(dissenting).
I am of the opinion that the learned trial court abused its discretion in not granting either defendants’ motion for a mistrial or for a new trial, hence I am in favor of reversing the judgments with directions to grant a new trial.
It is my view that when the juror Bulson asked the question as to insurance the damage was done and the integrity of the trial was destroyed. The subsequent verdict was thereby vitiated and this irregularity could not be cured no matter what answer Foil might have given. The inference seems inescapable that the juror desired at that time to make (and probably *115did later make) some use of the information obtained in the consideration of the facts. See 64 C.J. 1016, Sec. 799. While I do not excuse Foil for his misconduct yet I am not naive enough to believe that he would intentionally disclose the insurance angle— which was so decidedly against his interest — as a predicate for a mistrial later on if the verdict was not satisfactory to them. To me the real culprit in the matter was the offending juror and I cannot agree with the majority that the defendants brought about the situation which they now seek to avoid.
Defendant Fryberger in urging that he, being blameless, was entitled to a new trial or a mistrial is met in this court with the statement that “the same counsel represented both defendants”. This brings me to the other point on which I disagree with the majority. The court in effect is saying that both defendants are precluded because of their counsel’s failure to promptly move for a mistrial before the verdicts were returned, the implication being that counsel had purposely refrained from making such a motion in order to gamble on a satisfactory verdict. In my opinion this is an unwarranted inference without support in the reporter’s transcript, and is indeed surprising to me that the court, to support its decision, would dignify — by incorporating into an opinion — an excerpt from plaintiffs’ brief as to what their counsel allege was said in the judge’s chambers. This I submit is a patent violation of our rules by going entirely outside the official record.
The fact that the majority relies upon our decision in the case of Jacob v. Miner, supra, merely tends to accentuate our differences. It manifestly appears from the facts in that case that the attorneys deliberately chose to gamble on the verdict by failing to apprize the court of a juror’s misconduct of which they were well aware before the trial had concluded, whereas in the instant case, there is not a scintilla of competent evidence in the record that the attorneys knew of the conversation between the juror and Foil until after the case had been submitted to the jury. • As I read the transcript, counsel for the defendants were in the act of reporting the misconduct when the bailiff reported the jury had reached a verdict. Whereupon the court announced its intention of first receiving the verdict and then investigating the incident which ultimately resulted in both offenders being held in contempt of court. The court having made up its mind as to the course it intended to pursue.'there was not much that counsel could do and I think it is unfair to charge them with dereliction of duty in not then and there moving for a mistrial. If in reality such was the. situation the trial judge would have quickly sensed it and this would doubtless have formed the principal basis for his denying their motion for mistrial. We are, however, not left in doubt on that score as by its order of January 20, 1951 the court *116bottoms its decision solely upon the “offending party” rule.
It is for these reasons that I dissent as it seems to me in this case that a suspicion has been cast upon the fair and impartial administration of justice.