Allen v. . Yarborough

Adams, J. Before a verdict is complete it must be accepted by tbe court for record. S. v. Godwin, 138 N. C., 582; S. v. Bagley, 158 N. C., 608; S. v. Snipes, 185 N. C., 743. Tbis does not imply, however, that in accepting or rejecting a verdict tbe presiding judge may exercise unrestrained discretion. It is bis duty to scrutinize a verdict with respect to its form and substance and to prevent a doubtful or insufficient finding from becoming a record of tbe court. S. v. Bazemore, 193 N. C., 336. But bis power to accept or reject tbe jury’s finding is restricted to tbe exercise of a limited legal discretion. He may direct tbe jury to reconsider tbeir verdict if it is imperfect, informal, insensible, repugnant, or not responsive to tbe issues or indictment, or if it cannot sustain a judgment. Willoughby v. Threadgill, 72 N. C., 438; S. v. Hudson, 74 N. C., 246; S. v. Whitaker, 89 N. C., 473; S. v. Whitson, 111 N. C., 695; S. v. Godwin, supra; S. v. Parker, 152 N. C., 790; Ayscue v. Barnes, 190 N. C., 859; Oates v. Herrin, 197 N. C., 171. In S. v. Arrington, 7 N. C., 571, it was said, “When a jury returns with an informal or insensible verdict, or one that is not responsive to tbe issues submitted, they may be directed by tbe court to reconsider; but not where tbe verdict is not of such description.” Was tbe verdict in tbe present case “of such description?” Was it insensible or repugnant or so indefinite that no judgment could be rendered? We think not. As at first returned tbe verdict was a plain and explicit response to tbe issues submitted. It was not essentially inconsistent. It meant simply tbis: tbe drivers of tbe two cars were negligent; tbeir concurrent negligence produced tbe injury complained of; and although the plaintiff suffered loss in tbe sum of $70, being himself in fault, be could not recover a judgment. Tbis principle has been applied in a number of cases. Baker v. R. R., 118 N. C., 1015; Sasser v. Lumber Co., 165 N. C., 242; Holton v. Moore, ibid., 549; McKoy v. Craven, 198 N. C., 780. Tbe appellee relies in part upon Ayscue v. Barnes, supra, and Oates v. Herrin, supra. Tbe record in Ayscue’s case shows that tbe three *570 issues of negligence, contributory negligence, and damages were submitted to the jury and that only the first and third were answered. As a response to the second issue was necessary the court declined to accept the verdict and directed a reconsideration, again instructing the jury in reference to the effect of tbeir answer. The jury retired and answered the second issue in the affirmative; whereupon the judge inquired whether the jury had understood his charge. He received a negative answer and the issues were again returned to the jury for consideration. The conduct of the court was approved in that case because the instructions were not understood; and if this were the only circumstance in the case before us we should feel bound by that decision. But here his Honor returned the issues on the ground, not that his instructions had been misunderstood, but that the answers were inconsistent; and this implied that on account of such inconsistency no judgment could be pronounced. This instruction constituted error which was not cured by the intimation of a juror that the charge had not been understood. There is nothing in the record, nothing beyond conjecture, to indicate that this juror expressed the conviction of the entire body. In Oates v. Herrin, supra, the answer to the fourth issue being impossible of calculation by the court, a definite answer was required of the jury. The defendant is entitled to a new trial. New trial.