December 4, 1975.
Appeal from the Circuit Court, Chilton County, Joe Macon, J.
C. William Gladden, Jr., Birmingham, for appellant.
When a trial jury returns a written verdict which expresses the award of an amount different from the announced amount of verdict, the written verdict prevails. City of Birmingham v. Hawkins, 196 Ala. 127, 72 So. 25; Edwards v. State, 205 Ala. 160, 87 So. 179; W. T. Rawleigh Co. v. Hannon, 32 Ala. App. 147, 22 So.2d 603; Alexiou v. Christu, 285 Ala. 346, 232 So.2d 595. Where a trial jury returns a written verdict announcing a certain amount but announces orally a different amount, and thereafter the jury is discharged, the court is without authority to enter judgment in either amount or to reassemble the jury after its discharge for redeliberation. St. Clair v. Caldwell Riddle, 72 Ala. 527; City of Birmingham v. Hawkins, 196 Ala. 127, 72 So. 25; W. T. Rawleigh Co. v. Hannon, 32 Ala. App. 147, 22 So.2d 603; Alexiou v. Christu, 285 Ala. 346, 232 So.2d 595; Brown v. Barr, 269 Ala. 497, 113 So.2d 924; Brister v. State, 26 Ala. 107. There is a discharge of a jury, after which time it has no more ability to function in a given case, when the jury leaves the courtroom and after having been told that they are excused from the case and after discharge, it no longer has any power to redeliberate, resolve any ambiguity in a rendered verdict, or perform any other activity. Brown v. Barr, 296 Ala. 497, 113 So.2d 924; Brister v. State, 26 Ala. 107; St. Clair v. Caldwell Riddle, 72 Ala. 527; City of Birmingham v. Hawkins, 196 Ala. 127, 72 So. 25; Board of County Commissioners v. Novy (Okl.), 298 P.2d 1046; Boyer v. Maloney, 27 Ohio App. 52, 160 N.E. 740; International-Madison Bank v. Silverman, 138 Misc. 690, 234 App. Div. 619, 251 N.Y.S. 884, 941, 246 N.Y.S. 638; Winters v. B Q Transit Corp., 237 App. Div. 819, 260 N.Y.S. 161.
Walter C. Hayden, Jr., Clanton, for appellee.
To entitle a litigant to a reversal, the error complained of must have probably injuriously affected substantial rights of the appellant. Supreme Court Rule 45; Rule 61, Ala. Rules of Civil Procedure; 2A Ala. Digest Appeal Error #1170.1 (Pocket Parts) Page 195; Rosen v. Lawson, 281 Ala. 351, 202 So. 716; State v. Hodge, et al., 280 Ala. 422, 194 So.2d 827.
The only issue presented on this appeal involves the irregularity of a jury verdict.
When the jury foreman announced the verdict to the court, in this negligence action, he stated it as "$45,000." On the verdict form, however, the amount was shown as "$4,500."
The jury concluded its deliberations at 9:50 a.m., when the foreman read the verdict as $45,000. The jury was requested to remain in the courtroom so they could be qualified in another case. One member was excused for the remainder of the day. The trial judge discovered, within twenty minutes, the inconsistency between the verdict as read by the foreman and the verdict as written. He reassembled the jury, including the one member who had gone home, and explained the inconsistency and asked the jury to return to the jury room, and "correct your verdict." The jury stayed in the jury room approximately three minutes and returned the following verdict:
As is apparent, the foreman wrote "void" over the "$4,500" sum and initialed it, and entered "$45,000" and initialed that.
The trial judge entered a judgment upon the jury verdict for $45,000.
The Power Company argues:
1. There was a discharge of the jury prior to the activity in court leading to the entry of judgment.
2. The judgment(s) of the court were based upon the second deliberation of the jury.
3. There was no acceptance by the court of the oral declaration of the jury as a verdict.
4. The court had no further authority to reassemble the jury and allow its redeliberation upon having noted the disparity between the announcement and the written verdict.
5. The court did not attempt to correct or amend the original verdict of the jury, but apparently rejected the first finding and announcement by the jury entirely and ordered a redeliberation of the case by the jury.
This case is one of first impression, on the exact point involved.
We could discuss at length, whether the oral verdict was true, whether the jury was discharged and therefore could not be reassembled, and other points regarding jury verdicts, but we consider it unnecessary to do so. It is obvious from what transpired in this case that the $4,500 sum entered on the written verdict was a clerical error. Rule 60(a), ARCP, provides:
"Clerical Mistakes. Clerical mistakes in judgments, orders, or other parts of the record and errors therein arising from oversight or omission may be corrected by the court at any time of its own initiative or on the motion of any party and after such notice, if any, as the court orders. During the pendency of an appeal or thereafter, such mistakes may be so corrected by the trial court. Whenever necessary a transcript of the record as corrected may be certified to the appellate court in response to a writ of certiorari or like writ."
The verdict can be either written or oral. St. Clair v. Caldwell Riddle, 72 Ala. 527 (1882). It can be general or special. Rule 49, ARCP.
It is abundantly clear that the general verdict of the jury in this case was in favor of the plaintiff and for the sum of $45,000. Consequently, the lower court did not err. cf. Alexiou v. Christu, 285 Ala. 346, 232 So.2d 595 (1970).
HEFLIN, C. J., and MERRILL, JONES and SHORES, JJ., concur.