
    Long v. Cassiero et al.
    
      Verdict — Impeachment hy affidavits of jurors — Misunderstanding of charge of court — Error in computation hy jurors — Remedy to correct erroneous verdict.
    
    
      1. A juror cannot, by affidavit, impeach his verdict by an attempt to prove that it was rendered through a misunderstanding of the court’s charge, or by showing an intention different from that disclosed by his verdict.
    2. If a mistake in computation is alleged to have crept into the verdict, this must appear from the record and not from affidavits of individual jurors that they misunderstood the charge of the court. In such case error must be predicated upon the ground that the charge was so misleading and prejudicial as to induce the erroneous verdict.
    (No. 17076
    Decided May 16, 1922.)
    Error to the Court of Appeals of Cuyahoga county*
    B. J. Long, who was the plaintiff below, brought an action in the Cuyahoga county court of common pleas on a cognovit note, in which he claimed to be due thereon the sum of $445.77 and interest. Judgment was rendered by that court for the amount asked.
    Subsequently this judgment was vacated on motion of the defendants, the court suspending the order of vacation, however, pending the adjudication of the case on the issues joined. The defendants were given leave to answer. In their answer, after admitting the execution of the note, they set up a counterclaim arising out of the transaction wherein the note was given. They alleged that plaintiff contracted to build two houses for $3,532 each; that the cognovit note represented the balance due on the contract; that prior to the execution of the note plaintiff had failed to construct the houses according to certain plans and specifications; that plaintiff then agreed if defendants would execute the note described in the petition he would comply with the plans and specifications and finish the houses according thereto; and that relying upon that promise the defendants below executed the note.
    The cross-petition contained numerous breaches on the part of the plaintiff in the fulfillment of his contract after the execution of the note, and asked the sum of $2,500 damages because of those breaches.
    Plaintiff’s reply to the counterclaim was a substantial denial of the allegations, in the cross-petition. The cause was then heard and the issue submitted to a jury, who returned a verdict as follows: “The jury in this case, being duly impaneled and sworn, upon the concurrence of the undersigned jurors, being not less than three-fourths of the whole number thereof, do find for the defendant and assess her damages in the sum of $250.”
    This verdict was signed by ten jurors. Thereupon plaintiff filed a motion asking the court to vacate the verdict and grant him a new trial for various errors' assigned, among others being error of law occurring at the trial and “error in the amount of recovery, the amount being too large, and not in accordance with the judgment of the jury.” In support of this motion plaintiff filed the affidavits of nine of the jurors who signed the verdict, all of which affidavits contained the following language :
    
      “That the said verdict was made out through a mistake and misunderstanding in the charge of the court; that the jury and each member thereof intended and agreed to give judgment to the defendants for Two Hundred and Fifty Dollars ($250) on their cross-petition, but it was understood that this amount would be taken away from the judgment of the plaintiff which had already been entered. It was the intention of the jury to reduce the plaintiff's claim against the defendants in the amount of $250 which was the amount of the verdict returned.
    “Affiant further states that the mistake was not discovered until after they were discharged, and that the verdict as returned does not represent the true verdict of the jury nor the verdict as agreed upon.' ’
    The trial court refused the motion for a new trial and rendered judgment on the verdict. The court of appeals affirmed the judgment, whereupon error was prosecuted to this court.
    
      Mr. T. J. Ross, for plaintiff in error.
    
      Messrs. Gentsch, Rawson, Smith, Kavanagh & Carpenter, for defendants in error.
   Jones, J.

The affidavits of the jurors in their attack upon the verdict were not incorporated in the bill of exceptions. From the viewpoint of procedure, therefore, the main question presented to this court passes out of this case, since it has been held that such affidavits must be incorporated in the bill of exceptions and verified by the trial judge. Sleet v. Williams, 21 Ohio St., 82, and Schultz v. State, 32 Ohio St., 276.

