*1 Argued reargued 27, 1953; March October reversed 17, 1954 June
FISCHER HOWARD
Reversed.
ROSSMAN, J. appeal by
This is an the defendant from an order court which sustained a circuit motion made plaintiff new trial. The action in which challenged order was made was based two charges battery. complaint assault and (amended) averred- that the defendant, on June 23, again July and on 29, 1950, assaulted and beat plaintiff. purported For the assault June 23 sought plaintiff special, general, $1,000 $100 damages. punitive July $2,500 For that of 29 he de- special, general, puni- $7,500 manded $5,000 $500 damages. (amended), tive The answer in addition to denying alleged injuries, pleaded the assaults and the self-defense.
Following copy verdict which the returned: Jury duly empanelled
“We, in the above entitled cause for the fix find on first his damages cause action and his as follows: Damages................ Compensatory None $ Damages.......................... Punitive $None and also find on his second cause fix on of of action as follows: his action second cause *4 Damages.................. Compensatory 1.00 1.00 $ $ Damages............................ Punitive Damages.............................. Special $35.00” signatures jurors. all twelve The verdict bore parties counsel for both returned, verdict When the objection any present. Neither made to the ver- again sent out to asked that nor dict express in a form. verdict different its judg- the court entered verdict,
Based reciting proceeded as the verdict, after which, ment follows: plaintiff, adjudged that the and is ordered
“It from recover of and do have and Fischer, Bobert $37.00; the sum of Howard, Max defendant, said * # * discharge days of the and after Two presented his motion filing verdict the of its it reads: trial; a new for “ failing to award (1) of the Misconduct damages. general substantial Plaintiff finding Plaintiff was “(2) that the after That punitive compensatory special, dam- and entitled fixing jury in Plaintiff’s ages, damages compensatory $1.00, the sum of at against capricious, arbitrary, the uncontra- and contrary the instructions and evidence
dieted the Court. finding Plaintiff was en- “(3) after That special, punitive compensatory dam- and
titled arbitrarily capriciously refused ages, to allow pain, any compensation adequate for Plaintiff suffering, time, humiliation and loss of con- contrary trary evidence, and uncontradicted of the Court. instructions “ allowing jury (4) Plain- action That expenses, special medical $35.00 tiff adequate compensatory refusing dam- to allow suffering, pain, humiliation and loss of ages for injuries, made the medical service time prejudice necessary, the result of inconsistent, *5 contrary caprice, and evidence and is the uncontradieted instructions of the Court.” plaintiff upon adjacent lived The and the defendant County. affrays, in Malheur Their two tracts of land they grapplings, from a termed stemmed dis- which rights. They upon, pute occurred over or near water separated properties. a the Near at road which to, irrigating hand was an ditch—the source their misunderstandings personal animosities. In the plaintiff grappling, first course suffered swore, so he which neck, a twisted necessitated the chiropractic physician. paid services of He days employment. and lost several from his latter $25 affray rolling struggle over, Before the second participants irrigation had taken the into the ditch. cooling quickly effect the water The ended the According plaintiff, matter. he suffered a in-the fractured rib second encounter and lost one employment. paid physician from his He month wages who treated fracture The $35. he injuries due to lost second encounter slightly amounted to more. $300 grapplings substantially The two were alike. In upon the defendant instance, each came the scene empty-handed, possessed but the a shovel removing irrigation which was dam he from the with preliminary In each after instance, some ditch. place, grabbed taken maneuvers had the defendant away struggle and then the shovel, threw ran its evenly parties The matched; course. each was lightweight. testimony, pages. The transcribed, covers 325 are addition, there several exhibits. Much of the of the trial was consumed time efforts of each parties prove not the he, other, entitled to the water ditch. upon the verdict claims that the first him and of action is for follows that claim
cause although argument that, an found with damages. his it failed to assess Beliance had him, (OKS says: 17.425), which §5-405, OCLA plaintiff in a verdict is found for the “When * * * *6 recovery money, jury an action for of the * * recovery; amount shall also assess the of reasoning, upon line it is claimed that that of Based judgment upon judge he entered erred the trial when upon was returned the first cause the verdict action. of upon cause of action is verdict the second reasoning. Snyder process of a different
attacked
Hall
1082,
194
243 P2d
and
Amermann, Jr.,
675,
Or
if
240 P2d
ruled that
a
Cornett,
Or
injury
plaintiff
personal
jury
in a
action
awards
damages,
special
it must also award
of his
amount
the
damages.
him general
It is claimed that the award
compensatory
of action of $1.00
cause
in the second
inadequate
only,
therefore
nominal
jury
plain-
that
sustained the
the fact
the
in view of
damages.
special
for
claim
tiff’s
resulting judg-
the verdict
the
In defense
argues
the verdict
was,
that
the defendant
ment,
Snyder
Railway,
cites
v. Portland
him and
for
effect,
673,
Experience notwithstanding that, shows the ef- judges jurors, see that forts of trial witnesses governing irregu- and all others conform to rules, occur. inIf, larities sometimes such instances, counsel losing party, upon observing departure for the from governing may remain rule, but, silent nevertheless, gain very irregularity later new trial fully he was informed when he chose which silence, adversary expense, put will the time his keep their dockets courts is needed which abreast subjected will be strain, of demand the loser cherry. get two bites at the will foregoing us convinces rule situations the kind now should control before us presenting irregularities important. Cases and in- coming frequently. us formalities verdicts are before previous our therefore, We see whether shall, decisions, are in discord, claims which the followed
435 employed itself. pattern a rule which commends and spend turning precedents, a few our we will to Before employed. generally rule which is with the moments Browning al., 280, 139 Ind et al. v. Smith et as follows: the rule stated 540, 37 NE is 293, * * “* every required one to take ‘It is proper rights advantage neglect time, of his at ” aas waiver.’ so he considered to do will 234, NY 23 Ball, 231, And in Cowenhoven NE York court said: New
“* * * voluntary relinquish- A is waiver right. implies of the an election It ment party some advantage dispense he which with some to might, upon; option, demanded or insisted at his have principle applied that, when it on the is objection object party right no is takes a to the whose to power proceedings of the court or to objec- all have waived hear the he is held to case, having Not defects. to formal and technical tion ought, permitted spoken will not be he he when speak when he would.” p § said: 14, 39, Am Jur, Trial, In 39 New * “* * recognized and fre it is also a well party litigant applied principle quently that a will or will be considered waived, to have be deemed constituting rely upon, being estopped matters as grounds trial which come to his atténtion of new knowledge during trial, the course of or of by the of reasonable should, he exercise knowledge, acquired diligence, he fails where have objection seek at the time and to have the to make one is not words, In other entitled cured. defects appears that he when it had knowl a new trial complains irregularity edge which he promptly to have the defect corrected seek did at the * * equally *. It is well case, litigant acquires party who knowl that a settled *9 edge part juror during of misconduct on aof opponent, of trial or of the course misconduct of his directly affecting juror, counsel, or court his a objection fails to make and thereto and seek a * * * remedy at the time, is deemed to waive ’’ right ground his to assert that as a for new trial. language just quoted applicable The states the rule irregularities many of during kinds to the that occur notwithstanding presiding judge’s trials prevent just paragraph quoted to them. efforts The something that if counsel indicates notices untoward timely judge, call it to the he must attention of may ruling he does he for if not meet with a that he objection. his waived following, p § taken from 64 CJ, Trial,
