Opinion
12817
January 23, 1930.
Before TOWNSEND, J., Charleston, April, 1928. Reversed and remanded.
Action by J.J. Sanders, Jr., against the Charleston Consolidated Railway Lighting Company. Judgment for defendant, and plaintiff appeals.
The complaint, answer, the Judge's charge, the remarks of the Court in refusing a motion for a new trial, and the exceptions, were as follows:
COMPLAINTThe complaint was verified and alleges:
First: That as plaintiff is informed and believes, defendant above named is now and at the times hereinafter mentioned was a corporation organized and doing business under the laws of the State of South Carolina, and as such at the times hereinafter mentioned owned, operated and maintained an electric lighting plant in the City of Charleston, together with wires carrying a high and deadly current of electricity and more particularly certain of such wires located on Harris Street, a public street in the City of Charleston.
Second: That on or about the 20th day of November, 1926, plaintiff and his nephew, Carroll Huggins, a lad of about sixteen years of age, were in the yard in the rear of premises, corner Harris and Meeting Streets, in the City of Charleston where the said plaintiff lived; that the said Carroll Huggins in play and sport, tied a long wire to a piece of iron and telling his grandmother that he was going to throw it into the marsh, threw the iron with the wire attached in the direction of the marsh; that the piece of iron fell and in doing so the wire attached to said iron came across an electric wire owned by said defendant corporation and strung along said Harris Street and carrying a high and deadly current of electricity, the insulation on said wire having been allowed by said defendant to become worn and defective; that when the said lad, Carroll Huggins, saw that the wire attached to the piece of iron which he had thrown had caught over said electric wire, he ran out in the street and in a few minutes plaintiff heard him scream and rushed out to see what the trouble was; that as he did so and got in the street he saw his nephew, Carroll Huggins, lying on the ground dying, the said nephew having come in contact with the wire which had been thrown over the electric wire of defendant corporation, which said electric wire was carrying a high and dangerous current of electricity and on which the insulation had been allowed by said defendant to become worn and defective; that in the alarm, confusion, excitement and emergency of the situation, in going to the aid of said nephew, plaintiff became entangled in the wire attached to the missile which the said Carroll Huggins had thrown, and said wire, having become highly charged with electricity by reason of the insulation on said wire belonging to said defendant having been allowed to wear off, and become defective, he received a frightful and terrible shock from said highly charged wire, he was rendered unconscious, his right hand was burned at the wrist and side and crippled, he was badly burned on the side and back, burned in the mouth and nose and his left hand so horribly and frightfully burned that it was obliged to be amputated above the wrist. He was taken to a hospital where he remained for weeks and weeks, suffering the most excruciating and agonizing pain, was afterwards taken to his home, still suffering, and is permanently disfigured, maimed and crippled.
Third: That the injuries to plaintiff, as aforesaid, were caused by the negligence, carelessness, recklessness and wantonness of said defendant corporation, its agents and servants, in the following particulars, to-wit:
(a) In causing and allowing the insulation to be worn off and become defective on its wires on Harris Street, which said wires carried a high and dangerous electric current.
(b) In failing and omitting to keep said wires, carrying said high and dangerous current of electricity over a public street in the City of Charleston, properly insulated.
(c) In failing and omitting to have made any proper inspection of said wires, carrying said deadly current of electricity, so as to have ascertained their defective condition.
Fourth: That by reason of the negligence, carelessness, recklessness and wantonness of said defendant corporation, its agents and servants, as above set forth, said plaintiff was caused to suffer the most frightful and excruciating pain and anguish, was burned, maimed and disfigured and crippled, had his left hand so badly injured that it had to be amputated and was permanently injured to his damage One Hundred Thousand ($100,000.00) Dollars.
ANSWERThe answer was verified and sets forth:
1. That the South Carolina Power Company is the successor to the Charleston Consolidated Railway and Lighting Company, defendant herein.
2. Answering the first paragraph of said Complaint defendant admits that it is a South Carolina Corporation and owns a lighting plant and distributing system which includes poles and wires through Harris Street, in the City of Charleston, and alleges that the said wires were safely and securely suspended and not dangerous unless some person through his own reckless or willful act using some independent instrumentality such as a metallic wire, throws the same over the aforesaid wire in such a reckless manner as to ground the current from the wire through his body.
3. Defendant denies the allegations of the second, third and fourth paragraphs of said Complaint, being the remaining paragraphs of the complaint, being the remaining paragraphs of the complaint, except that defendant is informed and believes that on the 20th day of November, 1926, Carroll Huggins, a nephew of the plaintiff, standing on the ground, recklessly threw a stove lifter attached to a piece of copper wire over an electric wire on the poles on Harris Street and grounded the current in the wire creating a danger that resulted in injuries to this plaintiff, Jabez J. Sanders, Jr., when the plaintiff placed himself in contact with the copper wire that Carroll Huggins had thrown up over the power line. And defendant alleges on information and belief that the said injuries to plaintiff, Jabez J. Sanders, Jr., were caused by the rashness, negligence, carelessness and recklessness of the plaintiff, who without taking any precaution to avoid the injury placed himself in contact with a piece of electrically charged copper wire which he knew was dangerous and which could not be dangerous and which could not be handled by any human being without the aid of a stick or other insulator, and he brought about his own injury. And defendant denies that the insulation on the wires was worn or defective or that the wires were improperly insulated and that the injuries were in any way due to the negligence, recklessness or willfulness of this defendant, or of its agents, or servants and alleges that the accident was due to rashness, negligence, carelessness and recklessness of the plaintiff.
4. Further answering said Complaint and for a further defense defendant alleges on information and belief that whatever injuries plaintiff Jabez J. Sanders, Jr., received were due to and caused by the rashness, negligence, carelessness and recklessness of the plaintiff, as a proximate cause thereof, and without which the injury would not have occurred, combining with the alleged acts of negligence, carelessness, recklessness and wantonness of the defendant, in that plaintiff, who in the face of a visible danger and without taking any precaution to avoid an injury, placed himself in contact with a piece of electrically charged copper wire, which he knew was dangerous, and could not be handled by a man without the aid of a stick or other insulator, and in consequence of this he was unable to handle the wire and the injury resulted.
