POOL, Administratrix, v.
C., B. & Q. R. Co.
(Ui1'/)uit Court, D. IotCa.
l"Vnder such circumstances,the mere facts that the successful party was not in fauIt, and tha,t the iVerdict was approved by the court, does 'not the case from the ti;lferenceof prejudice. '
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3. SAME-SAME-SAME. ,. ' ; Whllre 0: juror talks6utside the jtiryroom about, a case pendingsnd ;: .):Jef6i.e ,him, he gives' tht Clearest evidel1ce,that he is ,.; ,llon" iJpnartia} !\nd lJ,!lbiasedjuro,r.
'. '. ;flie 'of a juror tpat 'w!,litt he has thlJ,s said or heard ,; (} not' a1Iectea or influenced' 1m ijUdgment, is' not, 'unders\!ch brcum',("atllou.ces" to any l V c i g h t . ; ' , ' r ; ; ; ; ,.,,;,;, " j', ,! 'i ,i" ",' " qf, ,t,lW jPl'OrS eng!tged ,in. the' t;rial.,qf a GauSf! paWied several , d. kvenings ateards in the room one of the defendant's counsel, at the hoteiwnere some,''tnft) not all,.of saidiilrors were ·Ii Is1lQpll!i;ng.i -it appearedolthat tbe !cOunsel did itot kn<:rW'that' these j thlil p,artywhe? he:eonsented that:,hill: be ,thus "occupied, and that when he discovered t)lat 'act he studiously .,., 'kepHild'of trotn the 'room every evening until card party had ;a4lperaed. It appealied thatwhiltdhe case\vah i yet before .", one of ,t)1e jurors had talked freely and fully , ,wi,t,h a third party ,about thee&!1e! and badin /luch conversatipn " 'exprJssed himself to the prejudice of the plaintiff and the,plaintiff's ,cotitl'se1.' it also appeared that afier the jury had retired for consultation that this same juror moved that one of their party act as forel;Dafu,aJ;ld that then, upon illQtion, was appointed lJecretary. view of these circumstances, that the verdict should be set aside and a new trial granted.-rED
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Motion for aNew Trial. Hagerman, McCrary ti; Hagerman, for plaintiff. H. H. Trimble and J. W. Blythe, for defendant. LOVE, D. J. This case was tried by jury at the last January term, in Keokuk. The jury gave a verdict for the defendant.
POOL V. 0., B. "
Q. B. 00.
The plaintiff now moves for a new trial. The plaintiff is the widow and administratrix of Erastus P. Pool, deceased, who lost his life in consequence of personal injuries received in attempting to make a coupling while in defendant's service. The action is to recover damages resulting from the injuries thus received. The plaintiff's counsel have, in support of the motion, insisted on many grounds of law and fact which I deem it needless to consider. I shall confine what I have to say to the alleged misconduct of the jury. In this matter some very material facts relied upon for the motion have been disproved. Others have been so far explained by cauri. ter affidavits as to reIttlvethe the bad aspectillwhich it Inigbt appea.r to the court. I sMll pass iall doubtful or disproved fa.cts without notice, eorlfiniIig' my atJ teiition exclusively to such ag have been clearly proved;; ': 1 , :ttundentably' appears that a numBer of the jurbis';ditrj ing the progress 'of tbe trial; passed: several consectitive efenings at cards in the room of one Of at the hotel 'where some, but hot ii.ll; Of said jurors' stopping;' This was Ii, and:; reprehensible ahd if it'did not clearly that meiiti<1ned oEctrpied the i room itt \v'itllotitariy invHatibJf dl1(!ement fr0mthe defendant's couosel; I wouldridtJhesitat'e' to sefasidetha verdict on than ;groundatOrie.' Bri(W appear' affi:rirllitively, by tbe,cfffidtivits 'which liave bearl'filed: that the jtirOftl' occupied Judge''t'rimblfl's room under pecriliar circumstances,' which relieve 'botliirtiage' Trimble and Mr. Blythe, his from any just 'censuredr l sibility':' It is due alike td the counselconcer1J.Eld and to the court that the circumstances referre'd to should be stated and placed upon record. . It appears that Judge' Trimble and Mr. Blythe d6ctipied separate rooms upon the same floor of the hotel. .' tlemen were closely occupied at Mr. Blythe's room till late i'n the evenirlg of each day during the trial, e:Kamining and othetwisepreparing their defence." Judge Trimble's room was virtually unoc(mpied by him ,tIll a late Bour of the night, and not, it appears, till the card party had dispersed.
