Rodgers Ins. Agency, Inc. v. Andersen Machinery

• Decision Date: 16 October 1957
• Parties: RODGERS INSURANCE AGENCY, Inc., an Oregon Corporation, Respondents, v. ANDERSEN MACHINERY, an Oregon Corporation, Appellant, and Roy G. Andersen, Defendant.
• Court: Oregon Supreme Court

Page 497

316 P.2d 497

211 Or. 459

RODGERS INSURANCE AGENCY, Inc., an Oregon Corporation, Respondents, v. ANDERSEN MACHINERY, an Oregon Corporation, Appellant, and Roy G. Andersen, Defendant.

Supreme Court of Oregon, Department 1.

Argued Oct. 17, 1956.

Decided Oct. 16, 1957.

William B. Murray, Portland, argued the cause for appellant. With him on the brief was Donald R. Stark, Portland.

Jack M. McLaughlin, Portland, argued the cause for respondent. With him on the brief were McCarty, Swindells, Miller & McLaughlin, Portland.

Before WARNER ^*, C. J., and ROSSMAN, PERRY ^** and McALLISTER, JJ.

McALLISTER, Justice.

This is an action by Rodgers Insurance Agency, Inc., an Oregon corporation, as plaintiff, against Andersen Machinery, also an Oregon corporation, and its president Roy G. Andersen, to recover insurance premiums alleged to be due from said defendants. The defendant Andersen Machinery filed a counterclaim against plaintiff for damages alleged to have resulted from the breach by plaintiff of an agreement to procure certain other insurance covering machinery of the defendant. A directed verdict was entered in favor of Roy G. Andersen and he is no longer involved in this case. We will therefore refer to Andersen Machinery as the defendant.

Plaintiff's claim is for the balance of the insurance premiums alleged to be due on two policies of fire insurance issued by Glens Falls Insurance Company through plaintiff as its agent, covering the machinery and other personal property of the defendant. The policies were known as provisional policies. They provided for an initial premium and required monthly reports from the defendant of the actual cash value of the property insured at each location. The policies further provided that the actual premium should be determined at the expiration of the policies by the application of a formula set out in the policies based on the average values reported by the defendant. The first policy was for a term of one year beginning September 1, 1948 and the second policy for a like term beginning September 1, 1949. Plaintiff claimed that the additional premium on the first policy, based on the reports furnished by defendant, was the sum of $321 and that the additional premium on the second policy was $204.75 and demanded judgment against defendant for these sums with interest.

Defendant denied generally the material allegations of the complaint and affirmatively alleged payment of all insurance premiums which may have been due plaintiff. Defendant's answer included a counterclaim for damages alleged to have resulted from a breach by plaintiff of an agreement to procure certain insurance for defendant. The allegations describing the alleged agreement are contained in paragraph IV of the counterclaim, reading as follows:

'About July of 1947, the plaintiff and the defendant entered into an agreement whereby the plaintiff agreed to procure for the defendant, in consideration of defendant's agreeing to pay to the plaintiff its premium charges therefor, certain Inland Marine Insurance with floater attached insuring the defendant against loss from mysterious disappearance and loss from conversion of certain contractors equipment hereinafter described concerning the periods of time hereinafter mentioned.'

After alleging that plaintiff breached its agreement by failing to procure the described insurance, defendant alleged that about May 30, 1948, it leased to the city of Portland five light plants of the reasonable value of $2,084.14 and that said light plants 'mysteriously disappeared about May of 1948, and were converted by a person or persons unknown to the defendant.' It was further alleged that defendant placed aboard the SS Pioneer a drum hoist and accessories of the reasonable value of $1,618.75 'which mysteriously disappeared and was converted by a person or persons unknown to defendant during 1949.' Defendant demanded judgment on its counterclaim for the reasonable value of all of said equipment in the sum of $3,702.89.

The plaintiff filed a reply denying generally the material allegations of the answer and of the counterclaim.

The trial court was of the opinion that a directed verdict should have been granted against the defendant on its counterclaim but at the request of the defendant submitted the counterclaim to the jury pursuant to ORS 18.140. ¹ The court advised the parties that if the jury should return a verdict for the defendant on the counterclaim he would set the verdict aside and grant a judgment against the defendant on the counterclaim notwithstanding the verdict.

