Routhier v. City of Detroit

• Decision Date: 29 December 1953
• Docket Number: No. 53,53
• Citation: 61 N.W.2d 593,40 A.L.R.2d 1114,338 Mich. 449
• Parties: , 40 A.L.R.2d 1114 ROUTHIER v. CITY OF DETROIT et al.
• Court: Michigan Supreme Court

Page 593

61 N.W.2d 593

338 Mich. 449, 40 A.L.R.2d 1114

ROUTHIER v. CITY OF DETROIT et al.

No. 53.

Supreme Court of Michigan.

Dec. 29, 1953.

W. J. McBrearty, Stephen Riffel, Detroit, for plaintiff and appellant.

James S. Shields, Leo A. Sullivan, Detroit (A. Albert Bonczak, Detroit, of counsel), for defendants and appellees.

Before the Entire Bench.

CARR, Justice.

On the 10th of March, 1951, plaintiff was riding as a passenger on a bus owned and operated by the City of Detroit. Defendant Torando was the driver of said bus which was proceeding in a southerly direction on Cass avenue. According to her claim, plaintiff was standing in the rear of the vehicle and was grasping a vertical steel pole or rod in order to save herself from being suddenly jostled or thrown. She further claimed that in the intersection of Cass and Hancock the driver applied the brakes, bringing the vehicle to such a sudden stop that she was thrown backward, striking a steel bar across the rear door and being thence thrown to the floor. As a result she sustained serious injuries, and brought action to recover damages therefor.

After the introduction of plaintiff's proofs as to how the accident occurred, counsel for defendants moved for a directed verdict on the ground that plaintiff had failed to establish that the injuries sustained by her were the proximate result of negligence on the part of the defendants. Decision on the motion was reserved. Thereupon defendants introduced the testimony of one witness and the cause was submitted to the jury which returned a verdict in the sum of $5,000 for the plaintiff. The following day, as counsel agree, the trial judge recalled the jurors, stating in substance that he had received certain information with reference to the proceedings in the case that made it necessary for him to poll the jury. Such action was taken, and, in answer to the usual question to each juror whether the verdict was his or her verdict, 11 answered affirmatively and 1 answered 'no'. Thereupon the judge stated that the verdict not being a unanimous one it would be necessary to set it aside. The members of the jury were thereupon excused with an admonition from the court not to discuss anything that may have occurred in the jury room. Subsequently counsel for defendants submitted a motion for judgment in their favor, alleging therein the grounds set forth as the basis for the motion for a directed verdict made in the course of the trial. Plaintiff moved to set aside the mistrial declared by the court and for the entry of judgment on the verdict. Plaintiff's motion was denied and defendants' motion was granted. Judgment was entered accordingly, and plaintiff has appealed.

The first question presented is whether the trial court was in error in setting aside the verdict returned by the jury and declaring a mistrial. On behalf of plaintiff it is contended that the court had no authority to take such action, while appellees insist that under the circumstances presented the course followed was a proper one. It will be noted that the situation presented here does not involve an attempt to impeach the verdict of a jury after it has been returned by proof of fraud, mistake, or improper conduct of any kind in arriving at such verdict, but rather a showing that in fact no agreement was reached by the jurors, resulting in the absence of any verdict whatsoever. Where the latter situation obtains the rule has been recognized that affidavits by jurors are competent for the purpose of showing want of assent to the verdict. In 53 Am.Jur., p. 776, it is said 'Only when jurors have agreed to the verdict are they estopped from impeaching it. Consequently, affidavits that they never assented to its are admissible. Thus, where some of the jurors had not in fact agreed to the verdict, but, being persuaded by the majority of their fellows that it was only necessary for a majority to agree, failed to object to it when it was returned, their affidavits are admissible to show that they had never consented to the verdict.'

Similar language appears in an annotation in 12 Am.Dec., pp. 142, 143, in support of which the case of Cochran v. Street, 1 Wash., Va., 79, is cited. In Smith v. Eames, 3 Scam. 76, and Supreme Court of Illinois discussed the matter of the use of the affidavits of jurors in order to impeach the verdict, pointing out the dangers that might result if such affidavits were permitted for the purpose of showing the reasons on the basis of which the conclusion of the jurors was reached. In the course of the discussion it was said:

'There is one class of cases, where the affidavits of jurors may be received to impeach their verdict, and that is, where a part of them swear that they never consented to any verdict: 1 Wash. 79; 3 Burr. 383.'

The conclusion would seem to follow that if what occurred in the instant case might have been shown by affidavits of jurors, the proceeding actually followed was not open to objection. It served the purpose of establishing, by a proceeding in open court, that as a matter of fact no verdict had been reached by the jury. Counsel for appellees direct attention to the case of Hopkinson's Adm'x v. Stocker, 116 Vt. 98, 70 A.2d 587. There the jury returned a verdict in favor of the plaintiffs in the sum of $5,000 and was dismissed by the court. Some days later the presiding judge, having learned that the jury had intended a verdict of $500 instead of $5,000, recalled the jurors and caused them to be polled. In response to the question propounded each juror answered that the verdict was not correct. Thereupon the trial court sent the jurors to their room for further deliberations in the cause. A verdict for $500 was then returned and judgment was entered thereon. The Supreme Court of Vermont recognized that under the general rule observed in that State affidavits of jurors may not be received to show impropriety in the conduct of the jury, or an improper method of arriving at a verdict, in support of a motion to set the verdict aside. In the case before it, however, it was held that the statements of the jurors were not an impeachment of their verdict but were received for the purpose of correcting it. It was further held that, while the proceeding taken was not open to objection, a new trial should have been granted on the setting aside of the erroneous verdict, rather than re-submitting the cause to the jury returning such verdict.

Counsel for appellant cites the case of In re Sorter's Estate, 314 Mich. 488, 22 N.W.2d 767, 164 A.L.R. 985, in support of the general...