Browne v. Browne

Bartol, J., delivering tire opinion of tbis Court, after stating the case as ante, pp. 105,106, continued as follows: The proceedings upon the motion to set aside the verdict and for a new trial, and the action of the Court thereon, form the subject of five bills of exception, involving questions which have been ably and elaborately discussed in the argument, and which have been carefully considered by this Court. The subject naturally presents itself under two general heads. 1st. As to the action of the Court below, in refusing a new trial, upon the grounds stated in the first three reasons assigned in support of the motion. 2nd. As to the sufficiency of the verdict, upon the issues.

The counsel for the appellees is right in the position he-assumes that every motion for a new trial, is addressed to the sound legal discretion of the Court; and therefore no error can be ordinarily assigned with regard to the decision of the Court helow upon such motion; nor is it a subject for review on appeal. This general rule is conceded by the appellants’ counsel, who admitted in the argument, that from the refusal of the Judge of the Superior Court to grant a new trial, it being matter within his discretion, no appeal would-lie; provided that discretion had been exercised after hearing the evidence; but it is argued that the refusal to admit the evidence offered in support of the motion, was error in law, from which an appeal lies; because thereby the appellant was deprived of the exercise of the judgment and discretion of the Court upon the case as presented by the proof, to which he had a legal right. This is certainly a very nice distinction, but we are not prepared to say it may not be a sound one, and in some cases material to be observed. Some precedent may be found for it in the decisions of the cases of Freeman vs. Morris et al. Busbee’s R., 288, and Stephenson vs. Stephenson, 4 Jones (N. C.) R., 474.

The same point was presented to this Court ¹¹³ by tlie appellants in argument, in Howard & Wife et al. vs. Waters et al., 19 Md. Rep., 529 ; but not being necessarily involved in tlie case was not distinctly decided. Without meaning’ to express any opinion upon the general proposition involved in the appellant’s argument, it is very clear, that even conceding the right of appeal on this branch of the case, the decision of the Superior Court ought not to be reversed, if this Court should be of opinion, either that the testimony was properly excluded, or that it was immaterial and insufficient if admitted, to affect the validity of the verdict. The testimony excluded consisted of the affidavits of four jurors, who sat on the case, to the effect that one of their number, William A. Albaugh, was suffering, during the progress of the trial, with a painful disorder o'f the bowels, which continued during the time the jury was confined in their room. Albaugh states that he was opposed to the verdict, but assented to it in order to obtain his release from the confinement of the jury room.

Three other jurors testify to the sickness of Albaugh, and state that they believed the verdict for the caveatees to be erroneous, and assented to it for the purpose of relieving Mr. Albaugh. To allow a verdict of a jury solemnly rendered, to be afterwards impeached upon such testimony, would, we think, be setting a dangerous precedent, tending in most cases to the defeat of justice. Although in some of the States a different practice has been allowed, we think the law in Maryland is well settled, that “the testimony of jurors cannot be heard to impeach their verdict, whether the conduct objected to in the jury be misbehaviour or mistake.” This rule was laid down by the late Chief Justice ARCHER, sitting in Baltimore County Court, in Bosley vs. The Chesapeake Ins. Co., reported in 3 G. & J., 473 , (note.) We refer to and adopt the decision of that eminent judge as the true exposition of the law as it has ¹¹⁴ been recognized and enforced in this State.

It is supported, not only by the authority of adjudged cases in England and in this country, but by sound reason and public policy. In this case the testimony of the jurors tends to prove only misconduct on their part. It is not pretended that Mr. Albaugh’s sickness was of such a character as to impair his mental capacity, or destroy his judgment. If unable from physical pain to