
    [No. 5036.
    Decided April 28, 1905.]
    Laura Heasley, Respondent, v. Dura L. Nichols, Appellant.
      
    
    Jurors—Qualifications—Bias—New Trial—Prejudice Presumed When. A juror is disqualified, and a new trial is a matter of right, where he had expressed opinions as to the merits of the controversy and was biased and unfair, and concealed the fact by false swearing on his voir dire; and injury is conclusively presumed when it is shown that he was in favor of returning a verdict against the appellant, although he did not agree to the verdict returned because he thought it was excessive.
    Same—Acceptance of Juror—Waiver. Acceptance of a juror in reliance upon his sworn statements on his voir dire, does not waive his disqualification for actual bias concealed by his false swearing.
    Marriage—Breach of Promise—Damages—Evidence—Plaintiff’s Social Condition. In an action for breach of promise of marriage, it is competent for the plaintiff to show that her stepfather was a drunkard and abused her, and that her home surroundings were not agreeable, and that defendant knew of such fact, since her social and financial condition may be shown in connection with defendant’s, as affecting the advantages of the contract and her damages.
    Same—Mitigation of Damages—Defendant’s Offer to Marry After Action Brought. In an action for breach of contract of marriage the defendant cannot show, in mitigation of damages, that he offered to marry the plaintiff after the commencement of the action.
    Appeal from a judgment of the superior court for Lincoln county, Chadwick, J., entered June 24, 1903, upon the verdict of a jury in favor of the plaintiff, in an action for breach of promise of marriage.
    Reversed.
    
      Merritt & Merritt and Myers & Warren, for appellant.
    
      Martin & Grant, E. D. Reiter and A. 0. Routhe, for respondent.
    
      
      Reported in 80 Pac. 769.
    
   Mount, G. J.

Action for breach of promise of marriage. The cause was tried to the court and a jury, and verdict was returned in favor of the plaintiff for $4,560. The defendant filed a motion for new trial upon numerous grounds. Among the grounds, were the following:

“(1) Irregularities . . . by which defendant was prevented from having a fair trial. . . . (5) Excessive damages appearing to have been given under the influence of passion or prejudice. . . . (I) Errors in law occurring at the trial and excepted to at the time by the defendant.”

The first ground above stated was tried upon affidavits. Upon the hearing of the motion, the court adjudged the damages .excessive, .and ordered a new trial, unless the plaintiff, within fifteen days thereafter, should file a remission of the amount found by the jury to $2,000, excluding costs. Within the time allowed, such remission was filed, and thereupon the court denied the motion for a new trial, and entered a judgment for $2,000 and costs. The defendant has appealed, and insists, first, that one of the jurors trying the cause was prejudiced and biased.

The juror, Dan Donahue, upon his voir dire examination, testified in substance', that he was not acquainted with the plaintiff; that he was slightly acquainted with the- defendant; that he had heard there was such a case coming up> but that he knew nothing about the case, had formed or expressed no opinion on the case, and had no opinion upon the merits at that, time: He was, upon these statements, accepted by both sides as a competent and qualified juror-. After the trial of the case, it was first learned that these statements were untrue. Three disinterested persons made affidavits to the effect that the juror had discussed the case with them, or in their presence, before he was called as a juror, and therein had expressed his opinion, in favor of the plaintiff. One of these affiants stated that Donahue said, after expressing an opinion: “I would like to get on the jury, for I would give her all she sued for and a d— sight more.” These affidavits were not denied. The respondent filed two affidavits, also showing that the juror Donahue knew about the case, and had formed and expressed an opinion on the merits, and had said to two different persons, “If he were permitted to sit on the jury, he would not give the girl a G— d— cent.” These facts stand conceded on the record. But it appears that neither party or his counsel knew of the facts until after the trial. It is plain that this juror was disqualified by reason of his bias and prejudice. He concealed the fact, and by reason of his misrepresentations was taken and permitted to sit upon the jury. Both sides to the controversy were entitled to twelve lawful and unbiased jurors to' try the questions of fact in the case. When it was shown to the court that one of the twelve selected was unfit to sit as a juror, either party deeming himself aggrieved was entitled, as a matter of right, to a new trial.

