Selph v. Selph
148 S.E.2d 574
N.C.
1966
Check Treatment
Sharp, J.

No two rules are better settled in North Carolina than these:

(1) The trial judge has the discretionary power tо set aside a verdict when, in his opinion, it would work injustice to let it stand; and, if.no question of law or legal inferеnce is involved in the motion, his action in so doing is not subject to review .on appeal in the absenсe of a clear abuse of discretion. Goldston v. Wright, 257 N.C. 279, 125 S.E. 2d 462; Walston v. Greene, 246 N.C. 617, 99 S.E. 2d 805; Roberts v. Hill, 240 N.C. 373, 82 S.E. 2d 373; Pruitt v. Ray, 230 N.C. 322, 52 S.E. 2d 876; 4 Strong, N. C. Index, Trial § 48 (1961). (2) After their verdict has been rendered and reсeived by the court, and they have been ‍​‌‌‌‌​‌‌​‌‌​‌‌‌‌‌​‌​‌​​​‌​​‌​​​​​​‌​​‌​​​​‌‌‌‌​​‍discharged, jurors will not be allowed to attack or overthrow it, nor will evidence from them be received for such purpose. State v. Hollingsworth, 263 N.C. 158, 139 S.E. 2d 235; In re Will of Hall, 252 N.C. 70, 113 S.E. 2d 1.

In this case, the judge did not purport tо set aside the verdict because he considered it against the weight of the evidence or a misсarriage of justice. No motion was made upon those grounds; and apparently no motion to set aside the verdict was contemplated upon any. ground until the juror informed counsel for plaintiff that he аnd two others “were under the impression that the plaintiff would not be required to support the defendant.” Thе basis of the motion to set aside the verdict was evidence furnished by a juror which tended to impeach his verdict, and the judge- — -specifically designating the reasons for his action — allowed the motion upоn this evidence. The law says, however, that such testimony will not be received. If admitted at all, evidencе for that purpose “must come from some other source” than the jurors themselves. State v. Hollingsworth, supra. Obviously, evidencе such as that given by the juror in ‍​‌‌‌‌​‌‌​‌‌​‌‌‌‌‌​‌​‌​​​‌​​‌​​​​​​‌​​‌​​​​‌‌‌‌​​‍this case could come only from a member of the jury.

It is interesting to note that this jurоr did not suggest any clerical error in the written verdict which he and the other eleven had returned, and which thеy had all affirmed upon the poll, a short time before. “Yes” and “No” had been correctly recorded. Furthermore, the juror did not intimate that either he or the other two *638 whom he represented as having bеen confused as to the law had been confused about the facts. Obviously, they had simply been mistaken as to the legal effect of their findings of fact. A similar situation occurred in Livingston v. Livingston, 213 N.C. 797, 197 S.E. 597. In that case, fifteen minutes aftеr the judge had received the verdict, ordered it recorded, and dismissed the jury, a juror informed him that the jury had agreed to decide the case for Mrs. Livingston, and had thought that the answer “Yes” constituted a decision ‍​‌‌‌‌​‌‌​‌‌​‌‌‌‌‌​‌​‌​​​‌​​‌​​​​​​‌​​‌​​​​‌‌‌‌​​‍in her favor. Upon receiving this information, the judge reassembled the jury in the box and permitted them to change the word “Yes” to “No.” In declaring the second verdict to be “without legal sanction,” Stacy, C.J., speaking fоr the Court, said:

“But whether the case should ultimately be decided in favor of the plaintiff or Mrs. Livingston was not for them (the jurors) to determine. . . . The error, if any they made, was an error of law and not one of fact. . . . They did what they intended to do but misconceived the legal effect of their action. They were not awarе of any mistake or error on their part even after the matter had been called to their attention, and not until the legal effect of the verdict was explained to them did they express any desire to change it.” Id. at 799, 197 S.E. at 598-99.

The court treated the first verdict as having been set aside in the judge’s nonreviewable discretion and ordered a new trial.

Jurors likewise make an error of law, but not of fact, when — in a negligence action — they answer the issues of negligence and contributory negligence “Yes,” and ‍​‌‌‌‌​‌‌​‌‌​‌‌‌‌‌​‌​‌​​​‌​​‌​​​​​​‌​​‌​​​​‌‌‌‌​​‍then award the plaintiff damages on the third issue. In such cases it is held that the court should accept the verdict and render judgment thereon for defendant. Swann v. Bigelow, 243 N.C. 285, 90 S.E. 2d 396; Butler v. Gantt, 220 N.C. 711, 18 S.E. 2d 119; Allen v. Yarborough, 201 N.C. 568, 160 S.E. 833.

In this case no abuse of discretion appears, nor is any abuse suggеsted. However, error in law does appear, for the motion upon which Judge Carr acted was based on grounds which the law does not recognize or sanction. To permit his order to stand would permit a juror to impeach the verdict and thus violate a public policy which had “been long settled” when thе case of State v. M’Leod, 8 N.C. 344, was reported in 1821. If Judge Carr, without finding any facts except that the ends of justice required the action, had set aside the verdict in the exercise of his discretion, his order would have been unassailable on appeal.

"The power of the court to set aside the verdict as a matter of ‍​‌‌‌‌​‌‌​‌‌​‌‌‌‌‌​‌​‌​​​‌​​‌​​​​​​‌​​‌​​​​‌‌‌‌​​‍discretion has always been inherent, and is necessary to the *639 proper administration of justice. . . . When the verdict is set aside as a matter of discretion it is not necessary to find the facts . . . and if no reasоn is given it is presumed that the new trial was granted as a matter of discretion, and the appeal will be dismissеd.” Bird v. Bradburn, 131 N.C. 488, 489-90, 42 S.E. 936-37. Accord, Brittain v. Aviation, Inc., 254 N.C. 697, 120 S.E. 2d 72; Jones v. Insurance Co., 210 N.C. 559, 187 S.E. 769; 2 McIntosh, N. C. Practice & Procedure § 1594 (2d Ed. 1956 and Supp. 1964).

Had Judge Carr felt that the verdict in this case was against the weight of the evidence, that it was affectеd by prejudice, or that any circumstances not furnishing a legal ground for setting aside the verdict had weighed tоo heavily against the plaintiff, and had resulted in inequity, he could have adopted the method approved in Bird v. Bradburn, supra, to set it aside. See In re Will of Hall, supra at 88, 113 S.E. 2d at 13. It is significant that he did not do so. Instead, in an order which fails to suggest that the verdict represented a miscarriage of justice, he “spelled out” the grounds upon which he set it aside. These grounds, as a matter of law, require that his order be vacated and the case remanded for judgment on the verdict which the court had accepted.

Reversed.

Moore, J., not sitting.