Patterson v. Rossignol

• Decision Date: 26 September 1968
• Citation: 245 A.2d 852
• Parties: John W. PATTERSON v. Raoul ROSSIGNOL and Theresa Rossignol.
• Court: Maine Supreme Court

Page 852

245 A.2d 852

John W. PATTERSON v. Raoul ROSSIGNOL and Theresa Rossignol.

Supreme Judicial Court of Maine.

Sept. 26, 1968.

Julian G. Hubbard, Portland, Woodman, Thompson, Willard & Hewes, by Richard D. Hewes, Portland, for plaintiff.

Lawrence P. Mahoney, Portland, for defendants.

Before WILLIAMSON, C. J., and TAPLEY, MARDEN, DUFRESNE and WEATHERBEE, JJ.

DUFRESNE, Justice.

On appeal by the pliantiff after jury verdict for the defendants.

DENIAL OF MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT.

Rule 50(b) M.R.C.P. provides as follows:

'Whenever a motion for a directed verdict made at the close of all the evidence is denied or for any reason is not granted, the court is deemed to have submitted the action to the jury subject to a later determination of the legal questions raised by the motion. Within 10 days after the reception of a verdict, a party who has moved for a directed verdict may move to have the verdict and any judgment entered thereon set aside and to have judgment entered in accordance with his motion for a directed verdict * * *.' (Emphasis supplied).

The record reveals that the plaintiff made no motion for a directed verdict at the close of all the evidence as the rule requires. Under such circumstances there was no reservation by the trial court of the legal questions raised by such a motion.

The underlying philosophy of Rule 50(b) necessitates, as an indispensable component of this relatively new procedural device of motions for judgment non obstante veredicto (n. o. v.), the previous submission to the court of a motion for a directed verdict at the close of the entire case. Such is determinative of a party's right to make and of a court's power to entertain a motion for judgment n. o. v. under the rule. See Field and McKusick, Maine Civil Practice, p. 414, Commentary § 50.4; Mutual Ben. Health & Accident Ass'n v. Thomas, 123 F.2d 353 (8th Cir. 1941); Baltimore & Carolina Line, Inc. v. Redman, 1935, 295 U.S. 654, 55 S.Ct. 890, 79 L.Ed. 1636; 69 A.L.R.2d 449, at page 478, § 12.

The motion for judgment n. o. v. was unknown in our practice prior to the adoption of the Maine Rules of Civil Procedure in 1959, see Maglathlin et al. v. Isaacson et al., 1953, 149 Me. 368, 102 A.2d 864, and its present availability must depend upon a party's compliance with all requirements of the rules relating thereto.

The obvious design of the rule, in addition to assuring protection to one's constitutional right to jury trial, (see Baltimore & Carolina Line, Inc., supra) was to accord more flexibility in the trial or appellate courts in making its possible for the entry of a final judgment contrary to the jury verdict if a directed verdict was wrongly denied, and thus save the parties the expense of a second trial which the former practice made necessary. The plaintiff was without standing to move for judgment n. o. v. in this case.

DENIAL OF MOTION FOR NEW TRIAL

Plaintiff relied, as the first ground for his motion to the trial court to set aside the jury verdict and resultant judgment and to grant a new trial, upon the stated reason that defendant's attorney in his argument to the jury inferentially brought to their attention the fact that workmen's compensation insurance was present in the case. Plaintiff complains that defendants' counsel addressed the jury in the following manner: 'Ladies and Gentlemen of the Jury, Brother * * * has reduced the expenses, hospital expenses and doctor bills to the blackboard in the sum of fifteen hundred and eight dollars. You need not worry about the plaintiff having to pay that sum of money out of his pocket.' The defendants however contend that the language used in the argument was 'There was no evidence that the plaintiff had to pay this sum out of his pocket.'

The record does not officially disclose the exact statement of defense counsel about which plaintiff complains, nor does it indicate the specific setting in the argument when the alleged offensive assertion was made. Where there was no stenographic report of the arguments of counsel at trial, plaintiff should have proceeded in the preparation of a proper record to have the matter submitted to the court for settlement and approval as provided by Rule 75(m) M.R.C.P. (now 74(n) M.R.C.P.). Not only did the plaintiff fail to follow the ordained procedure in his attempt to submit this point to the decision of this Court, but the presiding justice in his denial of plaintiff's motion for new trial specifically stated that the defense counsel in his argument did not mention the word insurance or any statement which would lead the jury to believe that any insurance company was involved. Since the parties could not agree on the specific offensive language of defense counsel's trial argument nor on the context in which it was made, and since the plaintiff did not secure the approval of the justice who heard the case upon a settled version of the incident, this question is not properly before us on appeal.