The fact that the jurors in question occupied Judge Trimble's room', at all is explained. It appears to have been arranged that some jurors in attendance upon the court should while away their evenings at cards in the rooms of Colonel Milo Smith, who was a juror of the regular panel, but not in the Pool case. It so happened that, Mrs. Smith, after some days, reached the city, and it therefore became necessary to abandon the arrangement for meeting at Colonel Smith's rooms. Thereupon John R. Wallace, who was not a juror in the case then on trial, seeing that Judge Trimble's room was unoccupied, asked, him if he had any objection to their card party.meeting at his room. He did not state to Judge Trimble who the persons engaged in the card playing were; and the latter, when he gave consent to their using his room, was not aware that any juror in the Pool case was of the party. It clearly and indubitably appears that when Judge Trimble and .Mr. Blythe afterwards came to know that some memo bers of the jury in the case then on trial were of' the card party, they kept studiously aloof from Judge Trimble's room. It is proved clearly that Mr. Blythe was never in the room at all when the jurors were there, and Judge Trimble was in the room only once during the several nights ill question, and then only for a single moment to obtain some Jleeded papers. It appears that neither Judge Trimble nor Mr. Blythe ever. to any jurors conon any occasion cerning the case, orllolluded, to the same in their presence except in open .court. When Judge Trimble found that some members of the jury in the case were occupying his room, as Btated. he was placed in a somewhat embarrassing situation. He had given consent to their occupancy of his room, which was practically vacant. He could. not well rescind his assent and ordertheIP:)o vacate the room without danger of giving offence and perhaps prejudicing his client's cause. Both he and Mr. Blythe Seem to have done all that could reasonably be expected of, them under the circumstances; they kept aloof from the room during .its occupancy by the jurors, and abo staine,dscrupulonsly from making any allusion to. the case on
POOL V. C., B. & Q. R. CO.
trial to any member of the jury. But the conduct of 'the jurors themselves was plainly inexcusable. Though it- may have been the result of mere thoughtlessness, it· was mani· festly calculated to bring grave suspicion upon them and upon any verdict they might render. All that the publio and the living suitor could know was that sevel'alof' them who were actually trying the cause were spending night after night in the rooms of the defendant's counsel. How and by what means and under what circumstances.they got there; whether with or without invitation; whether with or without purpose respecting the trial; whether to receive or not to re'" ceive hospitality,-could not be known or explained ,to the world without. All this would be matter of mere conjecture, and what conjectures were likely to be made It is needless to say. Even those at the hotel who were informed that these jurors were engaged in an innocent game of cards for amuse· ment might very naturally ask why they did hot' occupy the room of some one of their own number who was stopping at the house. ,. The circumstances which have been satisfactorily explained to the court were necessarily unknown to .the public; and, although public opinion ought by no means to influence or control the verdict· of juries, yet a decent regard to the opinion of mankind is a duty not at all incompatible with the higher and paramount obligation to do exact justice between man and man. ' Such conduct as I have referred to on the part of jurors, whileirying a cause, merits the most decided reprobation. It tends directly to bring suspicion and discredit upon jury trials, and upon the administration of justice itself. No suitoi.' could feel otherwise than aggrieved at a verdict reno dered against him by jurors so demeaning themselves, and,; a court which should fail to discountenance Buch conduct when brought to its attention would justly lose the esteem and con· 1i.dence of all just men. If there was no other fact before me than the misconduct just mentioned, I should,with great reluctance, permit the verdict to stand. The example would, I fear, be infinitely mischievous. I should, therefore, dis-
