194 Mass. 231 | Mass. | 1907
The questions presented by this bill of exceptions arose upon the plaintiff’s motion for a new trial in each case. The declarations in the two actions are substantially alike, each containing five counts, of which the third was waived. The defendants are physicians, and they signed a certificate that in their opinion the plaintiff was insane. Their action caused his arrest and detention for a few hours. The four counts submitted to the jury were, respectively, for a libel, for slander, for false imprisonment, and for negligence in making the examination to determine whether he was insane. After deliberation the jury came into courts and, in reply to an inquiry by the judge, said that they had agreed upon a verdict for each defendant on the first, second and fourth counts, and that they had been unable to agree upon the fifth count. Thereupon their verdict was
Upon the admitted facts, the verdicts upon the first and second counts must have been found either upon the ground that the certificate was true, or that what was said and written was privileged. The verdicts upon the fourth count, for false imprisonment, in the two cases, could not have been found upon any other ground than that the plaintiff was insane and that his detention was justifiable. If the verdicts for the plaintiff on the fifth count were found under correct rulings of law, the jury must have decided that the. defendants were negligent in making their examination, and that their negligence was injurious to the plaintiff. . But if the verdicts on the fourth counts are correct, it is difficult to see how negligence in making the examination could have caused the plaintiff injury. There is, therefore, ground for the plaintiff’s contention that there is a seeming inconsistency in the verdicts.
It is also true, as he contends, that, if different parts of a verdict are inconsistent with one another so that they cannot stand together, it is the duty of the court to set it" aside and grant a new trial, for such a verdict is against the law. Commonwealth v. Haskins, 128 Mass. 60. Langan v. Langan, 89 Cal. 186, 195.
Usually there is no way of ascertaining in what part of an inconsistent verdict the jury made their mistake, and for that reason it is necessary to set aside the entire verdict. If, in the present case, nothing appeared but a verdict returned in the ordinary way under such instructions as would necessarily make the findings .inconsistent with one another, it would be the duty of the court to grant the plaintiff’s motion. But we find that
On the motion for a new trial the judge found that all the verdicts for the defendants were in accordance with the evidence and the weight of evidence, and that the verdicts for the plaintiff should have been for the defendants. If we consider the fifth count by itself, we are of opinion that the assessment of nominal damages does not entitle the plaintiff to a new trial.
If the verdicts on this count in the two cases were wrong as to liability, they should not be set aside on the plaintiff’s motion, for he is not aggrieved by them, and the defendants do not complain.
We are brought, therefore, to the main question: Whether the findings of the jury on this count leave their verdicts, as a whole, so contradictory and inconsistent that they should be set aside on the ground that they may have been founded on a mistake in that part which was first recorded. It is of much significance that the only part of the case on which the jury appear to have been troubled is the fifth count. It is also important, although not controlling, that the verdicts on the other counts were returned and recorded before the jury agreed to this part of their verdicts. It is to be noticed that the instructions on the fifth count present as the principal issue, the question whether the examination was made negligently. The jury were told that if the plaintiff was right in his contention, they should find in his favor. Nothing appears to have been said in this connection in regard to the necessity of proving damages to entitle him to a favorable verdict. They were told that in assessing damages they should consider each count by itself, and give “ whatever they believed the plaintiff had suffered by the wrongful and unlawful acts of the defendants.” Taking the special instruction as to the fifth count, and the general instructions as to damages, the jury might well find that, although the plaintiff was insane and not entitled to recover on the first, second and fourth counts, the examination was made hastily and negligently,
• It does not appear in the bill of exceptions that the instructions were such as to make the findings upon the fifth count contradictory or inconsistent with the findings upon the other counts. If it appeared that, in dealing with the fifth count and with the subject of damages, the judge instructed the jury that, even if they found the defendants guilty of negligence as alleged, they should still find in their favor if the plaintiff was insane, we should have the case on which the plaintiff’s principal argument is founded. The burden is upon the excepting party to show that he is aggrieved.
Exceptions overruled.