¶1concurring.
¶2I concur in the affirmance of the trial court’s judgment. I write separately regarding the jury misconduct issue and the submissibility question.
¶3First, I respectfully suggest that to accept the dissent’s analysis of the jury misconduct claim would expand the scope of Travis v. Stone, 66 S.W.3d 1 (Mo.banc 2002), and State v. Stephens, 88 S.W.3d 876 (Mo.App.2002), beyond permissible limits and establish a previously unrecognized exception to the hearsay rule in juror misconduct cases.
¶4The Traviscourt, 66 S.W.3d at 4, cites with approval Stotts v. Meyer, 822 S.W.2d 887 (Mo.App.1991), for the proposition that “it is permissible to elicit testimony about juror misconduct that occurred outside the jury room, such as the alleged gathering of extrinsic evidence at issue here.” In my view, however, that statement does not give rise to a special rule for juror misconduct cases which allows jurors to testify about what an allegedly errant fellow juror told them regarding his or her activity in gathering extrinsic evidence. I believe that neither Travisnor Stottsstands for such a proposition. To the contrary, Stottsmakes it clear that such evidence is not competent or admissible to provide juror misconduct.
¶5In Stotts, the jury misconduct allegation was that, during deliberations, several jurors visited an accident scene. One juror, Flippo, testified at a post-trial hearing on appellant’s request for a new trial. The new trial motion was denied, and an appeal followed. On appeal, the Stottscourt confined its review to the evidence adduced via juror Flippo, explaining:
“Counsel learned about the misconduct of several other jurors through Juror Flippo. Juror Flippo’s affidavit reveals *374that he gained the information concerning the visits of one or more jurors to the accident scene, in the course of juror deliberations. What transpires during the deliberations between fellow jurors cannot be scrutinized because it’s an invasion into the sanctity of the jury room. Further, it is inadmissible hearsay. As a result, we focus on the testimony of Juror Flippo at the hearing of September 28,1990.”
¶6822 S.W.2d at 888, n. 1 (citation omitted) (emphasis supplied).
¶7The Stottscourt focused only on Flip-po’s misconduct, i.e., his actual gathering of extrinsic evidence by personally visiting the accident scene.
¶8As noted earlier, the ultimate question here is whether juror misconduct actually occurred (Stephens, 88 S.W.3d at 883); specifically, whether Juror No. 2 actually gathered extrinsic evidence. Appellant’s allegation that Juror No 2 engaged in such conduct was not self-proving, but had to be proven by him via admissible evidence. Id.; Stotts, 822 S.W.2d at 888, n. 1.
¶9The only evidence that Juror No. 2 went outside the record to gather evidence came from fellow jurors who testified about what Juror No. 2 told them. Such evidence was, in my view, clearly hearsay. Stotts, 822 S.W.2d at 888, n. 1. See generally, Bynote v. National Super Markets, Inc., 891 S.W.2d 117, 120[2] (Mo.banc 1995) (holding, “[w]hen a witness offers the out-of-court statements of another to prove the truth of the matter asserted in the statement, the testimony is hearsay”); William A. Schroeder, 22A Missouri Practice: Missouri Evidence § 800.1 n. 1 (2000). As such, it was a “species of evidence not competent” to prove the ultimate dispositive fact, i.e., whether Juror No. 2 actually gathered extrinsic evidence. See Opponents, 564 S.W.2d at 556[5], Being inadmissible evidence that was timely objected to, it should not have been considered by the trial judge. Stotts, 822 S.W.2d at 888, n. 1.
¶10The fact that the trial judge overruled Respondent’s objections to the hearsay evidence is of no consequence. We are to presume that the trial court sorted out the incompetent, irrelevant, and inadmissible evidence and based its decision upon the competent and relevant evidence. Mullenix-St. Charles Props, v. City of St. Charles, 983 S.W.2d 550, 557[13] (Mo.App.1998). Indulging in the presumption that Judge Dally based his decision upon competent and admissible evidence, we are left with a record that wholly fails to show Juror No. 2 gathered extrinsic evidence; consequently, Judge Dally did not abuse his discretion in refusing to grant a new trial based upon alleged juror misconduct.
¶11Second, I have carefully read the more than 1200 pages of trial testimony and other relevant parts of this record, and from that examination, I have concluded that Respondent presented sufficient causation evidence to support the trial court’s denial of Appellant’s motion for judgment notwithstanding the verdict.
¶12. Unlike this case, neither Travisnor Stephensinvolved hearsay evidence issues. In Travis, the evidence of juror misconduct was presented by the testimony of the juror who actually gathered the extrinsic evidence; consequently, no hearsay question existed. In Stephens, the misconduct issue arose because the prosecutor wrote a letter to defense counsel advising that a juror, during a recess, had visited the park where the victim had regained consciousness. Moreover, Stephenswas decided upon prejudice grounds. As such, evidentiary issues were not present.
