
    ANNA D. WEIR, PLAINTIFF-RESPONDENT, v. ROBERT A. LUZ, DEFENDANT-APPELLANT. WILLIAM A. WEIR, PLAINTIFF-RESPONDENT, v. ROBERT A. LUZ, DEFENDANT-APPELLANT.
    Argued January 20, 1948
    Decided April 20, 1948.
    Before Justices Boduste, Heher and Wacheneeld.
    For the appellant, Duggan, Shaw & Hughes (Robert Shaw, of counsel).
    For the respondents, Joseph, P. Dallanegra (Thornton G. Land, of counsel).
   The opinion of the court was delivered by

Heher, J.

The point at issue here is whether a jury verdict in a civil case received by the clerk of the court in the absence of the judge, in accordance with a direction given .under B. S. 2:27-236, may be set aside for non-compliance with a demand for an examination of the jury by the poll, interposed by one of the parties immediately upon the announcement of the verdict by the jury’s foreman.

A verdict for defendant was vacated for failure to comply with plaintiffs’ demand for a jury poll; and on the retrial there was a verdict and judgment for1 each plaintiff. The appeals are from these judgments. The actions were brought to recover damages for injuries to person and property arising out of an intersection collision between two automobiles; and they were tried as one. Defendant counter-claimed for personal injuries and property damage; and on the first trial the parties stipulated that if defendant was found entitled to recover on his counter-claim, his damages amounted to $425. The verdict was treated by the judge as a finding for defendant on the counter-claim in that sum.

The object of polling the jury is to determine whether the right of the parties to the1 concurrence of the jurors in the announced verdict has. been satisfied, and, by the same token, to afford the individual jurors an opportunity for withdrawing assent that is unreal as induced by coercion, and to declare in open court their judgment in prcesenti. Humphries v. District of Columbia, 174 U. S. 190; 19 S. Ct. 637; 43 L. Ed. 944. There are conflicting views as to the nature of the right. One line of cases holds that a party has a peremptory, absolute right to have the jury polled on the rendition of the verdict, whether sealed or oral, unless the right has been expressly waived; and there are cases declaring that a jury poll is not a matter of right, but rests in the discretion of the court. The eases pro and con are collected in Abbott’s Civil Jury Trials (5th ed.), § 397. It would seem that at common law there is no absolute right to poll the jury. 2 Hale’s P. C. 299; State v. Hoyt, 47 Conn. 518, 533. In the last cited case, it was held that “there can be no propriety in having the jury polled” under a practice such as exists in New Jersey, for it affords “a more convenient way” of obtaining the opinion of each individual juror. Under that practice, the jury authorizes the foreman to speak for them; and, after the foreman makes answer for the jury, the jury are again distinctly asked to hearken to their verdict, which is read back to them, the clerk adding “So say you all.” Silence gives individual affirmance. Fellow’s Case, 5 Greenl. 333; Ropps v. Barker, 4 Pick. 238; Ryan v. People, 50 Col. 99; 114 Pac. Rep. 306.

Such seems to be the rationale of the statute cited supra. It is provided that in civil cases the court “may direct that the jury’s verdict bo taken by the clerk, in open court in the absence of the judge, and may order that the court remain open for that purpose.” R. 8. 2:27-236. Presumably, the legislature was of the view that the formula sanctioned by immemorial usage for making the verdid known in open court in essence served the purpose of the jury poll. That seems to be the ratio decidendi of the decision of our court of last resort in Francillo v. Latour, 116 N. J. L. 423. The contrary hypothesis would afford the means of nullifying the statute. It is not to be inferred that the legislature intended thus to put the operation of the statute in the hands of the parties to the action.

But however this may be, there was a waiver of such right as the plaintiffs had to poll the jury by their failure to assert it when the judge directed the clerk, in the exercise of the statutory power, to receive the verdict in open court in the judge’s absence. The clerk had no power to poll the jury. Francillo v. Latour, supra. So far as the record and the agreed state of the ease reveal, this direction by the judge was given in open court in the presence of the parties; and there is a presumption to that effect. Compare State v. Waterhouse, 109 N. J. L. 15.

It is certified in the agreed case that the original verdict was set aside “on the sole ground that the plain tiff (s) had been deprived of the right to have a poll of the jury;” and thus there was error in matter of law not within the bounds of sound discretion which requires a reversal. The judicial discretion invoked on an application for a new trial is not arbitrary or capricious. It is a discretion that takes account of the law, and is governed accordingly. Plere, there was a plain misapprehension of'the law which is eorrectible on error. Knight v. Cape May Sand Co., 83 N. J. L. 597; Corn v. Kaplan, 103 Id. 628; 46 C. J. 406, 413. It was not within the province of the judge arbitrarily to set aside a verdict entirely regular and valid, and thereby to afford the losing party another trial of the action. The original verdict and judgment thereon are conclusive of the issue. True, there is express legislative authority for the polling of the jury by the clerk or his' “representative” in criminal cases. R. S. 2:190-14. But there are obvious reasons for this added safeguard in cases of this class.

The judgments under appeal are accordingly reversed, and the orders granting a new trial are vacated, all with costs; and the cause is remanded for further proceedings in conformity with this opinion.  