The 916, applicable directly irregular is to 1110, verdicts: “Objection irregularity informality or in a * * * rendition, verdict must be taken at its discharged, are before jection otherwise the ob have will be deemed to been waived. For example, of a verdict to object a failure to at the of time rendition * * * signature, want of or the addition of interest the amount of the ver regard dict, or error in the of a amount verdict general interest, return of or a verdict when a * * * requested, special general is a verdict or * * * separate on of verdict causes action, is irregularity. of a waiver A deemed failure to object dispose to a verdict which does not of all parties issues as to all the is waiver of defect. * * * objection irregularity should be ground, to set aside on that taken motion upon comes too late motion a new trial, or injured thereby appeal. party A who not on is can uncertainty complain of the verdict authority holding therein; but there defects complain granting can recovery, any theory an insufficient unwarranted ** *” case. says: Continuing, section the same claiming party should be that a verdict “A request make the reformed should clarified * * discharged, jury are before the says: § page volume, The same at * “* * objections jury’s answers Also, not made are waived when or failure to answer according discharged or, are before of the verdict. authorities, on the rendition some jury sent back have the Failure to make a motion to for answers or better may operate aas answers * * *” waiver. following Law and Tac- taken from Busch, *10 is Jury § 599: Trials, tics in improper verdict, is in returned, the as
“When defective, the matter should be form or otherwise promptly and, of the court called to the attention proper depending upon particular entry situation, the objection jury’s made and of the return as protested. a verdict object generally is held “A failure to to waive informality
any in the verdict.” practice the rule of For which excellent elucidation considering, Wigmore see on Evidence, are now we § 3d 2350. ed,
Evidently practice in the which is described the Corpus passages took from Busch and we Juris concurrently inception beginning with the had its Thayer, by jury, A for observe that Prelimi- we says, page nary on at 145: Evidence, Treatise preparing give in found, was sometimes “It jury judgment, was obscure that the verdict incomplete; judges questioned had the below not they enough. In such cases were resummoned them to the This was court banc ad certificandum. 438 1232, called the sees One and certificatio. 1290-1, one had caused
1237. who the purpose, being resummoned the asked what insufficiently questioned had been or had spoken obscurely, by merely repeating answered say wrong. verdict, their adversary replied and for a which he seems to is His obscure, verdict plain potest verdict non esse certificatio pocius judgment attincta; and asks set she [special] 1556, has it. In we read ‘Because the perfect, not full and verdict was sued jurors of assize make a certificate come fully again again examined; to be more who came ” made their verdict more certain.’ Among support the decisions which Busch cites in Railway Northern of his statement is Co. Pacific L 977, ed Urlin, 158 US SCt wherein speaking for the as, court, Mr. Shir unanimous Justice said: judgment “The contention that the was below was not
invalid because required signed foreman, a section of opinion, is, Montana in our Code without record discloses that when merit. The was the verdict request rendered, at of the defendant, polled by then and there the clerk, and was jurors said answered that the each of verdict as Whereupon read was theirs. moved judgment in accordance with said verdict; granted motion accordingly. ordered *11 objection request No was signed or made, be verdict should was then that the made by and we think that defendant, the court the below justified treating irregularity, in the if such was ’’ having been waived. were, it past turn the decisions of now this court We containing irregu- with concerned verdicts which departures from orthodox form. or larities 142 P the 79, 353, In 71 Or Moffitt, Schumacher declared: written Chief Justice decision, McBride, but the intent of irregular, “The verdict was in can deduced from the absence jury it, and, the rendition, at the time of its it any objection * * sufficient; was P was an Tracy, 216, 185 584, Or action Goyne at for had and insti money received, law which was of the court. The ver justice peace jury’s tuted in dict the in the read: above-entitled “We, action, find for the Before was plaintiff.” any judgment entered verdict, defendant action, who became when the cause reached respondent this court, to the rendition of objected in favor judgment for costs. The plaintiff, except objection overruled and justice entered favor the full amount of his demand, with costs. The $213.05, together defendant later action became sued (who respondent) thereupon out a writ of review. The circuit court sustained court, writ. our decision affirming said: an being
“This action for the recovery of money, law that shall required it assess recovery: amount of dict Section L.O.L. ver- The did conform question not to this statute and justice authority hence no gave to render it. The judgment upon justice should have caused to correct or have sent the jury out again: Section L.O.L.” court, of the circuit action remanded the court for further justice proceedings, the cause affirmed. in that case be observed that the verdict was It will no It afforded basis incomplete. determining had considered the amount whether *12 MO plaintiff.
which should be the awarded to It will also be observed that the defendant directed attention to incompleteness entry of the verdict before the judgment. Printing Industry
From Portland v. Banks, 150 following Or 46 P2d 554, 596, is taken: “When the verdict was first returned into court by jury by accepted and before it had been court, it read: jury, being ‘We, in the above case, first
duly empaneled truly try and sworn to well and plain- cause, find our verdict in favor of the against following tiff and named defendants: Handley, Moser, Gus W. W. T. B. Banks, Tom Sweeney, in the amount of $-claimed.’ “Thereupon the court instructed the by fixing amend its verdict the amount of the re- covery jury thereupon and the struck out the word ‘claimed’ and after the dollar mark inserted the figures ‘3798.01’, which was the total amount of thereupon on, the claim sued and the was dis- charged. by assigned This action the court is as error. ‘‘ Clearly, sought the verdict first to be returned into court was informal and insufficient. Our stat- Oregon provides: ute, 2-319, section Code 1930, ‘* * * If the verdict be informal of insufficient, may be corrected under the advice jury may again court, or the sent out.’ proper.” The action of the court, therefore, Snyder Railway, Light v. Portland & Co., Power 215 P Or action for an based upon charges negligence injury in which the plaintiff’s property plaintiff’s was substantial. The negligent averments the defendant was upon and the denied evidence the issue inwas conflict. returned verdict for the the circuit court entered sum $1.00 moved for a new Later the judgment. office, clerk’s record our
and, as shown of. “Misconduct upon part assigned grounds: *13 only in awarding plaintiff $1.00 * * * is the law.” The against original The verdict that made any objec- record fails to disclose announced. It likewise tion to the verdict when was indicate he that the cause be requested fails to counsel at time remanded to the Plaintiff’s no jury. when re- denied that he was the verdict was present and this court believed that the turned, evidently appeal the court to do more than construe required nothing verdict, the verdict. it ruled: “This construing ** * a de- virtually verdict verdict fendant. it the one dollar more By given than he to.” The was entitled decision reviewed in many of other courts which like opinions interpreted similar manner verdicts. decision Snyder to be appears susceptible that a claimant to un-
reasonably interpretation who meets with a verdict for one liquidated damages wishes dollar, and who later to the verdict argue must avail before irregular ambiguous, himself, the jury, of authorized discharge procedure OCLA, If he does not by 5-319, previously quoted. § so, do but withholds his until he moves for objections trial, him con- new issues will be presented fined to a construction of the verdict. irregular Kanzler, v.
