Morris v. Robinson Bros. Motor Co

• Citation: 110 So. 683,144 Miss. 861
• Decision Date: 03 January 1927
• Docket Number: 26084
• Court: United States State Supreme Court of Mississippi
• Parties: MORRIS et al. v. ROBINSON BROS. MOTOR CO. [*]

110 So. 683

144 Miss. 861

MORRIS et al. v. ROBINSON BROS. MOTOR CO. ^[*]

No. 26084

Supreme Court of Mississippi

January 3, 1927

Division B

1 TRIAL. Testimony, tending to impeach jury's verdict returned under court's direction after first verdict was irresponsive to issue, held property refused.

Where first verdict of jury was not responsive to issue and verdict, under direction of judge, was reconsidered and returned in proper form, court properly refused to receive testimony. from jurors tending to impeach last verdict or show meaning of first one, since meaning must be obtained from language used and verdict must be intelligent and responsive to issue.

2 TRIAL. Trial court held correct in refusing to accept irresponsive verdict and in sending jury back with requirement to render responsive verdict.

Where first Verdict of jury was not responsive to issue, trial court was correct in refusing to accept it and In Sending jury back and requiring them to render verdict responsive to issue.

3. APPEAL AND ERROR. Appellants cannot predicate error on trial judge's refusal to accept irresponsive verdict to which no objection. was made.

Where counsel for appellants, when first verdict of jury was rendered, made no objection to action of court in refusing verdict because of being irresponsive to issue, he will not be permitted to predicate error thereon.

4. APPEAL AND ERROR. Generally, substantial rights may be waived by counsels failure to object.

Generally counsel may waive substantial rights by failure to object at proper time.

5. TRIAL. Judgment held properly entered on jury's second verdict responsive to issue, after courts refusal to accept irresponsive verdict.

Where jury, after court's refusal to accept irresponsive verdict, returned second verdict which was responsive to only issue in case, judgment was properly entered thereon.

HON. W. H. POTTER, Judge.

APPEAL from circuit court of Hinds county, HON. W. H. POTTER, Judge.

Action by the Robinson Bros. Motor Company against Katie Morris and another. Judgment for plaintiff, and defendants appeal. Affirmed.

Judgment affirmed.

G. Q. Whitfield, for appellants.

The defendants contend that the first verdict brought out by the jury is a perfectly legal and valid verdict in every way, responsive to the only issue submitted to the jury by the court on the evidence, and showed without any doubt that the jury clearly and manifestly intended to find and did find that the plaintiff should not recover any part of the balance due on the promissory note from the defendants.

The meaning and intent of the verdict manifestly was that the money paid to date and the automobile should be kept by the plaintiff in full settlement, and that the defendants should not be required to pay any of the balance of the purchase money note, which was the only thing in issue.

In a case like this, a jury has a right to find for the plaintiff to a limited extent, and then a judgment cannot be rendered for the plaintiff against the defendants for any larger amount, or for any balance due on a note. In support of our contention, see Thornton v. Lucas, 29 So. 400; Am. & Eng. Ency. of L. (1 Ed.), 4404; Russell v. Knowles, 4 How. 90; Bankston v. McKnight, 103 So. 807.

In this case the circuit judge told the jury that they could not recommend anything and to go back and come in with a verdict either for the plaintiff or for the defendants. I hold that this direction by the judge was fatal error and was very misleading and prejudicial to the defendants. Inasmuch as the jury had made use of the word "recommend" and the court told the jury they could not recommend, they simply went out and brought in their verdict with the word "recommend" omitted. Supporting this contention, I cite Hines v. Lockhart, 105 So. 449.

I submit further that the second verdict and the judgment rendered thereupon is void for the reasons clearly pointed out in Evans v. Junius Hart Piano House, 106 So. 9. It is also upheld by Colt Co. v. Mazingo, 106 So. 533; 27 R. C. L., pages 858, 860, 900.

Jos. M. Howorth, for appellees.

I. It is a well-known fact to this court that the circuit judge is vested with the power and authority to send a jury back to the consultation room for the purpose of correcting its finding "if the verdict is not responsive to the issue submitted to the jury." Section 563, Hemingway's Code (section, 780, Code of 1906); 38 Cyc. 1890. The opinion of Chief Justice SMITH in L. & N. R. R. Co. v. King, 119 Miss. 79, 80 So. 490, is controlling in the suit at bar.

II. The lower court did not err in its refusal to hear the members of the jury that brought in the first verdict explain the intent and meaning of their verdict. There was nothing to explain about the verdict. This jury had been remanded to the jury room for further deliberation and had returned a verdict into open court which definitely responded to the issue in the case. See Ulmer v. Pistole, 115 Miss. 485, 76 So. 522.

III. The lower court did not err in overruling a motion for a new trial. The instructions requested, given to the plaintiff by the court clearly and concisely recite the law in regard to warranties of automobiles. Industrial Finance Corporation v. Wheat, 107 So. 382; Tiffany on Sales, page 255.

Appellants in their brief term the first verdict returned by the jury in the case at bar as a special finding. This is error. 24 L. R. A. (N. S.) page 1, note.

This cause has been fully tried before a jury and if there has been a conflict in the evidence, it has been decided in the appellees' favor. The circuit judge was within his power and authority in directing the jury to deliberate further and return a proper verdict into court; this was exactly what the jury did; and the verdict so rendered decided the issue and gave justice fully.

Argued orally by G. Q. Whitfield, for appellants, and Jos. M. Howorth, for appellees.

OPINION

HOLDEN, P.J.

The appellants Katie and Phil Morris appeal from a judgment against them for two hundred seventy-nine dollars, in favor of appellee, Robinson Brothers Motor Company, as the balance due upon a note for the purchase of a secondhand Sayers automobile.

The appellants claimed in the lower court that the automobile was expressly warranted to be useful and satisfactory to them and that the warranty failed and was breached, in that the car was unsatisfactory and of no value for use. The appellee Robinson Brothers Motor Company, contended there was no special warranty of the car, but that it was a secondhand automobile, sold at the reduced price of three hundred seventy-five dollars, and that the purchasers inspected and tested the car out to their own satisfaction previous to buying it. Thus, the evidence presented a conflict as to whether or not there was a special warranty of the car; and, upon this issue alone, the jury decided the question of fact in favor of the motor company, and found a...