Acunto v. Equitable Life Assurance Society of United States

Townley, J. This action was brought to recover benefits provided by disability clauses included in two policies of life insurance issued by the defendant to plaintiff. The benefits included monthly payments in the event of permanent disability. The record presents the third trial of this case. After the jury had retired, they reported that they could not agree. At that point the justice presiding gave the following additional instructions: “ * * * Each juror should listen with a disposition to be convinced to each other’s arguments, and if a much larger number were for one side, the dissenting jurors should consider whether their doubts on the case were such as should be entertained by reasonable men and women inasmuch as they make no impression upon the minds of so many other men and women equally honest and equally intelligent with themselves. The minority should ask themselves whether they might not reasonably doubt the correctness of their stand which is not concurred in by a great majority, if that is the case with this jury. # * Thereafter the jury left the jurybox at 6:08 p.m., filed upstairs to the juryroom, came back downstairs to the jurybox and returned a verdict for the plaintiff at 6:12 p.m., a .lapse of approximately four minutes. It was not a unanimous verdict, two jurors having dissented. The above charge is criticized as being in effect a direction to the minority to agree with what was obviously less than the statutory majority of the jurors. That this was the effect may reasonably be inferred from the fact that although unable to agree up to that time, they thereafter returned a verdict in a matter of a few minutes. The charge given is in accordance with a charge approved by the Supreme Court of the United States in Allen v. United States (164 U. S. 492, 501). The charge in the Allen case in — 388 — its turn was founded on a similar charge given in a Massachusetts court in 1851 (Commonwealth v. Tuey, 8 Cush. [Mass.] 1). No case exactly in point in the State of New York has been drawn to our attention. There is no unanimity in regard to the propriety of such a charge as this throughout the various States of the United States. The majority rule is to the contrary of the Federal rule as stated in the Allen case. The decision of this appeal should be determined on the basis of general views of policy, as to what is desirable advice to be given in the case of jurors who seem to be unable to come to a decision. As was said in Mt. Hamill St. Sav. Bank v. Hughes (196 Iowa 861, 864): “ The complaint is that the foregoing tended to coerce the minority jurors into an acquiescence with the majority. Manifestly, its clear implication was that the majority view wag more worthy of consideration than that of the minority. In other words, it was an implied invitation to the acceptance of a majority verdict. “ This feature of the instruction has been repeatedly disapproved by us.” Similarly, the Supreme Court of Kansas in Neely v. Travelers Ins. Co. (141 Kan. 691, 696) said: “ The lone juror, or small minority of jurors, possessing courage to obey the juryman’s oath and to withstand dragooning, is the bulwark in the jury system against mob verdicts.” In Eikmeier v. Bennett (143 Kan. 888, 896) it was likewise stated: “ The only purpose in giving such an instruction as we have under consideration is to coerce the jury to agree, otherwise there would be no point in giving it. * * * To say to a minority that they should re-examine their views in the light of the opinion held by the majority, without putting a like duty on the majority respecting the opinion of the minority, is wrong. The minority may be right and the majority wrong. Until the Legislature provides for verdicts by a definite majority of the jury, the court, by additional instruction, should not suggest; even faintly, that the opinion of the minority is to be controlled by that of the majority.” To the same effect, see Mead v. Richland Center (237 Wis. 537). While the Trial Justice correctly instructed the jury on the general subject of the attitude of the jurors toward each other and the desirability that no one should surrender settled convictions on what the truth is and what justice may be on the facts and the law, still we think this general instruction was — 389 — not enough to overcome what we deem to be the prejudicial effect of the part of the charge excepted to. The judgment appealed from should be reversed and a new trial ordered, with costs to the appellant to abide the event.