Reynolds 269 P was a Or in mandamus which was instituted in this proceeding Kanzler, court the Honorable Jacob against judge of circuit court. The who instituted plaintiffs were a husband and the name of wife, by proceeding Minerva whom another Reynolds, against James couple, tbe name of Richard and Landis, Mabelle recovery had an filed action in the circuit court for the money. of The facts which we will recount are taken, part, opinion (Reynolds in Kanzler) from our v. and, part, from the record in our clerk’s office. In the Reynolds, circuit court case of Landis re- Judge turned Kanzler refused judgment. juncture Reynoldses enter At that proceeding filed the this court for a writ man- damus which resulted in the decision now under review. Returning for a moment to the action in the circuit (Landis Reynolds), following: (1) court we find the complaint averred two causes of action for dam- ages unliquidated sums $5,095.63 and (2) $7,133.00; put the defendants filed an answer which complaint’s in issue the two causes action and alleged aggregating (3) five counterclaims $14,653.16; unliqui- all but counterclaims were $693.16 *14 (4) reply put dated amounts; in issue all of the (5) assigned Judge counterclaims; the cause was (6) Kanzler for trial; the evidence all of the (7) seven demands was in conflict; at the conclusion jury trial, of the returned verdicts, two one of which read as follows: jury, duly empaneled “We, and sworn to
try hereby the issues the above entitled case, do follows, find as to-wit: plaintiffs’ “On first cause of action find we plaintiffs,
that Richard P. Landis and Mabelle E. Landis, are entitled to recover of and from the de- Reynolds Rey- A. fendants, and James Minerva D. nolds, in the sum of $2,854.49. plaintiffs’ second cause of action find “On we plaintiffs, Richard P. Landis and E. that Landis, Mabelle and are entitled to recover of from the de- Reynolds Rey- fendants, nolds, A. James and Minerva D. damages in sum of None.” $ follows: The other verdict jury, empaneled try en- the above
“We, action, for the defendants in the sum titled find $2,975.” journal by Judge Kanzler,
A order entered in the reciting had returned the verdicts after that just quoted, continued follows: judge open presiding then read court
“which the parties presence of for and the counsel both jury; being in and the court doubt as to the effect writings retired to the chambers of said said sides; counsel for both that after con- court with sidering said matters chambers it was decided by because said verdicts could not received the court that be conflicting untelligible the same were and thereupon judge [sic] returned and to the bench such and declared that ceived verdicts could not be re- and that there had a mistrial been discharged jury, pre- case and but and retained any exception nor verdicts, said taken served defendants’ counsel thereto; that the polled nor was the after asked, said ver- writings rep- had read, dicts been whether the said juror resented their verdict or verdicts, but no expressed disagreement with said verdicts when read, all, same were or at there was no re- quest by asked whether said nor was there counsel on either side that the writings their were verdicts, any objection made at time any question, because of failure to ask such only objection made to said verdicts at that time being they conflicting untelligible day [sic]; that thereafter on the same a writ- ten motion was filed defendants for a on said defendants verdicts the difference between the amounts set forth therein as afore- *15 * * said Judge Kanzler denied
Later, the defendants’ motion entry judgment of in their for the favor. At the same time lie “confirmed” the “declaration court of the mistrial” and ordered that “a new ’’ hereby granted herein. by Judge
It will be seen from the order entered Reynoldses Kanzler that the were satisfied with the entry judgment upon verdicts and moved for the of them their favor. When in their motion was denied, they proceeding filed in this court the mandamus reviewing. Judge which we are now It named Kanzler referring and, defendant, to the verdicts, demanded that he “enter a thereon in favor of the against plaintiffs defendants in said cause and in therein the sum of the difference between the respectively, amounts set out said two verdicts, Twenty the sum of to-wit, One Hundred and 51/100 * * * you Dollars or that show cause to this court [*] [*] [5] [*] ?
The above shows that when the verdicts were read, parties present. counsel for all While the judge still in the box, and counsel retired to plaintiffs’ [Landis’] If chambers. counsel at that time objected filing verdict, moved that the any way cause be remanded to the or invoked in procedure by § rendered available 5-319, OCLA, fails to disclose fact. the order If the verdict was, conflicting unintelligible, (cid:127)§ supra, fact, 5-319, simple inexpensive overcoming afforded a means deficiency. resorting lieu of to that means, a mistrial was declared. opinion this court, referred findings,
verdicts as declared: findings “When recorded- above are read light pleadings, there is un neither certainty, ambiguity nor indefiniteness therein.
445 Each party litigation certain alleged canses of action against other; and these verdicts represent intention expressed the jury. * * * On this PI. point, Ency. & Pr. 915, states if, from the data in contained the findings the amount returned, recoverable is determinable a mere mathematical calculation, the findings are sufficient.”
Then the decision quoted from the last men- authority tioned the following:
“In the of a construction verdict, the inclination of the court will be in always favor of its validity, no matter what requisite bemay apparently lacking, verdict will supported from if, the terms and the finding contents of the record, material can enough be gathered for the formation aof verdict in all complete its essential details.” the writ, In we said: allowing
“The trial court is hereby directed to record the verdicts and pronounce judgment thereon.” opinion The deemed that the only question sub- mitted for decision was whether or not the jury had its with expressed findings sufficient clarity. It found jury’s findings—that is, its verdict—was understandable. appraising significance of that is useful return to holding, the verdict upon the second cause of action which read: “We find that * * * are plaintiffs entitled to recover of and from * * * ” the defendants the sum of None. $ The second of action cause prayed for the recovery of $7,133. By comparing just with quoted the one returned the case at bar upon the first it will action, cause of be noticed that there is no material difference them. between Sanders,
McLean v.
139 Or
trial over which McLean by young years case instituted nineteen woman, age, against police court three the district officers compensatory punitive damages upon to recover charge imprisonment. of false A in the district in her a verdict favor the sums court returned sought. Upon appeal, the returned a verdict which read: jury duly try impanelled the above
“We, *17 plaintiff cause, find entitled our verdict for the plaintiff’s against the and assess defendants, damages general and fur- sum no dollars damages against punitive defendants assess ther of no dollars.” in the sum Judge verdict be filed. directed that the Kanzler finding Treating he entered defendants, a for the it as nothing. plaintiff judgment recover On the that the day plaintiff for a new trial. The the moved same plaintiff appealed. the denied and motion was opinion case does not in the McLean indicate present plaintiff counsel for the was or not whether returned. The brief filed verdict the was when jury “The was dis- stated: in this court her counsel opportunity rendering charged and no its verdict after corrected.” The brief have verdict afforded was challenge respondent did not state- the filed nothing An examination to it. adverse and said ment including transcrip- office, clerk’s file in the the arguments delivered when which were the oral tion of that counsel presented court, shows the case was “In this case both plaintiff court: told this for jury returned in their offices when counsel jury notify that the judge them did and the permitted discharged counsel for the de- Counsel defendants.” enter challenge fendants did not that statement. The deci- Department dissenting, sion of I, with one member held that error was committed when verdict was deemed in favor of the defendants and also when the expressed motion new trial was denied. It analogous Goyne belief that the situation was Tracy in which the verdict was: “We, plaintiff.” above entitled action, find for the It said: gist imprisonment “The of an action for false damage. damage, is there Unless the action cannot be maintained. The verdict as rendered is plaintiff neither for the If the tained nominal nor for the defendants. had found that the had sus- damages only, that would have been having sufficient, but found, effect, as the ver- imprisonment dict shows, that was unlawful, bound, it was plaintiff under statute, to find that - had sustained at nominal least # # impossible “It to ascertain from this whether intended to find for the uncertainty or for the defendants. Because of its respect, support in this it is not sufficient to valid judgment.” *18 plaintiff the in that denied her Since case was statu- tory right present to be when the verdict was received, statutory right her likewise move that the jury, cause be remanded to the in the event she be- irregular, that lieved the verdict was she had not Obviously, rights. party either of a waived those who rights position is in a chal- has not waived those lenge prematurely received which is not free ambiguity. from
Although author of Rand was the Mr. Justice both Snyder decisions, and the McLean the McLean Snyder opinion did not mention the one entered 448 seen,
case. As we have there was no contention in the case Snyder that and his Snyder counsel denied before the discharge of the opportunity, to chal- jury, the verdict or that lenge move cause be remanded fact. It to the triers of but presented nothing an issue case, verdict construction.. the McLean the plain- denied, tiff action by premature was of Judge Kanzler, to move for a opportunity remand of so that a verdict from case free irregulari- be returned. two cases that present ties would and that fact distinction, material accounts possibly omission of the McLean decision to for the mention the other. Miller, v.
