Cundiff v. Washburn, 16445.

• Decision Date: 29 March 1968
• Docket Number: No. 16445.,16445.
• Citation: Cundiff v. Washburn, 393 F.2d 505 (7th Cir. 1968)
• Parties: Thomas D. CUNDIFF, Plaintiff-Appellant, v. Virginia Lee WASHBURN, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

393 F.2d 505 (1968)

Thomas D. CUNDIFF, Plaintiff-Appellant, v.Virginia Lee WASHBURN, Defendant-Appellee.

No. 16445.

United States Court of Appeals Seventh Circuit.

March 29, 1968.

Don G. Brooks, Terre Haute, Ind., for plaintiff-appellant, Berry, Kincade & Miller, Terre Haute, Ind., of counsel.

Thomas C. Stifler, III, Stifler & Snyder, Danville, Ill., for defendant-appellee.

Before HASTINGS, Chief Judge, and CASTLE and KILEY, Circuit Judges.

HASTINGS, Chief Judge.

Plaintiff-appellantThomas D. Cundiff appeals from judgment entered against him in a personal injury diversity action on May 4, 1967 and from an order denying his motion for new trial entered June 13, 1967.The case was tried to a jury.

The occurrence that gave rise to this litigation was an intersection collision between cars driven by appellant and appelleeVirginia Lee Washburn in North Terre Haute, Indiana on November 10, 1963.The action was brought in federal district court in Illinois, the state of appellee's residence.

The sole trial error asserted in the motion for new trial and on appeal is the alleged inconsistency between the general verdict and the jury's answer to a special interrogatory.The jury returned a verdict against appellant on his claim and against appellee on her counterclaim.It answered "no" to the special interrogatory: "Was the Plaintiff, Thomas D. Cundiff, guilty of negligence which proximately contributed to cause the occurrence in question?"

Appellant contends that the general verdict against him is inconsistent with the special finding that he was not guilty of negligence proximately contributing to the collision and resultant injuries.He maintains that under Indiana law the collision could not have been a pure accident, that one of the parties must have been negligent, and that since the jury specially found that he was not, appellee must have been the negligent party.

Appellee contends that appellant waived the right to raise the alleged inconsistency on his motion for new trial or on appeal.

After return of the verdict, the trial court addressed counsel, stating: "Gentlemen, there seems to be a discrepancy between the answer to the interrogatory and the verdict.Do either of you desire that I explain this matter to the jury and ask them to return to the jury room for further deliberation?"Appellant's two attorneys, after conferring, answered in the negative.

Special interrogatories are governed by Rule 49 F.R.C.P.,28 U.S.C.A., which provides in part:

"(b) * * * When the answers to special interrogatories are consistent with each other but one or more is inconsistent with the general verdict, judgment may be entered pursuant to Rule 58 in accordance with the answers, notwithstanding the general verdict, or the court may return the jury for further consideration of its answers and verdict or may order a new trial."

Rule 49(b) gives the trial court discretion to remedy such inconsistencies by reconciling the general verdict with the special findings, resubmitting the verdict and the findings to the jury or ordering a new trial.The question that appellee raises is whether the party who is disenchanted with the general verdict but does not move for resubmission thereby waives the right to have the inconsistency, if any, remedied by a new trial.

We have found no federal cases precisely on point, and none has been cited to us.However, several recent cases are closely analogous.In Kirkendoll v. Neustrom, 10 Cir., 379 F.2d 694(1967), the Tenth Circuit...