Pessini v. Massie

Decision Date30 July 1971
Citation115 N.J.Super. 555,280 A.2d 499
PartiesAnthony F. PESSINI, Plaintiff, v. Mary MASSIE, et al., Defendants. Mary Massie EBERHARDT and William Eberhardt, Plaintiffs, v. George VANARELLI and New Jersey College of Medicine and Dentistry, Defendants.
CourtNew Jersey Superior Court

Jacob M. Goldberg, Newark, attorney for plaintiff Pessini.

Mabel L. Richardson, Newark, attorney for plaintiffs Eberhardt.

John P. McGee, East Orange, for defendant Mary Massie Eberhardt (Gaffey, Webb & McDermott, East Orange, attorneys).

Kenneth J. Fost, Newark, for defendants George Vanarelli and New Jersey College of Medicine and Dentistry (Stevens & Mathias, Newark, attorneys).

KIMMELMAN, J.S.C.

This matter is before the court on a motion for a new trial. It is argued that error was committed by the trial court in allowing the jury, over the timely objection of counsel, to separate and retire to their homes for the evening, thereby temporarily suspending their deliberations before they had reached a verdict.

By way of background, it is appropriate to record certain salient facts: On May 5, 1969 at approximately 5:30 P.M. at the intersection of Halsey and Market Streets in the City of Newark, and during the height of rush-hour traffic, an ambulance owned by defendant New Jersey College of Medicine and Dentistry and operated by defendant George Vanarelli in an easterly direction on Market Street collided with a car owned and operated by Mary M. Eberhardt. The force of the collision drove the Eberhardt vehicle to the southeast corner of the intersection where it mounted the curb in front of the Larkey store, striking and injuring plaintiff Anthony F. Pessini. As a result of the collision Pessini brought suit against Mrs. Eberhardt, the College and the ambulance driver, and Mrs. Eberhardt in turn filed a separate action against the College and the ambulance driver. Both actions were consolidated for trial and tried before a jury solely as to the issue of liability.

The trial was relatively short, commencing on the morning of June 28, 1971, with testimony and summations concluded by 12:30 P.M. on June 29, 1971. Between 1:30 and 2 that afternoon the jury was instructed as to the law and thereupon retired to deliberate upon its verdict. Pursuant to R. 4:39 the court requested that the jury not render a general verdict but that written interrogatories be answered. Said interrogatories, containing the issues to be decided, were as follows:

1. Was the defendant Mary Massie Eberhardt guilty of negligence which was the sole proximate cause of the injuries of plaintiff Anthony F. Pessini?

2. Was the defendant George Vanarelli guilty of negligence which was the sole proximate cause of the injuries of the plaintiff Anthony F. Pessini?

3. Were the defendants Mary Massie Eberhardt and George Vanarelli both guilty of concurrent negligence which combined to proximately cause the injuries of the plaintiff Anthony F. Pessini?

4. Was the defendant George Vanarelli guilty of negligence which was the sole proximate cause of the injuries of plaintiff Mary Massie Eberhardt?

The jury retired at approximately 2 P.M. to begin its deliberations; it returned at 3:15 P.M. with several questions and accordingly received additional instructions in the presence of counsel; it again returned at 5 P.M. with further questions and likewise received further instructions. At that point the following colloquy took place:

Court: Now the hour is just after five. I would like to ask the foreman of the jury whether you feel that with more deliberations you can reach a verdict now.

Foreman: I don't believe we could reach a verdict right now.

Court: What I am going to do is this. The parties to this case have a right to have their matter decided. There is no reason to suppose that another twelve people will be any more intelligent than you. I think this jury is very well-equipped to bring in a verdict. You have a responsibility to bring in a verdict if it doesn't do violence to your own individual consciences. But you also have a responsibility to listen to the opinions of your fellow jurors and change your opinions if you feel that perhaps the other opinion is better founded in the facts and in the inferences to be drawn from the facts based upon your everyday experience. It is burdensome for this matter to be retried, and I would not want it to be retried if at all possible. Now, apparently you require more time to deliberate. Is that correct?

Foreman: Yes, that is correct.

