Kennard v. Welded Tank & Const. Co.
| Decision Date | 29 October 1969 |
| Docket Number | No. 1,1 |
| Citation | 253 N.E.2d 197,25 N.Y.2d 324,305 N.Y.S.2d 477 |
| Parties | , 253 N.E.2d 197 Caroline B. KENNARD, as Administratrix of the Estate of Leonard E. Coker, Deceased, v. WELDED TANK & CONSTRUCTION CO., Inc., Defendant and Third-Party Plaintiff-Appellant. COLORADO FUEL & IRON CO., Inc., Third-Party Defendant-Respondent. (And Three Other Actions.) Action |
| Court | New York Court of Appeals Court of Appeals |
Saul I. Weinstein, New York City, for plaintiff-appellant in Action no. 1.
Lewis F. X. Cotignola, New York City, Harry W. Robinson, Westbury, and Abraham Brinn, Mineola, for plaintiff-appellant in Action No. 3.
Arthur W. Block, Manhasset, for defendant-appellant in Actions Nos. 1, 2 and 4.
Reginald S. Marshall, Brooklyn, for defendant-respondent.
These four actions arising from an accident February 24, 1954, now almost 16 years ago, were tried together in October and November, 1960. General verdicts were returned in favor of two plaintiffs, Edward T. Karran, since deceased, and C. W. Lauman & Co., who in direct actions sued Colorado Fuel & Iron Co. for negligence.
The other claims against Colorado were third-party actions by Welded Tank & Construction Co., Inc. Special verdicts were returned at the same time as the general verdicts on interrogatories propounded by the court to aid in its own determination of the third-party claims against Colorado. These special verdicts were to the effect that Colorado was not negligent.
The general verdicts and the special verdicts were inconsistent on their face. Colorado could not be held negligent as a predicate for the general verdicts and also not negligent by the special verdicts in the same jury submission on the same facts at the same trial.
At Trial Term the court decided in a careful opinion (26 Misc.2d 1000, 209 N.Y.S.2d 479) that under the statute which in 1960 governed the practice (Civ.Prac.Act, § 459) the general verdicts must be conformed to the special verdicts and accordingly judgment was directed in favor of Colorado dismissing the two direct actions against it.
The court's legal power to have conformed the inconsistent general verdicts to the special verdicts is undoubted and is not disputed. The language of the practice statute was then cast in mandatory and directory terms: 'Where a special finding is inconsistent with a general verdict, the former controls the latter, and the court must render judgment accordingly.' (Civ.Prac.Act, § 459, last sentence.)
The main thrust of appellants' argument is that notwithstanding the terms of the statute, the court retained a discretionary control over the verdicts and the failure to exercise the discretion because the court felt bound by the statutory language was a legal error which now requires reversal.
This discretion, so it is further argued, should have been exercised in a particular direction by resubmission of the case before the jury was discharged, in response to plaintiffs' request; or by ordering a new trial after the jury was discharged in response to further motions addressed to the verdicts.
But if the significant error is, as appellants suggest, a failure to exercise a discretion vested in the Supreme Court notwithstanding the language of the statute, the usual legal remedy as far as this court's jurisdiction goes, would be to remit the case to the Trial Term with a direction to exercise the discretion.
The remand would not take the form of advising the Supreme Court how to exercise that discretion. Moreover it is clear from the record, as it will be shown, that the Trial Term was of opinion the special verdicts were right on the merits, and if the case were now remitted the discretion would be exercised with the same result: to conform the general to the special verdicts.
The statutory provision relating to such inconsistent verdicts has a very long history, as Judge Crouch observed in his concurrence in Bergman v. Scottish Union & Nat. Ins. Co., 264 N.Y. 205, 214, 190 N.E. 409, 412. A reasonable answer to the problem of duty and discretion is that if the Trial Judge be of opinion that the special verdict is in accordance with the weight of evidence, and with the justice of the case, and, therefore, if he let it stand, he must conform the general verdict to the special one. Under CPLR 4111 the mandatory statutory direction for conformity extending back to 1848 (Code of Proc., § 217, renum. as § 262 by L.1849, ch. 438; Code Civ.Proc., § 1188) has now been eliminated and the problem in this case will not recur.
