Bergman v. Scottish Union & National Ins. Co.

• Decision Date: 17 April 1934
• Citation: Bergman v. Scottish Union & Nat'l Ins. Co., 264 N.Y. 205, 190 N.E. 409 (N.Y. 1934)
• Court: New York Court of Appeals Court of Appeals
• Parties: Bergman v. Scottish Union & National Ins. Co.

264 N.Y. 205

190 N.E. 409

BERGMAN et al.

v.SCOTTISH UNION & NATIONAL INS. CO.

Court of Appeals of New York.

April 17, 1934.

Action by David Bergman and Samuel Feldman, co-partners, doing business under the name of the Wallkill Valley Pants Company, against the Scottish Union & National Insurance Company. Judgment of the Trial Term dismissing the complaint was affirmed by the Appellate Division (240 App. Div. 714, 265 N. Y. S. 1006), and plaintiffs appeal.

Reversed, and new trial granted.

Appeal from Supreme Court, Appellate Division, Second Department.

Henry Hirschberg, of Newburgh, for appellants.

David A. Ticktin, Abraham Kaplan, and Milton Adler, all of New York City, for respondent.

CRANE, Judge.

As there is some misunderstanding apparently regarding the meaning of section 459 of the Civil Practice Act, and some confusion in its application, we set forth the section in full in order to analyze its provisions:

‘§ 459. General and Special Verdict and Special Findings. In an action to recover a sum of money only, or real property, or a chattel, the jury may render a general or special verdict, in its discretion. In any other action, except where one or more specific questions of fact stated under the direction of the court are tried by a jury, the court may direct the jury to find a special verdict upon all or any of the issues. Where the jury finds a general verdict, the court may instruct it to find also specially upon one or more questions of fact stated in writing. The special verdict or special finding must be in writing; it must be filed with the clerk and entered in the minutes. When a motion is made to nonsuit the plaintiffs or for the direction of a verdict, the court, pending the decision of such motion, may submit any question of fact raised by the pleadings to the jury or require the jury to assess the damage. After the jury shall have rendered a special verdict upon such submission or shall have assessed the damage, the court may then pass upon the motion to nonsuit or direct such general verdict as either party may be entitled to. Where a special finding is inconsistent with a general verdict, the former controls the latter, and the court must render judgment accordingly.’

The fundamental rule expressive of the common law is that, in an action to recover a sum of money only, the jury may render a general or special verdict in its discretion. Cooley's Blackstone (3rd Ed.) Book 3, Þ78; Walker v. New Mexico & So. Pac. R. Co., 165 U. S. 593, 17 S. Ct. 421, 41 L. Ed. 837. This form of procedure is preserved throughout the entire section and is not modified by what comes after. In any action other than one to recover a sum of money or real property or a chattel the court may direct a jury to find a special verdict upon all or any of the issues. However, where the jury is to find a general verdict, the court may instruct it to find also specially upon one or more questions of fact stated in writing. Up to this point the practice is for the jury to find a general verdict in every action to recover a sum of money only. The judge may ask the jury to find a special verdict upon one or more questions of fact along with the general verdict, but a general verdict there must be. In other cases than those above specified, the court may take a special verdict without requiring a general verdict. These are the fundamental principles and practice universally followed in accordance with the past history of litigation and the provisions of our Practice Act.

We now come to that portion of section 459 of the Civil Practice Act which touches upon motions for nonsuit, or the direction of a verdict, and in considering them we must keep in mind the nature of such a motion. The plaintiff, in an action for a sum of money, can only be nonsuited when he has failed to make out a case; when there is no issue of fact to go to the jury. The same applies to a motion for the direction of a verdict, whether at the end of the plaintiff's case or at the end of the whole case; if there be disputed questions of fact, there can be no direction of a verdict. When, therefore, this section states that, pending the decision of such a motion, the court may submit any question of fact raised by the pleadings to the jury, or require the jury to assess the damage, it does not mean to eliminate the former provisions regarding a general verdict. In other words, in an action for a sum of money where there are disputed questions of fact, the court, on reserving the decision on a motion for a nonsuit, cannot call for a special verdict of a single question of fact and thereafter direct a general verdict on the facts. This practice would do away with the general verdict by the jury altogether should the court so desire; at least, it would render the matter discretionary with the court, whereas the law says it is discretionary with the jury.

