*1 364 369 v.

YINGER SECORD.

Juay —Coercion. jury in action which arose from collision between

Verdict westbound, left-turning plaintiff’s car and defendant’s east- held, September p.m. in 10 late to have been bound ear at day deliberations, where trial at close of second coerced county judge, he had to be in another who had advised them following p.m. morning, ascertained at 10:55 in his circuit the 3, 2, 9 some 10 later at 10 to that the vote stood at minutes longer required in view of and then to deliberate change tally; repe- at 11:55 returned to courtroom for instructions, presented 12:20 their ver- tition of certain at a.m. special question but on a 10-to-2 dict for defendant vote; spe- ordered answers to reconsider questions, unani- cial minutes later the mously for defendant. (Mark Appeal S.), Branch; Andrews J. January 21, (Calendar 1962. No. 76, Submitted 48,803.) February Docket No. Decided 1963. Yinger against Case Melba Keith for Secord injuries personal suffered in automobile collision. judgment ap- Plaintiff defendant. Verdict peals. Reversed remanded for trial. new (Albert

Dimmers, MacRitchie & W. Dimmers Moes counsel), Clay plaintiff. Brockman, T. Biringer, F. Richard for defendant. References for Points in I-Ieadnotes Jur, Am Trial 950-964. §§ verdict-urging by judge Coercive effect of civil case. ALR2d 1257. v. Secord. Appeal M. is taken J. from an order Otis Smith,

denying motion for a new this automobile accident case. A of verdict returned in favor *2 judgment accordingly. and defendant entered westerly Proceeding in her car on US-112, 2-lane city highway, approximately at the of Coldwater p.m. September plaintiff, on 22, 1958, Melba Yinger, speed her ear to decelerated to make a minimal and private started a left turn into drive. approximately halfway car had When her advanced highway, into the eastbound lane of the a collision by plaintiff between cars occurred driven traveling oppo defendant. Defendant was site direction. Defendant in the

testified that he ob plaintiff’s slowing served car down and assumed stop pass. that its driver would for and wait him to says suddenly He that she turned in front of him and that, Defendant’s he therefore, was unable to avoid the collision.

negligence allegedly driving consisted of speed his car at such reckless and excessive stop he could not within the assured cleared distance ahead.* grounds by urged appellant

Of the several requires reversal, of second discussion. It concerns actions judge night evening in the of the day’s by jury. jury deliberations The p. February retired for deliberations at 2:30 m. on day. 23, 1960, and continued for the balance of that jury morning The resumed deliberations on the day except the next and, for time out for lunch, was jury day. confined to the room the entire At or p.m. day this, about 5:30 ations, the second, of deliber- judge called the of the members jury into the courtroom and them advised that his required county calendar circuit on the him to inbe another in his

following morning. He asked, there- Ann ^[*] See 1957 Cum CLS 1956, Supp § § 257.627, 9.2327).—Reporter. as amended PA 1957, No 190 (Stat quest a verdict

fore, the continue p.m. evening was At 10:55 meal. after summoned to was and the foreman the courtroom possibility there was he felt asked jury replied, He “I doubt at a verdict. could arrive judge was foreman what asked the it.” The present jury the fore- vote. In this connection that was the man was he not to disclose whether

advised plaintiff The or vote favor defendant. judge at vote stood foreman advised response question, indicated to a and, 9 to changed evening meal. twice since it had go then advised “Well report back vote, and take 1 then come back p.m. At 11:05 I will returned to the courtroom. The foreman was what do.” decide

asked replied, He “10 to stood at that time. how vote colloquy 2.” The between the court and *3 as foreman was then you progress in Do that that “The Court: is your you ? have had heretofore

view of deliberations “The Foreman: “The Court: Well know. Well don’t (cid:127) say something is I can there you willing might help perfectly of to that be am it. to do the testi- “The Foreman: Well if we could hear mony help. plaintiff might of and defendant difficulty is “The Court: with that Well testimony improper portion would be of to hear a of the any testimony any witness, to witness, or the of you must of other because witnesses, exclusion testimony consider all of the of of the witnesses determining to fact which have of reporter, if I be decided. Even ask the which should necessity require to time, of would considerable testimony witnesses, there transcribe the of those testimony testimony other

is which bears on their you your a would have recalled to recollection part testimony witnesses, a or witness, testimony all of the witnesses have the and not yonr onr method of Under recollection. recalled to trial testimony jury’s to recall function it is the you give they all the if I to were it, as heard undertaking. quite testimony I am he an it would request handicap, your is such with afraid, this anything granted. -I can else Is there it cannot be helpful you say might the law? be juror you a said or Foreman: Whether “The a to reach honest conviction surrender his should verdict? say said, that. I did not No, “The Court: the con- con- must be occasions, verdict several scientious you juror. If cannot verdict of each scientiously agree a then there is minority that a it is obvious said, however, also —-and minority they ought you say a there is from what to — give as to whether facts serious consideration minority of careful are the result which the holds in view of the evidence conscientious consideration minority they a do constitute fact, inasmuch as by my statement But not be misled view. anything wrong presume with the to minority that there is firmly convinced is view. right right, to continue have that. believe situation, Foreman: That seems be “The Your Honor. you changed Well, 1, at least there ty change. majority 1. has increased has teen supplied.) (Emphasis the time this case Because of expense try, in- and because has taken people right to have this law- have volved—these already upon mentioned, I suit decided—and people expect there no reason retrial qualified than those of more in the box will *4 expect you there is no reason here, who are now it has been will clearer than that the evidence you possibly to a deci- come have case, and can in this considering everything I said thus sion, far, you right litigants decide to ask a you If I can, ends it. want to be entirely you you. discharge cannot sure before tally

