123 N.Y.S. 706 | N.Y. App. Div. | 1910
Lead Opinion
This action was brought to recover for the damages caused by the death of the plaintiff’s intestate. The complaint alleges that the defendant Eeid and the defendant Pain Manufacturing Company, while in the employ of the defendant Eeid,. its servants, agents and employees, did wrongfully and unlawfully and so carelessly, negligently and recklessly conduct and manage an exhibition and display of fireworks as to explode, fire and set off said fireworks; that by reason of the premises and such carelessness, negligence and recklessness a powerful, dangerous and highly explosive bomb or firework set off struck the deceased while he was seated as, a guest on the piazza of the house of the defendant Eeid and caused his death; and that the death of the said decedent was caused by reason of the premises and by the carelessness, negligence and recklessness of the defendants Eeid and the Pain Manufacturing Company, their agents and servants. The action thus being based upon the alleged contributing negligence of- both defendants, there could be a recovery against both only upon a finding by the jury that each defendant was negligent and that his negligence was the proximate cause of
Upon this charge the case-was submitted' to the jury and a'sealed verdict ordered .on Friday,. Rovember 19, 1909. ' At about half-past five o’clock on that afternoon, the jury not haying returned to court with its verdict, it was announced by an officer of the court that the court had ordered a sealed verdict to be returned on Monday morning,’ Rovember twenty-sécónd, at the opening of the court, and shortly .thereafter the jurors xvere. discharged as not having agreed u'pbn a verdict., On Monday morning, Rovember 22, 1909, counsel for all the parties appeared, in court, the court xvas opened by the justice holding the term, all the jurors who. had been impaneled in this ease being present, and it was announced by the clerk that the jury had disagreed. Shortly afterwards one of the jurors stated -to the counsel for the.defen'dant Reid that.-the jury had in fact agreed to a verdict in favor of the defendant Reid and had disagreed. as to . the liability of the other defendant the Pain Manufacturing Company. Counsel for the defendant Reid thereupon stated to. the court that he understood that the .jury had found.
-There is this- established by the-affidavit of each of the jurors as well as by the other evidence submitted, without the slightest dispute, that the jury had actually agreed,to a verdict in favor of the defendant Beid, and were ready to report such verdict to the court. That the officer in. charge of the jury had discharged the jury from further attendance on- Friday, November nineteenth, with instructions to report again to the court on Monday, November twenty-second, when they all reported, and were present in court ready to render such a verdict as they had agreed upon. The discharge of the jury after the adjournment of court on the evening of November nineteenth was caused by the inadvertence or mistake of the foreman of the jury in communicating to the officer a disagreement when in fact the jury had agreed in favor of the defendant Beid. There is thus presented a question as to the power of the court under the circumstances disclosed, and, if the court had then the power to pall the jury together so that their verdict could be properly received and recorded, whether it was its duty under the circumstances here presented to receive the verdict of the jury, and' if - the court then refused to call the jury together and receive its verdict,, whether, tliéfe is any relief that can be granted upon appeal.
The'case had been fully tried and the jury had agreed upon a verdict. Of that, upon this record, there is no possible question. There was' no suspicion of tampering with the jury or that it is. sought by any -improper means to obtain a verdict Of the jury which was not the result of the free and conscientious exercise of its duty. The casé presented is where after a protracted and carefully conducted trial a jury had found a verdict which it was its duty to report to the court, but which, in1 consequence of mistake, inadvertencé or a lack of familiarity with the duty of jurors, such verdict was not reported, a litigant' is. to be deprived of the benefit of the verdict in his favor.