It may be noted in this connection that the entry of the court does not even state that the motion was heard upon the affidavits filed in its support, but waiving the procedural question, it is clear that the purport of these several affidavits is an attempt to impeach the verdict signed by the individual jurors. That this cannot be done has been repeatedly held by this court as shown by the following eases: Hulet v. Barnett, 10 Ohio, 459; Holman v. Riddle, 8 Ohio St., 384; Kent v. State, 42 Ohio St., 426, and Corrigan v. Rockefeller, 67 Ohio St., 354, 371.

If the individual jurors had not in fact signed the verdict, or the verdict was altered or substantially changed after its submission to the court by the jury, no doubt an exception could be made to the rule stated, because, in that event, such would not be the verdict of the jury; but a juror cannot impeach his signed verdict by an affidavit that it was rendered through a misunderstanding of the charge, or that the amount was arrived at through a wrong computation.

No doubt the court may, before the discharge of the jury, amend the verdict with its consent, but it would be a dangerous precedent to establish in this state were we to announce the principle that jurors, after their separation, should be allowed to change their verdict to conform to their real intention, or to impeach their verdict by any attempt to prove that it was rendered under a misunderstanding of the court’s charge. It would be a dangerous innovation which might be employed in similar cases where general verdicts were rendered. Eighty years ago this court denied the right of a jury to alter its verdict after separation. In Sargent v. State, 11 Ohio, 472, the proposition of the syllabus is as follows: “After the jury have returned their verdict, have been discharged, and have separated, they cannot be recalled to alter or amend it.” On page 473, in the opinion, the judge quotes the following: “After the trial is over and the verdict is once recorded, there seems to be no remedy, even though the jury have made a mistake in their finding, and make an affidavit to that effect. For all mistakes ought to be corrected at the time of trial, and before the verdict is recorded. Courts will not listen to the representations of jurors, contrary to their verdict. ’ ’

The foregoing is a criminal case, but more in point is that of Holman v. Riddle, 8 Ohio St., 384, where the syllabus reads: “Affidavits of jurors, stating, that they misunderstood the charge of the court, will not be received on motion to set aside the verdict.” In that case the motion for a new trial alleged that “The jury misunderstood the charge of the court in matters material to the issue, and acted upon such misunderstanding in finding their verdict.” Judge Swan, in that case said: “If a juror’s affidavit, stating his idea of the law as the judge had expounded it, or the facts as he understood the witnesses, were to be held sufficient to set aside a verdict, provided it should turn out that he was mistaken in any particular, scarcely any verdict could stand. * * * The practice would hold out strong inducements for suitors to tamper with jurors.' Such affidavits have, therefore, upon grounds of public policy, been in general rejected by courts.”

These affidavits state that the alleged erroneous verdict was rendered because of a misunderstanding of the charge of the court. It may be asserted that the motion for a new trial was an attempt merely to correct the verdict according to the jurors ’ intention. If this be true, or if the verdict was defective in form, in that one sum should have been found for the plaintiff below on his petition, and another in favor of the defendant on his counterclaim, this defect should have been corrected in open court in the presence of the court and jury. Section 11457, General Code, explicitly provides that when a verdict is defective in form, the court may correct it with the assent of the jurors who signed the verdict.

If the erroneous verdict was brought about by the charge of the court, error should be predicated, not upon affidavits that the jury misunderstood the charge, but upon the ground that the charge was. so misleading and prejudicial as to induce the erroneous verdict.

An inspection of the charge of the court shows that it was not misleading. The defendants admitted the execution of the note, and the only fraud claimed by the defendants was that the plaintiff failed to carry out his contract after the execution of the note. The court in its charge reverted three times to the form of the verdict, and his charge in effect was that the defendants, under the evidence, might recoup from the amount claimed in the petition, or the jury find for the defendants in an amount equal thereto. Then the court charged that if the total amount found for the defendants on the cross-petition “should exceed the amount that the plaintiffs claim on their note, then the verdict should be for whatever that addition would be.” Although not attached to the bill of exceptions it appears that there were two forms of verdict used, one finding a balance in favor of the plaintiff, and the other, which is on file, finding a balance in favor of defendants. It is evident from the verdict and charge of the court that the jury weighed the claims of the parties, and, under the charge, found a balance for the defendants; and though an exception was taken to the general charge none was taken to the form of the verdict submitted by the jury to the court.

