Liggett & Myers Tobacco Co. v. Imbraguglia

• Decision Date: 26 September 1947
• Docket Number: Civil Action No. 2976.
• Citation: 73 F. Supp. 909
• Parties: LIGGETT & MYERS TOBACCO CO., Inc., v. IMBRAGUGLIA et al.
• Court: U.S. District Court — District of Maryland

73 F. Supp. 909

LIGGETT & MYERS TOBACCO CO., Inc., v. IMBRAGUGLIA et al.

Civil Action No. 2976.

District Court, D. Maryland.

September 26, 1947.

Emanuel Gorfine and Joseph G. Finnerty, both of Baltimore, Md., for plaintiff.

Robert E. Coughlan, T. Barton Harrington, Edwin J. Wolf, J. Edgar Harvey and G. C. A. Anderson, all of Baltimore, Md., for defendants.

WILLIAM C. COLEMAN, District Judge.

This suit is now before the Court on motions for a new trial by the four defendants, following verdict by a jury and judgment against them, jointly and severally, in favor of the plaintiff for the sum claimed, namely, $22,728.87, with interest.

The action was originally instituted by the plaintiff, Liggett & Myers Tobacco Company, Inc., a New Jersey corporation, for the benefit of Atlas Assurance Company, Ltd., a British company, against the four individual defendants, all citizens of Maryland, for the purpose of obtaining for the Atlas Company reimbursement of the payment which it had made in accordance with the terms of its policy of insurance, to the Tobacco Company, for the loss of a shipment of cigarettes, the property of the Tobacco Company, while in transit from Richmond, Virginia, to consignees in Baltimore.

Prior to the institution of the present suit, in which the jurisdictional requirements as to diversity of citizenship and amount involved are satisfied, two of the defendants, Grove and Imbraguglia, had been convicted in the Criminal Court of Baltimore City of having feloniously participated in receiving and secreting the cigarettes, knowing them to have been stolen. As part of their sentence, they were directed to, and did make restitution to the Atlas Company in the sum of $8100, thereby reducing the loss sustained by it to $22,728.87, for which the present action is brought by the Tobacco Company on behalf of the Atlas Company, claiming that all four of the present defendants, knowing the shipment of cigarettes to have been stolen, and with intent to deprive the Tobacco Company of the shipment, conspired together to acquire and secrete, and did acquire and secrete the cigarettes and later dispose of them in such manner that they were never recovered.

In defendants' motions for a new trial, four grounds, identical with respect to each defendant, are asserted as follows: (1) There was no substantial evidence to sustain the verdict; (2) the verdict was excessive; (3) the Court failed to grant defendants' motions for a directed verdict; and (4) there were errors in the instructions of the Court, particularly with regard to the requisite proof for establishing conspiracy to convert the cigarettes. With respect to only two of the defendants, Tamburo and Grove, the additional ground was asserted that the jurors were guilty of misconduct, in that they summoned and remained closeted with a deputy clerk of the trial court during their deliberations.

After hearing argument, this Court was promptly and completely satisfied that there was no merit in any of the four grounds first above mentioned. As respects the remaining ground, because of its unusual character and because it directly touches the integrity of jury trial procedure in this Court, the hearing was extended, and the Court on its own initiative, took the testimony of the foreman of the jury that had sat in the case, and also of the deputy clerk, the conduct of both of whom, two of the defendants alleged had been irregular as above set forth. This testimony was taken over the objection of counsel for two of the defendants.

As just stated, this contention of irregularity in the juryroom is a serious one. As presented, it raises two questions: first, whether this Court erred in taking the testimony of the foreman of the jury for the purpose of ascertaining if any irregularity did, in fact, occur; and second, if it did occur, whether it was of such a nature as to require, in the interest of proper, impartial administration of justice, that the verdict be set aside and a new trial be granted.

As respects the first question, namely, whether this Court erred in taking the testimony of the foreman of the jury for the purpose of ascertaining the actual facts, so that this Court might be in the best possible position to determine whether there was any sound basis for granting a new trial, we are satisfied that the taking of this testimony was entrirely proper.

