71 F. 826 | U.S. Circuit Court for the District of South Carolina | 1896
The case now comes up for final hearing on bill and answer, with the testimony. It is a cause of unusual character. Generally, when judgments at law are brought before this court, the defendant is the complainant, seeking to be relieved therefrom on some ground of equity. In the present case, the plaintiff at law seeks reformation of the judgment, or relief against injustice done to it by the judgment. The complainant was the owner of a large quantity of cotton in bales, stored in the warehouse of Cely Bros., at Greenville, S. O. The contfaet between the complainant and Cely Bros, made the latter insurers of the cotton, and to protect themselves Cely Bros, took out a number of policies of insurance in various insurance companies. Among these was the defendant in this case, in which Cely Bros, had two policies of insurance on this cotton, — one for $5,500, the other for $2,500. The or tton was insured in bulk in each of the companies, the risk of each company being measured by its policy. A fire occurred, and the cotton was entirely consumed. Cely Bros, assigned all their policies to the complainant. After some fruitless negotiations between the insurance companies and the complainant, suits were brought on all or nearly all the policies against the several insurance companies in the court of common pleas for Greenville county, S. C. The complaint against this defendant contained two causes of action. The first cause of action set out the smaller policy, that for $2,500. The second cause of action set out the larger policy, that for $5,500. The answer of the defendant, after admitting the corporate character of the plaintiff and defendant, denied every other allegation not thereafter admitted or explained. It then requires proof of the assignment by Cely Bros., and sets up, as a defense, that in the policy of insurance, which was partly in print and partly in writing, one of the conditions was that any omission to make known a material fact
The gist of the bill, and the fact upon which it asked relief, was that the jury, with the full purpose and intention to find a verdict
The demurrer having been overruled, the defendant answered over. It denies any knowledge of any mistake in the verdict of the jury, and denies that any mistake was made; that, if a mistake was in fact made, complainant and its attorneys had repeated and ample opportunity of correcting it in the court in which the cause was tried, and until this suit was brought have made no attempt of any kind f.o correct it; that the president of the nlaintiff corporation, wiili their “eminent” counsel, were present when the verdict was read out by the clerk, in presence of the court and jury; that subsequently, with all the papers before them, they entered up judgment on the verdict; that the court was in session several days after the rendition of the verdict, and thus full opportunity was afforded for correction; that an appeal was taken to the supreme court, and the judgment affirmed, and that plaintiff again had opportunity of examining the record, and calculating interest on the judgment, when it received full satisfaction thereof; that the same opportunity was afforded in preparing, bringing, and conducting suit against Oely Bros, for the unsecured excess of loss. Another line of defense is set up in the answer. The policies of this company and of all the other companies sued at tliis time had, in each of ihom, an average clause, apportioning the loss in case the aggregate of amounts of insurance exceeded the amount of loss lawfully paid, and it was charged that this condition of things existed here. Yet another line of defense: The contract limitation in the policy of right of action to the period of 12 mouths. It will he noted that the facts admitted by demurrer, pro hac vice, are now denied in the answer. So, the question of jurisdiction having already been adjudicated, the other grave questions are open for decision. The questions in this case are not complicated by any intervening considerations. The mistake, if any existed, has occasioned no change in the relative positions of the parties. The defendant has done no act, has omitted no act, and is not in any sense the worse for the mistake, if any such existed.
“There is, however, a recognized distinction between what may and what may not be established "by the testimony of jurors to set aside a verdict.”
