Holmboe v. Morgan

Mr. Justice Eakin delivered the opinion - of the court. 1. The first assignment of error is as to the refusal of the court to receive the first form of verdict returned by the jury, and as to the order of the court requiring them to return to the jury-room and to put the verdict in proper form. The statute gives the [399] trial judge wide discretion in determining the sufficiency of the verdict, and he is vested with authority to have the jury correct informal verdicts or to require it to cover in proper form the questions submitted to it. Sections 150,151, L. O. L., provide: “When a verdict is given, and before it is filed, the jury may be polled on the request of either party, for which purpose each shall be asked whether it be his verdict; if any juror answer in the negative, the jury shall be sent out for further deliberation. If the verdict be informal or insufficient, it may be corrected by the jury under the advice of the court, or the jury may be again sent out. When the verdict is given, and is such as the court may receive, and if no juror disagree, or the jury be not again sent out, the clerk shall file the verdict. The verdict is then complete, and the jury shall be discharged from the case. The verdict shall be in writing, and under the direction of the court shall be substantially entered in the journal as of the day’s proceedings on which it was given. ’ ’ It must be conceded that the verdict in this case was informal and insufficient as tendered, and it was the duty of the court to refuse to receive it until it was reduced to proper form and substance. It did not decide the questions submitted to the jury, and the judge properly sent the jury out again to correct it. It was not the verdict of the jury until it was received by the court and filed with the clerk: See State v. Waymire, 52 Or. 281 (97 Pac. 46, 132 Am. St. Rep. 699, 21 L. R. A. (N. S.) 56). To have treated the verdict first returned by the jury as a general verdict of a joint liability, discarding an apportionment of the damages, would have been very irregular and might probably have resulted in a mistrial; and it was in the discretion of the court to require the jury to express its meaning fully to avoid further complications. There was no error in having the verdict corrected. This disposes of the second assignment of error also. [400] 2. Defendant Howard requested an instruction that oral evidence of the agreement of defendant Howard’s agent, Dunbar, that defendant Morgan should be instructed in the operation of the machine, should not be received to vary or add to the written contract of sale, and asked for a directed verdict in favor of Howard. The order for the machine was in writing and signed by defendants Morgan and Howard, and the rule is that the terms- of the writing cannot be varied by parol evidence; but where the contract is not one required by the statute of frauds to be in writing, this rule is not violated by admitting evidence to establish the parts of the contract not contained in the writing: American Contract Co. v. Bullen Bridge Co., 29 Or. 549 (46 Pac. 138); Williams v. Mt. Hood Ry. & Power Co., 57 Or. 251 (110 Pac. 490, 111 Pac. 17, Ann. Cas. 1913A, 177). 3. The evidence establishes that Morgan was to be taught to operate the machine. This was testified to by Morgan and admitted by Dunbar, and Mr. Johnson, the manager of Howard’s auto business, testified that, when a sale of a car is made, there is involved, although not specified in the order for the machine, a demonstration of the car and the making of the buyer acquainted with it. This establishes the authority of the salesman to contract therefor. Although the instructions given were compensated by the agent’s commission, yet it was a part of the contract of sale and to be furnished by the dealer, and, not being mentioned in the order for the machine, may be proved by parol. There was no error in admitting such proof. This decision disposes also of assignment No. 5. 4. It is contended that Morgan insisted on driving the car at the time of the accident, and therefore should be held liable for the damages. It appears that Rob [401] inson was out with Morgan for the express purpose of demonstrating the car and of teaching Morgan how to run it; that Morgan knew nothing about it or how to run it, had run it only three or four miles the day before, under Robinson’s direction, and, at the time of the accident, was at the wheel for the second time only, under Robinson’s control and immediate supervision. The question of whether Morgan or Robinson was the efficient cause of the accident, or whether they were jointly liable, was squarely and plainly presented to the jury for decision, and was the only question so submitted. All of the facts were before it, and we should not disturb its findings upon that matter. Although the defendant Howard contends that Robinson requested Morgan to let him (Robinson) drive the car when they came to the crowded streets of the city, that did not relieve Robinson of the control of the machine. He was in charge of the car and was to instruct Morgan as to running it, and if he thought they were in a locality where the car should be in the hands of an expert, he should have taken control. The conclusions above reached dispose also of the questions presented by the request for a directed verdict in favor of the defendant Howard and also by the motion for a new trial. 5. Defendant insists that by the terms of the stipulation above quoted, Morgan’s liability is admitted, and that the verdict should have been against defendants jointly. The stipulation is expressed in loose language, but, taken as a whole, is not ambiguous or of doubtful meaning. It provides that the plaintiff: shall have judgment for $8,000 against defendants, and who shall be adjudged liable therefor, that the question as to whether Morgan or Howard shall be held jointly or severally liable therefor shall be determined by the jury. It is plain that it meant [402] that the judgment should be against the defendants (jointly or the one), who should be adjudged liable therefor, and that whether Morgan and Howard should be held jointly, or only one of them, liable should be determined by the jury. There can be no several liability of two or more tort-feasors for the same tort, and the parties proceeded with the trial of the case with that understanding of the stipulation. The judgment is affirmed. Affirmed. Mr. Chief Justice McBride, Mr. Justice Bean and Mr. Justice McNary concur.