Hall v. Cornett

Decision Date23 January 1952
Citation193 Or. 634,240 P.2d 231
PartiesHALL v. CORNETT et al.
CourtOregon Supreme Court

Windsor Calkins, of Eugene, argued the cause for appellants. On the brief were Calkins & Calkins, of Eugene.

Paul E. Geddes and George Luoma, of Roseburg, argued the cause and filed a brief for respondent.

Before BRAND, C. J., and HAY, ROSSMAN, LUSK, WARNER and TOOZE, JJ.

BRAND, Chief Justice.

Action for damages resulting from an automobile collision. The pleadings and evidence raised issues of negligence and contributory negligence. The jury brought in a verdict for the plaintiff. Thereafter, upon motion of the plaintiff, the court ordered 'THAT the judgment entered herein and the verdict upon which said judgment is based be and the same are hereby set aside; and that the plaintiff be and is hereby granted a new trial * * *.' Defendants appeal.

After the jury had retired for deliberation they brought into court the following instrument designated 'Verdict': 'We, the jury, duly empanelled and sworn to try the above entitled action, find our verdict in favor of the Plaintiff and against the defendants, and assess damages against defendants in the sum of One Dollar as General Damages, and the further sum of $1006.40 Special Damages.'

The instrument was signed by the foreman. The jury was polled and all voted 'yes.' The court, however, refused to receive the tendered verdict and sent the jury back to the jury room to await further instructions. After considering the form of the verdict, the court recalled the jury and instructed them as follows: '* * * A case of this sort is divided into two parts. The first question for consideration of the jury is a question of liability and that is a question of fact for your determination under the evidence submitted here and under the instructions as to the law given you by the Court. You first then make your finding then upon liability and I explained to you the rules of law with reference to negligence, contributory negligence and the rules of the road and all of those matters in the case. According to this verdict which you have brought in here, you have allowed the sum of $1.00 as general damages. Now, if the plaintiff is entitled to recover in this case, she is entitled to recover a substantial amount or, rather, she is entitled to recover such an amount as would reasonably compensate her for the damages which she has sustained. The evidence in this case shows, without contradiction, that this woman was, received a broken leg and was in the hospital for ten weeks. I think you will have to agree with me that $1.00 wouldn't compensate her for that. So, if you find in her favor, which, of course, is a question for your consideration entirely, you must find an amount which will reasonably compensate her for that damage. Before you can allow anything for special damages, there must be a verdict for general damages in more than a nominal amount. In other words, by your finding, you have--this verdict, you have substantially said that the defendants were guilty of negligence; the plaintiff was free from contributory negligence, but you have said that the damages sustained by this woman is only $1.00; that is an inconsistent verdict with an allowance of special damages, because, before she would be entitled to anything for special damages, you must find the general verdict in her favor for general damages. Now, I think that matter was before the Court in one case before in this Court at this term in which the jury stayed out all night; it is the same question. It was up at that time; some of you will remember and others of you weren't on the jury. I will ask you to retire and reconsider this verdict. You may retire in charge of the bailiffs.'

Upon receiving the foregoing instructions the jury again retired, and after further deliberation, they returned into the court the following verdict: 'We, the jury duly empanelled and sworn to try the above entitled action, find our verdict in favor of the plaintiff and against the defendants and assess damages against the defendants in the sum of $300.00 as general damages and the further sum of $707.40 special damages.'

For convenience, we shall refer to the 'first verdict' and the 'second verdict', although the first so- called verdict was never received by the court. Comparison of the two verdicts shows that the total sum allowed in each was the same to the cent.

The first verdict was for $1 general and $1,006.40 special damages, or a total of $1007.40. The second verdict was for $300 as general and $707.40 as special damages, or a total of $1007.40.

We are not concerned in this case with the broad question of liability. There are only two assignments of error, which read as follows:

1. 'The Court erred in refusing to receive the verdict of the jury for the plaintiff in the sum of $1.00 as general damages and the further sum of $1,006.40 special damages, and in directing the jury to retire and return a larger verdict for the plaintiff as general damages.'

