Spielter v. North German Lloyd Steamship Co.

232 A.D. 104, 249 N.Y.S. 358, 1931 N.Y. App. Div. LEXIS 13743

Opinions

Merrell, J.

Plaintiff moved, at the Trial Term at which the action was tried and on the day following the rendition of the verdict, to vacate and set aside said verdict upon three grounds:

“ First. One, Milton K. Herzog, juror number 12, when examined as to his qualifications prior to being sworn in as such juror, failed to disclose the fact that he had been an investigator and adjuster of claims for upwards of twenty years.

“ Second. The conduct and threats employed by said juror, Milton K. Herzog, after the jury had retired to consider the verdict, rendered impossible a careful consideration of the evidence, and resulted in the verdict for the defendant contrary to the honest convictions of a number of the jurors.

“ Third. Prior to the opening of the sealed verdict herein, its acceptance by the Court, and its being read into the record, one of the jurors, in behalf of himself and in behalf of several other jurors, unsuccessfully sought to call the attention of the Court that the said verdict did not express their conscientious views, and that they desired to change the said verdict. The said verdict as accepted and read into the record was, therefore, not the unanimous verdict of the entire jury.”

In support of the first two grounds upon which plaintiff moved to vacate and set aside the verdict, plaintiff furnished the affidavit of her attorney and trial counsel, showing how juror No. 12, who had for twenty years been engaged as an investigator and claim adjuster and, concealing such previous employment, had been accepted as a juror by plaintiff, and an affidavit of one Maurice Bierman, who served as juror No. 5 at the trial. In the last-mentioned affidavit, Juror Bierman stated that the jury originally had stood eight for the plaintiff aud four for the defendant, and further stated: “ Juror number 12 was a large heavy set man whose name, as I am informed, is Milton K. Herzog. Immediately upon the taking of the said vote, said juror number 12 stated to the other jurors ‘ We may as well understand right here and now that there has got to be a verdict for the defendant here.’ Some of the jurors including myself remonstrated with him, and attempted to point out to him wherein the evidence in this case showed that the defendant had been negligent in failing to have guarded against the accident which resulted in the serious injuries to the plaintiff, but said Herzog stated: ‘ Nothing that you can say can help. We have got to find a verdict for the defendant. I have been an investigator and adjuster for shipping companies for over twenty years, and I know all about these cases. You may as well make up your minds to find a verdict for the defendant. If necessary, we will sit here for three days and three nights until you do so.’

“ The other members of the jury tried to discuss the evidence and reach a verdict in accordance therewith. Calm and deliberate discussion was rendered impossible by the belligerent talk and attitude of said juror Herzog. He continued to insist that there was no use discussing the case because it would do no good, and that we would have to bring in a verdict for the defendant. I then told the foreman that under the circumstances no purpose would be served by continuing the session, and asked that he send word to Judge Gavegan as to the situation. This the foreman refused to do. We remained in the jury room altogether about two hours. During that time, several votes were taken, and the jurors who had voted for the plaintiff, gradually yielded to the domineering and bull-dozing methods of said juror Herzog. I was the last to finally consent to a verdict for the defendant. A sealed verdict having been ordered, all of the jurors signed their names to the form presented to us, and we then left the jury room.”

In support of plaintiff’s motion there was also furnished the joint affidavit of four others, David Piesman, Julius Lesser, Benjamin Stein and David Cohn, all of whom had served as members of said jury, and in which affidavit the affiants confirmed and corroborated the affidavit of Juror Bierman as to the coercive conduct and methods adopted by Juror Herzog during the deliberations of the jury.

