Opinion
November, 1904.
Eugene Bartlett and A.C. McCall, for the appellant.
Moses Shire, for the respondent.
It is clearly misconduct on the part of jurors, during the progress of a trial, of their own motion to visit and inspect premises which are the subject of the litigation. Such an examination may put them in possession of facts which, although incompetent, would have a potential inuflence upon their decision and the parties would have no opportunity to explain such facts or to counteract such improper influence. By such conduct the jurors are in effect obtaining evidence, the nature or importance of which it is impossible for the parties to know. A jury trial is a public proceeding, as well in respect to the production of proof as to the instruction of the jury by the judge. The parties have a right to be heard in respect to everything transacted and to bring in review all the proceedings at the trial. ( Watertown Bank Loan Co. v. Mix, 51 N.Y. 558, 560.)
"It is the policy of the law to watch over the deliberations of the jury, and to guard them from all impressions and influences in respect to the issues involved not derived from a trial in open court, in the presence of the parties and their counsel, where ample opportunity is given to object to the admission of any evidence or comments not sanctioned by the law." ( Mitchell v. Carter, 14 Hun, 451.)
Not every act of misconduct by a juror during a trial, however, makes it necessary to suspend the trial, or in case it is completed to grant a motion for a new trial. If it can be seen that the misconduct was inadvertent and did not result in harm to the complaining party, the trial may proceed or the verdict, if one is rendered, may be permitted to stand. ( Haight v. City of Elmira, 42 App. Div. 391.)
In that case it conclusively appeared that the inspection by certain members of the jury of the premises in question disclosed only facts which were not disputed, and it was held that the trial judge properly determined that the conceded misconduct did not injuriously affect the interests of the defendant. ( City of Indianapolis v. Scott, 72 Ind. 196.)
In such cases the judge must determine whether the misconduct complained of is of such a character as, considering all the circumstances, would injuriously affect the parties' interests; and whether to proceed with or end the trial or to grant a new trial in case a verdict is rendered, must rest very largely in the discretion of the judge presiding. He knows the state of the proofs, the exact issues involved and has the advantage of hearing from the offending juror what prompted his act and to some extent its effect upon him.
In the case at bar, after a careful examination of the record before us, we are not prepared to say that the court would not have been justified in holding that the misconduct of the two jurors referred to did not injuriously affect the interests of the defendant and in proceeding with the trial if nothing further had occurred. What had been done by the two jurors was clearly inadvertent; no one was really blamable; simply a mistake had been made by two apparently honest and conscientious jurymen, and if they had been instructed to disregard any fact which they learned by the inspection made by them, we think under the circumstances the defendant would not have had just ground for complaint. The trial court, however, desirous of correcting the effect of the misconduct complained of, against the defendant's earnest protest, directed the entire jury to view and inspect the structure which was the subject of controversy between the parties. This, we think, the court had no power to do, and that such action, which was then and there duly objected to by the defendant, constituted such error as required the motion for a new trial to be granted.
The only authority for directing a jury to view and inspect premises during a trial in a civil action is found in section 1659 of the Code of Civil Procedure. That section relates only to "an action for waste," and is not applicable to the case at bar. If such direction was proper in this case then such direction may be made upon the trial of any action where the condition or situation of premises or the structures thereon are involved. The fact that the Legislature by the section of the Code of Civil Procedure referred to conferred the power upon the court to "direct a view by the jury" in an "action for waste," clearly indicates that it was not intended that such power should exist in other cases. We have failed to find any adjudicated case which holds even inferentially that upon the trial of a civil action other than for "waste" the court has power to "direct a view by the jury."
In Moore v. N.Y. Elevated R.R. Co. (24 Abb. N.C. 77; 15 Daly, 506), cited by respondent's counsel, the defendant's counsel suggested at the close of the day's trial that the jurors be permitted to visit the premises. Plaintiff's counsel was present and made no objection; the presiding justice gave the permission provided they all went together. Not all the jurors understood the directions given by the judge, and only five of them visited the premises. Upon returning to court the following morning the jurors were reprimanded for disobeying the direction of the court. The trial then proceeded without any objection on the part of plaintiff's counsel, and it was held that the plaintiff had waived the right to make the alleged misconduct of the jury the ground of a motion for a new trial.
The case of People v. Thorn ( 156 N.Y. 286) was a criminal case and is governed by section 411 of the Code of Criminal Procedure and the decision has no application to the questions involved upon this appeal.
We have not overlooked the fact that the motion for a new trial was made upon the ground of the misconduct of two of the jurors and not upon the ground that the entire jury inspected the premises pursuant to the direction of the court, nor that we have suggested that under the circumstances disclosed by the record the trial judge in the exercise of his discretion would have been justified in proceeding with the trial, notwithstanding the misconduct of the two jurors referred to, upon giving them proper instructions in the premises; that he would thereby have remedied the effect of such misconduct. The misconduct, however, was not rectified by the court in directing the whole panel to view the premises, but instead was emphasized, and, therefore, was properly made the ground of the motion for a new trial.
It follows that the order appealed from should be reversed, with ten dollars costs and disbursements, and the motion for a new trial granted, with ten dollars costs.
All concurred; SPRING, J., in result only.
Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.