Opinion
No. 37525
Decided May 1, 1963.
Mistrial — Refusal to grant motion for, not error, when — Improper verdict form, submitted to jury, withdrawn — New proper verdict form submitted with instructions.
Where on the back of a verdict form submitted by the judge to the jury in a personal injury action there appears the figures, thirty-five thousand (35,000), with a slant line through the last cipher, which is discovered by the jury during its deliberations in the jury room, and where there is no showing in the record that anyone connected with the parties, their counsel or the court had anything to do with the placing of the figures on the verdict form, and no showing in the record that the figures had any effect upon the verdict of the jury, it is not an abuse of discretion for the trial court to refuse to grant a motion for a mistrial where the court substitutes a new and proper verdict form and instructs the jury to resume its deliberations and "consider only the evidence and the law and nothing else" and "you shall not discuss the irregularity in the verdict form."
APPEAL from the Court of Appeals for Cuyahoga County.
The plaintiff was seriously injured while driving a car which was struck from the rear by a vehicle operated by the defendant.
The plaintiff brought an action against the defendant for $25,150. The jury awarded plaintiff a verdict of $3,000.
The jury received the case at 11:33 a.m. on May 4, and at 3:29 p.m. advised the court that there were certain questions the jury wanted answered.
The jurors had two questions. The first was whether any verdict for damages should be broken down into three component parts, or reported as one lump sum. The second was as to what was meant by certain writing appearing on the back of one of the verdict forms.
The verdict form was lost and is not a part of the record in this court, but it is agreed by counsel that on the back of the verdict form was certain writing in pen or ballpoint pencil, which appeared as thirty-five thousand (35,000), with a slant line drawn through the last cipher of that group of figures.
Counsel for the defendant, upon hearing this question, moved for a mistrial. Plaintiff's counsel opposed the motion and the court refused to grant it.
In refusing the motion for a mistrial, the court made the following statement:
"Court having in mind that figure on the reverse side of the verdict form at least originally appears to be greatly in excess of the prayer of the petition, and having in mind that this case has been on trial for four days, and having no indication from the foreman or member of the jury that deliberations have been influenced by this unfortunate circumstance, court does not feel that it is proper to assume that the jury has been or will be so influenced.
"The court proposes to substitute a form without any writing on the reverse side, or otherwise than in the caption, and then instruct the jury to resume its deliberations, and consider only the evidence and the law, and nothing else, in arriving at a verdict.
"The court, thinking in that vein, overrules the motion, and exception is made for the defendant."
There was a further discussion between the counsel and the court in chambers, and thereafter the court made the following additional remarks to the jury:
"Ladies and Gentlemen of the jury, I instruct you to return to your deliberations, and you will have with you a new form of verdict on which I can assure you that as you leave this room there is no improper writing thereon.
"I further instruct you that upon resuming your deliberations you shall give consideration only to the evidence and the law, and nothing else.
"You shall not discuss the irregularity in the verdict form which you brought down with you, and which I say again causes me deep distress.
"We have spent four days in the trial of this lawsuit, and I think all concerned are desirous of a regular conclusion to it.
"If there is any discussion by any juror of this irregularity which brings you here now, you will end your deliberations forthwith, and the foreman will report to this court, and you will be discharged."
The jury returned to the jury room, recessed for the evening, resumed deliberations the next morning and returned a verdict for the plaintiff shortly before noon on May 5.
It is agreed that there is nothing in the record to show that anyone connected with the lawsuit, either the parties, their counsel or anyone connected with the court, had anything to do with placing the figures on the back of the verdict form.
It is not known how the figures came to be on the back of the form. It is agreed that two of the jurors reported that the figures on the back of the form were noticed shortly before lunch after the jury was first sent to the jury room. There is no evidence in the record that the presence of the figures on the back of the verdict form had any effect on the verdict which was ultimately rendered by the jury.
The Court of Appeals reversed the judgment of the Court of Common Pleas as contrary to law in not granting the motion for a mistrial on the ground of the irregularity appearing on the verdict form submitted to the jury, which the Court of Appeals held to be prejudicial to the substantial rights of the defendant.
The cause is before this court upon the allowance of a motion to certify the record.
Mr. Julien C. Renswick, for appellant.
Messrs. Hermann, Rhoa Cummins, for appellee.
The single question to be decided by this court is: Was it an abuse of judicial discretion for the trial court to overrule the motion for mistrial which was based on the ground that there were the figures, thirty-five thousand (35,000), with a slant line through the last cipher on the back of the verdict form and that this constituted such an irregularity that it had a prejudicial effect upon the jury's verdict, where there is no showing in the record that anyone connected with the parties, their counsel or the court had anything to do with the placing of the figures on the verdict form and no showing in the record that the figures had any effect upon the verdict of the jury.
This court is of the opinion that the trial court judge did everything that was properly possible by submitting a new and proper verdict form to the jury and instructing the jury to disregard the figures on the back of the original verdict form and in further instructing the jury that the jury should not consider these figures in any way in its deliberations.
The trial judge did not abuse his discretion under these circumstances in refusing to grant a motion for a mistrial.
The judgment of the Court of Appeals is hereby reversed, and the judgment of the Common Pleas Court is affirmed.
Judgment reversed.
TAFT, C.J., ZIMMERMAN, MATTHIAS, GRIFFITH, HERBERT and GIBSON, JJ., concur.