Sacramento daily record-union. [volume] (Sacramento [Calif.]) 1875-1891, 1888-08-17


of the bar. The subjects treated of are
what have been called chance verdicts,"
or "quotient verdicts," and the adlnissi-
bility of the affidavit of juror to impeach
his verdict, and have given rise to many diff
ferent decisions by different Judges, some of
which are commented on by Judge Arm
strong. His criticism of parts of the opin-
ion in the case of Turner vs.. Tuolumne
County Water Company, % Cal, 397, will
be read with interest. Following is the
full text of the opinion
In the Superior Court OF the County of Sscra-
mento, State of California-Frank Estabrook,
plaintiff, vs.. Edward Christy, defendant.
The defendant moves the Court for new
trial, and in his notice of intention to move he
specifies as a ground of his motion, that the
july was guilty of misconduct in arriving at the
amount Of their verdict by the determination
OF chance In support of this ground the de-
PENDANT has filed the affidayits OF two of the
jurors who lid not agree to the verdict, and the
affidavit of one OF the Jurors who did agree to
il, The plaintiff filed, in support OF the YER
diet the afidaYits of two or the jurors who
| did agree to the verdict. 1t appears from the
affidavits on file that after discussion as to
| the amount of the verdict the jurors, who had
| agreed TO render a verdict for the plaintiff,
agreed that each should write on n piece of pa
| per certain sum ard that the several sums
| thus written down sh uld be added together
and divided by eleven, that being the number
, of jurors in the panel, and that the quotient
should be the verdict; and it does not appear
from any of the affidavits that any OF the jurors
reserved their right to dissent from the result; but
| it does appear fIom the affidavit OF a. B. Burns
| that he was not satisfied with the verdict and
would not have agreed to it had he not felt
| bound by the agreement which had been en-
tered into, as before stated The quot1ent was
| S11l and that sum was returned IN pursuance
! of the agreement as the verdict IL is conceded
| by all the authorities that such Yer let is
| vicious and should be set aside but the suthori
| ties at the common law are conflicting to
| whether the atiidayits of the jurors are compe-
| tent to impeach the verdict, and the numerical
weight of the decisions is that Juror shall not
| be heard to impeach his own verdict The
reason on which this line of authorities rests Is,
| if the juror is guilty OF mis- -onduct he has VIC
4 lated his oath and is liable to punishment But
| the Court no longer has the power to punish q
| juror for such violation of his oath and the
! reason on which those authorities rests having
| failed, they should no longer be regarded as
| authority, upon the principle that when the
| reason of rule ceases the rule itself should
| cease-C. c., 500 But there is another class of
| cases less numerous, which hold that the volun-
| tary testimony OF the jurors may be received to
prove misconduct OF the jury; but some of this
| class of cases limit the rule to receiving the
| testimony of such of the jurors as were not in
| fault. deacon vs. ShTeVe - \. J. L., l76: War
ner VS. Robinson, /. Root, 49, Smith VS. Cheet.
| ham, Gaines. 81; Pratt VS.. Cotfman, 80 Mo, u
] rs; Thompson vs. Parkins, rs Iowa, 4S5; CTaw-
! :.
! noiS and Mississippi Telegraph Company, 20
| Iowa, 1851
| In these cases the affidavits were received, and
| particularly in the last case cited where the
| Court reviewed all the leading authorities and
| deduced therefrom the rule founded in reason
| and sound policy TO be this ~ That atildavits
Of jurors may be received for the purpose of
| avoiding a verdict, to show any matter occur
| ring during the trial or i'll the iury-room which
does not essentially inheTe in the verdict itself,
| as that juror was Improperly approached by
I ortxr hat
| others conversed as to the facts or merits of the
case, out of Court and in the presence of jurors
| that the verdict was determined by aggregation
| and average or by lot, or game OF chance or
| other artifce or improper manner; but that
| such affidavit to avoid the verdict may not be
received to show any matter which does not
| essentially inhere in the verdict itself, that
the juror did not ascent TO the verdict; that he
| misunderstood the instructions of the Court,
/ the statements OF the witnesses or the plead
| ings in the case that he was unduly iniiuenc,
| by the statements or otherwise of his fell
| low jurors, or mistaken i'll his Calculation
| or juds ment, or other matters resting alone in
/ the Jurors breast" The affidavits of the jury
were received in the case ana the verdict set
| aside. And in Deacon VS.. Shreve the Court de-
cided that while the testimony OF juror was
| Incompetent to prove his own misconduct, yet,
1 such misconduct may be shown by the oath OF
| a fellow juror who is not incuipated i'll the mis-
conduct, and within the principle of this author
/ ty, the affidaritS of the Two jurors who did not
| agree to the verdict are competent evidence to
prove the misconduct of the other Jurors Con
Stables and SheriffS are permitted to give evil
| dence as to misconduct OF jurors in the jury
| room in arriving at their verdict. Wilson VS..
