Lumber Co. v. . Lumber Co. , 187 N.C. 417 ( 1924 )

Civil action to recover damages for an alleged trespass and for the wrongful cutting and removal of plaintiff's timber.

Upon denial of liability, and issues joined, the jury returned the following verdict:

"1. Is the plaintiff the owner of the land in controversy, described in the amended complaint? Answer: Yes.

"2. Has the defendant wrongfully trespassed on said land? Answer: Yes.

"3. What damage is plaintiff entitled to recover by reason of said wrongful trespass? Answer: $10800, with interest." (Later corrected to read $1080, with interest.)

Plaintiff tendered judgment on the verdict as originally rendered, and objected to any correction or reformation of it by the jury. From the judgment rendered on the verdict as corrected the plaintiff appeals. The single question presented by this appeal is whether the court acted without authority in permitting the jury to correct their finding after returning the verdict, and to make it speak what they had agreed and intended it should, or to reform it in accordance with what they actually found.

The material facts, briefly stated, are as follows: The jury came into the courtroom about 12 o'clock noon and rendered their verdict as above set out. The issues were given to the clerk for recording. The court then excused the jury until after the noon recess. They separated and went out for dinner. About 2 p. m., just before the reconvening of court, several members of the jury approached the judge and stated that a mistake had been made in the verdict, and they desired to correct it. Upon the opening of court of the afternoon session, his Honor caused the jury to be reassembled in the box, and upon inquiry each and every juror stated that a mistake had been made in the answer to the third issue; that instead of being $10800 it should have been $1080. It was their finding that the plaintiff should be allowed $1 per 1,000 feet cut, but the foreman, in calculating the amount, erroneously computed it on the basis of $1 per 100 feet. Whereupon, the court, over plaintiff's objection, allowed the jury to retire with the issues and to reform the answer to the third issue in accordance with their original agreement and understanding. Plaintiff objected, and tendered judgment on the verdict as originally rendered.

There is no suggestion of any tampering with the jury, or other improper influence having been exerted over them, between the time they first rendered their verdict and when they asked to be allowed to reform it.Petty v. Rosseau, 94 N.C. p. 362.

It is firmly established in this State that jurors will not be allowed to attack or to overthrow their verdicts, nor will evidence from them be received for such purpose. Baker v. Winslow, 184 N.C. p. 9; Purcell v. R.R., 119 N.C. p. 739; Johnson v. Allen, 100 N.C. 137; Jones v. Parker,97 N.C. 33; S. v. Royal, 90 N.C. 755; McDonald v. Pless,264 U.S. 269; 59 L.Ed., 1300. But this rule does not affect the power of the court to perfect a verdict, nor to correct any inadvertence or mistake that may have occasioned the entry of a verdict at variance with the real finding of the jury. Cox v. R. R., 149 N.C. 87; Cole v. Laws,104 N.C. 657; Petty v. Rosseau, supra; Willoughby v. Threadgill,72 N.C. 438; Wright v. Hemphill, 81 N.C. 33.

The following general statement of the law, supported by the citation of a number of authorities, is taken from 27 R. C. L., 900:

"Mistake or Clerical Error — The general rule that the statements of jurors will not be received to establish their own misconduct or to impeach their verdict does not prevent the reception of their evidence as to what really was the verdict agreed on, in order to prove that, through mistake or otherwise, it has not been correctly expressed, as the agreement reached by the jury, and not the written paper filed, is the verdict, and a showing that the writing is incorrect is not an impeachment of the verdict itself."

The instant case presents, not an impeachment of the jury's verdict, but a correction of it such as the law allows.

We are not inadvertent to what was said in Mitchell v. Mitchell,122 N.C. 332, but the circumstances of that case were quite different from what they are here. There the verdict had become a part of the minutes of the court. The jury had separated and were out overnight. There was no suggestion from any of them that a mistake had been made or that they wished to reform the verdict as originally returned. Here the jury, of their own volition and without suggestion from any one, have asked to be allowed to correct the error or mistake. We think his Honor has acted within his discretionary powers.

No error.