Colling v. Avon Disposal, Inc

179 Mich. App. 796 (1989) 446 N.W.2d 361 COLLING v. AVON DISPOSAL, INC Docket Nos. 103920, 103974. Michigan Court of Appeals. Decided September 5, 1989. Richard M. Goodman, P.C. (by Richard M. Goodman and Thomas W. Stephens), and Fred B. Berkley, P.C. (by Fred B. Berkley), for plaintiff. Vandeveer, Garzia, Tonkin, Kerr, Heaphy, Moore, Sills & Poling, P.C. (by James K. Thome and Robert D. Brignall), for defendant. Before: GILLIS, P.J., and MICHAEL J. KELLY and R.B. BURNS,[*] JJ. GILLIS, P.J. In docket no. 103920, defendant appeals by leave granted the circuit court's order denying its motion for rehearing of the circuit court's order granting plaintiff's motion for a new trial on the ground that the jury's verdict that defendant was not negligent was against the great weight of the evidence. In docket no. 103974, defendant appeals by leave granted the circuit court's order denying its motion to amend the jury verdict or reconvene the jury. These cases were consolidated on appeal. We reverse the trial court's order which denied defendant's motion to amend the jury verdict or reconvene the jury and remand for further proceedings consistent with this opinion. The court instructed the jury: [W]e have prepared a verdict form which you'll *799 be receiving. The answers to the questions on this verdict form will provide the verdict in this case. The questions are clear. Question Number 1: "Was the defendant negligent; yes or no?" If your answer is no, you answer no further questions. Question Number 2: "Was the defendant's negligence a proximate cause of the injury or damage to the plaintiff?" If your answer to that question is no, then you answer no further. Question Number 3: "What is the total amount of plaintiff's damages?" * * * When at least five of you agree upon a verdict, it will be received as your verdict. Subsequently, the jury announced that it had reached a verdict and the following exchange occurred: The Court: All right. I'm going to read to you the questions. Please give me the answers. Question Number 1: "Was the defendant negligent?" What is your answer? The Foreperson: No. The Court: Your answer is no? The Foreperson: No. The Court: Okay. Do you want to ask the jury then? The Clerk: Will all the jurors please rise? Members of the jury, listen to your verdict as recorded. You do say upon your oath that you find the defendant, Avon Disposal, not guilty of negligence, so say you Miss Foreperson, so say you all members of the jury? The Jury (In unison): Yes. The Court: Okay. You may be seated. Would either counsel like the jury polled? Mr. Goodman [counsel for plaintiff]: Yes, your Honor, if the court please. The Court: Okay. *800 The Clerk: Juror Number 1, was that and is that your verdict? Juror No. 1: Yes. The Clerk: Juror Number 2, was that and is that your verdict? Juror No. 2: Yes. The Clerk: Juror Number 4, was that and is that your verdict? Juror No. 4: Is that an indication of agreement? The Court: Was that your verdict? Did you vote yes with the rest of the jury that your answer to that question? Question number one [sic? question, question number one,] would be a no answer? Juror No. 4: I voted that he was negligent. The Court: All right. Go ahead. The Clerk: Juror Number 5, was that and is that your verdict? Juror No. 5: Yes. The Clerk: Juror Number 6, was that and is that your verdict? Juror No. 6: Yes. The Clerk: Juror Number 7, was that and is that your verdict? Juror No. 7: Yes. The Court: All right, members of the jury, you'll be taken back to the jury room for a few brief moments and then you'll be discharged. The jury was excused. Thereafter, the court made the following statement: The record should reflect and I've advised both counsel of this, that when I went back to discharge the jury, without my saying a word, the jurors were kind of criticizing the foreperson because she answered the questions incorrectly. According to them in the jury room, and I'm just making the record because defense asked that it be made, and I am going to let the jurors come out on the record and state that position. *801 According to the jurors, all six jurors agreed that the answer to question number 1 was that the defendant was negligent. They all found that. They were five to one on the question of whether the defendant's negligence was a proximate cause of the injury and damage to the plaintiff and there they were five to one no. I understand that the verdict is in and the case is over, but for purposes of the record, I can see no problem allowing the jurors to come in. Plaintiff objected to reconvening the jury, noting that the court had discharged the jury and claiming that the jury could not impeach its announced verdict. Eventually the trial court agreed and no further record was made. We note that the jury verdict form indicates that the jury answered question no. 1 (i.e., Was the defendant negligent?) "No." Subsequently, plaintiff moved for a new trial on the basis that the jury verdict that defendant was not negligent was against the great weight of the evidence and defendant moved to amend the jury verdict or reconvene the jury. The trial court granted plaintiff's motion and denied defendant's