I wish to concur specially in the opinion of the Chief Justice in the important matters of practice relating to quotient verdicts and the inadmissibility of the affidavits of jurors under the circumstances existing in this case.
The affidavits of some of the jurors state that: "They all agreed that each one of said jurors should ballot by writing upon separate slips of paper the amount of damages he desired to award said plaintiff, and that, after said amounts should be so written and balloted, that said several amounts should be added together, and the total sum so arrived at should be divided by 11, the number of jurors constituting the jury, and that the amount so found and arrived at should control and fix the amount of the verdict to be awarded to and in favor of plaintiff."
Another juror makes affidavit: "That while it is true that such jurors all agreed that each one should ballot by writing upon separate slips of paper the amount of damages he desired to award said plaintiff, and that after said amount should be so written and balloted said several amounts should be added together, and the total sum so arrived at *Page 148 divided by 11, the number of jurors constituting the jury, and that the amount so found and arrived at should control and fix the amount of the verdict to be awarded to and in favor of plaintiff, that, notwithstanding said agreement, and after said ballot had been so written and balloted and the sums added together and divided by 11, this affiant and each of the jurors in said case did freely and fully agree upon the verdict which was rendered in said case, and did fully and freely agree upon the amount to be awarded to said plaintiff, irrespective of said balloting, and did freely and fully agree and award said plaintiff the sum of $48,000."
Considering the sum allowed, $300 is a small variation, but sufficient to show that the jurors, and especially those who favored a lesser sum, were not entirely controlled or bound by the quotient which likely induced them to find for the nearest amount in even thousands. The jury had two important issues to determine. One related to the ownership of the ledge from which the ore was extracted, and under the conflicting testimony they, or the requisite number, must have found in favor of plaintiff; and after they arrived at this conclusion it became incumbent on them to determine the amount of damages which should be awarded against the defendant. One of the jurors put down nothing in making up the quotient. If this be considered unreasonably low, it was favorable to the defendant, and it cannot complain. But it was his privilege to find for the defendant under the conflicting evidence regarding the ownership of the ledge. A few cases hold without qualification that quotient verdicts should be set aside, but the better authorities sustain their validity, unless the jurors agree in advance to be bound by the amount.
Whether they so agree or not, no good reason appears to reject a quotient verdict if each juror puts down a sum within the issue, and supported by the evidence, which he conscientiously believes should be awarded. Some able opinions — such as that of Judge Sanderson, speaking for the court, in Turner v. Tuolumne — support these verdicts as being a mean and average of the amount of damages which the different jurors in their natural varying judgments believe should be awarded.
Other decisions are to the effect that such verdicts should *Page 149 be vacated if the jurors so agreed in advance, because some juror might put down an extravagantly high or low amount. If admitted that the result of such a fraud when practiced by one and accepted by the other jurors should vitiate the verdict which it varies, when this fact or reason for such rule fails the rule itself should not apply, and in cases where such fraud is perpetrated, and it is shown that a juror put down an extravagant amount, the verdict should be set aside; but this would be no reason for vacating verdicts in other cases where no juror is guilty of such conduct, and where the verdict is an average of the different amounts which the several jurors honestly believe should be awarded. If the affidavits of jurors were to be considered at all, it would be only where the juror designates a sum designedly or unreasonably high or low, or where it is not within the issue or supported by the evidence, and this fraud or mistake is practiced or made by one of the jurors and allowed by the others to vary the quotient and amount returned, so it is not an average of the different estimates which, in the honest judgment of the respective jurors, should be allowed, that the verdict ought to be set aside. It is clear on elementary principles that, where no such conduct is shown to have taken place on the part of any juror, it should not be surmised or presumed by the court, and considered a ground for overturning the verdict, and that the party complaining must show injury and error. A number of decisions failed to make this distinction, but it is plainly drawn and the correct rule announced in Lee v. Clute, 10 Nev. 152, which controls and supports the verdict here, regardless of the admissibility of the affidavits of the jurors.
