Newson v. Foster

581 S.E.2d 666, 261 Ga. App. 16, 2003 Fulton County D. Rep. 1335, 2003 Ga. App. LEXIS 513

• Court: Court of Appeals of Georgia
• Decided: April 17, 2003
• Docket: A03A0700
• Status: Published

Opinions

Blackburn, Presiding Judge.

In this civil action regarding an automobile accident, Kenya Shaneke Newson appeals, contending that the trial court did not have the power to grant a new trial to Aubrey Foster based on a juror’s testimony that the jury foreperson personally investigated the scene of the accident. We agree and reverse.

“[MJotions for new trial because of improper conduct of jurors or parties are addressed to the sound discretion of the trial judge. Unless there is an abuse of discretion, the appellate court will not upset the trial judge’s determination.” (Punctuation omitted.) Riddle v. Beker.1

Foster filed a civil action against Newson for personal injuries sustained in an automobile accident. The case went to trial on April 17, 2002, and the jury returned a verdict for Newson on the same day. Final judgment was entered in Newson’s favor on May 10, 2002.

On May 24, 2002, Foster filed a motion for new trial on the grounds that the verdict was contrary to the evidence, and that the verdict was based on the alleged misconduct of a juror who visited the accident scene. Foster later filed an amendment to the motion for new trial to which she attached the affidavit of Glenna Goff, one of the jurors. In the affidavit, Goff stated that a member of the jury visited and investigated the accident scene, and reported his findings and conclusions to the rest of the jurors on the panel, who relied, in part, on his findings and conclusions during deliberation of the case. The juror who had visited the scene of the accident was later identified as Tony Teasley, the jury foreperson.

The trial court held an evidentiary hearing at which both Goff and Teasley testified. Goff testified that Teasley told the jurors that he had been to the accident scene and that a certain distance contested in the trial was more in line with Newson’s position than Foster’s. She also said that she relied, in part, on Teasley’s statement in deciding to vote for a defendant’s verdict. Teasley admitted that he had visited the scene during the lunch break and had provided information to the jury concerning the disputed distances. On the basis of the testimony of these two jurors, the trial court granted Foster’s motion for new trial.

The trial court erred in reaching this conclusion. “A longstanding principle of Georgia law provides that ‘affidavits of jurors may be taken to sustain but not to impeach their verdict.’ OCGA § 9-10-9. This prohibition includes oral testimony offered at a hearing. PIE Nationwide v. Prickett² (physical precedent only, but cited with approval in Fidelity Nat. Bank v. Kneller3).” Riddle, supra at 393.

“In passing upon a motion for new trial, the trial judge has no power to receive, hear, or consider affidavits of jurors submitted for the purpose of impeaching their verdict, though submitted without objection. That a juror will not be heard to impeach his verdict is too plain to be misunderstood by the bench or the bar.” (Citation omitted.) Wellbeloved v. Wellbeloved 4

We must emphasize that, because this is a civil case rather than a criminal proceeding, the type of judicial misconduct at issue here does not provide grounds for reversal. In a criminal case, however, the result might-be different. Exceptions to OCGA § 9-10-9, such as the use by jurors of extrajudicial information, apply only in criminal cases in “certain very limited occasions where human life or liberty sways in the balance. But such compelling personal interests of life and liberty rarely are at issue in civil litigation and are not so at issue in this case.” Perry v. Rosenbaum.⁵

In this civil case, the trial court’s decision to grant the motion for new trial was based upon the testimony of the two original jurors; this testimony impeached the verdict which they had returned. Thus, the trial court’s decision was based solely upon evidence which the trial court had “no power to receive, hear, or consider.” Wellbeloved, supra. Accordingly, we hold that the trial court abused its discretion in granting the motion for new trial.

Judgment reversed.

Phipps, J., concurs. Ellington, J., concurs specially.

1 Riddle v. Beker, 232 Ga. App. 393, 394 (501 SE2d 893) (1998).

2 PIE Nationwide v. Prickett, 189 Ga. App. 77 (374 SE2d 837) (1988).

3 Fidelity Nat. Bank v. Kneller, 194 Ga. App. 55, 59 (390 SE2d 55) (1989).

4 Wellbeloved v. Wellbeloved, 209 Ga. 709, 711 (4) (75 SE2d 424) (1953).

5 Perry v. Rosenbaum, 205 Ga. App. 784, 787 (3) (423 SE2d 673) (1992).