¶13. I see the following from Opponents, etc. v. Petitioners for Form., etc, 564 S.W.2d 552[3-5], 556 (Mo.App.1978), as apropos here:
“Proof results from evidence which convinces the mind of an ultimate fact. Not all that convinces and so tends to prove an issue constitutes legal evidence, however; it must also be admissible in a court of justice. Hearsay evidence is not of a species not competent to prove a fact, and therefore inadmissable.” (Citations omitted.)
¶14dissenting.
¶15I respectfully dissent. In my opinion, the trial court erred in denying Appellant’s motion for new trial based on juror misconduct in acquiring extra-judicial evidence which prejudiced Appellant.
¶16At the hearing on the motion for new trial, four jurors testified that Juror No. 2 told them she visited the hospital where Appellant worked and either solicited or overheard comments regarding Appellant’s prior malpractice claims, the possible loss of his license, and loss of his malpractice insurance. The trial court overruled Respondent’s objections to this testimony.
¶17*375In Neighbors v. Wolfson, 926 S.W.2d 35 (Mo.App.1996), the Eastern district of this Court said that “precedents of this state are legion which recite the rule that ‘the affidavit or testimony of a juror is inadmissible and is not to be received in evidence for the purpose of impeaching the verdict of a jury of which the juror was a member.” Id. at 37. However, Neighborsalso explained that a juror’s testimony can be used to attack the jury verdict if two conditions are met:
First, the party in whose favor the verdict was returned must acquiesce in the proposition that the juror is competent to give such testimony; such acquiescence exists when a party fails to object to admission of both the affidavits containing the juror statements and to the juror testimony offered in court. Second, the juror testimony must allege that extrinsic evidentiary facts (i.e., facts bearing on trial issues but not properly introduced at trial) were interjected into the jury’s deliberations, rather than merely that jurors acted on improper motives, reasoning, beliefs or mental operations (the latter type of juror testimony is said to concern “matters inherent in the verdict”).
¶19Neighborsand like cases were decided prior to our Supreme Court’s decision in Travis v. Stone, 66 S.W.3d 1 (Mo. banc 2002). There, a juror visited a traffic accident scene during the break in the trial in order to sort out the testimony of competing experts. The juror denied that her accident scene visit entered into the deliberations in any way. Id. at 4.
¶20Initially, the Court considered the propriety of allowing the juror’s testimony and said:
The general rule in Missouri is that a juror’s testimony about jury misconduct allegedly affecting deliberations may not be used to impeach the jury’s verdict. However, it is permissible to elicit testimony about juror misconduct that occurred outside the jury room, such as the alleged gathering of extrinsic evidence at issue here. Even where the purpose of testimony regarding the misconduct (whether it occurred inside or outside the jury room) is to impeach the verdict, the party complaining of the testimony must make a timely and proper objection or else the issue is waived.
¶21Id.(citations omitted) (emphasis added). After observing that the Defendants did not object to the juror’s testimony, the Court decided the testimony was properly received. Id.
¶22The majority concludes that Travisdoes not change the rule that a proper objection precludes juror testimony which impeaches the jury’s verdict. Recently, State v. Stephens, 88 S.W.3d 876 (Mo.App.2002), has interpreted Travisas ruling otherwise.
¶23In Stephens, the defendant offered evidence at the hearing on his motion for new trial that a juror, during a recess in deliberations, had visited the scene of the alleged assault. Id. at 881. The State argued at the hearing “that as a matter of law, the jury’s verdict could not be impeached by juror testimony of juror misconduct, as the (defendant) was attempting to do.” Id. The trial court denied the motion for new trial. On appeal, defendant contended that an exception exists to the general rule where juror misconduct occurs outside, rather than inside, the jury room. Id. at 881-82. Defendant relied on Travisas stating such an exception, and the Western District of this Court agreed. Id. at 882.
¶24In analyzing this issue, the Court determined that Travis
... was recognizing that an exception existed as to the general rule prohibiting *376juror testimony to impeach the verdict of the jury, the exception being that a juror’s testimony, concerning alleged juror misconduct outside the jury room, specifically the gathering of extrinsic evidence as part of an independent investigation, as alleged in our case, could be used to impeach a jury’s verdict.
¶26The State argued that Travisdid not create an exception to the general rule because the Supreme Court stated that the party complaining of the juror misconduct must make a timely and proper objection or the issue is waived. See Travis, 66 S.W.3d at 4. The Stephens court rejected this argument by saying:
Contrary to the contention of the State, we fail to see how that language would modify the Court’s intent with respect to the express language immediately preceding it. To interpret the Court’s opinion as argued for by the State, we would have to totally ignore the express language of the opinion that it is permissible to use juror testimony to impeach a jury verdict where the alleged juror misconduct occurred outside the jury room. Any fair reading of the portion of the opinion in question would lead us to conclude that in including the language championed by the State, the Court was simply recognizing an alternative basis for allowing the juror testimony in question in Travisto impeach the jury’s verdict and did not intend to cut down the exception it had just recognized in the same paragraph.
