141 Misc. 847 | N.Y. Sup. Ct. | 1931
Plaintiff in this case sued for damages for the death of her husband, who died of concussion of the brain caused by a fall upon the stairway in the premises of defendant upon which stairway there was no handrail. Defendant claimed that it was not guilty of negligence, and that the deceased was negligent in the manner of descending the stairway upon which he fell, and also because chemical examination of his brain showed the presence of enough alcohol there to warrant the belief that he was intoxicated at the time of the fall.
At the trial, lasting three days, by exceedingly able counsel for both sides, who thoroughly presented every phase of the case, it was given to jury at twelve-fifteen p. m. There follows the stenographer’s minutes of what occurred later in the day. (In the court’s chambers: Present: The court and counsel. Colloquy between court and counsel.) The court: At five p. m. the jury asked the following question: “ One juror states having been at 36 West 20th yesterday and examined the stairs. Was this permissible? He is the only one who does not agree with the eleven other jurors.” To which, the court answered as follows: “Answer: It was not permissible for the juror to examine the stairs, and the charge to the jury was that they could only consider the sworn testimony and the exhibits in evidence, and the jury cannot consider any information secured from such examination of the stairs by the juror.” (The court’s answer to the question of the jury was sent up to the jury at five-forty p. m.) Mr. Hunt: On behalf of the defendant, I object to the procedure followed by the court, and I ask for a mistrial at this time — it appearing on the record, I presume, so that there won’t be any question about that, that I am asking before the paper is sent back to the jury. The Court: Yes. Mr. Hunt: Upon the ground that it was improper on the part of the juror to visit the scene of the accident without the court’s permission during the trial, and specifically upon the ground that there now is a handrail along the right-hand side of the stairway, as well as the left-hand side, and that this handrail has been put in subsequent to the accident, and that the new handrail is at the turn
Upon the motion for a new trial, as appears from the above minutes, decision was reserved. In addition to passing upon this motion to set aside the verdict and for a new trial upon the usual grounds, including excessive verdict, the court has to decide, first, whether the motion to withdraw a juror should have been granted; second, whether the motion for a new trial should now be granted because the motion to withdraw a juror was denied. As to the general grounds urged upon the motion to set aside the verdict and for a new trial, there is no reason why the verdict of the jury should be set aside. If defendant was negligent, and I believe it was, and plaintiff was not negligent (and I think defendant failed to sustain its burden of proving that the contributory negligence of the deceased caused the accident), the verdict and the amount of the verdict were fully warranted by the evidence. The defendant’s negligence and the contributory negligence of the plaintiff were questions of fact, which have been decided by the jury. As to the other grounds urged for setting aside the verdict and granting a new trial, they involve the same question presented on the motion for withdrawal of a juror. It cannot be denied that it was improper for one of the jurors to go to the scene of the accident without permission of the court. But there are improprieties on the part of jurors which do not warrant the setting aside of verdicts. The first thing to consider is whether the impropriety was willful or intentional; second, whether or to what extent the result of the visit was communicated to the jury; and, third, did the juror’s visit influence his own or (and) the other jurors’ vote in reaching their verdict.
