Bino v. Veenhuizen

• Decision Date: 09 November 1926
• Docket Number: 20012.
• Citation: 141 Wash. 18,250 P. 450
• Parties: BINO et al. v. VEENHUIZEN ex ux.
• Court: Washington Supreme Court

250 P. 450

141 Wash. 18

BINO et al. v. VEENHUIZEN ex ux.

No. 20012.

Supreme Court of Washington

November 9, 1926

Department 2.

Appeal from Superior Court, King County; Jones, Judge.

Action by Louis Bino, a minor, by Laura Bino, his guardian ad litem and another, against H. Veenhuizen and wife. From a judgment refusing to enter judgment on a claimed valid verdict for defendants, they appeal. Affirmed.

Until verdict is reached and jury discharged, its action is not final.

Poe Falknor, Falknor & Emory, of Seattle, for appellants.

Adam Beeler and John F. Dore, both of Seattle, for respondents.

ASKREN J.

This appeal is from a judgment of the trial court refusing to enter a claimed valid verdict of a jury in favor of the appellants. The facts follow:

At the close of the trial the jury were sent out to deliberate upon their verdict. Later the court was notified that they had reached a verdict, and he ordered them brought into open court. The jury was then asked if it had agreed upon a verdict in the case, and the foreman responded in the affirmative. The verdict, omitting the formal parts, was as follows:

'We, the jury in the above-entitled cause, do find for the defendant. Not guilty.

'Virginia Kennett, Foreman.'

At the time none of counsel for the parties was present, save one of the attorneys for the plaintiff. The court was of the opinion that the verdict was defective by reason of containing the words 'not guilty,' and called the plaintiff's counsel to the bench. After some consultation, the court instructed the jury that the verdict was defective, and sent them back to correct it. The verdict was not returned with the jury. Shortly thereafter the jury returned with an inquiry whether they should ballot or not, and were instructed by the court that the case was still in their hands, and that they should ballot until they reached a verdict. Later the jury announced that they were unable to agree. One of the jurors said that, after the verdict had been reached, an hour had passed without objection, although three jurors had gotten together in a corner and whispered. The jury were sent back to the jury room, and later, upon being returned to court, in the presence of counsel for both parties, announced that they were unable to reach a verdict, and were then discharged from further consideration of the case. Appellant thereafter moved the court to enter judgment upon the verdict which had been brought in by the jury, and which the court deeming informal and defective, had sent back for correction. Upon its refusal this appeal resulted.

Appellant urges that the verdict was one that should have been received by the trial court, inasmuch as the words 'not guilty' contained therein were mere surplusage. That it was one that the court could have received must be admitted, for by our previous decisions, if the verdict be such as shows the plain intent of the jury, and is sufficient under the issues, the court may accept and record the same, and treat the informal parts as surplusage. Martin v. Nichols, 110 Wash. 451, 188 P. 519; Pearson v. Arlington Dock Co., 111 Wash. 14, 189 P. 559. But whether the court should have accepted this verdict, which it considered informal and defective, presents another question:

Section 360, Rem. Comp. Stats., provides:

'If the verdict be informal or insufficient, it may be corrected by the jury under the advice of the court, or the jury may again be sent out.'

Reading the above-quoted section, it is apparent that the court is authorized by statute to send the jury out for further deliberation in cases where the verdict is informal or defective. The law does not require that this be done, but authorizes it if in the judgment of the court it should be done.

The purpose of the law is apparent. All too often questions arise upon the true construction of verdicts, even those that are only informal and defective, and appeals result. It is to the interest of clients, counsel, and the courts to have verdicts returned in such form as to obviate perplexing questions arising therefrom. The trial court out of an abundance of caution desired to have the verdict in proper form. His action, therefore, should be commended rather than frowned upon.

In Grant v. State, 33 Fla. 291, 14 So. 757, 23 L. R. A 723, a jury in a murder case returned a verdict finding the defendant 'guilty of manslaughter in the first degree.' Inasmuch as there are no degrees of manslaughter, the words 'in the first degree' were mere surplusage, and rendered the verdict informal and defective. The court sent the jury out for the purpose of correcting the verdict, and they later returned with a verdict of murder in the first...