In view is 1 than fact different you ago, it was when came minutes I think feiu possibility you there be a and will have to ask go longer. to may back and deliberate a little You (Emphasis supplied.) retire.” p. At 11:55 m. the returned courtroom. point, apparently upon request, At court, this again regarding procedure read the instruction special questions answering be used in which had been submitted. The was then asked to retire and resume deliberations. At 12:20 a. m., the date being February now 25th, the returned to the courtroom to render its verdict. The foreman ad- vised the court that had found for the following colloquy defendant, after which the en- sued: you special “The Clerk: Have answered

questions ? “The Foreman: Yes. you please special “The Will Clerk: read the first question and answer? plaintiff injured “The Foreman: ‘Was result any negligence part?’ yes, on her The answer: 10 2 no. They “The Court: are all same way? “The Foreman: No. question “The Court: The must be answered all way. the same disagreement Ho I understand question as to the answers to No 1?

“The Foreman: Yes. apparently myself not make did plain. respect With must all be answered alike. are not alike constitutes I am quite you today. sure made that statement earlier Do possible, Mr. to come to an Foreman, *5 369 special questions? agreement the answers to the as to Foreman: do. “The “The you may right, then and All retire Court: special questions.” yotir answers reconsider supplied.) (Emphasis the in 10 minutes and about returned an- the had court that advised the foreman questions, in of all favor defend- the 3 swered 12 to 0. ant, this time por- strongly urges foregoing

Appellant the that judge that the trial the record indicate of tions jury’s to It is difficult it must avoid verdict. coerced though that, noted even be this conclusion in unassailable. main, conduct was its reluctance to often indicated This has Court only upset we do so when error verdict, miscarriage to a is so that it amounts justice. that we assume members of First day, jury having mealtime, save at deliberated fatigue experience begun in the eleventh must have hour of day. The circumstances disclose minority in on the were forced members to pressure, atmosphere of in an undue deliberate expense personal possibly own con- at the Merely position, in a out for what one be stub- victions. right, bornly holding considers position as hour to maintain must be difficult judge’s grows next later, need proportion. county by morning large seems loom nearing physical an end, Then endurance must be as may try, majority again, once it is revealed that the grows win the consent of later, the hour even minority. A is returned verdict special problem with the arises. We speculate a mere that this have been asked to certainly possible. This is mistake tabulation. possible the last clear evidence that this It is also per- jury minority as their what the maintained Michigan Reports. '370 appellant guilty sonal-verdicts, is, was not contributory negligence. We cannot sanction this procedure. comparable Peavy case is v. Clemons,

This App (73 756). ascertaining SE After Ga previously vote stood 10 to whereas it *6 had been to the trial “That it is remarked, encouraging. progress making You seem to be glad case, towards conclusion am and yon remanding are.” In the case trial, for new Georgia court cited effects of such a only impress comment. Not it does tend approves that the court the conduct of those jurors join majority, who leave discourages jurors dissenting but it also ing they in hold- really to their conviction as to what is truth as Although view evidence in the jurors instant case, the reminded the they duty by had a to stick convictions, pressure having is up to see how difficult to wind fatigue the case at such late hour when in, set can erase the conclusion that the verdict was coerced.- Under the circumstances are we obliged to order a new trial. Reversed and remanded for a new trial. Costs appellant. J., C.

Carr, Dethmers, Kav- Kelly, Black, JJ., with M. anagh, Souris, concurred Otis Smith, J. (concurring reversal). agree Black, J. with analysis Justice M. of the case and the Otis Smith’s Specifically, reached him. conclusions I would reverse on account instruction as apparently myself did not make plain. respect special questions With to the must all be answered alike. not all are am it constitutes alike today. Do quite earlier I made that statement sure to an possible, come Foreman, Mr. ques- special to the agreement to the answers tions?” Cole patent elucidation, see error. For This Scripps, 214; 52 Mich Boyd, v. 98; Mich Maclean

v. 632; v. Barnes, Mich Detroit Bank Mechanics’ Pere Taylor Tober v. 243; and Davarn, 191 Mich v. Marquette and if When 210Mich 129. Co., R. presented properly is questions for the framed are duly submitted of fact and sues answer, such free answer be.left should according questions view the facts its b,e must- instructed should “disagreement.” penalty of “alike” n conflicting of course result A mistrial judicially exclu- a matter But that is "answers. its has returned after the determination sive general an- in its uninfluenced has handed" verdict, special questions, been dis- has swers to charged *7 duty reported were court results the. The. yet begotten error and unintentional of reversible that account Plaintiff coercion. for retrial. to an order entitled part this case. no in the decision took J., O’Hara,