Wernsing v. General Motors Corp.

⁴⁰⁸ RODOWSKY, Judge. In this personal injury action, reported as General Motors Corp. v. Wernsing, 54 Md.App. 19 , 456 A.2d 939 (1983), the Court of Special Appeals held that the trial court had abused its discretion by denying a new trial sought by defendants because of juror misconduct. A dictionary had been used in connection with deciding proximate causation during jury deliberations. We granted the plaintiffs’ petition for certiorari and shall affirm.

While, on the facts of this case, we agree that a new trial is required as mandated by the Court of Special Appeals, we do not entirely accept that court’s rationále. It departs from settled Maryland law prohibiting a juror from impeaching the jury verdict. Petitioners are Mrs. Lynda Wernsing and her two children, James and Alexa. General Motors Corporation (GMC), Gladding Chevrolet, Inc. (Gladding) and Howard L. Seidel (Seidel), each of whom was a defendant in the trial court, are respondents.

A succinct statement of the facts was given by the intermediate appellate court (id. at 20-21, 456 A.2d at 940-41 ): On April 13, 1979, Violet Seidel, accompanied by her husband, the [defendant], 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 [plaintiff], was standing in the same 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. ⁴⁰⁹ 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. [Footnote omitted.] GMC’s and Gladding’s positions were that there was no defect at the time of the accident and that Seidel’s negligent operation of the Monte Carlo caused it to strike Mrs. Wernsing. Seidel’s position was that he did nothing wrong and that the accident was caused by a defective cruise control. Plaintiffs stressed that the cruise control was defective when the car was sold to Seidel.

Determining proximate cause was the core of the jury’s function on these liability issues. The case was submitted on special interrogatories. They included the following, each of which the jury answered “yes.” 1. Was the accident proximately caused by any negligence on the part of Howard Seidel? 2.

Was the Seidel car in a defective condition and unreasonably dangerous at the time of the accident thereby proximately causing the accident? 3. (Answer only if your answer to No. 2 is “yes”.) Was the unreasonably dangerous condition present in the Seidel car at the time the car was sold to Mr. Seidel? In its charge the trial court included this passage: ⁴¹⁰ To recover[,] the negligence must be a cause of an injury. 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 plaintiffs to prove ... that a defendant was guilty of negligence and that such negligence was a direct and proximate cause of the accident. Concerning strict liability in tort, the jury was instructed that the plaintiffs must prove, inter alia, that the Monte Carlo was in an unreasonably dangerous condition when sold and “that the defective condition was a proximate cause of the accident.” Verdicts were rendered of $1,600,000 to Mrs. Wernsing, $15,000 to James and $15,000 to Alexa against GMC, Glad-ding and Seidel, jointly.

Respondents moved for a new trial and alternatively for remittiturs. The circuit court denied an unconditional new trial but did order a new trial unless remittiturs were accepted. Petitioners agreed to the reductions, and judgments were entered in favor of Mrs. Wernsing for $750,000, of James for $7,500 and of Alexa for $5,000. On this petition we are concerned with the intermediate appellate court’s remand for a new trial due to juror misconduct.

Because petitioners contend that the Court of Special Appeals improperly considered evidence by which jurors impeached their verdict, we first consider the proof of the claimed misconduct. (1) At the hearing on the motion for a new trial evidence that a dictionary had been utilized in jury deliberations consisted of (1) jurors’ affidavits, (2) a bystander’s affidavit, (3) testi ⁴¹¹ mony of the court bailiff, and (4) certain writings made contemporaneously with the jury’s deliberations. Attached to GMC’s new trial motion were affidavits from four jurors. Each made oath that the foreman had obtained a dictionary, read to the jury from it, and caused the particular affiant to change from a “no” to a “yes” vote on issue 2.

While there were variations between these affidavits, three of them said the foreman had read the definitions of “proximate,” “proximately” and/or “legal.” These four jurors swore that, as a result, they believed their task was to decide if it were possible that the Monte Carlo caused the accident, or was defective. The bystander’s affidavit stated that she was part of a group, including the foreman and two other jurors, who were conversing after the verdict had been returned. She said the foreman stated that he had been able to obtain unanimity on question 2 by reading dictionary definitions to his colleagues. The Court of Special Appeals relied upon this evidence in remanding for a new trial. 1 Petitioners correctly point out that consideration of these affidavits was impermissible.

As recently as Oxtoby v. McGowan, 294 Md. 83, 101 , 447 A.2d 860, 870 (1982) we reiterated the well-settled Maryland rule that a juror cannot be heard to impeach his verdict. In that medical malpractice case we excluded from consideration juror affidavits that a medical book had been brought into the jury room and examined by some of the panel. The post-verdict affidavits in the instant case are a ⁴¹² particularly gross example of soliciting a reconstruction of a juror’s mental processes in reaching the verdict. This is precisely the type of attempted undermining of verdict finality which Maryland law does not permit.

