Conford, Foley and Mintz. The opinion of the court was delivered by Foley, J.A.D.
In this negligence case the jury returned a verdict of no cause of action by a vote of ten jurors to one. The twelfth juror had been excused by consent during the trial. Appeal is taken from the denial of plaintiff's motion for a new trial.
It appears that after the jury was dismissed the plaintiff's attorney learned that in the course of the deliberations one or more of the jurors had informed a bailiff in whose charge they were, that they desired additional instructions from the trial judge; further, that this request was not communicated to the judge by the bailiff. Thereupon, plaintiff moved for a new trial alleging inter alia this irregularity. The motion was supported by the affidavit of Elizabeth S. DePutron, one of the jurors. She deposed that approximately three hours after the jury had retired one of the jurors requested a bailiff to inform the court that the jury wished further instructions and that, in response to this request, the jury was told by the officer in charge that "they had to bring in a verdict one way or another."
On the return of the motion the court properly considered the affidavit of the juror, see State v. Kociolek , 20 N.J. 92, 105
(1955), and received the testimony of Matthew Malone and John Kiely, two of the bailiffs who had been in charge of the jury. Officer Malone testified that "after about two hours * * * [t]here was a knock on the door, and one of the jurors * * * requested some further information," and he (Malone) "informed them that they should write on a piece of paper what information they desired" and that he "would see that the Court got it." He said that he did not hear from the jury again; that a written request was not given to him, and that he did not at any time advise the judge of the jury's oral request. Officer Kiely testified generally to the same effect. Neither officer appears to have been examined directly concerning the juror's version of what occurred as above set forth. It is noted that the court made no specific finding with reference to the cleavage between the versions of the bailiffs and that of the juror as to precisely what was said. Since plainly the court would have been required to grant the motion had it found that the jury had been subjected to the coercion described by the juror, we conclude that the court found the juror to have been mistaken in that regard.
A truncated recital of the reasons given by the court for its denial of the motion appears in the appendix as follows:
"The Court: I believe from the evidence before me that if either the jury or a member of the jury desired to have some further instruction, the failure to write it out indicates an abandonment of the desire for such instructions."
Preliminarily, the ambit containing the judicial functions, at both the trial and appellate levels, in circumstances such as are here presented should be surveyed. Generally speaking, the granting or denial of a motion for new trial rests in the sound discretion of the trial court and is not reviewable unless it clearly appears that the action taken constituted an abuse of discretion or, as expressed in recent cases, that it represented a manifest denial of justice. Fisch v. Manger , 24 N.J. 66, 80 (1957); Hartpence v. Grouleff ,
15 N.J. 545, 549 (1954). See also R.R. 1:5-3. So, too, is the trial judge considered the final arbiter of disputes arising from conflicts in testimony given on the motion for new trial, just as in a non-jury trial his findings with respect to the credibility of witnesses are ordinarily regarded as conclusive. Thus, if the result reached here by the trial judge had hinged on the resolution of the factual dispute as to what the bailiff said to the jury, we would regard the court's implied acceptance of the bailiffs' version as a finality. However, as we shall point out, the area in which the court's discretion operated embraced not only factual findings but the legal effect of the same as well. It is well settled that discretion means legal discretion, in the exercise of which the trial judge must take account of the law applicable to the particular circumstances of the case and be governed accordingly. Implicit is conscientious judgment directed by law and reason and looking to a just result. Sokol v. Liebstein , 9 N.J. 93, 99 (1952), Rossetti v. Public Service Coord. Transport , 53 N.J. Super. 293, 298 (App. Div. 1958). Consequently, if the trial judge misconceives the applicable law, or misapplies it to the factual complex, in total effect the exercise of the legal discretion lacks a foundation and becomes an arbitrary act, however conscientious may have been the judge in the performance of it. When this occurs it is the duty of the reviewing court to adjudicate the controversy in the light of the applicable law in order that a manifest denial of justice be avoided.
We think that the trial judge fell short of fully appreciating the deep implications of the uncontroverted facts, and of their impact upon legislative and judicial procedures designed to promote justice in a trial by jury. Two things are clear. The bailiff in response to the jury's request for instructions by the court, without authorization to do so, directed the jury to reduce to writing "what information they desired"; and perhaps more important, the ...