60 Wn.2d 836, ARNIE GARDNER et al., Appellants, v. JOHN MALONE, Respondent
[No. 36295. Department One. Supreme Court November 29, 1962.]
ARNIE GARDNER et al., Appellants, v. JOHN MALONE,
Respondent.«*»

[1] APPEAL AND ERROR - RECORD - SHORT RECORD - STATEMENT OF POINTS. Where an appellant appeals on a short record, the Supreme Court cannot consider assignments of error not included in the statement of points relied on.

[2] NEW TRIAL - PROCEEDINGS TO SECURE - AFFIDAVITS OF JURORS - ADMISSIBILITY. In considering the affidavits of jurors filed in support of a motion for a new trial, the court must disregard those portions which may tend to impeach the verdict, and consider only those facts stated in relation to the fact of misconduct.

[3] SAME - TESTIMONY OF MISCONDUCT - ALLEGATIONS OF FACT OR EFFECT - DETERMINATION. If a juror's testimony in support of a motion for a new trial tends to show the effect of misconduct or irregularities, i.e., the facts alleged are linked to the juror's motive, intent, or belief, then such testimony inheres in and impeaches the verdict and cannot be considered; however, if the testimony merely shows the fact of misconduct by the jury so that it may be rebutted by other testimony without probing a juror's mental processes, it may be considered.

[4] TRIAL - CONDUCT AND DELIBERATIONS OF JURY - CONSIDERATION OF OTHER LAWSUITS AGAINST DEFENDANT. The possibility of other lawsuits against a defendant is not to be weighed by the jury in its determination of the controversy between a plaintiff and a defendant.

[5] NEW TRIAL - PROCEEDINGS TO SECURE - ORDER GRANTING OR REFUSING NEW TRIAL - REVIEW. While trial courts have wide discretion in granting or refusing new trials, the exercise of which will not ordinarily be interfered with except where questions of law are involved, it does not require as strong a showing of an abuse of discretion to set aside an order denying a new trial as one granting one.

[6] SAME - GROUNDS FOR REVERSAL - REASONABLE DOUBT AS TO EFFECT OF MISCONDUCT. Where, upon a consideration of the whole of the pertinent record, it is reasonably doubtful whether or not improper conduct by the jury has affected the verdict, the verdict should be set aside by the trial judge; and if a new trial is not granted in such a situation, the abuse of discretion by the trial judge is such that he must be reversed on appeal.

[7] SAME - GROUNDS - EVIDENCE - SUFFICIENCY. An unauthorized view of the scene of an accident by three members of a jury, together with the entire jury's discussion and consideration of the effect of

* Reported in 376 P. (2d) 651.

[7] See Am. Jur., New Trial § 78.

Nov. 1962] GARDNER v. MALONE. 837

other possible lawsuits against the defendant in the event of a verdict for the plaintiff, was sufficient to establish a reasonable doubt that the plaintiff was denied a fair trial.

Appeal from a judgment of the Superior Court for Grant County, No. 12758, B. J. McLean, J., entered July 3, 1961. Reversed and remanded.

Action for personal injuries. Plaintiffs appeal from a denial of their motion for a new trial after a verdict for the defendant.

J. P. Tonkoff (of Tonkoff, Holst & Hopp) and John R. Lewis, for appellants.

Brethorst, Fowler, Bateman, Reed & McClure (J. Edwin Thonn, of counsel), for respondent.

WEAVER, J. -

Plaintiff, a minor, and several other boys, were passengers in an automobile driven by one Allan Edwards. The Edwards' automobile collided with an automobile driven by John Malone on the Steinmetz road, two miles northeast of Coulee City, Washington. Plaintiff was seriously injured.

By guardian ad litem, plaintiff commenced this action against defendant Malone for damages for personal injuries. After an extended trial, the jury returned a verdict for defendant. Plaintiff appeals from a judgment denying his motion for a new trial and dismissing his action.