Judgment affirmed.

Johnson, Wanamaker, Robinson and Matthias, JJ., concur.

Marshall, C. J.,

dissenting. It is well settled that upon grounds of public policy testimony of jurors should not be received for the purpose of impeaching their verdict, and I agree that such a rule is both sound and salutary. In a great many cases it has been held that an inquisition into the conduct of the jury during the course of their deliberations in the jury room would be productive of more harm than good; that it would tend to discredit jurors in their own estimation and in the estimation of the public and would destroy their independence. It is equally well settled that even where the jury has not been guilty of any misconduct, and where misconduct is not claimed, the testimony of a small number of the jury should not be received in an attempt to show mistake on the part of the majority of the jury, because of the temptation to unsuccessful parties to tamper with jurors and to avoid the verdict already rendered by permitting a small number of jurors to defeat the action of the larger number. This latter rule must be conceded to be less important than the former one, and yet many valid reasons can be urged for such a rule. The case at bar, however, does- not come within either of those rules. The verdict was originally rendered by ten jurors and nine of the ten have made affidavits that the verdict as rendered does not express their true intentions.

A judgment had originally been entered in favor of plaintiff upon a cognovit note, and upon motion of the defendants and tender of an answer that judgment was suspended and a cross-petition filed praying judgment in defendants’ favor. It clearly appears by the affidavits of the jurors that they believed that the judgment in plaintiff’s favor upon the cognovit would stand and that the jury was to determine the sole question whether defendants were entitled to a verdict upon the cross-petition. Although it was the intention of the jury to merely offset the judgment upon the cognovit by the sum of $250, thereby leaving plaintiff to recover a balance of approximately $200, the effect of the verdict as rendered took away the original judgment upon the cognovit entirely, thereby losing to plaintiff exactly the amount of the suspended judgment.

The foregoing recital is made to show how easy it would be for a jury to misunderstand and how difficult it would be for a court to cause a jury to clearly understand the instruction intended. The jury was not guilty of any misconduct, but on the contrary merely made an honest mistake, and expressed a desire to have the mistake corrected in order that substantial justice may be done. It is not an effort on the part of two or three jurors to show a mistake which is not conceded by the majority, but it is an admission of mistake on the part of nine jurors, a sufficient number to have rendered a verdict, and the tenth juror does not deny the affidavit of the nine, but it appears that the tenth juror has not been seen, nor his affidavit taken by either party.

The majority opinion cites the case of Hulet v. Barnett, 10 Ohio, 459. But that was a ease of impeachment, and an attempt to show misconduct on the part of jurors. The case of Holman v. Riddle, 8 Ohio St., 384, also cited, was a case where two jurors offered affidavits to the effect that they had not properly understood the charge. Judge Swan in the opinion discusses the difficulty of all jurors understanding perfectly all principles of law expounded to them in charges, and points out the impossibility of jurors untrained in the law having in all cases a clear understanding of the legal principles involved, and the danger of disturbing verdicts on such grounds. In the case at bar, however, it is not a question of understanding legal principles; the jury apparently understood the court’s instructions upon the issues tendered upon the cross-petition and also correctly understood that no issue was tendered upon the original petition, and also that the judgment rendered upon the original petition was only suspended, awaiting adjudication of the cross-petition. There is therefore no similarity between the case at bar and the case of Holman v. Riddle.

The rule which does not allow jurors to impeach their verdict applies to the agreement which the jury reached and not to the written paper filed, intended to express that agreement.

It may be observed that the jury is not seeking an opportunity to make a different finding upon the facts presented for determination, but rather that its reported verdict had no relation to the suspended judgment. It is undoubted that jurors frequently misunderstand the issues involved and the legal principles applicable thereto. It is also inevitable that improper influences are sometimes brought to bear in the jury room, or that after a verdict is reported in a close case some of the jurors may want to change the result, or may regret having yielded to the persuasions of other jurors.

None of these things may afterwards be proven by the affidavits of jurors, but I have not found a single respectable authority which denies the right to a new trial where the jurors are unanimous in testifying to an honest mistake, whereby the verdict is made to show other than the true intent.

