Romans v. McGinnis

• Decision Date: 02 December 1913
• Citation: 160 S.W. 928,156 Ky. 205
• Parties: ROMANS et al. v. McGINNIS.
• Court: Kentucky Court of Appeals

160 S.W. 928

156 Ky. 205

ROMANS et al. v. McGINNIS.

Court of Appeals of Kentucky.

December 2, 1913

Appeal from Circuit Court, Warren County.

Action by Herbert McGinnis against George C. Romans and another. From a judgment for plaintiff, defendants appeal. Reversed and remanded for further proceedings.

T. W. &amp R. C. P. Thomas and Grider & Harlin, all of Bowling Green for appellants.

G. H Herdman, Sims & Rodes, and W. R. Gardner, all of Bowling Green, for appellee.

HANNAH J.

The appellee, Herbert McGinnis, who sued in the name of the commonwealth for his use and benefit, instituted this action in the Warren circuit court against George C. Romans and the United States Fidelity & Guaranty Company, as surety on the bond of said Romans, as policeman of the city of Bowling Green, for damages for an alleged assault and battery committed by said Romans in arresting appellee upon a misdemeanor charge; appellee basing his action upon the alleged ground that appellant Romans unnecessarily beat and bruised appellee in effecting said arrest. Upon a trial, the jury returned a verdict, which reads as follows: "We, the jury, find for plaintiff against the Fidelity Insurance Company $750 punitive damages, and against defendant $250. R. E. Allison, Foreman." When this verdict was returned, appellee moved the court that judgment "be held up until further order of the court." On the same day he entered a motion for judgment on said verdict against both defendants for $750 compensatory damages, and, in addition thereto, judgment against defendant Romans for $250 punitive damages. In support of this motion he filed the affidavit of R. E. Allison, one of the jury, to the effect that it was the intent of the jury to return a verdict as indicated in said motion. The court sustained said motion, and entered a judgment as therein requested, and, from that judgment, this appeal is prosecuted.

Appellants contend that the court erred in entering said judgment, for the reason that it does not conform to the verdict. In the determination of this question, we may say at the outset that the affidavit of the juror, which was filed in support of the motion for judgment on the verdict, cannot be given any weight or consideration. In the case of Alexander v. Humber, 86 Ky. 565, 6 S.W. 453, 9 Ky. Law Rep. 734, a verdict was returned, which read as follows: "We, the jury, find for plaintiff $1,000 jointly." There were two defendants. Subsequently, on a motion for a new trial, there were filed affidavits of certain jurors to the effect that they had intended to find $500 against each of the defendants. On appeal this court said: "After a verdict has been returned in open court, it would be a wide-open door to trickery, corruption, and fraud to grant a new trial upon ex parte affidavits of individual jurors as to what the jury intended to do." See Rager v. L. & N. R. R. Co., 137 Ky. 817, 127 S.W. 155, and cases refered to therein. The verdict in this case, therefore, must stand unaffected by any explanation attempted or offered to be made by the ex parte affidavit of the juror.

In Pittsburgh, C., C. & St. L. Ry. Co. v. Darlington's Adm'x, 129 Ky. 266, 111 S.W. 360, 33 Ky. Law Rep. 818, it was said by this court that: "Juries are gathered from every walk of life. Very frequently, perhaps most generally, they are not men of literary learning. Their choice of expression is very apt to be not exact; their verdicts being frequently ungrammatical and rarely couched in the terminology of the law. Hence courts view the findings of the jury with great leniency, and every reasonable presumption is indulged in aid of a general verdict. The main thing is to get an understanding of what the jury intended. Their intent is to be sought for in the language they used in their verdict interpreted in the light of the record. Resort may be had to the pleadings or other parts of the record to see what the jury meant by their verdict."

If, therefore, from the record itself, and regardless of any explanation offered to be made by a juror, the meaning and intent of the jury may be made intelligible, it is the duty of the court to give effect to the verdict, provided, however, that such meaning and intent may also be made certain.

The petition in alleging damages says that "plaintiff, McGinnis, has been damaged in the sum of $5,000 as a direct and proximate result of said unlawful assault as predicated above, and that he should recover said sum from defendant Romans, and $1,000 from his codefendant, the amount of its liability according to said bond." From this allegation, he fixes the damages at $5,000, but says that he ought to recover that amount from defendant Romans, and $1,000 from his codefendant. The jury was instructed that it could find as compensatory damages not to exceed $5,000 against Romans, and not to exceed $1,000 against the United States Fidelity & Guaranty Company, and also that it could find punitive damages not exceeding in all the sum of $5,000. The question presented, therefore, is whether from the record the intent of the jury is susceptible of being made certain. By the instructions, the jury was not authorized to find punitive damages against the surety, yet it said in its verdict that: "We, the jury, find for plaintiff against the Fidelity Insurance Company $750 punitive damages, and against defendant $250." If it be assumed that by the word "defendant" the jury meant the defendant Romans, the matter is not made any clearer. It cannot be made certain from the verdict or the record that any of the damages found by the verdict were compensatory damages.

A judgment on the verdict without reference to the record would require a recovery of $1,000 against the defendant United States Fidelity & Guaranty Company, as it is the only defendant named in the verdict. The finding of the first sum $750, is explicit, and is clearly against said company alone, and the last part of the verdict, being joined to the first by the word "and" would indicate that the last-named sum should be added to the first, and this is the full amount the instruction authorized the jury to find against said company. In the light of the record, however, it is not probable that the jury intended to render a verdict of this nature. They undoubtedly intended to find some amount against the defendant Romans; but, to determine what amount, one is required to enter the field of speculation. ...