For affirmance -- Chief Justice Vanderbilt, and Justices Wachenfeld, Burling, Jacobs and Weintraub. For reversal -- Justices Heher and Oliphant. The opinion of the court was delivered by Jacobs, J. Weintraub, J. (concurring). Mr. Justice Burling has authorized me to state that he concurs in the views expressed herein. Burling and Weintraub, JJ., concurring in result.
This is an appeal from a judgment for the plaintiffs pursuant to a verdict of the jury in an automobile accident case. We certified the matter while it was pending in the Appellate Division.
On January 28, 1954 the plaintiff Theresa Meszaros was a passenger in an automobile being driven in a southerly direction along Route 1 in Middlesex County. The defendant was then the owner and operator of an automobile which, while being driven in a northerly direction, crossed the center safety island and collided with the automobile in which Mrs. Meszaros was a passenger. She was injured and she and her husband thereafter instituted their action in the Superior Court, Law Division, Middlesex County. After trial the jury returned its verdict for $7,000 in favor of Mrs. Meszaros and for $3,000 in favor of her husband. A motion for new trial was denied and thereupon the defendant filed her notice of appeal to the Appellate Division. However, she failed to file her brief and appendix in time and, in response to a motion to dismiss, the Appellate Division directed that she file her brief and appendix by April 2, 1956 and pay costs and a counsel fee. On April 2, 1956 the defendant filed a brief and appendix but the plaintiffs renewed their motion to dismiss on the ground that essential parts of the record had been omitted. The Appellate Division declined to dismiss the appeal but directed that
the appeal be confined to two points, namely (1) whether the court erred when it directed that the trial proceed before a so-called "B-Panel" of jurors, and (2) whether it erred in failing to consider on the defendant's motion for a new trial "the improper injection into evidence by plaintiffs' attorney improper items of injury and damage." The defendant does not now complain about this order of the Appellate Division; and in any event she would not be in any position to raise additional points in view of her representation to the Appellate Division that she had abandoned all points but the two aforementioned.
The first and main contention advanced by the defendant is that she is entitled to a reversal because the "B-Panel" of jurors from which her jury was selected was not drawn in compliance with N.J.S. 2 A:71-8. It is not disputed that the general panel of jurors in the county was drawn strictly in accordance with N.J.S. 2 A:71-1 et seq. Cf. Patterson v. State, 48 N.J.L. 381 (Sup. Ct. 1886). However, pursuant to an oral direction by the late Ralph S. Smalley, assignment judge of the county, the general panel was divided into A and B parts or panels to accommodate courts sitting simultaneously. Such division is expressly provided for by N.J.S. 2 A:71-8 which states, however, that where "the general panel is to be so divided, each separate panel shall be drawn from the box in open court" under the direction of the assignment judge and in his presence or in the presence of a judge designated by him. This procedure was not followed; instead the practice in the county was to have the court officer take the names on the list of each general panel and place them alternately in "A-Panel" and "B-Panel." This practice has already been changed by appropriate administrative direction, and divisions of the general panels are now being constituted in the county in strict accordance with N.J.S. 2 A:71-8 and pursuant to formal orders of the assignment judge.
It seems entirely clear that in the instant matter the defendant suffered no actual harm or prejudice in the departure from N.J.S. 2 A:71-8. The members of the general
panel were fully qualified and properly chosen jurors. The subdivision entailed no discretionary selection but the mechanical placement of the jurors alternately in "A-Panel" and "B-Panel"; and it was not done with any ulterior or improper motive or for this proceeding alone but was done pursuant to a long standing uniform and open practice. Indeed, at oral argument counsel for the defendant acknowledged that he had known of the practice and its irregularity and had participated in many prior cases without mentioning it, but had decided to raise the question in the instant case because of the danger of an adverse verdict in substantial amount. In fact, he waited until after 12 jurors had taken their seats in the jury box (although before any jurors were challenged or sworn) to make an oral motion addressed to the propriety of the manner in which the "B-Panel" was selected. For present purposes we shall assume that the motion was timely (see R.R. 4:48-3), although it would have been much fairer if there had been a written motion (cf. State v. Dedge, 101 N.J.L. 131, 134 (E. & A. 1925)) at an earlier time when the irregularity could have been obviated without any administrative difficulties. See Smith v. Smith, 52 N.J.L. 207, 208 (E. & A. 1889) where the court, in rejecting a challenge to the array, said:
"This case was tried by a struck jury, and at the trial there was a written challenge to the array, because one of the 48 jurymen selected by the judge was dead; another was a fireman, exempt by law; and a third, whose name was on the panel of 24 jurors struck for the trial, was not summoned. The challenge was overruled, and an exception taken. There was no objection to the jury until the trial was called. Had the attention of the court been directed to these particular cases before that time, other names might have been supplied, or any omission of duty on the part of the summoning officer corrected. There is no allegation that there was any design or collusion for the purpose of affecting the trial, or that the defendants were prejudiced, and the statute makes ample provision for the required number of jurymen by an award of tales to call others until the panel is filled for the trial. Patterson v. State, 48 N.J.L. 381, [19 Vroom 381]; King v. Hunt, 4 Barn. & Ald. 430."
It is, of course, vital that juries be selected in a manner wholly free from taint and suspicion and that courts be on the lookout to prevent the "subtle undermining of the jury system." Thiel v. Southern Pacific Co., 328 U.S. 217, 225, 66 S. Ct. 984, 988, 90 L. Ed. 1181, 1187 (1946). To that end the pertinent practice safeguards in the statutes and court rules must be carefully observed and where necessary to insure future observance or to vindicate a fundamental principle courts should not hesitate to reverse even in the absence of harm or prejudice. But in the instant matter there is no taint or suspicion and there is no need to concern ourselves with future observance which has already been assured or the vindication of a fundamental principle which is no longer involved. Indeed, the single question now before us is whether substantial justice requires that there should be a new trial between the parties in this private litigation because of the error in the manner of subdividing the general panel, even though the error did not impair the fairness of the trial or the justness of the verdict and was in no realistic sense harmful or prejudicial to the appellant. See R.R. 1:5-3(b) which now governs all civil appeals and provides as follows:
"Neither error in the admission or the exclusion of evidence, nor error in any ruling or order or in any action taken or omitted by the court, any administrative agency or public official or by any of the parties, nor any other matter, whether or not involving the exercise of discretion, shall constitute ground for granting a new trial or for setting aside a verdict or for vacating, modifying or otherwise disturbing a judgment, order or ...