The principle is well settled that, generally speaking, testimony of jurors will not be received either to impeach or to support their verdict; that is, to disclose matters which essentially inhere in the verdict itself and are not capable of contradiction or corroboration. However, this principle has the very important qualification that juror's testimony may be received if it relates to extraneous influences brought to bear upon jurors. That is, they may show by their testimony what the extraneous influence was, and whether it was in fact, or was of a nature calculated to be, prejudicial. United States v. Reid, 12 How. 361, 13 L.Ed. 1023; Mattox v. United States, 146 U.S. 140, 13 S.Ct. 50, 36 L.Ed. 917; Hyde v. United States, 225 U.S. 347, 32 S.Ct. 793, 56 L.Ed. 1114, Ann. Cas.1914A, 614; McDonald v. Pless, 238 U.S. 264, 35 S.Ct. 783, 59 L.Ed. 1300; Clark v. United States, 289 U.S. 1, 53 S.Ct. 465, 77 L.Ed. 993; Bateman v. Donovan, 9 Cir., 131 F.2d 759; Wheaton v. United States, 8 Cir., 133 F.2d 522; United States v. Compagna, 2 Cir., 146 F.2d 524; Charlton v. Kelly, 9 Cir., 156 F. 433, 13 Ann.Cas. 518; Jorgensen v. York Ice & Machinery Corp., 2 Cir., 160 F.2d 432.

In McDonald v. Pless, supra, a leading authority on the question now before us, the defendant had moved to set aside a verdict obtained against him by plaintiffs, attorneys at law, for legal services, on the ground that the jury, at the suggestion of its foreman, rendered a so-called "quotient" verdict, that is, the aggregrate of the amounts each individual juror thought the plaintiffs should be awarded was divided by twelve, and the resultant quotient was returned as the amount of their verdict.

The motion for a new trial further alleged that the jurors had refused to file an affidavit, but stated that they were willing to testify to the foregoing facts alleged in the motion, provided the Court deemed it proper for them to do so. At the hearing on the motion, one of the jurors was sworn as a witness, but the trial court refused to allow him to testify on the ground that he was incompetent to impeach his own verdict.

This ruling was affirmed by both the Court of Appeals for this, the Fourth Circuit (206 F. 263), and the Supreme Court. The latter's opinion, by Mr. Justice Lamar, contains the following, after an explanation that the Conformity Act, 28 U. S.C.A. § 724, does not apply to the power of a federal court to inquire into the conduct of jurors, and we quote at some length because, although the alleged irregularity involved in that case was entirely different, since it was inherent in the verdict itself, the Supreme Court's opinion succinctly states the general rule and the exception to it, which we believe applies in the present case:

"If the facts were as stated in the affidavit, the jury adopted an arbitrary and unjust method in arriving at their verdict, and the defendant ought to have had relief, if the facts could have been proved by witnesses who were competent to testify in a proceeding to set aside the verdict. But let it once be established that verdicts solemnly made and publicly returned into court can be attacked and set aside on the testimony of those who took part in their publication and all verdicts could be, and many would be, followed by an inquiry in the hope of discovering something which might invalidate the finding. Jurors would be harassed and beset by the defeated party in an effort to secure from them evidence of facts which might establish misconduct sufficient to set aside a verdict. If evidence thus secured could be thus used, the result would be to make what was intended to be a private deliberation, the constant subject of public investigation; to the destruction of all frankness and freedom of discussion and conference.

"The rule on the subject has varied. Prior to 1785 a juror's testimony in such cases was sometimes received, though always with great caution. In that year Lord Mansfield, in Vaise v. Delaval, I.T.R. 11, refused to receive the affidavit of jurors to prove that their verdict had been made by lot. That ruling soon came to be almost universally followed in England and in this country. Subsequently, by statute in some states, and by decisions in a few others, the juror's affidavit as to an overt act of misconduct, which was capable of being controverted by other jurors, was made admissible. And, of course, the argument in favor of receiving such evidence is not only very strong, but unanswerable— when looked at solely from the standpoint of the private party who has been wronged by such misconduct. The argument, however, has not been sufficiently convincing to induce legislatures generally to repeal or to modify the rule. For, while it may often exclude the only possible evidence of misconduct, a change in the rule `would open the door to the most pernicious arts and tampering with jurors.' The practice would be replete with dangerous consequences.' `It would lead to the grossest fraud and abuse' and `no verdict would be safe.' Cluggage v. Swan, 4 Bin. Pa., 150, 155, 5 Am.Dec. 400; Straker v. Graham, 4 Mees. & W. 721: * * *

"There are only three instances in which the subject has been before this court. In United States v. Reid, 12 How. 361, 366, 13 L.Ed. 1023, 1025, the question, though raised, was not decided because not necessary for the determination of the case. In Mattox v. United States, 146 U.S. 140, 148, 13 S.Ct. 50, 36 L.Ed. 917, 920, such evidence was received to show that newspaper comments on a pending capital case had been read by the jurors. Both of those...