In our opinion ample grounds existed for vacating the verdict upon either of the first two grounds upon which plaintiff moved. The subterfuge and concealment of circumstances clearly disqualifying the juror from an impartial consideration of the issues, and the strong-arm methods which the juror adopted to coerce his fellow-jurymen to agree to his preconceived determination to secure a verdict for the defendant corporation regardless of the evidence, would seem to have amply justified vacating a verdict thus obtained. The court, however, granted plaintiff’s motion solely upon the third ground, namely, that prior to the opening of the sealed verdict herein, its acceptance by the court, and its being read into the record, one of the jurors, in behalf of himself and in behalf of several other jurors, unsuccessfully sought to call to the attention of the court that the said verdict did not express their conscientious views and that they desired to change said verdict; that the verdict as accepted and read into the record was, therefore, not the unanimous verdict of the entire jury.

Plaintiff, a concert pianist, was homeward bound on one of defendant’s steamships after completion of a two and one-half years’ course of study in France. Plaintiff sustained injuries by being precipitated down a flight of stairs, as she alleges, because of the negligence of the defendant steamship company. The action was tried before the court and a jury on December 8, 9 and 10, 1930. After the jury had retired, the court ordered a sealed verdict. On the morning of December 11, 1930, the sealed verdict was opened and read. The verdict was in favor of defendant and was entered in the minutes of the court. On the morning of December 11, 1930, after court had convened, but before the sealed verdict was either opened or read into the record, five of the twelve jurors who had served at the trial reconsidered their views as expressed in said sealed verdict and appointed one of their number, Juror Maurice Bierman, to inform the justice presiding at the trial of their wish to recall their finding in favor of defendant. At that time the trial justice was upon the bench and engaged in disposing of the calendar of the court and in allotting the trial of various actions to different parts of the trial court. Juror Bierman, in his affidavit in support of plaintiff’s motion to vacate the verdict, stated: “I could not interrupt him [the trial justice] and, indeed, did not think it proper for me to approach him directly.” The juror thereupon spoke to one of the court officers and expressed his desire to speak to the justice. The court officer made known to the justice the juror’s desire, and returning told Juror Bierman that the judge would speak to him shortly. Before doing so, however, the jurors were .reassembled in their respective seats in the jury box, the sealed envelope containing the verdict was opened, and the verdict read into the record. The attorney for plaintiff made the usual motion to set aside the verdict and for a new trial, which motion was denied. The affidavit of Juror Bierman as to what then transpired was as follows: “ Immediately thereafter, he [the trial justice] summoned me to the bench, and told me that he understood that I wanted to speak to him. I told him I did not want the verdict for the defendant to stand; that I was convinced the verdict was wrong, and wanted to change it, and that that was the reason I wanted to speak to. him. He told me that the jury-had already been dismissed, and then proceeded to take up other business of the Court.”

The affidavit of the attorney for plaintiff shows that on the afternoon of the same day, Juror Bierman, having been dismissed for the day as a juror, immediately went to the office of plaintiff’s attorney and laid the foregoing facts before him. His visitation to the office of plaintiff’s attorney was entirely voluntary, and thereby the attorney received the first information which he had had of the desire of the said five jurors to change their verdict, and of their unsuccessful efforts to inform the court of such desire. The attorney for plaintiff at once called at the justice’s chambers, accompanied by Juror Bierman. Owing to other engagements it was not until the following morning that plaintiff’s attorney called at Trial Term, Part II, where the justice was presiding. At that time plaintiff’s attorney was accompanied by all five dissenting jurors. They all desired to speak to the trial justice, and protest against the verdict that had been entered. He, however, deemed it inadvisable to speak to the jurors in the absence of counsel for defendant. Besides Juror Bierman the four dissenting jurors joined in an affidavit in support of the motion of the plaintiff to vacate the verdict rendered. In said joint affidavit the jurors state: “ We feel strongly that a serious wrong has been done to the plaintiff in this action in the verdict as it now stands. The said verdict at the time of its acceptance by the Court did not represent our convictions in the case.

“ When we spoke to Mr. Bierman prior to the opening by the Clerk of the sealed verdict, we told him that we wanted our verdict changed, and said M>. Bierman represented us as well as himself in his efforts to call the attention of Mr. Justice Gavegan to the change that he wanted to make, and which justice demanded.