| Bergman Gel. 45) And if the testimony of
| Constable or Sheriff, having the jury in charge,
| who receives his information by looking or list
ening at the keyhole of window of jury
| room may be received to prove misconduct of
the jurors, what reason requires the rejection of
/ the atidavits of those jurors who did not agree
| or assent to the verdict? They are guilty OF no
| Misconduct: they no more violate a duty by
disclosing the mi conduct Of their fellow jurors
| than does the Sheriff. Constable or other person
who obtains his knowledge OF the misconduct
of the jury by eayes-dropping or peeping or
| listening at the key-hole or window of the
| room-and there is no more reason for exclud-
| ing the testimony of such nOn-aSSenttng Jurors
| in such cases than there would be in eXclud-
l ing the testimony of the Sheriff. Constable or
other persons who know the facts. There is
nothing III the juIy-rocm OF such sacred nature
| as to prevent disclo ure as to what was done
| there if there were, the mouth OF the Sheriff
| the Constable and every eaves-dTopper would
| be closed, but they may testify. 1t seems clear
| that the afiidavits Of the non asserting juror,
| may be received and considered on a motion
\ for new trial.
! In this State the Code of Civil Procedure. 657
| provides that new trial may be granted for
misconduct Of the jury. and that when any OF
| the Jurors have been induced to assert TO YER
| diet by resort 10 the determination OF chance
such misconduct may he proved by the affidavit
OF any of the jurors The question is. What is a
determination of chance2' Under similar
| provision of the old Practice Act the aihdaYits
|
the jury in arriving at their verdict in the cases
| of Bonner VS. Palmer, % Cal A. and Levy vs.
BrannGn, 80 Cal 4S9, and there is no difference
| in principle between this and those cases. But
| in the case of Turner vs.. The Tuolumne County
Water Company, % Cal. 3g7, the Court said: 1--WE
assume that the verdict SO tar as the amount of
| damages is concerned, was rendered in pursu-
ance of an agreement between the jurors to the
| effect that each should put down on separate
piece Of paper the amount which he thought the
plaintiff was justly entitled to recover that the
several sums thus marked down should be
| added together and the total amount divided
| by twelve, and that the quotient, whatever it
might be, should be their verdict without fur
ther consultation or discussion. In the course
of the opinion, the Court said Under the facts
OF this case, as we have assumed them TO be-
/ the verdict is undoubtedly vicious aud ought
| to be set aside The only question for us to de-
termine is whether the afhdavits of the Jurors
| can be received for the purpose of establishing
| those facts. Though there is some conflict OF
authority upon this question, the better opinion
| seems TO be That by the common law the aft
davits OF jurors csnnot be received for the pur-
/ pose of impeaehing their verdict, but may be
admitted in support thereof. But this rule of
\ the common law has been changed in this State
| to a certain extent by statute" The Court re-
| ferred to Section I93 of the old Practice Act
which was substantially Ii Ike Section 657 of the
| Code OF Civil Procedure, and continued BE
| ing in derogation of the common law this stat
/ ute must be strictly construed, aud cannot be
| held to include such kinds of misconduct as do
not come clearly within the descriptive terms
! of the Act But this rule of construction was
ton provides that the rule OF the common
law, that statutes in derogaton thereof are to be
strictly construed hiss no application to this
! Code. The Code establishes the law of this
State respecting the subjects to which 1t relates
and its provisions and al proceedings under il
are to be literally construed With view to
effect its objects and 20 promote justice" 1t is
then by this rule thai Section 65T of the Code
of Civil Procedure is to be construed; but in
that case the Court applying, the common law
| rule for the construction of statutes SAYS: IF
the method adopted by the jury for the purpose
of arriving at verdict may be properly
characterized as a resort to the determination
OF chance the afiidavits in question are admis-
sible; otherwise not" The Court then pro-
ceeds to decide that such method as was re-
sorted TO in that and in this case was not o
determination by chance" but to reach that
conclusion the reasoning is unprecedented and
fallacious The Court said " In Wilson VS..
Bergman, seal, SO, Mr. Chief Justice Murray
said such verdIets are regarded in the same
light by the Courts as gambling yerdets and
Will b. invariably set aside Just as If the jury
had thrown dice or TesOrted to any species of
gambling 10 determine the amount" The
ecu adds: THUS he admits that such YER
dict is not chan verdict, while he holds it
to be equally vicious He admits no such thing;
! ne said "such veTdicts are T. garded in the
same light by the Courts as gambling verdicts.'
| What idea does the word gambling impart to the
mind Chance. He further said such yerdicts