Turner v. L. L. Murphrey Hog Co.

HEDRICK, Judge.

By assignments of error numbers 3, 5 and 7, defendant asserts that the court erred in the issues submitted to the jury and the instructions given thereon. We focus our attention on the second issue submitted. Defendant argues that this issue is confusing, and that the jury was confused by the judge’s confusing instructions. We agree.

John Milton in Paradise Lost described Hell as, “Confusion worse confounded.” The “hellish” position in which the participants to this comedy of errors found themselves is manifest in the colloquy between the jury and the judge when it returned to inquire:

FOREMAN: A point has arisen on issue no. 2. Was there an average of 34 pigs weighing less or did each pig weigh less than 40 pounds?

COURT: The question is: Were 34 pigs weighing less than 40 pounds delivered in the third lot of pigs on July 23, 1976?

FOREMAN: Was it average or each?

COURT: Each has nothing to do with average.

The attorney has specified that 32 pounds, if that serves me right.

That would mean that some were over 40 pounds to bring it down to 37 pounds. You have got to go on what your recollection is of the evidence and use your own logic and common sense. It doesn’t make sense unless you rely on each.

Much of the confusion experienced by the judge and jury lies in the wording of the second issue. There is no evidence in this record that the plaintiff delivered thirty-four pigs to the defendant weighing less than forty pounds. Yet, an affirmative answer to the second issue would yield the absurd conclusion that the plaintiff delivered thirty-four pigs each averaging 1.176 pounds. The issue as stated by the court required the jury, if it was to make any sense whatsoever, to return a negative answer to the issue. Thus, the defendant was deprived of having the jury consider its evidence tending to show that at least some of the thirty-four pigs weighed less than forty pounds, for which there was no market.

The evidence of the plaintiff tends to show that not one pig weighing less than forty pounds was delivered to defendant. The evidence of the defendant, to the contrary, tends to show that thirty-four of the pigs in the third load on July 23 had an average weight of 37.65 pounds. It is obvious therefore that at least one pig delivered that day weighed less than forty pounds. Since all of the evidence tends to show that no pigs weighing less than forty pounds were bought and sold as “feeder pigs” on the regular market, a genuine issue of material fact raised by the evidence, therefore, is whether the plaintiff on 23 July 1976 delivered any pigs weighing less than forty pounds to the defendant. A negative answer to this issue would resolve the controversy between the parties and enable the court to enter a judgment on the verdict for the plaintiff in an amount that could be calculated mathematically from known and uncontroverted facts. An affirmative answer, on the other hand, would bring into play other facts and other principles of law not discussed herein.

Since there must be a new trial, it is unnecessary to discuss other assignments of error brought forward and argued in defendant’s brief.

New trial.

Judges Clark and MARTIN (Harry C.) concur.