Whitaker v. Tatem , 48 Conn. 520 ( 1881 )

Granger, J.

This is an action of trespass, for assault and battery and false imprisonment, and was tried to the jury upon the general issue and notice. There were four defendants. The jury returned the following verdict:—

“ In this case the jury find the issues in favor of the plaintiff as against the defendants James B. Tatem and Haskell E. Cox, and in favor of the defendants, Edward W. Warren and Calvin M. Brooks; and therefore find for the plaintiff to recover of the defendaxxts James B. Tatem and Haskell E. Cox, the sum of one hundred and seventy-five dollars damages and his costs; the damages assessed by the jury to be divided as follows:—against James B. Tatem, seventy-five dollars ($75); against Haskell F. Cox, one hundred dollars ($100).”

The coui’t accepted the verdict and rendered judgment for the plaintiff to recover of the defendants Tatem and Cox the sum of one hundred and seventy-five dollars and his costs. The defendaixts moved in arx’est of judgment for the irregxxlax'ity of the vex'dict. The case is before us upon the motion in error filed by the defendants upoxx the ovei’ruling of their motion in arrest.

The oxxly question is, Was the verdict regular and legal? A majoxity of the court think it. was clearly irregular and illegal, and that the court ex-red in accepting it and rendering jxxdgment upon it. It is elementary law that verdicts must correspond with and be responsive to the issues joined in the cause. The issue in this case was whether the defendants or axxy of them were guilty of an act of ti’espass against the plaixxtiff, and, if so, how much damage he had sustaixxed;—xxot how much damage he had sustained by the act of Tatem and how much at the hand of Cox, nor how much as a matter of equity between themselves each one ought to pay. There is no contribution between joint trespassers and the jury had no power to determine how much each one should pay. It is true the court disregarded that part of the verdict which apportions the damage and rexxdered judgment against both defendants for the whole sum. But this judgment does not correspond with the verdict of the jury. We think it very apparent that the jury considex’ed the apportionment an essential part of their verdict, and it is more than probable that no verdict would have beexx ren- ■ dered for the plaintiff had they supposed that their assessment of damages between the two defendants as they returned it would be disregarded and that each would be held, as the law holds them, liable for the whole sum. And as this court said in the case of Roberti v. Atwater, 42 Conn., 270, “ The verdict is faulty in substance. The issue was—had the defendant done the wrong and disseisin charged in the declaration.” The jury in that case found the issue for the plaintiff, that he recover the seisin and possession, and that the defendant have until a day named to remove the barn. “ It is clear (the court say further) that the jury believed that they were authorized to name a day in the future prior to which the defendant might enter upon the plaintiff’s land without consent and remove the barn. It is presumed that this belief entered into and produced the verdict, and that the jury would not have agreed to any portion of it as actually rendered unless this condition had been embodied in it. To strike off this condition and allow the remnant to stand is for this court to make and record a verdict which the jurors refused to render. They practically declared themselves unable to agree upon one within legal limits and we cannot perfect that which they left thus imperfect.” We think these suggestions applicable to the present case. We have no doubt that the jury believed that they had a right to apportion these damages, and that they made this an essential element in their verdict, and as we have said, might never have come to a result in favor of the plaintiff but for this belief.

Again, to sanction such a verdict would be to infringe upon the orderly and well-settled, practice of the courts and encourage a. species of jury-room arbitrament and assessment of damages among defendants whom they wished to favor, if there should happen to be any such. The court should have instructed the jury that the apportionment of damages was beyond their province and requested them to strike it out of the verdict, and upon their refusal so to do should have arrested the judgment.’

There is error in the judgment complained of.

In this opinion Carpenter and Pardee, Js., concurred.