No case has held, under the former practice, that if the court was soundly of opinion within its legal powers that the special verdict was right and consistent with evidence, it was required to send the jury back or to order a new trial.
In Bergman v. Scottish Union & Nat. Ins. Co. (supra), on which appellants rely, there was no general verdict and the trial court attempted to resolve a kind of controversy which called for a general verdict by submitting special questions and, on the basis of answers returned, directing a general verdict. The case, holding this could not be done, has no bearing on the present problem.
There are other decisions which deal peripherally with the question of inconsistency, but they do not require the reversal which appellants seek. In Pangburn v. Buick Motor Co., 211 N.Y. 228, 105 N.E. 423, there was inconsistency intrinsic in the general verdict itself. The jury had found for the plaintiff against the owner but not against the driver of a car, a verdict which the court regarded one which 'as an entirety amounted to one of no cause of action' (p. 233, 105 N.E. p. 425) and which should have been set aside.
Both Hatch v. Attrill, 118 N.Y. 383, 23 N.E. 549, and Warner v. New York Cent. R.R. Co., 52 N.Y. 437 were concerned, as was Pangburn, with intrinsic inconsistencies in general verdicts and not with conforming special and general verdicts.
In Kennedy v. Ball & Wood Co., 91 Hun 197 there was an inconsistency between the special verdict and the general verdict, and although the court restated what the statute provided (Code Civ.Proc., § 1188) that the general verdict must conform to the special verdict (p. 199) it held that the jury should have been sent back to deliberate further.
The power of the court to send the jury back to deliberate further when there is a patent inconsistency in verdicts is, of course, very clear. Whether the court must, as a matter of law, do so in a particular case depends ultimately on the court's judgment as to which of the conflicting verdicts is consistent with the weight of evidence.
The decision of the former General Term of the Supreme Court in Kennedy (supra) was made by a part of the Supreme Court which on review had the same discretion and control over the weight of evidence that the Trial Term had. The General Term was manifestly not of opinion that the special verdict was the right one, but that the inconsistency was such that rightness could not be determined, and, therefore, the discretionary power to resubmit should have been exercised.
There was no discussion in the opinion of the effect of the statute on the discretionary power to resubmit; and that question apparently was not argued--the effect of the statute to require the conformity of the general to the special verdict being assumed without question. That decision of the former General Term does not lead the court now to reverse the present order.
The suggestion in made that the result here is unjust. It is unjust if one accepts the general verdicts as being right and the special verdicts as being wrong. It is not unjust in the converse, and it must be accepted by this court that the Trial Term and Appellate Division accurately appraised the weight of evidence and the general fairness of the special verdicts and of the resulting judgments.
The Trial Judge was very clear in the view that the special verdicts absolving Colorado of negligence were not against the weight of evidence, i.e., 'the court rejects the argument' (26 Misc.2d, at p. 1003, 209 N.Y.S.2d at p. 485) and conversely the Judge was of opinion that 'a finding of negligence on Colorado's part' was 'neither reasonable nor consistent with the evidence and its fair inference' (26 Misc.2d, at p. 1010, 209 N.Y.S.2d at p. 492). Thus he was of opinion that the special verdicts absolving Colorado of negligence were right.
There seems no sound basis, then, to hold as a matter of law that the court was wrong in...
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...without consideration of issue sub nom. Kennard v. Welded Tank & Constr. Co., 27 A.D.2d 578, 277 N.Y.S.2d 817, affd. 25 N.Y.2d 324, 305 N.Y.S.2d 477, 253 N.E.2d 197). While the arguments against outcome instructions sometimes refer to the historical basis for special verdicts, they are more......
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...not infrequently produced by the prior ad hoc approach to inconsistent verdicts (see, generally, Kennard v. Welded Tank & Constr. Co., 25 N.Y.2d 324, 305 N.Y.S.2d 477, 253 N.E.2d 197; Siegel, Supplementary Practice Commentaries (1969), McKinney's Cons.Laws of N.Y., Book 7B (Supplementary Pa......
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...based on what it termed 'overwhelming evidence' rather than ordering a new trial (cf. Kennard v. Welded Tank & Constr. Co., 25 N.Y.2d 324, 328, 305 N.Y.S.2d 477, 479, 253 N.E.2d 197, 199). Plaintiff contends that the term 'detention' in section 218 does not encompass an arrest, and that, th......
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