Trantham v. Elk Furniture Co

• Decision Date: 30 November 1927
• Docket Number: (No. 383.)
• Citation: 140 S.E. 300
• Court: North Carolina Supreme Court
• Parties: TRANTHAM. v. ELK FURNITURE CO.

140 S.E. 300

(194 N. C. 615)

TRANTHAM.

v.ELK FURNITURE CO.

(No. 383.)

Supreme Court of North Carolina.

Nov. 30, 1927.

jurors answered "Yes" and later, after court had stated it did not understand why they should bring in issue answered "No" when three were answering when their names were called they desired to answer "Yes, " two explained that they meant to express how they stood in vote before they had reached final answer, and on roll call all jurors answered "No, " there was no error.

Appeal from Superior Court, Davidson County; Harding, Judge.

Action by one Trantham against the Elk Furniture Company. From the judgment, plaintiff appeals. No error.

Plaintiff instituted an action against the defendant for damages for personal injury sustained by reason of what plaintiff alleged was a defective machine. The defendant, among other defenses, pleaded that a full settlement had been made with the plaintiff and a release taken in discharge of its liability. Thereupon the plaintiff alleged that the release was secured by means of fraud.

Issues arising upon the pleadings were submitted to the jury. The first issue is as follows:

"Was the release set out in the answer of the defendant procured by fraud as alleged in the reply of the plaintiff?"

The jury answered this issue "No, " and did not answer any other issue. From the judgment rendered, plaintiff appealed.

Walser & Walser and Phillips & Bower, all of Lexington, for appellant.

McCrary & De Lapp, of Lexington, for appellee.

BROGDEN, J. The only point presented in the case is based upon the following facts:

"The jury then came into the court and through its foreman handed the presiding judge the issues. The first issue: 'Answer: No.' The other issues are not answered. 'Whereupon, ' stated the court, 'you answer the first issue, "No;" all of you say that, ' and the jury said, 'Yes.' Counsel for the plaintiff then moved the court to have the jury polled; whereupon the presiding judge requested the jury to stand, and said to the jury: 'As many of you now favor to answer the issue "Yes" will say "Yes, " and those who favor answering it "No" will say "No."' In the calling of the roll nine jurors answered 'No, ' and three answered 'Yes.' The court stated to the jury that it did not understand why they should bring in a verdict with the issue answered 'No, ' when three were answering when their names were called they desired to answer it 'Yes.' Thereupon, of those answering 'Yes' when called, two explained that they meant how they stood in the vote before they had reached a final answer to the issue as signed, and not as to how they stood at the particular moment; that is, the moment of the calling of the roll of the jury. Whereupon the presiding judge instructed the clerk to again call the roll of the jury, and instructed the jury that those in favor of answering the issue at this time, at the time of the calling of the roll,...