DAMAGES CASE

Dominion, Volume 31, Issue 70, 16 December 1937, Page 9

DAMAGES CASE

Motion For New Trial i Dismissed LETTERS TO THE COURT Jury’s Conduct Criticised By Chief Justice Censure of a jury for its conduct after it had returned a verdict in an action for damages arising from a motor collision was voiced by the Chief Justice (Sir. Michael Myers) in the Supreme Court at Wellington yesterday The jury had sent two . letters to the court when they discovered that their answers to the issues amounted to a verdict for defendant instead of for plaintiff, to whom they had allowed £l2OO damages. His Honour said the only inference that could be drawn was that if the jury had understood the legal effect of their answers they would have answered one of the issues dishonestly.

Plaintiff in the action was Ada Payne, of Kaiwarru, who claimed £3OOO from Dunstan John Burney, glass merchant, Wellington, for the death of her husband, Henry Payne, who was knocked down by defendant’s car. The issues put to the jury were: (1) Was the defendant guilty of negligence materially contributing to the accident? (2) Was the deceased guilty of negligence materially contributing to the accident? The third issue related to the assessment of damages. The jury answered "Yes” to the first issue, “Yes. in a lesser degree.” to the second, and awarded £1250 damages. Both counsel moved for judgment for their respective clients and his Honour deferred the matter to allow preparation of argument. The jury, the following day, sent a letter saying they had learned that the verdict had gone contrary to their intentions, and desired to bring to the notice of the court that it was the unanimous desire of the jury that £1250 damages should be awarded to plaintiff. Had the effect of their verdict been understood, they said, the answer to issue 2 would have been "No.”

A second letter to the registrar a week later said that the jury had had no difficulty in answering "Yes” to the first question. They first decided to answer “No” to the second issue, and awarded the damages. Then they thought that the motorist, as a result of the answers, might be in trouble later, so they answered the second issue as they finally did, without impairing plaintiff’s chances of securing damages, and, at the same time, helping the motorist to some extent. Mr, A. B. .Sievwright appeared for plaintiff and Mr. W. E. Jxncester, with him Mr. J. Meltzer, for defendant. Basis of .Action.

The motion for judgment for plaintiff or a new trial was based on the grounds that no third issue of substantial cause of the accident was put to the jury, that the direction to the jury as to issues was misunderstood, and that the uou-directiou of the judge as to the legal consequences resulting in the finding of negligence of both the defendant's driver and the deceased, Henry Payne, amounted to misdirection.

Mr. Sievwright submitted that plaintiff was entitled to judgment on the ground that the real aud true finding, as distinct from the verdict, was that there was negligence on the part of the driver of the car belonging to defendant and none on the part of deceased. "In accordance with the rules, your Honour prepared a memorandum in which your Honour incorporated a letter which was forwarded the day after the trial,” said Mr. Sievwright. “The letters which have been forwarded by the jury——” His Honour: What right have the jury? The jury were functus officio (had discharged their duty). Mr. Sievwright: The jury, feeling that a mistake had been made, and being honest men, sought to rectify it. His Honour: I may have something to say later about the question of honesty. Mr. Sievwright said his submission was that the two letters forwarded to the registrar showed clearly that the real finding of the jury was that there was no negligence on the part of the deceased. One of the letters was on the court record and could be the subject of comment.. His Honour: It may be commented upon as a very striking commentary on our jury system. Mr. Sievwright: 1 shall have a respectful submission to make to the court that it is a conuneutary on outjury system if, in my submission, the court does not tell the jury what precisely is the law. His Honour: It is very plain that what happened in this case was this: I properly didn’t leave the general issue to the jury, because when one does that- one has to give a very careful direction on matters of law, which direction it is very necessary for a jury of laymen to understand. What I did, therefore, was to submit two plain and simple questions of fact for the purpose of obtaining the honest and conscientious answers of the jury. The legal effect, therefore, had nothing to do with the jury; all they had to do was to answer those questions honestly, and the legal effect became then a matter for the court. They did answer those questions quite honestly; then, if you please, the day after the verdict is given and they learn, somehow, that the legal effect of their true answers may be a verdict for the defendant, they turn round and say—naively say —"Oh, if we-had known that we would have answered the second issue ‘No’ instead of ‘Yes’.” The only inference is that they would have answered the second question dishonestly. That is the only way in which one can interpret what they have done. “It is no use mincing words in a matter of this kind, because those are the plain facts of the situation,” added his Honour. The Original Answer. Mr. Sievwright: The jury, as they have said in their second letter, did answer the questions honestly aud conscientiously. They answered Question 1; “Yes, the defendant’s driver had been guilty of negligence.” The answer to the second question was: "Yes, to a lesser degree.” That, was not the originttl answer according to the letter —the second answer was "No.” His Honour: I take no notice of the second letter. It is a letter which was sent to the registrar. It looks very much like an after-thought—very much like an after-thought. Mr. Sievwright: Your Honour made it clear in your remarks to-day that your Honour desired an answer on questions of fact. Now, if any credence is to be given to what the jury says at al], then the jury dealt not with the question of fact, but what they considered to be the law. His Honour said he took uo notice of subsequent communications from the

jury. The only notice that could be taken of subsequent communications from the jury was that from any point of view their conduct had been very improper.

