Edwards v. Hood Motor Co.

69 S.E.2d 550 (1952)

235 N.C. 269

EDWARDS v. HOOD MOTOR CO. et al.

No. 244.

Supreme Court of North Carolina.

March 19, 1952.

*552 J. Faison Thomson, Goldsboro, and H. T. Ray, Faison, for plaintiff, appellee.

Taylor & Allen, Lindsay C. Warren, Jr., and Paul B. Edmundson, all of Goldsboro, for defendants, appellants.

JOHNSON, Justice.

Before a verdict is complete it must be accepted by the court, but it is the duty of the presiding judge, before accepting a verdict, to scrutinize its form and substance to prevent insufficient or inconsistent findings from becoming a record of the court. Therefore, where the findings are indefinite or inconsistent, the presiding judge may give additional instructions and direct the jury to retire again and bring in a proper verdict, but he may not tell them what their verdict shall be. Baird v. Ball, 204 N.C. 469, 168 S.E. 667.

*553 However, a party litigant has a substantial right in a verdict obtained in his favor. Accordingly, where a consistent verdict has been returned on issues which are determinative and is rejected by the court as a matter of law, and such ruling is held to be erroneous, the appellate court will remand the cause for appropriate proceedings. Allen v. Yarborough, 201 N.C. 568, 160 S.E. 833; Butler v. Gantt, 220 N. C. 711, 18 S.E.2d 119; Ferrall v. Ferrall, 153 N.C. 174, 69 S.E. 60; Abernethy v. Yount, 138 N.C. 337, 50 S.E. 696.

In the trial below, the verdicts first returned may be reconciled under a permissive application of the doctrine of proximate cause, Luttrell v. Mineral Co., 220 N. C. 782, 18 S.E.2d 412, and this is so, apart from application of the principles of intervening or insulated negligence. Butner v. Spease, 217 N.C. 82, 6 S.E.2d 808.

While the record indicates the jury may have applied the doctrine of intervening or insulated negligence in arriving at their composite verdicts, nevertheless, it does not follow as a matter of law or factual certainty that such was the case. Hence, the verdict in the instant case is not essentially inconsistent. The court may have set the verdict aside as a matter of discretion, but it was error to refuse to accept the verdict as a matter of law. Allen v. Yarborough, supra. This error vitiated all subsequent proceedings below, and we so hold. The verdict will be treated as having been received, and the cause will be remanded for further proceedings, with the parties being relegated to their rights as of the coming in of the verdict to the extent (1) that the plaintiff may move the court to set aside the verdict in the exercise of its discretion, and (2) that the defendants may move for judgment on the verdict. Ordinarily, a motion to set aside a verdict in the discretion of the court must be made and decided at the trial term. Fowler v. Murdock, 172 N.C. 349, 90 S.E. 301; McIntosh, N. C. Practice and Procedure, p. 671. However, this rule is subject to exception where, as here, an erroneous ruling of the trial court deprives a litigant of the opportunity to invoke this inherent discretionary power of the court. Batson v. Laundry Co., 202 N.C. 560, 163 S.E. 600; Tickle v. Hobgood, 212 N.C. 762, 194 S.E. 461.

Error and remanded.