Klein v. Eichen

• Citation: 310 N.Y.S.2d 611,63 Misc.2d 590
• Court: United States State Supreme Court (New York)
• Decision Date: 18 May 1970
• Parties: Rhoda KLEIN, Richard Klein and Richard Klein, as Guardian ad Litem of Jonathan Klein and Susan Klein, infants under the age of 14 years, Plaintiffs, v. William EICHEN, Defendant.

Page 611

310 N.Y.S.2d 611

63 Misc.2d 590

Rhoda KLEIN, Richard Klein and Richard Klein, as Guardian ad

Litem of Jonathan Klein and Susan Klein, infants under the age of 14 years, Plaintiffs, v. William EICHEN, Defendant.

Supreme Court, Trial Term, Bronx County, Part III.

May 18, 1970.

Aaron J. Broder, New York City, for plaintiffs.

Flood & Purvin, New York City (Leo Eckman, New York City, of counsel), for defendant.

WILLIAM KAPELMAN, Justice.

Defendant moves to set aside the jury's verdict in favor of the infant plaintiff Jonathan Klein for personal injuries in the sum of $40,000, as contrary to the law and the evidence, excessiveness, and further, that such verdict is a compromise verdict.

The infant was injured in a two car collision while a passenger in his father's automobile. The infant recovered against the driver of the other car, but verdicts by a 10 to 2 vote were returned by the jury both against the infant's mother as the driver of the car in which the Klein family was riding, in her action for personal injuries and against the father, the owner of the car, present at the accident as owner-passenger, in his actions for personal injuries, loss of his wife's and the infant's services, and for property damage to his car. By their verdict against the infant's parents in their various causes of action against the driver of the other vehicle and in favor of the infant, the jury has clearly indicated their decision as to both operators' negligence. This was fully consistent with the evidence that the jury might find for the infant under the facts as adduced, being mindful of the court's charge as to the 2 1/2 year old infant being non sui juris and free from contributory negligence as a matter of law (Leonard v. Home Owners' Loan Corp., 270 App.Div. 363, 60 N.Y.S.2d 78, affd. 297 N.Y. 103, 75 N.E.2d 261; see also Reilly v. Shapmar Realty Corp., 179 Misc. 614, 39 N.Y.S.2d 782, rev. 267 App.Div. 198, 45 N.Y.S.2d 356). The negligence of the parents having been determined by the jury, it could not be imputed to the infant (General Obligations Law, § 3--111; Van v. Clayburn, 21 A.D.2d 144, 249 N.Y.S.2d 310; De Marco v. City of Albany, 17 A.D.2d 250, 234 N.Y.S.2d 94). The verdict as rendered is not, therefore, inconsistent nor contrary to law.

As to whether the verdict was excessive, we note that the infant suffered a fractured skull, a cerebral concussion, and post-concussion syndromes as a permanent injury. Based upon the testimony of the parents and the neurosurgeon as to the injury sustained, its course, its present condition, and prognosis, the court finds that the verdict was not excessive. We shall now proceed to consider the other contentions that the verdict was compromised.

It has long been established that a verdict which is arrived at by compromise and is unsupported by the evidence will not be permitted to stand. However, unless it is clear that under no rational process could the jury have arrived at the amount of damages they found, their verdict should not be overturned for the reason that they reached a compromise on the extent of damages (Witkin v. City of N.Y., 3 A.D.2d 720(21), 159 N.Y.S.2d 497; Kelekian v. Feinberg, Sup., 118 N.Y.S.2d 641). As in every case, the deliberations of the jurors are secret and are considered sacrosanct in our form of jurisprudence. Ordinarily, they cannot be shown by juror's testimony nor can the jury room be invaded to prove that the verdict was indeed a compromise.

The defendant here seeks to prove the compromise nature of the verdict from the writings on a yellow legal cap pad which was returned with the trial exhibits furnished to the jury to the courtroom at the termination of the jury's deliberations. In addition, defendant contends that the fact that the jury had at one point stated that it was deadlocked on the issue of damages only, and after receiving certain additional instructions from the court returned a verdict within 15 minutes, proves that the verdict was arrived at without true deliberation but by improper compromise.

A verdict should not be set aside because it is a result of a compromise upon the question of damages only, where damages are not liquidated nor the subject of mathematical calculation (Hamilton v. Owego Water Works, 22 A.D. 573, 48 N.Y.S. 106, aff. 163 N.Y. 562, 57 N.E. 1111).

As was noted, the verdicts rendered in this case are neither irreconcilably inconsistent nor is the amount so disproportionate on all the evidence as to warrant a finding that the same was compromised on the question of liability.

We now get to the crux of the matter, whether or not the verdict rendered in favor of the infant plaintiff Jonathan Klein in the sum of $40,000 was, as defendant contends, a 'quotient verdict'. The sole proof as to this contention was the 'yellow legal cap pad' found as above described. On this pad there were written the numbers 1 through 12 with a dollar amount alongside each number; the total of the figures was set forth as $460,000. The writing further had the total amount $460,000 divided by 12. The quotient was written as $40,000, a figure which though not the precise quotient is close to such sum.

The law is well settled that quotient verdicts are invalid, improper, illegal and must be set aside (Harvey v. Rickett, 15 Johns 87; see also North Tex Producers Assoc. v. Jenkins, Tex.Civ.App., 342 S.W.2d 192, 195; see also Honigsberg v. New York City Transit Authority, 43 Misc.2d 1, 249 N.Y.S.2d 296; see also Haarberg v. Schneider, 174 Neb. 334, 117 N.W.2d 796). This is so even if the amount of the verdict is not exactly, but only approximately, the same as the amount of the quotient obtained by the jury (Carter v. Marshall Oil Co., 185 Iowa 416, 170 N.W. 798; see also Welker v. Union Cent. L. Ins. Co., 5 Ohio Supp. 294, 6 Ohio Ops. 439).

Quotient verdicts have been considered objectionable on the ground that they are reached through a process of chance or gambling and not founded upon discussion, deliberation, reasoning and collective judgment in which each juror has an opportunity for individual participation; this because the jurors who render a quotient verdict agree, without knowing in advance what the quotient will be, to be bound by it and to foreclose the opportunity for further discussion and for comparison and evaluation of individual juror's positions.

Thus to show that a quotient verdict has been rendered, one of the essential elements to be established is that the jurors, through an antecedent agreement whether express or tacit, had bound themselves...