“They have no right to send these communications,” added his Honour, “and I don’t know how these communications have been arranged among them. I don’t know w-ho, but someone must have seen them and discussed it among them.”

Mr. Sievwright said that counsel for plaintiff had had no communication whatever with any member of the jury. "I accept that at once, of course,” said his Honour, “but somebody must have discussed the matter w’ith the jury between their giving the verdict and the communication the following day, and someone must have discussed it again after that memorandum and before the memorandum of November 0.”

Mr. Sievwright said that, apart altogether from the clear statement of facts in the letters of the jury, it was surely to be accepted by the court that the jury must have taken into consideration not only the questions which his Honour put to them, but questions of law’ with which they had no right to deal, and apparently they were mistaken in the law.

His Honour: Not at all, Mr. Sievwright. Mr. Sievwright: Well, of course, those are my respectful submissions, and no doubt your Honour will accept them and give a written judgment in due course. His Honour: 1 don’t know that Hl give a written judgment. Mr. Sievwright: I shall respectfully ask for a written judgment.because of the matter involved.

Mr. Sievwright added that because of the facts tlie court should welcome a new trial. ' His Honour: What do you suggest is the origin or genesis of these two communications of the jury? Mr. Sievwright: Your Honour sets it out in your memorandum. His Honour: How do I know how the jury were moved in the matter, that’s what I mean.

Mr. Sievwright: Well, the jury His Honour: Do you suggest the whole idea originated with them? What do they know about it? Mr. Sievwright: They would get His Honour: Well, you can’t make any suggestion. Very well. Mr. Leicester submitted that by their letter the jury admitted that they would be prepared to ignore the legal effect of their verdict—had they known —and give a verdict contrary to the justice of the case. His Honour’s Decision. At the conclusion of legal argument his Honour said that so far as it concerned the motions for judgment, he felt bound to say that he had heard nothing to alter the view he had formed when the jury returned their verdict. The answers to the two first issues could, to his mind, mean no less than that both the . driver of defendant’s car and deceased were each guilty of negligence materially contributing to the accident. It was true that the jury found that deceased was guilty of negligence materially contributing to the accident to a lesser degree than the driver of defendant’s car, but that could mean, he thought, no more thau that the jury thought that the driver of the car was the more blameworthy of the two. "But,” continued his Honour, “as I understand the law, if both parties are guilty of negligence materially contributing to an accident, then if there is no question of last opportunity open, neither of them can succeed against the other in an action for damages. . . . The direction given to the jury on what was negligence materially contributing to the accident was both full and plain, and in my view it was given in such terms as could not have been capable of being misunderstood by 12 normally intelligent men. "So far, then, as the answers to the issues are concerned, assuming that there is nothing else to consider, I think it is plain that the plaintiff is not entitled to judgment on those issues. On the contrary, I think that the answers to the first and second issues amount to a verdict for the defendant.” Referring to Mr. Sievwright’s contention that a third issue of substantial cause should have been put to the jury, his Honour said: "The reply is that in this case I was, and still am, of opinion that there was no evidence of last opportunity fit to be submitted to the jury. The question as to whether or not there is any evidence fit to be submitted to the jury on any particular issue is a question of law for the judge and not a matter for the jury.”

His Honour said he could see no justification for the contention that the direction as to the issues had been misunderstood by the jury unless it was to be found in the letters written by the jury to the registrar on October 28 and November 6 respectively. If one could look at the first letter at all, the only inference deducible from it was that there wag a naive admission by the jury that if they had understood that their answers might have amounted to a verdict for defendant they would have found “No” instead of "Yes” in answer to the second issue.

"Well,” said his Honour, "all I can say is that that is a most astounding statement. The very object of putting issues to the jury —simple questions of fact—was to obtain honest and conscientious answers to those plain, simple questions, and I have no doubt that the answers which were returned by. the jury on October 27 represented their iionest and conscientious answers.

“The implications of their letter of November 6, and, for that matter, the implications of their letter of October 28, I hardly think they could have understood. The implication of their letter of November 6 is that they were prepared to do an injustice to the deceased and to the plaintiff, who was bis personal representative, by saying that he was guilty of negligence materially contributing to the accident because they thought by so doing they might be avoiding some consequences to the driver of the car.” His Honour said he was satisfied that there was no validity in the third ground, that the jury by non-direction as to the legal consequences of a verdict finding both the driver and the deceased guilty of negligence, had been misdirected. The motion for a new trial would be dismissed.

Judgment was entered for defendant n ccord i ngl.v.