What, then, is the meaning of the rest of this section which says that, after the jury shall have rendered a special verdict upon such submission, or shall have assessed the damage, the court may then pass upon the motion to nonsuit or direct such general verdict as either party may be entitled to? We take it to mean this: The judge has got to decide the motion for a nonsuit or for a direction of the verdict in behalf of one side or the other. Either plaintiff or defendant may make a motion for a direction of a verdict, which can be granted, as I have above stated, where there are no questions of fact to be decided. The court, therefore, in granting the motion, disposes of the case without the aid of the jury. In one instance he dismisses the complaint on the motion for a nonsuit, or, on the other hand, he directs a verdict-a general verdict-either for the plaintiff or the defendant. He must, however, decide the motion.

Should he deny the motion, can he then direct a general verdict on the special finding of fact which he has submitted to the jury, without submitting the whole case, all questions of fact, to the jury? He cannot. The plaintiff or the defendant in an action for a sum of money is entitled under this section 459 of the Civil Practice Act to have all the questions of fact determined by a jury in a general verdict or a special verdict, according to the discretion of the jury. Where, therefore, the court has denied the motion for a nonsuit or for the direction of a verdict, he must submit to the jury the issues of fact to be decided by a general verdict upon the entire case, even though, pending the decision of the motion, he has called for special findings. In no other way can we preserve to litigants the right to a full jury trial of the issues of fact in actions for a sum of money only. Suppose, instead of reserving the motion for a nonsuit or for the direction of a verdict, the judge decides the motion on the spot. Could he then submit only one or two special questions and direct a general verdict on the jury's findings? This would be contrary to the practice in jury trials as they have existed at common law and as prescribed by the section we are considering. Hoey v. Metropolitan Street Ry. Co., 70 App. Div. 60, 74 N. Y. S. 1113;Sherman v. Leicht, 238 App. Div. 271, 264 N. Y. S. 492;Jones v. Brooklyn Life Ins. Co., 61 N. Y. 79;Greenpoint Nat. Bank v. Gilbert, 237 N. Y. 19, 142 N. E. 338;Ketcham Nat. Bank v. Hagen, 164 N. Y. 446, at page 448,58 N. E. 523. The most frequent use of the special verdict on the reservation of the motion for a directed verdict is where the court directs a verdict and lets the jury fix the amount. Carmody's New York Practice, § 418. The Legislature has before it a bill to amend section 459 of the Civil Practice Act to allow a general or special verdict in any case (Senate Bill, No. 973).

No constitutional question is involved, merely the interpretation of section 459 of the Civil Practice Act. Provided the issues of fact are decided by a jury, the order in which they are submitted is not material. The error here is that the general issue has never been submitted. Smith v. Western Pacific R. Co., 203 N. Y. 499, 96 N. E. 1106,40 L. R. A. (N. S.) 137, Ann. Cas. 1913B, 264.

There is reason for this practice. We are not following the rule blindly. The answer to a single issue of fact left to the good judgment of twelve men may be influenced, and properly so, by the consideration and determination of all the other facts in the case. It is for this reason we preserve jury trials.

Turning now to the case in hand, we have an action on a fire insurance policy to recover for a loss occurring in the plaintiffs' factory at Walden, Orange county, N. Y. The plaintiffs are partners, doing business under the name and style of Wallkill Valley Pants Company. The judge, at the end of the case, said that he would reserve his decision on the motion for a direction of a verdict and submit to the jury six questions. The questions were the following:

‘Question 1. Did the plaintiffs make and deliver to the defendant sworn false and fraudulent statements that on April 12, 1928, the actual cash value of the property insured was $14,982.09 and that plaintiffs' property in said amount had been destroyed?

‘Question 2. Did the plaintiffs make and deliver to the defendant sworn false and fraudulent statements that the plaintiffs had no knowledge of the origin of the fire?

‘Question 3. Did the plaintiffs upon their examination...