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Panko v. Flintkote Co.

Decided: April 30, 1951.


On appeal from the Superior Court, Law Division, Essex County.

For reversal -- Chief Justice Vanderbilt and Justices Case, Heher, Oliphant, Burling and Ackerson. For affirmance -- None. The opinion of the court was delivered by Ackerson, J.


[7 NJ Page 57] On July 2, 1948, the Flintkote Company was the owner of a building, referred to as the "Liquid Storage Plant," then in the final stages of construction. The Lummus Company, as general contractor for the owner, had subcontracted the electrical work to Buhl & Caffrey, Inc. On that day the plaintiff, John Panko, an employee of The Nutley Window Cleaning Company, which had been engaged by the owner to clean the windows in the building, fell from a bank or bay of windows to the floor below sustaining severe personal injuries. He claims his fall was caused by electric shock transmitted to him when one strand of a group of three insulated electric wires parted at the point where they were temporarily run over the top edge of a steel window frame

where he was working. He instituted this action in the Superior Court, Law Division, against the owner, general contractor and subcontractor charging that his injuries were due to the negligence of one or more of them in the construction and maintenance of the temporary wiring.

At the close of the plaintiff's case the defendants moved for judgment in their favor and it was granted as to the owner, Flintkote Company and its general contractor, The Lummus Company, but denied as to Buhl & Caffrey, Inc., the subcontractor, and the trial proceeded against that company alone. At its close the last-named defendant again moved for judgment which was likewise denied. The jury returned a verdict in favor of the plaintiff in the amount of $60,000 and, from the judgment entered thereon, Buhl & Caffrey, Inc. appealed to the Appellate Division of the Superior Court, and, while pending there, the appeal was certified here on our own motion.

It is now contended that the trial court erred in denying the last-mentioned motion for judgment for the reason that the evidence failed to show any negligence on the part of Buhl & Caffrey, Inc., and that, in any event, the parting of the wire under the circumstances exhibited was not the proximate cause of the accident complained of.

Our examination of the record leads us to the conclusion that the trial court did not err in denying the aforesaid motion and submitting the issues involved to the jury. However, as the judgment below must be reversed on another ground about to be considered, and the case may be retried, we refrain from discussing the evidence which leads to our conclusion that the motion was properly denied.

The further ground of appeal above referred to concerns the validity of the verdict below because of the misconduct of a juror.

The trial began on Monday, May 29, and ended June 2, 1950, with no session on Decoration Day. On Thursday, June 1, defendant's counsel was informed by its president, Joseph Buhl, that on the evening of May 30 the latter had

received at his home a telephone call from a Mr. Smith, whom he knew, inquiring as to the amount of liability insurance carried by the defendant corporation and that, during the course of the conversation which ensued, Smith was told the company carried $250,000 insurance for one accident. It was later ascertained that Smith is a brother-in-law of one of the jurors on the panel in the instant case. Thereupon counsel gave this information to the trial judge, in the presence of plaintiff's counsel, at the same time stating that he would ask for a mistrial if it appeared there was any contact between the particular juror and Smith at or about the time of the aforementioned telephone conversation. Upon agreement of counsel, the juror was interrogated alone by the trial judge in chambers. The juror denied any knowledge of the telephone call by Smith to Buhl, but said that he, the juror, had talked with his brother-in-law, Smith, over the telephone on Monday, May 29, during the course of which he, the juror, had alluded to the fact that he was sitting in the trial of a case, mentioning the character thereof and the names of the parties thereto as he remembered them, but had gone no further than that. The trial judge then permitted him to return to the panel and informed counsel of the juror's explanation, at the same time indicating the judge's belief therein and that a mistrial was not warranted. Accordingly, no motion for a mistrial was made and no objection was taken by either party to the court's action and the trial was resumed and completed with the result already indicated.

However, shortly after the completion of the case, defendant's president, Buhl, learned for the first time from Smith that on the evening of May 30, Smith and his wife had visited the juror and his wife at the juror's home and it was on that occasion the discussion relative to the instant case had taken place between Smith and the juror, and not on May 29, over the telephone, as the juror had previously told the court. He was further informed that Smith ...

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