The opinion of the court was delivered by: DAVIS
After a jury trial in this fire property loss action, a verdict was returned in favor of the defendants Vincent and Kathleen Poretti. Before the court are plaintiff's motions for judgment n. o. v. or, in the alternative, for a new trial. In addition, third-party plaintiffs move for a new trial against third-party defendants in the event a new trial is granted to plaintiffs. After careful consideration of plaintiff's motions, I have concluded that the arguments raised therein are without merit and they are denied accordingly.
Prior to his recent death, plaintiff, Robert Lanza, was engaged in the fashion design business. Tr. 3. His business was conducted on the second floor of the premises located at 1630 Walnut Street, Philadelphia, Pennsylvania. Tr. 12. The defendants owned and operated the DuVinee Beauty Salon which occupied the first floor of such premises. Tr. 16. On January 2, 1979, a fire occurred causing extensive damage to the entire building and all of its contents. Tr. 38-79. Plaintiff thereafter instituted this action originally contending that the fire started on the first floor, and was due to the careless disposal of smoking and waste materials from the beauty shop. Tr. 4. At trial, however, plaintiff was granted leave to amend his complaint to include an intentional count. Tr. 106. Defendants denied liability and in a third-party complaint averred that the fire resulted from the negligence of the third-party defendants, Estate of Sophia and Sidney Klinghoffer, who owned the premises in question at the time of the fire. Tr. 5. In addition, the defendant also attempted to prove at trial that the fire was incendiary.
At the close of the defendants' case, a directed verdict was entered in favor of the third-party defendants pursuant to Fed.R.Civ.P. 50(a). The jury subsequently, through interrogatories,
returned a verdict in favor of the defendants.
Whenever a motion for a directed verdict made at the close of all the evidence is denied or for any reason is not granted, the court is deemed to have submitted the action to the jury subject to a later determination of the legal questions raised by the motion. Not later than 10 days after entry of judgment, a party who has moved for a directed verdict may move to have the verdict and any judgment entered thereon set aside and to have judgment entered in accordance with his motion for a directed verdict.
The rule plainly requires that a motion for judgment n. o. v. will not be entertained unless a motion for a directed verdict was first made by the party at the close of the evidence. Schreffler v. Bd. of Educ. of Delmar School Dist., 506 F. Supp. 1300, 1305 (D.C.Del.1981); Sharp v. Coopers & Lybrand, 457 F. Supp. 879, 885 (D.C.E.D.Pa.1978), aff'd, 649 F.2d 175 (3rd Cir. 1981); C. Wright and A. Miller, Federal Practice and Procedure § 2537 (1971). This requirement has been strictly interpreted in this Circuit. DeMarines v. KLM Royal Dutch Airlines, 580 F.2d 1193, 1195 n.4 (3rd Cir. 1978); Lowenstein v. Pepsi-Cola Bottling Co. of Pennsauken, 536 F.2d 9, 10 (3rd Cir.), cert. denied, 429 U.S. 966, 97 S. Ct. 396, 50 L. Ed. 2d 334 (1976). It is clear from the record that this prerequisite for a judgment n. o. v. was not met.
Therefore, having not first motioned for a directed verdict plaintiff's motion for judgment n. o. v. must be denied.
Plaintiff's initial contention in his motion for new trial is predicated upon matters occurring during the jury deliberations. Following the jury verdict, counsel for the plaintiff and defendant interviewed members of the jury in the deliberation room. During the course of discussions it was discovered that the jurors had conducted an experiment during the course of their deliberations. Plaintiff's counsel promptly took steps to bring this information to the court's attention.
In order to ascertain if extraneous material had been observed by the jurors during their deliberations, an evidentiary hearing was held on December 21, 1981. At that time two of the eight jurors were questioned.