JUDGE'S CHARGEThis is an action brought by the plaintiff against the defendant to recover damages for injuries to his person or body by burns alleged to have been caused by the carelessness, negligence, recklessness or wantonness of the defendant in maintaining an electric power wire carrying a high and dangerous electric current in and over a street in this city (a) on which it allowed the insulation to be worn off and become defective, (b) in failing and omitting to have such wires properly insulated, (c) in omitting to make any proper inspection of the wires so as to ascertain their defective condition.
The defendant denies that it has been either careless or negligent or reckless or wanton in any particular alleged in the complaint, that the plaintiff has been injured as claimed by him, and the burden is on the plaintiff to prove such allegations by the greater weight of the evidence before he would be entitled to recover any damages. The defendant claims that whatever injuries plaintiff may have received were proximately due to the acts of Carroll Huggins, a third person, for whose conduct defendant is not responsible, in throwing a stove lifter attached to a piece of copper wire over an electric wire of defendant on Harris Street, which grounded the current in the wire, and created the danger which injured plaintiff when the plaintiff placed himself in contact with the wire so thrown by Carroll Huggins over the power line. The defendant denies that the insulation on its wires was worn or defective, and denies that its wires were improperly installed, and that plaintiff's injuries were due to any negligence, recklessness, willfulness or wantonness on the part of defendant or of its agents or servants. Defendant claims that whatever injuries were sustained by plaintiff were proximately due to and caused by the plaintiff's own rashness, and contributory negligence, recklessness, willfulness or wantonness, without which the injury would not have occurred, combining with any wrongful acts, if any there were, on the part of the defendant, in that the plaintiff in the face of a visible danger, and without taking any precaution to avoid injury, placed himself in contact with a piece of electrically charged wire, which he knew was dangerous and could not be handled by a man without the aid of a stick or other insulator, in consequence of which plaintiff was unable to handle the wire and the injury resulted.
Negligence is a failure to use ordinary care in the discharge of the duty owned to oneself or another — or a failure to do that which an ordinary prudent person would have done under the circumstances shown by the evidence to have existed at the time of the transaction in question, or the doing of that which an ordinary prudent person would not have done under the existing circumstances. A willful act or omission is one intentionally done or omitted in conscious violation or disregard of a known duty. A wanton or reckless act or omission, like a willful act or omission involves a conscious disregard of a known duty or obligation or the requirements of due care toward oneself or others, or a conscious disregard of the probable consequences of one's conduct. Before a negligent, or reckless or wanton or willful act or omission can affect liability for an injury such negligence or recklessness or willfulness or wantonness must have been a proximate cause of the injury. A proximate cause is one which in natural sequence undisturbed by any independent cause or agency, not under the control of the actor, produces, the result complained of, or was one of the producing causes. There may be more than one proximate cause of a result. In order that an injury be a proximate result of a particular act or omission it is not necessary that the actor should have foreseen the particular consequences or injury which resulted. It would be enough if he should have foreseen that his act or omission, if negligent or reckless or willful or wanton would probably result in injury of some kind to some one to whom he owes a duty of protection against danger. A negligent act or omission from which an injury could not have been foreseen or reasonably anticipated is too remote in the line of causation to be a proximate cause. Negligence, or recklessness or willfulness or wantonness like any other fact may be proved by circumstantial or indirect evidence as well as by direct evidence. Evidence which shows it to have been more probable than otherwise that such fact existed at the time in question. By direct evidence of a fact is meant the statements of persons who have perceived its existence by means of their senses. By indirect evidence is meant the proof of some other fact or facts from which, taken either singly or collectively, the existence of the particular fact in question may be inferred as a necessary or probable consequence.
Where a person sees another in imminent and apparent danger of death or great bodily harm, not brought about by his own negligence or wrongful act or omission, the law requires of him only such care as a man of ordinary prudence would have exercised under the same circumstances, and makes proper allowance for any excitement, terror or the instinct to go to the help of another in imminent danger of death or great bodily harm.
Contributory negligence is a negligent act or omission of a plaintiff which concurring and cooperating with a negligent act or omission of a defendant is a proximate cause of the injury. The burden of proof is upon the defendant to prove the plea of contributory negligence by the greater weight of the evidence. Negligence on the part of the plaintiff contributing as a proximate cause to his injury would bar his right to recover any damages on account of defendant's negligence, if any should be proven, but would not prevent plaintiff from recovering damages if his injuries were proximately caused by some reckless or willful or wanton act or omission of defendant alleged and specified in the complaint, if proved by the evidence. Any recklessness, willfulness or wantonness on the part of the plaintiff specified in the answer, if proven, would prevent the plaintiff from recovering any damages, and if such defense should be proven — or the plaintiff should fail to prove that such injury as he sustained was due proximately to some negligence or recklessness or wantonness on the part of the defendant specified in the complaint — your verdict should be in favor of the defendant.
Defendant's request to charge No. 1 was charged by the Court as follows:
I charge you that if you find that the plaintiff was injured by coming in contact with an electric wire and that by the exercise of ordinary care under the circumstances he could have avoided such contact then the plaintiff is not entitled to recover anything in this action, unless his injuries were due to a willful or wanton act or omission of defendant. I further charge you that if the injuries suffered by plaintiff are not the natural, proximate and direct result of defendant's acts, but were caused by an intervening act or acts so operating on defendant's acts as to produce the injuries, then defendant is not liable and you should find for the defendant.
Defendant's request to charge No. 2 was charged by the Court as follows:
I charge you that in a civil case a defendant is not responsible for results except such as are natural, proximate and direct. If such consequences are caused by the acts of others, so operating on defendant's acts as to render defendant's acts the remote cause of the injury and to produce the injurious consequences, then the defendant would not be liable and you should find for the defendant.
Defendant's request to charge No. 3.
I charge you that the law in South Carolina is that negligence is a want of due care and that when there is a want of due care and that when there is a question of sudden peril the question is what would a reasonably prudent man do under the circumstances. The law sets up the standard of a man of reasonable prudence under the circumstances and if you find that the plaintiff did not act as a man of reasonable prudence would have acted under the circumstances and brought about his injuries, it is your duty to find a verdict for the defendant.