Klein P2d an Or 1103, was out of unliquidated which arose action The defendant of automobiles. filed a collision read as “We, The verdict follows: counterclaim. * * assess *, find his dam plaintiff no dollars.” The trial judge, at the sum ages $ defendant, for the sustained after entering for a new trial. His by made motion this by affirmed court but by in so doing action Mc after justice, referring One a divided opinion. Sanders, stated: Lean * * “* willing I should even accede to if doing so would overruling precedent, action the decision making result of this however, majority Since, majority. the law laid following favor is in court * * I concur Sanders, McLean down opinion.” the majority result reached out dissenting pointed opinion His dissented. Another counsel for received, the verdict that when no and that present defendant were and the should retire was made motion *19 express findings any way. its other From his dis appears request sent, it a when was made that polled, polling be occurred. We see from just appeal circumstances related that the Klein presented a different situation from the one in the McLean present case. Unlike the latter, counsel were when the Notwithstanding returned its verdict. present the fact that counsel were when the verdict majority opinion, Klein case was received, the which was written Mr. Justice Kelly, did not men tion that fact. it Likewise, § did not take notice of 5- supra, which, as we have seen, reads:
“If the verdict be informal or insufficient, it may be corrected under the advice of jury may again court, or the sent out.” apart quoting briefly Justice from from Mc Kelly, supra, citing Goyne Lean v. Tracy, Sanders, supra, depended upon passage which he took from Jury Abbott’s Civil Trials and decisions cited in the passage. quotation footnote to the declares that specifically a verdict must state the amount awarded. employed by It did not concern itself with methods correcting, discharge jury, courts for before the irregular § and informal verdicts. 399 of the fifth edition of Abbott, is said: verdict,
“Before a whether oral or sealed, is re- corded, and the have been dismissed from their relation as such to the case, the court has power require them to reconsider their verdict, merely correct mistake form or make that plain ing, supply obscure, which is but to what is want- they agree.” substance, or alter it in if so principle The Klein decision made no reference to that any phase of it. It cited a Minnesota decision which *20 reading, construed a verdict “in the sum of None Reynolds supra, overlooked Kanzler, but v. in which, this seen, we have court was confronted awith ver expressed substantially dict the same manner (“Damages None”). in the sum of And, likewise, $ Snyder Railway, Light overlooked v. Portland & Power Co., in the which verdict was for the sum of Jus $1.00. Reynolds Kelly’s tice decision neither the mentioned Snyder Concerning nor Minnesota decision. the opinion by Mr. Kelly verdict, Justice written said: “This verdict was construed the Minnesota for the defendant.” It court to be verdict will'be Reynolds dealing Kanzler, in with recalled v. case, this in that held that verdict before court nothing upon cause of ac was entitled “damages jury gave him the sum for tion which Snyder construing decision, of None.” $ however, “This vir verdict, verdict, said: $1.00 tually Klein defendant.” Yet the for referring opinion, to the Minnesota after decision, said: adopt the case last cited would doctrine of “To overruling v. Sanders McLean the effect
have pre Tracy, supra, Goyne are not which we pared to do.” of our
Plainly, oblivious written Klein decision was pertinent holdings. note of to take failed It own pen of a from our own precedents came previous compiled No statutory laws. in our enactment persuasive effect is entitled when a court decision disturbing displays infirmities. charges supra, based Cornett, Hall negli- a result that, as negligence and averments injury. The personal plaintiff sustained gence, the complaint prayed damages, partly special for partly compensatory. After the had retired deliberation it returned to the courtroom. We now turn exceptions to the bill of on file in our clerk’s office gives following: us “THE COURT: Let the record show that the present in this case now in the court- brought room. The returned and into court following verdict: ‘In the Circuit Court of the Oregon Douglas County. Mary State of Hall, plaintiff, Roger vs. Cornett and Alvin N Cornett, defendants. Case No.-, Verdict. We, the duly empanelled try and sworn to the above entitled find our action, verdict in favor of the *21 against and against eral the defendants and assess gen- in the sum defendants of $1.00, as damages, and the further sum of $1006.40 special damages. day Dated 2nd this of June, 1950. Signed jury polled Gus foreman.’ Peret, The Cpurt ‘yes’. and all voted The refused to receive jury jury the verdict and sent the back to the room to await further instructions. Let the record show attorney that left for Calkins, for Windsor the defendants, Eugene Eugene and is now in and you available. Mr. if Geddes, wish to be heard on you I will hear verdict, this now. “MR. GEDDES: Your Yes, Honor. It is the plaintiff position this that matter contrary, not be but, should received jury should be sent back with instructions to re- * * general damages amount of consider the according proceeded, Geddes, he to As Mr. the bill of quoting, exceptions from which we have been called supra, by § 5-319, attention to and declared that virtue authority it “the does have to instruct of Court jury correct the verdict and eliminate the insuffici- to Shortly, ency.” following indicated ex- as is
cerpt exceptions, judge taken from the bill of the trial ruled: my “THE COURT: Well, view of the situation parties
is has either found that both negligent that, least, at guilty contributory negligence ver that the substantially is a dict verdict for the defendants general damages far so evidence are concerned. The in the case that this woman was in shows weight hospital for ten weeks with on her leg to reduce and if the fracture she is entitled to damages. anything, she entitled to substantial is They given They haven’t it to her verdict. this damages. attempted give special her her have ought very and I think it The verdict is inconsistent agree I hand, other can’t not to be received. On the general for a verdict The amount is is only My damages. of the situation nominal. view brought that the should is inconsistent; told that the verdict is back and *# returns) (Jury A back. *. Call parts. into two this sort is divided case of question consideration of first liability question question for of fact that is your sub under the evidence determination the instructions as to the law and under mitted here your you by given finding then make You first the Court. you liability explained and I then negligence, con reference law with the rules negligence the road and tributory the rules According ease. to this matters all of those *22 you brought you here, in have have verdict which damages. general Now, sum of allowed the $1.00 in case, this to recover is entitled the if or, amount substantial recover a entitled she is an amount such to recover is entitled rather, she reasonably compensate for dam her as would in this The evidence ages she has sustained. which woman that this contradiction, shows, without case hospital leg in the and was a broken was, received agree you with have will I think ten weeks. for compensate me that wouldn’t her for $1.00 that. you if in So, her favor, which, course, find question your entirely, you consideration must reasonably compensate find an amount which will damage. you anything her for that Before can allow special damages, there must be a verdict for general damages in more than a nominal amount. excerpts excep- The above taken from the bill of tions indicate the manner which counsel and the judge employed procedure which stems from supra. § 5-319,
After the had been reinstructed it returned upon judgment with a verdict which was entered. a motion Later, made for a new trial appealed. sustained was and the defendant For rea- sons which are immaterial to the issues now before us, our decision set aside second verdict and vacated upon Although regularity based it. procedure judge taken the trial in connection possibly germane the first verdict with appeal, procedure it is clear that that met with no disapproval by part: this court. Our decision said may
“It be that this court will reconsider the rul- ing light in McLean and Klein cases arguments presented two dissents when requiring such arises.” case reconsideration Snyder supra, presented Amermann, issues v. present related to those in the and the Hall somewhat cases, followed the decision the latter. Cornett foregoing completes review of our prior opinions. that all of with them, It will be observed exception Miller, Klein can be reconciled op principle if afforded counsel was (1) present portunity re- to be when the *23 (2) turned, and to examine the verdict before the discharged, challenge was but failed the latter’s regularity clarity phraseology, or the of its the court gowill no further than verdict; is, to construe the that meaning. to determine short, its court will be lieve that its function is one confined which performed Snyder Railway, Light was Portland & Objections urge irregularities supra. Co., Power which proper and lack of form will be treated as waived un they discharged. less voiced before exception Miller, with the of Klein v. decisions, Our procedure prescribed supra, § 5-319, conform to the always they acknowledge although do not that they employed originated in that rule enact which just indicated, the manner ment. When reconciled procedure given simple § and a rule of to 5-319 is effect easily employed. rule mini can be had which is Any re rule which obviates needless mizes retrials. justice of the administration more renders trials expensive. The rule which prompt we have and less previous our decisions does reward from distilled party sits he who mute when should trial new with spoken. have expressly previous decisions hold that our of
None informally irregular up speak or an when must counsel but, since this court has expressed returned, is attorney in a be- who an held often timely irregularity must make apprised of an comes complain, right know no his we of objection or lose permitting inert when he him to sit observes reason informality He verdict. irregularity an an duty prevent and owes the court an officer have the deci- seen, As we error. commission upon passed sim- verdicts courts other sions first returned cause one which ilar objection action demanded that counsel make his discharge jury, before the under threat ambiguous he otherwise satisfied with the or in- *24 formally expressed verdict.
