Alston v. Alston, 189 N.C. 299 (1925)

March 18, 1925 · Supreme Court of North Carolina

189 N.C. 299

FRED ALSTON v. NANCY ALSTON.

(Filed 18 March, 1925.)

Verdict — Polling Jury — Reversal of Verdict — Appeal and Error.

After a jury has rendered its verdict upon the evidence, without indication by any of the jurors of any dissatisfaction therewith, and have been, discharged from further consideration of the case, and have mingled with those upon the outside of the panel, it is reversible error for the trial judge to ask them if they had not made a mistake in their answer to an issue, poll them, and reverse the issue in accordance with their answer to his question.

Appeal by plaintiff from Horton, J., at August Term, 1924, of FbANKLIN.

Plaintiff alleges two causes of action for divorce — one tbat tbe defendant bas committed adultery (C. S., 1659), and tbe other tbat tbe plaintiff’s life bas been endangered by tbe cruel and barbárous treatment of tbe defendant (C. S., 1660).

Defendant files answer denying tbe allegations of tbe complaint, and sets up, by way of cross action, two causes for divorce: (1) tbat plaintiff bas maliciously turned tbe defendant out of doors; and (2) tbat plaintiff bas offered sucb indignities to tbe person of tbe defendant as to render ber- condition intolerable and life burdensome.

Upon tbe issues tbus joined, and wbicb were supported'by evidence, tbe following verdict and record appear in tbe case: •

“1. Were tbe plaintiff and defendant married? Answer: Wes.’

“2. Has plaintiff been a resident of tbe State for two years next prior to tbe bringing of tbis action? Answer: ‘Yes.’

“3. Did tbe defendant, Nancy Alston, commit adultery as alleged in tbe complaint? Answer: ‘No.’

“4. Did tbe defendant by cruel and barbarous treatment endanger tbe life of tbe plaintiff? Answer:.‘Yes.’ (Later changed to‘No.’)

“5. Did tbe plaintiff maliciously turn tbe defendant out of doors as alleged in tbe answer ? Answer:‘Yes.’

“6. Did tbe plaintiff offer sucb indignities to tbe person of tbe defendant as to render ber condition intolerable and life burdensome ? Answer: ‘Yes.’ ”

• “Tbe jury, about noon, returned a verdict, answering tbe first and second issues, ‘Yes,’ tbe third, ‘No,’ tbe fourth issue, ‘Yes,’ tbe fifth and sixth issues, ‘Yes’; and tbe jury was discharged. At tbe opening of tbe evening' session of tbe court, bis Honor bad tbe jury called into tbe box, and asked them if they bad not made a mistake in answering tbe fourth issue, ‘Yes.’ Each of tbe jurors stated tbat they ought to have answered tbat issue, ‘No.’ Plaintiff objected and excepted to tbe examination of each and every juror by bis Honor, because after tbe return of tbe verdict and discharge of tbe jury, tbe case was ended, and.calling tbe jury back and allowing them to reverse themselves was contrary to tbe practice and procedure of tbe court.”

From a judgment against tbe plaintiff awarding tbe defendant alimony and. counsel fees, and retaining tbe cause for further orders, plaintiff appeals.

W. M. Person for plaintiff.

Wm. H. and Thos. W. Ruffin for defendant.

Stacy, C. J.,

after stating tbe case: It is tbe position of tbe plaintiff, appellant, tbat tbe court acted without authority in reassembling tbe jury, after its discharge, and permitting a change in tbe verdict wbicb bad previously been rendered. Tbe record fails to disclose tbe reason for tbis procedure, as tbe evidence was amply sufficient to support tbe verdict. In fact, tbe evidence was all one way as to tbe alleged treatment of tbe plaintiff by tbe defendant. According to tbe ■ plaintiff’s testimony, the defendant deliberately threw boiling water on Mm in August and inflicted such serious injuries as to confine Mm to Ms room for three or four months or until nearly Christmas thereafter. Defendant admitted throwing boiling water on plaintiff about an hour after they had had a fight in the month of August.

There was no suggestion from any member of the jury that the verdict, as rendered and accepted by the court, did not represent the actual finding of the jury, nor was it suggested that the same should be corrected to make it speak the truth or show what the jury had really done. It will be observed that after the jury was reassembled and asked if it had not made a mistake in answering the fourth issue “Yes,” each of the jurors stated the issue “ought to have been answered, ‘No.’ ” But they do not say that such was the original agreement of the jury and that the issue was answered “Yes” by mistake or inadvertence. The effect of what took place, therefore, was, not to correct an error in the verdict, as sanctioned by Lumber Co. v. Lumber Co., 187 N. C., 417, but to impeach the verdict, as rendered, and to return a different verdict. This procedure was disapproved in Mitchell v. Mitchell, 122 N. C., 332.

It is possible that no real harm has resulted from the irregular procedure in the present case, but we cannot approve, as a precedent, the practice of recalling the jury and allowing a change to be made in the verdict, after separation and over objection, when an opportunity has intervened, as it had here, for the operation of outside and undue influences on the minds of the jurors. Wright v. Hemphill, 81 N. C., 33.

His Honor might have declined to accept the verdict when it was first rendered, or he could have set it aside and retired the case; but on the record, as now presented, the plaintiff must be awarded another hearing, and it is so ordered.

New trial.