Charged by the Court as written.
Defendant's request to charge No. 4, charged by the Court as follows:
I charge you that a defendant is not responsible for consequences brought about by the intervention of a responsible human being, unless the act was induced, produced or set in motion by some negligent act of defendant, and that if you find that the act of Carroll Huggins in throwing a wire over defendant's wires, which were on poles above the street, is an intervening act and is the proximate cause of plaintiff's injury, and that the defendant's wrongful act was only a remote cause then it would be your duty to find a verdict for the defendant.
Defendant's request to charge No. 5 charged by the Court as follows:
I charge you that the fact of an accident or injury carries with it no presumption of negligence on the part of the defendant, and that unless the plaintiff proves by the preponderance or greater weight of the evidence that the defendant has been guilty of negligence as alleged in the complaint, and that the defendant's negligence is a proximate cause of the plaintiff's injury, that your verdict should be for the defendant.
Defendant's request to charge No. 6 charged by the Court as follows:
I charge you that an unlawful meddling or interference with the property of another is a trespass, and that the law does not require an owner of property to make the property safe as against trespassers except in the case of young children under what is known as the attractive nuisance doctrine, which does not apply in this case, and if you find that the act of Carroll Huggins in throwing a wire over the power line of defendant was the proximate direct cause of the injury to plaintiff, and that the plaintiff's injuries were not the proximate result of a wrongful act or omission on the part of defendant you should find a verdict for the defendant.
Defendant's request to charge No. 7 charged by the Court as follows:
I charge you that electric wires should be so fixed that a citizen pursuing the ordinary vocations of life will not come in contact with them. The law does not require impossibilities, and if you find that the defendant met the requirements of ordinary care in fixing its wires so as not to interfere with the citizens while pursuing their vocations in the ordinary walks of life your verdict shall be for the defendant.
Defendant's request to charge No. 8, charged by the Court as follows:
I charge you that even if plaintiff has proven by the greater weight of the evidence that defendant was negligent and that its power line was the condition by which the injury was made possible, yet if you find that the act of Carroll Huggins in throwing a bare copper wire over defendant's wire was an efficient intervening responsible cause of plaintiff's injury, that you should find a verdict for the defendant.
Defendant's request to charge No. 9, charged by the Court as follows:
I charge you that if the plaintiff had the choice of doing a dangerous thing, one a safe way, and the other an unsafe way, and that he fails to act as a reasonably prudent man would have acted under the existing circumstances, and chooses the unsafe way and brought about his own injury, then the plaintiff would have been guilty of contributory negligence and your verdict should be for the defendant, unless plaintiff's injury was the proximate result of some reckless or wanton act or omission of defendant.
If the plaintiff has proven that he has suffered bodily injury by burns, as alleged in the complaint — in consequence of some negligent act or omission specified in the complaint — then unless the defendant has proven that plaintiff was himself guilty of contributory negligence or recklessness or wantonness or willfulness as plead in the answer, you should find a verdict in favor of the plaintiff for such actual damages as would compensate the plaintiff for such injuries. In estimating and determining the amount of such actual damages, you may consider the following elements of damage, if you should find them proven in this case; any loss of time, if any, thereby caused to plaintiff from work, any impairment of health or earning capacity resulting from such bodily injuries and any physical and mental pain and suffering growing out of and connected with such bodily injury, if caused by the wrongful acts or omissions of defendant and the duration or probable duration of such pain or suffering or impairment of health or earning capacity, unless the defendant has proven its affirmative defense. If bodily injury to plaintiff was proximately caused by a reckless or wanton act or omission of defendant — specified in the complaint — then in addition to giving the plaintiff a verdict for actual damages to compensate him for such injuries, you could also give him a verdict for such additional amount of damages as punitive damages as you may determine from the evidence would be proper punishment to the defendant for such reckless or wanton act or omission — unless the defendant has proven that the plaintiff contributed to such injuries by a wanton or reckless or willful act or omission on his own part. If the plaintiff has failed to prove such facts as I have stated would entitle him to a verdict against the defendant, or the defendant has proven its affirmative defense, your verdict should be in favor of the defendant. The facts of the case are for you and you are to determine from the evidence which you have heard whether or not such injuries as the plaintiff sustained were due to some act of negligence, recklessness or wantonness on the part of the defendant as alleged in the complaint and whether or not the plaintiff contributed to such injuries by his negligence or recklessness or wantonness or willfulness on his own part as alleged in the answer, and in determining those matters apply the rules of law already stated by me in my charge.
Mr. Rivers: Counsel argued to the jury that the refusal of the Court to sustain the demurrer was an admission that the plaintiff was entitled to a verdict, and I wish that your Honor would instruct the jury that that is not the case.
Court: That merely meant that if the plaintiff proved the facts stated in his complaint he would be entitled to a verdict, the defendant denies those facts and the plaintiff would not be entitled to recover unless he proves his injuries were due to some act of negligence, wantonness or willfulness alleged in the complaint. The facts alleged in the complaint are denied in the answer and the jury has to determine what has been proved by the evidence. I can't state the evidence, I leave that to the jury to decide whether such facts have been established by the evidence as I have stated would entitle the plaintiff to a verdict. Your verdict may be either "We find for the plaintiff" so many dollars actual damages stating the amount, or "We find for the plaintiff" so many dollars actual damages and so many dollars punitive damages, or "We find for the defendant." Write your verdict on this blue paper called Summons and Complaint.
The verdict of the jury in favor of the defendant having been published by the Clerk, Mr. Logan, of counsel for appellant, asked that the jury be polled. The Court ordered this done and the following then took place, as shown by the stenographer's notes:
Upon the verdict in the above case being read in open Court by the Clerk, which verdict read: "We find for the defendant" Mr. Logan, representing the plaintiff, asked that the jury be polled, and upon this being done 11 of the jurors upon being asked by the Clerk "Is this your verdict?" replied yes, one juror, W.M. Mitchell, Jr., replied that it was not his verdict, whereupon the following took place:
Court: What do you mean by that is not your verdict?