We are satisfied that when counsel has ade quate opportunity, discharge jury, before the of the himself familiarize jection with the verdict, but no ob makes filing of the verdict or moves that the jury, cause be remanded to the he cannot later, a upon motion for a new assail trial, the verdict ground irregular, ambiguous it is or informal. employed procedure His failure to have warranted by § supra, upon part 5-319, a constitutes waiver his objections of all which could have been made on ac irregularity, informality ambiguity count of in the discharge jury, verdict. After the there remains nothing except to be done to construe the verdict. To supra, the extent that Klein v. Miller, is out of har mony just expressed, with the conclusions it is over ruled. come
We now to construction of the verdict which returned in instant was action. In constru- ing Snyder it, we deem well to return to v. Portland Railway, Light gleaned & Power Co. So far as can be objections from the no record, were made to the re- ception of the verdict in that case and, therefore, this ascertaining itself court confined task of jury’s meaning. held that It verdict, only, plaintiff in the sum “was vir- $1.00 By tually for the defendant. it the a verdict given more than he was entitled to.” The $1.00 opinion interpretation set forth reasons by authority cogent they fortified and well so persuaded courts. other have Reynolds supra, upon v. Kanzler, the verdict virtually counterpart
second cause of action was the verdict returned in at the case bar the first “damages pertinent part cause of action. The read: the sum of This None”. court did not $ hesitate to finding construe those words as for the defendant. foregoing Snyder Prom the we see both v. Railway, Light supra, Co., Portland & Power Reynolds supra, Kanzler, construed as verdicts such upon the the one returned first cause action in the virtually case at bar for the defendant. as Snyder holding that the Portland Rail We said way, Light supra, accepted Co., & Power has been shall take notice of sound other courts. We now by the of the decisions which were influenced three Snyder opinion. *25 Co., Fork Cub Coal 287
Fairmount Glass Works v. 252, held that it not 439, L 53 S Ct 474, 77 ed US deny a the new trial when a trial court error for Brandéis, a nominal verdict. Mr. Justice returned reasoning said: 'Court, for the * *
“ * plaintiffs were not entitled to a The voluminous; The evidence was verdict. directed conflicting. in- least, at on issues The some and, liability the contested issues left structions may represented jury. have The verdict the the finding issues; those rea- defendant on for the damages may have of nominal son for the award the costs to be taxed wished that the been defendant did com- against The defendant. the plain of the verdict.” phrase- remarkably language reminiscent is Snyder After the cast. decision is
ology the in which appears third time where “issues” word calling attention excerpt a numeral is there above among Snyder a footnote which cites, decisions, other Railway, Light v. Portland & Power Co.
Snyder Railway, Light Portland Co., v. & Power supra, Taylor Virginia turned the scales in Metal Corp., Supp Products 111 Fed 321. In that case, plaintiff sought judgment against the defendant for upon charges sum of $100,000 of libel. The answer charges aggre denied gating a counterclaim submitted $97,030.95. The returned a verdict for the upon plaintiff’s against defendant claim it and, likewise, the defendant in sum of $1.00 counterclaim. The decision construed the ver $1.00 Snyder dict in the same manner as did v. Portland Railway, Light Power Co., & the verdict which was doing, before us in that In case. so the federal court quoted extensively Snyder opinion from the and from those of two other courts which had been influenced Snyder opinion. Haney v. Cheatham, 8 2d Wash P2d Snyder Railway, the court cited Portland Light authority following & Power Co. as sole for principle the court embraced: “Appellant position complain inis no prejudiced accept
he was court’s refusal to appel- the second verdict for one dollar in favor respondents. lant that verdict is in fact for plaintiff dollar in A verdict in a one favor of the injury personal action, when knows sustained that the in excess of sum, verdict for the defendant; and is merely an artifice to release the from the *26 of costs of the action.” burden Railway, Light Snyder v. Portland & Power Co. many times this cited court. Hall Cor been has extensively supra, quoted it. are nett, We satis .from correctly fied that it decided.
Every party right to a trial has a to a only just ir is free from verdict which not but which is regularities ambiguities. many in trial But rights through fingers slip of those who do not object something perfect tendered. when than is less right proper form The a verdict couched ambiguity through may from lost free is one which be protest presented is failure to when verdict fails to conform to standard. resort to further Without analysis, express the conviction that the verdict we upon must one for the first cause action be deemed plaintiff, by remaining and that defendant, right present received, waived silent when was his upon the motion for a new trial the contentions which predicated. circuit court erred it sustained The when granted part plaintiff’s motion new o.f upon of action. the first cause upon the verdict second come now to cause We copy appears previous para- A of it in a of action. graph. have mentioned the fact that when the We parties returned, counsel for both verdict was objected filing present of the and that neither neither moved that Likewise, verdict. clarify the verdict. It to correct is the back
sent plaintiff, who manifests dissatis- defendant, not the verdict. faction with quotes preceding paragraph the motion
A plaintiff’s sole attack makes trial which new opening paragraph motion the verdict. charge: following “misconduct of the submits general failing substantial dam- to award ages.”
