Hopkinson's Admx. Et Als. v. Stanley D. Stocker
| Decision Date | 03 January 1950 |
| Docket Number | 1173. |
| Citation | 70 A.2d 587,116 Vt. 98 |
| Parties | HOPKINSON'S ADMX. ET ALS. v. STANLEY D. STOCKER |
| Court | Vermont Supreme Court |
Special Term at Rutland, November, 1949.
ACTION OF TRESPASS for wrongful cutting of timber under V. S. /n 8403. Trial by jury, Windham County Court, September Term 1948, Cushing, J., presiding. Verdict for the plaintiffs to recover $ 5000.00. Subsequently, and before final judgment the jury was recalled and changed the verdict to $ 500.00. Judgment for the plaintiff for $ 500.00. Both parties excepted.
Judgment reversed, new trial granted, and cause remanded.
Gibson & Crispe for the defendant.
Osmer C. Fitts and Robert T. Gannett, II for the plaintiffs.
Present SHERBURNE, C. J., JEFFORDS, CLEARY, ADAMS and BLACKMER, JJ.
This is an action for trespass and wrongful cutting of timber and seeking treble damages under P. L. 8540. On October 28, 1948, the jury returned a verdict for the plaintiffs in the amount of $ 5,000.00, and thereupon was dismissed by the court and separated. Subsequently it was reported to the court by one of the jurors that an error might have been made in the computation of the amount of the damages, and the defendant filed a motion to poll the jury. On November 3, 1948, the court recalled the jurors into the jury box, and asked them if the verdict for $ 5,000.00 was the verdict which they intended to return, to which the foreman and all answered that the verdict was not correct. Whereupon the court said: "The Court is going to ask that you retire to the jury room and upon the evidence which you already have and no other information and no other discussion and no other consideration of the matters of damage, that you refigure the damages in this case and return a corrected verdict." To this exceptions were allowed both parties. A. purported corrected verdict for the plaintiffs in the amount of $ 500.00 was thereupon returned, and the jurors were again dismissed, and the plaintiffs were allowed exceptions. Subsequently the plaintiffs filed a motion for judgment upon the $ 5,000.00 verdict and a motion to set aside the $ 500.00 verdict. Plaintiffs' motions were denied and, by a divided court, judgment was entered upon the $ 500.00 verdict, to all which the plaintiffs excepted.
No record was kept concerning what the juror told the court in the presence of counsel for both parties. Because of the briefing it is necessary to mention certain statements made by counsel. In chambers after the resubmission defendant's counsel, for the purpose of perfecting the record, stated that Mr. Marden, one of the jurors, informed the court that the jury had made a mistake in calculation, in that after much deliberation they had concluded that the defendant had cut 50,000 feet of standing timber, and they fixed the value at $ 10.00 a thousand, but that in figuring the damages the foreman arrived at the figure of $ 5,000.00, making an error in the decimal point, and that if he had figured it correctly it would have been $ 500.00. When the jury returned with the amended verdict the court asked if either party wished to poll the jury, and counsel of each replied "No". After the jury was again discharged plaintiffs' counsel, for the purpose of correcting the statement of defendant's stated that as he recollected Mr. Marden's statement to the court, he first spoke of 100,000 feet as being the first figure that the jury had considered, even to the extent of having reduced that figure into dollars by multiplying it by $ 10.00 a thousand and arriving at $ 10,000.00, and he then stated that it was the jurors' considered opinion that 50,000 feet was the amount cut, and that the dollar damage in connection therewith was $ 5,000.00 on the basis of the $ 10,000.00 which they had arrived at in considering 100,000 feet, and he further stated that in the consideration of trebling the damages, he and two other jurors had felt that the defendant had not sustained the burden upon him, and that the damages, or a part thereof, should have been trebled; however, in view of the amount of $ 5,000.00 which had been arrived at as single damages, he indicated that treble damages were passed up because $ 5,000.00 seemed to be adequate from a dollar point of view. Defendant's counsel then stated that as he understood it the jury stood nine to three against treble damages, and decided on no treble damages. In view of the court's question to the jury, and the answers given, it is probable that the mistake was one of computation only.
So far as called to our attention we have only two cases in which a verdict has been permitted to be amended by the jury after their discharge from the case. In Montgomery v Maynard, 33 Vt. 450, 455, 456, the jury returned a verdict that the plaintiff was in arrear to the defendants in the sum of $ 13.60 and that the defendants recover that sum of the plaintiff, with costs, and the verdict was recorded. In about five minutes after the verdict was rendered, the counsel of the plaintiff informed the court that the jury, by mistake, had rendered a verdict for the defendants to recover $ 13.60 of the plaintiff, when in fact they intended to render a verdict for the plaintiff to recover that sum from the defendants. The jury were called back, and were inquired of if they had had any conversation with any one since the return of the verdict, and none had except one who had gone to the tavern, and being asked how the verdict was, had replied that it was for the plaintiff for $ 13.60. The court then stated to the jury that they had been informed that there was an error or mistake made by them in their verdict, and that they had intended a verdict for the plaintiff instead of the defendants, and inquired of them if there was any mistake. The foreman replied that there was a mistake in the verdict, that it was his own fault, in filling up the blank given to the jury by the clerk; that he had, by mistake, filled out and signed the one for the defendants, when the jury had all agreed upon one for the plaintiff. The court thereupon directed the jury to take back their verdict and retire and consult as to the same, and bring in such a verdict as they really intended to render. The jury retired and soon...
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