“ We do not know the plaintiff, her attorney or any of the witnesses who appeared in her behalf. We are prompted in our desire to have the verdict set aside by the fact that at no time, either before or after its being read in open court, did said verdict represent our true and honest judgment of the merits of this case.

“ We feel that said verdict is a miscarriage of justice; that a serious wrong has been done to the plaintiff, and that it is our duty to join in this application to have the said verdict set aside.”

In support of plaintiff’s motion to vacate the verdict, the affidavit of James A. White, the court officer who transmitted to the court the application of Juror Bierman for an interview made prior to the opening of the sealed verdict, was presented. In this affidavit the court officer states that the action was on trial on December 8, 9 and 10, 1930, and that on the afternoon of December tenth the case was submitted by the court to the jury for determination; that the following morning, December 11, 1930, at about ten-thirty o’clock, and prior to the opening of the said sealed verdict, juror No. 5 in the above-entitled case approached deponent White twice in the court room and told the court officer that the said juror wished to speak to the judge. The court officer states further that he approached the justice, who was then sitting on the bench, and informed him that said juror No. 5 wished to speak to him, whereupon the justice told deponent that he would hear the juror after the verdict was in; that the sealed verdict was thereafter opened and read into the record and a motion to set aside the verdict was made, and the jurors dismissed; that Immediately thereafter the court summoned juror No. 5 to the bench, and that affiant saw the judge and said juror conversing together.

In granting the motion of plaintiff, the court rendered the following short opinion: “ The juror who sought the attention of the court, before the verdict was recorded or even opened, was acting for himself and other jurors in order that it might be brought out that the sealed verdict did not express their views. I am satisfied that, in the haste and confusion of the calendar, I unwittingly proceeded in a way which resulted in there being recorded a verdict which at that time did not, by far represent the unanimous conclusion of the twelve triers of fact. Otherwise either counsel or the court would have caused them to be polled and would have immediately discovered the true situation. Accordingly, in view of what happened at the time and on reading the papers which have been filed, the court on its own motion and to correct a wrong for which perhaps the court was unintentionally responsible, will set aside the verdict. An application made at Special Term in this county would be referred to me, so that the point of practice raised is of no moment. Settle order.”

It seems to me, under the circumstances of this case, that the action of the justice presiding at the trial in vacating the verdict was justified. In this case the court directed a sealed verdict, but until said verdict was actually recorded and the jurors discharged, any of the jurors had the right to withdraw bis consent to a verdict. A so-called sealed verdict is no more than the agreement reached by the jurors. It does not become final until it is read into the record and the jurors discharged. I know of no distinction between a sealed verdict and an oral verdict. Prior to the discharge of the jury it was the prerogative of any juror to change his mind and to challenge the verdict about to be rendered.

In Wirt v. Reid (138 App. Div. 760) it was said in a dissenting opinion by Dowling, J.: “ There is nothing about a sealed verdict which distinguishes it from or renders it more sacred than an ordinary verdict. It is subject to the 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.”

In Root v. Sherwood (6 Johns. 69) the rights of jurors with reference to a verdict are clearly stated as follows: “ The jury, when they came to the bar to deliver in their verdict, had a right to dissent from the verdict to which they had previously agreed. There is no verdict of any force but a public verdict, given openly in court ; until it was received and recorded it was no verdict, and the jury had a right to alter it as they may a private verdict. The previous agreement, that the jury might seal up their verdict, did not take away from the parties the right to a public verdict, duly delivered.”

To the same effect is the decision in the case of Duerr v. Consolidated Gas Co. (104 App. Div. 465) wherein it is stated: “ Although the jury had agreed upon and prepared a sealed verdict, and this verdict had been announced and entered in the minutes of the clerk, it was neither final nor conclusive if it failed to express the true conclusion at which they had arrived. It cannot be doubted that before they severed their relation as jurors to the case, their power over the verdict remained, to the extent, at least, that they had the right to alter it so that it should conform to their real intention and purpose. (Warner v. N. Y. C. R. R. Co., 52 N. Y. 437.)

