General Motors Corp. v. Wernsing

Gilbert, C. J., delivered the opinion of the Court. This appeal is concerned with an accommodating bailiff who, without the knowledge of the trial judge or trial counsel, supplied a dictionary to the jury, thus contaminating it. The judge declined to order a new trial as a result of the bailiffs pollution of the jury. The trial court did, however, reduce the verdict from $1,630, 284 to slightly less than half, $762,784.

Obviously unsatisfied, the appellants, General Motors Corporation (GMC), Gladding Chevrolet, Inc., (Gladding), and Howard L. Seidel (Seidel) have appealed. —THE FACTS— On April 13, 1979, Violet Seidel, accompanied by her husband, the appellant, Howard Seidel, drove their 1978 Chevrolet Monte Carlo to the Montgomery Ward Store in the Glen Burnie shopping center on Ritchie Highway. According to the testimony, Mrs. Seidel stopped the car parallel to the sidewalk in front of the store. She alit from the vehicle and walked toward the store. At the same time, Mrs. Lynda Wernsing, the principal appellee, 1 was standing in the same ²¹ lane of traffic, approximately two car lengths ahead of the Seidel vehicle.

Mrs. Wernsing was in the process of loading packages in the rear compartment of her Chevrolet Suburban. Howard Seidel slid across the seat when his wife left the car, and he assumed the driver’s position behind the steering wheel. Seidel moved the gear shift lever from "Park” to "Drive.” Several witnesses testified to a loud noise coming from the Seidel automobile. The Monte Carlo moved forward and pinned Mrs. Wernsing against the rear of her vehicle.

Seidel reversed the Monte Carlo, and backed away from Mrs. Wernsing, who fell to the street. Seidel’s vehicle then again moved forward where it rolled over Mrs. Wernsing. Seidel once more reversed and proceeded backward until he struck another car. The Monte Carlo, with Mr. Seidel still at the wheel, then proceeded forward past Mrs. Wernsing and halted several yards away.

Although there was an odor of alcohol on Seidel’s breath, and he admitted to having had several drinks at a club, he was not charged with operating under the influence or driving while impaired. It was alleged that the Monte Carlo had a defective cruise control. Expert testimony differed as to whether the cruise control was in fact defective. In any event, Mrs. Wernsing and the other appellees sued Seidel, GMC, and Gladding. —THE ISSUE— The appellants-cross-appellees have raised several issues for our review, while the appellees-cross-appellants assail the remittitur and seek to have the total amount of the jury’s verdict reinstated.

As we see it, however, the only matter we need address is that of whether the trial judge, under the peculiar circumstances of this case, abused his discretion in not granting a new trial. —The Dictionary as a Forbidden Book— Maryland Rule 558 is concerned with the documents, pleadings, prayers, and instructions that may be taken to ²² the jury room for the jury’s consideration during its deliberative phase. The rule provides: "a. In Court’s Discretion. Upon retiring for deliberation, the jury may take with them into the jury room such of the pleadings, granted prayers or written instructions, and exhibits which have been received in evidence, as the court may deem necessary for a proper consideration of the case. b.

As of Right — Notes. The jury may also take with them notes of the testimony or other proceedings taken by themselves but none taken by any other person. c. Return to Clerk. All such papers or exhibits, except the notes mentioned in section b hereof, shall be returned to the clerk before the jury is discharged. d.

Exception. A deposition may not be taken into the jury room, except by agreement of all parties and with consent of the court.” The jury also takes with it the verbal instructions given to them by the trial judge. Hopefully, those instructions are free of ambiguity and are understandable. In the instant case, the judge told the jury: "There may be more than one cause of an injury, that is, several negligent acts may work together.

Each person whose negligent act is a cause of an injury is responsible. You are instructed that there may be more than one proximate cause of an accident and while negligence of a defendant must be a proximate cause in order to warrant recovery, it need not necessarily be the sole proximate cause of an accident. The mere happening of the accident raises no presumption of negligence on the part of anyone and the burden of proof is upon the plain ²³ tiffs to prove, by a fair preponderance of affirmative evidence satisfactory to you, that a defendant was guilty of negligence and that such negligence was a direct and proximate cause of the accident.” (Emphasis supplied.) The case was submitted to the jury on several issues, among which was number 2. It read: "Was the Seidel car in a defective condition and unreasonably dangerous at the time of the accident thereby proximately causing the accident?” A jury that does not comprehend an instruction or portion thereof is free to request the trial judge to clarify that point.

