Kirby v. Adcock

California Court of Appeal Mar 6, 1953 No. Civ. 19317Published

Before: Fox

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Holding. A verdict for general damages is valid even if the jury fails to reach the required majority for exemplary damages, as the latter can be treated as surplusage; furthermore, a defendant waives objections to verdict irregularities by failing to raise them before the jury is discharged.

Issues

Whether a verdict for general damages is invalidated by the jury's failure to reach a sufficient vote on exemplary damages.
Whether a defendant waives the right to challenge a verdict's form by failing to object before the jury is excused.

Disposition. affirmed

Quotations verified verbatim against the opinion

“A more realistic approach to the problem is to consider the reference to exemplary damages as surplusage, since it was ineffective by reason of not having sufficient votes.”

“Furthermore, failure on the part of defendant to object or otherwise draw the court’s attention to the claimed infirmity in the verdict before the jury was excused, and a correction thus made possible, constituted a waiver thereof.”

FOX, J.

In an action against defendant police officer for damages for assault and battery the jury returned a verdict in favor of plaintiff, assessing general damages at $500 and exemplary damages at $1,500. The jury being polled, the result was 9 to 3 for the $500 general damages but only 8 to 4 on the question of exemplary damages. The court accepted the $500 verdict. No objection was then made thereto, nor was any suggestion made on behalf of defendant of any irregularity or infirmity therein. The jury was thereupon excused. In due course judgment for $500 was entered

[571]

on the verdict. Defendant appeals on the ground that the $500 verdict was invalid.

It is perfectly clear that nine jurors agreed that plaintiff was entitled to general damages of $500. Their written verdict so stated and their interrogation in open court verified it. It is argued, however, that because the exemplary damage portion of the verdict did not have the required three-fourths favorable vote, that invalidated the entire verdict. To sustain this argument would be to give undue weight to procedural technique and to permit substance to become subservient to form. A more realistic approach to the problem is to consider the reference to exemplary damages as surplusage, since it was ineffective by reason of not having sufficient votes. This principle was applied in

Weddle

Loges,

52 Cal.App.2d 115 [125 P.2d 914], where the jury returned a verdict against joint tort feasors and then attempted to apportion the damages between them.

Martin

Cambas,

134 Ore. 257 [293 P. 601], is another case illustrative of the principle here applicable. That was a suit for false arrest and imprisonment. The verdict was for $5,000 general damages against one defendant and it also awarded punitive damages which were apportioned among several defendants. The portion of the verdict relative to punitive damages being ineffective was treated as surplusage and the verdict for general damages allowed to stand.

Kirby v. Adcock

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FOX, J.

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