[1] This appeal is upon a short record pursuant to Rule on Appeal 34 (3), RCW Vol. 0. Plaintiff advances five assignments of error. Two assignments of error are not included in his ". . . concise statement of the points on which he intends to rely on the appeal" as required by the rule; hence, we cannot consider them. Johnson Ser. Co. v. Roush, 57 Wn. (2d) 80, 94, 355 P. (2d) 815 (1960); Palmer v. Waterman Steamship Corp., 52 Wn. (2d) 604, 608, 328 P. (2d) 169 (1958); Cominos v. Kalkanes, 37 Wn. (2d) 843, 849, 226 P. (2d) 863 (1951).

Plaintiff's three remaining assignments of error are directed to alleged misconduct of the jury. Later in this

838 GARDNER v. MALONE. [60 Wn. (2d)

opinion, we will discuss each in particular, after first setting the screen upon which to project them.

Rule of Pleading, Practice and Procedure 59.04W, RCW Vol. 0, provides in part:

"The former verdict . . . may be vacated and a new trial granted, . . . on the motion of the party aggrieved for any one of the following causes materially affecting the substantial rights of such parties:

"1. . . .

"2. Misconduct of prevailing party or jury; and whenever any one or more of the jurors shall have been induced to assent to any general or special verdict to a finding on any question or questions submitted to the jury by the court, other and different from his own conclusions, and arrived at by a resort to the determination of chance or lot, such misconduct may be proved by the affidavits of one or more of the jurors; . . ."«1» (Same as RCW 4.76.020(2))

RCW 4.76.050 provides:

"The motion for a new trial shall state the grounds or causes for which a new trial is asked, and if made for any of the causes mentioned in RCW 4.76.020(1), (2), (3), or (4), the facts upon which it is based may be shown by affidavit."«2»

«1» The language of 59.04W (2) first appeared in Laws of Washington Territory, 1869, Ch. XXI, § 278(2), p. 67. It was reenacted by Laws of 1873, Ch. XXI, § 276(2), p. 70, and Laws of 1877, Ch. XXI, § 280, p. 56. The statute was codified as follows: Code of 1881, Ch. XXI, § 276(2); 2 Hill's Code (1891), § 400; Ballinger's Code (1897), § 5071(2); Rem. & Bal. Code (1910), § 399(2); Rem. Code (1915), § 399(2); Rem. Comp. Stat. (1922), § 399(2); Rem. Rev. Stat. (1932), § 399(2); RCW 4.76.020(2).

«2» This statute originated in Laws of Washington Territory, 1869, Ch. XXI, § 280, p. 68. It provided that when a motion for new trial is made ". . . the facts upon which it is based shall be made to appear by affidavit . . ." Quaere: By whose affidavit? The statute was reenacted by Laws of 1873, Ch. XXI, § 278, p. 71, and Laws of 1877, Ch. XXI, § 282, p. 57. The Code of 1881, Ch. XXI, § 278, changed the word "shall" (italicized supra) to "may". This change appears in all subsequent codifications of the statute. 2 Hill's Code (1891), § 403; Ballinger's Code (1897), § 5074; Rem. & Bal. Code (1910) § 401; Rem. 1915 Code, § 401; Rem. Comp. Stat., § 401; Rem. Rev. Stat. (1932), § 401. See Maryland Cas. Co. v. Seattle Elec. Co., 75 Wash. 430, 134 Pac. 1097 (1913) in which the court held that a motion for a new trial based upon an occurrence not in open court must be shown by affidavit.

Nov. 1962] GARDNER v. MALONE. 839

In considering the effect of jurors' misconduct, it is important to bear in mind that there are two distinct problems: First, the type of evidence that may properly be received to establish the defect; and second, the types of irregularities or errors that may be shown.

Mischief«3» was introduced into the first problem by Lord Mansfield's opinion in Vaise v. Deiaval, 1 T. R. 11, 99 Eng. Rep. 944 (1785). The opinion is short:

"Affidavit of a juror that the jury, having been divided, tossed up, and that the plaintiff had won, rejected.

"Upon a motion by Law for a rule to set aside a verdict, upon an affidavit of two jurors, who swore that the jury, being divided in their opinion, tossed up, and that the plaintiff's friends won, in which was cited, Hale v. Cove, 1 Stra. 642.

