Alston v. . Alston

Stacy, C. J., after stating tbe case: It is tbe position of tbe plaintiff, appellant, tbat tbe court acted without authority in reassembling tbe jury, after its discharge, and permitting a change in tbe verdict wbicb bad previously been rendered. Tbe record fails to disclose tbe reason for tbis procedure, as tbe evidence was amply sufficient to support tbe verdict. In fact, tbe evidence was all one way as to tbe alleged treatment of tbe plaintiff by tbe defendant. According to tbe ■ plaintiff’s *301 testimony, the defendant deliberately threw boiling water on Mm in August and inflicted such serious injuries as to confine Mm to Ms room for three or four months or until nearly Christmas thereafter. Defendant admitted throwing boiling water on plaintiff about an hour after they had had a fight in the month of August. There was no suggestion from any member of the jury that the verdict, as rendered and accepted by the court, did not represent the actual finding of the jury, nor was it suggested that the same should be corrected to make it speak the truth or show what the jury had really done. It will be observed that after the jury was reassembled and asked if it had not made a mistake in answering the fourth issue “Yes,” each of the jurors stated the issue “ought to have been answered, ‘No.’ ” But they do not say that such was the original agreement of the jury and that the issue was answered “Yes” by mistake or inadvertence. The effect of what took place, therefore, was, not to correct an error in the verdict, as sanctioned by Lumber Co. v. Lumber Co., 187 N. C., 417, but to impeach the verdict, as rendered, and to return a different verdict. This procedure was disapproved in Mitchell v. Mitchell, 122 N. C., 332. It is possible that no real harm has resulted from the irregular procedure in the present case, but we cannot approve, as a precedent, the practice of recalling the jury and allowing a change to be made in the verdict, after separation and over objection, when an opportunity has intervened, as it had here, for the operation of outside and undue influences on the minds of the jurors. Wright v. Hemphill, 81 N. C., 33. His Honor might have declined to accept the verdict when it was first rendered, or he could have set it aside and retired the case; but on the record, as now presented, the plaintiff must be awarded another hearing, and it is so ordered. New trial.