
    Caroline B. Kennard, as Administratrix of the Estate of Leonard E. Coker, Deceased, Respondent, v. Welded Tank & Construction Co. Inc., Defendant and Third-Party Plaintiff-Appellant. Colorado Fuel & Iron Co., Inc., Third-Party Defendant-Respondent. (Action No. 1.) (And Three Other Actions.)
    Argued September 30, 1969;
    decided October 29, 1969.
    
      
      Saul I. Weinstein for plaintiff-appellant in Action No. 1.
    The special findings are consistent with the general verdict. (Theurer v. Holland Furnace Co., 124 F. 2d 494; Markel v. Spencer, 5 A D 2d 400, 5 N Y 2d 958.)
    
      
      Lewis F. X. Cotignola, Harry W. Robinson and Abraham Brinn for plaintiff-appellant in Action No. 3.
    I. The Trial Justice had discretionary power to resubmit the inconsistency in the verdicts for the further deliberation of the jury. (Ignatow v. Dakin, 13 Misc 2d 670; Ehrenberg v. Persons, 8 A D 2d 18; People v. Karr, 240 N. Y. 348; Warner v. New York Cent. R. R. Co., 52 N, Y. 437; Hatch v. Attrill, 118 N. Y. 383; Porret v. City of New York, 252 N. Y. 208; Rogan v. Mullins, 22 App. Div. 117; Fairchild v. Cervi Bros. Trucking Co., 1 A D 2d 508; Reilly v. Shapmar Realty Corp., 267 App. Div. 198; Castanos v. Lansing, 2 Misc 2d 529.) II. It was reversible error to deny the motion for resubmission on the ground that the court lacked power to do so. (Russell v. Conn, 20 N. Y. 81; Tolman v. Syracuse, Binghamton & N. Y. R. R. Co., 92 N. Y. 354; Waisikowski v. Philadelphia & Reading Coal & Iron Co., 173 App. Div. 538, 228 N. Y. 581; Artisans’ Bank v. Treadwell, 34 Barb. 553; Katz v. DeWolf, 151 Wis. 337; Brigham v. Olmstead, 10 A D 2d 769; Ruina v. Nu Car Carriers, 2 A D 2d 779.) III. The special findings could not warrant the direction of a verdict dismissing the complaint in Action No. 3 and directing the entry of judgment on them therein. (Bergman v. Scottish Union & Nat. Ins. Co., 264 N. Y. 205; Swarzina v. Knight & Timoney, 265 App. Div. 33; Pangburn v. Buick Motor Co., 211 N. Y. 228.) IV. The special verdict is not irreconcilable on any reasonable theory with the general verdict. (Fromer v. Glamour-Wear Mfg. Co., 276 App. Div. 420; Coulter v. Pomeroy, 265 App. Div. 51; People v. President & Directors of Williamsburg Turnpike Road & Bridge Co., 47 N. Y. 586.)
    
      Arthur W. Block for defendant-appellant in Actions Nos. 1, 2 and 4.
    
      Reginald S. Marshall for defendant-respondent.
    The trial court acted within its power and as directed by section 459 of the Civil Practice Act in directing judgment in favor of Colorado. (Pangburn v. Buick Motor Co., 211 N. Y. 228; Dempsey v. Mayor, Aldermen & Commonalty of City of N. Y., 10 Daly 418.)
   Bergan, J.

These four actions arising from an accident February 24, 1954, now almost 16 years ago, were tried together in October and November, 1960. General verdicts were returned in favor of two plaintiffs, Edward T. Karran, since deceased, and C. W. Lauman & Co., who in direct actions sued Colorado Fuel & Iron Co. for negligence.

The other claims against Colorado were third-party actions by Welded Tank & Construction Co. Inc. Special verdicts were returned at the same time as the general verdicts on interrogatories propounded by the court to aid in its own determination of the third-party claims against Colorado. These special verdicts were to the effect that Colorado was not negligent.

The general verdicts and the special verdicts were inconsistent on their face. Colorado could not be held negligent as a predicate for the general verdicts and also not negligent by the special verdicts in the same jury submission on the same facts at the same trial.

At Trial Term the court decided in a careful opinion (26 Misc 2d 1000) that under the statute which in 1960 governed the practice (Civ. Prac. Act, § 459) the general verdicts must be conformed to the special verdicts and accordingly judgment was directed in favor of Colorado dismissing the two direct actions against it.

The court’s legal power to have conformed the inconsistent general verdicts to the special verdicts is undoubted and is not disputed. The language of the practice statute was then cast in mandatory and directory terms: "Where a special finding is inconsistent with a general verdict, the former controls the latter, and the court must render judgment accordingly.” (Civ. Prac. Act, § 459, last sentence.)

The main thrust of appellants ’ argument is that notwithstanding the terms of the statute, the court retained a discretionary control over the verdicts and the failure to exercise the discretion because the court felt bound by the statutory language was a legal error which now requires reversal.

