Bronstein v. American Ice Co.

¹³³ Thomas, J., delivered the opinion of the Court. This suit was brought by the appellant in the Baltimore’ City Court to recover.damages for injuries alleged to háve been sustained while on one of the streets of said city by reason of the negligence of the appellee’s agent or servant. The .record shows that the case has been tried three times. The first trial resulted in a verdict'for the plaintiff • for $100.00.

On the motion of the plaintiff that verdict was set aside and a new trial granted, and at the second trial the jury failed to agree. ■ ■ ■: The third trial began on the 13th of March, 1912, and what took place at that trial, is stated in the certificate of the presiding judge and agreement of counsel, set out in the record and also included in the first bill of exceptions, as follows: “Testimony having been taken on behalf of both the plaintiff and defendant, and’the Court having granted prayers at the request of the plaintiff and the defendant, after argument on the 14th day of March, 1912, the jury' retired’ to consider their verdict and were given leave to bring a sealed verdict to the Court at 10 o’clock A. M. on Eriday. the 15th day of March, 1912, at which time the Court and ■jury met pursuant to agreement. Immediately upon the meeting of the Court, the clerk, Mr. Stephens, announced that the jury had agreed. The Court then told Mr."Stephens to take the verdict. Mr. Stephens then read the names of the jurymen and the sealed verdict of the’jury was’then handed to the clerk by the foreman, who thereupon handed it to the Court.

Whilst it was being opened by the Court, the clerk called the plaintiff and the plaintiff answered by Mr. Lewis S. Ashman, one of the counsel of record for the plaintiff. Cpon the opening of the sealed verdict by the Court, the Court expressed its unwillingness to receive it in the form fin which it was, owing to a clerical error. The form in which it then appeared was as follows: (Though counsel were not shown it- or informed of its nature.) ¹³⁴ And we do authorize and direct our foreman, Mr. John S. Bridges, to deliver this, our signed and sealed verdict, to the Court. Witness our hands and seals this 14th day of March, 1912.

John S. Bridges, (Seal) E. F. Tyler, (Seal) William H. Gessler, (Seal) Geo. Ed. Numsen, (Seal) Harry M. Wagner, (Seal) William C. Ooddington, (Seal) Frederick L. Roden, (Seal) Charles W. Hoot, (Seal) Alex. R. Carr, (Seal) Herman H. Siltman, (Seal) J. Herman Craig, (Seal) Herman Dorofe, Jr. (Seal) 'While the paper was still in the hands of the Court and before anyone’s attention had been called to' it except tbat of tbe clerk, counsel for respective parties were called before the Court and tben and there without having been told the contents of the paper in the Court’s hand agreed in open Court that the jury should be allowed, to go back to tbeir ¹³⁵ room and correct the verdict. The jury at once retired.

At 10:20 the jury again returned to the Court room. Their names were again called hy Mr. Stephens. When Mr. Stephens asked them if they had agreed upon a verdict they said they had and announced that it was a sealed verdict. The foreman then handed to Mr. Stephens the sealed verdict.

The clerk then again called the plaintiff, Mr. Eolger, one of the bailiffs, responding for the plaintiff under-direction of the clerk who was given authority the day before by the plaintiff to respond, but whose authority so to do had been revoked by the plaintiff the following morning before the verdict was taken, which bping explained to the Court and admitted by the bailiff and the clerk, the Court then asked Mr. O’Dunne if he wanted to answer and Mr. O’Dunne replied that he was only trying the case for Mr. Ashman, and that Mr. Ashman had advised him that he was going to take a non pros. Mr. Ashman said that the plaintiff would not answer. Mr. Emory, counsel for the defendant, then said: “I now want to move the Court to receive the verdict on the ground that the plaintiff wás called once and answered and a sealed verdict was presented to the Court. The Court advised counsel that the sealed verdict was not in proper form and the plaintiff then consented, and so did the defendant, that the jury should retire and put their verdict in proper form.

