On appeal from Superior Court of New Jersey, Law Division, Middlesex County, L-4339-99.
Before Judges Skillman, Coburn and Fisher.
The opinion of the court was delivered by: Coburn, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 21, 2003
In this personal injury action, plaintiff sought benefits under the uninsured motorist provision of an automobile insurance policy issued by defendant Proformance Insurance Company. After liability had been established in arbitration proceedings, the issue of damages was submitted to a jury in the Law Division with an instruction, to which there was no objection, that all eight jurors would deliberate and that agreement by six would be sufficient to return a verdict. By a 6-2 vote, the jury determined that plaintiff was not entitled to a monetary award, and a judgment of no cause for action was entered. Plaintiff appeals, and we affirm.
The only substantial question is whether the judgment should be vacated because the verdict was returned by a 6-2 vote. The first indication on the record of the trial court's decision that eight jurors would deliberate, and that the votes of six of them would be sufficient to decide the case occurred just prior to summation when the trial court gave copies to counsel of the proposed jury verdict form, which included this sentence:"[Note: A vote of at least six jurors is required.]" While the number of deliberating jurors was not stated, it is obvious that counsel understood that the eight jurors who had been chosen at the beginning of the trial would deliberate. During his charge to the jury, the judge expanded on the meaning of the verdict form, repeatedly stressing that six of the eight deliberating jurors could decide each of the submitted issues. Since the record contains no discussion of either issue prior to the verdict and certainly no indication of the parties' consent, the case was submitted to the jury in a manner inconsistent with Rule 1:8-2. After the 6-2 verdict was returned, plaintiff unsuccessfully moved for a new trial based on various grounds, including the violation of Rule 1:8-2. However, since the objection was not timely, plaintiff is not entitled to reversal on this ground unless she can satisfy the plain error rule, R. 2:10-2.
Under Article I, paragraph 9 of the New Jersey Constitution, the Legislature may provide for six-person juries in civil cases and"may provide that in any civil cause a verdict may be rendered by not less than five-sixths of the jury." The Legislature has followed that course. N.J.S.A. 2B:23-1b states that"[j]uries in civil cases shall consist of 6 persons unless the court shall order a jury of 12 persons for good cause shown." And N.J.S.A. 2B:23-17 states that"[i]n any civil trial by jury, at least five-sixths of the jurors shall render the verdict unless the parties stipulate that a smaller majority of jurors may render the verdict."
Relying on Morin v. Becker, 6 N.J. 457 (1951), our dissenting colleague argues that N.J.S.A. 2B:23-17 is unconstitutional to the extent that it permits the parties in a civil action to stipulate to a majority verdict of less than five-sixths. This point was not advanced by appellant; nor was notice given to the Attorney General as is required by R. 2:5-1(h). In any event, we note that in Morin the Court dealt separately with the issue of the constitutionality of the statute which then governed civil jury verdicts, L. 1948, c. 120, § 1, and provided for five-sixths verdicts, and the issue of waiver. As to waiver, the Court said this:
The defendant asserts that we should consider the constitutional questions here raised because the trial court was without power or jurisdiction to enter a judgment issued on other than a unanimous verdict.
This argument is wholly without merit in view of the decision in Margolies v. Goldberg, 101 N.J.L. 75 (E. & A. 1925), wherein it was stated:"The defendant was entirely willing to speculate on the verdicts by ten jurors, and had they been favorable to him he would not be here complaining.
This conduct, of itself, was a valid waiver of the right to trial by a jury of twelve. * * * In fact, the defendant, by not objecting to the course [of action] taken by the trial judge [withdrawing two of the jurors and permitting the trial to proceed before only ten jurors], and in participating in the trial on the merits thereafter, waived his right to a trial by a jury of twelve, and, in effect, consented to a trial by a jury of ten." (Pp. 79, 82.)
This language is especially appropriate here and effectively disposes of the defendant's contention that the court below was without jurisdiction to enter the judgment appealed from. Because the question of the validity of the five-sixths jury statute, however, is of such vital importance to the public, we will proceed to consider the questions raised by the defendant as to its constitutionality.
We are satisfied that the Court's comments on the waiver issue are equally applicable to the instant appeal. As in Morin, defendant by its silence waived the right to argue on appeal that the verdict violated the State Constitution.
Rule 1:8-2 implements the constitutional and statutory provisions described above. In relation to this case, the pertinent subsections are (b)(3), which provides for six jurors unless"more than six jurors remain prior to the commencement of deliberations and the parties then agree on the record that all remaining jurors shall deliberate," and (c)(3), which provides that in that situation"the verdict or finding shall be by agreement of five-sixths of the deliberating jurors, unless the parties have otherwise agreed on the record prior to commencement of deliberations."
In Walder, Sondak, Berkeley & Brogan v. Lipari, 300 N.J. Super. 67 (App. Div.), certif. denied, 151 N.J. 77 (1997), the trial court permitted the jury to decide the case by a 6-2 vote. At that time, Rule 1:8-2(c) provided for a five-sixths vote"unless the parties stipulate that a verdict or finding by a smaller majority of the jurors shall be taken as the verdict or finding of the jury." Plaintiff claimed that the defendants had agreed to accept a 6-2 jury vote in an unrecorded discussion with the trial court, while defendants denied that, contending that their counsel had simply failed to object. We refused to resolve that factual dispute, ...