"Per Lord Mansfield, Ch. J. The Court cannot receive such an affidavit from any of the jurymen themselves, in all of whom such conduct is a very high misdemeanor: but in every such case the Court must derive their knowledge from some other source: such as from some person having seen the transaction through a window, or by some such other means.

"Rule refused."

The rule of the Vaise case, supra, has never been the law of this jurisdiction. Rule of Pleading, Practice and Procedure 59.04W(2) and RCW 4.76.050 (and their statutory predecessors as outlined in footnotes 1 and 2) specifically provide that a verdict determined by chance or lot may be challenged by the affidavit of a juror; and that the facts upon which a motion for dew trial is based may be shown by affidavit, without excluding the affidavits of jurors, as did the Lord Mansfield rule.

In 1871, the predecessor of this court recognized that the 1869 statutes (see footnotes 1 and 2) were in derogation of the common law. The court held a "quotient verdict" invalid as "a composite fraud washed with a golden name", because it had been determined by chance or lot. Invalidity

«3» For a criticism of the rule, see 8 Wigmore, Evidence (McNaughton Rev. 1961) § 2352, et seq.

840 GARDNER v. MALONE. (60 Wn. (2d)

was established by affidavits of jurors. Goodman v. Cody, 1 Wash. Terr. 329, 34 Am. Rep. 808 (1871).

In State v. Parker, 25 Wash. 405, 65 Pac. 776 (1901), it was shown by the affidavits of two jurors that one juror stated to the jury, during consideration of the case in the jury room, that he knew defendant was guilty and that he belonged to a "gang of toughs" implicated in a homicide.

[2] In reversing the judgment and ordering a new trial, the court announced the rule that is dispositive of this case. The court said:

". . . In considering the affidavits filed, we entirely discard those portions which may tend to impeach the verdict of the jurors, and consider only those facts stated in relation to misconduct of the juror, and which in no way inhere in the verdict itself. It is not for the juror to say what effect the remarks may have had upon his verdict, but he may state facts, and from them the court will determine what was the probable effect upon the verdict. It is for the court to say whether the remarks made by the juror in this case probably had a prejudicial effect upon the minds of the other jurors. We do not see how any other conclusion can be reached than that they were highly prejudicial, including, as they did, the statement of alleged damaging facts concerning appellant which had not been introduced in evidence upon the trial." p. 415 (Italics ours.)

This leads to a consideration of the second problem - the type of irregularities or errors that may be established by jurors' affidavits. Although affidavits may be filed in support of a motion for a new trial, they are subject to certain court-imposed limitations.

Our decisions are replete with the statement that "a juror's testimony or affidavit is not receivable to impeach his own verdict."«4» Of this, Professor Wigmore said:

". . . this rule of thumb is in itself neither strictly correct as a statement of the acknowledged law nor at all defensible upon any principle in this unqualified form. It is a mere shibboleth and has no intrinsic signification whatever. . . ." 8 Wigmore, Evidence (McNaughton Rev. 1961) § 2345.

«4» This is subject, of course, to the statutory exception of a verdict determined by chance or lot. See cases cited, footnotes 5-11, infra.

Nov. 1962] GARDNER v. MALONE. 841

[3] In spite of this criticism, we believe a workable rule has evolved from our decisions. The crux of the problem is whether that to which the juror testifies (orally or by affidavit) in support of a motion for a new trial, inheres in the verdict. If it does, it may not be considered; if it does not, it may be considered by the court as outlined in State v. Parker, supra. One test is whether the facts alleged are linked to the juror's motive, intent, or belief, or describe their effect upon him; if so, the statements cannot be considered for they inhere in the verdict and impeach it. If they do not, it then becomes a matter of law for the trial court to decide the effect the proved misconduct could have had upon the jury. Another test is whether that to which the juror testifies can be rebutted by other testimony without probing a juror's mental processes.

