Bronstein v. American Ice Co.

• Decision Date: 07 December 1912
• Citation: 86 A. 131,119 Md. 132
• Parties: BRONSTEIN v. AMERICAN ICE CO.
• Court: Maryland Court of Appeals

86 A. 131

119 Md. 132

BRONSTEIN v. AMERICAN ICE CO.

Court of Appeals of Maryland

December 7, 1912

Appeal from Baltimore City Court; Walter I. Dawkins, Judge.

Action by Harry Bronstein, an infant, by his father and next friend Benjamin Bronstein, against the American Ice Company. Judgment for defendant, and plaintiff appeals. Affirmed.

Argued before BOYD, C.J., and BRISCOE, PEARCE, THOMAS, PATTISON, and STOCKBRIDGE, JJ.

Eugene O'Dunne and Donald B. Creecy, both of Baltimore, for appellant.

German H. H. Emory of Baltimore, for appellee.

THOMAS J.

This suit was brought by the appellant in the Baltimore city court to recover damages for injuries alleged to have been sustained, while on one of the streets of said city, by reason of the negligence of the appellee's agent or servant.

The record shows that the case has been tried three times. The first trial resulted in a verdict for the plaintiff for $100. On the motion of the plaintiff, that verdict was set aside and a new trial granted, and at the second trial the jury failed to agree. The third trial began on the 13th of March 1912, and what took place at that trial is stated in the certificate of the presiding judge and agreement of counsel set out in the record and also included in the first bill of exceptions, as follows:

"Testimony having been taken on behalf of both the plaintiff and defendant, and the court having granted prayers at the request of the plaintiff and the defendant, after argument on the 14th day of March, 1912, the jury retired to consider their verdict and were given leave to bring a sealed verdict to the court at 10 o'clock a.m. on Friday the 15th day of March, 1912, at which time the court and jury met pursuant to adjournment.

"Immediately upon the meeting of the court, the clerk, Mr. Stephens, announced that the jury had agreed. The court then told Mr. Stephens to take the verdict. Mr. Stephens then read the names of the jurymen and the sealed verdict of the jury was then handed to the clerk by the foreman, who thereupon handed it to the court. Whilst it was being opened by the court, the clerk called the plaintiff and the plaintiff answered by Mr. Lewis S. Ashman, one of the counsel of record for the plaintiff. Upon the opening of the sealed verdict by the court, the court expressed its unwillingness to receive it in the form in which it was, owing to a clerical error. The form in which it then appeared was as follows (though counsel were not shown it or informed of its nature):

"'Harry Bronstein, an Infant, by His Father and Next Friend, Benjamin Bronstein, v. The American Ice Company, a Body Corporate.

"'In the Baltimore City Court. No. 223 Trials. January Term, 1912.

We, the undersigned jurors, having been duly impaneled and sworn in due form of law (affirmed) to try the issues joined in the above entitled case upon our oaths (affirmations), do say that we find our verdict for the plaintiff, and we assess the damage by reason of the premises at the sum of ...... dollars and ...... cents ($......).->>

defendant.

"'And we do authorize and direct our foreman, Mr. John S. Bridges, to deliver this, our signed and sealed verdict, to the court.

"'Witness our hands and seals this 14th day of March, 1912.

"'John S. Bridges [Seal.]

"'E. F. Tyler. [Seal.]

"'William H. Gessler. [Seal.]

"'Geo. Ed. Numsen. [Seal.]

"'Harry M. Wagner. [Seal.]

"'William C. Coddington. [Seal.]

"'Frederick L. Roden. [Seal.]

"'Charles W. Hoot. [Seal.]

"'Alex. R. Carr. [Seal.]

"'Herman H. Siltman. [Seal.]

"'J. Herman Craig. [Seal.]

"'Herman Doroff, Jr. [Seal.]'

"While the paper was still in the hands of the court, and before any one's attention had been called to it, except that of the clerk, counsel for respective parties were called before the court, and then and there, without having been told the contents of the paper in the court's hand, agreed in open court that the jury should be allowed to go back to their room and correct the verdict. The jury at once retired. At 10:20 the jury again return-to the courtroom. Their names were again called by Mr. Stephens. When Mr. Stephens asked them if they had agreed upon a verdict, they said they had, and announced that it was a sealed verdict. The foreman then handed to Mr. Stephens the sealed verdict. The clerk then again called the plaintiff. Mr. Folger, one of the bailiffs, responding for the plaintiff under direction of the clerk, who was given authority the day before by the plaintiff to respond, but whose authority so to do had been revoked by the plaintiff the following morning before the verdict was taken, which being explained to the court and admitted by the bailiff and the clerk, the court then asked Mr. O' Dunne if he wanted to answer, and Mr. O'Dunne replied that he was only trying the case for Mr. Ashman, and that Mr. Ashman had advised him that he was going to take a non pros. Mr. Ashman said that the plaintiff would not answer.