In our opinion there can be no question as to the right of any juror serving at the trial, notwithstanding the fact that such juror had agreed to the form of the sealed verdict prior to said verdict being actually recorded, to change his mind and to announce the same to the court. The verdict in this case, as recorded, was not the unanimous verdict of the jury. It did not correspond to the intention of the twelve jurors at the time the verdict was rendered. In International Madison Bank & Trust Co. v. Silverman (138 Misc. 690) an erroneous verdict in defendant’s favor had been entered. Learning of such error, the court, after the jurors had been discharged, reassembled them and ascertained that they intended a contrary verdict. The court, in discussing the power of the trial justice to make the necessary correction, stated (at p. 691): “ The question now under consideration is whether the verdict of no cause of action in favor of the defendant should stand as the verdict of the jury. It is undoubtedly the law that after a jury has been discharged it can no longer function as a jury (Porret v. City of New York, 252 N. Y. 208), but there is ample authority to hold that if a jury has returned a verdict and has been discharged and later it appears that such verdict is an erroneous expression of the jury’s viewpoint on the issues, then the court, on proper proof that such verdict is an erroneous one, may direct that there be entered on the minutes of the court, and put into effect, the verdict which the jury really found. (Dalrymple v. Williams, 63 N. Y. 361; Rippley v. Frazer, 69 Misc. 415; affd., 149 App. Div. 399; Wirt v. Reid, 138 id. 760, and cases therein cited and collated.)

“ The following quotation from Wirt v. Reid (supra), ‘ 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,’ shows that in case of error on the part of the jury in the expression of its verdict, the court has a right and is under the duty to prevent injustice by estabhshing in the records of the court the true verdict of the jury.”

Unfortunately, plaintiff did not ask to have the jury polled. Had she done so, undoubtedly five of the jurors would have stated that the sealed verdict was not in accordance with their convictions. There can be no question that had any juror, upon being polled, or without being polled, announced to the court that the sealed verdict did not reflect his views, the court would have directed a mistrial of the action, and the verdict would never have, been recorded that was not concurred in by the twelve jurors. The five dissenting jurors made every effort prior to the rendition of the verdict to advise the court that they did not concur in the verdict about to be announced. It is difficult to see what more could have been done by the dissenting jurors than was attempted by Juror Bierman, to whom the four other dissenting jurors had delegated the duty of apprising the court of their dissatisfaction with the verdict in favor of defendant. It does not seem to us that the rule that a juror may not impeach his verdict should apply in the case at bar. As a matter of fact, as shown by the affidavits, five of the jurors were not in accord with the verdict as rendered. It was never their verdict. Had Juror Bierman been able to inform the justice presiding at the trial, prior to the rendition of the verdict, that five of the jurors did not agree with the verdict about to be rendered, there is no question that the justice, the jury having been allowed to separate, would have directed a mistrial of the action. The affidavits show that this is no afterthought on the part of the jurors or the result of their being approached by plaintiff or any one in her behalf. The jurors’ affidavits clearly show that the verdict rendered did not reflect their views, and the affidavit of the court officer, showing the futile attempt of the five jurors to prevent the rendition of the verdict to which they had agreed, it seems to us, clearly distinguishes this case from those wherein it has been held that jurors, after the rendition of* a verdict, may not be heard to impeach the verdict to which they had agreed. In this case five of the jurors, at the time the verdict was announced, were not in agreement therewith. We think this order was right, and that justice will be promoted by a retrial of the issues.

The order appealed from should be affirmed, with ten dollars costs and disbursements.

Finch, P. J., and McAvoy, J., concur; Martin and Sherman, JJ., dissent.