Louisville & N. R. v. King

80 So. 490 | Miss. | 1918

Smith, C. J.,

delivered the opinion of the court.

This was a suit instituted before a justice of the peace by the appellee herein to recover from the appellant the sum of ninety three dollars and fifty cents alleged to be due him for services rendered to the appellant at its special instance and request. The're were two trials in the court below. In the first there was a judgment for the appellee for the sum of ten dollars which upon his motion was set aside and a new trial granted, which resulted in a judgment for ap-pellee for the amount sued for.

The record discloses that a lot of furniture shipped over the appellant’s road to E. W. Plightower at Gulf-port, Miss., was badly damaged when delivered to him. The bill of lading under which the furniture was transported and to the introduction of which in evidence no objection was raised on the first trial contains a clause limiting the appellant’s liability in the case of loss or damage to the furniture to ten dollars. The appellee testified, and he was supported therein by High-tower, that Duckworth, an employee of the appellant, went to Hightower’s residence, accompanied by the ap-pellee, and, after inspecting the furniture, employed appellee to repair it, stipulating only that the repairs should be satisfactory to Hightower, and that the ap-pellee should not charge more than one hundred and fifty dollars therefor. Duckworth admitted going to Hightower’s .residence with the appellee, but denied having employed him to repair the furniture. The bill for his- services rendered by the appellee' to the appellant was made out against Hightower, he claiming to have been instructed so to do by the appellant’s employee.

The ground of the motion to set aside the'verdict and judgment in the first trial, upon which it is sought to uphold the action of the court below in so doing, is as follows:

“Plaintiff will show, on the hearing of this motion, by the clerk of the court; That the jury found and offered to return into court the following verdict, to wit: ‘We, the jury, find for the plaintiff in the sum of ninety-three dollars and fifty cents, ten dollars to he paid by the railroad company and eighty-three dollars and fifty cents with interest to he paid by Hightower.’ That while the court could not receive this verdict, said verdict was a finding by the jury in favor of plaintiff on a quantum meruit for the services rendered, and that the verdict for ten dollars was based, not on the evidence as to the value of the services, but solely on the condition of release by Hightower, the shipper, contained in his bill of lading, and was inconsistent with the first attempted verdict, and did injustice to the plaintiff.”

The evidence in support thereof is that counsel for the parties agreed that the verdict might be received by the clerk of the court in the absence of the judge, and that, pursuant to this agreement, the jury reported to the clerk a verdict in the following language:

“We, the jury, as per B/L, decide that the L. N. E. E-Co., should pay to Hightower the sum of ten dollars, and that Hightower should pay to Clifford King- the sum of ten dollars, and that said Hightower shall pay in addition to the ten dollars to Clifford King the sum of eighty-three dollars with sis per cent, interest.

Before discharging the jury the clerk reported this verdict to the judge, who told him to tell the jury that ■ the verdict could not be received, whereupon the jury returned to their room, and shortly thereafter reported a verdict in the following form:

“We, the jury find in favor of the appellant to the sum of ten dollars.”

Hpon which the judgment afterwards set aside was entered.

The verdict first returned by the jury was either a finding that the plaintiff should recover against the defendant and Hightower the sum of ten dollars, and in addition thereto from Hightower alone the sum of eighty-three dollars, or it was so ambiguous as to necessitate its being cleared up by the jury before their discharge. If the former, it should have been received, and a judgment in favor of the plaintiff, and against the defendant, for ten dollars should have been rendered thereon, for the reason that the finding that the plaintiff should recover against Hightower, who was not a party to the record, can be disregarded as surplusage, the rule being that where the verdict contains all that the law requires, it will be good, although the jury may include therein matters not submitted to them. Windham v. Williams, 27 Miss. 313. If the latter, that is, if the verdict, was ambiguous, it was proper to return the jury to their room for another report after further deliberation, so that the court below erred, not in rendering judgment on the verdict, but in afterwards setting that judgment aside and granting a new trial.

The judgment rendered on the second trial and the order setting aside the judgment rendered on the first will be set aside, and judgment first rendered will be reinstated.

Reversed, and judgment here for the defendant.

Reversed.