Brand v. Norris

NOURSE, P. J.

In reciprocal negligence actions of the parties to an automobile collision the verdict of the jury was as follows:

“We, the Jury in this case, find that the evidence is insufficient to place the blame of the accident on either party; therefore the jury does not render a verdict for any party to this case.”

On this verdict a judgment was entered to the effect that neither plaintiff nor cross-complainant take anything by their actions. Motions of plaintiff for a new trial and to set aside the judgment because not supported by a proper verdict were denied and plaintiff appeals from the judgment that he take nothing. There is no appeal from the judgment insofar as it is adverse to cross-complainant.

Appellant contends that no verdict for any party is not a verdict for the defendant and the cross-defendants but no verdict at all, so there is nothing on which the judgment could be entered. Considering the circumstances of the case we have concluded that this position is untenable.

Originally the last part of the verdict as brought in by the jury read, “the jury does not render a verdict for

either

party to the case” and the word “either” was changed to “any” at the instance of the court. After this had been done the attorney for respondent pointed out that the jury meant that they did not award damages to any party, which would actually be a verdict in favor of defendant (and cross-defendants). The attorney for appellant then stated that no verdict was a proper verdict, after which the foreman of the jury declared that it was their opinion that no damages could be awarded as they could not fix any blame against either party. Answering questions of the court the foreman further declared that it meant that neither party had sustained its burden of proof. A poll of the jury showed that eleven were in favor, one against the verdict.

Appellant relies on the cases which hold that a verdict against one of two defendants but which is silent as to the other defendant is not a verdict in favor of the latter but is merely a failure on the part of the jury to find upon all of

[369]