Summary
In Gillespie v. Olive Branch Building Lumber Co., 174 Miss. 154, 164 So. 42 (1935), the jury returned separate verdicts against joint tort-feasors.
Summary of this case from Monroe County Elec. Power Ass'n v. PaceOpinion
No. 31837.
November 4, 1935.
1. JUDGMENT.
Substantive law controlling case must impose separable and different respective liabilities to authorize separate judgments against defendants (Code 1930, sections 605, 606).
2. TRIAL.
Statutes authorizing separate verdicts as against several defendants held inapplicable in action, based on joint negligence, by occupant of automobile against driver and owner thereof and driver of another automobile for injuries sustained in collision (Code 1930, sections 605, 606).
3. APPEAL AND ERROR. Judgment.
In action, based on joint negligence, by occupant of automobile against driver and owner thereof and driver of another automobile for injuries sustained in collision, judgment could not be rendered against all defendants for total of separate verdicts in different amounts, but judgment should be reversed for new trial on issue of damages.
4. TRIAL.
Where jury in action based on joint negligence, returned separate verdicts in different amounts against different defendants, court should have directed jury to render proper verdict.
APPEAL from the circuit court of Desoto county; HON. JOHN M. KUYKENDALL, Judge.
Brewer Montgomery, of Clarksdale, for appellant and cross-appellee, Mrs. Mittie R. Gillespie.
The court should have rendered separate judgments against defendants in accordance with verdicts of jury.
The action of the jury in returning separate verdicts against the several defendants is expressly authorized by statute, and has been the law in Mississippi at least since the adoption of the Code of 1880.
Whatever may be said of the common law which is thought to prohibit the returning of separate verdicts in tort actions against two or more wrongdoers, who are sued together and all found guilty, it is clear that the statute laws authorize such procedure.
Sections 605, 606 and 3404, Code of 1930; Aven v. Singleton, 132 Miss. 256, 96 So. 165.
The fact that these sections have appeared in the code chapter on circuit courts continuously for more than fifty years, shows that their application was intended to be general, and not limited; and were intended to modify common law procedure in all cases, ex delicto and ex contractu, of which the circuit court has jurisdiction.
This conclusion may be illustrated by numerous innovations on the common-law by legislative acts, relating to circuit court practice.
Sections 511, 513 and 2067, Code of 1930.
The statute is plain and unambiguous and must be given full effect.
Sections 605 and 606, Code of 1930, are complete in language and thought.
Hamner v. Y.D. Lumber Co., 100 Miss. 349, 56 So. 466; State v. Traylor, 100 Miss. 544, 563, 56 So. 521, 524.
The statute laws authorizing separate jury verdicts against several defendant tort-feasors are just.
Thomas v. Rounds, 137 So. 894.
No defendant litigant has a right to complain of a judgment against a co-defendant.
Knowles v. Summey, 53 Miss. 377; Lynch v. Thompson, 61 Miss. 355; Barrett v. Curtis, 69 Miss. 593; I.C.R.R. Co. v. Clark, 85 Miss. 691; Hattiesburg Co. v. Pittsburg Co., 115 Miss. 663; St. L. S.F.R.R. Co. v. Sanderson, 54 So. 885.
Decisions of this court on kindred questions sustain the contentions made.
I.C.R.R. Co. v. Clarke, 85 Miss. 691; St. L. S.F.R. Co. v. Sanderson, 54 So. 885; Bailey v. Delta Electric Co., 85 Miss. 634, 38 So. 354.
Numerous cases have been decided by appellate courts of other states, under statutes similar to the one in question here, which sustain the right of the jury to return separate verdicts against joint tort-feasors, and as co-defendants.
Cent. Pass. R.R. Co. v. Kuhn, 6 S.W. 442; L. N.R.R. Co. v. Roth, 114 S.W. 264, 266; N.O. T.R.R. Co. v. McElroy, 146 Ky. 668, 142 S.W. 1009; St. L. S.F.R. Co. v. Sanderson, 54 So. 885; Rhame v. Sumpter, 113 S.C. 151, 101 S.E. 832; Johnson v. A.C.L.R.R. Co., 142 S.C. 125, 140 S.E. 443; Frederick v. Commercial Credit Co., 145 S.C. 380, 143 S.E. 179; 30 A.L.R. 790; 62 A.L.R. 239.
In all actions where two or more defendants are sued jointly, neither has the right to complain of the judgment rendered against the other.
R.R. Co. v. Clarke, 85 Miss. 691, 697; R.R. Co. v. Hardie, 55 So. 967; Lynch v. Thompson, 61 Miss. 354; Williams v. Banks, 132 Miss. 178; Knowles v. Summey, 52 Miss. 377; Wilkinson v. Love, 115 So. 708; Barrett v. Carter, 69 Miss. 593; Hardware Co. v. Pittsburg Co., 115 Miss. 663.
