Hall v. McClure

• Decision Date: 10 February 1923
• Docket Number: 24,233
• Citation: 212 P. 875,112 Kan. 752
• Court: Kansas Supreme Court
• Parties: NELLIE HALL, by CATHERINE HALL, her Next Friend, Appellee, v. C. W. MCCLURE, ISADORE WALDNER, as an individual, and ISADORE WALDNER, doing business under the firm name and style of THE SUPERIOR CLEANING & DYEING COMPANY, and THE CITY OF KANSAS CITY, Appellants

212 P. 875

112 Kan. 752

NELLIE HALL, by CATHERINE HALL, her Next Friend, Appellee, v. C. W. MCCLURE, ISADORE WALDNER, as an individual, and ISADORE WALDNER, doing business under the firm name and style of THE SUPERIOR CLEANING & DYEING COMPANY, and THE CITY OF KANSAS CITY, Appellants

No. 24,233

Supreme Court of Kansas

February 10, 1923

Decided January, 1923.

Appeal from Wyandotte district court, division No. 2; FRANK D HUTCHINGS, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. ACTION FOR DAMAGES--Two Defendants--Jury May Not Apportion Damages Between Defendants. In an action for damages against two or more joint tort-feasors, the jury has no authority to apportion the damages between defendants.

2. SAME--Apportionment of Damages Between Two Defendants--Surplusage. In such a case, where the jury returned the verdict:

"We, the jury, find for the plaintiff against the defendants and assess the amount of plaintiff's recovery from said defendants at $ 4,000. Isadore Waldner, . . . $ 3,500, and the city of Kansas City, Kansas, $ 500."

Held, the court properly regarded the attempted apportionment of damages as surplusage and entered judgment against both defendants for $ 4,000.

H. J. Smith, William Drennan, and Willard M. Benton, all of Kansas City, for the appellants.

David F. Carson, of Kansas City, for the appellee.

Harvey, J. Harvey, J., Johnston, C. J., Hopkins, J., dissenting.

OPINION

HARVEY, J.:

This is an action for damages for personal injuries against three defendants charged with negligence. A demurrer to the evidence was sustained as to one of the defendants, and as to the other two defendants the jury returned the following verdict:

"We, the jury, find for the plaintiff against the defendants and assess the amount of plaintiff's recovery from said defendants at $ 4,000. Isadore Waldner, doing business under the firm name and style of Superior Cleaning & Dyeing Co., $ 3,500, and the city of Kansas City, Kansas, $ 500."

The trial court treated that part of the verdict after the figures "$ 4,000" as surplusage and rendered judgment in favor of the plaintiff and against both defendants for $ 4,000. Both defendants prosecuted appeal. Isadore Waldner filed no abstract or brief and his appeal has been dismissed and the case is now for consideration upon the appeal by the city of Kansas City. The appellant filed a motion for a new trial and also a motion for judgment notwithstanding the verdict, both of which motions were overruled. Appellant now contends that the court erred in overruling its motion for a new trial and in overruling its motion for judgment and in entering judgment against it in the sum of $ 4,000 based upon this verdict.

It is well settled that in actions for damages against two or more joint tort-feasors the jury has no authority to apportion the damages among the defendants, in the absence of a statute specifically authorizing such apportionment, and this for the reason that if defendants are found guilty of negligence which produced the injury, the matter of the degree of negligence as between the defendants is so uncertain as not to form a proper basis for division of damages. In Sutherland on Damages, 4th ed. § 463, it is said:

"In a joint action against several for trespass or other tort if all are found guilty entire or joint damages must be assessed against them."

In 17 C. J. 1084, it is said:

"Where the rule is not modified by statute, an assessment of damages in an action against joint tort-feasors must be for a lump sum against those found guilty and cannot be severally apportioned between them."

Many other authorities might be cited, but the rule is of such long standing, and has been so universally and repeatedly applied, that we regard additional citation of authorities unnecessary, and especially in view of the fact that it is not specifically controverted in this case.

