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Palestroni v. Jacobs

Decided: April 20, 1950.


Waesche, J.s.c.


The jury found for the plaintiff. The defendant seeks to set aside the verdict for misconduct of the jury during its deliberations.

Plaintiff is a building contractor. He sued the defendant in assumpsit for an alleged breach of a written contract for the erection of a two and one-half story, one-family dwelling; and also for the breach of several alleged oral contracts pursuant to which plaintiff made certain changes, alterations, and additions in the construction of the said building which were not provided for in the written contract.

The defendant is one of the owners of the premises. She filed a counterclaim against the plaintiff claiming damages for an alleged failure to complete the building according to the terms of the written contract.

The written contract and the written specifications, which are a part of the contract, were put into evidence with the consent of both parties. The evidence also contains the testimony of several witnesses relating to 37 items for extra work and materials, furnished by the plaintiff, for which he claimed additional compensation; and 16 items of work which the defendant alleged in the counterclaim the plaintiff failed to complete, and for which she claimed damages. In fact, the evidence submitted to the jury covered the construction of nearly every feature and portion of the building from the foundation to the roof.

Sometime after the jury had retired to the jury room to deliberate, one of the jurors asked the attending court officer for a dictionary. The officer reported this request to the trial judge, who directed the officer to obtain a dictionary from the law library and give it to the jury. The officer then got a Funk and Wagnall Comprehensive Standard Dictionary from the law library in the Court House, and delivered it to the jury. On the way to the jury room, he passed the defendant's attorney, in the Court House rotunda, and said to him "I have a dictionary for the jury," or "The jury wants a dictionary," or some remark of similar purport.

A short time later, the jury returned a verdict in favor of the plaintiff for $7,891.79. Immediately following the announcement of the jury's verdict, the defendant moved to set aside the verdict because the jury had the use of a standard English dictionary which was not in evidence. This motion was denied. Upon formal notice, the defendant now moves "to set aside the judgment entered on the jury verdict rendered in the above entitled matter on the ground that the jury had, in the jury room while it was deliberating, a dictionary that was not a part of the evidence offered and received in the case." The notice of motion states that it is made as a supplement to the motion made immediately following the verdict, and in order to comply with Rule 3:59-2 of the Rules of Civil Practice. In determining the motion, I have disregarded my former ruling, and given full consideration to the present motion the same as though it were made now for the first time. In arriving at my decision, I gave two questions my earnest and careful examination.

FIRST: Is it improper for trial jurors to have the use of a recognized standard English dictionary, during their deliberations, in order to determine the common, and popularly accepted meaning of an English word which was used in the evidence, where no unusual, special, or legal significance is attached to the word?

The jury is a constituent part of the court for the administration of justice (Bradley v. Bloomfield , 85 N.J.L. 506; People v. Higgins , 16 N.Y.S. 2d 302; Banks v. Watrous , 134 Conn. 592, 59 A.2d 723; Filbin Corp. v. U.S. , 265 F. 354). The right of "trial by jury," as guaranteed by the Constitution (N.J. Const. 1947, Art. I, par. 9), means a trial by a jury composed of persons of intelligence, of good moral character, and fully competent and desirous to do their duty in the matters submitted to them (Commonwealth v. White , 147 Mass. 76, 16 N.E. 707, 710; Rent-A-Car Co. v. Globe and Rutgers Fire Ins. Co. , 163 Md. 401, 163 A. 702). The statutes of New Jersey provide that a jury must be able

to read and write the English language (R.S. 2:85-1); and the statutes also provide a prudent method for drawing a jury panel of qualified and impartial citizens (R.S. 2:88-1 et seq.). It is the duty of the trial judge to assist in the impaneling of a trial jury which is capable of rendering a fair and just verdict according to the evidence (50 C.J.S. 945, § 208; Miss. Power Co. v. Stribling , 191 Miss. 832, 3 So. 2d 807). And the jurors, who are finally selected to try the case, are severally sworn to "well and truly try the issue between the parties, and a true verdict give according to evidence." A verdict, if rendered by the jury according to its oath, should be the result of judgment and reflection, based on an understanding of the evidence; and it should also represent the jury's full conviction of the truth of that verdict (Kennedy v. Kennedy , 18 N.J.L. 450).

Questions of fact, in common-law actions, are determined by the jury from the evidence in accordance with instructions from the trial judge; and the court shall not assume, directly or indirectly, to take from the jury this prerogative (Kappertz v. McEwan and Son , 106 N.J.L. 484; Uvalde Paving Co. v. Central Union Stock Yards Co. , 84 N.J.L. 297; Slocum v. N.Y.L. Ins. Co. , 228 U.S. 364; 57 L. Ed. 879; Dimick v. Schiedt , 293 U.S. 474, 79 L. Ed. 603; 53 Am. Jur. 141, § 156). In considering and weighing the evidence, or testing its credibility, jurors are expected to rely upon their own common sense, general knowledge, observations, and experience which they possess as ordinary intelligent persons. In the case of Dunlop v. United States , 165 U.S. 486, 41 L. Ed. 799, the court said that the jury's "sound common sense brought to bear upon the consideration of the testimony, and in obedience to the rules laid down by the court, is the most valuable feature of the jury system." And, in the case of Kroger Grocery and ...

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