On appeal from the Law Division of the Superior Court.
For affirmance -- Chief Justice Vanderbilt, and Justices Heher, Oliphant, Wachenfeld, Burling and Ackerson. For reversal -- None. The opinion of the court was delivered by Vanderbilt, C.J.
This appeal from a judgment of the Law Division of the Superior Court in favor of the plaintiffs was taken to the Appellate Division of that court and while pending there was certified here on our own motion.
The facts, so far as here pertinent, may be simply stated. On October 22, 1948, the plaintiffs filed their complaint in a civil action against the defendant alleging that on July 25, 1947, the defendant committed an assault and battery on the plaintiffs resulting in injuries to them. On December 2, 1948, the defendant filed an answer generally denying the allegations of the complaint and by way of counterclaim asserted that an assault and battery had been committed by the plaintiffs
on her with resultant injuries. In its charge to the jury the court said:
"This case, ladies and gentlemen, has been instituted subsequent to September 15, 1948, and, therefore, by virtue of a statute of our Legislature, it is not necessary that your verdict in this case be unanimous, that all twelve agree. It is only necessary that ten of the twelve agree."
The jury thereafter returned a verdict in favor of the plaintiffs in the sum of $7,000, which a polling of the jury revealed was ten for and two opposed. Judgment was accordingly entered for the plaintiffs and against the defendant on March 3, 1950. A subsequent motion by the defendant for a new trial was denied by the court, but with the plaintiffs' written consent the judgment was reduced to $5,000. From the judgment as thus reduced the defendant has taken this appeal.
The defendant contends (1) that the trial court had no power and was not vested with jurisdiction to apply the statute permitting a five-sixths jury verdict; (2) that she has been deprived of her constitutional right of trial by jury as guaranteed by both the State and Federal Constitutions; and (3) that she has been denied her right under the Federal Constitution to the equal protection of the laws. It is admitted by the defendant, however, that none of these questions were presented at the trial and that no objection was made to the charge of the trial court or to the verdict of the jury as entered.
It is a well established principle that our appellate courts will not consider questions not properly presented to the court below when an opportunity to present them was available, although exceptions to this rule are made when the questions raised on appeal go to the jurisdiction of the court below or when they are matters of great public concern. State v. Jones, 4 N.J. 207 (Sup. Ct. 1950); rehearing denied, 4 N.J. 374 (Sup. Ct. 1950); Roberts Electric, Inc., v. Foundations and Excavations, Inc., 5 N.J. 426 (Sup. Ct. 1950); State v. Taylor, 5 N.J. 474 (Sup. Ct. 1950). The defendant asserts that we should consider the constitutional questions here raised because the trial court was without power or jurisdiction
to enter a judgment issued on other than a unanimous verdict. This argument is wholly without merit in view of the decision in Margulies v. Goldberg, 101 N.J.L. 75 (E. & A. 1925), wherein it was stated:
"The defendant was entirely willing to speculate on the verdicts by ten jurors, and had they been favorable to him he would not be here complaining. This conduct, of itself, was a valid waiver of the right to trial by a jury of twelve. * * * In fact, the defendant, by not objecting to the course [of action] taken by the trial judge [withdrawing two of the jurors and permitting the trial to proceed before only ten jurors], and in participating in the trial on the merits thereafter, waived his right to a trial by a jury of twelve, and, in effect, consented to a trial by a jury of ten." (Pp. 79, 82.)
This language is especially appropriate here and effectively disposes of the defendant's contention that the court below was without jurisdiction to enter the judgment appealed from. Because the question of the validity of the five-sixths jury statute, however, is of such vital importance to the public, we will proceed to consider the questions raised by the defendant as to its constitutionality.
The defendant's contention that her rights under the Federal Constitution have been violated by reason of the statute authorizing a five-sixths jury verdict may be disposed of speedily. The United States Supreme Court has consistently held that neither the Seventh nor Fourteenth Amendment to the Federal Constitution is violated by a state law permitting a verdict to be entered other than by a unanimous jury, the several states being free to regulate trials in their own courts in their own way. Thus, in the case of Maxwell v. Dow, 176 U.S. 581, 44 L. Ed. 597 (1900), which was concerned with the validity of a statute authorized by the Utah Constitution and providing that criminal prosecution may be had on information as well as on indictment, that in courts of general jurisdiction, except in capital cases, a jury shall consist of eight jurors and in courts of inferior jurisdiction of four jurors, and that while in criminal cases a verdict must be unanimous in civil cases three-fourths of the jurors may find a verdict, the court said:
"The right to be proceeded against only by indictment, and the right to a trial by twelve jurors, are of the same nature, and are subject to the same judgment, and the people in the several states have the same right to provide by their organic law for the change of both or either. Under this construction of the amendment [Fourteenth] there can be no just fear that the liberties of the citizen will not be carefully protected by the states respectively. It is a case of self-protection, and the people can be trusted to look out and care for themselves. There is no reason to doubt their willingness or their ability to do so, and when providing in their Constitution and legislation for the manner in which civil or criminal actions shall be tried, it is in entire conformity with the character of the Federal government that they should have the right to decide for themselves what shall be the form and character of the procedure in such trials, whether there shall be an indictment or an information only, whether there shall be a jury of twelve or a lesser number, and whether the verdict must be unanimous or not. These are matters which have no relation to the character of the Federal government. As was stated by Mr. Justice Brewer * * * in Brown v. New Jersey, 175 U.S. 172, ante, 119, 20 Sup. Ct. Rep. 77, the state has full control over the procedure in its courts, both in civil and criminal cases, subject only to the qualification that such procedure must not work a denial of fundamental rights or conflict with specific and applicable provisions of the Federal Constitution. The legislation in question is not, in our opinion, open to either of these objections." (176 U.S., p. 605, 44 L. Ed., p. 606.)
Moreover, in Minneapolis & St. L.R. Co. v. Bombolis, 241 U.S. 211, 60 L. Ed. 961 (1916), it was held that the Federal Constitution did not require a unanimous verdict in the state courts even when the rights being enforced accrued under a federal statute. And in Walker v. Sauvinet, 92 U.S. 90, 23 L. Ed. 678 (1876), it was decided that the Federal Constitution was not violated by a state statute which in certain cases dispensed with the necessity of a jury verdict altogether. It may be pointed out in passing that the decision in American Publishing Co. v. Fisher, 166 U.S. 464, 41 L. Ed. 1079 (1897), and the cases decided on its authority to the effect that legislation providing for a verdict by less than a unanimous jury violates the Seventh Amendment to the Federal Constitution are of no concern here, because the statutes there involved were enacted by territorial legislatures and not by sovereign states which are not subject to the Seventh Amendment.
The federal question disposed of, inquiry must next be directed to the question of whether or not the defendant has been denied any rights guaranteed her by the New Jersey Constitution. Article I, ...