Though the jury has no power or authority to apportion damages among defendants in an action of this character, they sometimes attempt to do so and the question then arises as to what should be done with their verdict. The rule is thus laid down in 27 R. C. L. 893:

"There is some conflict as to whether a verdict against joint tort-feasors which assesses the damages severally can be cured or corrected. While there is some authority to the effect that such apportionment of damages is an essential part of the verdict which cannot be disregarded as surplusage and, therefore, no judgment can be entered thereon, it is generally held that the irregularity is not fatal and may be cured by amendment or correction. The question as to the manner in which the irregularity of a verdict severing the damages found against joint tort-feasors may be cured arises in two different ways, according to the form in which the verdict is rendered. Thus, where the verdict is that the plaintiff recover of the defendants a certain sum, followed by an apportionment of such damages among the several tort-feasors, this fixes the plaintiff's right to recover the full amount against the guilty parties, and the trial court may receive the verdict and amend it by striking out as surplusage all after the finding of the joint liability, or it may return the verdict to the jury for correction. Where a several judgment is rendered against each defendant on such a verdict it is not necessary to enter a reversal because of the erroneous form in which it was entered, since it can be corrected by a direction of either the appellate or the trial court making the judgment conform to the established rule in such cases."

In 38 Cyc. 1890, the rule is stated thus:

"Verdicts are to have reasonable intendment, and surplusage or immaterial findings may be rejected in construing them. Thus, if the verdict finds the issue and something more, the latter part of the finding will be rejected as surplusage, and judgment rendered independently of the unnecessary matter, there being nothing to show that the jury reasoned falsely."

In Olson v. Nebraska Telephone Co., 87 Neb. 593, 127 N.W. 916, an action to recover damages for personal injuries caused, as alleged, by the negligence of two corporations, there was a verdict for plaintiff for $ 10,000, "to be assessed equally against each of said corporations"; held, to be a joint verdict against both defendants for $ 10,000, and the judgment rendered against both for the full amount was affirmed.

In Pearson v. Arlington Dock Co., 111 Wash. 14, 189 P. 559, the verdict was as follows:

"We, the jury in the above-entitled cause, do find for the plaintiff and against both defendants in the sum of $ 3,750 each, Arlington Dock Company, North Coast Stevedoring Company. ($ 7,500.)" (p. 20.)

The court said:

"While the verdict is somewhat awkward, it is perfectly plain that the jury meant to find a verdict of $ 7,500 for the plaintiff against both defendants, each defendant to pay one-half of that amount. The jury did not have any right to segregate this amount and make each defendant liable for a portion thereof, consequently that portion of the verdict where the jury undertakes to do so must be considered surplusage." (p. 20.)

In San Marcos Elec. Light & Power Co. v. Compton, 48 Tex. Civ. App. 586, 107 S.W. 1151, in an action by a widow to recover damages on account of the death of her husband against two defendants, the jury returned a verdict as follows:

"We, the jury, find the defendants, The San Marcos Electric Light & Power Company, and the San Marcos Telephone Company, both guilty of gross negligence that caused the death of L. B. Compton and therefore assess the damages at $ 5,000, or in other words, $ 2,500 [from] each of the Companies, apportioned as follows: the plaintiff, Idalena Compton, to receive from the San Marcos Electric Light & Power Company, $ 1,500, and also $ 1,500 from the San Marcos Telephone Company; the plaintiff, A. S. Compton, to receive from the San Marcos Electric Light & Power Company the sum of $ 750 and also $ 750 from the San Marcos Telephone Company; the plaintiff, Mrs. M. A. Compton, to receive from the San Marcos Electric Light & Power Company the sum of $ 250 and also $ 250 from the San Marcos Telephone Company."

The court held that so much of the verdict as apportioned the damages should be treated as surplusage and judgment rendered against both defendants for the full amount fixed by the verdict.

In Robyn v. White, 153 Minn. 76, 189 N.W. 577, the jury returned a verdict for plaintiff in proper form, but appended to it the following: "We, the jurors, recommend that the sum of $ 2,300 claimed to be recovered by this suit be donated to the American Red Cross," and this was signed by each of the jurors. This was held not to vitiate the verdict. The court said:

"We think the better rule is that when there is a verdict clear and sufficient in all respects, such foreign and irrelevant matter may be rejected as harmless surplusage. It is much the same in principle as a recommendation of clemency." (p. 578.)

In Lake Erie & W. R. Co. v. Halleck, 78 Ind.App. 495, 136 N.E. 39, being a suit for damages for personal injuries against the railroad company and another, the jury returned the following verdict: "We, the jury, find for the plaintiff against both of the defendants, and assess her damages at $ 800; Lake Erie & Western Railroad Co., $ 700; John Jordan, $ 100." (p. 40.) The court said:

"It is also well established that: 'A verdict finding the whole issue, or the substance of it, is not vitiated by finding more; for the finding of what is not in issue is but surplusage.' Gould, Pleading (9th ed.), 486. It will be observed that the jury by its verdict found for plaintiff against both defendants, and assessed the damages at $ 800. ...