I respectfully dissent. I think the trial court committed reversible error when it refused appellant's request, made in apt time, for a mistrial when it was discovered that Juror Lyons, on his voir dire after the trial court had reviewed the issues which the pleadings presented and had interrogated this juror, as well as all others, whether he knew any of the facts and circumstances connected with the particular case and had answered in the negative, and in addition, after counsel for appellant and appellee had likewise questioned this juror and the others, and especially whether any of them had discussed the case, all answered in the negative when in fact Juror Lyons was familiar with many of the pertinent facts and had discussed the case with others. All the jurors were also asked whether they knew about what caused the destruction of the property involved or the parties to the litigation and a negative answer was given following the questions propounded.
The attorneys for the parties exercised the three peremptory challenges afforded them (8346, Pope's Digest) and the jury was selected.
Near the close of the trial, it was discovered that Juror Lyons had actually viewed the building on many occasions subsequent to its collapse, was a friend of one the principal witnesses for appellees, had discussed the case with certain people in the community, had been informed that the building had been destroyed by lighting and that his mother and father had for many years been neighbors of appellee, none of which, as indicated, he divulged upon his voir dire.
Upon appellant's request for a jury view of the building in question near the close of the testimony, the request was granted, and while the court was giving the *Page 32 usual instructions to the jury to guide them while viewing property, Juror Lyons arose from his seat in the jury box and asked of the court: "Do you have to go out there if you have already seen it?" He was then asked: "How frequently have you viewed this scene?" and he answered "Twenty-fifteen times."
Appellant argues that had he known these facts he would not have accepted Lyons as a juror.
Our jury system is hoary with age and is the best yet devised by man. Our Federal and State Constitutions guarantee to every person a fair and impartial trial before a jury of his peers.
In the circumstances, I do not think appellant has had that fair and impartial trial which was his right, in the present case.
"Full knowledge of all material and relevant matters is essential to a fair and just exercise of the right to challenge either for cause or peremptorily, and it is the duty of a juror to make full and truthful answers to such questions as are asked him, neither falsely stating any fact nor concealing any material matter. If he falsely misrepresents his interest or situation, or conceals a material fact relevant to the controversy, he is guilty of misconduct, and such misconduct is prejudicial to the party, for it impairs his right to challenge." 31 Am.Jur., 108, p. 638.
The fact that Juror Lyons did not sign the verdict along with the nine who did sign it, it seems to me could make no difference. The fact remains that appellant was entitled to fair, frank and honest answers to the questions propounded before accepting him as a juror. It is undisputed that these answers he did not get. No one knows just what influence this juror exerted in the jury room or during his association with the jurors in this case. Whether his influence was exerted for or against appellant, we cannot know and we should not be required — to speculate on this question. The record reflects that the trial court stated, when it refused to grant appellant's request for a mistrial, that it was an *Page 33 embarrassing situation due to his personal acquaintance with Juror Lyons.
While there was no intimation or accusation of fraud on the part of this juror, I think he was disqualified and a mistrial should have been declared.
In D. F. Jones Construction Company, Inc., v. Fooks,199 Ark. 861, 136 S.W.2d 487, this court said: "The jury system is a great institution and should hold itself aloof from any and all corrupt influences. Members of juries owe it to themselves and to the great system to preserve the integrity of their verdicts. If there is substantial evidence in the case to support the verdict of the jury this court will not try a case de novo, but will accept and receive the verdict of the jury as final on issues involving not only property rights, but issues involving life and death. The only way to preserve the integrity of the verdicts of juries and keep the stream of justice pure is to set aside verdicts returned by juries which have been tampered with or attempted to be tampered with. * * *
"We think this is a most wise rule and adopt it as the rule in this state irrespective of whether such third persons are interested in the case or whether their attempts are sanctioned by the parties litigant or their attorneys. This court will not affirm a judgment on a verdict returned by a jury which has been tampered with or unduly influenced by parties litigant or by third persons. We regard this rule as necessary to inspire the confidence of the body politic in the jury system and in order to preserve the integrity of verdicts rendered by juries. The trial court should have sustained the second motion for a new trial and granted same."
"Verdicts returned by a jury where any member thereof had publicly expressed his opinion that the party charged was guilty of the crime and where this information was withheld from the court and the the party charged with the crime by him at the time he qualified to sit upon the jury should not be upheld by the courts. Nothing can destroy the integrity of juries more effectively than to allow prejudiced jurors to sit in a case. The courts *Page 34 should jealously preserve the integrity of juries." Anderson v. State, 200 Ark. 516, 139 S.W.2d 396.
I think, therefore, that the judgment should be reversed and the cause remanded for a new trial.