Their testimony establishes that an unauthorized experiment did, in fact, occur in the deliberation room. Insofar as the "test" had the effect of introducing new evidence out of the presence of the court and parties, it was patently improper since such a procedure conflicts with the fundamental rule that jurors decide the merits of cases based upon the evidence presented in the adversary arena. "The theory of our system is that the conclusions to be reached in a case will be induced only by evidence and argument in open court, and not by any outside influence, whether of private talk or public print." Patterson v. Colorado, 205 U.S. 454, 459, 462, 27 S. Ct. 556, 558, 51 L. Ed. 879 (1907) (Holmes, J.). A new trial is not required in all cases, however, unless the extraneous influence upon the jury creates a "reasonable possibility of prejudice." United States v. Pinto, 486 F. Supp. 578, 579 (D.C.E.D.Pa.1980) (quoting United States v. Stoehr, 196 F.2d 276, 283 (3rd Cir.), cert. denied, 344 U.S. 826, 73 S. Ct. 28, 97 L. Ed. 643 (1952)). See also Government of Virgin Islands v. Gereau, 523 F.2d 140, 154 (3rd Cir. 1975), cert. denied, 424 U.S. 917, 96 S. Ct. 1119, 47 L. Ed. 2d 323 (1976); Simon v. Kuhlman, 488 F. Supp. 59, 68 (D.C.S.D.N.Y.1979). The question whether prejudice resulted from this experiment must be resolved by the court drawing reasonable inferences as to the probable effect of the jury's misconduct. "Though a judge lacks even the insight of a psychiatrist, he must reach a judgment concerning the subjective effects of objective facts without benefit of couch-interview introspections." United States v. Howard, 506 F.2d 865, 869 (5th Cir. 1975). In outlining the relevant areas of inquiry for making this determination, the court in Simon, supra, stated:
To determine whether the experiment raised a possibility of prejudice to petitioner, this court must ascertain whether the experiment actually took place and, if so, under what conditions. Although the list which follows is by no means intended to be exclusive, areas of inquiry relevant to the issue to be decided are: (1) how the experiment came about; (2) how many jurors were involved; (3) whether the jurors discussed the results of the experiment and, if so, what was said; and (4) whether the experiment took place before or after the jurors reached a verdict and if the experiment took place before the verdict was reached, at what point in the deliberation it occurred.
Simon v. Kuhlman, supra, 488 F. Supp. at 68. After reviewing the testimony elicited at the post-verdict evidentiary hearing and the record as a whole, I conclude that the unauthorized jury experiment, while certainly improper, did not create a reasonable possibility of prejudice. Accordingly, a new trial is not warranted on this ground.
It must be noted from the outset that plaintiff introduced no direct evidence in support of either theory of liability. From the circumstantial evidence presented, the jury was expected to find that the fire was either intentionally set by the defendants individually or in concert, or that it resulted from the negligence of defendant Poretti only. During the course of the trial, expert testimony established that the fire originated in the supply room of defendants' beauty shop. Tr. 83, 159. The experts sharply disagreed, however, as to the exact cause of the fire. Lawrence Dove, a former Assistant Fire Marshal in the City of Philadelphia, testified that in his opinion the fire was a result of arson.
Tr. 110. Contrariwise, John Connell, a former Assistant Fire Marshal in New York City, testified that in his opinion the fire was caused by carelessly discarded smoking materials. Tr. 315.
Plaintiff vigorously sought to prove that the fire resulted from the ignition of combustible material caused by careless smoking on the part of Mr. Poretti. In support of this theory it was established that defendant was a smoker, Tr. 579, and that he was the last person to leave his shop on the day of the fire. Tr. 27. Mr. Poretti left at approximately 5:00 P.M. Tr. 27. The fire was discovered shortly thereafter. Tr. 89. Defendant, however, testified that he did not recall smoking inside his salon on the day of the fire. Tr. 598. Moreover, prior to leaving, defendant stated that he checked the supply room, where plaintiff's expert testified the fire had originated, and found no evidence of smoldering cigars or cigarettes. Tr. 579. Additionally, although defense counsel was prohibited from introducing evidence as to the identity of persons other than defendants' employees having keys to the premises,
Tr. 244, it was established that other persons had access to the premises on the day of the fire. Tr. 686.
I recognize that a plaintiff in a fire case where careless smoking is alleged to be the cause can rarely do more than present expert testimony as to the fire's cause, and support such testimony by some evidence of smoking on the premises shortly before the fire began. This will usually make out a case of negligence sufficient to put the defendant to proof. See, e.g., Gichner v. Antonio Troiano Tile & Marble Co., 133 U.S. App. D.C. 250, 410 F.2d 238, 244 (D.C.Cir.1969). Notwithstanding this problem of proof, on a motion for a new trial where it is alleged that extraneous factors were brought to bear on the jury, the requirement that such factors have a prejudicial impact serves to accommodate the ...