Galligan v. Waterbury , 99 Conn. 256 ( 1923 )

The motion in arrest of judgment against the City of Waterbury was, in effect, a motion for a new trial for misconduct unfairly prejudicial to the defendant city. A motion to discharge the jury and for a new trial was made and denied at the time of the occurrence, and the jury were then, and again in the charge, instructed to pay no attention to what had taken place outside of the court room. After the verdict had been rendered and corrected, a motion in arrest of judgment was filed, and the trial court being then of opinion, as stated in its memorandum, that "the verdict actually rendered would seem to indicate that they [the jury] failed to heed the warning of the court not to be influenced by anything that was said and done at the time that they visited the premises," granted the motion. On the same day the court corrected the original verdict against both defendants so as to make it a verdict against the defendant city and in favor of the defendant McElligott, and also granted the motion by the defendant city to set aside the corrected verdict against the city of Waterbury, as against the evidence. Each of these rulings is challenged. In their chronological sequence the correction of the verdict came first and the arrest of judgment last; but since the judgment was arrested for misconduct occurring at an early stage of the trial, we take up that ruling first.

It appears that McElligott was joined as a defendant on the theory that the insecurity of the coal-hole cover was, or might be, due to some negligence of his servants in failing to replace the cover securely, or in leaving fragments of coal under its edge. McElligott took the position that his servants had not been negligent, and that the insecurity of the cover was due wholly to some inherent defect for which the city alone was liable. The result was that each defendant was attempting to shift upon the other responsibility for the plaintiff's injury. Under these conditions, while the jury were viewing the premises, one Edward McElligott, in the presence and hearing of the jury, expressed his opinion that the coal-hole was a menace and ought not to be allowed to remain in its present condition. Upon the same occasion counsel for the defendant McElligott, in the presence of the jury, removed the cover of the coal-hole and cleaned the dirt from the groove of the casing into which the cover fitted, and then Edward McElligott and one Tanner gave a demonstration to the jury of how the cover could be unseated by stepping on it.

This demonstration and comment appears to have been not only for the benefit of the plaintiff, but also for the benefit of the defendant McElligott, whose counsel took part in demonstrating the fact, three years after the accident, that the cover could be unseated by stepping on it though replaced in position with all possible care.

The jury were thus permitted to receive information highly prejudicial to the defendant city and highly advantageous, not only to the plaintiff, but to the defendant McElligott, at a time and place when the court was not in session. This was manifest error. The trial court attempted to cure the error as best it could, but after verdict expressed its opinion that it had not succeeded in doing so, and for that reason granted the motion in arrest of judgment. In effect the court reversed its ruling on the original motion to discharge the jury and for a new trial, after it became convinced that the city had been harmfully prejudiced by the misconduct complained of. In doing so the court was manifestly right. This disposes of the plaintiff's appeal.

Then the remaining question on the defendant's appeal is whether the new trial should be ordered against both defendants, or whether the court erred in allowing the defendant McElligott to take the benefit of this misconduct and in entering judgment in his favor. In this respect we think the court erred. The misconduct being incurably vicious necessarily vitiated all the subsequent proceedings leading up to the verdict against the defendant city, and must necessarily have influenced the jury not only in reaching a verdict against the defendant city, but also in reaching a verdict in favor of the defendant McElligott. A new trial must therefore be ordered against both defendants. This conclusion makes it unnecessary to determine any of the other questions presented by this appeal.

On the appeal of the City of Waterbury there is error; the judgment in favor of the defendant McElligott is set aside, and a new trial is ordered against both defendants. On the plaintiff's appeal there is no error.

In this opinion the other judges concurred.