Opinion
No. 99.
December 28, 1945.
Appeal from the District Court of the United States for the Southern District of New York.
Action by Mary Fabris and another against the General Foods Corporation to recover for personal injuries, wherein the jury returned a verdict for defendant. From the judgment and from denial of a motion for new trial, plaintiffs appeal.
Affirmed.
Nathan Baker, of Hoboken, N.J., for appellants.
Reginald V. Spell, of New York City (Olin S. Nye, of New York City, of counsel), for appellee.
Before SWAN, CHASE, and FRANK, Circuit Judges.
This appeal is predicated upon the district court's refusal to set aside the verdict for misconduct of the jurors in arriving at a verdict. The verdict was returned in open court in the presence of all the jurors. No request to poll them was made. Several days later the plaintiffs moved to set aside the verdict and grant a new trial, and in support of the motion submitted an affidavit by eight of the jurors that the verdict was the result of an agreement to abide by a majority vote. Three of the eight also signed an additional affidavit that some of the jurors told them a disagreement was not permissible and for that reason they agreed to abide by a majority vote. The judgment is affirmed on the authority of McDonald v. Pless, 238 U.S. 264, 35 S.Ct. 783, 59 L.Ed. 1300; cf. United States v. Pleva, 2 Cir., 66 F.2d 529, 533.