On appeals from the District Court of the Essex County Judicial District.
For the appellant, Duggan, Shaw & Hughes (Robert Shaw, of counsel).
For the respondents, Joseph P. Dallanegra (Thornton C. Land, of counsel).
Before Justices Bodine, Heher and Wachenfeld.
The opinion of the court was delivered by
HEHER, J. The point at issue here is whether a jury verdict in a civil case received by the clerk of the court in the absence
of the judge, in accordance with a direction given under R.S. 2:27-236, may be set aside for non-compliance with a demand for an examination of the jury by the poll, interposed by one of the parties immediately upon the announcement of the verdict by the jury's foreman.
A verdict for defendant was vacated for failure to comply with plaintiffs' demand for a jury poll; and on the retrial there was a verdict and judgment for each plaintiff. The appeals are from these judgments. The actions were brought to recover damages for injuries to person and property arising out of an intersection collision between two automobiles; and they were tried as one. Defendant counter-claimed for personal injuries and property damage; and on the first trial the parties stipulated that if defendant was found entitled to recover on his counter-claim, his damages amounted to $425. The verdict was treated by the judge as a finding for defendant on the counter-claim in that sum.
The object of polling the jury is to determine whether the right of the parties to the concurrence of the jurors in the announced verdict has been satisfied, and, by the same token, to afford the individual jurors an opportunity for withdrawing assent that is unreal as induced by coercion, and to declare in open court their judgment in praesenti. Humphries v. District of Columbia, 174 U.S. 190; 19 S. Ct. 637; 43 L. Ed. 944. There are conflicting views as to the nature of the right. One line of cases holds that a party has a peremptory, absolute right to have the jury polled on the rendition of the verdict, whether sealed or oral, unless the right has been expressly waived; and there are cases declaring that a jury poll is not a matter of right, but rests in the discretion of the court. The cases pro and con are collected in Abbott's Civil Jury Trials (5th ed.), § 397. It would seem that at common law there is no absolute right to poll the jury. 2 Hale's P.C. 299; State v. Hoyt, 47 Conn. 518, 533. In the last cited case, it was held that "there can be no propriety in having the jury polled" under a practice such as exists in New Jersey, for it affords "a more convenient way" of obtaining the opinion of each individual juror. Under that practice, the jury authorizes the foreman to speak for them; and,
after the foreman makes answer for the jury, the jury are again distinctly asked to hearken to their verdict, which is read back to them, the clerk adding "So say you all." Silence gives individual affirmance. Fellow's Case, 5 Greenl. 333; Ropps v. Barker, 4 Pick. 238; Ryan v. People, 50 Col. 99; 114 Pac. Rep. 306.
Such seems to be the rationale of the statute cited supra. It is provided that in civil cases the court "may direct that the jury's verdict be taken by the clerk, in open court in the absence of the judge, and may order that the court remain open for that purpose." R.S. 2:27-236. Presumably, the legislature was of the view that the formula sanctioned by immemorial usage for making the verdict known in open court in essence served the purpose of the jury poll. That seems to be the ratio decidendi of the decision of our court of last resort in Francillo v. Latour, 116 N.J.L. 423. The contrary hypothesis would afford the means of ...