¶28I believe the reasoning in that case is sound as it interprets Travis. As stated in Travis, “[o]ur trial procedures do not contemplate and cannot well tolerate such independent investigation by jurors.” 66 S.W.3d at 4. Travis clearly condemns the “alleged gathering of extrinsic evidence” and holds that juror testimony is permissible where the misconduct occurs outside the jury room. Id
¶29Relying on Travis and Stephens, I would find that the trial court properly admitted the four jurors’ testimony. This evidence established that a juror gathered evidence extraneous to the trial. Therefore, the burden shifted to Respondent to show that no prejudice resulted from it. Travis, 66 S.W.3d at 4. In this case, Respondent offered no evidence overcoming the presumed prejudice. An important factor in determining prejudice is the materiality of the evidence such as when the evidence gathered pertains to a critical issue in the case. Id. at 6. Clearly, Appellant’s medical competence was a critical issue in the case, and the gathered evidence portrayed him as medically incompetent. In my view, the trial court abused its discretion in denying the motion for new trial.
¶30The majority opinion determines (1) that Appellant failed to present evidence of juror misconduct because the juror’s testimony was hearsay and (2) alternatively, that the trial court determined that Juror No. 2 “may” have told jurors during deliberations about her hospital visit but that the trial court concluded that “she, in fact, never went there.” I disagree with both conclusions.
¶31First, I cannot find that the four jurors gave hearsay testimony. As noted by the majority, a statement is not hearsay if the relevance of the statement lies in the mere fact that it was made and no reliance is placed on the credibility of the out-of-court declarant. Rodriguez v. Suzuki Motor Corp., 996 S.W.2d 47, 59 (Mo. banc 1999).
¶32In this case, the relevance of Juror No. 2’s statement lies in the mere fact that she brought into the jury room outside information not offered in trial. Whether her information was true or false did not *377change the fact that her statement reported the results of an independent factual investigation and Appellant had no opportunity to defend against the inference that he was medically incompetent. I believe the conduct of Juror No. 2 is the very evil that Travisintended to thwart, i.e., an independent investigation by a juror with a subsequent report to the jury.
¶33Second, the trial court was “fairly convinced” that Juror No. 2 told the jury about her hospital visit. I interpret this to mean that the trial court believed the testimony of the four jurors. The trial court’s observation, quoted by the majority, continues with the trial court simply posing a question of what if this event did not happen. Contrary to the majority opinion, I cannot agree that posing this question equates to a finding that the offending juror never went to the hospital. In fact, the absence of testimony from Juror No. 2 gave the trial court no basis to conclude that she was untruthful.
¶34Finally, I disagree with the majority decision that this Court can draw an adverse inference from the lack of testimony from Juror No. 2. In my view, she was equally available to Respondent who also chose not to call her.
¶35“Failure of a party to call a witness who has knowledge of facts and circumstances vital to the case generally raises a presumption that the testimony would be unfavorable to the party faffing to offer it.” Kampe v. Colom, 906 S.W.2d 796, 801 (Mo.App.1995). “To allow argument of a negative inference resulting from a party’s failure to produce a witness is reversible error, however, if the witness is equally available to both parties.” Id. at 802.
¶36In determining whether a witness is equally available to the parties, the following factors are considered:
1. one party’s superior means of knowledge of the existence and identity of the witness;
2. the nature of the testimony that the witness would be expected to give in the light of his previous statements or declarations, if any, about the facts of the case; and
3. the relationship borne by the witness to a particular party as the same would reasonably be expected to affect his personal interest in the outcome of the litigation and make it natural that he would be expected to testify in favor of the one party against the other.
Hill v. Boles, 583 S.W.2d 141, 145-46 (Mo. banc 1979).
¶37All of these factors indicate that Juror No. 2 was equally available to Respondent. As to factor 1, both parties had the same knowledge of the existence and identity of the witness. Factor 2 favors Respondent in light of the remarks of Appellant’s counsel that the court could assume Juror No. 2 would deny visiting the hospital. The third factor also shows equal availability because the record suggests no relationship with Appellant that would indicate Juror No. 2 might give testimony favorable to him. Therefore, I disagree that an adverse inference can be drawn from Appellant’s failure to call Juror No. 2.
¶38If Respondent had called Juror No. 2 to testify and then she denied gathering and reporting extraneous evidence, the trial court could have made a credibility determination. As the record now stands, the trial court did determine that Juror No. 2 actually reported to the jury the results of her independent outside investigation. Her report may have influenced the nine to three verdict in favor of Respondent. Obviously, at least one of the four jurors who testified voted in favor of Respondent.
¶39Therefore, I disagree with the majority opinion which concludes that the offending *378juror simply made up her story which she told to the jury and, as a result, her statements should be considered as “matters inherent in the verdict” and privileged. To me, nothing in the record supports such a conclusion.
¶40For the reasons stated, I believe that juror misconduct occurred and that Appellant was prejudiced thereby. I would reverse the judgment and remand the case for a new trial.