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REED v. KINNIK. (06/03/57)

June 3, 1957

REED, APPELLANT,
v.
KINNIK.



Appeal, No. 11, March T., 1957, from judgment of Court of Common Pleas of Westmoreland County, Jan. T., 1955, No. 261, in case of Harry P. Reed, Jr. v. Daniel Kinnik. Judgment affirmed.

COUNSEL

Avra N. Pershing, Jr., with him Henry B. Waltz, Jr., for appellant.

B. Patrick Costello, with him Smith, Best & Horn, for appellee.

Before Jones, C.j., Bell, Chidsey, Musmanno, Arnold, Jones and Cohen, JJ.

Author: Chidsey

[ 389 Pa. Page 144]

OPINION BY MR. JUSTICE CHIDSEY

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

[ 389 Pa. Page 145]

    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, 109 A.2d 325, Mr. Justice (now Chief Justice) JONES stated definitely, at page 592: "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 ALR 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 ...


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