Reed v. Kinnik

• Decision Date: 03 June 1957
• Citation: 389 Pa. 143,71 A.L.R.2d 635,132 A.2d 208
• Parties: , 71 A.L.R.2d 635 Harry P. REED, Jr., Appellant, v. Daniel KINNIK.
• Court: Pennsylvania Supreme Court

Page 208

132 A.2d 208

389 Pa. 143, 71 A.L.R.2d 635

Harry P. REED, Jr., Appellant, v. Daniel KINNIK.

Supreme Court of Pennsylvania.

June 3, 1957.

Avra N. Pershing, Jr., Henry B. Waltz, Jr., Greensburg, for appellant.

B. Patrick Costello, Smith, Best & Horn, Greensburg, for appellee.

Before CHARLES ALVIN JONES, C. J., and BELL, CHIDSEY, MUSMANNO, ARNOLD, JONES, and COHEN, JJ.

CHIDSEY, Justice.

The major question raised by this appeal is whether a party to a civil proceeding has an absolute right to have the jury polled after its verdict has been announced and affirmed in open court, or has only a privilege to request a poll, subject to the discretion of the trial judge.

The action arose out of a right-angled collision which occurred on the morning of September 20, 1954 in Ligonier Borough, Westmoreland County, Pennsylvania, at the intersection of a ten-foot wide alley upon which appellee Kinnik was traveling and a twenty-three foot wide street upon which appellant Reed was driving. Appellant brought an action in trespass to which the appellee filed a counterclaim. The jury brought in a verdict in favor of the appellee Kinnik in the amount of $10,000. Appellant thereupon asked for a poll of the jury, which request was denied by the trial judge. A motion for a new trial was argued before the court en banc which refused the motion, although one judge dissented on the ground that the appellant had an absolute right to a poll of the jury. This appeal followed.

There can be no question but that, in a criminal case the accused has an absolute right to have the jury polled. In Commonwealth v. Martin, 379 Pa. 587, at page 592, 109 A.2d 325, at page 327, Mr. Justice (now Chief Justice) Jones stated definitively; 'The right of a defendant to poll the jury which has returned a verdict of guilty against him has been widely recognized and accorded: * * * The procedure had its genesis in ancient common law (see 2 Hale, Pleas of the Crown 299) and has long been both approved and uniform practice in this State * * *. Even the Commonwealth possesses the right to have the jury polled: * * *', and this is the rule generally applicable in the United States. A recent annotation of the cases on this point is to be found at 49 A.L.R.2d 619 et seq.

The question as to civil cases, however, has never been expressly decided by this Court, although it has been collaterally considered several times. In Byrne v. Grossman, 65 Pa. 310, in a per curiam opinion, the Court found that the record did not indicate that a demand for a poll of the jury had been made, but it said, page 311: '* * * No doubt such an application being parcel of the trial, by custom, might if refused and excepted to, have been brought up for examination here on a bill of exceptions, and then the court could have determined whether a special verdict of each juror was the right of either party, or whether it was a matter solely within the discretion of the court to allow or not. For my own part, I incline to the latter opinion in civil cases. But the consideration of this point is not before us for the reasons already stated, and we give no opinion about it * * *'.

In Scott v. Scott, 110 Pa. 387, 2 A. 531, a sealed verdict had been taken the night before, but on the following day in open court a poll was permitted and one of the jurors dissented. Mr. Justice Trunkey stated, 110 Pa. page 389, 2 A. at page 531: 'Nor is there occasion to decide the mootable question whether, in the trial of a civil cause, the court is bound to permit a poll of the jury on request by one of the parties. At the request of the attorney for defendant the jury were polled, and it is undeniable that the court had power to permit the poll. In argument it was urged that the allowance of the poll of the jury was discretionary with the court. The point was not decided in Byrne v. Grossman, 65 Pa. 310; but the chief justice expressed his individual opinion against the right. The court below was not bound by that dictum. They may have adopted the view of the supreme court of New York in Fox v. Smith, 3 Cow. 23, where it was ruled that the jury may be polled at the request of either party at any time before the verdict is recorded, whether it be sealed or is oral. One of the judges remarked: 'Conceding that the judge may order the jury polled, seems to give the party a right to insist on it.'' See also Rottmund v. Pennsylvania Railroad Company, 225 Pa. 410, 74 A. 341, where the jury poll question was again raised but not decided.

In the early case of Shamokin Coal & Iron Co. v. Mitman, 3 Pa. 379, which has never been cited in a reported case, a verdict was delivered by the jury in the absence of defendant and his counsel. This was found to be reversible error, Mr. Justice Burnside giving as one of the reasons therefor, at page 380: '* * * He might have polled the jury at any time before the verdict was recorded, whether it was sealed or not * * *', citing as authority the New York case of Fox v. Smith, 3 Cow. 23, which held the poll to be a right. While this seems to lean toward the 'absolute right' view, it appears to have been impliedly overruled by the more recent case of Sylvester v. Pennsylvania Railroad Company, 357 Pa. 213, 53 A.2d 537, in which, in an opinion by Chief Justice Maxey, the Court held that a verdict received by the trial court at 9:30 P.M. in the absence of counsel for the losing plaintiff, after unsuccessful attempts had been made to reach him by telphone, was a valid verdict.

One lower court decision in this Commonwealth adopted the view in 1886 that a jury poll is a matter of right, White v. Archbald School District, 2 Pa. Co. Ct. R. 1; while the more recent cases have preferred to follow the Scott v. Scott, supra, view that a poll may be permitted, thus avoiding a more direct holding, for example, Bennett v. Seitz, 54 Lanc.Law Rev. 19, 68 York 78.

The cases in other jurisdictions are divided on this question. Massachusetts, New Jersey, Ohio, California, New Hampshire, Colorado, Georgia, Florida and South Carolina adhere to the view that a jury poll in civil cases rests in the discretion of the trial court ¹; while the countrary view is indicated by New York, Indiana, Mississippi, Kansas, North Carolina, Virginia, Texas, Minnesota, Illinois, South Dakota, and the District of Columbia ².

It is clear that the only jury verdict which is valid is one announced in open court and there affirmed, Coke's Littleton 227b, 3 Blackstone's Commentaries 377, Eastly v. Glenn, 313 Pa. 130, 169 A. 433. If one juror withholds his assent, a verdict will not be permitted to stand, and certainly it follows that there must be an opportunity in open court to ascertain that the verdict is unanimous. The practice in the courts of this Commonwealth is for the trial judge or the clerk or other court official to read the jury's verdict back to it, and then ask if all assent thereto. If there be a dissent or if there is an indication from the jury that the verdict might be other than unanimous, it would surely be incumbent upon the trial judge to ascertain the unanimity of the jurors either by individual poll or other appropriate means. And not to check into the unanimity of the jury when good cause appears to question it, would certainly appear to be a dereliction in the performance of the trial court's duty. The question presented on this appeal is, absent any outward indication of a lack of unanimity ³, is a trial court bound to take a poll in a civil case upon motion duly made?

It is our view that a trial judge is not bound to do so, but that taking a poll is a matter which rests within his sound...