McNamee v. Woodbury Congregation of Jehovah's Witnesses

• Decision Date: 24 April 1984
• Citation: 193 Conn. 15,475 A.2d 262
• Court: Connecticut Supreme Court
• Parties: Michael McNAMEE v. WOODBURY CONGREGATION OF JEHOVAH'S WITNESSES et al.

Page 262

475 A.2d 262

193 Conn. 15

Michael McNAMEE v. WOODBURY CONGREGATION OF JEHOVAH'S WITNESSES et al.

Supreme Court of Connecticut.

Argued Feb. 8, 1984.

Decided April 24, 1984.

Jeremiah M. Keefe and James E. Kernan, Waterbury, for appellant (named defendant).

Snow Gene Munford, Hartford, for appellee (plaintiff).

Before PETERS, HEALEY, SHEA, GRILLO and BIELUCH, JJ.

GRILLO, Associate Justice.

In this action for personal injuries, a jury returned a verdict for the defendants. ¹ Thereafter, the plaintiff moved to set aside the verdict, alleging that it was contrary to law and against the evidence. The claims asserted in support of the motion were: (1) that the jury erroneously relied on a quotient verdict to apply the court's instructions on comparative negligence; (2) that the court erred in refusing to charge that a traveler upon a highway is entitled to assume that it is reasonably safe for public travel; and (3) that the court erred in refusing to give a charge relative to supervening negligence. ² The second and third claims were based on the plaintiff's requests to charge which the court refused. The first claim was made in argument on the motion to set aside the verdict and was supported by testimony of the jurors.

The trial court, in sustaining the motion to set aside the verdict, concluded: "Having heard the testimony, the court finds that the jurors aggregated the percentages of negligence which each attributed to the plaintiff and averaged the result to arrive at a percentage of negligence to be used in the comparative negligence formula. In addition, it finds that the jurors agreed beforehand that they would accept the average as the percentage of negligence to be attributed to the plaintiff." A new trial was ordered. The named defendant appeals from the decision of the trial court setting aside the verdict. Its appeal attacks the procedure followed by the court--hearing testimony from the jurors--and the court's conclusion that the jury's method of deliberation was illegal. It asserts that the mere fact that the jurors "may have averaged percentages of contributory [sic] negligence" does not establish a quotient verdict. ³ Rather it argues that a quotient verdict is proven when, prior to averaging, jurors agree to be bound by the results of the averaging, and that the actual verdict rendered was a result of their agreement and the averaging process.

A "quotient verdict" is defined as follows: "When members of a jury agree (1) that each juror will specify the figure which he recommends and that all the figures will be added together and the sum divided by the number of jurors, and (2) that all the jurors will be bound by, and accept as their verdict, the quotient thereby obtained; a verdict reached in pursuance of such an agreement is a quotient verdict." Annot., 8 A.L.R.3d 339. As a general rule, quotient verdicts are invalid. The foremost objection is that a verdict is supposed to be based, not upon chance, but upon discussion, deliberation, reasoning and collective judgment. Annot., 8 A.L.R.3d 347; 76 Am.Jur.2d, Trial § 1219; Burke v. Magee, 27 Neb. 156, 42 N.W. 890 (1889); Ledbetter v. State, 17 Ala.App. 417, 85 So. 581 (1920).

"Although a quotient verdict is generally acknowledged to be invalid, there is substantial authority in support of a rule which renders unavailable the most significant--and often the only--source of evidence whereby the use of a quotient verdict might be proved. This rule, based on the principle that jurors cannot impeach their own verdicts, denies the admissibility of jurors' statements--in affidavits or in oral testimony--offered for the purpose of invalidating a verdict on the ground that it is a quotient verdict." Annot., 8 A.L.R.3d 372.

Courts in several states, however, have not only condemned the jury's arrival at a quotient verdict, but also have sanctioned the use of affidavits or allowed jurors to testify for the purpose of showing that a quotient verdict had been rendered. See Darland v. Wade, 48 Iowa 547 (1878); Hukle v. Kimble, 172 Kan. 630, 243 P.2d 225 (1952); East Tennessee & W.N.C.R. Co. v. Winters, 85 Tenn. 240, 1 S.W. 790 (1886). The rationale of these cases, one may infer, is enunciated in Wright v. The Illinois & Mississippi Telegraph Co., 20 Iowa 195 (1866): "[P]ublic policy protects a juror in the legitimate discharge of his duty, and sanctifies the result attained thereby; but if he steps aside from his duty, and does an unlawful act, he is a competent witness to prove such fact, and thereby prevent the sanction of the law from attaching to that which would otherwise be colorably lawful." Id., 212. The Connecticut judiciary very early adopted such a procedure in Warner v. Robinson, 1 Root 194, 195 (1790).