The jury has now returned after having put the verdict in proper form and I now move your Honor that the verdict he received, whatever the verdict may be.” The Court: I think it is proper to grant that motion. Mr. Stephens (The Court Clerk) : There has been no answer for the plaintiff. Mr. Ashman: Your Honor, a verdict that is improper is no verdict at all. The Court: I shall receive the verdict, Mr. Ashman; the plaintiff has been called and has answered.

The Court then received the verdict as amended by the jury which was in form as follows: ¹³⁶ And we do authorize and direct' our foreman, Mr. John S. Bridges, to deliver, this,' our signed and sealed verdict, to the Court. . , Witness our hands and seals this 14th day of March, 1912. ' John S. Bridges, (Seal) E. E. Tyler, (Seal) William H. Gessler, (Seal) Geo. Ed. Wumsem. . (Seal) Harry M. Wagner, • (Seal) William- C. Coddington, (Seal) Erederiok L. Roden, (Seal) Charles W. Hoot, (Seal) Alex- R. Carr, _ (Seal) Herman H. Siltman, (Seal) J. Herman Craig, . (Seal) Herman Doroef, Jr. (Seal) ¹³⁷ '• And the plaintiff when then called refused to answer and the jury were asked to harken to their verdict, which they did, and the verdict was enrolled under these circumstances-: A “judgment on the verdict nisi” was entered, and on the 18th .of March the plaintiff filed'the following motions: a motion to strike out the verdict; a motion to strike out the judgment; a motion to strike out the verdict and judgment; a motion in arrest of j udgment, and a motion for a. new trial, assigning as the reason for said several motions the matters and facts set out in the; above certificate of the judge and agreement of counsel, and the five exceptions in the record are to. the rulings of the Court-on these motions.

A final judgment ón the Verdict in favor of the- defendant having been entered the plaintiff appealed. ; .- • It is said in Bacons Abridgement, Volume 7 (Oth Ed.), page 3:'“A privy verdict is so called; because what is there found ought.-to 'be kept secret, until a verdict is given in open Court. ' ; ■ • . “A jury may .find differently by a verdict given in open Court from what they found by a privy verdict,” and we End in 3 Blackstone’s Com. 377, the statement that “A verdict vere dictum, is either privy Or ’public. A.privy verdict is when the judge, hath left or-adjourned the Court; and the jury,, being agreed, in-order to be delivered from their confinement,- obtain leave -to give • their Verdict .privily- to -the judge out of Court'; which "privy verdict, i-s' of no -force, unless afterwards affirmed by ,a public verdict given-openly in Court;. wherein-the jury may, if they please, vary from the privy verdict.” It is Said in 22 Ency. of P. & P. 1008, that “It is generally regarded as necessary, where the jurors have agreed upon a verdict, sealed it up, and separated, that they should be subsequently -re-called for affirmance of the verdict.” And on page 1011 it is further said: “When a sealed verdict has been returned,. the' Court may amend it as to inadvertent errors, omissions or inaccuracies in matters of form,” and that “A sealed verdict as delivered by the ¹³⁸ jury is not conclusive in the sense that it cannot be altered or corrected by tbe jury if defective or irregular. Where, when a sealed verdict is read in open Court for tbe jury’s affirmance, it is found to be irregular, uncertain, or defective, tbe jury may’be directed to retire again to put tbe finding in proper form.” In tbe case of Edelen v. Thompson, 2 H. & G. 31 , tbe Court said: “It appears to us tbat tbe verdict banded to tbe clerk, is in tbe nature of a sealed or privy verdict, and might be varied from in open Court, and tbat no error was committed in ordering tbe jury to their chamber tbe next day to correct' it. Tbe rule is, tbat a verdict may be varied from by tbe jury, at any time before it is recorded; and tbe Court, who are best acquainted with their own practice, tell us, tbat tbe verdict under consideration bad not been recorded by them.

It was left with tbe clerk, for tbe ease of tbe jury, and