Santina v. General Petroleum Corp.

NOURSE, P. J.

Plaintiff recovered a judgment on the verdict for damages for personal injuries arising out of defendants’ negligence. The appeal from the judgment is confined to the asserted irregularity of the proceedings in the jury room, hence, no statement of facts or of the issues involved in the trial is necessary.

The jury retired after complete instructions with two forms of verdict which were given them by the clerk. One form was to be used if the jury found for the plaintiff, the other to be used if the finding was for the defendants. After some deliberation the foreman called the bailiff and asked him: “Where is the third form of verdict?” The bailiff replied: ‘1 There are only two forms of verdict and the judge has instructed you upon them and those are the only ones you can use.” These circumstances the appellants assert ■were prejudicial to them and to substantiate their claims they rest their argument upon the ground that prejudice must be presumed from the fact of irregularity alone. There is therefore just one question which needs discussion and that is whether in this jurisdiction prejudice must be shown to justify a reversal, or whether it will be sufficient to show that error occurred and that it will then be presumed, from the irregularity of the proceedings alone, that the error is prejudicial.

Section 4% of article VI of the Constitution declares that a judgment shall not be reversed because of error as to any matter of procedure unless the court shall be of the opinion, upon a review of all the evidence, that the error has resulted in a miscarriage of justice. The appellants frankly concede that they have not been able to show’ what other form of verdict the foreman had in mind, and they have not been able to show that the bailiff’s reply to the foreman’s inquiry had any influence upon the verdict either favorable or unfavorable to their interests. They have not made any showing of fact which would justify this court in concluding that the asserted error resulted in a miscarriage of justice.

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It has been said that the prevailing rule requires the reviewing court to presume the error to be prejudicial unless the record shows the contrary. The same authority states, however, that a minority, but more liberal view, is that prejudice will not be presumed, and one who seeks a reversal must come prepared to show that the error was prejudicial. (3 Am. Jur., pp. 493, 494.) A more thorough treatment of the subject is found in 5 C. J. S., p. 810 et seq., where care is taken to emphasize the difference between error which is