A. I did not agree with them, I thought he ought to get a small verdict.
Q. Did you say that you agreed before they came out?
A. I agreed afterwards on three-fourths because majority rules, at the first starting off I did not agree.
Q. You say at first you did not agree?
A. No, sir.
Q. Then they put it to a three-quarter vote and after that what did you do?
A. I agreed.
Q. After a three-quarter vote you agreed?
A. Yes, sir.
Q. You did not have to agree because it takes 12 to make a verdict but you did agree after the three-quarters agreed?
A. Yes, sir.
Mr. Logan: He said that is not his verdict.
Court: I think where he has stated the facts and circumstances on which he agreed it became immaterial, he said he did agree after the three-quarters agreed, I will take his testimony on that.
The juror W.M. Mitchell, Jr., was then sworn and testified as follows:
QUESTIONS BY THE COURTQ. When you were asked if you agreed to the verdict this morning or not, state what the facts were, how the foreman came to sign the verdict?
A. When we first went up stairs the foreman asked each and every man what would they do and they came to me and I said I think he ought to have a verdict.
Q. Then what happened after that?
A. They put it to a vote and when the majority won I stood with the rest of the crowd.
Q. You then agreed to the verdict for the defendant?
A. Yes, sir.
Court: 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.
REMARKS OF THE COURT IN REFUSING A MOTION FOR A NEW TRIALCourt: Mr. Logan, I have given considerable thought to this case since the verdict was rendered and I think that the verdict is so clearly in accordance with the greater weight of the testimony that I am inclined to think now that that is the only reasonable conclusion to be drawn from the evidence on the question of proximate cause and that the interference of the boy Huggins in throwing the copper wire over the power wire and so bringing the electric current in contact with persons on the street was such a proximate cause as may have made any negligence on the part of the Power Company the remote cause, and I probably erred in not granting the defendant's motion for a directed verdict. Now the jury have found a verdict — made the same finding that I think considering all the evidence I would have made, and, therefore, I ought not to set is aside if it is just in my opinion unless there is clear legal error. A verdict if right should be final unless it appears there was not that unanimity required by law. Now in this case was there such unanimity? The statement of fact taken down by the stenographer and the testimony of Mr. Mitchell, the juror who dissented in open court, show that when the jury went to their room there was a difference of opinion at that time between the jurors on the facts, and Mr. Mitchell stated that he then said, when he first went to the room, that he thought the plaintiff ought to have a small verdict. There I differ from him because if he was entitled to any verdict he would have been entitled to a considerable verdict on account of his injuries. That was his view which he presented to the others. Now after they took a vote after they reached the vote of three-quarters of the jury being in favor of a verdict for the defendant he consented to such verdict believing that the majority should rule. He agreed to it after discussing the case, then after agreeing on the verdict he let the foreman sign it, seal it up and put it in his pocket and tell the constables at the door that they had agreed and thereupon they went to their homes under the instruction of the Court, until the next morning. The next morning when they came into court, Mitchell did not give any indication of any dissension when the verdict was to be read and it was read and the jury was asked if that was their verdict which they assented to, whereupon Mr. Logan asked that the jury be polled and I allowed the jury to be polled and while Mr. Mitchell on the poll being taken of the verdict said it was not his verdict, upon further examination by the Court he stated he had agreed on the verdict before it was signed up and sealed and stated for, or as a reason for his agreement that he went over to the majority after a protest at first.
Now when there was a difference of opinion on the part of the jury, that involved the surrender of the opinions of some of the jurors against others, or there would be no use in keeping a jury together and telling them they ought to agree. A juror ought not to give up his conscientious scruples to arrive at a verdict, although I have repeatedly told juries that it was their duty to carefully consider the views of the jurors to determine whether they could not agree and without a violation of their conscientious scruples they should agree. Now the juror stated the circumstances under which he did agree and I think the verdict agreed to was, and it is, supported by the evidence and I think I might have granted the motion when the motion to direct a verdict was made at the conclusion of the testimony.
Now the situation is just this: If I let this verdict stand and the case goes up to the Supreme Court the Court will have all the evidence before them and can determine if I am right in sustaining the verdict under the circumstances shown by the evidence. My reason for sustaining it is that the jury consented to it, it was sealed up and the jury were allowed to separate and he allowed the verdict to be read in the Court publicly without any indication of dissent, and that when the jury was polled he merely meant by stating that it was not his verdict that it did not represent what he thought about the case and now thought after he had been polled. He had agreed to it, however, before it was read, but on being polled he says now it is not his verdict. That comes pretty close to the Devereux case in 14 S.C. page 396. In that case a sealed verdict was rendered and the next morning the foreman delivered the sealed verdict when one of the jurors said it was not his verdict but he agreed not to oppose it to get out. The verdict was sustained by the Court and this was made the basis of the appeal. Now the Court reversed the judgment of the trial court in that case on the ground that the juror although he had agreed to the verdict the night before when it was sealed up, still had a right to object at the time he did which was before it had been published and accepted in Court. Now the difference between that case and this case is that in that case the juror called the attention of the Court to the fact that he withdrew his agreement to the sealed verdict before the verdict was announced and published in Court. In this case the juror kept quiet and it was only when questioned as to whether it was his verdict or not that he undertook to change his agreement which was made before the verdict was published, and I think if a juror is allowed to change at that stage of the case in answer to a question "Is that your verdict or not" we will have a great many mistrials, and it will render a trial by jury very uncertain. I think that the circumstances as shown on the examination of the juror in this case distinguishes it from the Devereux case, and I do not feel that I am compelled to grant a new trial on that authority. I want the Supreme Court to pass on the circumstances in this case. A further reason why it should not be granted is because I think the verdict is right, and if so I should have directed a verdict when the motion to direct the verdict for the defendant was made, and reaching that conclusion after the showing made when the verdict was published here in Court I refuse the motion for a new trial and will let the whole thing go up to the Supreme Court. I regret that the plaintiff is a poor man but I think that the interest of justice requires that the verdict should stand. If it is set aside, let the Supreme Court do it on appeal.
Mr. Logan: Does your Honor think that the 7th request is correct?
Court: I think so, taken in connection with the other requests.
Mr. Logan: You cannot poll a verdict until the verdict is read.