The an divulged is purported by .misconduct affidavit filed the motion fact, is plaintiff. no assumed misconduct accompanied affidavit. The consisted of fact that did nothing jury except not award to the “substantial dam- general plaintiff The does not contend that ages.” jury plaintiff defied the court’s and instructions, likewise does not that contend is out of with an in- harmony evidence which the could rea- terpretation have taken. Let for a sonably us moment pause upon charge—“failing to award the plaintiff’s plain- ’’ tiff general substantial The damages. plaintiff makes no about the award of complaint He special damages. he swore that who paid physician attended to his rib he $35, fractured lost a month’s wages ‘‘ ’’ that his rate of pay was week take per home pay. $75 him awarded compensatory $1.00 damages, him it no than gave because more that he resorts to “misconduct”. charge 5-802, Section OCLA (OES 17.610) says: “A former judgment may be set aside and a on the motion granted new party ag- for causes any following grieved materially the substantial of such affecting rights party: “Misconduct [*] # # of the jury; [*] * that the
It is wanted the plain more than It considered have no demand every $37. and, taking hand, he made its an pen wrote the form of the verdict which swers plaintiff’s had counsel After prepared. heading Compensa it wrote That was Damages its answer tory $1.00. After the compensatory damages. his plea heading it wrote and after Damages $1.00, Punitive the heading Special Damages impossible It wrote is $85. jury gave misunderstand tbe answers which the plaintiff’s damages. demand for are satisfied that We when the verdict read the counsel his fully him understood wanted to recover $37, and no more.
By reverting to motion new trial, which copied preceding paragraph, in a it will be seen that *28 jury’s terming in addition motion, award plaintiff only compensatory damages to the of $1.00 jury’s as “misconduct”, refers to the action in also making “arbitrary, capri- that modest as award and against the uncontradicted cious, evidence and con- trary Continuing, to the instructions of the Court.” the motion for trial claims that the award of new only compensatory damages following the award $1.00 expenses” medical of “for was “inconsistent, $35 prejudice caprice, result of and and as con- trary evidence to the uncontradicted and instructions grounds have all of the We now stated Court.” upon the motion for a new was based. There proceeding, In are no others. we will all have of the charges upon All in mind. of them are based the same jury; plaintiff that is, of the award to the action its compensatory damages. only $1.00 the verdict was returned with its When award of damages, general only and his counsel $1.00 ample opportunity accorded examine the ver- acquainting After themselves with the verdict dict. judge’s answering inquiry “no” to the trial they polled, they wished the did not to whether filing object the verdict to the or move that jury. they In short, be recommitted re- cause they later, silent. It clear when mained moved they no had information trial, new more about silently they the verdict and its terms than when saw jury discharged. the verdict received Bruening, Mitchell v. 9 P2d this court 811, Or judge affirmed an order of the trial which overruled alleged a motion for a new trial which was based jury. misconduct The decision said: “ * * * knowing attorney for defendant, alleged ought of the taken the misconduct, to have proper steps immediately upon learning of the delinquency jurors named in his affidavit.” quote courts Other take the same view. We the fol- lowing p § from 66 CJS, New Trial, 189: jurors persons “The misconduct of or of other jurors affecting ordinarily ground is waived as setting granting aside verdict and a new trial party unless the unsuccessful or his counsel, who knowledge
had of the misconduct before the ver- called the dict, asked for attention of the court thereto and * * proper relief *.” seen, As we have and his counsel had com- plete knowledge of the so-called “misconduct” before *29 jury discharged, the was but maintained their silence. plaintiff’s
The claim of misconduct, as the brief upon indicates, is based an himby inference drawn jury that either misunderstood the instructions given judge them misapplied the trial them. it that We deem manifest neither of those alternatives, if occurred, constituted misconduct under our statute authorizing judges grant to (§5-802, new trials OCLA). any plaintiff At rate, objection made no when the verdict was returned. dispose
The above suffices to charge purported misconduct. willWe now consider the other charges. quoted We have the motion and have sum- charges. say
marized its We think it is fair to that upon relies a contention that when the special damages him awarded it was bound $35 give purported pain him a substantial amount for suffering. supra, cites and He Hall v. Cornett, and Snyder supra. Amermann, Jr., upon
It is clear that the verdict the second cause proceeding action is not void. In shall of stantly we con bear mind the fact that this ease is not a void concerned with verdict. disposing challenge of the contentions which upon was returned verdict which the first cause principles govern we stated of law which action,
irregularities principles Those informalities. are applicable equally to the verdict which was returned upon second cause action, we therefore, repeat them. will not from we have that see what said the verdict
We cause of action was similar to the second Cornett, which was returned Hall v. first verdict supra. in this case returned, When the pertaining second cause of situation action counterpart that which occurred when the was a into court filed with its first in Hall Cornett upon observing in this ease, verdict. special damages him awarded $35 that damages, compensatory only could have availed $1.00 procedure employed which was himself Douglas County when Hall v. Cornett Court Circuit pending court; is, he could in that have receipt objected of the verdict and could have remanded to the the cause be with moved v. Glidden, 84 Me instructions. Grotton additional an illustration from another state 24 A
463 employed Cornett, procedure in Hall v. which upon a supra. verdict re was based That decision jury battery after case in an assault and turned judge irregular trial an returned had judgment jury. The the cause recommitted to had upon affirmed. In Lawson verdict was the corrected judge, Sitgraves, Ky the trial SW2d 545, 186 v. observing upon for no more than the verdict was expenses, recommitted the the amount of medical appropriate There cause to the with instructions. . upon proper a verdict was returned.
entered it was affirmed. But the not take did the course which was employed supra, in Hall v. Cornett, Glidden, Grotton v. Sitgraves, supra, supra. Lawson Likewise, although charges a his motion for trial new with he did not take misconduct, the course which by Bruening, supra. exacted Mitchell v. To the con- trary, kept lips tightly permitted he his sealed and judge discharge the trial after he had filing days ordered the the verdict. Some later, spoke up. for the first time Then he filed charged a for a motion new with misconduct.
Plainly, litigant present who wishes to by appeal object promptly contentions offered this must irregularity right he observes or forfeit when his object. Bights object which have been waived be reclaimed revived resort cannot to motion litigant A for a new trial. who meets with a verdict as the one which was returned this such case or such as those which were with verdicts returned in Railway, Light Snyder supra, Co., v. Portland &Power supra, Cornett, should not and Hall have choice employ procedure supra, § 5-319, offered or, *31 keep on other still hand, and later move for a new trial. plaintiff,
We are satisfied that when the after acquainting himself objec with the verdict, made no receipt tions to its and no motion that the cause be jury, objections recommitted to the he waived the now analysis. Having they under waived them, were un available as the basis for a motion for a new trial. The motion should, therefore, have been denied. Error was committed when it was sustained.
Contrary § to the mandate of Art. VII, 3, Con Oregon, plaintiff stitution of asks us to re-examine justified. the facts and find that the verdict cannot system is the The fundamental fact-finder in our jurisprudence. of Van Lom v. Schneiderman, 187 Or power ALR 210 P2d 11 2d 89, 461, 1195. We have no to re-examine its award. granting
We conclude that the order a new trial was unwarranted and was entered in error. The order is reversed and vacated.
Latottrette, C.J., Tooze and Perry, JJ., concur. concurs in the result. J., Warner, dissenting. LUSK, J., from decision
I dissent
of the court as authority
first
verdict on the
cause
action on the
159
Miller,
Klein v.
