HERMAN P. CULBRETH v. BORDEN MANUFACTURING COMPANY.
(Filed 25 February, 1925.)
Jury — Verdict—Polling Jurors — Constitutional Law.
The losing party in a civil action may demand a polling of the jury upon the return of the verdict, as a matter of right. Const., Art. I, sec. 19.
Appeal by plaintiff and defendant from Barnhill, J., and a jury, at October Term, 1924, of Wayne.
The issues submitted and answers thereto were as follows:
“1. Was the plaintiff injured through the negligence of the defendant as alleged? Answer: ‘Yes.’
“2. Did the plaintiff by his own negligence contribute to his own in j ury ? Answer: ‘No. ’
“3. In what amount, if any, is the defendant indebted to the plaintiff ? Answer: ‘$2,000.’ ”
The plaintiff’s only exceptions are to the setting aside of the verdict by the court as a matter of law, and to the refusal of the court to sign judgment tendered in accordance with the verdict of the jury, the facts in respect to which are set forth in his Honor’s judgment and findings of facts as follows:
“This cause coming on to be heard upon motion of the defendant to set aside the verdict of the jury, and for a new trial, for that the court refused to allow a polling of the jury upon the return of the verdict as appears of record, and in connection therewith the court finds the following facts:
*209“At tbe time tbe jury retired there was an agreement of counsel that tbe verdict of tbe jury might be taken by tbe clerk in tbe absence of tbe court. Tbe verdict, however, was returned by tbe jury in a body in open court in tbe presence of tbe presiding judge, and tbe verdict was taken by tbe clerk at tbe direction of tbe judge. Each issue and tbe answer thereto was read over to tbe jury and they were asked tbe usual question, ‘So say you all?’ to which tbe jury responded in tbe affirmative.
“Thereupon tbe defendant, through its counsel, moved for a polling ,of tbe jury; tbe court then being of opinion that tbe defendant was not entitled to tbe same as a matter of right and that tbe jury bad returned its verdict as required by law, denied tbe same, to which tbe defendant excepted. Tbe case of Smith v. Paul, 133 N. C., p. 66, being now directed to tbe attention of tbe court, it is now of tbe opinion that tbe defendant was entitled as a matter of right to have tbe jury polled, and that its refusal to permit tbe same is error, and it sets aside tbe verdict'as a matter of law.”
Plaintiff thereupon tendered judgment in accordance with tbe verdict, which bis Honor refused to sign for tbe reasons given in above findings of fact. Plaintiff excepted, assigned error and appealed to tbe Supreme Court.
Tbe court declined to assign as its reason for setting aside tbe verdict any error appearing in tbe record other than that designated, to wit, tbe court’s failure to poll tbe jury, to which defendant excepted, assigned error and appealed to tbe Supreme Court.
L>. H. Blancl and W. A. Pinch for plaintiff.
Langston, Allen & Taylor for defendant.
Pee Cubiam.
From tbe findings of facts, we think tbe judgment of tbe court below that “it is now of the opinion that the defendant was entitled as a matter of right to have tbe jury polled, and that its refusal to permit tbe same is error, and it sets aside tbe verdict as a matter of law,” was correct under tbe authorities in this jurisdiction.
Plaintiff complains that tbe matter was technical, but we cannot so bold. It was a matter of right. Const. of N. C., Art. I, sec. 19, is as follows: “In all controversies at law respecting property, tbe ancient mode of trial by jury is one of tbe best securities of tbe rights of tbe people, and ought to remain sacred and inviolable.”
We think the case of Smith v. Paul, 133 N. C., p. 66, relied on by tbe court below, determinative of this question.
We find in tbe judgment of tbe court below
No error.