In the Warner case, the court found the facts constituting a quotient verdict by inquiry of the jurors and, concluding that "in trials nothing is to be left to hazard or chance," granted the motion in arrest of verdict. Id. In a later case, the court, speaking through Park, C.J., strongly condemned the quotient verdict: "This mode of arriving at a verdict is reprehensible, to say the least, for it is hardly possible that an honest result could thus be obtained." Haight v. Hoyt, 50 Conn. 583, 585 (1883).

In later years, we deviated from our previous policy of allowing questioning of jurors to determine whether a verdict had been reached by lot, maintaining "that the testimony of a juror cannot be received for the purpose of setting aside a verdict, on the ground of mistake or misconduct, on the part of jurors." Valentine v. Pollak, 95 Conn. 556, 558-59, 111 A. 869 (1920), quoting Haight v. Turner, 21 Conn. 593, 596 (1852). However, in Aillon v. State, 168 Conn. 541, 363 A.2d 49 (1975), we held that the rule of Valentine did not entirely prohibit juror testimony extraneous to the mental operations of the jury, citing with approval the opinion expressed in Wright v. The Illinois & Mississippi Telegraph Co., supra, 210: "[A]ffidavits of jurors may be received for the purpose of avoiding a verdict, to show any matter occurring during the trial or in the jury room, which does not essentially inhere in the verdict itself, as that a juror was improperly approached by a party, his agent, or attorney; that witnesses or others conversed as to the facts or merits of the cause, out of court and in the presence of jurors; that the verdict was determined by aggregation and average or by lot, or game of chance or other artifice or improper manner." Aillon v. State, supra, 168 Conn. 551, 363 A.2d 49; see also Josephson v. Meyers, 180 Conn. 302, 310-11, 429 A.2d 877 (1980).

The court in the present case found that there had been an agreement to average the percentage of the negligence of the plaintiff and that the averaging process was in fact conducted. The trial court had before it sufficient evidence to sustain those findings. However, the third prong of the quotient test must be satisfied in order to invalidate a verdict: that is, that the actual verdict as reported by the jury was solely the result of the agreement and averaging procedure.

A jury verdict cannot be set aside as a quotient verdict unless it is shown that the jury adhered to its agreement to abide by an averaging process and that its verdict was therefore reached as a result of the averaging agreement. Barton v. State, 34 Tex.Cr. 613, 31 S.W. 671 (1895). "A mere showing that the members of the jury agreed to be bound by the results of the quotient process will not warrant the setting aside of a verdict as a quotient verdict if the jurors' agreement has actually not been carried out." Annot., 8 A.L.R.3d 353. Thus, even after arriving at the average in accordance with an agreement, where the jury discussed the matter of adding the funeral expenses, that amounted to an amendment to the average by the jury. This procedure (adding to the average sum, as well as deducting therefrom) was held to present positive deliberation and consideration of the verdict and "took it out from under the objection as being a 'quotient' verdict." Gylling v. Hinds, 122 Colo. 345, 351, 222 P.2d 413 (1950).

Our review of the memorandum of decision of the trial court indicates that no finding relative to the existence of the third requirement of a quotient verdict was made. In closing, the memorandum states: "In this case, we know that the case was decided on comparative negligence because the jury sent out a note stating they had found contributory negligence in excess of 50% (Court's Exhibit 2)." This observation in itself cannot be construed unequivocally to constitute a finding that the verdict rendered corresponded to that required by the third element of proof so as to render invalid a verdict reached by the averaging process. Therefore, the case must be remanded to the trial court for an appropriate articulation of the issue.

In addition to his claim with regard to the alleged quotient verdict, the plaintiff in his motion to set aside the verdict alleged error in the failure of the trial court to charge on supervening negligence. This supplemental issue was not addressed by the trial court. It has, however, been pursued in this court by briefs and argument. We, therefore, entertain the question since the court may properly set aside a verdict when it has, in its charge, made a harmful error. Libero v. Lumbermens Mutual Casualty Co., 143 Conn. 269, 273, 121 A.2d 622 (1956).

The defendant denies that the plaintiff was entitled to a charge on supervening negligence and maintains that supervening negligence and last clear chance are equivalent legal doctrines. Hence, since the statute establishing comparative negligence abolished the doctrine of last clear chance, ⁴ supervening negligence cannot be charged by the court. We agree.

In Correnti v. Catino, 115 Conn. 213, 215, 160 A. 892 (1932), the principal error claimed was the "failure of the trial court upon the request of the...