Herrlin v. Brown & McCabe

Mr: Justice Bean delivered the opinion of the court. The only question for consideration upon this appeal is the matter relating to the submission of and the answer to the special question of fact. Section 154, L. O. L., provides as follows: ‘ ‘ In every action for the recovery of money only, or specific real property, the jury, in their discretion, may render a general or special verdict. In all other cases, the court may direct the jury to find a special verdict [475] upon all or any of the issues; and in all cases may instruct them, if they render a general verdict, to find upon particular questions of fact, to be stated in writing. ’ ’ Counsel for the defendant maintain: (1) That the jury must answer special questions of fact submitted by the court; (2) that the court is not permitted to excuse the jury from so doing; (3) that the failure of the jury to agree on the special question of fact submitted to them was equivalent to finding affirmatively thereon, and was therefore in conflict and inconsistent with the general verdict in favor of plaintiff—citing Rolfes v. Russell, 5 Or. 405. Under Section 155, L. O. L., when a special finding of fact shall be inconsistent with the general verdict, the former shall control the latter. The object of requiring the jury to pass separately and specifically upon controverted questions of fact material to the issue is to secure a more careful and methodical consideration of the evidence by the jury, and disclose the precise grounds upon which the verdict is based: Knahtla v. Oregon S. L. Co., 21 Or. 136, 153 (27 Pac. 91). 1, 2. The submission of the particular question of fact to he answered by the jury in addition to their general verdict in the case at bar was a matter wholly within the discretion of the trial court, and will not be reviewed on appeal: Swift v. Mulkey, 14 Or. 59 (12 Pac. 76); Knahtla v. Oregon S. L. R. Co., 21 Or. 136 (27 Pac. 91); White v. White, 34 Or. 141 (50 Pac. 801, 55 Pac. 645); Wild v. Oregon S. L. Ry. Co., 21 Or. 159 (27 Pac. 954); Palmer v. Portland Ry. L. & P. Co., 62 Or. 539 (125 Pac. 840). Such submission could be properly withdrawn by the court at any time before the jury had found a special verdict on the particular [476] question submitted: Rohr v. Isaacs, 8 Or. 451, 454. In the latter case the jury returned a general verdict, and were instructed to retire and find on a special question of fact which had been submitted to them. One of the jurors becoming sick, they were discharged without answering the question, and a judgment on the general verdict was sustained. In the case now under consideration, upon the inquiry of the jury to know if they were required to answer the special question, the court answered, “No,” and in effect withdrew that question from the jury. The instruction added to the answer of the court left the matter practically within the discretion of the jury, the same as the rendition of a special verdict under the provision of the first portion of Section 154, L. O. L. “A failure of the court to require an interrogatory to be answered,” says Mr. Thompson in his work on Trials (2 ed.), Section 2685, “has the same effect as refusing to submit it.” In some jurisdictions, where the word “shall” or “must” is used in the statute governing the submission of interrogatories to the jury, it is compulsory upon the court when opportunely requested to make submission. In states like our own, where the word “may” is employed in the statute, it is held to be discretionary with the trial court: 2 Thompson, Trials (2 ed.), Section 2672. However we view the •matter, whether as a withdrawal of the special interrogatory or as a failure of the trial court to require the question to be answered by the jury, it would not be a reviewable question: Fox v. Tift, 57 Or. 268, 275 (111 Pac. 51, Ann. Cas. 1912D, 845); Knahtla v. Oregon S. L. R. Co., 21 Or. 136 (27 Pac. 91); White v. White, 34 Or. 141 (50 Pac. 801, 55 Pac. 645). 3. There is another feature of the case worthy of mention, in view of the fact that the evidence is not [477] contained in the record. The general verdict in this case can he supported on the theory that appellant was negligent in loading the fore part of hatch No. 1 first, instead of beginning at the rear part thereof against the hatch wall and working forward, as set forth in the second allegation of negligence in the complaint. Under such conditions the rule is that the failure of the jury to answer special questions, even under statutes making it a matter of absolute right, becomes immaterial, when the verdict could have been returned on other issues, or supported on any other hypothesis: Schneider v. Chicago, B. & N. R. Co., 42 Minn. 68 (43 N. W. 783); Eklund v. Martin, 87 Minn. 441, 444 (92 N. W. 406); McDermott v. Higby, 23 Cal. 490; Loewenberg v. Rosenthal, 18 Or. 178, 181 (22 Pac. 601). It follows that the judgment of the lower court should be affirmed, and it is so ordered. Affirmed. Mr. Chief Justice McBride, Mr. Justice Eakin and Mr. Justice McNary concur.