Trial'by jury as established under the English common law has been regarded for centuries as essential to the- preservation and pro
These cases are cited to show the principle followed by the trial courts before the. adoption of the Code of Procedure and the Code of-' Civil- Procedure in -their supervision over verdicts of- a jury, that there was nothing sacred in the announcement by the jury -of their verdict or. the entry of that verdict in the" minutes of the. court, but in the absence of all proof -of - improper, conduct by the
These being the authorities in the courts of first instance the question as to the power of a court over jurors and their verdicts came before the Court of Appeals in Dalrymple v. Williams (63 N. Y. 361), which was an action for fraud against two defendants. The foreman of the jury announced as their verdict a general verdict in favor of the plaintiff against both defendants and it was so entered. Subsequently the defendant- Williams obtained an order to show cause at a day specified during the same Circuit, based upon the affidavit of all the jurors stating in substance that the verdict as agreed upon by them was in favor of the defendant Williams and against the other defendant for the amount named in the verdict entered and that the announcement of the foreman was made through mistake and inadvertence. The court upon a hearing under this order to show cause directed the minutes to be amended so as to conform to the actual finding. The General Term of the Supreme Court reversed this order correcting the minutes as entered and the defendant Williams appealed to the Court of Appeals which reversed the order of the General Term and affirmed the order of the Special Term amending the minutes. Judge Allen, writing the opinion of the Coiirt of Appeals, said that there was no doubt of the power of the court to grant the relief demanded; that “it would be a reproach upon the administration of justice if a party.could lose the benefit of a trial and a verdict in his favor by the mere mistake of the foreman of the jury in reporting to the court the result of the deliberations of himself and his fellows. The power of a court of record over its records, and to make them truthful, is undoubted, and has been exercised without question.” And cites with approval the
The principle established by these cases applied to the case at bar seems to me to decide the questions presented. The court has power over its record so as to correct mistakes and make.the records state correctly the facts as they existed. It has power where a verdict is returned and entered on a subsequent day to correct the record of the verdict so as to correctly express just what the jury decided, and for that purpose may receive the affidavit of jurors as to the verdict that they intended to render. It has power where a sealed verdict has been rendered "but which when introduced is objected to by some of the jurors who have signed it to send the jurors back to
We think, therefore, the order appealed from should be reversed, with ten dollars costs and disbursements, and the motion granted. ■
Laughlin and Miller, JJ., concurred; McLaughlin and Dowling, JJ., dissented.
Dissenting Opinion
(dissenting):
The facts upon which the application for review is made herein are substantially undisputed - and are as follows: The action is.one
against the defendants Daniel Gr. Reid and the Pain Manufacturing Company, to recover damages for the death of Ralph E. Wirt, deceased, through théir alleged negligence.
The case was. duly reached for trial, and a trial was had. Under the charge of the court, the jury were substantially instructed that they could not hold both the defendants liable for the acts complained of and were informed at length as to the conditions under which the defendant Reid could be held free from liability in the premises. The jury retired about one p. m., Friday, November 19, 1909. At five o’clock in the afternoon, no verdict having been reported, the court gave instructions for the delivery of a sealed verdict, to be returned on the following Monday at ten-fiftéen a. m. In response to questions put-by the clerk, the jury, on four different occasions, had announced to him through the officer that they did not agree and that an agreement was an impossibility. After the court bad directed the delivery of a sealed verdict and on the
Counsel for Beid at once stated in open court what he had been told and all the jurors being present in court, he moved that they be called and assigned to their seats in the jury box and polled. This motion was objected to by the counsel for the other parties and was denied by the court. Thereafter, and at the same term of court, upon affidavits of each of the twelve jurors that , they had agreed upon a verdict,in favor of the defendant Beid, and only disagreed as to the liability of the defendant Pain Manufacturing Company, defendant Beid moved before the justice who presided.at the trial for an order correcting the clerk’s minutes so as to include therein a verdict in favor of the defendant Beid and to authorize judgment to be entered accordingly. It is from the denial of this motion that the present appeal is taken. The question presented herein has never been before the court in this precise form. The power of the court, and its duty in a suitable case, to correct any error or omission in a verdict rendered by a jury is undisputed. In Dalrymple v. Williams (63 N. Y. 361) the foreman of the jury announced a general verdict in favor of the plaintiff against both of the defendants, and it was so entered. On application, made on the same day, to the judge holding Circuit, an order to show cause was granted why the general verdict should not be corrected, based on the affidavits of all the jurors, showing that the verdict was, in effect, agreed upon in favor of one of the defendants as against the other for the amount named in the verdict entered, and that the
So in Hodgkins v. Mead (119 N. Y. 166), where a sealed verdict had been signed and delivered by the jury which, when opened on the following morning, was found to contain a verdict for the plaintiff with no amount specified, the court, upon affidavits of all the jurors to the effect that they had agreed upon a verdict for the plaintiff for the full amount'named, with interest, and had omitted the amount supposing that it would be inserted at the opening of the court on receipt of their verdict, amended the verdict by adding thereto the sum of $848 after the words “we find herein a verdict for the plaintiff.” In that case, however, there was no question that, if the plaintiff was entitled to recover at all, he was entitled to the full amount claimed. In sustaining the action of the trial court the Court of Appeals cited with approval Dalrymple v. Williams and laid stress on the fact that “ the sealed verdict, as actually handed in and signed by the jury, fixed really and beyond peradventure the status of the plaintiff, and from such verdict the fact almost followed as a legal conclusion that the amount as directed by the court was the amount found by the jury.”
