Pangburn v. Buick Motor Co.

• Decision Date: 05 May 1914
• Parties: PANGBURN v. BUICK MOTOR CO. et al.
• Court: New York Court of Appeals Court of Appeals

211 N.Y. 228

105 N.E. 423

PANGBURN

v.BUICK MOTOR CO. et al.

Court of Appeals of New York.

May 5, 1914.

Appeal from Supreme Court, Appellate Division, Third Department.

Action by Alfred Pangburn against the Buick Moteo Company and another. A judgment Buick Motor Company and another. A judgment for plaintiff, and, an order refusing to Appellate Division (151 App. Div. 756,137 N. Y. Supp. 37; 153 App. Div. 934,138 N. Y. Supp. 1132), the defendant named appeals. Judgment reversed, and new trial granted. Ruling on motion affirmed.Andrew J. Nellis, of Albany, for appellant.

William L. Visscher, of Albany, for respondent.

HISCOCK, J.

[1] This action was brought jointly against the appellant and one Grounsell to recover damages for personal injuries resulting from a collision with an automobile, due, as alleged, to negligent operation of the latter.

This appellant was the owner of the car and Grounsell, who was driving the same at the time of the accident, was its employe. If there was any negligence in the operation of the car, it was that of Grounsell, and the only possible theory of liability on the part of the appellant was that it was responsible for his negligence because he was its employe and engaged in its business. If Groundsell was not negligent and liable in this action, there was no conceivable basis for a recovery against the appellant, although, if certain issues were decided in its favor, it was possible to exonerate the appellant while holding Grounsell. All this, in substance, was duly said by the court in its charge to the jury.

Notwithstanding these instructions, as the result of confusion or misplaced sympathy and logic, the jury rendered a single verdict of no cause of action in favor of Grounsell and of $5,000 against the appellant.

This verdict, of course, was inconsistent and absurd and contrary to the instructions which had been given by the court, and the appellant was entitled to have it set aside, if so desired, on a motion under section 999 of the Code of Civil Procedure, as contrary to the law, and to have a new trial. Hyatt v. N. Y. C. & H. R. R. R. Co., 6 Hun, 306; Gray v. Brooklyn Heights R. R. Co., 72 App. Div. 454,76 N. Y. Supp. 24;Richardson v. Van Voorhis, 3 N. Y. Supp. 599¹; Franscone v. Louderback, 153 App. Div. 199, 203,138 N. Y. Supp. 370; Tate v. McCormick, 23 Hun, 218.

[2] A motion was made thus to set it aside, but, having been denied, no appeal was taken from the order denying the same, and the exception taken to such decision is futile as a basis for raising any of the questions now presented to us.

Subsequently a judgment was duly entered on the verdict dismissing the complaint against Grounsell and against the appellant for the damages specified and costs, and, on appeal by this appellant, such judgment against it was affirmed by the Appellate Division, and the appeal from such judgment of affirmance is the one now presented to us.

[3] After the judgment had been affirmed by the Appellate Division, the appellant made a motion at Special Term for an order correcting the judgment entered ‘by striking therefrom the adjudication and the whole thereof to the effect that the plaintiff recover of this defendant the sum of $5,000 found by the jury, * * * and inserting in lieu thereof an adjudication to the effect that the complaint of the plaintiff be dismissed.’ This order was denied, and the order of the Appellate division affirming it is also now presented to us for consideration by an appeal.

This motion seems to have been made under some theory that that portion of the verdict finding in favor of the individual defendant completed all of the permissible duties of the jury, and that therefore the other portion of the verdict against the appellant was mere surplusage, and could be struck out on a motion for a correction of the judgment. It does not seem to need long discussion to point out the ineffectiveness of this motion. It may be assumed that certain clerical and superficial errors in a judgment may be corrected on motion. But that is not at all this case. The judgment purported to be based upon, and was in literal conformity with, the verdict. There was no clerical discrepancy between judgment and verdict which might be corrected on motion. The difficulty, of any, with the judgment was that the verdict as a whole did not have the meaning which was given to it in entering the judgment, and did not, as matter of law, support the latter. As will more fully appear hereafter, this defect, if any, was of a substantial character, and not of a kind to be corrected on such a motion.

[4] It is true that in its notice of motion last mentioned appellant did ask in the alternative that, if its application for correcttion of the judgment should not be granted, a new trial should be ordered, on the ground that the verdict of the jury against it was contrary to instructions and inconsistent, but no attention seems to have been paid to this portion of the motion. The order entered is specifically and exclusively confined to a denial of the motion made to correct the judgment, and does not in any was pass upon or determine the alternative request for relief if it was ever considered. Probably no reliance was placed upon or attempted to be given to this branch of the motion, and for obvious reasons. As already stated, a motion for this manner of relief was made when the verdict was rendered, and from the order denying that application no appeal had ever been taken, and therefore, under general principles applicable even to orders as adjudications in bar, the court would not consider or grant any application for relief which had once been denied; certainly unless exceptional reasons for so doing were presented.

The result of all of this is that the appellant must rely for relief on its appeal from the judgment, and we are required to consider what the effect of the verdict which was rendered was, so far as concerns appellant, and, if it should be held that the verdict as an entirety amounted to one of no cause of action, then to decide whether a basis for relief is presented on an appeal simply from the judgment.

[5] We think the verdict as a whole was equivalent to one finding no cause of action against the appellant. As has already been pointed out, the only claim of liability against it was based on the alleged negligence of its employe. The primary and absolutely essential facts to be found by the jury before any liability could be visited upon the appellant were that the driver of the machine was negligent, and that the plaintiff was free from negligence. The two defendants did not stand on the same plane of liability as might sometimes happen where an action had been...