Indeed, the trial judge is the only proper source from which a jury may obtain instructions as to the law or the definition of legal terms. In the case sub judice, the jury sent a note to the judge which read: "We are hung on #2 Can we have a clarification on question #2? I.E. proximately” Directly under what we were informed is the handwritten message from the jury’s foreman, the trial judge wrote: "rec’d 2:00 PM 10/23/81 Proximate cause is legal cause E Lerner Judge” That terse definition was technically correct but not very informative to lay persons. 2 ²⁴ Apparently not satisfied with the definition it received from the trial judge, the jury undertook to educate itself as to what "legal cause” meant. It requested the bailiff, whose job it was to safeguard the jury from contamination by outside influences, to obtain a dictionary for the jury’s use.

The obliging bailiff 3 located a dictionary 4 and presented it to the venireman. On the reverse side of the note containing the judge’s definition of "proximate cause” as "legal cause” appears: "page 482 Webster’s Seventh new Collegiate Dictionary Legal cause having a formal status derived from law often without basis in actual fact #1 Will Casto” Our reading of that dictionary discloses that the definition apparently copied by Mr. Casto is point "b” of the second definition of the adjective "legal.” No attempt seems to have made to define "legal cause” as distinguished from "legal.” Maryland does not heretofore appear to have had a case of a jury’s receiving and using a dictionary without the knowledge and consent of the judge and counsel. 5 Other states, ²⁵ however, have not been as fortunate. The most recent case of which we are aware is Alvarez v. People, 653 P.2d 1127 (Colo. 1982). There, a juror consulted a dictionary in order to ascertain the meaning of the "legal terminology in the court’s instructions.” The use of the dictionary was not made known until after the trial.

One juror acknowledged that she was persuaded that "her doubts were not reasonable” because of "the dictionary definitions.” The Colorado Supreme Court held: "There can be no question but that a juror’s consultation of a dictionary to assist in understanding legal terminology in the court’s instruction is improper. . .. [T]he record amply establishes that the defendant was prejudiced in fact by juror misconduct. The central fact is that the juror who looked up the words was aided by the dictionary definitions in deciding that her doubt was not reasonable. This decision was essential to the defendant’s conviction. We hold that this adequately established prejudice resulting from juror misconduct and requires reversal.” The Colorado court went on to observe in a footnote: "It is futile to speculate how the juror might have voted without the benefit of dictionary definitions and equally futile to inquire whether the use made of the definitions resulted in a meaning of reasonable doubt consistent with the law.

The defendant cannot reasonably be required to resolve these problematic matters as a part of his required showing of prejudice.” ²⁶ A case strikingly similar to that now before us was decided by the Court of Appeals of Illinois. There, in Gertz, Administrator v. Bass, 59 Ill. App. 2d 180 , 208 N.E.2d 113 (1965), a bailiff had, without the knowledge of the judge or counsel, supplied a Webster’s New Collegiate Dictionary to a jury. The Illinois intermediate court held that the trial court erred in not granting a motion for a new trial in light of the jury’s use of the dictionary.

The court said: "We believe that it was prejudicial error for an officer of the court to give to the jury a dictionary which was not admitted into evidence, because the dictionary contained definitions of terms which were essential to a decision in the case, and which were substantially different from the technical legal definitions of those terms which the jury was properly instructed to apply in arriving at their verdict.” 59 Ill. App. 2d at 115 . A number of other courts have reached homologous results when confronted with situations involving defiling of a jury. See e.g., Nichols v. Seaboard Coastline Railway Co., 341 So.2d 671 (Ala. 1976) (use by a jury of an encyclopedia to define negligence, contributory negligence, subsequent negligence, etc.); Application of Phelan, 126 N.J.L. 410 , 19 A.2d 792 (1941) (use of a dictionary to define "undue influence”); In re Collins’ Will, 18 N.J. Misc. 492 , 15 A.2d 98 (1940) (the constable in attendance to the jury obtained and furnished to the jury panel a dictionary in order that they could ascertain the meaning of "undue influence”); Figula v. Fort Worth & Denver City Railroad Co., 131 S.W.2d 998 (Tex.

Civ. App. 1939) (foreman of jury consulted a dictionary in order "to ascertain the meaning of 'proximate cause’ ”); Palestroni v. Jacobs, 10 N.J. Super. 266 , 77 A.2d 183 (1950) (trial judge