185 Iowa 416 | Iowa | 1919
The defendant was engaged in the sale and delivery of kerosene, gasoline, and naphtha, with headquarters at Marshalltown, and had established an agency at Clear Lake, with B. C. Belding as agent. On December 5, 1914, A. E. Carter directed the agent or representative of the defendant company to place in a galvanized, unpainted can on his farm 50 or 60 gallons of kerosene. Fred Gentry had requested him to deliver gasoline at the same place, and Belding loaded in his motor truck such an
Most of the errors assigned are not such as will be likely to arise on another trial, and for that reason, are not reviewed. Because of the errors necessitating a reversal, we express, no opinion on the sufliciency of the evidence to sustain the verdict.
An objection as leading and suggestive was overruled, and the witness answered:
“I think it could be that time. Q. Well, is it your judgment that it was around somewheres that time? (An objection as leading and suggestive was sustained). Q. Well, what is your best judgment as to whether it was in the neighborhood of that time? A. Well, my judgment of the time, I would believe it fall, rather than spring, because at that time in testing it, there was little or no snow on the ground, — usually in the spring, there is lots of it. Q. What is your best recollection as to whether it was around December 4, 1914 ? A. I recollect the instance of this, this oil instance, but not the exact dates. Court: Now he wants you to give the nearest date you do recollect of that occurrence. A. Well, the nearest recollection I could state would be late in the fall, — I could not give any other dates. Q. Well, it is in the late fall of 1914, — of course, it would be 'impossible for any witness — The Court: You say it was fight the next day after he had been to Carter’s? Mr. Senneff: No, it would be the day before. The Court: The day before he went out to Carter’s? Mr. Senneff: Yes. The Court: Well, he may answer this question, under those circumstances. (Defendant excepts.) Question read by the reporter as follows: Q. Mr. Knudtson, did you, the next day after the tank was filled, see Mr. Belding remove it from the tank ? A. He did the next day,”
The ruling was erroneous and prejudicial. Evidently, •the court accepted Senneff’s suggestion that all this happened the day before the explosion in question, but the wit
“We, the jury, find for the plaintiff in the sum of $8,666.66, toitli interest at 6 per cent from December 6, 1914.”
The portion in italic was in the handwriting of the foreman. That preceding was the typewritten form submitted by the court. The jury had not been instructed to allow interest. An important element making up the claim for damages was the pain and suffering in body and mind reasonably certain to be suffered in the future, to.gether with the inconvenience and disfigurement of body resulting from her injury. The rule is well settled that, in
It will be noted that the affidavit of all the jurors does not controvert the affidavit of Male that the quotient or average obtained by the computation “should constitute our verdict, and should constitute our verdict in the case,” or that of Christiansen, that “we were to be bound by this amount as our verdict.” This being so, there is no escape from the conclusion that, unless obviated in some manner, the verdict thus reached was what is known as a “quotient verdict.” Gutfreund & Co. v. Williams, 172 Iowa 535. The jury, however, had the right to retrace their steps and repudiate their improper conduct if they chose. Thompson v. Perkins, 26 Iowa 486. Thereafter, interest on the average sum was agreed to be added, and the jurors then voted “according to our agreement made in advance,” which was carried unanimously, as sworn to by Christiansen; and Jones swore that “another vote was taken to see if every
The affidavit of all the jurors was that, after the average amount had been ascertained, it ($8,666.06) was discussed, and a vote taken as to whether that amount should be the amount of the verdict. This was no more than a ratification of what had preceded, and the average amount stood on another vote to add interest. The illegal conduct in reaching the amount of the verdict to be returned was not repudiated or abandoned, but rather confirmed, by what followed. The evil of a quotient verdict cannot be cured by agreeing thereafter to a slightly different verdict, if it appears that the agreement made in advance entered into or induced the result; nor can a quotient verdict be cured by the jury’s subsequently adopting it or its equivalent as their verdict, if the agreement entered into or controlled the subsequent adoption of the verdict returned. International Agri. Corp. v. Abercrombie, 184 Ala. 244 (49 L. R. A. [N. S.] 415). A subsequent assent to the verdict is not sufficient to purge its illegality. Sylvester v. Town of Casey, 110 Iowa 256.
There was no subsequent reconsideration of the amount of the damages to be allowed. The later votes on the verdict, without any review on the merits, adopted the result attained by the illegal process of adding the several amounts and dividing by the number of jurors, in pursuance of an agreement to be bound thereby. No one could tell in advance the damages so measured to be allowed. These were fixed by chance, through an arbitrary, self-imposed rule, instead of a conscientious and deliberate consideration of the merits by each juror. Such a verdict is by chance, for no juror is apprised what sum his fellows will set down, and the verdict is not the product of his judgment. Had there