Schuman v. Chatman
| Decision Date | 29 November 1938 |
| Docket Number | 28303. |
| Citation | 86 P.2d 615,184 Okla. 224,1938 OK 605 |
| Parties | SCHUMAN et al. v. CHATMAN. |
| Court | Oklahoma Supreme Court |
Rehearing Denied Jan. 24, 1939.
Syllabus by the Court.
1. Where in a civil cause a verdict is received in the presence of counsel and the jury discharged, and the record does not affirmatively show that counsel objected to the form of the verdict until after the jury had been discharged, defects in the form of the verdict will be deemed to have been waived.
2. In the absence of instructions that the amount of actual and exemplary damages should be separately set out in the verdict, a verdict for a lump sum, even though such lump sum is erroneously described in the verdict as punitive damages may, if there has been no objection to the form of the verdict at the time of its receipt, be treated as a general verdict for the amount stated and judgment entered accordingly.
3. A verdict attempting to apportion damages between tortfeasors is defective in form but not void.
4. To authorize a judgment for exemplary damages in an action for tort, some element of malice or oppression must be shown. The act which constitutes the cause of action must be accompanied or actuated by some evil intent or must be the result of such gross negligence, such disregard of another's right, as to be deemed equivalent to such intent.
5. Exemplary damages may be awarded against a principal when the tortious act complained of was committed by or through an agent.
6. In an action for wrongful eviction, parties who owned some interest in articles of furniture being used by the plaintiff in the premises from which plaintiff was evicted are not necessary parties plaintiff.
7. Assignments of error unsupported by authorities need not be considered on appeal unless it is apparent without further research that they are well taken.
Appeal from District Court, Okmulgee County; S. L. O'Bannon Judge.
Action for wrongful eviction by Alma Chatman against Morris Schuman and another. Judgment for plaintiff, and defendants appeal.
Affirmed.
Fred W Martin, of Wagoner, for plaintiffs in error.
Howard S. Keagy, of Okmulgee, for defendant in error.
This cause originated in the district court of Okmulgee county. It was instituted on the 19th day of November, 1936, by Alma Chatman, as plaintiff, against Morris Schuman and W. H. Lancaster, as defendants, to recover the sum of $10,000 as actual and punitive damages for alleged wrongful eviction under asserted authority of a writ issued at the conclusion of a forcible entry and detainer action.
On trial of the cause to a jury the plaintiff prevailed. The defendants present the cause to this court on appeal appearing herein as plaintiffs in error. We shall continue to refer to the parties by their trial court designation.
The plaintiff, Alma Chatman, was not a party to the forcible entry and detainer action. She did however occupy the premises. Her occupancy is explained by the fact that the property was formerly owned by her mother, who died some time prior to the filing of the forcible entry and detainer action leaving as her heirs the plaintiff and three other children. Betty was one of them. Prior to the filing of the forcible entry and detainer action Betty had married, becoming Betty Smith and had moved from the premises.
The defendant Schuman, in attempting to obtain possession of the premises under his claim of tax deed, named Betty Smith as the defendant, although she no longer occupied the premises. His judgment was against her and the writ authorized her eviction.
We are not here concerned with the propriety of the remedy selected by the defendant for the assertion of his alleged rights under the tax deed nor with the question of whether the judgment was subject to collateral attack by Betty Smith. The judgment was not binding on the plaintiff, Alma Chatman, if, as her evidence established she and not her sister, Betty, was in reality the occupant of the property. This for the reason that Alma was not a party to the forcible entry and detainer action.
The record reveals that in connection with the prosecution of the forcible entry and detainer action Schuman acted through an agent, Cohen, who accompanied the defendant Lancaster, a constable, when the eviction was accomplished. According to plaintiff's evidence, both were informed that the plaintiff, Alma, and not her sister, Betty, was in possession of the premises. Notwithstanding this information the eviction was carried out. Thereafter, Cohen placed a no trespassing sign on the premises in Schuman's name.
The plaintiff's claim for $10,000 was divided. She sought $15 actual and $9,985 punitive damages. The jury upon the trial of the cause returned the following verdict:
This verdict was received in the presence of defendant's counsel without objection on his part and the jury was discharged. Thereafter judgment was rendered on the verdict as follows (omitting formal parts): "It is therefore ordered adjudged and decreed by the court that the plaintiff, Alma Chatman, have and recover from the defendant, Morris Schuman, a judgment in both punitive and actual damages in the sum of $266.67, and have and recover from the defendant, W. H. (Henry) Lancaster, a judgment in both punitive and actual damages in the sum of $10.45."
The defendants challenged the verdict by motion for judgment notwithstanding the verdict and by motion for new trial. Literally the verdict is objectionable in two particulars. First, it purports to assess punitive damages against the defendant Schuman without the assessment of any amount as actual damages against him, and, second, it apportions damages between tortfeasors. Both of the defects, however, go to the form of the verdict rather than its substance and in order to be available as reversible error, objection should have been made to the receipt of the verdict in order that the trial court might have resubmitted the matter to the jury for reconsideration upon the objectionable points. It is the policy of the law to settle controversies and not to prolong them. The litigants themselves must assume a measure of responsibility in connection with the accomplishment of this purpose. It is not proper for a party to sit idly by while a verdict erroneous in form is being returned and witness its receipt without objection and later, after the jury has been discharged, claim advantage of the error, thus invited by acquiescence.
In this jurisdiction provision is made by statute for the correction of a verdict erroneous in form. See Sec. 368, O.S.1931.
Section 586, title 12 Okl.St.Ann. provides in part:
As we have noted, the verdict now before us was defective in two particulars. Confusion of thought will be avoided by the separate consideration of the two defects.
The verdict on its face labeled the amount of recovery against the defendant Schuman as punitive damages without specifying any sum or portion of the sum as actual damages. If accepted in its literal sense the verdict was in this respect axiomatically erroneous, for punitive damages cannot be awarded against a tort-feasor in the absence of an award for actual damages, and the jury was so instructed in this case. But timely objection was not made to this defect. In the case of J. S. Hoffman, Inc., v. Palmer et al., 173 Okl 249, 47 P.2d 88, this court considered a question of identical import. There the amount of recovery as fixed by the jury was identified in the verdict as "court cost, attorneys fees (and) punitive damages," no amount being inserted as actual or compensatory damages. We held that the defect in the verdict was one of form and that since it was received in the presence of counsel, without objection, the defect in form was waived and the sum specified was properly treated as a general...
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