Gaither v. Wilmer, 71 Md. 361

Gaither v. Wilmer

71 Md. 361 | Md. | 1889

Miller, J.,

after stating the case as above reported, delivered the opinion of the Court.

Without doubt,, a verdict, in an action like the present, simply “for the plaintiff,” without stating the damages, or the amount the plaintiff is entitled to recover, is fatally defective. It is not merely an informal verdict, which the Court can mould into projier shape by referring to the jdeadings and issues, but it is substantially defective. In all cases where the action is ujion a contract or for damages, the verdict, if for the jdaintiff, must be for an amount specified; otherwise the Court cannot enter judgment ujion it for any amount. Profatt on Jury Trial, sec. 415; 2 Tidd’s Pr., 869; 1 Poe’s Pl. & Pr., sec. 758; Clement vs. Lewis, 3 Brod. & Bing., 297.

The question, then, is, had the Court power to amend this verdict, and make it effective by inserting the amount the jdaintiff was entitled to recover, at the time and under the circumstances stated? The amendment was made after the verdict was assented to by the jury, when called ujion to hearken to it after it had been duly recorded, and several days after the jury had separated. The defect was discovered by the Judge when the ver*365diet was handed to him before it was recorded, and when the jury were in attendance in open Court for the purpose of rendering their verdict. It was then competent for the jury to reject this verdict in tofo, and find another, or to vary, or correct it. The Judge, also, could then have sent them to their room, with instructions to correct this defect, whether counsel assented or not; and this was the course that should have been adopted. Edelen vs. Thompson, 2 H. & G., 31. This amendment, however, must have been made either upon the affidavit of the plaintiff’s counsel, or by the Judge’s own recollection of what took place at the trial. In England, verdicts in criminal as well as in civil cases have been frequently amended by the notes of the Judge, or by some written document; and in a criminal case tried before Lord Deymay, C. J., he ordered the verdict to be amended, though he had taken no notes at the trial. But when this order was brought before the Court in banc, under a rule to show cause why it should not be rescinded, his Lordship said: “I was of opinion that the Judge must have power in a case like this to amend by his recollection ; and it is clear that in the present instance the amendment was one which might be made according to the truth of the facts. But on consideration we think that the practice of so amending would be such a dangerous one, that, as a general rule of discretion, the Court ought to decide against introducing it. In almost all the cases of amendment, there has been a written document, to amend by, anda misprision which was corrected by that. But if reference is made to the recollection of the Judge as an individual, an unlimited number of affidavits from other persons will be let in, stating what passed according to their impressions. I have no doubt here; but on account of the great danger and abuse which might result from amending, under such circumstances, in cases which may be supposed, we think the *366order ought not to be sustained.'” Reg. vs. Virrier, 12 Adol. & Ellis, 331.

In this country, decisions as to the amendment oí verdicts are numerous, and a large number af them have been cited in argument. Some of them show that a general verdict may be applied to the proper count where some of the counts in the declaration are good, and others bad, or to one of two inconsistent counts; hut that is not this case. Our Code provides that no judgment shall bo arrested because one or more counts in the declaration are bad, if there be one count sufficient in substance. (Gode, Art. 15, sec. 9.) But we have no statute which reaches a case like this. Again, in some of the cases cited, verdicts have been amended by re-assembling the jury after they had separated, and after the verdict had been recorded, upon the affidavits of the jurors themselves that they had made a mistake, or intended to find differently ; hut in States where the common law is the only guide on the subject, we think the decided weight of authority is against allowing such a thing to he done; and we have found no American case in which an amendment like this, in matter of substance, has been made upon affidavits, or from the Judge’s recollection of what occurred at the trial, after the imperfect verdict has been duly recorded, and the jury have separated. A citation or review of these authorities is unnecessary, because it seems to us that the question has been settled in Maryland by the decisions of this Court.

Among the cases in the old Provincial Court (1116) we find an action for slander, where justification was jdeaded, with general replication and issue. The jury returned a verdict for the plaintiff, but assessed no damages, and afterwards at a succeeding term, a writ of inquiry of damages was issued, under which damages for the plaintiff to a certain amount were assessed. Counsel for defendant moved in arrest of judgment, on the *367grounds that no damages were found by the jury which tried the issue, and the writ of inquiry was void. The Court awarded a venire de novo. Macnamara vs. Brannock, 4 H. & McH., 480. In Edelen vs. Thompson, (supra,) it is clear from the opinion of Judge Earle, that the Court would not have sustained the amendment in that case, if it had been made after the verdict was recorded. Again in the more recent case of Ford vs. The State, 12 Md., 546 — a case most carefully considered— our predecessors have laid it down broadly and emphatically that “if a jury, through mistake or partiality, deliver an improper verdict, the Court may, before it is recorded, desire them to reconsider it. They cannot, however, be allowed to make alteration after the verdict is recorded;” and this case was re-affirmed in Williams vs. State, 60 Md., 402. These authorities have, in our judgment, settled it as law in this State, that no material alteration can be made by the jury in their verdict, either in a civil or criminal case, after it has been recorded, and, if this can not be done by the jury, a fortiori can it not be done by the Court or the Judge.

It is said, however, that the amount to be recovered in case the jury should find for the plaintiff was admitted and agreed upon, and that the jury, as well as the parties, were bound thereby. But we find no such admission made by the pleadings, either directly or inf'erentially. On the contrary, the pleas of non assumpsit and set-off put in issue the amount of recovery, as well as the right of the plaintiff to recover at all; and it was the province and duty of the jury to find this amount by their verdict. Eor is it pretended that any written agreement on this subject was ever made between counsel. If such written agreement had been made, filed, and entered upon the docket, the case would have presented a different aspect. But no such written agreement was made; and even the oral admission or *368agreement, relied on in the motion to have the jury reassembled, was denied by defendant’s counsel, who also .objected to the reception of the affidavit made by counsel for the plaintiff, in which the same oral admission is set up. It may he that, if the jury had been sent to their room to correct this sealed verdict before it was received and recorded, they would have inserted the same sum that was afterwards put in it by the Judge; but we find nothing in the record which enables us to say with certainty they would have done so, or that such was their real intention. The affidavit of counsel on the subject was wholly inadmissible.

(Decided 15th November, 1889.)

In conclusion, we may say we are firmly convinced that the adoption of any other rule on this subject than that so ¡plainly laid down by our predecessors, and. so long adhered to in practice by the Courts of the State, would be dangerous in the extreme, would open the door to abuses, and lead to doubtful and possibly pernicious results; and we can not escape the legal conclusion that, by making the amendment complained of in this case, the Judge has invaded the exclusive province of the jury, and substituted his verdict for theirs.

We are therefore of opinion the learned Judge of the Court below was in error in overruling the motion in arrest, and shall accordingly reverse the judgment, and remand the case, to the end that a venire de novo may issue.

Judgment reversed, and a venire de novo awarded.