motion. Defendant moved for rehearing of the order granting plaintiff's motion for a new trial, noting that the trial court had ruled on the motion without the benefit of a transcript. The trial court denied defendant's motion for rehearing. Defendant contends that the circuit court erred when it denied its motion to amend the jury verdict or reconvene the jury because the jury misrecorded its true verdict. Plaintiff disagrees, claiming that the poll of the jury constituted its true verdict and that, after being discharged, the jury could not impeach its verdict. Here, the jurors' proposed testimony was offered to show a mistake in the nature of a clerical error *802 which occurred after the deliberations of the jury had ceased and they had actually agreed upon a verdict. We agree with defendant that a unanimous mistake of the jury in the nature of a clerical error in transcribing or reporting its already-arrived-at verdict may be shown by the jurors' affidavits or testimony. Dunham v VFW Post 446, 104 Mich App 541; 305 NW2d 260 (1981), lv den 412 Mich 912 (1982). Anno: Competency of juror's statement or affidavit to show that verdict in civil case was not correctly recorded, 18 ALR3d 1132, 1163-1164. But see and compare Hoffman v Monroe Public Schools, 96 Mich App 256; 292 NW2d 542 (1980), lv den 409 Mich 931 (1980). Compare Metz v City of Bridgman, 371 Mich 586; 124 NW2d 741 (1963); Ledbetter v Brown City Savings Bank, 141 Mich App 692; 368 NW2d 257 (1985); Brillhart v Mullins, 128 Mich App 140; 339 NW2d 722 (1983); Abraham v Jackson, 102 Mich App 567, 572; 302 NW2d 235 (1980), lv den 413 Mich 905 (1982). Hence, we hold that the trial court erred when it denied defendant's motion. On remand, the trial court should hold an evidentiary hearing and, if the jurors unanimously agree that their verdict was erroneously recorded, the verdict should be amended to reflect their true verdict and the trial court's orders granting plaintiff's motion for a new trial and denying defendant's motion for rehearing should be vacated. If the jurors do not unanimously agree that their true verdict was erroneously recorded, we retain jurisdiction to decide the issue of whether the trial court abused its discretion when it granted plaintiff's motion for a new trial. Reversed and remanded. R.B. BURNS J., concurred. MICHAEL J. KELLY, J. (dissenting). I dissent from *803 the majority's conclusion that the jury's verdict may be set aside and the jury reconvened for an evidentiary hearing to determine the correct verdict. It is well established that a jury's verdict may not be impeached by juror testimony or affidavits where the jury members were polled, concurred in their verdict, and were discharged. Consumers Power Co v Allegan State Bank, 388 Mich 568, 573; 202 NW2d 295 (1972); Metz v City of Bridgman, 371 Mich 586, 592; 124 NW2d 741 (1963); Routhier v Detroit, 338 Mich 449, 452-454; 61 NW2d 593 (1953); Heintz v Akbar, 161 Mich App 533, 540; 411 NW2d 736 (1987). There are two narrow exceptions to this rule. First, where the jury has not yet been polled, juror affidavits or testimony may be used to establish that the verdict was not unanimous so as to permit the trial court to poll the jury regarding its true verdict. Routhier, supra; Ledbetter v Brown City Savings Bank, 141 Mich App 692, 698; 368 NW2d 257 (1985); Hoffman v Monroe Public Schools, 96 Mich App 256, 257-258; 292 NW2d 542 (1980), lv den 409 Mich 931 (1980). Second, affidavits and testimony of jurors may be used to challenge the verdict where the written verdict does not conform to the true verdict due to a clerical error. Ledbetter, supra; Brillhart v Mullins, 128 Mich App 140, 154; 339 NW2d 722 (1983); Dunham v VFW Post 446, 104 Mich App 541, 544; 305 NW2d 260 (1981), lv den 412 Mich 912 (1982). However, the mere claim that the jury intended a different outcome does not permit modification or grant of a new trial. Brillhart. Neither of these two exceptions apply to the instant case. Here, the jury was polled, assented to its verdict, and was discharged. Jurors' testimony or statements after discharge may not be used to *804 attack the verdict under the first exception. The jurors assented to the verdict upon being polled and so are estopped from impeaching their verdict at a later date. Nor does the second exception apply. Contrary to the majority's holding, this case simply cannot be characterized as a clerical error in transcribing the jury's verdict. The jury recorded the same verdict on the verdict form as it delivered verbally and assented to upon being polled. There was simply no clerical error or transcription error in writing down this verdict. The jury is not permitted to impeach its verdict. An evidentiary hearing to permit the jury to impeach its own verdict is an abomination and would be contrary to Michigan law. The trial court did not err in denying defendant's motion to amend the jury's verdict or to reconvene the jury. Since the jury's given verdict seems to me to be against the great weight of the evidence, I find no error in the trial court's grant of plaintiff's motion for a new trial. I would affirm. NOTES [*] Former Court of Appeals judge, sitting on the Court of Appeals by assignment.