Summary
declining to exercise superintending power where record described no abuse of discretion by trial court
Summary of this case from State v. JonesOpinion
No. 4736.
Argued March 1, 1960.
Decided March 31, 1960.
1. Promptness in returning a jury verdict does not by itself establish that the jury failed to properly perform its duties or that there was misconduct on the part of the jury.
2. Hence, in a routine motor vehicle tort action where the jury was instructed to first determine the issue of the defendant's negligence, the returning of a verdict for the defendant eight minutes after retiring to the jury room did not as a matter of law establish misconduct on the part of the jury, and the record disclosed no abuse of discretion in the Trial Court's denial of a new trial which implied the finding that the verdict was not in disregard of the jury's duty to consider all the evidence.
3. Whether a remark by a member of the jury at recess during the course of the trial, and overheard by deputy sheriff, indicated bias and whether the entire jury should have been interrogated in respect to their verdict were questions for the Presiding Justice to determine.
ACTION OF CASE, to recover damages for personal injuries to the plaintiff, a pedestrian, who was hit by the defendant's motor vehicle. The plaintiff was walking diagonally across the highway from west to east and had taken one or two steps across the center line of the highway when he saw the defendant's motor vehicle approaching in a northerly direction from the south and heard the defendant blow his horn. The plaintiff then ran back to the westerly side of the highway, and the defendant to avoid the plaintiff also turned to the westerly side of the highway where he struck the plaintiff. The plaintiff testified he looked both ways before starting to cross the highway and saw no motor vehicle approaching. There was evidence that the plaintiff could see a vehicle 500 feet in a southerly direction. Trial by jury following a view, resulted in a verdict for the defendant.
The plaintiff's motions for a new trial and to set aside the verdict on the grounds that the jury failed to deliberate and dispassionately consider the evidence and that a juror was prejudiced was denied by Grimes, J., who reserved and transferred the plaintiff's exceptions thereto. Additional facts appear in the opinion.
Bernard I. Snierson and John P. Chandler (Mr. Chandler orally), for the plaintiff.
Nighswander, Lord Bownes (Mr. Bownes orally), for the defendant.
This is a case of an expeditious jury.
It appears from the notes of the stenographer that the jury retired to the jury room in the afternoon at 3:13 and returned their verdict at 3:21. This period of eight minutes might be described as the portal-to-portal time since some portion of this period was required to go to and from the jury room. There was also testimony of a deputy sheriff that the period of jury deliberation was "slightly over three minutes."
Curiously enough the question whether "the brevity of the jury's deliberations established inadequate consideration of the issues" has received only cursory attention in this state (Colburn v. Normand, 96 N.H. 250, 255) and has been given only summary consideration elsewhere. 9 Blashfield, Cyc. of Automobile Law Practice, s. 5909, note 63; 3 Barton Holtzoff, Federal Practice Procedure 369, 370. In those cases where the period of jury deliberations has been twenty to thirty minutes, motions to set aside the verdict or for new trials have usually been denied on the ground that ordinarily the time consumed by a jury in its deliberations is no criterion of the merits of their determination of the case. Carrara v. Noonan, 69 R.I. 111; Urquhart v. Railroad, 156 N.C. 581; Broxson v. Robinson, 143 Wn. 1; Val Decker Packing Co. v. Treon, 88 Ohio App. 479. In this type of case it has been pointed out that in passing on a motion for a new trial the controlling consideration is the nature of the evidence and not the time that the jury consumes in reaching its verdict. Mahoney v. Smith, 78 R.I. 56; Conner v. Pennsylvania Railroad Co., 163 F. Supp. 718 (E. D. Pa. 1958) aff'd Conner v. Pennsylvania Railroad Co., 263 F.2d 944 (3d Cir. 1959).
In the present case the issues are not complicated even though the jury were given instructions relating to negligence, contributory negligence, last clear chance and action in emergencies. Essentially, the case was routine in nature involving the familiar question whether the defendant's negligence, if any, was causal and if so, whether the plaintiff was barred by contributory negligence. The jury were instructed to first determine the issue of the defendant's liability. A finding for the defendant on this issue would necessarily terminate their deliberations. There is no statute which prescribes the length of time that a jury should deliberate before reaching their verdict and in some states they are permitted to do this without retirement from the jury box. Gulf B. K.C. Ry. Co. v. Harrison, (Tex.Civ.App.) 104 S.W. 399. While a quick verdict may with other circumstances indicate passion or prejudice, promptness alone in returning a verdict is not the basis for a new trial for misconduct of the jury. Fisher v. Leach, (Tex.Civ.App.) 221 S.W.2d 384, 394.
Cases are not uncommon in which the jury deliberation was ten to fifteen minutes and motions for a new trial upon the grounds that the verdict was arrived at by haste and inadequate consideration were denied. Casey v. Williams, 47 Wn.2d 255; O'Connell v. Ford, 58 R.I. 111; Bobst v. Hardisty, 199 Wn. 304; Gaskill v. Cook, (Mo.) 315 S.W.2d 747.
A short period of deliberation by a jury before returning a verdict does not establish the proposition that the jury did not properly perform its duties. This is illustrated by quick verdicts such as Beach v. Commonwealth, (Ky.) 246 S.W.2d 587 where the deliberation was eight minutes and Kitts v. Kitts, (Ky.) 315 S.W.2d 617 where the period of deliberation was four minutes. The short period of deliberation in such cases may indicate only that the members of the jury felt that the evidence was overwhelming in favor of the party receiving the verdict.
The right to a fair trial at the hands of a jury is essential to any system of jurisprudence but the presiding justice of the trial court is in a better position to evaluate compliance with this right than the appellate court which "has to operate in the partial vacuum of the printed record." Frank, Courts on Trial, 23. This is not to say that an appellate court will refuse to use its superintending power to correct errors and abuses in the interest of justice (RSA 490:4) in a particular case (Hopley v. Company, 94 N.H. 171) but the power will be exercised only for good cause shown. Whether the deliberation of this jury was three minutes or eight minutes, this does not establish misconduct on the part of the jury.
The Trial Court's action in denying the motions to set aside the verdict or to grant a new trial indicates that the jury's verdict was not in disregard of their duty to consider all the evidence. Our examination of the record discloses no abuse of discretion in this respect.
The plaintiff also alleges error in the verdict on the basis of an affidavit by a deputy sheriff who overheard one of the jurors say during the course of the trial at a recess, "I wish I were foreman of this jury. I would make short work of it." Whether this statement indicated bias and whether the Trial Court should have interrogated the whole jury in respect to their verdict were questions for the Presiding Justice in which no error is shown in this record. Curtis v. Car Works, 74 N.H. 600; State v. Frazier, 74 N.H. 112; Brody v. Boutin, 95 N.H. 103.
Exceptions overruled.
All concurred.