The effect of the decisions is to preserve the time-honored institution of the common law — the jury system. The right of both parties to a jury, free from bias, prejudice, or interest, should not be lost, and that right should not be subject to chance or perils such as have been pointed out and condemned by this court. See New York Life Ins. Co. v. Turner, 210 Ala. 197,97 So. 687; City of Birmingham v. Lane, 210 Ala. 252,97 So. 728; Leith v. State, 206 Ala. 439, 90 So. 687; Manning v. A. B. A. Ry. Co., 206 Ala. 629, 91 So. 446; L. N. R. Co. v. Turney, 183 Ala. 398, 62 So. 885; B. R., L. P. Co. v. Drennen, 175 Ala. 338, 57 So. 876, Ann. Cas. 1914C, 1037; Craig Co. v. Pierson Lbr. Co., 169 Ala. 548, 53 So. 803. However honest and conscientious the juror may have been, under the circumstances, he was not a proper juror.
We do not think the knowledge by defendant's attorney of the juror's conduct during the trial was a waiver of that misconduct because not brought to the attention of the court until the verdict was rendered. In Craig Co. v. Pierson Lbr. Co., 169 Ala. 548, 552, 53 So. 803, 804, the court said:
" 'It is the general rule that a new trial will be granted if jurors are entertained during the trial by the party in whose favor a verdict is rendered. So it has been held ground for a new trial that the prevailing party furnished jurors with cigars or intoxicating liquors.' Id. p. 1235, referring to 17 Am. Eng. Ency. Law (2d Ed.).
"Aside from protecting the rights of parties, in the fair and impartial administration of justice, respect for the courts calls for their condemnation of any improper conduct, however slight, on the part of a juror, of a party, or of any other person, calculated to influence the jury in returning a verdict. So delicate are the balances in weighing justice that what might seem trivial under some circumstances would turn the scales to its perversion. Not only the evil, in such cases, but the appearances of evil, if possible, should be avoided.
"* * * Here the knowledge was acquired during the recess period of the court for dinner or lunch, and on the reconvening of the court, without objection made, the argument of the case proceeded, and the charge of the court to the jury was given, and the jury permitted to retire to make a verdict, and not until a motion for a new trial was the alleged misconduct made known to the court. *Page 3
"* * * But this rule does not and should not apply in cases of misconduct on the part of a juror, arising after his acceptance as such and a trial entered upon. In the present case the alleged misconduct was that of a party, and the remedy of the injured party was by a motion to set aside the verdict and for a new trial. It is true he might have brought the matter to the attention of the court before proceeding further with the trial, but his failure to do so ought not to deprive him of his remedy on a motion for a new trial. It does not lie in the mouth of the party guilty of the misconduct to object on the ground of speculating on the verdict of the jury, since his own misconduct produced the conditions. To require a party to make his objection pending the trial might still further prejudice him, especially if it should happen that he was mistaken in making the charge, though ever so honest."
See, also, L. N. R. Co. v. Turney, supra; New York Life Ins. Co. v. Turner, supra.
The writ is granted.
All the Justices concur.