Allen v. Yarborough

• Decision Date: 04 November 1931
• Docket Number: 336.
• Citation: 160 S.E. 833,201 N.C. 568
• Parties: ALLEN v. YARBOROUGH.
• Court: North Carolina Supreme Court

160 S.E. 833

201 N.C. 568

ALLEN v. YARBOROUGH.

No. 336.

Supreme Court of North Carolina

November 4, 1931

Appeal from Superior Court, Durham County; Cameron F. MacRae Special Judge.

Action by James Allen against Hill Yarborough. From a judgment for plaintiff, defendant appeals.

New trial granted.

Requiring jury to reconsider verdict finding defendant's negligence damaged plaintiff's automobile, plaintiff's negligence contributing, because inconsistent, held, error.

On November 6, 1929, there was a collision between the plaintiff's car and a car driven by the defendant. In December, the plaintiff brought suit to recover damages alleged to have been caused by the negligence of the defendant. At the trial, the jury returned the following verdict:

(1) Was the plaintiff's automobile damaged by the negligence of the defendant as alleged in the complaint? A. Yes.

(2) If so, did the driver of the plaintiff's automobile, by his own negligence, contribute to the damage of the plaintiff's automobile, as alleged in the complaint? A. Yes.

(3) What amount, if any, is the plaintiff entitled to recover of the defendant? A. $70.

After reading the issues and the answers, the clerk inquired "So say you all?" to which inquiry all of the jurors signified their assent.

Upon announcement of the verdict by the jury and the examination by the court of the issues and the written answers thereto the court said: "Gentlemen, your verdict is inconsistent. If you answer the second issue yes, you should not answer the issue as to damages; you can award damages only in the event you answer the first issue yes and the second issue no. You will retire, gentlemen, and reconsider your verdict."

Thereupon a member of the jury told the court that they had misunderstood his former instructions; that they had understood they must answer the second issue "Yes" in order to allow the plaintiff damages. The defendant in apt time excepted to the instruction of the court.

The defendant moved for judgment upon the verdict. The motion was overruled, and the defendant excepted.

The jury then returned their verdict, answering the first issue yes, the second no, and the third $70. Judgment was given for the plaintiff, and the defendant excepted and appealed.

W. H. Yarborough, Jr., of Louisburg, for appellant.

W. L. Foushee, of Durham, for appellee.

ADAMS J.

Before a verdict is complete, it must be accepted by the court for record. State v. Godwin, 138 N.C. 582, 50 S.E. 277; State v. Bagley, 158 N.C. 608, 73 S.E. 995; State v. Snipes, 185 N.C. 743, 117 S.E. 500. This does not imply, however, that in accepting or rejecting a verdict the presiding judge may exercise unrestrained discretion. It is his duty to scrutinize a verdict with respect to its form and substance, and to prevent a doubtful or insufficient finding from becoming a record of the court. State v. Bazemore, 193 N.C. 336, 137 S.E. 172. But his power to accept or reject the jury's finding is restricted to the exercise of a limited legal discretion. He may direct the jury to reconsider their verdict if it is imperfect, informal, insensible, repugnant, or not responsive to the issues or indictment, or if it cannot sustain a judgment. Willoughby v. Threadgill, 72 N.C. 438; State v. Hudson, 74 N.C. 246; State v. Whitaker, 89 N.C. 473; State v. Whitson, 111 N.C. 695, 16 S.E. 332; State v. Godwin, supra; State v. Parker, 152 N.C. 790, 67 S.E. 35; Ayscue v. Barnes, 190 N.C. 859, 129 S.E. 592; Oates v. Herrin, 197 N.C. 171, 148 S.E. 30. In State v. Arrington, 7 N. C. 571, it was said, "When a jury returns with an informal or insensible verdict, or one that is not responsive to the issues submitted, they may be directed by the Court to reconsider it; but not where the verdict is not of such description."

Was the verdict in the present case "of such description"? Was it insensible or repugnant or so indefinite that no judgment could be rendered? We think not. As at first returned, the verdict was a plain and explicit response to the issues submitted. It was not essentially inconsistent. It meant simply this: The drivers of the two cars were negligent; their concurrent negligence produced the injury complained of; and although the plaintiff suffered loss in the sum of $70,...