It is urged by respondent that the juror Donahue was opposed to' the verdict returned, and did not agree thereto, because it was in his opinion excessive, and that therefore the appellant is not injured. It appears, as stated by the affidavits of several of the jurors, that Donahue did not agree to the verdict as returned. It also appears that he said to two or three of them that the verdict was excessive. But it appears conclusively that he favored a verdict for the respondent in some amount between $1,000 and $8,000. There would be much force in the argument of respondent upon this question, if it had been shown that the juror favored a verdict for the appellant. But it is not so shown. We think that, upon a question so highly important as the fairness of a juror, injury should be conclusively presumed when it is shown that a juror is. biased and prejudiced and unfair, and is in favor of returning a verdict for the successful party. According to the affidavits, the juror was biased against the prevailing party. He was also. prejudiced against the appellant. He was biased against both parties, and was, in any event, unfit for a juror in the case because he was not a fair and impartial juror. If the true condition of his mind had been made known to the court before he was accepted as a juror, he would have been excluded at once. The parties had a right to rely upon his. sworn statements, and waived nothing by accepting him as a juror. But when the attention of the court was called to the condition of the juror’s mind in a proper way, it was the duty of the court to rectify the mistake by granting a new trial.

In view of the fact that a new trial must be had in this case, it becomes necessary to decide two. questions which are presented here, and which, no doubt, will again arise upon the introduction of evidence. Plaintiff was permitted to show, over the defendant’s objection, that she maintained her home with her mother and stepfather; that her stepfather was a drunkard, and, when under the influence of liquor, abused her; that her home surroundings were, for that reason, not agreeable, and that defendant knew these facts at the time of the contract of marriage. The general rule is that the defendant’s social and financial condition may be shown, in cases of this kind, for ■the purpose of affecting damages. 5 Cyc. 1013, and cases cited. In Rutter v. Collins, 103 Mich. 143, 61 N. W. 267, it was held that the pecuniary condition of the plaintiff, and the surroundings of her home life, were admissible in evidence; for the reason that the home which defendant would have furnished would have advanced her station in life. See, also, Vanderpool v. Richardson, 52 Mich. 339, 17 N. W. 936. It seems to follow, if the social and financial condition of the defendant is proper to be shown, as affecting the advantages of the plaintiff, that her own social and financial condition may be shown for the same reason. If she lived in poverty, or in an unhappy home, and this condition was known to the defendant when he entered into the contract of marriage by which he agreed to share his home with her, her damages, by reason of the breach of the contract, would necessarily be affected by the difference in their social and financial conditions. If their social and financial conditions were equal, there would then be no damages in that respect. We can see no good reason for admitting evidence of his condition and excluding evidence of her condition, when both are for the same purpose, and are necessary in order to determine whether there is any difference. It was, therefore; not error to admit the evidence.

The lower court refused to permit appellant to show that, after the action was begun, he offered to marry the respondent It is not claimed by appellant that this fact, if shown, would be a defense to the action; but it is claimed that it should have been allowed in mitigation of damages, in view of the testimony discussed under the preceding point. It has been held that such evidence is admissible in mitigation of damages. Kelly v. Renfro, 9 Ala. 325, 44 Am. Dec. 441. Such evidence was excluded in Holloway v. Griffith, 32 Iowa 409, 7 Am. Rep. 208, and in Bennett v. Beam, 42 Mich. 346, 4 N. W. 8, 36 Am. Rep. 442. We think the rule in these last named cases is more in accordance with substantial justice. As was said in the last named case:

“The contract of marriage is one so dependent upon affection that where this is wanting a union would he more likely to add to than lessen the damages.”

And while it is true that defendant, by offering to marry plaintiff after the action was begun—if the offer was made in good faith—presumably placed at her disposal the social position and the home which the contract originally implied, yet when the affection which had existed between the two had ceased, and unrequited love had given way to resentment to such an extent that the plaintiff sought the public courts for redress, the offer of marriage and a home and position without affection, under the circumstances stated, would naturally be spumed, and ought not to be shown to lessen the damages which had occurred by reason of an admitted breach of the contract. It was, therefore', not error to exclude the evidence offered.

Nor the reason first above given, the judgment is. reversed, and a new trial ordered.

Nullerton, Hadley, and Dunbar, JJ., concur.

Rudkin, Root, and Chow, JJ., took no part.  