The distinction between motive and irregularities may sometimes be shadowy and difficult to perceive, but

". . . it is today universally agreed that on a motion to set aside a verdict and grant a new trial the verdict cannot be affected, either favorably or unfavorably, by the circumstances:

"that one or more jurors misunderstood the judge's instruction;«5»

"or were influenced by an illegal paper or by an improper remark of a fellow juror;«6»

"or assented because of weariness or illness or importunities;

"or assented under an erroneous belief that the judge would use clemency or have the legal right to vary the sentence;«7»

«5» Ralton v. Sherwood Logging Co., 54 Wash. 254, 103 Pac. 28 (1909) (affidavit that juror did not consider certain instructions excluded); State v. McKenzie, 56 Wn. (2d) 897, 355 P. (2d) 834 (1960) (error to consider affidavit that a juror argued the law contrary to court's instructions).

«6» O'Brien v. Seattle, 52 Wn. (2d) 543, 327 P. (2d) 433 (1958) (error to question whether conversation of a juror with bailiff influenced verdict); Johnston v. Sound Transfer Co., 53 Wn. (2d) 630, 335 P. (2d) 598 (1959) (affidavits of jurors concerning statements made by other jurors as to their experience horseback riding excluded).

«7» State v. Aker, 54 Wash. 342, 103 Pac. 420 (1909) (juror's affidavit that he assented to verdict because of intimidation excluded); State v. Knapp, 194 Wash. 286, 77 P. (2d) 985 (1938) (reason for imposing death sentence excluded).

842 GARDNER v. MALONE. [60 Wn. (2d)

"or had been influenced by inadmissible evidence;«8»

"or had decided upon grounds which rendered newly discovered evidence immaterial;

"or had omitted to consider important evidence or issues;«9»

"or had miscalculated accounts by errors of fact or of law;«10»

"or had by any other motive or belief been led to their decision."«11» 8 Wigmore, Evidence (McNaughton Rev. 1961) § 2349, p. 681. (Footnotes in the above quotation furnished by the court.)

On the other hand, if the juror's affidavit establishes misconduct of the jury by facts or circumstances that do not inhere in the verdict, the facts must be considered. Dibley v. Peters, 200 Wash. 100, 93 P. (2d) 720 (1939) and cases cited. See State v. Rose, 43 Wn. (2d) 553, 262 P. (2d) 194 (1953).

In Maryland Cas. Co. v. Seattle Elec. Co., 75 Wash. 430, 134 Pac. 1097 (1913), the court said:

". . . Many courts make no distinctions between affidavits of jurors as to the fact of misconduct and affidavits as to the effect of that misconduct upon their deliberation, holding that both are things which inhere in the verdict and that jurors' affidavits or statements as to either the fact or its effect are inadmissible because tending to impeach the verdict. [Citing authorities] . . . In this state we have applied the rule less drastically. We have, in certain cases, used language implying that affidavits of jurors should be considered in so far as they stated the facts showing misconduct, but not as showing the effect of such misconduct on the verdict, the latter being for the court to determine from the facts.

". . .

«8» State v. Burke, 124 Wash. 632, 215 Pac. 31 (1923).

«9» Henslin v. Pratt, 119 Wash. 443, 205 Pac. 867 (1922).

«10» Marvin v. Yates, 26 Wash. 50, 66 Pac. 131 (1901).

«11» Smith v. American Mail Line, Ltd., 58 Wn. (2d) 361, 363 P. (2d) 133 (1961).

Nov. 1962] GARDNER v. MALONE. 843

"This application of the rule seems to us to meet every purpose of public policy. It prevents the jury from divulging what considerations entered into its deliberations or controlled its action, thus impeaching its own verdict; but it does not close what is often the only avenue to a showing of actual facts constituting misconduct. . . ."

Lyberg v. Holz, 145 Wash. 316, 259 Pac. 1087 (1927), Hamilton v. Snyder, 182 Wash. 688, 48 P. (2d) 245 (1935), State v. Knapp, 194 Wash. 286, 77 P. (2d) 985 (1938) and O'Brien v. Seattle, 52 Wn. (2d) 543, 327 P. (2d) 433 (1958) applied the same rule. They distinguish between testimony as to the fact of misconduct and testimony as to the effect of misconduct.

We turn to the facts of the instant case.

