Hadley v. Heywood , 121 Mass. 236 ( 1876 )

Lord, J.

The verdict of the jury, in favor of the defendant upon the first count, renders immaterial the exceptions taken by the defendant to the sufficiency of the evidence upon that count. In relation to the second count, we see no objection to the ruling of the presiding judge. Certainly, it is not necessary for the plaintiff to prove that the defendant’s conduct was the sole cause of his wife’s leaving him; and the ruling of the presiding judge that it is sufficient to maintain the action, if the defendant’s conduct was the controlling cause, without which she would not have left him, is not erroneous. Any unhappy relations existing between the plaintiff and wife, not caused by the conduct of the defendant, may affect the question of damages, and were prop erly submitted to the jury : but they are in no sense a justification or palliation of the defendant’s conduct. They are not allowed to affect the damages because the acts of the defendant are less reprehensible, but because the condition of the husband is such, that the injury, which such acts occasion, is less than otherwise it might have been.

So far as the proceedings respecting the receiving and recording the verdict are concerned, this court has no power to revise those acts of the judge in the court below, which are within his discretion ; and we are of opinion that there was no error in any matter of law, by which the defendant is aggrieved.

The language of the presiding judge to the jury, “ It is your duty to agree on both counts, and you will retire and deliberate,” is not to be taken as coercion; but it is merely his instruction, as matter of law, that all the issues presented by the pleadings are to be passed upon by the jury; not that any juryman is under obligation to assent to a verdict in conflict or not in concurrence with his own judgment. The true meaning is, it is for the jury to find a verdict upon the whole case.

It appears from the bill of exceptions, that when the jury came into court and their verdict was affirmed, it was a general verdict for the plaintiff; had nothing further been done, the verdict would have stood as a verdict for the plaintiff upon both counts. It further appears, that the counsel both of the plaintiff and the defendant requested the judge to ask the jury whether they had found for the plaintiff on both counts or on only one. He did so inquire, and the reply was, “ On the second count.” Both counsel then desired the judge to ask as to the first count, to which they replied that they had not agreed. Had the defendant been content with the state of facts then existing, he would have had all the benefit which the position afforded him. He, however, claimed the right to have the first count passed upon by the jury; or to have the jury discharged as having disagreed upon the whole case. The presiding judge then directed the jury to do precisely what the defendant had asked to have done, in his first alternative, to wit, pass upon the first count. If this be an irregularity,.it was at the defendant’s request, to which he could not object had the verdict been against him, and, a fortiori, the finding having been in his favor. Exceptions overruled.