Court: I think his objection came too late. If that were not so, as soon as a verdict was reached some dissatisfied party would find out what the verdict was, and it might lead to corruption and I think the door should be shut. I will let the Supreme Court pass on it, I say it comes pretty close to the Devereux case, but I think it is distinguishable under the facts.
The defendant offered as a part of the record affidavit of all of the jurors and certificate of the Clerk of the Court, and the plaintiff offered as a part of the record the affidavit of the juror W.M. Mitchell, Jr., which were incorporated in the record.
EXCEPTIONS EXCEPTION IThe presiding Judge erred because it appears from the record that the verdict for defendant was rendered by eleven jurors and not twelve and for that reason the judge should have granted a mistrial or set aside the verdict.
EXCEPTION IIThe presiding Judge erred because it appears from the statement of the juror William Mitchell, Jr., taken in open Court that the verdict of the jury was not his verdict but was a verdict arrived at by a three-fourths vote, the error being that the presiding Judge should have set aside the verdict and granted a mistrial.
EXCEPTION IIIThe presiding Judge erred because it appears from the record both by the examination of the juror William Mitchell, Jr., in open Court, and by his affidavit, that the verdict as rendered in favor of defendant is not the verdict of the juror Mitchell and a new trial should have been granted on this ground.
EXCEPTION IVThe presiding Judge erred in charging defendant's request to charge No. 4 as follows:
"I charge you that a defendant is not responsible for consequences brought about by the intervention of a responsible human being, unless the act was induced, produced or set in motion by some negligent act of defendant, and that if you find the act of Carroll Huggins in throwing a wire over defendant's wires, which were on poles above the street, is an intervening act and is the proximate cause of plaintiff's injury, and that the defendant's wrongful act was only a remote cause then it would be your duty to find a verdict for the defendant."
The error being that by said charge the jury were instructed that if the act of Carroll Huggins in throwing a wire over defendant's wires brought about plaintiff's injuries that then he could not recover.
EXCEPTION VThe presiding Judge erred in charging defendant's request to charge No. 6 as follows:
"I charge you that an unlawful meddling or interference with the property of another is a trespass, and that the law does not require an owner of property to make the property safe as against trespassers except in the case of young children under what is known as the attractive nuisance doctrine, which does not apply in this case, and if you find that the act of Carroll Huggins in throwing a wire over the power line of defendant was the proximate direct cause of the injury to plaintiff, and that the plaintiff's injuries were not the proximate result of a wrongful act or omission on the part of defendant you should find a verdict for the defendant."
The error being that the same was not applicable, was misleading and practically instructed the jury that the act of Carroll Huggins in throwing a wire over the power line of defendant was a trespass for the results of which defendant would not be liable.
EXCEPTION VIThe presiding Judge erred in charging defendant's request to charge No. 7 as follows:
"I charge you that electric wires should be so fixed that a citizen pursuing the ordinary vocations of life will not come in contact with them. The law does not require impossibilities, and if you find that the defendant met the requirements of ordinary care in fixing its wires so as not to interfere with the citizens while pursing their vocations in the ordinary walks of life your verdict shall be for the defendant."
The error being that by so charging the jury were practically instructed to bring in a verdict for defendant because there was no contest as to the fact that defendant's electric wires were so placed "that a citizen pursuing the ordinary vocations of life" would not come in contact with them.
EXCEPTION VIIThe presiding Judge erred in charging defendant's request to charge No. 8 as follows:
"I charge you that even if plaintiff has proven by the greater weight of the evidence that defendant was negligent and that its power line was the condition by which the injury was made possible, yet if you find that the act of Carroll Huggins in throwing a bare copper wire over defendant's wire was an efficient intervening responsible cause of plaintiff's injury, that you should find a verdict for the defendant."
The error being that the same was misleading and the jury were thereby practically instructed that if the act of Carroll Huggins in throwing a bare copper wire over defendant's wire brought about plaintiff's injury, then he could not recover.
EXCEPTION VIIIThe presiding Judge erred in charging defendant's request to charge No. 9 as follows:
"I charge you that if the plaintiff had the choice of doing a dangerous thing, one a safe way, and the other an unsafe way, and that he fails to act as a reasonable prudent man would have acted under the existing circumstances, and choose the unsafe way and brought about his own injury, then the plaintiff would have been guilty of contributory negligence and your verdict should be for the defendant, unless plaintiff's injury were the proximate result of some reckless or wanton act or omission of defendant."
For the reason that the same was misleading, irrelevant and had absolutely no applicability, there being no question as to a choice of a safe or unsafe way by plaintiff.
The respondent's counsel served the following notice of grounds upon which they would ask that the judgment be sustained:
1. Because the verdict for the defendant is the only reasonably conclusion that could have been reached on the testimony in the case and is a just verdict and should have been directed for the defendant.
2. Because the undisputed testimony discloses that as a matter of law the proximate cause of the plaintiff's injury was the independent intervening act of Carroll Huggins who threw a bare copper wire over the defendant's wires and brought about plaintiff's injury and a verdict should have been directed for the defendant at the close of all the testimony and a nonsuit should have been granted at the close of plaintiff's testimony.
3. Because a nonsuit should have been granted because plaintiff's testimony discloses that plaintiff brought about his own injuries by reason of his contributory negligence as a proximate cause thereof in going to the aid of Carroll Huggins, who was in contact with a highly charged electric wire, without being equipped to help him, when it was plainly and obviously reckless and hopeless to attempt to aid Carroll Huggins without the use of a stick or other insulator, and a verdict for the defendant should have been directed at the close of all the testimony.
4. Because defendant's demurrer should have been sustained because it appears from the face of the complaint that the proximate cause of plaintiff's injury was the independent intervening act of Carroll Huggins in throwing a bare copper wire with iron attached to the end, high into the air across defendant's wires, and bringing the electric current down to the point where it could injure the plaintiff.
Messrs. Logan Grace, for appellant, cite: As to when jury may be polled: 14 S.C. 396. Degree of care: 110 S.C. 567; 90 S.C. 38; 69 S.C. 305; 157 Pac., 442; 147 Pac., 63; 89 S.C. 513. Plaintiff entitled to action here: 156 Pac., 442; 169 Pac., 556; 24 F.2d 746. Intervening act of another contributing toward injury does not relieve responsibility for original negligence: 78 Pac., 807; 95 S.C. 230.
