Appeal from the Circuit Court of Vermilion County; the Hon.
JOHN F. SPIVEY, Judge, presiding. Affirmed.
ROETH, PRESIDING JUSTICE.
This is a personal injury case which was tried before a jury. The only question involved in this appeal is the sufficiency of, and construction to be given the jury's verdict. A resume of the events which occurred in the trial of this case as shown by the record is necessary.
At the conclusion of the evidence, the court held a conference on instructions. Counsel for plaintiff tendered the following instruction, which was given, to-wit:
"The Court instructs the jury as to the form of your verdict as follows:
"If you find the issues for the plaintiff and against the defendant, the form of your verdict may be:
"We, the jury, find the issues for the plaintiff and against the defendant, and we assess the plaintiff's damages at ____ Dollars. (You will fill in the blank with such sum of money as you may, from the preponderance of the evidence determine.)
"If you find the issues for the defendant and against the plaintiff, the form of your verdict may be:
"We, the jury, find the defendant not guilty."
We have copied the instruction exactly as it appears from a photostatic copy furnished with the record. It appears to have been typed on legal cap with the typewritten matter occupying approximately the upper half of the sheet. Neither counsel tendered the usual instruction advising the jury to write their verdict on a separate sheet of paper using the instruction as a form only, etc. Neither counsel prepared, for the convenience of the jury, the two forms of verdict on separate sheets of paper, as is quite often done.
After the jury retired counsel for the respective parties stipulated that the jury could seal their verdict and separate and that polling was waived. They further stipulated that if the jury had not reached a verdict by 12:30 a.m. on December 8, 1956 (Saturday) the jury could be discharged by the bailiffs. Before the allotted time the jury delivered a sealed envelope to the bailiff which presumably contained their verdict. On Saturday morning, December 8, 1956, this envelope was delivered to the clerk and by him opened in the presence of both counsel, pursuant to their stipulation. It was then discovered that the jury had taken the court's instruction and signed it as follows:
"John F. Meharry, Foreman Joan Giacone Irene Banta Agnes Nigra Frances Jump Bertha Drumm Angeline Ghibaudy Geneva Nussear Ethel Newton Geo. H. Brown Nora Blakeney Charles Burroughs"
The names appear in the center of the page below the last sentence towit, "We, the jury, find the defendant not guilty." The foreman's signature extends, in part, up into the foregoing typewritten sentence.
On December 11, 1956, defendant filed a written motion for judgment on the verdict and on December 13, 1956, plaintiff filed a written motion (a) to declare a mistrial for want of sufficient verdict, or in the alternative (b) to reconvene the jury for the purpose of returning a proper verdict, or in the alternative (c) to recall the jury for polling as to what their verdict was intended to be. These two motions came on for hearing on January 9, 1957, at which time the trial judge, construed the verdict as a verdict finding defendant not guilty, denied plaintiff's motion and allowed defendant's motion and thereupon entered judgment on the verdict for defendant.
Plaintiff contends that the verdict is not clear, that it is unintelligible, uncertain, inconsistent, ambiguous, a nullity and void and that the court erred in construing it ...