There are other cases in which errors have been held to have been properly corrected, but this application presents features not existent in any other to which we have been referred. At the outset we are confronted by the fact that no verdict was ever reported to the court. A verdict at common law was the unanimous decision made by the jury and reported to the court on the matters lawfully submitted to them in the course of the trial of a cause. (Bouvier.) Under section 1186 of the Code of Civil Procedure, verdicts are defined as either general or special. Under none of these definitions is a disagreement a verdict. As a further proposition, it may be deemed as well established that the presence of the court is requisite to constitute a valid verdict. So in Davis v. Township of Delaware (41 N. J. Law [12 Vroom], 55), it was held that “ A verdict is the answer of a jury given to the court concerning the matters of fact committed to their trial.”
In French v. Merrill (27 App. Div. 612) the court said: “ The verdict is a very important act. It is the culmination of the trial and embodies the conclusions of the jury upon the questions of fact liti
From these considerations it follows that when on Friday evening the jury were discharged without having signed a sealed verdict, and having only reported to the clerk a disagreement, a mistrial .occurred.
“ Where a jury is discharged without a verdict, the proceeding is properly, known as a mistrial.” (Fisk v. Henarie, 32 Fed. Rep. 427.) -This is in no way affected by. the decisions holding that -after a jury have rendered a séaled verdict and been discharged, the court may still exercise supervision of them, or the jury themselves can correct their mistake. So it has been held in Rogan. v. Mullins (22 App. Div. 117) that until a jury has been actually discharged they may correct or alter their verdict at their own instance or imder the direction, of the court. -
It has been further held that the separation of the jury, after handing, in a sealed verdict, is not such a discharge as would prevent, the court from sending them out again to supply an omission to assess damages for the detention of chattels. (Seidenbach v. Riley, 6 N. Y. St. Repr. 104; affd., 111 N. Y. 560.)
The judge does not lose his power over the jury by their agreement and discharge upon sealing a verdict, but he still has power to get the correct legal verdict from them. (Hatch, v. Attrell, 1 N. Y. St. Repr, 497; affd., 118 N. Y. 383.) .
It will be noticed that in all these cases a verdict had actually been announced by the jury. If, on the reassembling of court on the;, following ■ Monday morning, upon the- announcement by the clerk of their, disagreement; the jury had protested against the announcement as a mistake and erroneous, and requested the court to-allow them to deliver the conclusion .actually reached as a verdict, another situation would have been presented, not without its, difficulties; although it would still seem that when the discharge on
By the ancient common law jurors were kept together as prisoners of the court until they had agreed upon their verdict. The trials of cases lasted but a single day, and the power of the court to adjourn from day to day, in order that the jurors might have rest and refreshment, was doubted and denied; but with the increase in the number of jury trials, and 'their greater duration, the universal practice has grown up of allowing jurors to separate in the trial of civil cases, as well as of allowing the rendition of sealed verdicts, as a matter of convenience both for the court and jurors. There is nothing about a sealed verdict which distinguishes it from or renders it more sacred than an ordinary verdict. It is subject to thé same corrective agencies as the latter. Every verdict may be shorn of such errors and mistakes- as creep into it in course of communication from the jury to the court. But there is no authority for the conversion of no verdict into a verdict; of a disagreement into an agreement; of a mistrial into a completed trial.
While in this case it may seem that an injustice is being done to the defendant Reid, the embarrassing situation in which he finds himself of being obliged to again resist, a claim which, apparently, a jury once thought he should not be called upon to pay, is due to the act of the jury itself. To authorize the creation by affidavits of a verdict after a mistrial is a proceeding fraught with danger and a step beyond anything yet authorized by law.
The order appealed from should, therefore, be affirmed, with ten dollars costs and disbursements.
McLaughlin, J., concurred.
Dissenting Opinion
(dissenting):
The jurors never rendered a verdict. All they did was, after consultation in their room, to agree to do so, and when the officer
Order reversed, with ten dollars costs and disbursements, and motion granted. Settle order on notice.