Court: The court will do this and instruct you. This Courthouse is not located in the most desirable section of Newark. I therefore hesitate to have a jury out deliberating much beyond this hour. I will instruct you that you may return home this evening for dinner and do whatever you would do in your normal everyday life, and you will return here tomorrow morning at 9:30 to continue deliberating on this case in accordance with the instructions as I gave them to you at 1:30 today and as I just reiterated to you now at five minutes after five. However, I have one serious word of caution. Under no circumstances are you to discuss this matter with anyone. You are not to call any juror, any co-juror or fellow juror on the phone to discuss this case. You are not to discuss it with your family because your families have not heard the evidence nor have your families or friends heard the comments of your fellow jurors and you would be doing a disservice not only to the court but to counsel, the witnesses and to the other jurors, your fellow jurors, if you discuss this case with anyone. But I have a feeling that with a little more deliberation, as your foreman says, coupled with the latest instructions that I have given you, that you can arrive at a verdict; and so I will ask you to take a recess now and return tomorrow morning at 9:30 to resume your deliberations. That will be the ruling of the court.

The following morning, June 30, 1971, the jury returned to the courthouse, attendance was taken in the presence of counsel, and the jury again retired to the jury room to resume its deliberations. Shortly thereafter, in approximately 15 minutes, the jury returned with answers to all interrogatories. In the order listed, their answers to the questions were:

1. Yes 2 No 10

- --

2. Yes 2 No 10

- --

3. Yes 10 No 2

-- -

4. Yes 2 No 10

- -- Accordingly, the court directed a verdict in favor of plaintiff Anthony F. Pessini against all defendants, including Mrs. Eberhardt, on the issue of liability, and a verdict of 'no cause' against Mrs. Eberhardt on her suit against the College and its ambulance driver.

On behalf of Mrs. Eberhardt it is now argued that allowing the jurors to retire to their homes for the evening in effect constituted an irregular influence which is presumed to be prejudicial, the test being not whether the jury was actually influenced by the irregularity but whether the same had the capacity to influence their result. Although no New Jersey precedent dealing with the precise issue involved has been cited or found, counsel relies upon Panko v. Flintkote Co., 7 N.J. 55, 80 A.2d 302 (1951) where the court held:

The fundamental right of trial by a fair and impartial jury is jealously guarded by the courts. A jury is an integral part of the court for the administration of justice and on elementary principles its verdict must be obedient to the court's charge, based solely on legal evidence produced before it and entirely free from the taint of extraneous considerations and influences. A jury can act only as a unit and its verdict is the result of the united action of all the jurors who participated therein. Therefore, the parties to the action are entitled to have each of the jurors who hears the case, impartial, unprejudiced and free from improper influences. Payne v. Burke, 236 App.Div. 527, 260 N.Y.S. 259 (N.Y.App.Div.1932); Mattox v. United States, 146 U.S. 140, 13 S.Ct. 50, 150, 36 L.Ed. 917 (1892); 66 C.J.S. New Trial § 47, page 162; Ibid. § 61, page 188.

It is well settled that the test for determining whether a new trial will be granted because of the misconduct of jurors or the intrusion of irregular influences is whether such matters could have a tendency to influence the jury in arriving at its verdict in a manner inconsistent with the legal proofs and the court's charge. If the irregular matter has that tendency on the face of it, a new trial should be granted without further inquiry as to its actual effect. The test is not whether the...

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2 cases
  • Mohan v. Exxon Corp.
    • United States
    • New Jersey Superior Court – Appellate Division
    • February 10, 1998
    ...within the jurisdiction and control of the court even when the jurors are dispersed during deliberations. See Pessini v. Massie, 115 N.J.Super. 555, 280 A.2d 499 (Law Div.1971), aff'd sub nom. Eberhardt v. Vanarelli, 121 N.J.Super. 293, 296 A.2d 666 (App.Div.1972); R. 1:8-6(b) ("[f]ollowing......
  • Eberhardt v. Vanarelli
    • United States
    • New Jersey Superior Court – Appellate Division
    • November 20, 1972
    ...of Medicine and Dentistry and Vanarelli. The pertinent facts are set forth in the reported opinion of the trial judge (115 N.J.Super. 555, 280 A.2d 499 (Law Div.1971)), who denied plaintiffs' motion for new trial. Plaintiffs We perceive no reversible error in the trial judge's action in rec......

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