Freid v. McGrath

135 F.2d 833, 77 U.S. App. D.C. 385, 1943 U.S. App. LEXIS 3429

• Court: Court of Appeals for the D.C. Circuit
• Decided: May 17, 1943
• Docket: 7895
• Status: Published

Opinions

MILLER, Associate Justice.

Appellee has requested that the mandate of the court be recalled and its opinion clarified in this case. In that opinion the District Court was directed “to reinstate the verdict for plaintiff in the first trial and to enter final judgment thereon.” Specifically, appellee suggests, an indication should be given whether the verdict to be reinstated “is the true verdict of the jury for the appellee in the sum of $850.00 or the erroneous announcement of the jury of its verdict in the sum of $425.00.”

As the case stands at the present time, there is no recorded verdict upon which judgment can be entered. The District Court set aside the first one, when it granted the new trial. Our mandate required that the second one be set aside. The District Court must now act to reinstate the proper verdict. If any question remains as to what constitutes the true verdict of the jury, it must be decided by the District Court, in the proper exercise of its discretion,¹ using such information as may be available to it. We express no opinion as to whether the question is open or, if open, how it should be decided. The rules of law which will govern the exercise of the District Court’s discretion may be stated, briefly, as follows: Where the jury’s error is patent on the face of the verdict, the court should so amend the verdict as to make it conform to correct legal principles.² But where the mistake is latent in and not apparent on the face of the verdiet, it is sometimes proper to receive the affidavits of the jurors to ascertain their true verdict.³ Although great caution⁴ should be exercised in the use of such affidavits, there is no inflexible rule against their use,⁵ especially when they are offered, not for impeachment of the verdict, but rather for ascertainment of the true verdict.⁶ The distinction between cases where the affidavits of jurors will not be received and cases where they will be received goes not to the “types of cases in which the proof may be offered, but rather goes to the question of what it is the moving party offers to prove.”⁷ If the jury actually found a verdict in the amount of $850.00, but mistakenly apportioned that amount between two defendants, the District Court, if properly convinced of that fact, would have power to correct the verdict accordingly; so that it would express the conclusion actually reached, and finally agreed upon by the jury — but mistakenly reported to the court.⁸

The mandate will be recalled and a new mandate will issue. In all other respects appellee’s motion must be denied.

It is so ordered.

1 Pelzer Mfg. Co. v. Hamburg-Bremen Fire Ins. Co., C.C.D.S.C., 71 F. 826, 830.

2 Washington Market Co. v. Clagett, 19 App.D.C. 12, 27, 28; Dextone Co. v. Building Trades Council, 2 Cir., 60 F.2d 47, 49.

3 Pelzer Mfg. Co. v. Hamburg-Bremen Fire Ins. Co., C.C.D.S.C., 71 F. 826, 830, 831; Elliott v. Gilmore, C.C.E.D.Pa., 145 F. 964; Glennon v. Fisher, 51 Idaho 732, 736, 10 P.2d 294, 295; McCabe Lumber Co. v. Beaufort County Lumber Co., 187 N.C. 417, 418, 121 S.E. 755, 756; Moulton v. Staats, 83 Utah 197, 206, 27 P.2d 455, 459.

4 Mattox v. United States, 146 U.S. 140, 148, 13 S.Ct. 50, 36 L.Ed. 917.

5 Clark v. United States, 289 U.S. 1, 18, 53 S.Ct. 465, 77 L.Ed. 993; Mattox v. United States, 146 U.S. 140, 148, 149, 13 S.Ct. 50, 36 L.Ed. 917.

6 Burlingame v. Central R. of Minn., C.C.E.D.N.Y., 23 F. 706, 707.

7 Southern Pac. Co. v. Klinge, 10 Cir., 65 F.2d 85, 88.

8 Capen v. Inhabitants of Stoughton, 16 Gray, Mass., 364, 365-367.