Sullivan, Carton and Halpern. The opinion of the court was delivered by Halpern, J.A.D.
Plaintiff, Lloyd Ward, was involved in an accident with a taxi owned by defendant George Weekes, and driven by his employee, defendant, Willie Bell. In Ward's suit against the defendants jury verdicts were rendered and judgments entered against the defendants in the sums of $1,000 for Ward, and $200 for his wife on her per quod claim.
It is uncontradicted that when the jury was polled two jurors stated that they agreed with the verdicts on liability but not on the amount of the damage awards; two different jurors stated they disagreed with the verdicts on liability but agreed on the amount of the damage awards. This resulted in ten-two verdicts for plaintiffs, but the same ten did not agree on the issues of liability and damages.
Plaintiffs moved for a new trial on two grounds. (1) The verdicts were defective in that they were rendered by less than ten jurors; and (2) the verdicts were inadequate being the result of mistake, partiality, prejudice or passion. The court set the verdicts and judgments aside on the basis that at least the same ten jurors must agree on the issues of liability and damages. He granted a new trial as to liability and damages and did not pass upon the inadequacy claim.
The issue confronting us is whether a ten-two jury verdict is valid when at least the same ten do not agree on the issues of liability and damages. This issue has not been decided in New Jersey.
Jury verdicts by five-sixths of the jury are permitted by N.J. Const. (1947), Art. I, par. 9, the applicable portion of which provides that "The Legislature may provide that in any civil cause a verdict may be rendered by not less than five-sixths of the jury * * *." Pursuant to such authorization the Legislature enacted N.J.S.A. 2A:80-2: "In any civil cause wherein a jury of 12 shall be impanelled, a verdict may be rendered by 10 or more of the jury agreeing * * *."
By rule of court the statute was implemented to permit litigants, by stipulation, to try cases with less than 12 jurors and a verdict to be rendered by only a majority. R.R. 4:49-1(a), now R. 1:8-2(a), R.R. 4:49-1(b), now R. 1:8-2(b), imposes an implied stipulation on the litigants that if one or two jurors are excused, the verdict may be rendered by ten or more of the jurors agreeing, unless, at the jury drawing any of the litigants object to such implied stipulation. In addition, R.R. 4:49-2 requires a jury to be polled if its verdict is not unanimous.
There is nothing in the provisions of the cited constitution, statute or rules requiring all issues in a case to be decided by at least the same ten jurors. On the contrary, reference is only made to the term "a verdict." We must assume that the framers of the 1947 Constitution, the Legislature and the Supreme Court realized that "a verdict" is a single final decision of a jury on all the factual issues submitted to it by a court for determination. Andres v. United States , 333 U.S. 740, 68 S. Ct. 880, 92 L. Ed. 1055 (1948). If these bodies intended to have each issue decided by at least the same ten jurors, they would have so provided. The failure to do so indicates they realized that trials consist of many issues and to require at least the same ten jurors to agree on all issues would be impractical and undesirable.
The opposite approach was taken in Wisconsin, a state where the doctrine of comparative negligence is used. The Wisconsin statute makes it mandatory that "If more than one question must be answered to arrive at a verdict on the same cause of action, the same five-sixths of the jurors must agree on all such questions." This statute makes it clear that at least the same ten jurors must agree on all issues before a jury verdict is valid, and their decisions so hold. Christensen v. Petersen , 198 Wis. 222, 222 N.W. 231 (Wis. Sup. Ct. 1928), rehearing den. 198 Wis. 222, 223 N.W. 839 (1929); Hupf v. State Farm Mutual Ins. Co. , 12 Wis. 2 d 176, 107 N.W. 2 d 185 (Sup. Ct. 1961); Strupp v.
Farmers Mutual Automobile Ins. Co. , 14 Wis. 2 d 158, 109 N.W. 2 d 660 (Sup. Ct. 1961).
The court below set aside plaintiffs' verdicts because the two jurors who voted against liability did not have the right to consider the issue of damages. He concluded it would be inconsistent with their finding defendants not guilty of negligence. We disagree with such conclusion because it ...