Klein v. Miller , 159 Or. 27 ( 1938 )

In Banc. Action to recover damages sustained in an automobile collision. Defendant sought affirmative recovery upon counterclaim. Jury's verdict was: "We the jury * * * find for the plaintiff and assess his damages at the sum of $no damages." The trial court entered judgment for defendant but later set aside said verdict and judgment and granted a new trial. Defendant appeals. This case is governed by the rule announced in the case ofMcLean v. Sanders, 139 Or. 144 (7 P.2d 981). In that case the verdict was: "We, the jury, duly impanelled to try the above entitled cause, find our verdict for the plaintiff and against the defendants, and assess plaintiff's general damages in the sum of no dollars, and further assess punitive damages against defendants in the sum of no dollars."

Speaking through Mr. Justice RAND this court said of that verdict:

"It is impossible to ascertain from this verdict whether the jury intended to find for the plaintiff or for the defendants. Because of its uncertainty in this respect, it is not sufficient to support a valid judgment." McLean v. Sanders, supra.

The only difference between the cases of McLean v. Sanders and the case at bar is that no counterclaim was asserted inMcLean v. Sanders while in the case at bar defendant interposed a counterclaim.

The interposition of a counterclaim renders the verdict neither certain nor conformable with the provisions of the statute.

The statute provides:

"When a verdict is found for the plaintiff in an action for recovery of money, or for the defendant when a counterclaim for the recovery of money is established beyond the amount of plaintiff's claim as established, the jury shall also assess the amount of recovery." Vol. 1, Oregon Code 1930, § 2-405.

A verdict, which does not conform to this statute, confers no authority to render a judgment upon it: Goyne v. Tracy, 94 Or. 216 (185 P. 584).

In the case at bar the verdict is not for the defendant. Its assessment of "no damages" nullifies its effect as a verdict in favor of plaintiff. Being neither a verdict in favor of plaintiff nor a verdict in favor of defendant, it is in effect no verdict at all.

"A verdict in an action in which a money judgment is sought, whether by way of liquidated or unliquidated damages, which does not state specifically the amount to which the jury deem the plaintiff entitled, is not a verdict on which a valid judgment can be entered."

Abbott's Civil Jury Trials, p. 761, citing Washington v.Calhoun, 103 Ga. 675 (30 S.E. 434); Sellers v. Mann,113 Ga. 643 (39 S.E. 11); Ft. Wayne v. Durnell, 13 Ind. App. 669 (42 N.E. 242); Louisville N.R. Co. v. Hartwell, 99 Ky. 436 (36 S.W. 183, 38 S.W. 1041); Miller v. Cappel, 39 La. Ann. 881 (2 So. 807); Burghart v. Brown, 60 Mo. 24; Gerhab v. White,40 N.J.L. 242; Van Benthuysen v. DeWitt, 4 Johns 213; Murray v.King, 30 N.C. (8 Ired L.) 528; Ames v. Sloat, Wright (Ohio) 577; Neville v. Northcutt, 7 Cold. 294; King v. McKinstry,32 Pa. Super. 34.

The following cases also support the rule above quoted from Abbott's Civil Jury Trials: Wheeler v. Moore, (Tex.Civ.App.)208 S.W. 678; Bartle v. Plane, 68 Iowa 227 (26 N.W. 88);Chespeake O. S.W.R. Co's Receivers v. Maddox, 19 Ky. L. Rep. 966 (42 S.W. 1124); Gaither v. Wilmer, 71 Md. 361 (18 A. 590, 5 L.R.A. 756, 17 Am. St. Rep. 542) (citing Proff. Jury Sec. 415; 2 Tidd. Pr. 869; 1 Poe, Pl. Pr. Sec. 758; Clement v. Lewis, 3 Brod. B. 297); Moore v. Evans, 24 Idaho 153 (132 P. 971).

In the case of Herr v. Kennedy, 22 Ariz. 141 (195 P. 530), two verdicts, one for defendant and one for plaintiff, were held to be nonenforcible.

A doctrine has been declared in Minnesota contrary to that ofMcLean v. Sanders, supra: Royal Indemnity Co. v. Island LakeTownship of Mahnomen County, 177 Minn. 408 (225 N.W. 291). There the surety on a defaulting contractor's bond completed the contract and sued for an alleged balance in excess of the amount paid by the township. The verdict was: "We, the jury in the above entitled action find for the plaintiff and assess damages in the sum of none dollars." This verdict was construed by the Minnesota court to be a verdict for the defendant.

To adopt the doctrine of the case last cited would have the effect of overruling McLean v. Sanders, supra, and Goyne v.Tracy, supra, which we are not prepared to do. Moreover, we find no Minnesota statute effective when the opinion was rendered inRoyal Indemnity Co. v. Island Lake Township, supra, which requires a jury in making return of a general verdict to assess the damages sustained either by plaintiff or defendant.

It is argued by defendant that a distinction is apparent between McLean v. Sanders, supra, and the instant case because the element of alleged contributory negligence of plaintiff is not present in the earlier case while it is one of the defenses herein. Defendant says that, admitting that the defendant was negligent and the plaintiff did in fact suffer damages, he still might not be entitled to recover for these damages, because of his own negligence; hence, the verdict in the instant case is consistent with the law applicable to the case. The vice of this argument lies in the fact that the jury ought not to have found for the plaintiff unless the defendant was shown to have been negligent, that the negligence of defendant was the proximate cause of injury and resultant damage to plaintiff, and that plaintiff himself was not guilty of any contributory negligence. That is what a verdict for plaintiff in this case ought to mean. It cannot mean that the plaintiff was guilty of contributory negligence, or that plaintiff suffered no damages, or that defendant should recover a judgment for his costs and disbursements.

Upon oral argument, Mr. Justice ROSSMAN, with his characteristic thoroughness and exactitude, called attention to the fact that in paragraph three of the complaint, wherein the personal injuries are set forth, the word, defendant, is used instead of the word, plaintiff, making it appear that defendant suffered those injuries, when obviously plaintiff intended to allege that plaintiff was the sufferer. The case was tried upon the assumption that there was a claim properly made for personal injuries suffered by plaintiff; and the inadvertent typographical substitution of the word, defendant, for plaintiff, when discovered for the first time during the oral argument upon appeal, should have no effect upon the result in the appellate court.

Aside from the attempted specific description of the alleged injuries to the person of plaintiff, there is an allegation in paragraph one of the complaint:

"That when he" (plaintiff) "had passed through the intersection of 25th and Fremont and had all but cleared Fremont street a car driven at a high and reckless rate of speed by the defendant, going in an easterly direction, crashed into the car so driven by this plaintiff, threw said car against the eastern curb of 25th avenue, turned the same over, completely demolished it, andinjured this plaintiff as hereinafter stated." (Italics supplied.)

Moreover, there is a general allegation:

"That the carelessness and negligence of the defendant, as aforesaid, was the approximate cause of said accident, and plaintiff has been damaged thereby in the total sum of $1,000."

It is plain that the complaint stated a cause of action and that the amount in controversy is in excess of $250. The motion of defendant to dismiss the complaint is overruled; and the order of the circuit court setting aside the verdict and judgment and granting a new trial is affirmed.

BAILEY, J., specially concurring.

ROSSMAN, J., dissenting.