2. 'The Court erred in setting aside the judgment for $300.00 as general damages, and the further sum of $707.40 as special damages and granting a new trial of the above entitled action.'

We will first consider whether the trial court erred in refusing to receive the first verdict. From two sections of the Code of Civil Procedure we quote the following portions:

'* * * If the verdict be informal or insufficient, it may be corrected by the jury under the advice of the court, or the jury may be again sent out.' O.C.L.A. § 5-319.

'When the verdict is given, and is such as the court may receive, and if no juror disagree, or the jury be not again sent out, the clerk shall file the verdict. The verdict is then complete, and the jury shall be discharged from the case. * * *' O.C.L.A. § 5-320.

In the light of these statutes, the question for determination is whether the verdict was sufficient or was 'such as the court may receive'. It is also provided by statute that: 'When a verdict is found for the plaintiff in an action for recovery of money * * * the jury shall also assess the amount of recovery.' O.C.L.A. § 5-405. When a jury, having found for a plaintiff, fails to assess the amount of recovery, the court should cause the jury to correct the verdict or should send the jury out again for further deliberations. Goyne v. Tracy, 94 Or. 216, 185 P. 584; McLean v. Sanders, 139 Or. 144, 7 P.2d 981.

Three Oregon cases have an important bearing upon this question, although none of them is on all fours with the case at bar. In McLean v. Sanders, supra, the action was for false imprisonment. The verdict was as follows: 'We, the jury * * * find our verdict for the plaintiff and against the defendants, and assess plaintiff's general damages in the sum of no dollars, and further assess punitive damages against defendants in the sum of no dollars.'

The trial court treated the verdict as one for the defendants and awarded judgment in favor of the defendants for their costs and disbursements. The plaintiff moved for an order setting aside the verdict and judgment and granting a new trial. The trial court denied the motion and the plaintiff appealed. This court held that it was impossible to ascertain from the verdict whether the jury intended to find for the plaintiff or for the defendants. The judgment was reversed and the cause remanded for a new trial.

In Klein v. Miller, 159 Or. 27, 77 P.2d 1103, 116 A.L.R. 820, the plaintiff sued for damages caused by alleged negligence in the operation of a motor vehicle. The jury's verdict was: 'We the jury * * * find for the plaintiff and assess his damages at the sum of $ no damages.' The trial court entered judgment for the defendant but later set aside the verdict and judgment and granted a new trial. The defendant appealed. This court held that the case was governed by the rule announced in McLean v. Sanders, supra. The court said that the verdict was neither for the plaintiff nor for the defendant and was therefore no verdict at all. The order granting a new trial was affirmed. In both of these cases there was a dissent by Mr. Justice Rossman in which it was strongly urged that the verdicts should be construed as being for the respective defendants. It is important to note, however, that all of the judges were agreed that a verdict for the plaintiff for '$ no' without more cannot be permitted to stand as a verdict for the plaintiff. The majority in each case held that a new trial was required, the minority, that such a verdict warranted judgment for the defendant.

In Snyder v. Portland Railway, Light & Power Co., 107 Or. 673, 215 P. 887, 889, the plaintiff brought an action for negligence, alleging that the defendant damaged plaintiff's truck in the sum of $832.52. Damage in that amount was established by undisputed evidence. Both negligence and contributory negligence were in issue. The jury returned a verdict for the plaintiff in the sum of $1. In this case it was the plaintiff who moved for a new trial. The motion was denied and the plaintiff appealed. This court said: '* * * In this case defendant's liability was denied, and the evidence offered at the trial was sufficient to warrant the jury in returning a verdict in defendant's favor. Before the jury could rightfully find a verdict for the plaintiff, it was necessary for it to find that the defendant was liable, and, unless it found the defendant liable, it had no right to return a verdict against the defendant. It does not follow that, because the plaintiff obtained a verdict for $1 while suffering damages in a sum greater than $1, the verdict was equivalent to a finding by the jury that the defendant was liable. The effect of the verdict is that the defendant was not liable for any sum except $1.'

This court held that the fact that the jury returned a verdict for only one dollar, knowing that plaintiff's damage was far...

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