McGeehan, Jayne and Wm. J. Brennan, Jr. The opinion of the court was delivered by William J. Brennan, Jr., J.A.D.
Defendant appeals from a judgment entered in the Bergen County Court upon a jury verdict in plaintiff's favor for a balance due and extras under a building contract. Defendant sought and was denied a new trial for alleged error of the trial judge who, without prior notice to defendant or her counsel, supplied the jurors with a dictionary at their request while they were deliberating.
The irregularity of the privy communication of the judge with the jury must be deprecated in the strongest terms. State v. Auld , 2 N.J. 426 (1949). Such communication borders perilously close in every case on an infringement upon the litigant's basic right to due process and in particular circumstances may in fact invade that right. Leonard's of Plainfield, Inc., v. Dybas , 130 N.J.L. 135 (Sup. Ct. 1943).
Moreover, the trial of a law suit is public business usually to be conducted openly for all to see. This principle inheres in Rule A9 of the General Rules of Administration enjoining judges so far as possible to conduct all judicial business involving conferences with members of the bar or
litigants in open court. The principle applies with greater force to the relations of a judge with the jury; it is difficult to conceive any circumstances justifying his communication with the jury on matters pertinent to the issues to be decided by it, except in open court and, where practicable, in the presence of counsel if they choose to attend. The principle has had forceful expression elsewhere; for example, over a century and a quarter ago the highest court of Massachusetts set aside a verdict for privy communication of the judge with the jury and said: "It is not sufficient to say this power (of the judge to control the trial) is in hands highly responsible for the exercise of it; the only sure way to prevent all jealousies and suspicion, is to consider the judge as having no control whatever over the case, except in open court in the presence of the parties and their counsel." Sargent v. Roberts et al. , 18 Mass. 337 (Sup. Jud. Ct. 1823).
The trial court's error had unfortunate consequences. The jurors consulted the dictionary and in the circumstances of this case this vitiated their verdict. The dictionary was consulted to ascertain the definition of the word "wainscot" which appeared (mis-spelled "wainscote") in the specifications in evidence. The specifications required plaintiff to " wainscote wall of kitchen lavatory and bathroom on 1st and 2nd floor entire height including ceiling around shower with 4-1/4x4-1/4" cushion edge tile," and also to "have a good scratch coat of cement plaster" "behind all tile wainscotes."
The jurors' depositions taken by plaintiff in opposition to the motion disclosed there was an uncertainty in the minds of some jurors as to the meaning of the word. The juror who suggested getting a dictionary to clarify the doubt read aloud to the other jurors from the dictionary. This record does not show precisely what he read; the testimony is merely it was a definition of "wainscot."
Plaintiff's main case dealt largely with claims for 37 items of extra work and materials; defendant's counterclaim covered 16 items of work which she charged plaintiff failed to complete. So far as appears in the record before us,
the specification in question was not specially dealt with in the evidence, nor was the specification or the word "wainscot" mentioned in the judge's charge. It is obvious, however, the specification was considered by the jury in arriving at its verdict. It follows a definition of "wainscot" was capable of influencing the jury in its consideration of the specification. However small the part played by the specification in the entire verdict, the whole of the verdict is infected by the taint of illegal and extraneous evidence having the capacity to influence the determination. The rule is well settled that, except it appears the improper matter got before the jury by deception of a party (in which event the verdict should be set aside on other grounds of policy, even if the matter is immaterial, Jessup v. Eldridge , 1 N.J.L. 401 (Sup. Ct. 1795)), the test whether a new trial will be granted is whether the extraneous matter could have a tendency to influence the jury in arriving at its verdict in a manner inconsistent with the legal proofs and the court's charge. If the extraneous matter has that tendency on the face of it, a new trial should be granted without further inquiry as to its actual effect. The stringency of the rule is not mere formalism; the rule is "imperatively required to secure verdicts based on proofs taken openly at the trial free from all danger of extraneous influences," Lamphear v. MacLean , 176 App. Div. 473, 162 N.Y.S. 432 (1916). On elementary principles the jury's verdict must be obedient to the court's charge and be based solely on legal evidence properly before the jury. McLeod v. Humeston & S. Ry. Co. , 71 Iowa 138, 32 N.W. 246 (Sup. Ct. Iowa 1887); Guntzer v. Healy , 176 App. Div. 543, 163 N.Y.S. 513 (1917).
We do not know the context of the definition which was read and therefore cannot compare the definition with the specification to test its applicability. This points up the vice of the occurrence. Cf. Daniels v. Barker , 89 N.H. 416, 200 A. 410 (Sup. Ct. N.H. 1938), where a new trial was granted when a jury consulted a dictionary ...