156 Ky. 205 | Ky. Ct. App. | 1913
Opinion of the Court by
Reversing.
The appellee, Herbert McGinnis, who sued in the name of tbe Commonwealth, for bis nse and benefit, instituted this action in tbe Warren Circuit Court against George C. Romans and tbe United States Fidelity & Guaranty Company as surety on tbe bond of said Romans as policeman of tbe city of Bowling Green, for damages for an alleged assault and battery, committed by said Romans in arresting appellee upon a misdemeanor charge; appellee basing bis action upon tbe alleged ground that appellant, Romans, unnecessarily beat and bruised appellee in effecting said arrest.
Upon a trial, tbe jury returned a verdict, wbicb reads as follows: “We, tbe jury, find for plaintiff against tbe Fidelity Insurance Company $750 punitive damages and against defendant $250. R. E. Allison, Foreman.”
Appellants contend that the court erred in entering said judgment, for the reason that it does not conform to the verdict. In the determination of this question, we may say at the outset that the affidavit of the juror, which was filed in support of the motion for judgment on the verdict, can not be given any weight or consideration. In the case of Alexander v. Humber, 86 Ky., 565, a verdict was returned which read as follows: “We, the jury, find for plaintiff one thousand dollars jointly.” There were two defendants. Subsequently on a motion for a new trial, there were filed affidavits of certain jurors to the effect that they had intended to find $500 against each of the defendants. On appeal this court said:
“After a verdict has been returned, in open court, it would be a wide open door to trickery, corruption and fraud to grant a new trial upon ex parte affidavits of individual jurors as to what the jury intended to do.” See Rager v. L. & N. R. R. Co., 137 Ky., 817, 127 S. W., 155, and cases referred to therein.
The verdict in this case, therefore, must stand unaffected by any explanation attempted or offered to be made by the ex parte affidavit of the juror.
In Pittsburg C. C. & St. L. Ry. Co. v. Darlington's Admx., 129 Ky., 266, 111 S. W., 360, it was said by this court that:
“Juries are gathered from every walk in life. Very frequently, perhaps most generally, they are not men of literary learning. Their choice of expression is very apt to be not exact; their verdicts being frequently ungrammatical, and rarely couched in the terminology of the law. Hence courts view the findings of the jury with great leniency, and every reasonable presumption is in-
If, therefore, from the record itself, and regardless of any explanation offered to be made by a juror, the meaning and intent of the jury may be made intelligible, ■ it is the duty of the court to give effect to the verdict, .provided, however, that such meaning’ and intent may also be made certain. The petition in alleging damages says that “plaintiff McGinnis has been damaged in the sum of five thousand dollars as a direct and proximate result of said unlawful assault as predicated above, and that he should recover said sum from defendant Romans and $1,000 from his co-defendant, the amount of its liability according to said bond.” From this allegation, he fixes the damages at $5,000, but says that he ought to recover that amount from defendant Romans, and $1,000 from his co-defendant. The jury was instructed that it could find as compensatory damages not to exceed $5,000 against Romans and not to exceed $1,000 against the United States Fidelity & Guaranty Company; and also that it could find punitive damages not exceeding in all the sum of $5,000. The question presented, therefore, is whether from the record the intent of the jury is susceptible of being made certain. By the instructions, the jury was not authorized to find punitive damages against the surety, yet it said in its verdict that “we, the jury, find for plaintiff against the Fidelity Insurance Company $750 punitive damages and against defendant $250.” If it be assumed that by the word “defendant” the jury meant the defendant Romans, the matter is not made any clearer. It cannot be made certain from the verdict or the record that any of the damages found by the verdict were compensatory damages.
A judgment on the verdict without reference to the record would require a recovery of $1,000 against the defendant United States Fidelity & Guaranty Company, as it is the only defendant named in the verdict. The finding of the first sum, $750, is explicit, and is clearly against said company alone; and the last part of the verdict, being joined to the first by the word “and” would indicate that the last named sum should be added ■the to the first, and this is the full amount the instruction
The verdict in the case at bar, however, is more ambiguous, and more difficult to make certain. It is true, that a large majority of persons would conclude that the verdict was properly construed and the real intent of the jnry expressed in the judgment entered thereon; yet, the mind is left in doubt in respect to the true meaning of the jury. It must be remembered that juries do not always understand instructions, and it is possible that the instructions in this case were not understood, especially as the instructions seem to authorize an in
Appellants also object to the instructions. Instruction No. 1, as given, is as follows:
“If the jury believe from the evidence that defendant Romans in making the arrest of plaintiff McGinnis, assaulted, beat and bruised plaintiff, when same was not necessary, and did not reasonably appear to defendant as necessary for his own self defense, or to effect the arrest of plaintiff; or after having plaintiff in custody, did beat and bruise plaintiff unnecessarily or more than reasonably appeared to defendant as necessary to defend himself against any assaults of plaintiff, if any, and to make the arrest, they will find for plaintiff such a sum in damages as they may believe from the evidence will
This instruction is erroneous in that it allows a finding for all the mental and physical suffering of plaintiff resulting from the heating, bruising and wounding of plaintiff by defendant Romans. It should have allowed recovery for only such mental and physical suffering as resulted from such beating, bruising and wounding as was in excess of what was necessary to be inflicted by defendant Romans, in order to effect the arrest; or to retain plaintiff in his custody after the arrest was effected; or to repel any assault by said plaintiff, upon defendant Romans. The instruction also permits the jury to make a separate finding against the surety company; to find a verdict against defendant Romans for any amount not exceeding $5,000, and against the defendant United States Fidelity & Guaranty Company for any amount not exceeding $1,000; that is, under this instruction the jury could find a verdict against Romans for $2,000 and against the surety company for $500. It was, therefore, erroneous in this respect. There was nothing to be submitted to the jury in reference to the liability of the surety. The law fixes its liability, and the jury cannot change it. It is liable for the whole of the verdict found under this instruction, if it should not exceed $1,000; and a judgment should be rendered against both defendants on the verdict, up to the amount of $1,000, and against defendant Romans alone for any amount in excess of $1,000. The court should determine the recovery from the surety, not the jury.
Instruction No. 1 should have been as follows:
“If the jury believe from the evidence that the defendant, Romans, in making the arrest of plaintiff, Mc-Ginnis, assaulted, beat and bruised plaintiff when the same was not necessary, or did not reasonably appear to said defendant, Romans, to be necessary to effect said arrest, or to protect himself from an assault or attempted assault on him by the plaintiff; or if they believe from the evidence that after having the plaintiff in custody, the defendant, Romans, did beat and bruise plaintiff, McGinnis, when the same was not necessary, or did not reasonably appear to said Romans to be
Appellant also complains of the instruction on punitive damages. This instruction reads as follows:
“The court instructs the jury that if they find for plaintiff as predicated in instruction No. 1, and further believe that defendant Romans wantonly and maliciously assaulted, bruised and injured plaintiff, they may in their discretion, in addition to compensatory damages as set out in instruction No. 1, allow plaintiff punitive damages, not exceeding in all the sum of $5,000.”
This instruction, while it ordinarily would not authorize a reversal, is nevertheless susceptible of criticism for the reason that the jury must be governed in • its findings, not by what it believes, but by what it believes from the evidence. The court should also have defined the words “wantonly and maliciously” as meaning an evil or unlawful purpose, as distinguished from that of promoting the justice of the law.
Complaint is also made that the verdict is excessive; but as the judgment will be reversed on other grounds, we refrain from expressing an opinion on that subject.
For the reasons indicated, the judgment is reversed, and cause remanded for proceedings consistent with this opinion.