dissenting. Following a two day trial this case was submitted to the jury upon an interrogatory and two verdict forms, one finding for the defendant, the other finding for the plaintiffs. The jury deliberated and nine jurors voted to find for the defendant, with one undecided and two voting for the plaintiffs. Nine jurors signed the interrogatory for the defendant, but through oversight only eight signed the verdict form.
The majority opinion states that because the trial judge and jury foreman both announced in open court that the verdict had been signed by nine jurors, appellants’ counsel had no reason to poll the jury. But that is not what the record tells us. When the jury announced that it had reached a verdict the following occurred:
THE COURT: If you would, please pass the Verdict and Interrogatory to the bailiff, please.
(The Verdict form and Interrogatory is handed to the bailiff, who in turn hands it to Judge Smith.)
THE COURT: First, the Interrogatory. “Do you find that the defendant, Neil Johnson, insisted or promised that the house or footing could be repaired and that the defendant, Neil Johnson, continued to attempt to repair the house or footing after substantial completion of the house on April 5th, 1979?” That is checked “Yes”, and signed by eleven (11) of the twelve (12) jurors?
MR. HOLLADAY: It’s supposed to be nine (9). Some of us printed. There should be nine (9) signatures.
THE COURT: I’m sorry. I can’t count the lines. It’s signed by nine (9) of the jurors; is that correct, Mr. Foreman?
MR. HOLLADAY: Yes, Your Honor.
THE COURT: The Verdict, “We, the jury, find for the defendant, Neil Johnson”; signed by nine (9) of the jurors?
MR. HOLLADAY: That is correct.
THE COURT: Does either side wish the jury polled?
MR. TAYLOR: No, Your Honor.
MR. WILLIAMS: No, Your Honor.
THE COURT: Ladies and gentlemen, we appreciate your time. Everyone please remain in the courtroom and let the jury have an opportunity to leave. Court will be adjourned.
Thus it is clear the trial judge never announced that nine jurors had signed the verdict, rather, he asked if nine had signed the interrogatory and the verdict. The foreman’s response, after indicating that there “should be nine signatures,” was “That is correct.”
Determining the number of signatures on a verdict form should not present a difficulty. It was complicated in this instance by the fact that the jurors had both printed and signed, resulting in this array of names:
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When a precedent for judgment was presented several days later for the signature of the trial judge, it was discovered that only eight jurors had actually signed the verdict form. Evidently the trial judge asked the jury foreman if the verdict had been agreed to by nine jurors and when told that it had, he notified counsel and a hearing was conducted. The foreman and a juror, Lonnie Faddis, testified that nine jurors voted to render a verdict for the defendant, that the interrogatory was signed by all nine jurors, including Mr. Faddis, but in the confusion Mr. Faddis neglected to sign the verdict form. Mr. Faddis testified his failure to sign was merely an oversight, that he had voted for a verdict for the defendant and that was still his verdict. The trial court asked Mr. Faddis to sign and date the original verdict and the judgment for the defendant was entered.
It is undisputed that the verdict represented the vote of nine jurors and was, in fact, signed by them before the judgment was formally entered. The fact that all nine had not signed the verdict when it was returned could have been detected simply by examining the verdict. That, I believe, was the duty of the party against whom the verdict was rendered, in order to preserve the right to complain. Appellants could have polled the jury when the verdict was announced and they declined that opportunity. Having failed to do so, they should not be permitted to obtain a new trial because of an inadvertent omission that was readily discoverable. Ark. Code Ann. § 16-64-119 (1987) [Ark. Stat. Ann. §§ 27-1737 and -1738 (Repl. 1979)] deals with verdicts:
(a) When the jury has agreed upon its verdict, they must be conducted into court, their names called by the clerk and the verdict rendered by their foreman.
(b) When the verdict is announced either party may require the jury to be polled, which is done by the clerk or court asking each juror if it is his verdict. If any one answers in the negative, the jury must again be sent out for further deliberation.
(c) The verdict shall be written, signed by the foreman, and read by the court or clerk to the jury, and the inquiry made whether it is their verdict.
(d) (1) If any juror disagrees, the jury must be sent out again.
(2) If no disagreement is expressed, and neither party requires the jury to be polled, the verdict is complete and the jury discharged from the case. [My emphasis].
When the verdict was accepted in open court without objection and the jury was not polled, the omission was waived, as I see it. In Hodges v. Bayley, 102 Ark. 200, 143 S.W. 92 (1912), a jury trial ended in a plaintiffs verdict. Neither party asked that the jury be polled. On appeal the defendant argued that the verdict was not signed by the foreman, as required by subsection (c), quoted above. In Hodges, the court held the requirement that the verdict be in writing and signed by the foreman is waived when rendered in open court “and duly received without objection by either party.” Hodges v. Bayley was decided before Amendment 16 was adopted, but the reasoning remains sound. By not objecting to the verdict as rendered, nor requesting that the jury be polled, the appellants waived the irregularity of the verdict.
The majority relies in part on A.R.E. Rule 606(b), which protects the confidentiality of the jury’s deliberations. But nothing in that rule prevents a juror being asked whether he or she agreed with the verdict as rendered. Under the circumstances of this case it was entirely proper for the trial court to conduct a hearing to inquire into the discrepancy in the number of signatures.
This case is now being tried a second time at the expense of the court, the parties, and. the system itself, not because of some material error in the proceedings, but because of a simple oversight which could have and should have been corrected at the time of occurrence. The failure ought to rest with the party against whom the verdict was rendered. I respectfully disagree with the majority and dissent to the reversal of the trial court.
Holt, C.J., and Hickman, J., join this dissent.