An examination of the long list of cases and of the text-books bearing on this question show that it is largely a matter of judicial discretion, each case being, in a measure, a law unto itself. None of the cases permit á juror to impeach a verdict because of his own misconduct or that of other jurors in the jury room, or to divulge the motives or the method by which they reached the verdict, or to show that he or they mistook the charge of the judge. Thomp. & M. Jur. § 440; Owen v. Warburton, 4 Bos. & P. 326; 1 Greenl. (by Redf.). Ev. § 252a; Smith v. Culbertson, 9 Rich. Law, 111, in which Wardlaw, J., discusses the question elaborately and ably; State v. Bennett, 40 S. C. 310, 18 S. E. 886. In Capen v. Stoughton, 16 Gray, 366, Chief Justice Bigelow, for the supreme court of Massachusetts, gives the rule:
“It has been settled, upon sound considerations of public policy, that mistake of the testimony, misapprehension of the law, error in computation, irregular or illegal methods of arriving at damages, unsound reasons or improper motives, misconduct during the trial or in the jury room, cannot be shown by the evidence of the jurors themselves as the ground of disturbing a verdict duly rendered. * * * In all those cases [those establishing this rule] it will be found, upon examination, that an inquiry was attempted into the conduct of jurors during the progress of the trial, * * * or in making up the verdict to which they finally agreed. But in the present case the mistake which is proved by the testimony of the jurors is of a different character. It is not one connected with the consultations of the jury or the mode in which the verdict was arrived at or made up. No fact or circumstance is offered to be proved which occurred prior to the determination of the case by the jury and their final agreement on the verdict which was to be rendered by them. But the evidence of the jurors is offered only to show a mistake, in the nature of a clerical error, which happened after the deliberations of the jury had ceased and they had actually agreed on their verdict. The error consisted not in making up. the verdict on wrong principles, or on a mistake of facts, but in*831 an omission to state correctly, in writing, the verdict to which they had, by a due and regular course of proceedings, honestly and fairly arrived. * * * No considerations of public policy require that the uncontradicted testimony of jurors 1o establish an error of this nature should be excluded.”
This case is cited and followed by the supreme court of New Jersey in Peters v. Fogarty, 26 Atl. 855. In Woodward v. Leavitt, 107 Mass. 453, a full citation of cases bearing on the general question is made, and the case discussed. The distinction made by Bigelow, C. J., in the case in 16 Gray is recognized. And Jackson v. Dickenson, 15 Johns., at page 317, recognizes and approves the same distinction. In the case of Cohen v. Dubose, Harp. Eq. 102, the court of last resort in South Carolina admitted the testimony of jurors for precisely the same purpose, to show, not how they reached their verdict, but what the verdict really was. The distinction so clearly set forth by Chief Justice Bigelow seems to be sound. The verdict of the jury is the conclusion which they have reached. Tli is conclusion is shown in different ways in different courts. In North Carolina, for instance, the jury come out, and one of their number, designated by them, orally announces their conclusion. The clerk enters this on the minutes. In South Carolina the foreman writes their conclusion on the record. The oral declaration in the one case, and the written statement in the other, are only evidence of the conclusion reached by the jury. This, in certain cases, can be explained. The testimony of some of the jurors who tried the case established the fact that, after deliberating, they all concluded to find for the plaintiff its claim on both policies, and directed the foreman and another juror to prepare the written verdict; that this was done, but that, either through inexperience or inadvertence of the two jurors, the verdict was written only on one cause of action; that, when they returned into court, and all the several verdicts were read, they did not recognize the error, and the mistake was recorded. It is evident that this was a mistake, and one of the cha raider spoken of by Chief Justice Bigelow, reviewable and open to correction. Indeed, this is,.in effect, admitted in argument by the learned counsel for defendant. He insists that the plaintiff had an opportunity of amending the verdict at its rendition, or, at least, during the session of the court, and, under the provisions of the Civil Code of South Carolina, within one year after notice of the judgment. So the verdict was not an absolute finality.
This brings us to another question, did the plaintiff have a complete and adequate remedy at law, lost by his own laches or negligence, and so is without remedy in this court? It is well to keep in mind the precise question in this case. The bill is died to correct. a mistake. Whose mistake? Not of the plaintiff or of his attorneys, but of the jury. Perhaps, if counsel, upon rendition of the verdict, had risen and called the attention of the jury to the amount of the verdict, the jury then would have recognized the mistake and have corrected it. But counsel did not prepare the verdict, and the verdict was not rendered against them “through their mistake, inadvertence, surprise, or excusable neglect.” It may be questioned if this comes within section 195 of the South Carolina Code. “Such
