Perryman v. Rosenbaum

Pope, Judge,

concurring specially.

While I share the majority’s concern about preserving the rule against the impeachment of verdicts, I agree with the dissent that the sworn statements of the jurors in this case were submitted to explain and sustain their verdict in this case. As our Supreme Court recently stated in Spencer v. State, 260 Ga. 640, 643 (398 SE2d 179) (1990), cert. denied, _ U. S. __ (111 SC 2276, 114 LE2d 727) (1991) “[t]he rule against allowing jurors to impeach their verdict serves important public interests. The rule discourages post-verdict harassment of jurors, enhances verdict finality and certainty, encourages free and open discussion among jurors during deliberations, and insulates jury value judgments from judicial review.” However, these interests are not harmed when sworn statements or affidavits of jurors are submitted to explain the true meaning of their verdict rather than counter it in any way. See Watkins v. State, 237 Ga. 678 (229 SE2d 465) (1976). By refusing to allow jurors to assist the trial court in determining the true meaning of their verdict, we have applied the dictates of OCGA § 9-10-9 too broadly. For that reason, our decisions in King Cotton, Ltd. v. Powers, 190 Ga. App. 845 (380 SE2d 481) (1989) and Saint v. Ryan, 114 Ga. App. 489 (151 SE2d 826) (1966) should be disapproved to the extent they hold that sworn statements of jurors offered to explain their verdict run afoul of the dictates of OCGA § 9-10-9.

I agree with the majority that the error committed by the jury in rendering its verdict was aided, if not caused, by the apparent trial strategy and conduct of the defendants. At a minimum, defendants should have requested that the jury be polled after their verdict was returned. Contrary to the dissent’s assertion otherwise, polling the jury would have quickly and easily resolved this misunderstanding. The trial judge could have asked the jury if they followed his instructions and deducted the $500,000 settlement from the total amount of compensatory damages they found plaintiff was entitled to receive. As the majority points out, the defendants did not offer a proposed form for the verdict that would have clarified the jury’s responsibility regarding deducting the earlier settlement with the other co-defendants from the total amount of damages they determined were due to plain*791tiff. Under the facts of this case, I agree that the trial court erred by granting defendants’ motion for new trial as to compensatory damages.

I am authorized to state that Judge Cooper joins in this special concurrence.