"Mr. Emory, counsel for the defendant, then said: 'I now want to move the court to receive the verdict, on the ground that the plaintiff was called once and answered, and a sealed verdict was presented to the court. The court advised counsel that the sealed verdict was not in proper form, and the plaintiff then consented, and so did the defendant, that the jury should retire and put their verdict in proper form. The jury has now returned, after having put the verdict in proper form, and I now move your honor that the verdict be received, whatever the verdict may be.

"'The Court: I think it is proper to grant that motion.

"'Mr. Stephens: (the court clerk): There has been no answer for the plaintiff.

"'Mr. Ashman: Your honor, a verdict that is improper is no verdict at all.

"'The Court: I shall receive the verdict, Mr. Ashman. The plaintiff has been called and has answered.'

"The court then received the verdict as amended by the jury, which was in form as follows:

"'Harry Bronstein, an Infant, by His Father and Next Friend, Benjamin Bronstein, v. The American Ice Company, a Body Corporate.

"'In the Baltimore City Court. No. 223 Trials. January Term, 1912.

"'We, the undersigned jurors, having been duly impaneled and sworn in due form of law to try the issues joined in the above-entitled case upon our oaths, do say that we find our verdict for the

We, the undersigned jurors, having been duly impaneled and sworn in due form of law (affirmed) to try the issues joined in the above entitled case upon our oaths (affirmations), do say that we find our verdict for the plaintiff, and we assess the damages by reason of the premises at the sum of ...... dollars and ...... cents ($......).->>

defendant.

"'And we do authorize and direct our foreman, Mr. John S. Bridges, to deliver this, our signed and sealed verdict, to the court.

"'Witness our hands and seals this fourteenth day of March, 1912.

"'John. S. Bridges. [Seal.]

"'E. F. Tyler. [Seal.]

"'William H. Gessler. [Seal.]

"'Geo. Ed. Numsen. [Seal.]

"'Harry M. Wagner. [Seal.]

"'William C. Coddington. [Seal.]

"'Frederick L. Roden. [Seal.]

"'Chas. W. Hoot. [Seal.]

"'Alex. R. Carr. [Seal.]

"'Herman H. Siltman. [Seal.]

"'J. Herman Craig. [Seal.]

"'Herman Doroff, Jr. [Seal.]'

"And the plaintiff, when then called, refused to answer, and the jury were asked to hearken to their verdict, which they did, and the verdict was enrolled under these circumstances."

A "judgment on the verdict nisi" was entered, and on the 18th of March the plaintiff filed the following motions: A motion to strike out the verdict; a motion to strike out the judgment; a motion to strike out the verdict and judgment; a motion in arrest of judgment, and a motion for a new trial, assigning as the reason for said several motions the matters and facts set out in the above certificate of the judge and agreement of counsel, and the five exceptions in the record are to the rulings of the court on these motions. A final judgment on the verdict in favor of the defendant having been entered, the plaintiff appealed.

It is said in Bacon's Abridgment, vol. 7 (6th Ed.) p. 3: "A privy verdict is so called because what is there found ought to be kept secret until a verdict is given in open court. A jury may find differently by a verdict given in open court from what they found by a privy verdict." And we find in 3 Blackstone's Com. 377, the statement that "a verdict, veredictum, is either privy or public. A privy verdict is when the judge hath left or adjourned the court; and the jury, being agreed, in order to be delivered from their confinement, obtain leave to give their verdict privily to the judge out of court, which privy verdict is of no force, unless afterwards affirmed by a public verdict given openly in court; wherein the jury may, if they please, vary from the privy verdict." It is said in 22 Ency. of P. & P. 1008, that "it is generally regarded as necessary, where the jurors have agreed upon a verdict, sealed it up, and separated, that they should be subsequently recalled for affirmance of the verdict." And on page 1011 it is further said, "When a sealed verdict has been returned, the court may amend it as to inadvertent errors, omissions, or inaccuracies in matters of form;" and that: "A sealed verdict, as delivered by the jury, is not conclusive in the sense that it cannot be altered or corrected by the jury if defective or irregular. Where, when a sealed verdict is read in open court for the jury's affirmance, it is found to be irregular, uncertain, or defective, the jury may be directed to retire again to put the finding in proper form."

In the case of Edelen v. Thompson, 2 Har. & G. 31, the court said: "It appears to us that the verdict handed to the clerk is in the nature of a...