Numerous affidavits and sworn statements in the form of depositions were filed at the time the court considered plaintiff's motion for a new trial.

Eliminating allegations that are obviously hearsay (Aliverti v. Walla Walla, 162 Wash. 487, 298 Pac. 698 (1931) and cases cited), and allegations of facts that we believe inhere in the verdict, three situations remain which must be considered.

First: Juror Harmon alleged in an affidavit:

"Oscar McCoy, Juror No. 12, on examination of Plaintiff's counsel during voir dire, stated that he was not acquainted with nor did he know the defendant, John Malone. During the course of the jury's deliberations, he stated in the presence of all the jurors that he `had traded wheat and stock with Malone and was acquainted and knew the defendant Malone.'"

The court subpoenaed juror McCoy to appear at the hearing of plaintiff's motion for a new trial. Under oath, juror McCoy denied having made the statement attributed to him.

Inherent in the trial court's order denying the motion for a new trial is a finding that juror McCoy did not make the statement that he knew defendant Malone We accept this finding.

844 GARDNER v. MALONE. [60 Wn. (2d)

Second: Juror Harmon alleged in his affidavit that, during the course of the jury's deliberations, juror Jensen stated that he and jurors Hough and Pace had visited the scene of the accident on the Steinmetz road. Jurors Jensen and Pace admitted having driven over the road with juror Hough. Jensen stated in his affidavit:

". . . I thought that seeing where the accident occurred would help me follow the map. . . ." Three other jurors admitted that they knew jurors Jensen, Hough, and Pace had visited the scene of the accident.

It is undisputed that in order to traverse the Steinmetz road, it was necessary for the three jurors to deviate from the usual route between their home and the courthouse. Thus, their visit was planned and intentional; it was neither casual nor accidental. There is evidence in the record before us that certain physical characteristics of the road at the scene of the accident had been changed by the county prior to the trial of this case.

In Brennan v. Seattle, 46 Wash. 427, 90 Pac. 434 (1907), a juror disclosed in open court that he had inadvertently passed the scene of the accident the evening before on his way home. Since the trial court instructed the jury to disregard the juror's remarks and the fact of his visit, it was not prejudicial error.

In Woodruff v. Ewald, 127 Wash. 61, 219 Pac. 851 (1923), the trial court granted a new trial because the entire jury, on its way to the courthouse from its evening meal, deviated about two city blocks in order to view the scene of the accident. This court affirmed the order granting a new trial, saying:

". . . We are unable to so decide [the view was not prejudicial] in the light of the record before us, in view of the fact that the scene of the accident had in some substantial manner changed at the time of the jury's visit [as in the instant case]; that the visit was wholly unauthorized by the court [as in the instant case]; that the visit was made manifestly for the purpose of gaining more exact knowledge of the physical surroundings of the scene of the accident, at least on the part of some of the jurors [as juror Jensen

Nov. 1962] GARDNER v. MALONE. 845

stated in the instant case]; and that the visit was without the consent or knowledge of the plaintiff or her counsel, thus depriving them of all opportunity to meet or counteract in any manner, either by argument, explanatory evidence or requested cautionary instructions, any impressions which the physical surroundings of the scene of the accident at the time of the jury's visit might have erroneously suggested." (pp. 63-64)

In the Woodruff case, supra, the entire jury had equal knowledge; in the instant case, only three jurors had superior knowledge as a result of their view of the scene of the accident.

Third: Juror Harmon alleged in his affidavit:

". . . that during the course of the deliberations, Arthur Fiess, Juror No. 9, stated: `If we give a judgment for $100,000.00 and the other boys' fathers will sue Malone, and they will take his whole wheat ranch.' Oscar C. McCoy, Juror No. 12, stated during the deliberations that he was in agreement with Juror Fiess, and stated: `You bet, that is exactly what will happen.' Albert Jeske, Juror No. 3, stated during the deliberations of the jury, `If Gardner [plaintiff] gets a judgment against Malone, these other boys will sue him, and Fiess is right, they'll take Malone's wheat ranch.' Juror No. 4, Doris E. Pace, chimed in and said `We don't want anything like that to happen."'