The case of Kent v. State, 42 Ohio St., 426, is also cited. But that was also a case of alleged misconduct, which courts generally agree is forbidden to be shown by the affidavit of jurors, and which does not in any way resemble the controversy in the instant case. The case of Sargent v. State, 11 Ohio, 472, is discussed, but that was a case where, after the jury had been discharged, it was sought to have it recalled in order to alter and amend a verdict. That case is not in point, because in the instant case it is not sought to alter or amend the verdict, but merely to have the issues submitted to a retrial before another jury. In the opinion in the case of Sargent v. State, supra, it was stated that mistakes ought to be corrected at the time of trial and before the verdict is recorded. It clearly appears, however, from the statement of counsel in the instant case that counsel were not notified when the jury reported the verdict and therefore had no opportunity to know of the mistake until after the verdict was received and filed and the jury discharged and separated.

The doctrine that the testimony of jurors will not be received to impeach their own verdict has its basis in public policy, and rests largely upon the principle of estoppel, and in not permitting a juror to seek to avoid a verdict in which he has participated by showing his own misconduct and that of his fellow jurors. The doctrine is confined to matters of impeachment, and impeachment presupposes misconduct and malfeasance. Impeachment means to call in question, to accuse of wrong, to disparage or discredit. The doctrine has not, except in very few cases and in very few jurisdictions, been extended to errors and mistakes of fact. The great weight of authority is to the effect that while a verdict should not be amended or corrected because it is repudiated by one or more jurors it should nevertheless be held to be sufficient grounds for granting a new trial. To hold that a jury would not be permitted to correct an honest mistake would only be tenable upon the theory that a jury was infallible. Courts do not hesitate to correct their own mistakes and should not stand in the way of a jury desiring to correct its mistakes. "Would it be contended that if by mistake the jury had written the word “plaintiff” in a verdict, when it was their unanimous intent to give the verdict for the defendant, the jury would not be heard to testify that the verdict was for the wrong party? It very frequently happens that both plaintiff and defendant are asking for an affirmative verdict. It would manifestly work a miscarriage of justice for which no possible excuse could be offered to insist that such a mistake could not be shown by the testimony of the only men who had knowledge of it. Or, suppose, in the hurry of making up a verdict, in inserting the amount of the finding, the decimal point should be placed in the wrong position, thereby making the verdict either ten times as much as it should be, or only one-tenth as much. In personal injury eases there is a wide range of appraisement of damages and such a mistake could easily occur. The only just principle in such cases is that the mistake when discovered should constitute grounds for setting the verdict aside and granting a new trial.

The text-books and digests are all in harmony with the proposition that mistakes which are not related to misconduct or wrongdoing should be corrected, and a very large number of such cases could be cited, but for the purpose of this opinion I will only refer to a few, as follows: Little v. Larnabee, 2 Me., 37, 11 Am. Dec., 43; Roberts v. Hughes, 7 M. & W., 399, 151 Eng. Rep. R., 821; Cogan v. Ebden, 1 Burr, 383, 97 Eng. Rep. R., 361; Dalrymple v. Williams, 63 N. Y., 361; Carlson v. Adix, 144 Ia., 653, and Wolfgram v. Schoepke, 123 Wis., 19.

The majority opinion in the instant case amounts to an extension of the rule far beyond its general import. The rule itself is based upon technicality, and it is more in harmony with the progressive spirit of the times to temper the technicality rather than to increase its rigor. I have always firmly believed that if a jury properly understands a case, it will in ninety per cent, of all cases render a fair and just verdict, and I am also of the opinion that a great deal of criticism which has been indulged concerning juries of late years has been caused by the fact that jurors are not given a full opportunity to a clear understanding of their duties. It is necessary that the jury shall not only understand and determine questions of fact, but it is also necessary to apply principles of law thereto in reaching a verdict. There are so many opportunities for honest mistake, entirely separate and apart from any considerations of misconduct or malfeasance, that the courts should be prompt in permitting a retrial where it is clearly shown that an honest mistake has been made.  