This discretion, so it is further argued, should have been exercised in a particular direction by resubmission of the case before the jury was discharged, in response to plaintiffs’ request; or by ordering a new trial after the jury was discharged in response to further motions addressed to the verdicts.

But if the significant error is, as appellants suggest, a failure to exercise a discretion vested in the Supreme Court notwithstanding the language of the statute, the usual legal remedy as far as this court’s jurisdiction goes, would he to remit the case to the Trial Term with a direction to exercise the discretion.

The remand would not take the form of advising the Supreme Court how to exercise that discretion. Moreover it is clear from the record, as it will be shown, that the Trial Term was of opinion the special verdicts were right on the merits, and if the case were now remitted the discretion would be exercised with the same result: to conform the general to the special verdicts.

The statutory provision relating to such inconsistent verdicts has a very long history, as Judge Crouch observed in his concurrence in Bergman v. Scottish Union & Nat. Ins. Co. (264 N. Y. 205, 214). A reasonable answer to the problem of duty and discretion is that if the Trial Judge be of opinion that the special verdict is in accordance with the weight of evidence, and with the justice of the case, and, therefore, if he let it stand, he must conform the general verdict to the special one. Under CPLR.4111 the mandatory statutory direction for conformity extending back to 1848 (Code of Pro., § 217, renum. as § 262 by L. 1849, ch. 438; Code Civ. Pro., § 1188) has now been eliminated and the problem in this case will not recur.

No case has held, under the former practice, that if the court was soundly of opinion within its legal powers that the special verdict was right and consistent with evidence, it was required to send the jury back or to order a new trial.

In Bergman v. Scottish Union & Nat. Ins. Co. (supra), on which appellants rely, there was no general verdict and the trial court attempted to resolve a kind of controversy which called for a general verdict by submitting special questions and, on the basis of answers returned, directing a general verdict. The case, holding this could not be done, has no bearing on the present problem.

There are other decisions which deal peripherally with the question of inconsistency, but they do not require the reversal which appellants seek. In Pangburn v. Buick Motor Co. (211 N. Y. 228) there was inconsistency intrinsic in the general verdict itself. The jury had found for the plaintiff against the owner but not against the driver of a car, a verdict which the court regarded one which “as an entirety amounted to one of no cause of action” (p. 233) and which should have been set aside.

Both Hatch v. Attrill (118 N. Y. 383) and Warner v. New York Cent. R. R. Co. (52 N. Y. 437) were concerned, as was Pa/ngburn, with intrinsic inconsistencies in general verdicts and not with conforming special and general verdicts.

In Kennedy v. Ball & Wood Co. (91 Hun 197) there was an inconsistency between the special verdict and the general verdict, and although the court restated what the statute provided (Code Civ. Pro., § 1188) that the general verdict must conform to the special verdict (p. 199) it held that the jury should have been sent back to deliberate further.

The power of the court to send the jury back to deliberate further when there is a patent inconsistency in verdicts is, of course, very clear. Whether the court must, as a matter of law, do so in a particular case depends ultimately on the court’s judgment as to which of the conflicting verdicts is consistent with the weight of evidence.

The decision of the former General Term of the Supreme Court in Kennedy (supra) was made by a part of the Supreme Court which on review had the same discretion and control over the weight of evidence that the Trial Term had. The General Term was manifestly not of opinion that the special verdict was the right one, but that the inconsistency was such that rightness could not be determined, and, therefore, the discretionary power to resubmit should have been exercised.

There was no discussion in the opinion of the effect of the statute on the discretionary power to resubmit; and that question apparently was not argued—the effect of the statute to require the conformity of the general to the special verdict being assumed without question. That decision of the former General Term does not lead the court now to reverse the present order.

The suggestion is made that the result here is unjust. It is unjust if one accepts the general verdicts as being right and the special verdicts as being wrong. It is not unjust in the converse, and it must be accepted by this court that the Trial Term and Appellate Division accurately appraised the weight of evidence and the general fairness of the special- verdicts and of the resulting judgments.

The Trial Judge was very clear in the view that the special verdicts absolving Colorado of negligence were not against the weight of evidence, i.e., “ the court rejects the argument” (26 Misc 2d, at p. 1003) and conversely the Judge was of opinion that a finding of negligence on Colorado’s part ” was neither reasonable nor consistent with the evidence and its fair inference ” (26 Misc 2d, at p. 1010). Thus he was of opinion that the special verdicts absolving Colorado of negligence were right.

There seems no sound basis, then, to hold as a matter of law that the court was wrong in refusing to exercise a discretion to resubmit or to order a new trial. It seems obvious, as it has been observed, the discretion, if exercised, would have been adverse to appellants. Even if the law question were closer than it seems to be, the projecting by a new trial of this protracted litigation into a possible series of years in the future ought to be avoided, if possible, within reasonable judicial policy.

There remains the question whether appellants with direct plaintiff claims against Colorado were misled to their legal prejudice by the court’s method of framing and submitting the questions for the special verdicts.

