On appeal from the Hudson County Circuit Court.
For the appellant, Frank Romano (Nathan Baker, of counsel).
For the respondents, McCarter & English (Gerald McLaughlin and Richard J. Congleton, of counsel).
The opinion of the court was delivered by
PERSKIE, J. The primary question involved in this appeal, concerns the right of either party (here the plaintiff), in a civil cause, to poll the jury upon the return of its verdict.
The facts are not in dispute. They are stated, in the comprehensive and well considered memorandum of the learned trial judge, as follows:
"* * * Frank Romano was the attorney of record in the above entitled cause as well as a case that was immediately tried thereafter. Mr. Romano, although attorney of record in both cases, did not act as trial attorney in the Francillo case but delegated that duty to Nathan Baker. Mr. Romano did act as trial attorney in the case tried immediately after the Francillo case. The jury retired to deliberate in the Francillo case, and while they were thus deliberating the trial in the case following was finished and the jury in that case retired to consider their verdict. On leaving the bench at the end of the day the trial judge authorized and directed the clerk to take the verdicts in both cases. The jury in the Francillo case was the first to return with a verdict and the clerk addressed the jury, 'gentlemen of the jury, have you agreed upon your verdict?' and they replied they had. The clerk then said, 'what say you, Mr. Foreman?' who replied, 'we find a verdict, no cause of action.' The clerk thereupon read back the verdict to the jury by saying, 'gentlemen of the jury, you say you find a verdict of no cause of action, and so say you all?' Mr. Romano, in the absence of the trial attorney, Nathan Baker, requested the clerk to poll the jury. The clerk ignored the request and he stated in his deposition that he thought Mr. Romano had mistaken the jury in the Francillo case for the jury in the case which Mr. Romano acted as trial attorney and which jury was at the time deliberating. The request to poll was made to the clerk when the foreman announced the verdict and before the clerk read the verdict back to the jury. * * *"
There is no statute law on the subject, except in criminal cases where there is a provision concerning the right to poll the jury. 2 Comp. Stat. 1709-1910; Criminal Procedure act, p. 1844, § 74A. Nor has this court heretofore decided the question.
In Levine v. Goldstein (Supreme Court, 1927), 5 N.J. Mis. R. 841; 138 A. 511, there was nothing to show
that a request to poll the jury was made, and it was, therefore, held that the refusal of the clerk to poll the jury was free from error.
In Silak v. Hudson and Manhattan Railroad Co., 114 N.J.L. 428; 176 A. 674; affirmed, 115 N.J.L. 504; 181 A. 68 (1935), it was "assumed that the party in a civil suit is entitled to have the jury polled on the return of the verdict," and on that assumption it was held "that when each juror was asked do you find in favor of Mrs. Silak in the sum of five hundred dollars and against the Hudson Manhattan Railroad Company?" to which each juror in turn answered, "yes," it was "not out of line with the practice and, further, that no harm came to the defendant."
The decisions of the courts of our sister states disclose that there is no uniformity of procedure on the practice of polling the jury. It will serve no useful purpose to collate them. Suffice it to mark the fact that there are those which hold that either party has an absolute right to have the jury polled on the rendering of their verdict whether sealed or oral at any time before it is recorded, unless the right has been expressly waived; while there are others which hold that it is not a matter of right but one which rests in the sound discretion of ...