Mr. G.L.B. Rivers, for respondent, cites: Verdict of jury: 1 McCord, 24; 135 S.E., 882; 7 Rich., 420; 136 S.C. 31; 140 S.E., 300. Distinguished: 14 S.C. 396. Juror may not impeach verdict of jury by an affidavit: 138 S.C. 167. No error for Court to direct one juror to do what it ought to have directed all of them to do: 164 U.S. 483; 58 Fed., 671; 157 Pac., 442. Against weight of authority. Directed verdict for defendant proper: 129 S.C. 269; 22 R.C.L., 132. As to trespasses: 108 S.C. 516. When there is a safe way and a dangerous way, he who takes the dangerous way cannot recover if injured: 86 S.C. 129; 120 S.C. 475.
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 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 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 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.
I agree with Mr. Justice Cothran that the judgment below will have to be reversed, because the verdict of the jury should not have been received and recorded.
We have no statutory regulations as to sealed verdicts. Perhaps we should have, since they are allowed so often, not only in civil but in many criminal cases. And they aid much in relieving the arduous duties of jury service. To reverse this case, because the supposed verdict of the jury was improperly received, is to encourage, I fear, the tampering with jurors who have been allowed to return a sealed verdict after they have agreed upon their verdict and have separated. On the other hand, to sustain the reception of the verdict in this case is to give a majority of a jury, and even the foreman alone, the right to announce that a verdict has been agreed upon when such is not the truth. The situation is bad, whatever the decision of this Court may be, and only tends to further establish how dangerous in the administration of law is the custom so generally now prevailing to allow sealed verdicts. Fortunately, for the cause of justice in South Carolina, it is not often that we have a juror like Mr. Mitchell, in this case, who made an affidavit that he had not agreed to the verdict, and made a counteraffidavit that he had agreed.
Frankly, with the view of trying to sustain the lower Court, I have made an exhaustive research of the authorities pertaining to the subject under consideration, and especially the decisions of our own Court. In addition to the authorities cited by Mr. Justice Cothran, I call attention to the views of well-known writers and cases decided by our Court.
As to a sealed verdict, this general principle is laid down in Ruling Case Law: "In this country, by way of substitute for a privy verdict, and to attain the same end of allowing the jury to separate after they have come to an agreement, a practice has been adopted in civil actions, and in cases of misdemeanors, at least, if not of all but capital crimes, of directing the jury, if they should agree during the adjournment of the Court, to sign and seal up their finding, and come in and affirm it at the next opening of the Court; but the verdict which determines the rights of the parties, and is admitted of record, and on which judgment is rendered, is the verdict received from the lips of the foreman in open Court." 27 R.C.L., 836.
In Perry v. Mays, 2 Bailey (18 S.C.L.), 354, the opinion of Judge Harper, approved by the Court, was to the effect that if one of the jurors, when the verdict agreed on is to be delivered in open Court, expresses his dissent to it, it is no verdict; although the jury had been permitted, with consent of the parties, to separate after they had agreed.
The decision in the case of Perry v. Mays was approved and followed in the case of Devereux v. Champion Press Company, 14 S.C. 396.
When the jury was polled, and juror Mitchell announced that the verdict attempted to be rendered was not his verdict, it was the duty of the Court, unless something appeared to show that a just verdict could not be rendered, to require the jury to return to their room and consider the case further.
"When the jury is polled, any juror may dissent from the verdict as announced, and in such case the jury may be sent back for further deliberation." 16 C.J., 1099.
To the same effect is the case of Clyde v. Southern Public Utilities Company, 109 S.C. 290, 96 S.E., 116. In that case, where a sealed verdict was permitted to be rendered, the jury announced during the night their agreement and were allowed to disperse. On the following morning, they came into Court, and when assembled, stated to the Judge that they did not understand how to write their verdict, and requested further instructions, which were given. They were sent back to their room and soon returned their verdict, which was received by the Court, and this action was approved by the Supreme Court.
The case which absolutely decides the proper course of procedure, in my opinion, is that of Lagrone v. Timmerman, 46 S.C. 372, 24 S.E., 290, 297. The appellants there had for their twelfth exception the following: "Because the presiding Judge erred in ordering or permitting the jury to retire and resume the consideration of the case when they had once dispersed, thinking that they had agreed upon a verdict, when, in fact, they had not." In disposing of that exception, the great Judge, Hon. Henry McIver, speaking for this Court, only said, "the twelfth ground of appeal cannot be sustained." Evidently he regarded the question absolutely settled in this state by the former decisions.
I do not think the cases cited by Mr. Justice Carter support the conclusion he has reached, as will be noted.
Martin v. Maverick, 1 McCord (12 S.C.L.), 24, and State v. Wise, 7 Rich. L. (41 S.C.L.), 412, both held that a jury could not be polled but at the discretion of the Court. That question is not up here.
Wannamaker v. Traywick, 136 S.C. 21, 134 S.E., 234, and State v. Cash, 138 S.C. 167, 136 S.E., 222, decided that it is improper to impeach the integrity of a jury's verdict by affidavits of the jurors. That question is only incidentally involved here. I agree with Mr. Justice Cothran that the affidavits submitted as to the verdict of the jury were improperly received. The cases mentioned and the decision in State v. Long, 93 S.C. 502, 77 S.E., 61, seems to me to be conclusive of that matter.
MR. JUSTICE STABLER and MR. ACTING ASSOCIATE JUSTICE GRAYDON concur.
This action by the plaintiff, Jabez J. Sanders, Sr., against the defendant, Charleston Consolidated Railway Lighting Company, a corporation, in the Court of Common Pleas for Charleston County, was commenced July 30, 1927, for recovery of damages against the defendant in the sum of $100,000, for personal injuries the plaintiff is alleged to have sustained on account of the negligence, carelessness, recklessness, and wantonness of the defendant, its agents and servants, in the particulars set forth in plaintiff's complaint, which will be incorporated in the report of the case. The defendant denied any negligence on its part and alleged certain matters material to its defense, set forth in its answer, which will also be incorporated in the report of the case. The case was tried before Judge W.H. Townsend and a jury at the April, 1928, term of the Court of Common Pleas for Charleston County, and resulted in a verdict for the defendant. A motion for a new trial was made by the plaintiff, which motion the presiding Judge refused. From the order refusing the motion for a new trial and from the entry of judgment on the verdict, the plaintiff has appealed to this Court, imputing error to his Honor, the presiding Judge, in the particulars set forth in appellant's exceptions.
