#### ROBERT TRANTHAM v. THE ELK FURNITURE COMPANY.

(Filed 30 November, 1927.)

Verdict — Polling ,Jnry — Conflict—Entry—Appeal and Error.

Where tbe jury has unanimously answered and returned their verdict to an issue in a civil action, and upon being polled three of them answer differently and explain by saying the answer first given was the one they had at first entertained before agreeing with the others, and again being polled the verdict is unanimously in accord with the answer of the issue handed in: Held, there is nothing to indicate that the verdict so entered was reached by outside influence or that its sacredness had been violated, and its entry as the verdict in the case is not erroneous.

Civil actios, before Harding, J., at July Term, 1927, of DavidsoN.

Plaintiff instituted an action against tbe defendant for damages for personal injury sustained by reason of what plaintiff alleged was a defective machine.

Tbe defendant, among other defenses, pleaded tbat a full settlement bad been made with tbe plaintiff and a release taken in discharge of its liability. Thereupon tbe plaintiff alleged tbat tbe release was secured by means of fraud.

Issues arising upon tbe pleadings were submitted to tbe jury. Tbe first issue is as follows: “Was tbe release set out in tbe answer,of tbe defendant procured by fraud as alleged in tbe reply of tbe plaintiff?” Tbe jury answered tbis issue, “No,” and did not answer any other issue. From tbe judgment rendered plaintiff appealed.

Walser & Walser and Phillips & Bower for plaintiff.

McCrary & DeLapp for defendant.

*616BbogdeN, J.

Tbe only point presented in tbe case is based upon tbe following facts: “Tbe jury then came into tbe court, and tbrougb its foreman, banded tbe presiding judge tbe issues. Tbe first issue, answered 'No.’ Tbe other issues are not answered. "Whereupon, stated tbe court, 'You answer tbe first issue “No,” all of you say that?’ And tbe jury said, 'Yes.’ Counsel for tbe plaintiff then moved tbe court to have tbe jury polled; whereupon tbe presiding judge requested tbe jury to stand, and said to tbe jury: 'As many of you as now favor to answer tbe issue “Yes” will say “Yes,” and those who favor answering it “No” will say “No.” ’ In tbe calling of tbe roll nine jurors answered 'No’ and three answered 'Yes.’ Tbe court stated to tbe jury that it did not understand why they should bring in a verdict with tbe issue answered 'No’ when three were answering when their names were called they desired to answer it 'Yes.’ Thereupon of those answering 'Yes’ when called, two explained that they meant bow they stood in tbe vote before they bad reached a final answer to tbe issue as signed, and not as to bow they stood at tbe particular moment, that is tbe moment of tbe calling of tbe roll of tbe jury. "Whereupon tbe presiding judge instructed tbe clerk to again call tbe roll of tbe jury and instructed tbe jury that those in favor of answering tbe issue at this time, at tbe time of tbe calling of tbe roll, would answer when their names were called5 those who desired to answer ‘No’ to tbe issue would say ‘No,’ and those desiring to say 'Yes’ would say ‘Yes.’ Whereupon tbe clerk called tbe roll and twelve jurors answered to their names and said ‘No.’ Whereupon tbe court ordered tbe clerk to record tbe verdict of tbe jury as polled.”

Tbe verdict of a jury is sacred. It should represent tbe concurring judgment, reason and intelligence of tbe entire jury, free from outside influence from any source whatever. Tbe trial judges have no right to coerce verdicts or in any manner, either directly or indirectly, intimidate a jury. But there is nothing in this record which, in our judgment, casts tbe slightest cloud or suspicion upon this verdict. Tbe jury returned a signed verdict into court. A poll was taken, and upon roll call it developed that three of tbe jurors bad originally been in favor of answering tbe issue “Yes,” but after a full discussion in tbe jury-room these same jurors bad agreed to answer it “No,” and such unanimous finding was duly reported to tbe court. Tbe poll was taken in open court and entirely free from tbe slightest intimation by tbe trial judge.”

Tbe case of S. v. Godwin, 27 N. C., 401, is directly in point. In that case tbe jury brought in a verdict of guilty of murder and were polled at tbe request of tbe prisoner. “Eleven of them, each for himself, answered simply that be found tbe prisoner guilty. Tbe remaining juror answered that when tbe jury first went out be was not for finding tbe *617prisoner guilty, but tbat a majority o£ tbe jury was against bim, and tbat be tben agreed to tbe verdict as delivered by tbe foreman. He was further asked, ‘Wbat is your verdict now?’ and be replied, ‘I find tbe prisoner guilty.’ ” Tbe opinion of tbe court states: “There is nothing to raise a suspicion tbat tbe verdict was not tbe result of tbe conscientious and unanimous conviction of tbe jurors. One of them hesitated at first, as any man may upon so solemn a question; but, upon consultation with bis fellows, and deliberation, be united publicly and of bis own accord in tbe verdict.” In like manner in tbe case at bar tbe three jurors, after tbe original verdict bad been rendered, still united publicly and of their own accord in tbe verdict. Lowe v. Dorsett, 125 N. C., 301.

No error.