Should the court decide that separate verdicts may not be rendered in tort cases against joint tort-feasors, then judgment should have been rendered against all defendants jointly and severally for the sum of the amounts awarded in the two verdicts, to-wit, seven thousand five hundred dollars.
Section 574, Code of 1930; Windham v. Williams, 27 Miss. 313, 318; Hines v. Lockhart, 105 So. 449; Stone-Lowe Cotton Co. v. Weil, 129 Miss. 60, 91 So. 859; Ricketts v. Drew, 155 Miss. 459, 124 So. 495; 64 C.J. 1085, sec. 888; Hall v. McClure, 112 Kan. 752, 212 P. 875, 30 A.L.R. 782, 786; Currier v. Swan, 63 Me. 323; San Marcos E.L. P. Co. v. Compton, 48 Tex. Civ. App. 586, 107 S.W. 1151; Olson v. Nebraska Tel. Co., 87 Neb. 593, 127 N.W. 916; Pearson v. Arlington Dock Co., 111 Wn. 14, 189 P. 559; Robyn v. White, 153 Minn. 76, 189 N.W. 577; Lake Erie, etc., Co. v. Halleck, 136 N.E. 39; State v. Wolkow, 110 Kan. 722, 205 P. 639; Penn. R.R. Co. v. Logansport Trust Co., 29 F.2d 1.
Holmes Bowdre, of Hernando, and Winchester Bearman, of Memphis, Tenn., for appellees and cross-appellants, Olive Branch Building Lumber Co., Inc., and R.A. McDougal.
The court erred in accepting the verdict of the jury.
The rule is well settled in Mississippi that there is no line of separation between the liability of joint tort-feasors, and that when the negligence of two or more persons concurs in producing a single, indivisible injury, such persons are jointly and severally liable.
Nelson v. Railroad Co., 98 Miss. 295; 26 R.C.L. 763, sec. 13; Miss. Central R. Co. v. Roberts, 160 So. 604.
The court erred by entering judgment contrary to the verdict of the jury.
No new trial having been asked by the cross-appellee because of the inadequacy of the damages, the cross-appellants respectfully submit that the cross appeal herein should be sustained and the cause reversed and remanded for a new trial under rule 13 of the Supreme Court.
E.J. Pollard and Logan Barbee, all of Hernando, for appellee, J.H. Brewer.
We respectfully insist that when the court asked the attorneys for plaintiff, appellant here, whether or not the verdict should be received in the form in which it was returned by the jury, and they answered, "Yes," the appellant is estopped, and cannot now complain of the action of the lower court in entering a judgment on that verdict of the jury, when it was the only judgment that could have been entered on that verdict.
When the concurrent negligence produces a single, indivisible injury, both the tort-feasors are equally liable for the entire damage sustained. In the absence of a statute expressly authorizing, there is no apportionment or contribution between them. Our statute, sections 605, 606, Code of 1930, authorizing separate verdicts as against several defendants is a procedural statute only, and does not, in any respect, alter or intend to alter the substantive law. In order to receive several verdicts under that statute, the substantive law controlling the case must be such as to impose several separable and different respective liabilities, which is not the case here.
Miss. Central R. Co. v. Roberts, 160 So. 604, 173 Miss. 487; Aven v. Singleton, 132 Miss. 256, 96 So. 165.
On the verdict rendered by the jury, and accepted by the appellant, the only judgment that could have been rendered was the one that was rendered, that is, a joint and several judgment in favor of appellant and against all the appellees for the larger amount, four thousand dollars.
64 C.J. 1084, sec. 887C; Nashville R. L. Co. v. Trawick, 10 L.R.A. (N.S.) 191.
The irregularity in rendering separate verdicts against defendants in an action for joint tort may be cured, even after judgment, by entering the judgment against one defendant and dismissing the action against the other.
26 R.C.L. 780.
The appellant could have brought two separate actions but she did not do this, she elected to and did bring a joint and several action against all three defendants in the instant suit. There being but one injury and in the action as instituted there can only be a joint and several judgment for one sum, and in this case the larger of the two amounts found, four thousand dollars.
Nelson v. I.C.R. Co., 98 Miss. 307, 53 So. 619; Cooley on Torts (2 Ed.), page 159; French v. Boston Coal Co., 195 Mass. 334, 81 N.E. 265, 11 L.R.A. (N.S.) 993, 122 Am. St. Rep. 257; Miss. Power Light Co. v. Smith, 169 Miss. 447; 31 L.R.A. (N.S.) 689; St. Louis S.F.R. Co. v. Sanderson, 99 Miss. 148, 54 So. 885, 46 L.R.A. (N.S.) 352; Thomas et al. v. Rounds, 161 Miss. 713.
