West v. Duncan

PEEK, P. J.

This is an appeal by defendants Jacqualyn T. Duncan and Pete Olson from an adverse judgment in a personal injury action brought by plaintiff West.

The facts which are not in dispute show that Duncan, while driving a car owned by Olson and with his permission, came

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upon an icy area on the highway, lost control of the car, and collided headon with West. At the conclusion of the trial, the Honorable Richard B. Baton, who presided, commented up oh the form of the verdict which he was then submitting to the jury:

“The Court: Upon your retirement . . . the Bailiff will hand to you a verdict in the following form: Omitting the title of the Court and cause, ‘We, the jury in the above entitled action, find our verdict as follows: ’ Then an instruction, ‘Rule out in pen all words not expressing your findings.

“‘1. For plaintiff, Francis West, against defendant, Jacqualyn T. Duncan, assessing damages at $_• and against defendant, Pete Olson, assessing damages at $:__’ Then a parenthetical instruction,' ‘ The amount of the Duncan damages, or $5,000, whichever is the lesser.’

' “ ‘(or) ' .

“ ‘2. For defendants; against plaintiff. .....

“ ‘Dated: May_, I960.’ ' • -

“Signed ‘_:_, Foreman.’ ""

After concluding its deliberations, the jury returned the following verdict:

“We, the jury in the above-entitled action, find our verdict as follows: •

“ (Rule out in pen all words

not

expressing your findings.)

“1. For plaintiff, Francis West, against. defendant) Jacqualyn T. Duncan, assessing damages at $5,605.00; and against defendant, Pete Olson, assessing damages at $5,000.00 (amount of Duncan damages or $5,000.00, whichever is the lesser).