Opinion
No. 29734
Decided May 24, 1944.
Verdicts — Concurrence of jurors — General verdict and special interrogatory not signed by same nine jurors — General verdict not vitiated, when — Objection not interposed or request made that jury continue deliberations.
The fact that only eight of nine jurors who concurred in and returned a general verdict for the defendant joined in an answer to a special interrogatory also submitted to the jury, did not vitiate the general verdict so returned and received by the court, no objection having been offered or request made by counsel for plaintiff that the jury be required to continue its deliberations until the interrogatory was answered by all the jurors joining in the general verdict.
APPEAL from the Court of Appeals of Hamilton county.
Prior to and early in 1930, the defendant purchased in separate parcels a tract of land fronting 220 feet on the westerly side of Ludlow avenue in Cincinnati, extending westwardly 175 feet between parallel lines. In 1930, the defendant built a house on this tract of land.
The plaintiffs, in 1936, purchased a tract of land about 250 feet wide and about 550 feet long, the rear end of which abuts the rear end of defendant's property and is much higher in elevation than defendant's tract above described. The record discloses that the land owned by plaintiffs was, from time to time, subject to slides toward the land of the defendant; that the defendant, at various times, built retaining walls and other structures at the back of his lot to prevent the soil on the higher land from encroaching on his lot. These walls and structures were overturned by the weight of the soil back of them and in reconstructing them and grading the back part of his lot, the defendant excavated and removed quantities of earth, most of which he claims slid from plaintiffs' land upon his lot. He denies that his excavations went below the average contour of the land.
Due to these periodic slides, the houses which plaintiffs had built upon their land were affected and damaged, plaintiffs claiming that this damage was due to the excavations made by the defendant, interfering with the lateral support of their land. Defendant claims, on the other hand, that the only earth removed was that which had slid upon his lot from the property of the plaintiffs.
The plaintiffs brought suit to recover damages from defendant for interference with lateral support. There was a claim on the part of the plaintiffs that the depth of the excavation in question made by the defendant was at points in excess of 10 feet, but the evidence was in dispute upon that question. Because the application of the law depended upon the depth of the excavation, the plaintiffs claim that the court erred in its charge to the jury as to the law on this point.
At the request of counsel for defendant, the court submitted to the jury the following special interrogatory in connection with its general charge: "Was the defendant negligent? If so, state upon what date or dates, where on the property and in what manner the defendant was negligent."
After retiring, the jury on one occasion returned to the courtroom and submitted to the court the following question: "Is it essential that the same nine jurors that signed the verdict sign the answer to the interrogatory?" The court instructed the jury that the answer to its question was "No."
The jury then returned a general verdict for the defendant, nine members of the jury concurring, and answered the special interrogatory "No," nine members of the jury concurring. However, only eight of the nine members of the jury concurring in the general verdict concurred in the answer to the interrogatory. One juror who did not sign the general verdict signed the answer to the interrogatory.
A motion for new trial was overruled and judgment was entered on the verdict. On appeal by the plaintiffs to the Court of Appeals, that court affirmed the judgment and the cause is now in this court for review by reason of the allowance of a motion to certify the record.
Mr. Bert H. Long, Mr. Milton M. Bloom and Mr. Milton H. Schmidt, for appellants.
Mr. Walter K. Sibbald, for appellee.
One of the claims of the plaintiffs is that the trial court committed prejudicial error in its general charge to the jury on the law relating to lateral support.
The depth of the excavation being a disputed question of fact in this case, liability for interference with lateral support may be determined by the common law, by the statutes of the state on the subject (see Sections 3782 and 3783, General Code), by certain ordinances of the city of Cincinnati which were applicable, or by a combination of two or more of them, dependent upon the facts found by the jury. The court, in the course of its charge to the jury, said:
"If the plaintiffs establish by a preponderance of the evidence that the defendant removed or interfered with the lateral support of the plaintiffs' land without complying with the requirements of the statutes of Ohio and the ordinances of the city of Cincinnati, or in violation of said law or ordinances, or in removing said lateral support, and in making excavations on his land, the defendant was negligent in so doing, and such negligence was the proximate cause of the injury or damage to the plaintiffs' buildings, then your verdict would be for the plaintiffs."
Later, the court charged as follows:
"In an action for damages by reason of loss of lateral support, in case you find that the excavation made by Henry Springer was negligently done, or was done without notice as required by the statutes of Ohio, and the acts of Doctor Springer were the direct and proximate cause of the sliding of the land of the plaintiffs * * * the owner of the property so damaged is entitled to recover. * * *"
The plaintiffs claim that the court erred in suggesting that negligence of the defendant was an essential element to be shown to entitle the plaintiffs to recover, as negligence is not a prerequisite to liability, except under limited circumstances.
It must be remembered that there was a sharp dispute of fact as to the character and extent of the excavation made by the defendant, and as to whether there was any evidence on the subject which created any liability unless negligence on the part of the defendant was present. No interrogatories to disclose findings of the jury as to matters of fact were submitted, except on the question as to whether the defendant was negligent, and from a consideration of the whole record this court cannot say that error prejudicial to the plaintiff, in this regard, intervened.
The plaintiffs also claim that the court erred in receiving with the general verdict an answer to the interrogatory submitted to the jury, because such answer was not signed by the nine jurors who signed the general verdict.
The fact that one of the jurors who signed the general verdict did not sign a negative answer to the interrogatory as to whether the defendant was negligent, did not vitiate the general verdict because there were issues other than negligence, upon which the jury was warranted in returning a verdict for the defendant. Even though such juror might have held the view that the defendant was negligent, the element of proximate cause was controverted and could furnish a basis for the concurrence of the juror in question in a verdict for the defendant.
Did the court err in receiving the answer to the interrogatory signed by only eight of the jurors who concurred in the general verdict? In the state of Wisconsin where 10 of 12 jurors may return a general verdict and answer interrogatories, the Supreme Court of that state has held that when a general verdict is returned and several interrogatories are answered by 10 members of the jury, the answers to such interrogatories must be by the same jurors. Bentson, Admr., v. Brown, 186 Wis. 629, 203 N.W. 380, 38 A. L. R., 1417; Kosak v. Boyce, 185 Wis. 513, 201 N.W. 757; Dick v. Heisler, 184 Wis. 77, 198 N.W. 734; Hobbs, Admr., v. Nelson, 188 Wis. 108, 205 N.W. 918, and Biersack v. Wechselberg, 206 Wis. 113, 238 N.W. 905.
In this case, after the verdict and answer to the interrogatory were received by the court, no objection was offered by counsel for plaintiffs, and no request was made that the jury be required to continue its deliberations until the interrogatory was answered by all the jurors joining in the general verdict. Under such circumstances, the most that can be claimed is that there was a failure to answer the interrogatory. See, Creighton v. Kiehl, 60 Ohio App. 86, 19 N.E.2d 653, where a somewhat similar situation arose.
The plaintiffs, not having made objection before the jury was discharged, are not now in a position to claim prejudice on the ground that the special verdict vitiated and failed to test the general verdict, since eight of the same jurors who signed the general verdict signed the answer to the interrogatory in effect consistent with their general verdict.
We hold that it is not necessary to pass upon the question as to whether the interrogatory was properly answered. The general verdict was properly rendered, and the court did not err in rendering judgment upon it. The judgment of the Court of Appeals is affirmed.
Judgment affirmed.
WEYGANDT, C.J., MATTHIAS, ZIMMERMAN, BELL, WILLIAMS and TURNER, JJ., concur.