The case was submitted to the jury with appropriate instructions to bring in a verdict for the plaintiff if it found in favor of the plaintiff on the cause of action alleged in the complaint and to bring in a separate verdict for the defendant if it found in favor of the defendant on the counterclaim. The court properly told the jury to 'treat them like two law suits.' The jury in compliance with the instructions of the court returned with two separate verdicts, one in favor of plaintiff for the full amount of its claim in the sum of $525.75 with interest at six per cent per annum from October 4, 1950, and the other in favor of the defendant on its counterclaim in the sum of $2,400. When the jury returned with these two verdicts the following proceedings took place:

'The Court: Ladies and gentlemen of the jury, have you arrived at a verdict in this case?

'The Foreman: Yes, sir.

'The Court: May I have the verdict, please.

'Mr. Murray and Mr. McLaughlin, there are two verdicts here, one for the plaintiff and one for the defendant. Now, it is impossible to have two verdicts in one case.

'Ladies and gentlemen of the jury, it is impossible to have two verdicts in one case where there is one party plaintiff and one party defendant. Either the plaintiff is entitled to prevail or the defendant is entitled to prevail. If you think that the plaintiff is entitled to so much money and the defendant is entitled to so much money, and it is more, why, then it should be deducted from the defendant, so I am going to have the reporter prepare two new verdicts and resubmit it to you. Now, you will retire to your jury room and I will have the reporter make out the verdicts in blank right away and have the bailiff give them to you.'

Counsel for the defendant objected to the resubmission of the case to the jury on the ground that the two verdicts were not inconsistent and that both verdicts should be received and judgment entered based upon said verdicts. Counsel for the plaintiff objected to the refusal of the court to receive and enter the verdict in favor of the plaintiff.

After further deliberation, the jury returned with a verdict in favor of defendant in the sum of $1,758.75. This amount was evidently computed in accordance with the instructions of the court by deducting from the $2,400 which the jury had awarded on the counterclaim the sum of $525.75 which it had awarded plaintiff plus interest on said sum at six per cent per annum from October 4, 1950 to May 6, 1954, the date on which the verdict was returned. The computation of the interest by the jury at $115.50 was not exact but the error was de minimis.

The court asked the jury whether the verdict was unanimous and upon being advised that it was not, directed the clerk to poll the jury. When asked whether it was their verdict, eleven jurors answered in the affirmative and one in the negative. The verdict was then received over the objection of the plaintiff and the jury discharged. The two original verdicts were obtained from the foreman of the jury and preserved by the court but were not filed at that time.

On May 10, 1954, the plaintiff filed a motion for a judgment notwithstanding the verdict. After considering the motion, the court concluded that it had erred in refusing to receive the two original verdicts and on May 24, 1954, entered an order which set aside the last verdict for the defendant in the sum of $1,758.75, also set aside the first verdict for the defendant in the sum of $2,400, directed that the verdict for the plaintiff in the sum of $525.75 be received and entered and directed that judgment for the plaintiff be entered on that verdict. The two verdicts originally returned by the jury were both filed on May 24, 1957 with this order.

On May 26, 1954, a judgment in favor of plaintiff was entered in the sum of $525.75, together with interest thereon at the rate of six percent per annum from October 4, 1950. From that judgment this appeal is taken.

The first two verdicts should have been received and filed. As this court held in Forest Products Co. v. Dant & Russell, 117 Or. 637, 645, 244 P. 531, 533:

'* * * ordinarily it is better practice where different causes of action are joined in one action for the jury to find a separate verdict as to each cause.

'Separate findings upon each of two issues presenting separate causes of action are not special but general verdicts. Robinson v. Berkey, 100 Iowa, 136, 143, 69 N.W. 434, 62 Am.St.Rep. 549. A verdict for both plaintiff and defendant is not necessarily inconsistent, if the separate findings are on causes of action severally pleaded by them respectively: 38 Cyc. 1927.'

The court did not err in setting aside the last verdict and receiving and entering the verdict for the plaintiff. Reynolds v. Kanzler, 126 Or. 245, 269 P. 230, 231, was an original proceeding in mandamus to require a judge of the circuit court to receive and enter two verdicts returned in an action between Richard P. Landis and Mabelle E. Landis as plaintiffs, and James A. Reynolds and Minerva D. Reynolds as defendants. The jury had returned a verdict for the plaintiffs on their first cause of action in the sum of $2,854.49 and a separate verdict for the defendants on their cause of action against plaintiffs in the sum of $2,975. The trial judge being in doubt as to the validity of the verdicts, directed a...