Danis v. Saumure

:- THE CHIEF JUSTICE:-This action was tried before Mr. Justice Wilson and a jury and after a charge that was not objected to at the trial, before the Court of Appeal or before this Court, six questions were submitted to the jury, of which they answered only three. These questions and answers are 'as follows:- 1. Was the plaintiff's loss or damage sustained by reason of the defendant's motor car on the highway? Answer: Yes or No- 2. Has the defendant satisfied you that the injuries sustained by the plaintiff did not arise from the negligence or improper conduct on the part of the defendant?

Answer: Yes or

Answer: Yes or No.

Answer:

Plaintiff...........

Defendant ........

Total

100%

Special ........... $

6,702.68

General .......... $

5,100.00

Total

$ 11,802.68

In accordance with these findings judgment was given dismissing the action with costs.

The Court of Appeal for Ontario dismissed an appeal by the plaintiff and he then appealed to this Court.

The plaintiff seeks to file and use nine affidavits,-one from the foreman, and the others from eight members, of the jury. All of these are practically in the same form but the one by the foreman indicates that the sum of $11,802.68 was about one-half of what the jury thought was the total of the damages proved.

It might be immediately pointed out that it is difficult to accept this suggestion in view of counsel's answer to a question from the Bench that the item of $6,702.68 would not be one-half of the special damages. The instructions of the trial judge were clear and undoubtedly the jury intended to answer, and did answer, Question No. 2 affirmatively.

Furthermore, if as was intimated, it was considered by the jury that both parties were equally to blame, there is no explanation why no answers were given to Question No. 5. If one is to judge from the marks made, presumably by the foreman, on the original list of questions handed the jury, there was considerable discussion among its members before the answers were arrived at. This is not a case where the written answers do not correspond to the actual decision arrived at by the jury, nor was there any slip, or error, in the answers given to any of the three questions.

Statements or affidavits by any member of a jury as to their deliberations or intentions on the matter to be adjudicated upon are never receivable. Halsbury (2nd ed.) Vol. 19, p. 317, note (i).

The rule is set forth in the 9th edition of Phipson on Evidence, p. 199, Taylor on Evidence, 12th edition, Vol. 1, p. 599, and Wigmore on Evidence, 3rd edition, Vol. 8, s. 2352 et seq. As early as Vaise v. Delaval (1), an affidavit of a juror that the jury, having been divided, tossed up, and that the plaintiff had won, was rejected. Lord Mansfield said:- In Cogan v. Ebden (2), it had already been held that a verdict wrongly delivered by the formean of a jury might be amended.

In Jackson v. Williamson (3), the King's Bench would not allow, after a delay, the admission of an affidavit by all the jurymen stating that they intended to give £61 instead of £30, although the question of delay may have had some effect upon the matter. Even though the rule has been criticized in certain Courts in the United States, it has been followed consistently in England and here, including the Court of Appeal in the present case. In Ellis v. Deheer (4), to which Mr. Justice Kellock referred on the argument, the Court of Appeal decided that it was not precluded from granting a new trial on the ground that the verdict as delivered by the foreman was not the verdict of the whole jury, but Lord Justice Banks, at p. 117, and Lord Justice Atkin, at p. 121, stated as undoubted law that evidence could not be received as to what occurred in the juryroom. McCulloch v. Ottawa Transportation Commission (1), was a case of the foreman of a jury inadvertently interchanging the degrees of fault on the part of the parties, and reference might be made to the decisions of single KerwinC.J. judges in Fletcher v. Thomas (2) and Knowlton v. Hydro- Electric Power Commission (3).

It should be emphasized that the jury's duty was to answer questions.

S. 63 of The Ontario Judicature Act, R.S.O. 1950, c. 190, provides:- Therefore, in the present case, even if the jury had wished the plaintiff to recover a sum of money, the answer to Question No. 3 and the absence of any answer to Question No. 5 show the serious effect if it were permitted for a juryman, or any number of jurymen, to come forward later and state such desire.

'At the h'earing we found it unnecessary to call upon Mr. Hewitt to answer the argument that the judgment was perverse, as we agreed with the Court of Appeal that this has not been shown.

The appeal should be dismissed with costs.

RAND J.:-For the reasons given by the Chief Justice and Kellock J., I would dismiss this appeal with costs.

:- J.:-In my opiion, this appeal fails. The jury's duty under s. 63 of the Judicature Act was to answer questions and not to give a verdict. By their answer to question 2, the defendant was completely exonerated. Even assuming we are entitled to look at the affidavits tendered, they do not suggest any error in the answer to question 2 but merely that the deponents were laboring