In addition to Oxtoby, supra, see Christ v. Wempe, 219 Md. 627, 641 , 150 A.2d 918, 925 (1959); Williams v. State, 204 Md. 55, 67-72 , 102 A.2d 714, 720-21 (1954); Kelly v. Huber Baking Co., 145 Md. 321, 328 , 125 A. 782, 785 (1924); Brinsfield v. Howeth, 110 Md. 520, 530-31 , 73 A. 289, 294 (1909); Browne v. Browne, 22 Md. 103, 113-14 (1864); Ford v. State, 12 Md. 514, 546 (1859); Bosley v. The Chesapeake Insurance Co., 3 G & J 450, 473 (1831) (note); Braun v. Ford Motor Co., 32 Md.App. 545, 551-54 , 363 A.2d 562, 566-68 , cert, denied, 278 Md. 716 (1976); Dixon v. State, 27 Md.App. 443, 448 , 340 A.2d 396, 400 , cert, denied, 276 Md. 741 (1975); 2 J. Poe, Pleading and Practice at Law 329 (H. Tiffany 5th ed. 1925). The affidavit by the participant in the post-verdict conversation between certain jurors attempts to prove the truth of the content of the statements made by the foreman in that conversation. Even if we assume the affidavit is otherwise admissible, it falls within the prohibition described above. The opinion of the Court of Special Appeals undertook to distinguish the prohibition against verdict impeachment on the ground that the jurors’ affidavits in this case merely corroborated the bailiff’s testimony. 2 Oxtoby, supra, rejected an argument based on substantially the same purported justification for undermining the Maryland rule.

That holding was, in turn, based upon Christ v. Wempe, supra, which held that proffered testimony of jurors was properly excluded. This was so even though the proffer was directed to a matter in evidence through the affidavit of a court clerk ⁴¹³ who had described his conversation with the foreperson concerning the relationship between special issues submitted to the jury. On the other hand, the testimony of the bailiff presents “a different situation” and is competent. Christ v. Wempe, supra, 219 Md. at 642 , 150 A.2d at 926 .

Similarly, the jury notes, hereinafter described, are competent proof. As documents generated during the jury’s deliberations, they do not suffer the taint of possible post-verdict importuning. Whether respondents have even established that extraneous matter was before the jury must be answered within a framework limited to those two evidence categories. Jury deliberations commenced sometime on the morning of October 23, 1981.

Juror No. 1, Willis W. Casto (Casto), was designated as foreman. During sequestration at least two pieces of paper passed from the jury room to the bailiff. After the verdict was rendered, these were given by the bailiff to the court clerk and retained by the clerk, in an envelope marked “jury notes,” until the hearing on the new trial motion. In his testimony at that hearing the bailiff described two events during jury deliberations, but he was uncertain of their sequence.

At one point a note was passed from the jury room to the judge. It reads: We are hung on # 2 Can we have a clarification on question # 2? IE: proximately [Underscoring in original.] The reply returned to the jury appears in longhand on the same side of the piece of paper. It reads: rec’d 2:00 PM 10/23/81 Proximate cause is legal cause E. Lerner Judge At another time during jury deliberations Casto asked the bailiff for a dictionary.

This was obtained by the bailiff through his supervisor and handed to the foreman. Another ⁴¹⁴ jury note, retained in the clerk’s envelope, contains longhand reading: We need a Dictionary! #1 Will Casto The particular dictionary furnished, a copy of Webster’s Seventh New Collegiate Dictionary, was identified by the bailiff and admitted into evidence. On the reverse side of the nóte signed by the judge there is other longhand which reads: 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 That definition is identical to definition 2 b for “legal” in the dictionary supplied by the bailiff. 3 In denying a new trial the circuit judge emphasized that he would not permit jurors to overturn their verdicts by post-trial affidavits, because it would create havoc. However, he did not differentiate between the juror affidavits and the other forms of evidence.

The issue is whether this record, when consideration is limited to the bailiff’s testimony and the jury notes, demonstrates an abuse of discretion in denying the new trial motion. (2) The problem of the effect on proceedings where one or more jurors have consulted a dictionary during deliberations has been presented in a number of decisions in other states. It appears to be the near universal consensus that a new trial is not awarded simply because a dictionary was before ⁴¹⁵ the jury. The court must conclude that there was prejudice to the complaining party.

See Annot., 54 A.L.R.2d 738 (1957). Analysis by other courts, however, diverges in the approach taken to determine whether use of a dictionary was prejudicial. Further complexities arise in analogizing to Maryland from decisions in other states where the verdict impeachment prohibition is not as stringently applied as here. Some decisions require that the movant for a new trial essentially prove prejudice in fact.

In the absence of such a showing, the new trial is denied. See Dulaney v. Burns, 218 Ala. 493 , 119 So. 21 (1928); Lane v.