For reversal -- Chief Justice Weintraub, and Justices Jacobs, Francis, Proctor, Hall, Schettino and Haneman. For affirmance -- None. The opinion of the court was delivered by Proctor, J. Hall, J., concurring in result.
[37 NJ Page 559] The plaintiffs Ruth Brandimarte and her husband Henry Brandimarte sued the defendants Bruce Green and his father Hugh B. Green for personal injuries sustained by Mrs. Brandimarte when she, while walking, was struck by a bicycle operated by Bruce. The action was tried before a jury in the Ocean County Court. At the close of the plaintiffs' case the action against the father was dismissed. After the three-day trial was concluded, the jury returned a verdict in favor of Bruce. Thereafter the plaintiffs moved for a new trial on the ground that the jurors were influenced by extraneous information. After a hearing at which evidence including the testimony of eleven jurors was presented, the trial court denied plaintiffs' motion. The plaintiffs appealed to the Appellate Division and while the appeal was pending there we certified it on our own motion.
The record reveals that the day after the jury returned its verdict, the court clerk of the judge who presided at the trial, informed the judge of extraneous events which might have influenced the jury in reaching its verdict. The judge directed him to relate this information to plaintiffs' attorney and later gave the attorney permission to interview members of the jury. The attorney proceeded to interview several jurors and others who might have knowledge of the reported events. As a result of his investigation, he moved for a new trial on the grounds that "the verdict of the jury is tainted by reason of the misconduct of an agent or employee of Insurance Carrier of the defendants and for such other reasons as the Court may deem just and proper."
The affidavit of the plaintiffs' attorney together with affidavits and statements taken from those interviewed was submitted with the motion. According to the attorney's affidavit, Mr. Ryan, a representative of the defendant's insurance carrier, had been circulating among members of the general jury panel during the time the action was being tried and making statements to the effect that the defendant was uninsured. The affidavit further stated the members of the general panel and the members of the jury hearing the action mingled during recess periods. A statement taken from one of the jurors contained the following:
"When we went into the small room to decide the case, some of the members discussed insurance and somebody said that there wasn't any insurance protection. As a matter of fact, I heard different jurors say there was no insurance."
After receiving notice of the motion, the defendant's attorney obtained permission from the trial judge to examine the members of both the jury and the general panel; he was also given permission to subpoena the jurors to appear at the hearing on the motion.
At the hearing the defendant moved to strike the statements submitted by the plaintiffs because they were not in
proper affidavit form as required by R.R. 4:44-4. The trial judge granted defendant's motion, but before doing so, stated the question was "moot"; since most of the jurors and some of the general panel members were in court, he said he was going to hear testimony on the subject and not rely upon affidavits and statements. However, during the examination of the jurors, the trial court, upon defendant's objection, refused to permit any juror to testify whether any statements pertaining to the defendant's insurance protection were made during the jury's deliberations. Typical of the questions asked by the plaintiffs and prohibited by the court is the following:
"Now, when you walked in there [jury room], did you hear anything said about the presence or the absence of liability insurance coverage for the Green boy?"
It was established that the defendant was insured and Ryan was an agent of his insurance carrier. It was also established that members of the general panel sat in the courtroom throughout the trial and that at luncheon recesses they mingled with members of the jury hearing the action. There was testimony that Ryan sat in the courtroom among members of the general panel during the last two days of the trial and mingled with them at midmorning and midafternoon recess periods. During these periods he was seen talking with "people," but it is uncertain whether they were members of the general panel. One juror testified that he had heard unidentified persons "whispering" about insurance during a recess period, but these remarks were not shown to have originated with Ryan. This was the only testimony that a juror heard the subject of insurance mentioned prior to the time the jury retired to deliberate. There was no showing Ryan made improper statements when he was in the midst of the general panel. However, the wife of the trial judge's clerk, who was also a court clerk, testified that as she was leaving the court house shortly after the jury had retired to deliberate, she
stopped to talk to two men, one a member of the general panel and the other an excused juror in the pending case. According to her, Ryan approached the three of them and said: "[T]here was no insurance involved in this case and that if they brought in a verdict against the boy, that he would have to pay it off all the rest of his life or, unless, when he reached 21, declare bankruptcy." The member of the general panel corroborated this testimony. The excused juryman could not recall the specifics of Ryan's remarks. Although Ryan admitted having the conversation, he denied making the remark attributed to him by the clerk and said she, and not he, ...