Or
77 P2d
27,
1103,
116 ALR
(1938);
v. Sanders,
McLean
139 Or
also assess the amount of ORS 17.425. recently prin 1952,indeed,
As
as
we reaffirmed
Snyder
ciple
194
Amermann,
675,
of these cases in
Or
when
said:
1082,
243 P2d
we
679,
* *
* * *
“
*
Plaintiff’,
find for
‘We
standing
simply means
other
alone,
issues,
that the
damages,
plain-
have been resolved in favor of
than
not be considered as a verdict for
tiff, but could
legal
general damages
it would
have
because
’’
efficacy, lacking
damage finding.
in a
and McLean cases we said
Klein
verr
now under
will not
as that
diet such
consideration
judgment
uncertainty;
support
of
because
its
a valid
impossible
ascertain from the
verdict
it was
find for
intended to
whether
for the
McLean reversed
the defendant.
say,
upon the verdict. That is to
entered
defendant
very
doing
was reversed
Court
the Circuit
thing
majority
say
which the
of this court now
should
have
done in
been
this case. Klein affirmed an order
awarding
(the only
a new trial. Klein
one
expressly overruled)
of
three
now
these
decisions
said
have been
“written oblivious
our
own de
cisions”. The record is not
harmonious
that asser
tion. McLean was
and
heard
decided in 1932
a de
partment of the court. Klein was heard and decided in
appel
1938,
case,
banc in
and
in that
brief
(defendant
Court),
lant
an
the Circuit
effort was
distinguish
made to
McLean. The court
also
was
asked
question
to re-examine the
decided in McLean, and the
dissenting opinion Mr.
Justice Rossmah in that case,
Snyder
Ry., Light
cites
Portland
& Power
Co.,
673,
887,
215 P
was commended
Or
counsel
the favorable consideration
the court. In the Klein
again
case Mr. Justice Rossman
dissented, and ex
ability
pressed
learning precisely
with
the same
majority
expounds
he
views which
now
for the
in this
dissenting opinion
Reynolds
case. The
cites
v. Kanz
Snyder
Ry.,
ler,
269 P
126 Or
v. Portland
Light
supra,
authority
overturning
Co.,
& Power
dissenting
had theretofore been determined. The
what
opinion
also calls attention to
fact that counsel present
when
returned
the Klein
polled,
objection
case, and that the
no
thereby “plaintiff
and that
verdict,
was made
*33
right
any
in
waived his
to a verdict couched
other
form.”
I therefore, that Klein by eyes open the its and decided court with after there pressed only by upon by had not it, counsel but been very arguments a and authori- court, member the today’s employed decision, sustain and that ties now announced Klein and in McLean and in the doctrine in
G-oyne deliberately at, of arrived state, the law this is rejection represents of a of the views deliberate and majority This court has no means this case. ques position upon this been it has taken alone in large contrary, and has been one of a tion. On company. published is in 116 Klein v. Miller excellent Eeports an annotation commenc American Law with upon following subject: ing p. 828, at “Verdict upon party his cause of action or finds for which money judgment, does not but counterclaim which recovery, in this re amount of or is indefinite state affirmatively gard, entitled states that he is or which p. of ALE state no amount.” At 829 the editors subject that a verdict such as is described “is the annotation one on which a valid not can de entered”, and that statement are cited twenty-nine jurisdictions country from in this cisions including Goyne England, Miller, Klein v. from Tracy v. The decisions cited and McLean v. Sanders. support the statement of the editors. In these circum might admonition court heed stances well Ry., Mr. L. & in Wallace Portland Justice McBride as a Co., P. 103 Or P 147: “Courts should sweep away precedent long rule be reluctant standing.” supra, majority,
Reynolds Kanzler, cited point. question at all there was one of found for of two verdicts, construction plaintiffs cause of on their first action assessed sum, at certain the other which their larger in a on counterclaim found for the defendants together, held ver construed that, sum. The court to recover that defendants were entitled meant dicts sums, and between the two stated difference applicable from contained was, “if, rule the data *34 468 findings returned, the amount recoverable is by mere
determinable a mathematical calculation, findings are sufficient.” plaintiff’s
There in was also that case a verdict on second cause of action which read: plaintiffs’
“On second cause of action we find plaintiffs, Richard P. Landis and E. Mabelle Landis, are entitled to of recover and from the de- Reynolds Rey- fendants, nolds, A. James and Minerva D. in the sum of None.” $ question validity the construction of this verdict either was not mentioned in the briefs of opinion counsel or of the court. It differs mark- edly dispute from the here verdict because it does purport plaintiffs be a verdict for the and con- finding plaintiffs. in favor tains no A verdict nothing plaintiff is entitled to recover is on its jury, verdict. But this face a case the defendant’s verdict, their found in favor of the damages. him It is then allowed no that kind of verdict denounces and which which our statute this court has judgment. uncertain be the basis of a too held opinion given of the court’s over Much to an party attempt right that a show waives his to com- irregular object failing plain an before discharged. jury is Were this a case in which the for a had denied the motion trial court new and the appealed, question might a had different appeal presented. an But to this based court, on the a a new a trial, of motion is on denial different appeal granting footing from an from an order such many held that motion. We have times the trial a court to set aside has discretion order new prejudicial notwithstanding error failure seasonably matter to call the counsel attention
469
ruling.
Haight,
Neal v.
187
the court and obtain
Browning,
Lyons v.
170 Or
P2d 1197;
13, 32,
Or
Hale,
Timmins v.
Or
Although is judges general textwriters and with statements significant respecting it is that not waiver, rule of applies single has been cited which decision considering. are such as we to a verdict now rule fifty none of more than cases cited in the annota- tion in 116 ALE which I have referred the sub- ject of waiver so much as mentioned. Schumacher v. majority 142 P Moffitt, Or cited in opinion, point. is not in That case anwas action performed. recover balance due for labor The ver- prayed dict “as for in his com- plaint”. entered a court amount prayed appeal respect and on for, this court said with to the verdict: irregular, “The verdict was but the intent of jury can deduced it, from and, absence any objection at the time of its rendition, * * *.” sufficient
That, however, was which the did recovery”, “assess the amount of as our statute re- quires, though in an unconventional manner, *36 there jury Entry no could be doubt about what the intended. judgment act, thereon was not an unauthorized and entirely proper party hold so it was to that the had any objection receiving by waived the verdict his Ky Meter, silence. But v. Van Wall 311 198, 223 point. ALR2d a 734, 272, 20 case in It SW2d was an damages personal injuries action to recover for in general which a verdict for the for $98, the testimony expended amount, showed, exact the he that violating treatment, for medical to be held bad as of the court. A the instructions entered on appellee, the verdict was reversed. The defendant in language opinion, insisted, court, the lower upon appellant incumbent that “it was to move the jury failing the court to have the correct verdict and irregularity’ motion, what such he calls ‘the make citing Kentucky waived”, in verdict was two the cases. point in held, the court was not these, One because
471 with verdict was wrong only thing its of several findings had failed to separate a and instead verdict brought items of damages, The other case was said to money. sum of lump than rather contention support appellant’s conrt, waiver, the claim rejecting appellee, sáid:
“* * * In the case have no irregu we instant an of the funda larity mental ignoring in the verdict bnt in its court instruc given law tions.” that,
These instructions were should the find for award him they should such sum of plaintiff, reasonably compensate as- would fairly and mental and for suffering him medical physical held to been They ignored incurred. have expenses only because the awarded amount of his medical bills.