In deciding these questions it becomes necessary to examine the evidence before the jury as to the place of the accident and the condition of the place at the time of the accident. It was urged by counsel for defendant that the juror No. 6’s visit to the scene of the accident gave him a visual impression different from that already brought out from the witnesses and the photographs in evidence. The issue of negligence in this case was whether there had been a handrail as required by the Labor Law on the right-hand side of the stairway going up. There had been no negligence claimed, because there was no handrail on the left side of the stairway at the time of the accident. It was conceded by defendants, I believe, that the handrail on the right-hand side was not there at the time of the accident at the part of the stairway where plaintiff claimed the accident occurred. Assuming that the conditions at the spot when the juror visited it had been shown already at the trial, I am at a loss to know what the juror could have seen on his
As the unanimous jury verdict required by our law is an archaic survival that began under conditions that do not now obtain, and utterly out of tune with right logic as to progressive thought, this court will not strain the technicalities to set aside such unanimous verdict unless it is reached through prejudice or passion or unless harm has been done the losing party from the impropriety of a juror’s visit to the scene. Every case in our courts is governed by statute laws which represent the crystalized sentiment of the State, or by court decisions. The laws, if in the form of statutes, may have been reported by legislative committees of each house by a plurality of one vote of a bare quorum of the committee; may have passed both the Senate and the Assembly by the same bare plurality of one of a quorum in each branch, and finally become the law by the signature of the Governor (one man, often not a trained lawyer). If the law of a case is not contained in a statute it may be and frequently is the result of an opinion by a majority of the Courts of Appeals, which in turn may have reversed an opinion of the Appellate Division, where the vote may have been 3 to 2. But under our system, after both branches of the Legislature have passed a statute, or when the law has finally been fixed by a bare majority of a divided court, the verdict of the jury must be unani- ,
After a very exhaustive study of the cases in which jurors have been withdrawn or new trials have been ordered, when similar situations confronted courts, I find that this case is different in many respects from most of the cases on the subject. Nearly every case relied upon by defendant was where an alleged impropriety was not discovered until after verdict, too late for the court to instruct the jury to disregard the effect of it. My study convinces me that the spirit of the best considered decisions is against granting a new trial in this case. In some of these cases the courts held that the refusal of a motion to withdraw a juror was a matter of discretion, and they would not reverse for such refusal. (Burrill v. Phillips, 1 Gall. 360; Fed. Cas. 2200.) Although largely the same question was again presented in the motion for new trial upon the same alleged impropriety, in the case at bar there is this difference between the two motions. The motion to withdraw a juror was made before there was any verdict, and while there was
As defendant is the moving party, seeking to set aside this verdict, I first take up the cases presented by her counsel. Some of the cases are referred to in the memorandum of counsel by quotation, and others are referred to in the opinions they quoted. After I eliminate those cases cited by defendant’s counsel that I think are inapplicable, I will consider the others. The cases of Livermore v. Bainbridge (14 Abb. Pr. [N. S.] 227); Reynolds v. Moore (1 App. Div. 105) and Roosa v. Saugerties & Woodstock Turnpike Road Co. (12 How. Pr. 297), cited by defendant’s counsel, refer to the conduct of referees and do not apply to the present case. The cases of Roberts v. Failis (1 Cow. 238) and Dana v. Tucker (4 Johns. 487) merely hold that quotient verdicts are improper. Sanger v. Merritt (120 N. Y. 109) and Dwinelle v. N. Y. Central (Id. 117) are not directly enough in point to require discussion. The case of Minsky v. Hyman is a memorandum decision, and the facts have not been furnished me. In Wiggins v. Downer (67 How. Pr. 65), cited by defendant’s counsel, the jury was instructed by the court in its charge to pass upon four questions of fact, and that if they decided all of those questions in favor of the plaintiff their verdict should be for him, but that if they decided in favor of the defendant upon-any one of these questions their verdict should be for the defendant. After being out for several hours the jury came into court and stated that they were unable to agree, whereupon they were told by the presiding justice in open court that he did not feel warranted in discharging them until they had given the case further consideration. Upon being asked by one of the jurors to repeat the four propositions which they were to pass upon, the justice outlined them, as he had
