Opinion
No. 80SA144
Decided July 14, 1980. Rehearing denied August 5, 1980.
Original proceeding by petitioner seeking relief in the nature of mandamus with respect to the declaration of a mistrial. Rule to show cause issued.
Rule Made Absolute
1. TRIAL — First Verdict — Proper — Second Verdict — Ordering Mistrial — Abuse of Discretion. Where record indicates that court followed proper procedure for declaring and recording a jury verdict, and, in addition, the judge polled each juror individually and discharged them, and where the judge's clerk later found a second verdict signed by the foreman which verdict had not been mentioned by the foreman when the jury returned and which trial court did not notice, held, since first verdict for petitioner in open court was the verdict of the jury, the trial court's order for a mistrial was an abuse of discretion even though it found that the two verdicts were inconsistent.
2. Verdict — Given Effect. A verdict shall be given effect if possible.
3. Thought Processes — Intent — Clear — Verdict — Given Effect. Court may not look beyond the face of the record to examine the thought processes of the jurors; if the intent is clear from the record, the verdict may be given effect.
4. Verdict — Open Court — Assent of Jurors. Where trial court read the verdict for petitioner in open court, and all the jurors assented to it; each juror was questioned, reinforcing the evidence of the jury's intentions, held, under these circumstances, the verdict for the petitioner in open court was the verdict of the jury.
5. Verdict — Irregularity — Disregarded. Any irregularity of form in a verdict should be disregarded if it fairly appears that the jury intended a given verdict.
Original Proceeding
Donald E. Tyler, Pro se.
Zarlengo, Mott and Zarlengo, John C. Mott; Paul D. Renner, John R. Rodman; Frank Plaut, P.C., for respondents.
Petitioner Donald E. Tyler filed this original proceeding under C.A.R. 21 for relief in the nature of mandamus. He challenges as an abuse of discretion the trial court's ordering a mistrial when it discovered a second inconsistent signed jury verdict after the jury was discharged. We issued a rule to show cause and now make the rule absolute.
Petitioner, a former member of the medical staff of Brighton Community Hospital, filed suit against Galen Marks and Robert Larsen, physicians on the executive committee of the hospital; John Vowell, the hospital administrator; and the Brighton Community Hospital Association, seeking damages for libel, slander, breach of contract, and interference with the practice of medicine.
The trial began February 19, 1980 and concluded on March 6. The trial court gave the jury two forms for general verdicts and a set of interrogatories. When the jury returned to render the verdict, the judge received the jury's papers. The judge read into the record a verdict for the petitioner-plaintiff (the first verdict) which assessed actual damages of $682,000 and exemplary damages of $48,000 The judge also read for the record the answers to the interrogatories, all but one of which were answered in the affirmative. The judge then asked the jurors if this was their unanimous verdict, and they assented. Defense counsel requested a poll of the jury, and each juror responded the he or she agreed with the verdict as read by the trial court. The court accepted the verdict, ordered judgment entered in accordance with it, and discharged the jury.
Damages were allocated among the defendants by the jury. Actual damages: $170,500 against defendant Marks; $170,500 against defendant Larsen; $136,400 against defendant Vowell; $204,600 against the Hospital Association. Exemplary damages: $12,000 against Marks; $12,000 against Larsen; $12,000 against Vowell; $12,000 against the Hospital Association.
The only negative response was to a question regarding a specific act of defamation by defendant Vowell. The answer was consistent with the verdict for the petitioner.
[1] A few hours later, the court advised the plaintiff and defense counsel of an irregularity in the verdict and set a hearing for late afternoon. The hearing concerned a verdict for the defendant (the second verdict) signed by the foreman which the judge's clerk found among the jury papers. The verdict had not been mentioned by the foreman when the jury returned, and the trial court did not notice it. The trial court found that the two verdicts were inconsistent and granted the defendant's motion for a mistrial. Because we find that the first verdict was the decision of the jury, we vacate as an abuse of discretion the trial court's order for a mistrial.
Although the record is unclear, the second signed verdict apparently was among the papers handed to the court by the foreman.
C.R.C.P. 47 governs rendition of jury verdicts:
"(q) Declaration of Verdict. When the jury has agreed upon its verdict it shall be conducted into court by the officer in charge. The names of the jurors shall be called, and the jurors shall be asked by the court or clerk if they have agreed upon a verdict, and if the answer is in the affirmative, they shall hand the same to the clerk. The clerk shall enter in his records the names of the jurors. Upon a request of any party the jury may be polled.
. . . .
(s) Verdict Recorded, Disagreement. The verdict, if agreed upon by all jurors, shall be received and recorded and the jury discharged. If all the jurors do not concur in the verdict, the jury may be again sent out, or may be discharged."
The record here indicates that the court followed the proper procedure for declaring and recording a jury verdict. In addition, the judge questioned each juror individually.
[2,3] A verdict shall be given effect if possible. However, a court may not look beyond the face of the record to examine the thought processes of the jurors. If the intent is clear from the record, as in this case, the verdict shall be given effect. Martinez v. Huerta, 155 Colo. 555, 396 P.2d 237 (1964); Boynton v. Fox Theaters, 121 Colo. 227, 214 P.2d 793 (1950); Kinsell v. Stice, 109 Colo. 173, 123 P.2d 397 (1942); Drake v. Justice Gold Mining Company, 32 Colo. 259, 75 P. 912 (1904).
In Harper v. Blasi, 112 Colo. 518, 151 P.2d 760 (1944), unlike the case before us, there was no record of the declaration and return of the jury verdict. No one knew of an inconsistent verdict until the preparation of the record for appeal. There, the confusion of verdict forms and instructions with no record to support one of the verdicts made it impossible to determine the jury's true decision. Cf. Calnon v. Sorel, 108 Colo. 467, 119 P.2d 615 (1941).
[4] Here the record is clear. The trial court read the verdict for the petitioner in open court, and all the jurors assented to it. Each juror was questioned, reinforcing the evidence of the jury's intentions. The verdict for the petitioner in open court is the verdict of the jury. Randles v. Lowry, 4 Cal. App.3d 68, 84 Cal. Rptr. 321 (1970).
Petitioner submitted affidavits from five of the six jurors that the verdict for the petitioner was their intended verdict. Because the record adequately supports the first verdict, we do not consider the propriety of the affidavits.
[5] It follows that the second signed verdict form found by the clerk is not the verdict of the jury. Any irregularity of form in a verdict should be disregarded if it fairly appears that the jury intended a given verdict. Bartlett v. Hammond, 76 Colo. 171, 230 P. 109 (1924); Boynton, supra; Davis v. Shepard, 31 Colo. 141, 72 P. 57 (1903).
Thus, there is no inconsistency because there is only one verdict. The verdict of the jury awarded the petitioner damages of $750,000 allocated as shown on the verdict form. The trial court is directed to vacate its order granting a mistrial and to enter a judgment in accordance with the verdict of the jury.
Rule made absolute.