In Birchard v. Booth, 4 Wis. 71, each of the jurors marked down what he thought the damages ought to be, and these several sums were added up, and the amount divided by 12, and the jury could not agree; upon the result as their verdict, and after further discussion the process was repeated, and they were still unable to agree upon such result, when it was proposed that the amount found by the first ballot, deducting $16, should be adopted as their verdict, and it was so agreed. The court held that such was not a gambling verdict, and should not be set aside for such cause. It was for $2,400. *Page 150 To allow jurors who have taken an oath to try the case and render a verdict according to the evidence to make affidavit that they have returned one not in compliance with this duty, does not, as a general rule, at least, commend itself as the best practice. Not only would it encourage weak jurors, acting under influence or prejudice, to stultify themselves and their fellow jurors, but it would open the door for the powerful, overzealous, and unscrupulous to prolong litigation, and crush the weaker adversary, regardless of the merits and justice of the controversy, and entail more hardships than it would avoid.
As stated in State v. Crutchley, 19 Nev. 368,12 P. 113, if there are any extreme cases which should be an exception, this is not one of them. If the affidavits were admissible, and there was a conflict in them regarding the mariner in which the verdict was reached, a finding by the trial judge supporting his order denying the motion for a new trial will be presumed. In about two score of the states in this Union the common-law rule that affidavits of jurors will not be received to impeach their verdicts is recognized, and with few exceptions enforced, save when modified by statute. It is unnecessary to cite opinions so numerous, and running into the hundreds. Reference to many cases upholding the doctrine can be found in the note toHouk v. Allen, 11 L.R.A. 706, in Hayne on New Trial and Appeal, sec. 73, and 14 Ency. Pl. Pr. p. 905. The rule was enforced in California when the practice act similar to ours prevailed there, and has been since and is now in cases not coming under the amendment to that document and later enacted as part of the code, which makes such affidavits admissible to show that the verdict was reached by a resort to chance. In comparison with the mass of cases supporting this principle, the exceptions are rare.
Regardless of the substantial reasons which may be given and have been advanced by courts and text writers for the rejection of the affidavits of jurors, and regardless of the views of this court as to the advisability of receiving them to show that the verdict was not reached in the manner they had sworn to render it, the fact that such affidavits were inadmissible under the common law, which by statutory *Page 151 enactment is made the rule of decision in all the courts of this state, tends strongly, if not conclusively, against their admission. (Comp. Laws 1900, sec. 3095; Clark v. Clark,17 Nev. 124, 28 P. 238; Wuest v. Wuest, 17 Nev. 217,30 P. 886; State v. Cronan, 23 Nev. 437, 49 P. 41.) But this court long ago, in State v. Stewart, 9 Nev. 120, and State v. Crutchley, 19 Nev. 368, 12 P. 113, decided directly that such affidavits ought not to be received. If not permitted to introduce them, the losing party has some protection against an excessive verdict, for the trial judge will set it aside and order a new trial if he believes it to be against the weight of the evidence, and the appellate court will make the same order if there is no evidence to support it. The plaintiff's demand alleged in the complaint is $2,000,000. The secretary of the defendant testified that during a certain period which covered the operations in the disputed ground the defendant realized from ores amounts aggregating several hundred thousand dollars, and paid $60,000 in dividends, and it was stated on the argument and not denied that twenty-nine thirtieths of this ore was shown by the testimony of the superintendent of the defendant to have come from the vein which the jury found belonged to the plaintiff. It is apparent that the amount allowed by the verdict was too small, and too favorable for the defendant, and that for this reason the verdict should have been set aside on the application of the plaintiff, and ought not to be vacated on the motion of the defendant.
For the several reasons that the affidavits of the jurors ought not to be received to impeach their verdict under the former decisions of this court and the circumstances existing here; that the jury, after discussion, adopted a different amount than the quotient, and, if guided or influenced by the latter, it does not appear to be in excess of an average of the various amounts which the respective jurors in their individual honest judgments believed under the evidence should be awarded to the plaintiff; that if the affidavits of the jurors could be considered, and it were admitted that the verdict was for the exact amount of the quotient, and that the jurors in advance had agreed to be bound by it — it would still be a good verdict under the rule promulgated by this court in Lee v. Clute, as there is no showing and no presumption *Page 152 that any juror put down an amount beyond his honest judgment; and, further, that after the jury had found that the vein from which the ore was taken belonged to the plaintiff, it appears that the amount named in the verdict is too small, and too favorable to the defendant.