carding all nice distinctions, feel inclined to put the seal of disapprobation in the most decided manner upon such misconduct by setting aside the verdict. But there are other faets to be considered. It is shown to my entire satisfaction that Mr. W. H. Hopt!, a member of the Pool jury, in utter disregard of the instructions of the court, while the case was yet before the jury and undecided, talked freely and fully with Mr. G. W. Meredith about the case, expressing himself to the prejudice of the plaintiff and plaintiff's counsel. Meredith says Hope began the conversation without. any question from him, and that he carried it on in a sneering way, saying, among other things, that"Hagerman had the court roolll full of Keokuk people, who, whenever he said anything" applauded, and that Keokuk thought they had got this thing fixed up v.ery nice," etc. It is J;leedless to say that there was no such thing as applause in the court room. Any such manifestation would have been very quickly suppressed. Hope, in his affidavit, denies this, but I am constrained, nevertheless, to credit Meredith's statement. Meredith, it seems, is a respectable farmer living in Van Buren county. His character is unquestioned. He appears to have no connection whatever with the plaintiff, and no interest in the litigation. What, therefore, could have moved him to fabricate such a statement as he has made and sworn to? What motive-what inducement had he to commit voluntary and gratuitous perjury? Meredith's testimony is positive and affirmative. If false, it was wilfully false. But Hope's denial is negative. He may possibly have forgotten what he did say to Meredith, or,at all events, he may have had but avery dim and indistinct recollection of the conversation. At any rate, Hope, finding his conduct as a juror called seriously in question, had a very strong motive for denying the truth of Meredith's statement, while Meredith had none whatever to make a false affidavit. It may be added that Hope was oue of the jurors who, though not stopping at the Patterson House, present with, the rest at the. card party there, and. that we find him taking a decided and active part when the jury first retired for consultation.
Mr. Carter, a member of the jury, testifies' that immediately after the jury retired for consultation, Hope moved that Palmer Clark act as foreman, which. was carried. Anoth.er gentleman, who was also present with the card party, then moved that Hope act as secretary, which also prevailed·., The balloting then commenced. It is remarkable that some one did not move the appointment of a committee to prepare and report a proper verdict to be adopted by the jury. That was all that seemed wanting to transplant the tactics of the veteran politjcian in full bloom from the caucus to the jury room! There being no evidence in the affidavits before the court to implicate the defendant in the misconduct of the jury, counsel contends that, the court ought not to set aside the verdict, because the misbehavior of the jury is no ground for granting a new trial where the successful party is not at fault, and when there is no prejudice to the losing party. And in this connection the counsel argue that 'the verdict was clearly right, and that no other verdict could have been rendered upon the evidence. There are oertainly authorities to sustain this doctrine, and, with a proper understanding of what constitutes prejudice, I see no good objection to it. But what is prejudice? Can the court say that where the jury misbehave, so that the losing party has not had a fair and impartial trial, there is no prejudice, because the court may be of opinion that the verdict is right? By no means; because the losing party is not bound to accept the judgment of the court: he is entitled to the verdict of an impartial jury. Suppose, in a criminal case, the jury should commit the fault of receiving information outside of court, and the judge should be of opinion that the conviction was clearly right, could .the court pronounce that there was no prejudice to the prisoner, and therefore refuse him a new trial ? Clearly not; and yet there is in this respect no distinction in principle between civil and criminal trials. The right to a fair and impartial trial by jury is the same in both. The true idea of prejudice in this connection was this: Was the misbehavior of the juror such as to make it probable that his mind was v.6,no.9-54
influenced by it so as to render him an unfair'lllld prejudiced juror? Doubtless there may be cases of misbehavior in which the court could say without hesitation that the mind of the juror could not possibly have been affected by the misconduct imputed to him. Many illustrations may be found in the books -of misbehavior without prejudice in this sense. Thus, if, .after the jury should find their verdict and seal it up, and before its delivery in court a juror should talk with third persons about the merits of the case, there would be cle81i'ly misbehavior, but not prejudice in the proper sense of the word. The court might pronounce without hesitation that the communi·cations made to the juror under such circumstances could not possibly have influenced him in finding the verdict. In such case there wonld be misconduct withou prejudice. But where the natural tendency of what a juror does or says or willingly listens to from others is to billis his mind, or where his mis-conduct evinces a prejudgr.nent of the case, or ill-will, or passion against the losing party, the inference of prejudice in the true sense inevitably follows, because the verdict CUllnot be said to be the result of a fair trial. There is no right more sacred than the