Exceptions 1, 2 and 3 raise a question as to the manner in which the verdict was reached. These exceptions are as follows:
"Exception 1. The presiding Judge erred because it appears from the record that the verdict for defendant was rendered by eleven jurors and not twelve and for that reason the Judge should have granted a mistrial or set aside the verdict.
"Exception 2. The presiding Judge erred because it appears from the statement of the juror, William Mitchell, Jr., taken in open Court that the verdict of the jury was not his verdict but was a verdict arrived at by a three-fourths vote, the error being that the presiding Judge should have set aside the verdict and granted a mistrial.
"Exception 3. The presiding Judge erred because it appears from the record both by the examination of the juror, William Mitchell, Jr., in open Court and by his affidavit that the verdict as rendered in favor of defendant is not the verdict of the juror Mitchell and a new trial should have been granted on this ground."
It appears from the record in the case that the jury were charged by the presiding Judge and retired to their room for deliberation on the afternoon of Wednesday, April 11, 1928, with instructions from the Court to bring in a sealed verdict on the following morning. On the following morning, April the 12th, when the Court convened, the jury came into Court. The clerk of the Court, following the usual practice, called the name of each member of the jury, and each member was present and responded. Whereupon, the clerk asked the jury, "Gentlemen of the jury have you agreed upon a verdict?" They replied in the affirmative. The foreman of the jury then handed to the clerk a sealed envelope, containing the pleadings. The clerk then and there opened the envelope and published the verdict by reading the title of the case, and the verdict was as follows: "We find for the defendant. J. Fred Pieper, foreman, April 11, 1928." The clerk then said to the jury, "This is your verdict, so say you all," to which the jury assented. Following this counsel for the plaintiff moved that the jury be polled, which motion the Court granted, and the poll being taken, eleven jurors stated that the verdict as read was their verdict. The juror, William Mitchell, Jr., then for the first time during the proceedings stated that it was not his verdict, "as he had agreed to it because it was in accord with a three-fourths majority." Whereupon the following transpired:
"Court: What do you mean by that is not your verdict? A. I did not agree with them, I thought he ought to get a small verdict.
"Q. Did you say that you agreed before they came out? A. I agreed afterwards on three-fourths because majority rules, at the first starting off I did not agree.
"Q. You say at first you did not agree? A. No, sir.
"Q. Then they put it to a three-quarter vote and after that what did you do? A. I agreed.
"Q. After a three-quarter vote you agreed? A. Yes, sir.
"Q. You did not have to agree because it takes 12 to make a verdict but you did agree after the three-quarters agreed? A. Yes, sir.
"Mr. Logan: He said that is not his verdict.
"Court: I think where he has stated the facts and circumstances on which he agreed it became immaterial, he said he did agree after the three-quarters agreed, I will take his testimony on that."
The juror, W.M. Mitchell, Jr., was then sworn and testified as follows:
"Questions by the Court:
"Q. When you were asked if you agreed to the verdict this morning or not, state what the facts were, how the foreman came to sign the verdict? A. When we first went upstairs the foreman asked each and every man what would they do and they came to me and I said I think he ought to have a verdict.
"Q. Then what happened after that? A. They put it to a vote and when the majority won I stood with the rest of the crowd.
"Q. You then agreed to the verdict for the defendant? A. Yes, sir.
"Court: 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 following affidavits were presented to the Court:
"AFFIDAVIT OF JURORS
"We, the undersigned jurors, who say in the case of Jabez J. Sanders, Jr., against the Charleston Consolidated Railway and Lighting Company, each being duly sworn to tell the truth, the whole truth and nothing but the truth, so help me God, each state on our oath that the Juror William Mitchell, Jr., who sat in this case agreed to the verdict for the defendant before the jury left the jury room. That the jury was out for less than thirty (30) minutes and that Mitchell freely agreed to the verdict, without any compulsion.
"J.F. Pieper, Foreman. "R.F. Fraser. "Wm. H. Flint, Jr. "William Mitchell, Jr. "Clarence F. Rigby. "J. Dougal Bissell. "Alex. H. Pregnall. "Harry W. Kingdon. "Herbert H. Smyre. "Francis A. Wayne. "H.W. Crouch. his "John H.C. X Drew. mark "Witness: Wm. H. Dunkin, Clerk Ct.
"Sworn to before me this 12th April, 1928.
"Wm. H. Dunkin, Clerk Ct."
"AFFIDAVIT OF WILLIAM MITCHELL, JR.
"Personally appeared before me, William Mitchell, Jr., who being duly sworn says that he was one of the jurors impanelled for the trial of the above entitled case; that when the jury got into the jury room and my name was called, I stated I was for a verdict for the plaintiff. The foreman then said that he would put it to a vote and I still voted for a verdict and when I was called on in the Court by the Judge to state whether the verdict rendered was my verdict, I said `No' and I still say that in my opinion the plaintiff should have had a verdict and that is not my verdict.
"William Mitchell, Jr.
"Sworn to before me this 12th day of April, A.D., 1928, Lucille B. Brogan, Notary Public, S.C. (Seal)."
Following the presiding Judge's refusal to declare a mistrial, requested by counsel for the plaintiff, counsel for plaintiff "made a motion for a new trial upon the grounds that after the statement of the juror, Mitchell, a mistrial should have been declared and also upon errors in the Judge's charge."