The term "quasi-estoppel" has been applied to certain legal bars which are in some respects analogous to estoppel in pais and which have the same practical operation as an estoppel in pais, but which nevertheless differ from that form of estoppel in essential particulars. The term includes the doctrine of election, the principle which precludes a party from asserting, to another's disadvantage, a right inconsistent with a position previously taken by him, and certain forms of waiver.
16 Cyc. 784, 785, 795, 796 and 805.
Damages must be assessed in a single sum. They cannot be apportioned by the jury among the defendants, for the sole inquiry open is what damages plaintiff has sustained, not who ought to pay them. Discrimination according to the relative enormity of the acts of each is not permitted. Should the jury assess different amounts plaintiff should have judgment against all convicted of the largest sum found against any one of them, for where no punitive damages are claimed, plaintiff is entitled to a joint verdict for what the most culpable ought to pay.
38 Cyc. 492, assessing damages.
The appellant was a passenger in an automobile owned by the Olive Branch Building Lumber Company, which was being driven by its servant, R.A. McDougal. This automobile collided with another driven by J.H. Brewer, and the appellant was injured, and sued the Olive Branch Building Lumber Company and J.H. Brewer therefor, alleging that they were jointly negligent in causing it.
The court instructed the jury for the appellant as follows: "The court instructs the jury that, if you find for the plaintiff and against all of the defendants, then the form of your verdict may be, `We, the jury, find for the plaintiff as against the defendants, J.H. Brewer, Olive Branch Lumber Building Company, and R.A. McDougal, and assess her damages at the sum of ____.' And if you find for the plaintiff, as against R.A. McDougal and the Olive Branch Lumber Building Company, but not against the defendant, Brewer, the form of your verdict may be, `We, the jury, find for the plaintiff as against defendants, R.A. McDougal and Olive Branch Lumber Building Company, and assess her damages at the sum of $ ____.' Should you find a verdict against only the defendant, Brewer, the form of your verdict may be, `We, the jury, find for the plaintiff as against defendant, J.H. Brewer, and assess her damages at the sum of $ ____.'"
The jury returned the following verdict:
"We, the jury find for the plaintiff as against the defendant, J.H. Brewer, and assess her damages at four thousand dollars."
"We, the jury, find for the plaintiff as against the defendants, Olive Branch Lumber Building Co. and R.A. McDougal, and assess her damages at three thousand five hundred dollars."
When this verdict was returned, the court asked the attorneys representing the plaintiff and the defendants, "whether or not this verdict should be received in the form in which it was returned by the jury." Counsel for plaintiff responded, "Yes." Counsel for Brewer made no response, stating that they wished the record to show that they were silent. Counsel for the Olive Branch Building Lumber Company objected to the receipt of the verdict in its then form. The court overruled this objection, received the verdict, and rendered joint judgment against the defendants for four thousand dollars. The appellant then filed a motion to set aside the verdict and render another for the sum of seven thousand five hundred dollars in accordance with the verdict returned in open court, which motion was overruled.
There is a direct appeal by the plaintiff, and a cross-appeal by the Olive Branch Building Lumber Company and R.A. McDougal. J.H. Brewer did not appeal, but has appeared by counsel, and says that the judgment is correct.
The appellant says that the verdict was authorized by sections 605 and 606 of the Code of 1930, and that separate judgments should have been rendered in accordance therewith. These sections have no application here. For them to be applicable, "The substantive law controlling the case must be such as to impose several separable and different respective liabilities." Mississippi Central R. Co. v. Roberts (Miss.), 160 So. 604, 607, a case of the exact nature of the one here.
The appellant further says that if sections 605 and 606, Code of 1930, are not applicable, a judgment should be rendered against all of the defendants for seven thousand five hundred dollars; the ground of this contention being that, since the liability is joint and not several, the jury had nothing to do with the apportioning of the damages, and, having fixed the damages at seven thousand five hundred dollars, the apportionment thereof should be treated as surplusage. This is not a proper case for the surplusage rule, though there seems to be some authority therefor in other jurisdictions. The jury rendered separate verdicts, and its verdicts may have been different, for aught we know, if the same damages are to be assessed against all of the defendants.
What the court below should have done was what the case of Mississippi Cent. R. Co. supra, said was the proper course to pursue, and that was to direct the jury to return to its room, clear up its verdict, and render one in accordance with the court's instructions.
Finally, the appellant says that if the judgment is improper it should be affirmed as to liability, reversed only as to the damages awarded, and remanded for a new trial on the issue of damages only. We think she is correct, and it will be so ordered.