78 Va. 671 | Va. | 1884
delivered the opinion of the court.
This was an action at law, brought by the defendant in error, to recover damages of the plaintiff in error, who is a physician, for negligence and unskilfulness in the treatment of a sore on the inside of one of the cavities of the plaintiff’s nose, whereby the septum of his nose was destroyed.
Upon the trial the jury found a verdict for the plaintiff in the sum of $6,714.16, but the court being of opinion that the damages were excessive, required the plaintiff to release the sum of $3,714.16, and entered judgment for the sum of $3,000.
From this judgment the plaintiff in error applied for and obtained a writ of error.
The errors assigned here, are:
First. That the court below erred in overruling the motion for a new trial for misconduct on the part of the jury; and
And these errors we.will proceed to consider as soon as we have disposed of a preliminary objection made by the defendant in error to the consideration of this case by this court, because, as he alleges, the term of the corporation court of the city of Norfolk had ended before the bill of exceptions taken in the case had been drawn up and signed.
That a bill of exceptions cannot be properly or regularly added to the record of a case after that case has been ended by a final judgment rendered therein, and the power of the court over the record has terminated by the close of the court in which the trial is had, is a matter now generally understood. Winston v. Giles, 27 Gratt. 534. If, therefore, it be a fact that the term of the corporation court of the city of Norfolk had ended, as is suggested, before the bill of exceptions in the case was signed by the judge, it should be excluded, and cannot be regarded by this court. We apprehend, however, that upon an examination it will turn out that such is not the case. '
Under act of the general assembly, approved January 20, 1866 (Acts 1865-6, p. 230, § 5), the corporation court of that city was limited to twenty days; but Article VI, section 14, and the act of assembly passed in pursuance thereof approved April 2, 1870, entitled “An act to prescribe and define the jurisdiction of the county and corporation courts of the Commonwealth, and the times and places of holding the same/’ completely changed the organization and jurisdiction of the corporation courts of the State. Acts 1869-70, p. 35. By this last mentioned act, the corporation court of the city of Norfolk, as it was then constituted, was swept out of existence, and there was substituted in its place a new court, having “within its limits the same jurisdiction as the circuit courts, and the same jurisdiction over
We come now to the alleged misbehavior or misconduct of the jury, which consisted in this: that the jury, according to the contention of the plaintiff in error, upon retiring to consult as to their verdict, “agreed . . that each juror should, respectively, set down the amount of money which each was in favor of giving to the plaintiff, and divide the aggregate sum by twelve, and that they would all abide the result and adopt it as the conclusion of all; and that this course was adopted by the jury in rendering the verdict in this action, as shown by a paper in' the cause on which they set down the amounts; and that this agreement
But, on the other hand, if this affidavit of these four jurors be inadmissible to impeach their verdict by showing such misconduct as is imputed to them, it is plain that the paper alone does not furnish such evidence as would justify the court in setting aside the verdict of the jury. Nay, it could not be said to raise even a bare suspicion that the verdict was arrived at in an irregular way, for it could not be made to appear that this process of figuration was not gone into purely for the purpose of seeing what the result would be, and that the result was finally adopted as the deliberate judgment of each juror, after full discussion and without any prior agreement to be bound by it. Now, upon the question of the reception of the affidavit of these four jurors, I think we may fairly dispose of it, as has been so often done by this court before, by saying that the general rule is that the affidavit of jurors will not be received to impeach their verdict, and that in view of the special circumstances of this case, there being six jurors (amongst
Upon the point of the refusal of the court to set aside the verdict, on the ground that the damages were excessive, it might be answered, that the objection in the record is aimed at the verdict as it was originally returned by the jury, and before the court had required a release of more than half of the amount thereof; and that as the plaintiff in error has not excepted to the judgment of the court for the $3,000, as he might have done, we do not think it would be proper for us to undertake to interfere with it. James River & Kanawha Co. v. Adams, 17 Gratt. 435; Preston v. Bowen, 6 Munf. 271; Field on Damages, § 882; Sedg. on the Measure of Damages, 660, note. But if we were disposed so to do, we have no means of ascertaining that it was excessive, for neither the facts nor the evidence is certified. Callaghan v. Kippers, 7 Leigh, 613. The court, however, in accordance with a practice common in this and other States, has, by entering the judgment for $3,000, an amount, as we have before observed, less than one-half the sum returned by the jury, and so has indicated its opinion
The judgment of the corporation court of Norfolk is affirmed.
Richardson, J., dissented.
Judgment aeeirmed.