INCOMPETENT EVIDENCE FOR ESTABLISHING MISCONDUCT OF JURY.

Court of Appeals for Knox County.

#### James F. Dodd v. Harry McCammon.

Decided, March *26, 1920.*

*Construction of Contract for Ra-seeding hy Tenant Farmer*— Miscon*duct of Jury must he Shown hy Evidence Aliunde.*

1. A new trial will not be granted for misconduct o£ the jury, unless partiality is shown to have existed to such an extent as to have *69clearly constituted a disqualification for the proper exercise of reason and judgment, and to have been paused by the prevailing party or someone for him.

2. Under the rule that the affidavits of members of the jury are inadmissible to impeach their verdict, it is clear that misconduct which would vitiate the verdict can not be shown by the affidavit of an attorney who has obtained his information second hand, but must be established by evidence aliunde.

*Charles L. Bermont,*for plaintiff in error.

*Ewalt & Blair,*contra.

Houck, J.

The parties occupy the same position in this court as in the court below.

This cause was tried to a jury at the October term, 1.919, of the court of common pleas of Knox county, Ohio, upon the issues made ifi the second cause of action in plaintiff’s petition, .the answer thereto and reply and also upon the issues made in defendant’s cross-petition and the answer thereto, which resulted in a verdict for the defendant upon his cross petition for the sum of $77.76. A motion for a new trial was filed by plaintiff, which was overruled and judgment entered for the defendant for the amount found due by the jury.

The errors relied upon for a reversal of the judgment in this case are as follows:

First. That the trial judge erred in his charge to the jury as to the law, applicable to the construction of the following paragraph contained in the written contract sued upon:

> “Any excess of timothy or clover seed that may be raised and not needed for re-seeding may be sold, and the proceeds divided equally; but if sufficient is not raised on the farms for such reseeding, then the necessary seed shall be paid for jointly, and in the same manner shall also be paid for all other grain and seed required for the farms during the period covered by this agreement ; and at the termination hereof the second party shall leave-as much land *on*the farms seeded to clover and timothy, or seed to equalize the same, as was thus seeded April, 1915.”

The intention of the parties to a contract can only be deter-*70wined by the language used therein. If the contract is clear upon its face and is not ambiguous, then it needs no construction or interpretation on the part of a court.

To us, the language in question is clear and plain of meaning and but one construction or interpretation could properly be placed upon same, namely, that which the trial court gave to it.

The trial court said to the jury,

> “And now if Mr. McCamrnon, the defendant in this ease, did seed down in the spring of 1918, to clover, an equal number of acres to that which was seeded down in 1915, he has done all the contract required in that regard. ’ ’

We find and hold this to be the law and clearly applicable to the language used in the contract and its proper intei’pretation.

The only question then remaining for the jury to determino was, as to whether or not McCamrnon had “seeded down”' the required number of acres to clover. This being a question of fact and the jury having found in favor of McCamrnon, from the evidence, we must and do find no prejudice to the rights of Dodd in this respect.

Second claimed error. That the verdict and judgment are not supported by the evidence apd are contrary to law.

We will not discuss this further than to say that, after a careful reading o£ all the evidence and an examination of the charge of the court, ive find the verdict of the jury and the judgment entered on the verdict, by the court, responsive to the proven facts and the law applicable thereto.

Third. Was there “misconduct of the jury” that would warrant a reversal of said judgment?

In support of this claimed error, counsel for plaintiff in erroi relies upon the facts set forth in his affidavit filed in support of this ground for a new trial, in his motion for same, in the common pleas court, being as follows:

> “Charles L. Bermont, the attorney for plaintiff, being first duly sworn, says: That in a talk with E. W Breece, Robert Neiderhouser and C. C. Leiter, three of the jurors, who sat in the case of *Jame F. Dodd*v. *Harry*W. *McCammon,*which talk *71took place on December 9, 1919. (being several days after the jury returned its verdict in said ease) the following conversation, in substance, took place:

> “E. W. Breece said to affiant, ‘You didn’t expect to win your Dodd ease, did you?’

> “To which affiant replied, ‘No, I do not have much confidence in our claim, neither did I think that the defendant would get a verdict on his cross-petition. 1 thought the jury would leave them about where they started. ’

> “To which remark Robert Neiderhouser replied, ‘That man Dodd has been at that kind of business so long that the jury thought it was about time to punish him a little. ’

> • “To which affiant replied, ‘Had I known that you felt that way about it, you would not have been on that jury.’

> “To which Neiderhouser replied, ‘You need not blame all of it on me, because Squire Welker knew’ all about it, as he had recently collected an account from one of Dodd’s tenants, for cleaning up after the tenant moved. ’ ’

The general principle underlying all cases of misconduct of the jury, as a ground for a new trial, is that such misconduct, in order to warrant the granting of a new trial, must be such as to affect the impartiality of the jury to such an extent as to clearly show a disqualification of its being able to exercise the powers of reason and judgment. Further, it matters not how improper such alleged conduct, on the part of the jury, may have been, yet, if it was not caused by the prevailing party, or by anyone for him, or if it does not point to any improper prejudice or bias upon the minds of the jurors, unfavorable to the party seeking a new trial, the trial judge ought not to set aside the verdict and grant a new trial.

In the present case there is no claim that the prevailing party had any knowledge of the declared misconduct on the part of the jury.

Admitting all the claims of plaintiff in error as to the facts, they fall far short of making a case of misconduct. But if they did, the proof offered is not of such character that it *could*be considered by the trial court in passing upon the motion for a new trial.

*72It is a well settled proposition of law in this state that, unless there is evidence *aliunde,*affidavits of jurors are not admissible to impeach their verdict.

Hence it follows that the affidavit of an attorney who obtains his -information at second hand, as to alleged misconduct of a jury, from one of the jurors who sat in the case, cart not be received in an attempt to set aside the verdict.

The common pleas court did not err in refusing a new trial upon the ground of misconduct of the jury.

We are fully supported in the conclusion thus reached, by the decisions in the following cases: *Farrer*v. State, 3 Ohio State, 54; *Hulet*v. Barnett, 10 Ohio, 460; *Kent*v. *State,*42 Ohio State, 426; *Parker*v. *Blackwelder,*7 C. R., 140; *Andrews*v. *State,*15 C C., (N. S.), 241.

After a careful- review of the record in this ease, we find no errors of a prejudicial nature as against the plaintiff in error. We find also that a fair and impartial trial was had; that the verdict of the jury is clearly responsive to the evidence, and that the lower court was fully authorized and warranted, under the facts.and the law, in overruling the motion for a new trial.

Judgment affirmed.

Patterson, J., and Sayre, J., concur.

Judge Sayre, of the Fourth Appellate District, sitting in the place of Judge Shields.