83 S.E. 27 | N.C. | 1914
This action was brought to recover damages for injuries alleged to have been caused by the defendant's negligence, and resulted in a verdict for the feme plaintiff upon all the issues. The case on appeal states:
The jury answered the issues in favor of the plaintiff, as set out in the record, and assessed her damages at $5,000. Upon the coming in of the verdict, the defendant moved the court, in its discretion, to set aside the verdict as against the weight of the evidence and excessive in amount of damages. The court being of the opinion that the aforesaid verdict was against the weight of the evidence and excessive in amount, it is thereupon considered, ordered, and adjudged by the court, in its discretion, that the aforesaid verdict of the jury herein rendered be and the same is hereby set aside, vacated, and annulled. R. B. PEEBLES, Judge Presiding. Filed 29 August, 1914. A. T. MOORE, C. S.C.
It further appears in the case:
"The jury found all the issues in favor of the plaintiff and assessed the plaintiff's damages at $5,000.
"The defendant thereupon moved to set aside the verdict as being contrary to the weight of evidence and excessive. The court said that he was satisfied that the verdict was contrary to the weight of evidence and was excessive, but he thought the feme, plaintiff ought to have something, *63 and that if she would agree to take $1,700 and costs, the court would not set aside the verdict of the jury; but if she did not agree to take that, the court would set aside the verdict of the jury, in its discretion, as being contrary to the weight of the evidence and excessive; that if the plaintiff agreed to take $1,700 and costs, and the defendant refused to give it, the court would give the judgment upon the $5,000 verdict.
"Whereupon, Mr. L. I. Moore, for the defendant, and S. J. (28) Everett, for the plaintiff, said they would like to have time to consult their respective clients. Mr. Moore said he thought they could hear from the defendant during the next day. Mr. Everett said he didn't think he could hear from the plaintiff before Tuesday of the following week. The court then said it would postpone the motion to set aside the verdict of the jury until the next Tuesday, by consent and without prejudice to either side. No objection was made to that arrangement.
"On 29 August, 1914, Mr. Long, of the firm of Moore Long, stated to the court that he was afraid, under Stilley v. Planing Mills,
"On Tuesday of the second week the court asked Mr. Everett if he had heard from his client, and he said he had not. On Wednesday Mr. Everett said he had heard from his client, and she had declined to accept the $1,700 and costs. Thereupon the clerk tore up the compromise judgment for $1,700 and directed the clerk to record the judgment setting aside the verdict of the jury. Thereupon Mr. Everett appealed to the Supreme Court. Appeal bond was fixed at $25. Mr. Long, of the firm of Moore Long, was present in the courthouse at the time."
It has been settled by decisions of this Court that the judge presiding in the Superior Court has no power to set aside a verdict out of term, or at a subsequent term (Stilley v. *64 Planing Mills,
But there is another view. If the two judgments were prepared and signed, so that the parties might thereafter choose between them, the consent that the proceeding might remain in that shape until their respective clients were heard from — for that is clearly what was intended by all — and the setting of the next Tuesday for calling the matter up, imparted validity to the decision of the court, even on Wednesday, and for this reason: Tuesday was not fixed as the only, or final, day on which the matter could be heard. Such a narrow construction of their agreement would defeat the obvious intent, which was that there should be sufficient time to hear from their clients and to receive proper authority to act in the premises, and the length of time, as being limited to the next Tuesday, was not of the essence. It was merely considered as a convenient time to take the matter up again, so that it would not be overlooked. What occurred on Tuesday and Wednesday makes this clear. The judge asked plaintiff's counsel on Tuesday if he had heard from their client, which question he answered in the negative; but on the next day, Wednesday, plaintiff's counsel called the matter to the attention of the court, and stated that he had heard from his client and that she declined to accept $1,700 and costs. If it had not been understood that, by tacit consent, the matter had been left over until she should be heard from, why mention the matter at all on Wednesday? It must be inferred that judge and counsel were waiting to hear from the respective parties, so that the *66 arrangement, which had received their consent the week before, might be carried out with binding authority. The purpose was to settle the case, if possible, upon the basis of the judge's suggestion, which was unfavorable to the defendant, in the view he had already taken of the case, and the time of settlement was unessential, except in the respect that it was ncessary [necessary] that the required time should be used in procuring (31) their consent, so that the agreement would stand. Tuesday of the next week was merely named as a convenient day upon which to renew the matter, as the criminal court would then be sitting, and was not intended to be the final day. This construction of the agreement is necessary in order to preserve the good faith of all parties and to execute the apparent intent.
But there is still another view which is controlling. Upon the basis that there was a misunderstanding among those who were parties to the agreement — and there appears to have been, by the argument before us — the law will never permit any injustice to be done under such circumstances. The only way to correct the error is to set aside the verdict and give the parties a new start. It would be grave injustice to proceed otherwise. The law strives to do what is right and just among litigants, as determined, it is true, by fixed rules and principles; but in many respects the days of legal quibbles and technicalities have passed, and a more enlightened age of civilization has taken a different view of the rights of parties, as they should be administered in the courts, and has, therefore, liberalized their practice and procedure. There is no reflection on judge, counsel, or parties in this case, and no fault to be found with any one. Defendant's counsel are merely guarding with proper care and commendable loyalty the legal rights of their clients, as it is their duty to do, and it may be said of all those who took part in the case, that they have simply performed their duty in the premises.
We are of the opinion that the ground just taken by us is also a safe one upon which to rest our conclusion, viz., that by the combined effort of the judge, counsel, and parties to reach a definite agreement, there has resulted, unfortunately, a misunderstanding as to the time allowed for effecting a settlement, for the purpose of doing substantial justice, with, however, a firm decision of the judge, which was announced from the bench and reduced to the form of a judgment, signed by him, that the verdict should be set aside. The intention is clear and should be effectuated, as it violates no settled principle of law to do so, and justice demands that it be done.
But apart from this, the legal effect of the transaction was to set aside the verdict, with leave to strike out the order if the proposition of the judge was afterwards accepted. This was the substance of it. The defendant had already agreed to do it, and the judgment for $1,700 was *67 signed by the judge to await the acceptance or rejection of the plaintiff, as a convenient way of effecting a settlement, if both parties agreed, without the further intervention of the court.
Counsel were fully justified in maintaining their positions and defending their client's legal rights, as they did by fair and legitimate argument in this Court. The benevolent object of the judge was (32) disappointed, leaving the alternative order to stand. The merits of the case and the question of removal are not before us.
Affirmed.
Cited: Hyatt v. McCoy,