Pickard v. Hall

220 N.W. 862, 53 S.D. 420, 1928 S.D. LEXIS 107

• Court: South Dakota Supreme Court
• Decided: August 18, 1928
• Docket: File No. 6277
• Status: Published

Opinion

BROWN, J.

In this action for conversion of an automobile, plaintiff prevailed, and, from an ordler -denying a new trial, defendant appeals, on tihe ground-.that the verdict was reached by resort to the determination of -chance. T-he statute makes this a ca-use for a new trial, and provides that it may be proved by the affidavit of any one of the jurors.

Seven of the jurors made affidavit that, after the jury had deliberated! for some time, each wrote on a piece of paper “an amount as damages and also- an amount as exemplary damages,” that the sum of each was 'divided by 12, and the quotients were the amounts awarded by the verdict for damages and exemplary damages, respectively, and- that the amounts ;were not agreed upon after consideration of the evidence by the jurors.

' Another juror made affidavit that this average was taken merely as a basis for -discussion, and that thereafter further discussion was had and a ballot taken, and it was agreed that diam-ages should be assessed at these amounts, but that there was- no agreement or understanding before taking the average that it would 'be accepted as the verdict. One of the seven made a rebuttal affidavit in which he stated that no ballot was taken after the quotient was ascertained!, but that the jury agreed on that as the verdict.

No juror states that it was so agreed' or understood before or at the time the average was taken. All the affidavits were made from eight to ten months after the rendition of the verdict. They do not show a resort to the determination of chance in arriving at the verdict. Long v. Collins, 12 S. D. 621, 82 N. W. 95; Sales v. Maupin, 35 S. D. 176, 151 N. W. 427, Ann. Cas. 1917C, 1222.

The order appealed from is affirmed.

BURCH, P. J, and PO’LLEY and CAMPBELL, JJ., concur. SHERWOOD, J., not participating.