Plaintiff's compliance with the requirements of the rules however would not have yielded any appellate relief from a situation he himself condoned. Indeed, plaintiff raised no objections at the time of the illegitimate argument nor did he seek a mistrial then or at any time before the submission of the case to the jury. Our Court has ruled that such lethargy or trial strategy is fatal to afterthought appellate redress. Knowlton v. Ross et al., 1915, 114 Me. 18, 95 A. 281. Deschaine v. Deschaine, 1958, 153 Me. 401, 140 A.2d 746.

The plaintiff further moves for a new trial because of the following alleged errors of the trial judge: (1) it was error for the Court not to declare a mistrial sua sponte when the foreman first reported a unanimous verdict for the defendants which the poll of the jury disclosed was not unanimous; (2) it was error for the Court not to inquire from the lone dissenting juror upon request of the plaintiff as to the reasons for her change of mind when after renewed deliberations and a re-polling of the jury she assented to the originally announced verdict for the defendants; (3) it was error for the Court not to inquire from the lone dissenting juror as to whether her ultimate vote for the defendants was 'of her own free will and accord' or obtained through coercion.

Unanimity in the verdict of the jury was required in the instant case since the parties had not stipulated that they would accept the verdict of a stated majority of the jurors as they could have under Rule 48, M.R.C.P. Any party has the right to ascertain through the polling of the jury whether the verdict as announced in open court meets with the individual assent of each juror. See Annotation in 71 A.L.R.2d at page 644 and cases cited under note 20. A juror, when polled, has the right unquestionably to dissent from a verdict to which he has agreed in the jury room, since his vote must be directed by his own conscience.

And, where one or more of the jurors do dissent from the verdict, the jury may be required to retire to the jury room and give further consideration to the case so that they may possibly reconcile their views and ultimately reach unamious agreement on the previous abortive verdict or on a new verdict. Rex v. Burdell, 1906, 11 Ont.L.Rep. 440, 6 Ann.Cas. 454; Botta v. Brunner, 1956, 42 N.J.Super. 95, 126 A.2d 32, affirmed on the reference point in 1958, 26 N.J. 82, 138 A.2d 713, 60 A.L.R.2d 1331; 53 Am.Jur. Trial, § 1019; 89 C.J.S. Trial § 487(c). It would be both unwise and undesirable upon such an instance for the Court either to argue with the juror or to require an explanation or solicit the reasons or motives for the change of position.

In his argument to the Court on the motion for new trial in support of his claim that the Court's inquiry from the dissenting juror would have revealed that the second unanimous verdict for the defendants was obtained through coercive influences practiced by the foreman upon said juror, the plaintiff made an offer of proof to the effect that the dissenting juror, if she were permitted, would testify 'to the fact that her change of mind on the second polling was due to possible threat and fear, in that she was advised by the foreman of the jury, * * *, that they would sit there in the jury room for a long period of time, after having thrown the papers which the Court had given to them on the table, and told them they would sit there until the Judge came out and bawled them out for not returning a verdict.' (Emphasis supplied). Plaintiff further asserted in his statement of points on appeal that it was error for the trial judge to discuss the situation informally with the foreman of the jury without making inquiry of the dissenting juror herself.

Initially let us say that there was no impropriety, let alone error, for the trial judge in his supervisory duties over the trial including the deliberations of the jury and the return of their verdict, privately to interrogate the foreman of the jury for information concerning the charge of misconduct made against him. Eichel v. Payeur, 1965, 106 N.H. 484, 214 A.2d 116.

But the reluctant juror's statement that she agreed to the verdict through fear and coercion and that the announced unanimous verdict was not her free and deliberate act cannot serve as proper basis for an offer of proof in support of a motion for a new trial.

It is the general rule since Lord Mansfield's time that the testimony of a juror is not available to impeach a verdict in which he participated. Vaise v. Delaval, 1785, 1 D. & E. 11; 8 Wigmore, Evidence, § 2353, pp. 682 et seq.; See, note appended to Little v. Larrabee, 1822, 2 Me. 37, at page 41.

It is universally agreed that a verdict will not be set aside on the circumstance that a juror assented to it because of weariness or importanities; plaintiff's complaint really amounts to no more. Wigmore on Evidence, VIII, § 2349, p. 681.

It has been the settled doctrine in this State that...