Louisville & N.R. Co. v. King

• Decision Date: 27 January 1919
• Docket Number: 20507
• Citation: 119 Miss. 79,80 So. 490
• Parties: LOUISVILLE & N. R. CO. v. KING
• Court: Mississippi Supreme Court

80 So. 490

119 Miss. 79

LOUISVILLE & N. R. CO. v. KING

No. 20507

Supreme Court of Mississippi

January 27, 1919

Division A

1 TRIAL. Verdict. Surplusage.

Where a verdict was rendered against a defendant for a part of the amount sued for, and against a stranger to the record for the remainder, judgment should have been entered against the defendant for the amount assessed against him, and the part of the judgment against the stranger to the record should be treated as surplusage.

2 TRIAL. Ambiguous verdicts. Returning jury for further consideration.

Where a jury returns an ambiguous verdict, it is proper for the court to return the jury to their room for another report and further consideration.

HON. J H. NEVILLE, Judge.

APPEAL from the circuit court of Harrison county, HON. J. H. NEVILLE, Judge.

Suit originally in justice of the peace court by Clifford King against the Louisville & Nashville Railroad Company. From a judgment in the circuit court for plaintiffs, defendants appeal.

The facts are fully stated in the opinion of the court.

Judgment reversed.

H. Blumfield, Joel W. Goldsby and Gregory L. & H. H. Smith, for appellant.

The form of the first verdict was sufficient and legal, for the supreme court of Mississippi has decided: "Where the verdict contains all the laws requires, it will be good, although the jury may have found as to a matter not submitted. The illegal findings will be surplusage, and will not violate that which was well found." Wintham v. Williams, 27 Miss. 313; cited in Vol. 4, Miss. Dig., page 48.

Where a verdict is substantially good, it may be put in proper form by the court. Hoggartt v. Montgomery, 6 H. 93; Montgomery v. Tollottson, I. H. 215, cited in Vol. 4, Miss. Dig., 48. Granting or refusing new trial assignable for error. Code of 1909, sec. 801.

The appellant respectfully submits that the judgment of the circuit court sustaining the amended motion to set aside the verdict of the jury, rendered at the November term, 1917, and granting a new trial, should be reversed and judgment rendered in the supreme court, re-instating the verdict and judgment rendered in favor of the appellee for ten dollars at the November term, 1917.

But even if this court should be of the opinion that the circuit court properly sustained the said amended motion, this court should reverse the judgment rendered at the April term, 1918, for the errors assigned, and remand the case to the circuit court for a new trial.

Dodds & Montgomery, for appellee.

From the testimony of McManus, deputy circuit clerk, taken in support of the amended motion for new trial, it clearly appears that the verdict first brought in by the jury was a distinct finding for appellees; but that the jury felt itself tied up in the ten dollar lost clause in the bill of lading issued to Hightower. On considering this testimony, the court, without hesitation, seeing the injustice of allowing such a proceeding to stand, sustained the amended motion and granted a new trial. This disposes of appellants' first assignment of error. The case of Windom v. Williams, 27 Miss. 313, cited by appellant in brief, does not support this assignment of error.

The second assignment of error by appellant is without merit for the reason that the terms of the bill of lading issued to Hightower could, from no point of view, be competent evidence in settling the issue involved between the appellee, King, and the L. & N. R. R. Co.

The third and fourth assignments of error are in our judgment, without merit.

We respectfully submit that on the whole record the three trials had in this matter, the judgment of the court below should be affirmed.

OPINION

SMITH, C. J.

This was a suit instituted before a justice of the peace by the appellee herein to recover from the appellant the sum of ninety three dollars and fifty cents alleged to be due him for services rendered to the appellant at its special instance and request. There were two trials in the court below. In the first there was a judgment for the appellee for the sum of ten dollars which upon his motion was set aside and a new trial granted, which resulted in a judgment for appellee for the amount sued for.

The record discloses that a lot of furniture shipped over the appellant's road to E. W. Hightower at Gulfport, Miss was badly damaged when delivered to him. The bill of lading under which the furniture was transported and to the introduction of which in evidence no objection was raised on the first trial contains a clause limiting the appellant's liability in the case of loss or damage to the furniture to ten dollars. The appellee testified, and he was...