Appeal by defendant from the Circuit Court of Perry county;
the Hon. E.F. BAREIS, Judge, presiding. Heard in this court at
the October term, 1949. Reversed and remanded. Opinion filed May
26, 1950. Released for publication July 13, 1950.
MR. JUSTICE SCHEINEMAN DELIVERED THE OPINION OF THE COURT.
The plaintiff, Thelma Loucks, as administrator of the estate of Lois Loucks, deceased, sued the defendant, Jackson Pierce, for damages resulting from the death of said Lois Loucks, allegedly caused by the wilful and wanton misconduct of the defendant while she was riding as guest passenger on his motorcycle. The jury returned a verdict finding the defendant not guilty.
The plaintiff filed a motion for a new trial with affidavits by counsel and one of the jurors. The attorney's affidavit consists largely of purported statements made to him by jurors and court officers, concerning alleged irregularities in the course of the jury's deliberations. The juror's affidavit relates to the time the verdict was returned and a statement of what argument was used in the jury room to obtain the said juror's agreement to the verdict.
There was no hearing on this motion nor any purported allowance thereof. However, the judge apparently made some personal investigation, none of it shown anywhere in the record before us, and thereupon ordered a new trial, based upon the alleged irregularities, and also with a reference to a possible error in the instructions. It is apparent the trial court did not purport to be passing upon the evidence.
It is not clear whether the court ever saw or considered the affidavits filed in support of the motion. It is conceded by counsel that, when the jury retired to deliberate, there was a stipulation made for a sealed verdict, and the judge then departed from the county. From this it seems the judge could not have any direct observation or knowledge of the ensuing proceedings.
It is a general rule that a trial court is allowed a broad discretion in the granting of a new trial. Village of La Grange v. Clark, 278 Ill. App. 269. This rule, however, contemplates that the facts in evidence are considered by the trial court, and does not apply to a ruling on a point of law. The latter will be determined on appeal independently of the judgment of the trial court. Randall v. Randall, 281 Ill. App. 169. In the absence of a clear abuse of discretion, the trial court's order granting a new trial will not be disturbed, if it is based on questions of fact arising at the trial, or on matters which occur in the presence of the court during the trial. Adamsen v. Magnelia, 280 Ill. App. 418.
If the trial court based the allowance of the new trial upon his own extra-judicial investigation, it must be held error. The rights of litigants in a court of record cannot be left to the mercy of private remarks in the judge's ear. Moreover, our statute now permits review of an order granting a new trial, if leave is granted by the reviewing court. The right thus conferred by law would be nullified if the order is based on evidence heard outside of court, and not preserved in the report of proceedings.
Possibly the trial judge received information from his own officers whom he believed to be unprejudiced and reliable. If so, it would be proper to conduct an investigation, but that should be done in open court upon notice to counsel of record. The information obtained should be preserved, either in the form of affidavits or, better still, by direct testimony duly reported. The rules of evidence should be applied and only persons having actual knowledge of the facts should be heard.
Since the court may have considered the affidavits with the plaintiff's motion, we must consider them also.
The juror makes affidavit that she signed the verdict, but that she was persuaded to do so by improper arguments. In the early case of Smith v. Eames, 4 Ill. 76, the court said: "We apprehend no case can be found where the jurors, after having consented to the verdict, have been permitted afterwards, for the purpose of setting it aside, to explain by affidavits, the ground, or the train of reasoning by which they arrived at the result." In Sanitary District of Chicago v. Cullerton, 147 Ill. 385, it is said: "This court, in an unbroken line of decision from the case of Forrester v. Guard, Breese 1 Ill. 74, is committed to the doctrine that the affidavits of jurors cannot be received for the purpose of showing cause for setting aside the verdict." Among the reasons for this rule the court gives the following on page 391: "The grounds stated for the rejection of such affidavits have usually been, first, because they would tend to defeat the solemn act of the juror, under oath; second, because their admission would open the door to tamper with jurymen, after their discharge; third, it would furnish to dissatisfied and corrupt jurors the means of destroying the verdict to which they had assented."
Affidavits of jurors may be received to support the verdict, but not otherwise. The only exception ever actually allowed in this State, is to permit the correction of an error in the writing up of the verdict, or the mistaken use of names. These are not really exceptions, since they are to make the true verdict of all apparent, not to upset it. We must hold that the juror's affidavit filed in this case cannot be given any weight whatever.
The affidavit by the attorney contains much obvious hearsay, but a few facts are stated. It recites that the attorney saw the bailiff permit one of the jurors to use a telephone. Nothing is given regarding the conversation. This is no showing of prejudice, and cannot be used to upset the verdict. West Chicago St. R. Co. v. Lundahl, 183 Ill. 284; Marzen v. People, 190 Ill. 81.
A much belabored point is this: that the verdict was returned at 8:40 p.m. although the judge had directed that the bailiff discharge the jury at 8:30. On the face of it, we cannot conceive that any court would hold this minor deviation to be such an impropriety as to invalidate the verdict. Further recital of additional facts makes it even more trivial. The affidavit asserts the judge fixed the time at 8:30 exactly, but the bailiff is quoted as saying he was instructed to let them go between 8:30 and 9:00. It is further recited that the judge telephoned to a clerk and told her to tell the bailiff to discharge the jury at 8:30. There is certainly room for a misunderstanding or mistake, which should not be charged to a litigant without some good reason.
Moreover, it is further recited that the plaintiff's attorney was present in the court house and at 8:32 he met the bailiff and "demanded that he release the members of the jury." This may seem a strange attitude for a plaintiff's attorney, but he knew the jury was heavily against him, from what he calls "an authentic report." The bailiff immediately went to the jury room, but apparently the jury, through their foreman, requested a little ...