It will observed that verdict in the Kentucky case was invalid for the same reason that on the second cause of action this case was invalid. however, with force to the decision, applies equal first action. verdict on the cause of from liberally CJ, The court 64 1110 quotes Trial, statement 916, following but overlooks the in that § invalid verdict will an object section: “Failure from it” preclude party subsequently attacking Davis v. Stone, citing Ky 696, (italics added), B.E. Anderson, Co. 937, SW Whitfield-Baker the text. support 147 Ga 93 SE from Law and quotes Busch, The court also Tactics *37 footnote in Trials 599. In a to that section the Jury § waived”, attention “defects not citing calls author Anderson, v. B. Co. E. Whitfield-Baker supra, F. v. Clarendon Co., & S. Co. Grain Ry. Panhandle (Tex App) 215 Civ 866. The Texas case holds that SW objection joint against to a defendants, whose liability separate and distinct, was not waived object reception failure to of the verdict since judgment merely “verdict thereon was not positively defective or informal but erroneous.” question Since the verdict is not a mere informal irregular jury’s or decision, but, statement repeatedly contrary this court has held, is invalid and upon may statute, to our entered it be challenged properly for the first time motion to set it aside and for a new trial. And is it a matter of no consequence, my opinion, whether or such a ver- dict is “void”. The introduction word into the nothing argument. discussion adds are not We question with a concerned here of collateral attack. respecting I also from the dissent court’s decision the verdict the second cause on of action. is
It established law in this that in state an action negligence on based verdict for for sub- special damages general stantial and which allows no damages may is invalid aside on set motion. Snyder supra; Amermann, Cornett, Hall 193 Or 231. P2d Counsel defendant seek to dis- holdings damage tinguish grava- because is these negligence, men of an action in an whereas, action battery, for assault and an intentional tort, a verdict damages may though for nominal be allowed even no pointed actual are suffered. distinction is out and the authorities reviewed Hall v. Cornett, might supra, pp. application It at 644. have plaintiff had case if in fact the suffered no real this dispute injury if were a in the evidence there present not the issue. But that is state contradiction shown without that the case because
473 severely beaten in the second altercation was necessitating the broken, and that one of his ribs was necessarily physician. If, services of a as the by special damages, its for de- found verdict guilty battery, fendant was of assault and then inju- compensation entitled reasonable for to his Cowger, ries. v. 68 Ark 59 25 444, 951; Dunbar SW Damages § 469, CJS 11. But a verdict for not is$1 any compensation. It is a for reasonable verdict damages, thing nominal which is the same no as damages supra, p. Cornett, all. Hall at 644. The applied rule, same should be here in that therefore, power case. To hold that the Circuit had the Court no set aside such verdict involves conflict with our Schneidermann, decision in Lom v. 89, Van 187 Or 210 P2d 11 ALR2d 461, 1195, since the court’s did action question not call for the of a of facts re-examination by jury, only question tried but for the decision of a (193 647). held in law. We so Hall v. Cornett Or suggested reargument by It on the counsel for provo the defendant that there were circumstances of in cation evidence which would authorize the mitigate damages, and that this view the necessarily compensatory damages for need not $1 damages. suggestion a verdict nominal deemed The provocative merit, is without may while words and acts by jury mitigation punitive be considered damages, compensatory damages. this is not true of Henderson, P2d 20, 146 760; Penn v. 174Or Housman P 149 538. And see Peterson, 556, 559, Or ALR Annotation, 63 890. Snyder
It also contended that the rule of v. Amer- apply Hall v. does because the mann and Cornett not special is not a substantial sum. sum of $35 exactly agree. I The amount allowed was do special damages amount of established the evidence and submitted to the court’s instructions. opinion majority length of the dwells at on one grounds plaintiff’s motion for a trial, new jury, point misconduct of the wit, labors the ground party that this is waived the failure of a timely make disclosure to the court of the misconduct *39 apply proper and to relief. I do not know what the (as alleged case) rule in would be where this misconduct becomes and counsel known court purely at the same time. That, however, is academic question, subject as is the entire discussion of this holding—in in view the court’s I which concur— that no such misconduct is involved. support grounds assigned. of the motion four are part
Number 4 reads in that is verdict “incon- * * * contrary sistent and is to the uncontradicted evidence instructions of the Court.” provides statute, Our new trial ORS 17.610, may granted following a new trial for the causes, among others: Insufficiency
“(6) justify of the evidence to against decision, verdict or other or that it is law. “(7) occurring Error in trial, law at the
excepted by party making application.” ground The fourth of the motion a is sufficient “against that the is statement For the law”. precisely in the verdict defect here is the defect in the Cornett, first verdict Hall v. as well as the verdict Snyder Amermann, and we said in Hall v. Cornett: ‘‘ general damage The award of nominal and sub- damage inconsistency. stantial an involved It indi- compromise they jury] [the cated a violated verdict was of the court. The first the instructions ” not ‘such the court received may therefore, 645, 646. 193 Or from italicized is taken OES I have
The language reads: sentence of which the first 17.360, as the is and is such given, the verdict “When may and if the number receive, required court out, sent again and the is jurors agree, the clerk shall file the verdict.” fourth motion for a trial The new ground an trial, also error in law at the occurring indicates the court an invalid verdict. namely, receipt by no was taken counsel for exception fact is not in view of the fact that important Ias have motion, for, already court allowed the pointed authority the trial in this state has out, judge justice grant interest of trial error at law new even no taken mak- though exception party Lyons Browning, See ing application. supra, 354. in several recent cases we have Moreover, Or re-affirmed the rule that wide judge given *40 trials, latitude in the of and his decision granting new any be on when “tenable ground” will upheld appeal in the record. Hitchman v. it appears of support Bush, Christianson P2d 640, 642, 211; 195 Or 247 Muller, Bartholomew 835; 193 239 P2d 548, 551, Or Co., Pub. Oregonian 188 Or P2d 257. have also said that “It is well established recently We of court that where has by the decisions this error for a new committed, a motion trial is addressed been court and will to the sound discretion of discretion.” only reviewed abuse for manifest In Hall v. Cornett we held that the' added.) (Italics receive a verdict right refusing court was on the for the same reason that was bad Snyder second canse of action in this case was bad. In v. Amermann we went further. In that case the court only judgment received the verdict and entered a plaintiff, on it plaintiff’s for the but denied the motion appeal for a new trial. The from judgment, ruling on the motion for a new assigned trial was as error. saidWe that if the ver- special damages dict was one for “it cannot stand well-recognized because, under the rule law, before special damages may a verdict for be entered in a case general (194 kind, this there must be a verdict.” 678.) any OR The record in that case failed to disclose exception any ruling having of the court to do with validity of the verdict unless it be to the denial of for motion a new trial. we Nevertheless, held that ruling was error and reversed. In this case the majority hold grant that it was error for the court to a new trial because of the same kind of defect in the notwithstanding repeated verdict, and this is done our pronouncements ground” that if “tenable for such appears decision in the record we will not disturb it, except and that we will not review for abuse of dis- entering cretion. If a verdict for on substan- special damages general damages tial and no is a ground reversing denying tenable an order a motion for a why new trial I case, one should like to know equally ground it is not an affirming tenable an grants order which such a motion in another case. my implication To mind the most serious overruling court’s decision does not arise from the precedents—which established is sometimes desirable— but from the further inroads made the court already greatly powers too diminished of the trial judges of this state. See Van Lom v. Schneidermann, supra, unduly 187Or 113. When the Constitution limits *41 judicial power accept we must it. But we should be way using prerogative careful own such a about our impose authority as to restraints on the unwarranted actually of the courts where the cases are tried. What- opinion may ever room for there be about differences proper construction cause of the verdict on the first of action in this there can be none—and none is case, suggested—about invalidity of the verdict on the second cause is an inconsistent, action—that improper compromise contrary verdict, to the instruc- court, tions of the and such a verdict as should not have says simply been received. Yet this court now that, speak might because counsel did not when he have spoken, judge presided who over the trial was power without to set aside a based illegal such an verdict. I That, it, as view a mistaken power part. exercise of on our unfortunate say I am authorized to that Mr. Brand con- Justice foregoing opinion. curs