In many cases the courts have held that refusal of a motion to withdraw a juror was a matter of discretion, and that they would not reverse for such refusal. In the case of Burrill v. Phillips (1 Gall. 360; Fed. Cas. 2200) the court held that if before a verdict was agreed on one of the jury separated from his fellows by mistake and afterwards rejoined them and a verdict was found, it was in the discretion of the court to allow the verdict to stand. In Chesebrough, etc., v. Conover (140 N. Y. 382) defendant’s counsel, at the opening of the trial, moved for judgment on the complaint. Plaintiff’s counsel, in opposing, stated, among other things, that on a former trial a verdict had been rendered for plaintiff. Defendant’s counsel excepted and asked the court to withdraw a juror, or discharge the jury, so that another jury might be impanelled which had not heard this statement. The motion was denied. In submitting the case the court, at the request of defendant’s counsel, instructed the jury that they had nothing to do with the former trial. Held, that the refusal of the court to grant the motion was not a legal error reviewable here; and that while the remark was improper, the vice was eliminated by the charge. In the opinion, page 388, it is stated: “ The remark was undoubtedly an improper one, but the refusal of the court to grant the defendant’s motion was not a legal error reviewable in this court. The motion was addressed entirely to the discretion of the court which could grant or refuse it, taking into consideration the circumstances surrounding the case.” The contention of the plaintiff, who seeks to sustain this verdict, is that “ not every act of misconduct committed by jurors during the trial makes it necessary for the court to suspend the trial, or in case the trial is completed, justifies the granting of a motion for new trial; if it can be seen that the misconduct was inadvertent, and did not result in harm to the complaining party, the trial may proceed, or the verdict, if one has been rendered, may be permitted to stand.” “ The question as to what course shall be pursued in the event of misconduct on the part of the jurors rests largely on the part of the trial judge and the consideration of all the circumstances. In the case of Buffalo Structural
To summarize: There was no reason to set the verdict aside in this case because no prejudice or passion had been shown on the part of the jury. The impropriety on the part of juror No. 6 was harmless. It was discovered in time to be cured by the court’s direction to the jury to disregard it. There is a presumption that a jury heeds the charge of a court. It was not shown that the juror’s visit influenced him or the other eleven jurors. In fact, the contrary was shown. Affidavits or evidence may not be received to impeach a verdict, but may be received to sustain it. Finally, the setting aside of the verdict was a matter of discretion on the part of the trial court, and being fairly exercised it may not be disturbed unless harm has been done the objecting party. The cases submitted by the defendant do not sustain its position that the jury’s verdict should be set aside, while those of the plaintiff do sustain her contention that it should not be set aside. There is no case submitted by defendant where a verdict has been set aside if the impropriety of a juror’s visit was discovered before verdict, and cured by a proper charge. Motion of defendant' to set aside the verdict and for a new trial is denied.
Note A.
Quebec was one of the first to provide for less than unanimous verdicts. Notwithstanding England’s unanimous verdict rule, it was condemned by the English Common Law Commission of Experts in 1831, and they proposed that juries be not permitted more than twelve hours to consider a case unless they unanimously requested it, and that if nine concurred in a verdict in twelve hours more, it should be taken. Lord Campbell declared for majority verdicts and introduced a bill providing for them. In 1848 the English Parliament enacted a law that in the Bahama Islands a valid verdict may be returned by two-thirds of the jury in civil cases, and in criminal cases other than capital.
In the 4th section of article 4 of the 1857 Constitution of Minnesota, by virtue of an amendment in 1890, it is provided that a law might be passed for five-sixths verdicts in civil cases after not less than six hours’ deliberation. Section 9301 of the Minnesota statutes (Mason’s Minnesota Statutes, 1927) provides for five-sixths verdicts in civil actions after twelve hours’ deliberation.
As early as 1644 Connecticut had a law for two-thirds verdicts of either six or twelve jurors. This law does not appear in the revision of 1673, but in 1855 a law (Chap. 26, § 30) was passed that less than a unanimous verdict might be stipulated for between the parties. (In New York it is frequently stipulated that eleven jurors can proceed to a -unanimous verdict in cases where one juror dies or cannot continue.) The 1930 revision of the General Statutes in Connecticut, section 5656, provides for a verdict by not less than nine if the parties agree in writing before rendition of the verdict that nine-twelfths verdicts may be received.
In 1864 in Nevada, article 1, section 3, of the Constitution provided that the Legislature might provide for three-fourths verdicts in civil cases. But the Legislature has not yet passed such an act.
In 1875 article 2, section 28, of the Constitution of Missouri provided that a law might be passed for less than unanimous verdicts as prescribed by law, in courts not of record, and two-thirds verdicts in civil cases, but in courts of record three-fourths verdicts are required. (See Missouri Revised Statutes of 1929, section 8768, regarding three-fourths verdicts in civil cases in courts of record.)
In 1876 article 5, section 13, of the Constitution of Texas provided for a law authorizing three-fourths verdicts in misdemeanor cases in the District and County Courts, and provided that in civil cases a jury of twelve may be excused down to three-fourths, but that the three-fourths must be unanimous, and each juror must sign his verdict. (See Vernon’s Anno. Texas Statutes, vol. 6, arts. 2191-2204.)
In 1879 article 1, section 7, of the Constitution of California provided for a law permitting three-fourths verdicts in civil cases. And in civil actions and misdemeanors the jury may consist of less than twelve if the parties agree.
In Washington in 1889 article 1, section 21, of the Constitution provided for a law allowing three-fourths verdicts in civil cases.