The court advised counsel it was submitting the interrogatories for its own guidance in deciding for itself (as the third-party plaintiffs and defendants stipulated it might) the issue of liability over. It had this power specifically under section 193-a of the former Civil Practice Act. In that submission, of course, the plaintiffs with direct claims against Colorado were not concerned and the court stated its purpose in submitting the special findings " is not with respect to these cases at all, but with respect to the claims over ”.

Nevertheless the cases based on different theories were all tried jointly and submitted together. Had plaintiffs objected to the submission of the questions at the same time the jury was considering the general verdicts, which they did not do, the court could nevertheless within the frame of its legal power have submitted the questions. It is not necessary to consider now whether, if plaintiffs in such a situation find themselves in danger of prejudice by this form of submission, they should move for severance.

"Whenever cases are tried together the power of the court is clear. It is one of the results of litigating together a number of disparate rights that verdict inconsistency might occur. But the fact some parties sue directly and others have claims over against the same defendant does not justify breaking down the trial in air-tight compartments insulated from the effects of over-all submission of the cases together. (Cf. Swarzina v. Knight & Timoney, Inc., 265 App. Div. 33.)

The order of the appellate Division should be affirmed, without costs.

Breitel, J. (dissenting).

The issues are fully detailed in the opinion written by the trial court (26 Misc 2d 1000); it would be bootless to repeat the discussion except to indicate the few points of disagreement which require a reversal and the ordering of a new trial if a just and legally correct result is to be achieved.

Repeatedly, the appellant, plaintiff Karran, was assured during the trial by the trial court that the special questions being submitted to the jury were of no concern to him, and were to be used only to assist the trial court in determining the claims over (by Welded Tank) against the third-party defendant (Colorado) in this consolidated action. As a consequence Karran did not, and indeed, could not have sought to have the special questions arranged to dovetail with the general verdict it was seeking against his defendant, Colorado Fuel & Iron Co., in the third action. Nevertheless, it was the alleged inconsistency between the special findings and the general verdict in favor of Karran against Colorado that resulted in the vacatur of that general verdict and the dismissal of his complaint. Instead of not being concerned with the special findings, Karran’s general verdict against Colorado was destroyed by them, hardly a matter of indifference.

The alleged inconsistency between the general verdict and the special findings may have been only an apparent one, which, if clarified, by the jury, might have been resolved. This resulted from the fact that the first special question concerned only the plaintiff Lauman against Welded Tank (and not Karran). The jury answered that Welded Tank was guilty of both negligence and breach of warranty. Its further finding that Colorado was not guilty of negligence despite its general verdict against Colorado in favor of Karran may have been based on a delivery by Colorado of defective parts, without negligence on its part. While the jury was not entitled to hold Colorado liable on such a ground in favor of Karran, it is only speculation that this was the cause of the apparent inconsistency. Notably, the jury had found that the parts were defective and that Welded Tank had been guilty of negligence during or prior to the manufacture of the tank to which the defective parts were attached and that it had been guilty of negligence in testing or inspecting the defective parts. Hence, none can say, in this particular case, whether the jury’s mistake was with its special findings or its general verdict, because the apparent inconsistency of the verdict was never resubmitted to the jury to be resolved.

Lastly, although section 459 of the Civil Practice Act mandates a preference for special findings over a general verdict where they are inconsistent, this mandate is not operative until the verdicts are accepted and the jury discharged. Since time ever so long a trial court may resubmit a jury’s verdict to it for clarification, completion, correction, or the elimination of inconsistencies (Hatch v. Attrill, 118 N. Y. 383, 388-389; Warner v. New York Cent. R. R. Co., 52 N. Y. 437, 440 ; 8 Carmody-Wait 2d, New York Practice, § 58.25). Fortunately, the new statute (CPLR 4111, subd. [c]) makes explicit what was implied before and adds a further alternative, the ordering of a new trial.

The net result is that Karran may not recover against Colorado, despite a general jury verdict in his favor. For precisely the same reasons, plaintiff Lauman has been deprived of its general verdict against Colorado. As for defendant Welded Tank, which also appeals, there is less concern because the jury in its special findings held it guilty of negligence which would probably have precluded it from recovering on its third-party claims against Colorado.

Since the. trial has been concluded and the jury discharged, there is no way to unravel this chain of injustices, occasioned through no fault of the plaintiffs-appellants who were assured that they were involved only in the general verdicts, except by reversing the judgment and ordering a new trial. To be sure, the action is very old, and the rulings no longer of precedental value, because of the change in the statute (CPLR 4111, subd. [c]); but the injustice worked is irrevocable, if the judgment is affirmed.

Accordingly, I dissent and vote to reverse and order a new trial.

Chief Judge Fuld and Judges Scileppi and Gibson concur with Judge Bebgan ; Judge Bbeitel dissents and votes to reverse in a separate opinion in which Judges Bubke and Jasen concur.

Order affirmed.  