Dissenting.
I am unable to concur in the conclusion reached by my associates.
It appears from the record that the jury had stood six for the plaintiff and six for the defendants, and then, according to the affidavits of two of the jurors who were for the plaintiff, the four other jurors who had stood with them for the plaintiff and the six jurors who were for the defendants agreed “that they would toss up a dollar for heads or tails and would decide the verdict in that method. Accordingly those in favor of the defendant tossed up a dollar, as well as one that favored the plaintiff, and the foreman was to toss the dollar for the third throw, and in this method the defendants won the majority of the throws, and according to their previous agreement four of the jurors that were for this plaintiff voted defendants, who had just won the majority in the tossing of the dollar, and none of these said jurors that changed their votes ever stated that they had changed their minds but just voted for defendants because these defendants had won in the ‘toss up’ of the dollar by chance.”
In the counter-affidavits of the other ten jurors it is stated that each of them reached and rendered verdict therein after a careful.and due deliberation and consideration of the evidence adduced and introduced during the process of the trial and the instructions of the court and upon that alone; that they did not arrive at or render such verdict by chance.
It is stated in two or more of the counter-affidavits that during the deliberations of the jury there was “some talk about a compromise or by chance,” but that affiant verily believed that no juror paid any attention to that; that after the dollar was thrown there was one ballot taken and the verdict then stood ten to two.
Since ten of the jurors made affidavits that they did not render their verdict on account of the pitching of the dollar but that they did render it on the evidence and instructions of the court, the trial court refused to grant a new trial.
As I view it, there is more than a “substantial conflict” in said affidavits, and the action of the trial court ought to *75be sustained in not granting a new trial and the rule of “substantial conflict” applied.
The majority hold in this case that it has been proven that such verdict was arrived at by a resort to chance and I cannot concur in that conclusion. When ten men swear that they did not arrive at their verdict by chance, I think it ought to be taken against the evidence of two men who swear that they did arrive at such verdict by reason of chance. In other words, I do not think it is proven in this case that there was a resort to chance in arriving at said verdict.
Upon an examination of the evidence, I am fully satisfied that the verdict and judgment are amply supported by it. No verdict ought to be sustained that depended upon the tossing up of a coin; but the affidavits in this case are ten to two that the verdict was not arrived at by pitching a dollar. On a motion for a new trial on the ground that the verdict was determined by resort to chance, the burden of proof is on the movant to show such fact. (Archibald v. Kolitz, 26 Utah, 226, 72 Pac. 935.)
As bearing on the question of chance verdicts, see Lee v. Clute, 10 Nev. 149; Greeley Irr. Co. v. Von Trotha, 48 Colo. 12, 108 Pac. 985; McDonnell v. Pescadero & S. M. Stage Co., 120 Cal. 476, 52 Pac. 725; Wiles v. Northern Pac. Ry. Co., 66 Wash. 337, 119 Pac. 810; Empson Packing Co. v. Vaughn, 27 Colo. 66, 59 Pac. 749. It is true that these cases go more to a quotient verdict than to a verdict that is claimed to have been arrived at either for plaintiff or defendant upon the pitching of a coin.
But some of them also go to the weight of the evidence required when a verdict is sought to be impeached. Under our constitution and law nine jurors may render a verdict, and if the three who would not join in such a verdict could by their affidavits have the verdict set aside against the affidavits of the nine who agreed in the case, any verdict might be set' aside in such a manner, even though the nine made affidavit, as was done by ten in this case, that the verdict was not determined by resort to chance but that it was rendered upon a due and careful consideration of the evidence adduced *76on the trial and the instructions given by the court, and upon that alone.
In the case at bar, ten of the jurors, as before stated, made affidavit that they did not arrive at their verdict by reason of the pitching of a dollar.
The judgment ought to be sustained.