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September 30, 1946


The opinion of the court was delivered by: GOURLEY

In this case Raymond P. Finn filed an action to recover damages against the Carnegie-Illinois Steel Corporation, a corporation of New Jersey, as a result of injuries sustained while working for an independent contractor on the premises of the Defendant Company. The Carnegie-Illinois Steel Corporation, the original defendant, by appropriate legal procedure, brought upon the record as a third party defendant the employer of Raymond P. Finn, which was the F. H. McGraw & Company, a corporation. At the completion of plaintiff's case, the Court dismissed the cause of action as far as the F. H. McGraw and Company is concerned, and the case was submitted to the jury as to the right of recovery of the plaintiff against the original defendant, Carnegie-Illinois Steel Corporation.

Several days were consumed in the trial of the case, and the charge to the jury was completed about 11:00 A.M., on May 15, 1946. The jury immediately retired to consider its verdict, and about 3:45 P.M., on the same day, the Court was notified by the bailiff that the jury had reached a verdict and was ready to return the same to the Court. Arrangements were then made by the Court, through the proper court officers, to receive the verdict, and in the courtroom were present the official court stenographer, deputy clerk of courts, the bailiff, the crier of the Court, the law clerk of the Court, and the members of the jury. The Court made inquiry of the deputy clerk of courts as to whether or not counsel had made any request to be present and the deputy clerk of courts advised the Court that he had no knowledge of such a request being made, and that it had been the practice in this Court for a long period of time for a verdict of a jury to be taken without counsel being present. The Court then made inquiry to the foreman of the jury if the jury had agreed upon a verdict and with the answer expressed in the affirmative, the Court requested the foreman to submit his verdict slip to the deputy clerk of courts. The verdict slip was in an envelope which was sealed; the Court opened the envelope, read the verdict, and, finding it proper as to form, requested the deputy clerk of courts to read the verdict to the jury, said verdict being as follows:

 'And now, to wit: May 15th, 1946, we, the Jurors empaneled in the above-entitled case, find no evidence of negligence on the part of the Carnegie-Illinois Steel Co. therefore render a verdict in favor of the defendant, Carnegie-Illinois Steel Company.'

 In addition to each of the members of the jury stating that the verdict read was as set forth on the verdict slip, as is the practice in this District Court, each of the members of the jury signed the verdict slip. Following the reading of the verdict of the jury in open court, the Court discharged the jury from further consideration of the case and instructed them to return the following morning for the purpose of considering any other matter of business of the Court for which they might be required. Since the Court ceased its official business at 4:00 P.M., after the jury was discharged no further responsibility existed on the part of any of the jurors to remain at or near the jury room and, as a result thereof, the jurors left for their respective homes or places of business.

 Counsel representing the parties in said action were not present in Court at the time the verdict was received for the reason that they had gone to their respective offices and, no doubt, were involved in other matters of business which required their time or attention. No request was made to the Court by any of the counsel involved in the trial of said case to be called at the time the jury had reached a verdict. Furthermore no request was made to the Court of the desire of counsel to poll the jury at the time said verdict was received. Within ten minutes after the Court had returned to its chambers, counsel representing the plaintiff called the Court by telephone and stated that he had requested the crier of the Court and an employee in the office of the Clerk of Courts to call him before the verdict was returned to the Court, and that counsel for the plaintiff had made said request for the reason that in the event said verdict was adverse to his claim, he desired to poll the jury. As a result of the information communicated to the Court, the Court immediately called the office of the Clerk of Courts and directed the Clerk of Courts to have the jury return to their places in the jury box the following morning at the time that Court convened in order that an opportunity could be given the counsel for the plaintiff to poll said jury. In addition thereto, counsel for the plaintiff had called the office of the Clerk of Courts on one or two occasions during the time that the jury was deliberating, and had made inquiry as to whether or not the jury had reached a verdict, and restated his request that he desired to be present when the verdict was received and asked the employee in the office of the Clerk of Courts to call him.

 When the Court convened on the morning of May 16, 1946, the first matter of business which the Court considered was the request of counsel for the plaintiff for leave to poll the jury. During the polling of the jury one of the members of the jury stated that although she had signed the verdict slip, it was done because the other members of the jury talked her out of it but she held out 'as a lone wolf' for a long time and she thought that probably the men knew more about the cables than she did and that she may have been unduly stubborn. Said juror further stated that she had not been intimidated, coerced or subject to force in any way whatsoever, and that her signature to the verdict slip was her own free will and that if she had not signed the verdict slip, the jury would have been still involved in deliberation. Commenting further, the juror stated that it was her opinion, sound conviction and belief that the plaintiff did have a right of recovery, that the defendant was negligent, and that the plaintiff was free from contributory negligence; that she believed the defendant negligent for the reason that a proper amount of signals or signs to attract attention were not maintained by the defendant, but the juror signed the verdict slip for the reason that she felt that the men on the jury understood the machinery which contributed to the accident in a better way than the juror did, and that the juror did not understand that she had the right to withhold her verdict where the other eleven members of the jury had agreed contrary to the belief of said juror. It was further stated that no one had talked with her in connection with the case, that she was not related, either by marriage or blood, to the attorney representing the plaintiff, or to any of the witnesses called in behalf of the plaintiff.

