dissenting. The trial court concluded that the affidavits of the complaining jurors concerning juror misconduct were simply insufficient to establish an evidentiary basis for a new trial and that a reasonable possibility of prejudice was lacking.
The majority holds that under these circumstances, the decision of the trial court did not constitute a manifest abuse of discretion. I disagree.
In this instance, two former jurors stated under oath by separate affidavits that two other jurors went to the accident scene, conducted experiments on what was the core issue of this litigation, then reported their findings to the panel. The trial court made its decision to deny the motion for new trial after reading the affidavits, the parties’ briefs on the issue, and after holding a short hearing on this motion. At this hearing, the two parties presented their arguments, but the court did not call in any of the jurors. This was wrong.
In Marshall v. United States, 360 U.S. 310, 79 S.Ct. 1171, 3 L.Ed.2d 1250 (1959), the trial judge was informed during the trial that the jurors had been exposed to newspapers providing information on the defendant’s prior record. In response, he summoned the jurors into his chambers one by one and inquired if they had read the articles.
In Parrott v. State, 246 Ark. 672, 439 S.W.2d 924 (1969), juror misconduct was alleged because the jurors were permitted to intermingle with witnesses and law enforcement officials during the trial lunch breaks. In affirming the trial court’s refusal to grant a new trial based upon juror misconduct, this court noted that the “trial court carefully considered the contention of jury misconduct contained in appellant’s motion for a new trial. The testimony of the jurors were taken. . .” Id. at 678.
In Langston v. Hileman, 284 Ark. 140, 680 S.W.2d 89 (1984), the appellant learned after the trial that the jury foreman was seen talking to one of the parties and also seen showing other jurors pictures as well as pointing out facts that had been revealed during the trial. Also, allegedly the foreman had been seen talking to a witness for the plaintiff during every recess. The trial court ultimately held a hearing on appellant’s motion for new trial and questioned the foreman.
Lastly, in Mitchell v. State, 299 Ark. 566, 776 S.W.2d 332 (1989), it was alleged that the victim had spoken with two jurors during a trial recess. The judge held a hearing on the motion for new trial based upon juror misconduct and listened to the testimony of a number of witnesses on this issue.
Clearly, as these cases illustrate, it is not uncommon for a trial court, when presented with a serious allegation of juror misconduct, to summon the jury into his chambers to ascertain whether the jurors are guilty of a transgression affecting the trial decision. Such action should be taken by the trial court regardless of whether it is requested by counsel. Allegations of jury experimentation during the course of a trial is of serious import. We have said that we do not permit such experiments. Borden v. St. Louis Southwestern Ry. Co., 287 Ark. 316, 698 S.W.2d 795 (1985).
Since two jurors’ affidavits attesting to experiments performed by the jurors were presented to the trial court, I feel that the trial court abused its discretion in failing to explore these allegations by at least summoning the jurors to his chambers for appropriate examination. Because of this failure to do so, I would remand to the trial court for further proceedings consistent with this dissent.