right to a fair trial. There is nO wrong more than the negation of that right. An unfair trial adds a deadly pang to the bitterneBs of defeat. Now, the human mind is constituted so that what one himself publicly declares touching any controversy is much more potent in biasing his judgment and confirming his predilections .than similar declarations which he may hear uttered by -other persons. When most men commit themselves publicly to any fact, theory, or judgment they are too apt to stand by their own public declarations, in defiance of evidence. This pride of opinion and of consistency belongs to human nature. Where, therefore, a juror talks outside the jury r60mabout a case pending and undecided before him, he gives the clearest evidence that he is not an impartial anduribiased juror. The yery discussion of any matter by a juror elsewhere than in the jury roum tends to the for>:ning of false impressions and prejudgments. Nor will it do fol' a mument to accept the state-
ment. of the juror that what he has said or has not affected or influenced his judgment. Almost any juror, when detected in such misconduct and arraigned for it, will disclaim the influence upon his own mind of what he has uttered in violation of his duty. This is human nature. Moreover, few have either thecapaciby or candor to speak with any reliable certainty of the elements which enter into their own minds in pronouncing a judgment or verdict. The only safe rule for the court to follow is to form its judgment from the natural and logical consequences of the juror's words and conduct, with little regard to his protestations in exculpation of himself. All parties, and especially corporations, have a deep concern in keeping juries strictly to the line of duty and propriety. When they deviate from that line there is no longer any security against those malign, extrinsic influences which are sUre to pervert and poison the streams of justice. An order WIll be entered setting aside the verdict, and granting a new trial; and the court will consi<lera motion, if made, to rescind the order transferring the .case to Keokuk for trial. It is quite evident that there is in that city a deep and aU-pervading sympathy for this unfortunate plaintiff, whose home is among its citizens, and in whose sorrows they largely participate. Although this feeling is but natural and by no means discreditable to the citizens of that city, yet the manifestation of it at the trial was· so marked and so unusual as to induce a belief that the ends of justice will prob. ably be best subserved by a trial elsewhere. MCCRARY, C. J., having been of counsel, took no part in·the case.
" FEDERAL REPORTER.
UNITED STATES V. NATIONAL PARK BANK OF NEW YORK.
(District Court, S. D. New York. January, 1881.)
1. MONEY PAro UNDER A MUTUAL MISTAKE OF FACT-FORGERY OF
Where the defendant collect'ed from the plaintiff the amount of 8 draft received by it from another bank for coilection, crediting the payment in its account with the latter, which draft was drawn by a paymaster for bounty money, to the order of one D., upon the assist. ant treasurer of the United States at New York, purporting to be indorsed by him, and was indorsed by the other bank, but not by the defendant, and it was claimed that the fact that D.'s name was forgery was not discovered by the plaintiff until 10 years afterwards: and not communicated to the defendant until, another year had elapsed,IIi an action to recover the money: ;.;: Held, that the case is clearly one of payment of money nnder It m'\1tU!\1 rnistakeo! fact, and the plaintiff i$ entitled to recover, there " allegation or proof of any 19ss or damage tothe defendant, " l . or of any loss of remedy by the defendant against tlie bliilkfroIii .:!' *hich the draft was received; by realJl>n.'0F the delay in disco"'eriilgoJ.l j; ,information of the :tnistake. · ! ',., unattended, with, )Qssor damage, ", 'iiot'ifnpair the equitj of the paying money iindera mutlJ81 ::;, 'take'of'fact, to rliMJieriffrl:5JIi the other-party R"Mthj theiefor. ' 1) iQ'\ < '.I;lte rule ,Price,;v.;Nelll, 3 Burr, ,to ;tlle : , Acceptance or pll-yment of a draft, the drawer's signature being ',";forged, 'and follJwiirg it, are no'w regin-ded to the :gJn(iralrl1le: The. cases of counterfeit rq(lIley rest on a different ,principle, the reJD,edies over of ',theory being that delay must necessarily impair thepariy from whom the money was received. " . 'tn this case the defcndant has'lf complete remedy against the tither bank upon the plaintiff's recovery in this action. ,It is immaterial what the plaintiff may do with the money, or what is its duty. towardsD; . ,
O. P. L. Butler, Ass't Dist. Att'y, for plaintiff. Barlow d; Olney, for defendant. CHOATE, D. J. This is a suit brought to recover the sum of $100, paid under a mistake of fact. A jury trial has been waived. There is no dispute as to the facts. One Dunlap made application for bounty money; and in settlement of the claim a paymaster of the United States drew a draft on the