January 23, 1930. The opinion of the Court was delivered by I cannot escape the conviction that the verdict in this case should not have been received and recorded.
It appears that according with a prevailing custom, as the Court was about to adjourn for the day, the case having been or was about to be submitted to the jury, it was agreed, and so ordered by the presiding Judge, that the jury upon agreement might disperse and bring into Court the next morning a sealed verdict. In a short while the jury announced to the bailiff in charge that they had agreed upon a verdict, and were allowed to disperse. The next morning the jury assembled in Court, and the clerk, after calling the roll, propounded the usual inquiry as to agreement, to which the foreman answered in the affirmative; no juror interposing objection to his statement. The foreman then handed the record, in a sealed envelope, to the clerk, who announced the verdict as in favor of the defendant. Immediately counsel for the plaintiff preferred a request that the jury be polled, which was granted. To each juror the clerk propounded the question as to his assent to the verdict as announced; all expressed their assent except the Juror W.M. Mitchell, Jr. The transcript shows that when he was asked the question, "Is this your verdict?""He replied that it was not his verdict." His Honor then proceeded to interrogate the juror as to what he meant by saying that that was not his verdict, and had him sworn to undergo a further examination. The substance of his interrogation and examination was that in the jury room, as they proceeded to discuss the case, he announced his opinion *Page 243 that the plaintiff "ought to get a small verdict," but that after the foreman put the question to the other jurors and it appeared that a three-fourths majority were in favor of a verdict for the defendant, "because a majority rules," he agreed thereto.
Thereupon his Honor ruled: "I think that is a sufficient agreement; you had a right to stand to your first opinion if you wished to; you may take your seat. I will receive the verdict."
The plaintiff moved for a new trial upon the ground of error in receiving the verdict under these circumstances and upon other grounds which need not be stated, and supported his motion with an affidavit of the dissenting juror which was replied to by an affidavit of the other jurors.
I think that the interrogation and examination of the juror and the affidavits received as to what had occurred in the jury room were all entirely irregular. There was a single and simple matter to be determined, whether at the moment of the publication the verdict represented the juror's conclusion which required nothing more than his statement, unless there should be made to appear some fact which would discredit it.
The rule in such matters is very clearly stated in 16 C.J., 1098: "Polling the jury is a practice whereby the jurors are asked individually whether they assented and still assent to the verdict."
It is further stated in the same work at the same page: "The jury may be polled after the verdict is given and before it is filed; and a motion or request to poll should be made as soon as the verdict is announced." (This rule appears to have been complied with by counsel for the plaintiff in the present instance.)
In the case of Devereux v. Champion Cotton Press Company,14 S.C. 396, it was held that where a jury before dispersing assented to a verdict which was duly written and sealed up, but upon the reassembling of Court and *Page 244 before publication the foreman openly stated that some of the jurors then dissented from the finding, it was held that such verdict should not have been received.
In the present case at the request of counsel for the plaintiff and exercising his discretion in the matter, his Honor, the presiding Judge, ordered the jury to be polled, and during that ceremony the Juror Mitchell stated that he did not assent to the verdict. If, as in the Devereux case, the Court should have acted upon the statement of the foreman of the jury to the effect that some of the jurors did not then assent to the verdict, the reason seems stronger that he should have acted upon the statement of the juror himself, which has not been impugned. In the Devereux case the Court referred to what is denominated the convenient practice above referred to, and, citing authorities, says: "These authorities establish the proposition that until a verdict has been published and recorded, it may be recalled and altered by the jury, and if it is made known to the Court, when it is proposed to render the verdict, that any one of the jurors does not then assent to it, such verdict cannot be received, but the record should be recommitted to the jury with directions to retire to their room until they have agreed * * *."
The Court cites with approval the case of Root v. Sherwood, 6 Johns. (N.Y.), 68, 5 Am. Dec., 191, and says of the facts in that case: "Before the jury retired the parties agreed that the jury might deliver a sealed verdict; yet it was held that when the jury came into Court to deliver the sealed verdict either party might have the jury polled, and any of the jurors might dissent from the verdict to which they had previously agreed."
If the juror had agreed to the verdict the night before unconditionally, and not upon a mistaken conception of his duty, as appears to have actuated the juror in this case, he could have changed his mind overnight and when *Page 245 the verdict was published registered his assent. His assent must appear at that time or the verdict is void.
There would be absolutely nothing to be accomplished by polling the jury if the dissent of a juror to the verdict when it was published is not to be regarder; his previous assent is in all instances presumed. See State v. Harden, 1 Bailey, 3; State v. Daniel, 77 S.C. 53, 57 S.E., 639; Note, 43 L.R.A., 79.
In the last-mentioned note the case of Weeks v. Hart, 24 Hun. (N.Y.), 181, is cited, in which it is stated that the Court decided that where a judgment is rendered in favor of the plaintiff upon the verdict of the jury which was entered after the jury was polled and one of them had stated that he was not satisfied with the verdict, the Court reversed the judgment and ordered a new trial, as such expression of dissent before the entry of the verdict upon the record destroyed the unanimity which was essential to make the verdict valid.
I think therefore that the judgment should be reversed and the case remanded for a new trial. A majority of the Court agreeing with this view, it is so ordered.
In justice to the presiding Judge, his remarks overruling the motion for new trial should be incorporated in the report of the case.
MR. JUSTICES BLEASE and STABLER and ACTING ASSOCIATE JUSTICE GRAYDON concur.
MR. JUSTICE CARTER dissents.
MR. CHIEF JUSTICE WATTS did not participate.