Opinion
April 4, 1950. Rehearing Denied May 11, 1950.
Loftin, Anderson, Scott, McCarthy Preston, Miami, Russell L. Frink, Jacksonville, and William S. Frates, Miami, for appellants.
Cushman, Woodard Gotthardt, Miami, for appellee.
From a final judgment in the sum of $10,000 entered in the Circuit Court of Dade County, Florida, in favor of plaintiff-appellee, Helen C. Conner, against the trustees of the Florida East Coast Railroad Company, defendants-appellants, an appeal has been perfected here. The sole question relied upon for a reversal of the judgment below is the alleged misconduct of one of the jurors called and sworn to try the issues made by the pleadings. The record reflects that the alleged misconduct of the juror occurred during the progress of the trial, when counsel for appellants immediately brought the facts constituting alleged misconduct to the attention of the trial court.
It appears that the trial had been in progress in the lower court about two days when counsel for appellant obtained information through an insurance adjuster to the effect that one of jurors then sitting in the case had advised him (the adjuster) that he (the juror) was going to hold out for a verdict for the plaintiff-appellee and that the witnesses for the defendants-appellants had been coached. The excuse assigned by the adjuster to counsel for appellants for not appearing in court and testifying to the alleged conversation was that the juror had a claim for adjustment against one of the insurance companies then being handled by the adjuster and to give testimony in open court as to the alleged statements of the juror would prejudice him in the mind or opinion of the juror. The failure to bring the adjuster into court by subpoena was due to their inability to learn his exact name and obtain service upon him as required by law. The adjuster advised counsel in effect that if he was forced to testify as to what the juror told him, he, the adjuster, would have difficulty in recalling the substances of what the juror told him.
The trial court, as reflected by the record, excluded the panel but had the juror in question sworn and by the court and counsel for the parties closely interrogated as to the alleged conversation with the adjuster. The answers to the many questions propounded to the juror convinced the trial court that the accusation made against him were groundless and without merit and that the juror had not disobeyed at any time the instructions of the court as to his conduct and demeanor. Counsel for the appellants, after the hearing, stated to the trial court that they were willing for the juror to resume his place on the panel and participate further in the rendition of a verdict.
The jury rendered a verdict adverse to the appellants and counsel, in their motion for a new trial, renewed their contention as to the alleged misconduct of the juror and submitted affidavits in support thereof going to the point as to what the adjuster told them about his (the adjuster's) conversation with the juror. It was the trial court's view and holding that counsel for appellants had notice and were given an opportunity to present all their testimony as to the misconduct of the juror and they failed to present sufficient testimony and further consented for the juror to return to his place on the jury and to otherwise participate in the trial, and for these reasons they should not be again permitted to relitigate the same issue and accordingly entered an order overruling the motion for a new trial.
Counsel for appellants cite our adjudications bearing on the point in issue and rulings from other jurisdictions and emphasize the fact that they were entitled to a jury of six men "without the slightest taint of corruption". It is quite true that when a juror conducts himself in the trial of a cause in such a manner as to create a doubt as to his fairness or impartiality, any verdict in which he may participate will have hanging over it a cloud of suspicion and its integrity may otherwise be called into question. The law and fair minded men and those engaged in the administration of justice frown on the misconduct of jurors who for one reason or another fail to discharge as honorable men the solemn duties and responsibilities by law cast upon jurors. The writer fully agrees with counsel for appellants to the effect that they were entitled to a jury of six men "without the slightest taint of corruption".
Pertinent here is the question: "Has counsel for the appellants carried the burden as required by law of establishing on this record that one of the jurors participating in the trial was `tainted with corruption'?" The answer to the contention is what weight or credence shall be given to the statement of the insurance adjuster. The trial court, after hearing a report about the adjuster's statement and then interrogating the juror in question, arrived at the conclusion that the alleged statement of the adjuster was without merit. The trial court knew that the juror in question had been approved by the Jury Commission of Dade County. He had been selected according to law. Section 54.13, F.S.A., grants counsel an opportunity to examine jurors on their voir dire. As a result of this examination the juror may be excused for cause under the provisions of Section 54.12, F.S.A., and if cause does not exist, then the juror may be peremptorily challenged under Section 54.11, F.S.A. The appellants failed to show by substantial competent testimony any improper conduct during the trial on the part of the juror in question. The statements of the adjuster, coupled with his affidavit as to what statements the juror made in their conversation, were not satisfactory or convincing to the trial court. It has not been clearly shown that the trial court misconstrued the evidence or otherwise misinterpreted its weight or effect when considered in its entirety or that his conclusion was erroneous.
Affirmed.
SERING, HOBSON and ROBERTS, JJ., concur.