State Life Insurance Company v. Postal

• Decision Date: 12 June 1908
• Docket Number: 5,995
• Citation: 84 N.E. 1093,43 Ind.App. 144
• Parties: STATE LIFE INSURANCE COMPANY v. POSTAL
• Court: Indiana Appellate Court

84 N.E. 1093

43 Ind.App. 144

STATE LIFE INSURANCE COMPANY v. POSTAL

No. 5,995

Court of Appeals of Indiana

June 12, 1908

43 Ind.App. 144. At 150.

Original Opinion of April 3, 1908, Reported at: 43 Ind.App. 144.

Petition overruled.

HADLEY J. Roby, J., absent.

OPINION

ON PETITION FOR REHEARING.

HADLEY, J.--

Upon petition for a rehearing, counsel for appellant have most ably and earnestly argued that we are in error in holding that the trial court did not err in permitting the second question--"Are you still satisfied with your verdict?"--to be propounded upon the poll of the jury. Polling the jury is but a means of obtaining the sense, in open court, of each individual juror, as to the correctness of the verdict rendered. McClaren v. Indianapolis, etc., R. Co. (1882), 83 Ind. 319; Joy v. State (1860), 14 Ind. 138.

The absolute right of either party to poll a jury did not exist at common law; but the exercise of the right was left to the sound discretion of the trial judge. Doyle v. United States (1881), 11 Biss. 100, 10 F. 269. By our statute this right is made absolute, the language of the statute (§ 570 Burns 1908, § 544 R. S. 1881) being: "either party may poll the jury." These words are evidently used in a technical sense, and, in construing them, must be given a technical meaning. § 240 Burns 1908, cl. 1, § 240 R. S. 1881.

To poll a jury is to call the names of the persons who compose it, and require each man to declare his verdict before it is recorded. Anderson's Law Dict. To poll a jury is to require that each juror shall himself declare what is his verdict. Bouvier's Law Dict. The statute does not prescribe the form of the question to be propounded. Therefore any form of words that, in a concise manner, would elicit the information warranted under the limitations of the foregoing definitions would meet the requirements of the statute and accord the party all of his rights thereunder; the purpose of the poll being to enable the jurors to avail themselves of the locus poenitentiae and correct a verdict mistakenly reached, or about which, upon further reflection, they have doubt. Blackley v. Sheldon (1810), 7 Johns. *32; Root v. Sherwood (1810), 6 Johns. (N. Y.) *68, 5 Am. Dec. 206.

It has been a fundamental principle of the law from the time of the inauguration of the jury system to allow the jury all reasonable opportunity, before their verdict is recorded and they are discharged, to declare the truth according to their consciences. And the object of the poll is to give the juror an opportunity to declare in open court his judgment in praesenti. 3 Blackstone's Comm., *377; Anonymous (1562), 2 Dyer 204b; Saunders v. Freeman (1562), 2 Dyer 209a; Watts v. Brains (1601), Cro. Eliz. 779; Commonwealth v. Roby (1832), 12 Pick. 496; Adkins v. Blake's Admrs. (1829), 25 Ky. *40; Perry v. Mays (1831), 2 Bail. 354; Lawrence v. Stearns (1831), 11 Pick. 501; Weeks v. Hart (1881), 24 Hun 181; Campbell & Jones v. Murray (1878), 62 Ga. 86; Martin v. Morelock (1863), 32 Ill. 485; Scott v. Scott (1885), 110 Pa. St. 387, 2, 2 A. 531 A. 531; Labar v. Koplin (1851), 4 Comst. (N. Y.) *547. In the case last cited the court say: "It is decided to be the absolute right of a party to have the jury polled on their bringing in their verdict, whether it be sealed or oral, unless he has expressly agreed to waive that right. The object of polling a jury is to ascertain if the verdict which has just been presented or announced by their foreman is their verdict, or in other words if they still agree to it; not to ask them what their verdict means, nor to question them as to their intention in finding it."

This being the intent and purpose of the law, the exact form of the question to be propounded would seem immaterial so long as the answers pertinent thereto are in exact line with such intent and purpose. This is illustrated by the fact that the form of the question varies in different jurisdictions as well as in different courts of the same jurisdiction although all agree upon the purpose and limitations of the poll. The one in most common use is the simple question, "Is this your verdict?" Several cases hold with Bowen v. Bowen (1881), 74 Ind. 470, that this covers the whole scope of the inquiry, and is all that a party has a right to ask. And while we are unqualifiedly of the opinion that it is a much safer practice for our courts to confine themselves to this simple form of inquiry, yet we do not hold and do not understand the case just cited to hold that the inquiry must necessarily be in those exact words, and that the same inquiry may not be couched in different language. And we can see no substantial difference between the question, "Is this your verdict?" and the questions as here put, "Is this your verdict?" and "Are...