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HENDRIX v. DOCUSORT9/24/1993
This case arises out of a personal injury case tried to a jury. The jury returned a general verdict made up of four questions. The jury returned a 10 to 2 verdict for the plaintiff on three of the four questions. However, the majority was not composed of the same jurors on each question. The plaintiff appeals, arguing the same 10 jurors must vote in the majority on each question. We affirm.
At the close of trial, the jury was instructed to render a verdict by giving its responses to four questions. The jury was instructed that at least 10 jurors had to agree to the answer to each question. The jury returned the verdict form as follows:
"We, the jury, present the following answers to the questions submitted by the court:
"1. Do you find any of the parties to be at fault? Answer yes or no Yes
"Proceed to question two only if you found any party to be at fault.
"2. Considering all of the fault at one hundred percent, what percentage of the total fault is attributable to:
Gwendolyn Hendrix (0% to 100%) 45% Docusort, Inc. [Derrick T. Williams] (0% to 100%) 55% 100%
"Proceed to the remaining questions only if you found the fault of the party seeking damages to be less than 50% of the total fault.
"3. Without considering the percentage of fault found in question two, what damages do you find were sustained by Gwendolyn Hendrix?
A. Noneconomic loss to date $ 0
B. Future noneconomic loss $ 0
C. Medical expenses to date $ 0
D. Future medical expenses $ 0
E. Economic loss to date $ 1730.36 — Truck damages
TOTAL DAMAGES $ 1730.36
"4. Our finding of monetary damages for noneconomic loss stated in paragraphs 3A and 3B includes $0 for pain and suffering.
"Number of jurors in agreement upon the answers given to the questions submitted:
Twelve jurors ______ Eleven jurors ______ Ten jurors X
Ralph P. Gregory Presiding Juror"
The plaintiff's attorney asked that the jury be polled. Nine jurors responded that it was their verdict. Three responded negatively. The court then asked the foreman if he needed to return to the jury room to clear up the confusion, as the form indicated 10 jurors had agreed to the verdict. Plaintiff's counsel moved for a mistrial. The motion was denied.
The jury retired and later sent a note to the judge, who then called the jury back to the courtroom. The note revealed that 10 jurors agreed on question two, apportionment of fault, and 10 agreed on question three, regarding the amount of damages to be awarded. However, the majorities were not composed of the same people. An unknown majority of 10 also agreed on question four. Question one, negligence, was not addressed in the note. The court accepted the verdict and entered judgment for plaintiff.
The plaintiff again moved for a mistrial, and again the motion was denied. The plaintiff filed a motion for a new trial which was also denied.
The defendant prepared a journal entry reflecting the facts set out above, and the court entered judgment for the plaintiff. The plaintiff now appeals.
The first issue is whether the trial court erred by accepting a verdict where it is alleged that less than 10 jurors found negligence.
This particular issue was not raised when the jury returned its verdict, nor was i
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