Strahan v. Webb

330 S.W.2d 291, 231 Ark. 426, 1959 Ark. LEXIS 525
CourtSupreme Court of Arkansas
DecidedDecember 21, 1959
Docket5-1969
StatusPublished
Cited by23 cases

This text of 330 S.W.2d 291 (Strahan v. Webb) is published on Counsel Stack Legal Research, covering Supreme Court of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Strahan v. Webb, 330 S.W.2d 291, 231 Ark. 426, 1959 Ark. LEXIS 525 (Ark. 1959).

Opinions

Carleton Harris, Chief Justice.

On November 5, 1957, William Warren Webb, age 47, a salesman for the Louisiana Paper Company, out of the Monroe office, was instantly killed in a collision with a truck belonging to the Kaminer Construction Company, a Georgia corporation, and being operated by their employee, Clarence E. Strahan, who, at the time, was acting within the scope of his employment. There was evidence that Strahan was drinking at the time of the collision. Webb was survived by his wife, Marteal B. Webb, and two sons, Frederick Ross Webb, age 18, and Garland Warren Webb, age 17. Suit was instituted by Mrs. Webb individually, and as next friend of the two minor sons, seeking total judgment in the amount of $320,000. On trial, the jury returned a verdict for Mrs. Webb against both defendants in the sum of $115,000 and returned verdicts for the benefit of the sons in the amount of $25,000 each, or a total verdict of $165,000. Judgment ivas entered in accordance therewith, and from such judgment comes this appeal.

Appellants contend: First, “The trial court erred in overruling defendants’ Motion to Set Aside the Verdict of the Jury and the Judgment Rendered Thereon.” Second: “The Verdicts of the Jury Were Excessive.”

I.

On December 13, 1958, appellants filed a “Motion to Set Aside the Verdict of the Jury and the Judgment Rendered Thereon” on grounds that;

“(1) Since the trial, defendants have discovered, new evidence which conld not be brought to the Court’s attention before the filing of this motion.
(2) That a certain juror or jurors, serving on the jury, on voir dire failed to disclose alleged information which they apparently had obtained and which, if disclosed, would have disqualified them from serving in the trial of this case. Such information was imparted to the entire jury during its deliberations, and that it was false and untrue and calculated only to cause passion and prejudice in the minds of the jury.
(3) That such improper and extraneous matter was considered by the jury to the prejudice of the defendants. ’ ’

Attached to the motion were the affidavits of six of the jurors who served, the affidavits being identical in form and content as follows:

“ STATE OF ARKANSAS COUNTY OF ASHLEY
AFFIDAVIT
I, the undersigned, hereby state that I was a member of the Jury Panel that tried the case of Webb v. Strahan & Kaminer Construction Company, in the Ashley County Circuit Court on November 20, 1958, and November 21, 1958. That during the jury deliberation of the case by the Jury, the Jury was advised, and information reached the Jury that the Insurance Company of Defendants had offered to pay the sum of $120,000.00 as a compromise settlement of the case.
Witness my hand this 12th day of Dec., 1958.”

This motion was overruled by the trial court. Of course, these affidavits do not state that affiants, or any other member of the jury, based their vote on the information received; there is no statement that the amount awarded resulted from this occurrence, nor that except for this incident, the verdict would have been smaller. But it is not necessary that we consider the sufficiency of the affidavits, for though these affidavits contained all of the statements which are omitted, appellants’ argument would still be of no avail. Appellants, in their brief, state:

“Not only was the statement made by the juror false, and not only was it no part of the evidence in the case, but if such testimony had been offered in the trial of the case it would not have been admissible because, (a) it would have been telling the jury the defendants were protected by insurance and (b) testimony re an offer of settlement is not admissible.”

We, of course, agree, and have held numerous times, that to unnecessarily bring to the attention of a jury that insurance is involved is reversible error; likewise, an offer of settlement is not admissible as evidence of liability. These holdings are so well established as to require no citation of authority. But on the other hand, we have also held that testimony or affidavits of members of the jury cannot be used to impeach their verdict. This holding, based on statute,1 has been reiterated many times, commencing with the case of Pleasant v. Heard, 15 Ark. 403. In Burns v. Vaughan, 216 Ark. 128, 224 S. W. 2d 365 an action was instituted for crop damage allegedly caused by a negligent spraying of the crops. A certificate of the weather bureau showing the direction of the wind on the day of the spraying, which had been excluded by the court, reached the jury by mistake. On appeal, this fact, inter alia, was urged as grounds for reversal. In holding this point to be without merit, this Court said:

In any event, however, the only proof that the jury saw the certificate is in the form of affidavits by several jurors. Of course, this is not a permissible method of impeaching the verdict.”

In Post v. State, 182 Ark. 66, 30 S. W. 2d 838:

“Appellant contends that the judgment should be reversed because the verdict was not unanimous and presents to the court the affidavit of jurors. Section 3220 of C. & M. Digest is as follows: ‘A juror cannot be examined to establish a ground for a new trial, except it be to establish, as a ground for a new trial, that the verdict was made by lot. ’ The affidavits do not tend to establish that the verdict was made by lot, but are for an entirely different purpose.”

See also Wallace v. State, 180 Ark. 627, 22 S. W. 2d 395. The general rule is based upon the logic set forth in 53 American Jurisprudence, Section 1105, page 769:

“The rule is founded on public policy, and is for the purpose of preventing litigants or the public from invading the privacy of the jury room, either during the deliberations of the jury or afterward. It is to prevent overzealous litigants and a curious public from prying into deliberations which are intended to be, and should be, private, frank, and free discussions of the questions under consideration. Further, if after being discharged and mingling with the public, jurors are permitted to impeach verdicts which they have rendered, it would open the door for tampering with jurors and would place it in the power of a dissatisfied or corrupt juror to destroy a verdict to which he had deliberately given his assent under sanction of an oath.

Testimony of the jurors to impeach their own verdict is excluded not because it is irrelevant to the matter in issue, but because experience has shown that it is more likely to prevent than to promote the discovery of the truth. Hence, the affidavit of a juror cannot be admitted to show anything relating to what passed in the jury room during the investigation of the cause, or the effect of a colloquy between the court and a juror, or the arguments made to a juror by a fellow juryman.

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Bluebook (online)
330 S.W.2d 291, 231 Ark. 426, 1959 Ark. LEXIS 525, Counsel Stack Legal Research, https://law.counselstack.com/opinion/strahan-v-webb-ark-1959.