In any event, whether he could have proceeded under section 195 of the Code, or under section 287, the complainant is without remedy at law. Has it been guilty of such negligence as will deprive it of any relief in this court? It is not a question of laches, for laches is not, like limitation, a question of time, but principally a question of the inequity of permitting the claim to be enforced, an equity founded upon some change in the condition or relation of the property of the parties. Galliher v. Cadwell, 145 U. S. 368, 12 Sup. Ct. 873. As has been seen, there has been no change in the condition of property of the defendant which the delay in discovering the mistake could effect. But “vigilantibus non dormientibus lex subvenit.” Has the complainant slept on its rights? The evidence shows that the mistake of the jury was'not discovered until just before this suit was brought. If the remedy in the law court open to the plaintiff was a motion for a new trial, then it had only two days to avail itself of it. The verdict was on 26th. The court adjourned sine die on 28th. If it had a remedy under section 195, then it had one year from notice of the judgment to correct it. But it must be considered how seldom a mistake like this can occur, and the circumstances under which this occurred must also be taken into account. Two cases, involving substantially the grave issues in all the cases, had been conducted before the judge and jury. We have no evidence here of the character of the discussion. But, from the names of the counsel engaged, and their ability and learning, which are known to all the courts in which they practice, — to none better' than this court, which has often felt the great aid they render a judge in coming to his conclusion, — the debate must have been exhaustive and able. When they ended, all sides felt that the argument was' exhausted, and six cases were submitted. Ho special objection was made to any one policy, as distinguished from the others. , The objections of the defendant went to the whole liability. The charge of the court, the action of the jury, left no doubt that the plaintiff had been entirely successful in vindicating its claim as for a total loss on each policy. The verdicts were all rendered in the six cases together. The vigilance of counsel was relaxed, and the discrepancy naturally escaped them. The citations of the counsel for defendant, and the long list of authorities which the text-books
But, did the plaintiff have a plain, adequate, and complete remedy at law? Its position is this. The jury, as the result of their deliberations, found a verdict for the plaintiff, — a full verdict upon both causes of action. The foreman, in reducing to writing the action and conclusion of the jury, made a mistake. This mistake was not noticed, either by the court or by counsel for plaintiff itself, and the jury were forthwith discharged of the case and for the term. A court of Jaw, upon the discovery of the mistake, eonld only relieve by granting a new trial. The jury having been discharged, the courr could not have the verdict amended so as to conform to the proof. Xow, the plaintiff did not.desire a new trial, nor would a new Irial have met its case, or given it the relief it desired. Jt could only get such relief in a court which could affect the conscience of the defendant. This being so, there is nothing in the subsequent occurrences in this case wliich would justify the court in treating the hill as a stale claim. Here we have a clear case of mistake bv the jury, through their foreman, and no means of correcting it at law'. Will this court grant the relief? The question before this coni-t is not whether it will permit the introduction of evidence. or the maintenance of legal positions which the party did not make or was prevented from making in a trial in the law' court. IXor is it asked to correct an error in the conclusions reached by the jury, or the conclusion itself reached by irregular or improper methods. In none of these cases, as is well established by authorities quoted, and referred to, supra, would a court of equity interfere. But the court is asked to correct a mistake made in declaring what the real conclusion of the jury was. The averment is that the jury considered the case and concluded to give the plaintiff a verdict on both causes of action; that, notwithstanding that conclusion, the written evidence of the verdict erroneously stated otherwise, through an unintentional mistake, inadvertently passed over by the jury. The jurisdiction and the right to relief in a case of this character are sustained by Johnson v. Towsley, supra; Cohen v. Dubose, Harp. Eq. 102; Partridge v. Harrow, 99 Am. Dec. 643; Bank v. Minthorne, 19 Johns. 246; and a case quoted by counsel, hut not within the reach of the court, — Sidener v. Coons, 83 Ind. 187; also, Black, Judgm. § 367.
The ground taken in the answer, that, under the average clause in these policies, plaintiff has been overpaid, cannot be entertained
It is also contended that the policy of insurance has a clause fixing its own period of limitation of action, and that has long since expired. That limitation is as to an action on the policy, and controls such action. This case, however, proceeds upon the idea that there has been an action on the policy within the stipulated time, that that action resulted in a conclusion and verdict by a jury in favor of the claim under the policy, but that, by mistake and inadvertence on the part of the jury, an improper entry was made. It seeks correction of that mistake, .as one affecting the conscience of the defendant. It is a wholly distinct cause of action dehors the policy, and unaffected by any of its provisions.
The remaining question is as to the relief to be granted. As has been said, the case of complaint is this. A case was made, between it and the defendant, putting in issue the liability to it by the defendant on two policies of insurance. That case was tried before a judge and a jury, and all the issues found in favor of the complainant, plaintiff at law. A mistake was made whereby the complainant was deprived of the amount due on one policy, notwithstanding the conclusion of the jury that it should recover thereon. That mistake should be corrected, and the right of complainant established. This position of complainant has been sustained in this court. It applies the remedy. It is ordered that the defendant pay or cause to be paid to the complainant the amount of the policy for $2,500, with interest theron up to the date of the verdict in the case, to which must be added» interest on the principal sum from the date of the filing of the bill in this case, and costs. Let an order be prepared carrying out these views.