 In view of the statement of the juror and the rule of law being predominant in the mind of the Court 'that a good and valid verdict is not dependent on what the jury agrees to in the jury room but what the juror agrees to when the jury returns to the court to give a verdict,' on motion being made by counsel for the plaintiff to direct a mistrial or disagreement, the Court orally informed counsel involved in the proceeding that the Court would consider the motion to declare a mistrial on May 22, 1946. At the time of said hearing, the Court directed a mistrial and after reconsideration thereof, on the 23rd day of May, 1946, the Court revoked the oral Order of Court which directed a mistrial on May 22, 1946, and ordered a re-argument on the question involved to be held on May 31, 1946. It must be remembered that the Court was greatly burdened with the trial of other civil actions during this period of time, and every possible effort was extended by the Court to have the matter fully and completely heard at the earliest possible date. Counsel representing the plaintiff excepted to the Order of Court made on May 23, 1946, which revoked the previous order of May 22, 1946, directing a mistrial. This action was taken by the Court for the reason that under the provisions of Rule 59(d) of the Federal Rules of Civil Procedure, 28 U.S.C.A.following section 723c, the Court is empowered on its own initiative within ten days after the entry of judgment to direct a new trial for any reason, and the question presented in this case was so involved that the Court believed a duty existed to extend counsel involved an opportunity to present briefs in support of their respective contentions, and the Court desired an opportunity, as soon as time could be made available after the completion of the civil trial list, to individually make an exhaustive research of the law.

 The matter was, therefore, argued in detail by counsel representing the plaintiff, original defendant, and third-party defendant. Briefs have been filed by the respective parties, careful consideration has been given thereto by the Court, and, in addition, the Court has separately made a complete, thorough and exhaustive research of all the law which it is humanly possible to find which will shed any light, one way or the other, on the problem which exists.

 The question for consideration of the Court is: May the Court direct a mistrial or award a new trial to the plaintiff in a proceeding where counsel for the plaintiff voluntarily absented himself from the courtroom during the deliberation of the jury, and before the discharge of the jury from its consideration of the case and, as a result thereof, counsel for the plaintiff did not have an opportunity to be present to poll the jury when its verdict was read in open court, and where counsel for the plaintiff had made arrangements with an attache of the court, to wit, the court crier, and an employee in the office of the Clerk of Courts, that he was to be called when the jury had agreed upon a verdict and said attache and an employee of the office of the Clerk of Courts each failed and neglected to call plaintiff's counsel?

 In order to answer this question, there are two preliminary questions which by necessity the Court must consider:

 1. Can a jury be legally reconvened after it has been discharged by the Court in order that counsel for the plaintiff can poll the jury?

 2. Is a verdict returned in open court in favor of the defendant an unanimous verdict of the jury under the circumstances as exist in this case?

 Counsel have been unable to cite to the Court any case exactly in point in the Commonwealth of Pennsylvania or in any of the United States courts and, as a result thereof, the Court in the research which it has made will refer in some detail to the decisions in other jurisdictions in the United States which I believe lend material aid and assistance in disposing of the questions which exist.

 In the first instance, counsel for the plaintiff at the time of argument and in his brief earnestly insist that in matters of practice federal courts apply their own rulings and not the rulings of local state courts, or that the District Court should consider the motion for a mistrial or a new trial, such as it might be termed, independent of any statute or practice prevailing in the courts of the state in which the trial was held. The granting of a mistrial or the directing of a new trial is not a subject of exception according to the practice in the courts of the United States, and that if a new trial is granted, the same cannot be disturbed unless it appears that it was an abuse of discretion. There is no question but what this is a correct statement of law. Fishburn v. Chicago M. & St. P. Ry. Co., 137 U.S. 60, 11 S. Ct. 8, 34 L. Ed. 585; Metropolitan Life Insurance Co. v. Banion et al., 10 Cir., 106 F.2d 561; Hooper v. Shorr et al., 7 Cir., 110 F.2d 446; Viles v. Prudential Insurance Co. of America, 10 Cir., 107 F.2d 696; King v. Leach, 5 Cir., 133 F.2d 8.

 It is in substance the contention of the plaintiff that regardless of state decisions in connection with this question, in order to prevent a miscarriage of justice and to make possible fair, impartial and just administration of the law, the Court in the exercise of its discretion should direct a mistrial or grant a new trial under the facts as they exist. Garrison ...

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