Haughton v. Judsen, 42972
| Decision Date | 14 September 1967 |
| Docket Number | No. 1,No. 42972,42972,1 |
| Parties | Mrs. P. F. HAUGHTON et al. v. Earl J. JUDSEN |
| Court | Georgia Court of Appeals |
Syllabus by the Court
1. A verdict in a negligence action 'We, the jury, find the defendant not guilty as charged,' is valid. Its reasonable intendment is a verdict for the defendant in the form of current usage.
2. When a verdict has been received by the clerk of the court and, at the direction of the judge, read in open court, it has been published.
3. When a verdict has been published in open court, a plaintiff may not thereafter dismiss his action. He is bound by the verdict unless it is void or for some lawful reason can be set aside.
Growing out of the same automobile collision were four personal injury actions against the same defendant, all of which were, for convenience, tried together. In each case a verdict was returned in the form: 'We, the jury, find the defendant not guilty as charged,' which was received and publicly read by the clerk of the court at the judge's direction. The verdicts were dated and signed by one of the members of the jury, though it was not indicated whether he was the foreman. Plaintiff's counsel objected to the form of the verdicts and requested to court to send the jury back 'to put them in proper form,' and before the jury could return from their room he entered a voluntary dismissal, and thereupon the judge entered a judgment of dismissal.
Thereafter counsel for the defendants moved to set the judgment and voluntary dismissal aside and to have judgment entered on the verdict as returned for the defendant. Upon consideration the motion was granted, and plaintiffs appeal.
Moon, Harris & Dineen, W. D. Moon, Chattanooga, Tenn., Frank M. Gleason, Rossville, for appellants.
John E. Wiggins, Ringgold, for appellee.
1. Was the verdict void because of its form? True enough, the form used by the jury was not one to which we have been accustomed in civil cases; rather, it is the form generally used in criminal cases. But this is not enough to invalidate the verdict if by inspection or by a reasonable construction we may apprehend its intendment. Code § 110-105.
In these cases the defendant was charged with specific acts of negligence, and in order to recover it was incumbent upon the plaintiffs to demonstrate to the satisfaction of the jury that he had been guilty of one or more of them. The jury was so charged by the court. What, then, did the jury intend to say when returning a verdict of 'We, the jury, find the defendant not guilty as charged.' The verdict may be construed in the light of the pleadings, the issues made by the evidence and the charge. Harvey v. Head, 68 Ga. 247; Taylor v. Brown, 165 Ga. 698, 700, 141 S.E. 898; Powell v. Moore, 202 Ga. 62, 66, 42 S.E.2d 110. A verdict is certain which can be made certain by what it contains or by the record. Jackson v. Houston, 200 Ga. 399, 37 S.E.2d 399. The presumptions are in favor of the validity of verdicts, and if possible a construction will be given which will uphold them. Atlantic & Birmingham Ry. Co. v. Brown, 129 Ga. 622(4), 59 S.E. 278. Even if the verdict is ambiguous (which this is not) and susceptible of two constructions, one of which would uphold it and one of which would defeat it, that which would uphold it is to be applied. Calhoun v. Babcock Bros. Lbr. Co., 199 Ga. 171, 33 S.E.2d 430.
Can there be any doubt that the intendment of the jury here was to say to the court and to the parties that the evidence had been weighed in the light of the court's charge and that they had concluded that plaintiffs had failed to sustain any charge of negligence made in their petitions? We think not.
We have found no case in which the Supreme Court or this court has dealt with the exact situation here presented. But we do find that wherever it has come up in other states which have rules for the construction of verdicts similar to ours, the verdict has been upheld. E.g., Worford v. Isbel, 1 Bibb (Ky.) 247, 4 Am.Dec. 633, and action for assault and battery; Walter v. Louisville R. Co., 150 Ky. 652, 150 S.W. 824, 43 L.R.A.,N.S., 126, Ann.Cas.1914D, 441, an action to recover for the alleged negligence of a railroad; Wheat's Adm'r v. Gray, 309 Ky. 593, 218 S.W.2d 400, 7 A.L.R.2d 1336, an action to recover for the death of plaintiff's intestate when struck by defendant's automobile; Wilson v. McCarty, 156 Iowa 660, 137 N.W. 920, an action for breach of promise of marriage; Hanson v. Kendt, 94 Kan. 310, 146 P. 1190, 1191, an action for assault and battery; Ambrose v. Allen, 113 Cal.App. 107, 298 P. 169, a negligence action. In Hawkes v. Crofton, 2 Keny. 388 (96 Eng.Rep. 1219), a verdict finding the defendant guilty and assessing damages in an action of trespass, assault and battery, was upheld.
There can be no difficulty in construing these verdicts as being for the defendant. As the Iowa court observed in Wilson v. McCarty, supra, 'It was a clear finding for the defendant, and would indicate that some of the jurors had knowledge of the old form of verdict in such cases, which was 'not guilty."
The verdicts were and are valid, though in a form not in general current usage.
2. It is contended that the verdicts were not published and that for this reason the dismissal of the petitions was permissible. With this we cannot agree. The record indicates that when the jury had reached a consensus and returned to the box the judge inquired of them whether they had reached verdicts in the cases; one of them replied that they had and the judge then directed the clerk to receive and publish the verdicts....
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...one of which would uphold it and one of which would defeat it, that which would uphold it is to be applied. (Cit.)' Haughton v. Judsen, 116 Ga.App. 308, 310 (157 SE2d 297)." West Ga. Pulpwood, etc., Co. v. Stephens, 128 Ga.App. 864, 869(3), 870, 198 S.E.2d 420. In the case sub judice, it is......
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...of which would uphold it and one of which would defeat it, that which would uphold it is to be applied. [Cit.]' Haughton v. Judsen, 116 Ga.App. 308, 310 (157 SE2d 297) [1967]." See also Suber v. Fountain, 151 Ga.App. 283, 290-291, 259 S.E.2d 685 Again referring to West Ga. Pulpwood, supra, ......
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