In section 23 of article 1 of the 1889 Montana Constitution it is provided that except in felony cases a law might be passed permitting less than unanimous verdicts, and that in civil cases and also in misdemeanors there could be two-thirds verdicts. (See Choate Rev. Code, 1921, § 9353.)
Article 3, section 31, of Mississippi’s Constitution of 1890, as amended in 1916, provided that a law might be passed for three-fourths verdicts in Circuit and Chancery Courts. (Code of 1930, § 2067.)
The Kentucky Constitution of 1891, section 248, provided for a law permitting three-fourths verdict in civil cases.
The Utah Constitution of 1895, article 1, section 10, provided for a law authorizing a jury of eight and in civil cases three-fourths verdicts.
In 1895 in Ontario the law was amended to permit ten-twelfths verdicts, and where more than one question was submitted it was not required that the same ten jurors should agree to every answer.
Article 1, section 9, of the Wyoming Constitution of 1889 provides that juries in civil cases may consist of less than twelve in all courts or in criminal cases in courts not of record, as provided by law. Section 1230 of the Wyoming Compiled Statutes of 1920 provides for twelve on the jury. The Laws of 1927, chapter 15, provide for an alternate juror, which the index calls the “ thirteenth juror.”
Article 1, section 7, of the 1889 Constitution of Idaho provided for three-fourths verdicts in civil cases and for five-sixths verdicts in misdemeanors, if the Legislature so provides.
Article 2, section 19, of the 1907 Constitution of Oklahoma provided for three-fourths verdicts in civil cases and misdemeanors.
Article 2, section 23, of the 1910 Constitution of Arizona provided that a law might be enacted for three-fourths verdicts in civil cases in any court of record. Section 3823 of the 1928 Revised Code of Arizona provides for three-fourths verdicts in civil actions where twelve jurors have been impanelled.
The Arkansas Constitution of 1874, as amended, in article 2, section 7, provides that jury trials may be waived in the manner prescribed by law.
The Oregon Code of 1930, section 30-104, provides for jury trial by twelve men in Circuit and six in County and Justices’ Courts. A verdict shall be unanimous, but an inquest is sufficient if two-thirds concur.
The Nebraska Constitution of 1875, article 1, section 6, says the Legislature may authorize verdicts in civil cases by not less than
Wisconsin authorizes five-sixths verdicts in civil cases and misdemeanors. (See Wisconsin Comp. Stat. of 1929, chap. 270, § 25, p. 1997.)
In 1928 the Crime Commission of New York reported against less than unanimous verdicts, but in 1930 its sub-commission on courts said (p. 83): “ While the unanimous verdict of a jury has attached to the jmy system for many years, it had more reason for being when the jury system was created than at the present time. In the olden days a, jury was impanelled from among the neighbors of the litigants. * * * In modern times juries are chosen from a more widely extended territory and because they do not know the parties or attorneys in the case rather than because they do. This change makes the determinations of juries similar to those in the commercial and political world. Majority rule exists in boards of directors and trustees, in the election of public officials, and in the decisions of our courts where more than one judge sits. We earnestly believe in * * * a verdict by five-sixths in civil or criminal cases, except * * * the crime * * * is * * * punishable by death, would be a wholesome and helpful change * * * if the jury system is to be continued.” The Crime Commission in adopting this sub-committee report said: “ We earnestly recommend to the Legislature for its approval an amendment to the Constitution * * * empowering the legislature * * * to provide that verdicts in cases tried by juries may be rendered by * * * by five-sixths * * * in any civil or criminal action except where the crime is * * * punishable by death * * *.” A bill has been introduced in both the Assembly and the Senate to amend the Constitution by permitting five-sixths verdicts in all cases except death cases. Grand juries of twenty-three, which can act when sixteen are present, can indict on twelve votes. If the full grand jury is present eleven may disagree and the indictment- can be voted by a majority of one. (Code Crim. Proc. §§ 224, 268.) A jury of twelve to twenty-four can decide that a man is insane by a vote of twelve to eleven. (Civ. Prac. Act, §§ 1366, 1367.)
The change to less than unanimous verdicts has been advocated by the American Bar Association, New York County Lawyers’ Association, the Bronx Bar Association in committees. The New York County Lawyers’ Association’s sub-committee said: “ Our belief is that in many cases unanimity on the part of the jurors is only apparent * * * and frequently purchased at the sacrifice of truth. * * * gtill further it seems to us that psychological