In passing upon this motion and refusing the same, his Honor, Judge Townsend, assigned as reasons for such refusal which strongly appeal to this Court, and because of the importance this Court attaches to the views expressed by Judge Townsend as to the deliberations of a jury and the manner of rendition of a verdict we quote his language in full, as follows:
"Court: Mr. Logan, I have given considerable thought to this case since the verdict was rendered and I think that the verdict is so clearly in accordance with the greater weight of the testimony that I am inclined to think now that that is the only reasonable conclusion to be drawn from the evidence on the question of proximate cause and that the interference of the boy Huggins in throwing the copper wire over the power wire and so bringing the electric current in contact with persons on the street was such a proximate cause as may have made any negligence on the part of the power company the remote cause, and I probably erred in not granting the defendant's motion for a directed verdict. Now the jury have found a verdict — made the same finding that I think considering all the evidence I would have made, and, therefore, I ought not to set it aside if it is just in my opinion unless there is clear legal error. A verdict if right should be final unless it appears there was not that unanimity required by law. Now in this case was there such unanimity? The statement of fact taken down by the stenographer and the testimony of Mr. Mitchell, the juror who dissented in open Court, show that when the jury went to their room there was a difference of opinion at that time between the jurors on the facts, and Mr. Mitchell stated that he then said, when he first went to the room, that he thought the plaintiff ought to have a small verdict. There I differ from him because if he was entitled to any verdict he would have been entitled to a considerable verdict on account of his injuries. That was his view which he presented to the others. Now after they took a vote, after they reached the vote of three-quarters of the jury being in favor of a verdict for the defendant he consented to such verdict believing that the majority should rule. He agreed to it after discussing the case, then after agreeing on the verdict he let the foreman sign it, seal it up and put it in his pocket and tell the constables at the door that they had agreed and thereupon they went to their homes under the instruction of the Court, until the next morning. The next morning when they came into Court, Mitchell did not give any indication of any dissension when the verdict was to be read and it was read and the jury was asked if that was their verdict which they assented to, whereupon Mr. Logan asked that the jury be polled and I allowed the jury to be polled and while Mr. Mitchell on the poll being taken of the verdict said it was not his verdict, upon further examination by the Court he stated he had agreed on the verdict before it was signed up and sealed and stated for, or as a reason for his agreement that he went over to the majority after a protest at first.
"Now when there was a difference of opinion on the part of the jury, that involved the surrender of the opinions of some of the jurors against others, or there would be no use in keeping a jury together and telling them they ought to agree. A juror ought not to give up his conscientious scruples to arrive at a verdict, although I have repeatedly told juries that it was their duty to carefully consider the views of the jurors to determine whether they could not agree and without a violation of their conscientious scruples they should agree. Now the juror stated the circumstances under which he did agree and I think the verdict agreed to was, and it is, supported by the evidence and I think I might have granted the motion when the motion to direct a verdict was made at the conclusion of the testimony.
"Now the situation is just this: If I let this verdict stand and the case goes up to the Supreme Court the Court will have all the evidence before them and can determine if I am right in sustaining the verdict under the circumstances shown by the evidence. My reason for sustaining it is that the jury consented to it, it was sealed up and the jury were allowed to separate and he allowed the verdict to be read in the Court publicly without any indication of dissent, and that when the jury was polled he merely meant by stating that it was not his verdict that it did not represent what he thought about the case and now thought after he had been polled. He had agreed to it, however, before it was read, but on being polled he says now it is not his verdict. That comes pretty close to the Devereux case in 14 S.C. page 396. In that case a sealed verdict was rendered and the next morning the foreman delivered the sealed verdict when one of the jurors said it was not his verdict but he agreed not to oppose it to get out. The verdict was sustained by the Court and this was made the basis of the appeal. Now the Court reversed the judgment of the trial Court in that case on the ground that the juror although he had agreed to the verdict the night before when it was sealed up, still had a right to object at the time he did which was before it had been published and accepted in Court. Now the difference between that case and this case is that in that case the juror called the attention of the Court to the fact that he withdrew his agreement to the sealed verdict before the verdict was announced and published in Court. In this case the juror kept quiet and it was only when questioned as to whether it was his verdict or not that he undertook to change his agreement which was made before the verdict was published, and I think if a juror is allowed to change at that stage of the case in answer to a question `is that your verdict or not?' we will have a great many mistrials, and it will render a trial by jury very uncertain. I think that the circumstances as shown on the examination of the juror in this case distinguishes it from the Devereux case, and I do not feel that I am compelled to grant a new trial on that authority. I want the Supreme Court to pass on the circumstances in this case. A further reason why it should not be granted is because I think the verdict is right, and if so I should have directed a verdict when the motion to direct the verdict for the defendant was made, and reaching that conclusion after the showing made when the verdict was published here in Court I refuse the motion for a new trial and will let the whole thing go up to the Supreme Court. I regret that the plaintiff is a poor man but I think that the interest of justice requires that verdict should stand. If it is set aside, let the Supreme Court do it on appeal.
"Mr. Logan: Does your Honor think that the 7th request is correct?
"Court: I think so, taken in connection with the other requests.
"Mr. Logan: You cannot poll a verdict until the verdict is read.
"Court: I think his objection came too late. If that were not so, as soon as a verdict was reached some dissatisfied party would find out what the verdict was, and it might lead to corruption and I think the door should be shut. I will let the Supreme Court pass on it, I say it comes pretty close to the Devereux case, but I think it is distinguishable under the facts."
I consider it unnecessary to add anything to what Judge Townsend has said, except to state that in my opinion his Honor made a proper ruling in the case. As a matter of general information on the subject, attention is called to the following cases: Martin v. Maverick, 1 McCord, 24-28; State v. Thomas Wise and Calvin Johnson, 7 Rich. L., 412; Wannamaker v. Traywick, 136 S.C. 21, 134 S.E., 234; and State v. Cash, 138 S.C. 167, 136 S.E., 222.
All of the other exceptions, 4, 5, 6, 7, and 8, presented by appellant, impute error to the presiding Judge in charging certain requests of the defendant.
I do not consider it necessary to enter into a discussion of these exceptions, but desire to state that I have given careful consideration to the same, and in my opinion the position of appellant is not well taken. When the charge in each instance of which the appellant complains, is considered in connection with the entire charge of his Honor, it will be seen that not only was the charge not prejudicial to the rights of the plaintiff but applicable to the issues in the case. These exceptions should not be sustained.
The respondent served notice to sustain the judgment of the Circuit Court upon certain additional grounds. Under my view of the case it is unnecessary to consider the grounds of this motion.
The exceptions should be overruled, and the judgment of this Court should be that the judgment of the Circuit Court be affirmed.