission. I hope you will remember and refrain from doing so. This trial is a serious matter and it is not an occasion for levity and there has been some deportment in the court room that does not meet with the approval of the court, and I wish to suggest to counsel that from this time on we wish to be guarded both with reference to the litigants and the witnesses and the jury in regard to the conduct of this case.” When the court opened the next morning the attorney for defendant stated: “I offer to prove by Mr. W. C. Kuhfeld that, during the noon hour just after adjournment yesterday, he observed counsel for the plaintiff holding a considerable conversation with one of the jurors, being the juror sitting in the front row on the right end as we face the jury.” The court said: “The presumption is that there was no attempt to interfere with the jurors at all by counsel, the counsel being under oath as officers of the court.” Counsel responded: “I would say further that this was not brought to my attention until last night. He didn’t understand the significance of it, and upon the court’s statement just at the closing hour last night my client called by attention to it. I thought' in view of [165] the court’s statement at the time that it ought to be brought to the attention of the court.” The court answered: “I am inclined to think at this time it does not call for any action of the court.” Apparently counsel acquiesced in that view for no dissent was voiced, no exception was taken, 'and the trial proceeded to verdict. In the motion for a new trial the above incident was charged as misconduct of counsel. The charge is supported by the affidavit of appellant W. G-. Kuhfeld, and has nothing of substance other than what was offered to be proven during the trial, as above stated, except that the juror and attorney talked for two or three minutes in the court room, as court suspended for the noon recess and that no one was near enough to hear the conversation. There is no suggestion that the two sought to keep others from hearing what was said. There were others in the court room. No affidavit from the juror or attorney was presented. The record reveals a commendable zeal and caution on the part of the learned court below to free the trial from any unseemly and improper conduct on the part of jurors, attorneys and litigants, which might give occasion to suspect wrongdoing. Conversations between jurors and litigants or attorneys during a trial may or may not amount to misconduct, depending upon the subject touched and the object in view. But all such communications are improper as offending the ethics of a trial and creating occasion for criticism or suspicion. And it may be said, when it is made to appear that an attorney in the case and a juror have had a conversation during the course of a trial and because thereof misconduct is charged, it is, as a rule, incumbent upon the party accused to make an explanation that the conversation had no relation to the case. If he will not, he should be required to take a new trial. If he explains, the question is for the court. His explanation may exculpate him or it may not. This does not put the burden upon him to show that he was not guilty of misconduct. The attacking party must, upon the whole record, satisfy the court that there was misconduct. In the instant case when the incident was urged upon the trial court, that court evidently was satisfied either from personal observation or from knowledge of the parties [166] concerned that there had been no real misconduct, and that there was no occasion to • call for an explanation from either the juror or the attorney. In fact, the inference is that the incident was noticed by the trial court, and gave rise to the additional caution when the adjournment was taken that evening. The atmosphere of a trial cannot be transferred to an appellate court. As to many incidental matters, such as prosper decorum and an observance by all in attendance of the rules that go to insure a decision uninfluenced by anything apart from what is heard in open court, much must be left to the sound discretion of the trial court. And here, not only is there an indication that the attorney acquiesced in the opinion of the court, that an explanation from the offending parties was not called for, but we must take it as true that, when on the motion for a new trial based upon no other facts than those brought to the attention of the court during the trial, the court again concluded that no explanation was required, and that there had been no real misconduct. Where there is no showing that a casual conversation between a juror and an attorney of one of the parties related to the case on trial, or of circumstances which give rise to an inference that it related thereto, it is within the sound discretion of the trial court to determine whether an explanation is required. An appellate court has not such a view of the trial as the judge presiding thereat had. We feel that upon the record here presented the trial court might well dispense with an explanation, and refuse to find that the conversation was legal misconduct. The order is affirmed.