
    Sophia B. Douglas, Respondent, v. Metropolitan Street Railway Company, Appellant.
    First Department,
    May 17, 1907.
    Trial—negligence — error in instructing jury as to amount o£ recovery —erroneous refusal'to charge.
    When in an action based on negligence the jury returns a verdict which the court deems inadequate, it is error for the court to direct the jury to retire and reconsider their verdict with instructions that it is insufficient. It is also error to refuse to receive the defendant’s request to charge that the jury was not bound by the views 'of the court as to the amount of the verdict and that it was within their discretion.
    The court has power to request the jury'to reconsider their determination as to the amount of a verdict whether the action he for liquidated or unliquidated damage, but in the latter case the court should not intimate to the jury that the amount. of damage was not for- them, or giv-e any instructions which indicate the amount to which the plaintiff is entitled.
    
      (Per Clarke and Laitghlin, JJ.): In an action upon tort for unliquidated damage the court has no power to instruct the jury as to the amount which they shall bring in, or to ref usé to receive a verdict which is substantial in amount. In three Slasses of cases only may a judge-interfere with a verdict:.
    (1) Where the damages are nominal! . . ' ■
    (2) In cases on contract where a party is entitled to a fixed sum if he recover. -
    (3) Cases where interest is added or obvious amendment made with consent, of the jury to express their real views.
    . Appeal by the defendant, the Metropolitan.Street Bailway Company, from an order of the' Appellate Term of the Supreme Court, entered in the office of the clerk of the county of New York on the 11th day of December, 1906; affirming a judgment of the City • Court of-the city of New York in favor of the plaintiff, entered in the office of thé clerk of said court on the-22d day of January, 1906, upon the. verdict of a jury for $200, and also affirming an order of. said City Court entered in said clerk’s office on the 8th day of February, 1906, denying the defendant’s motion for a. neW trial made upon the minutes. .
    
      James I. •QuaeTceiibush, Bayard H. 'Ames'., and Anthony J. Ernest with him on the brief, of counsel \IIenry A. Robinson, attorney], for the appellant.
    
      Robert. Goeller of counsel [Samuel Campbell, attorney],, for the respondent. ¡
    
   Clarke, J.:

This was an action in the City Court to recover damages for personal injuries claimed to have been the result of defendant’s negligence. The case having been submitted to the jury, after deliberation they returned and reported to the court that they had found á verdict in favor of the plaintiff for the sum of fifty dollars. Counsel for the .plaintiff moved to set the verdict aside. The court said: “ I will not receive that verdict in this case. I request you to retire and reconsider it.- The plaintiff testified ' to the. injuries received and her doctor.to the treatment made necessary thereby, and Fifty dollars nominal' damages is not, in my opinion, a just compensation, therefor. By the verdict you bring in now you say the plaintiff has satisfied all-the reqnireriients of the law-that-justifies ■ her in recovering against the defendant for its negligence in operating the car at the time and place in .question, arid you .say that the only damage she sustained by reason of her pain and suffering and and the injuries she received can be compensated for with Fifty dollars. The court does not agree, with you and directs you to go back to the jury room. If yon find that this plaintiff is entitled to recover, give her such sum as will compensate her for the injuries she received, and the pain and suffering she endured by reason thereof.” Counsel for the defendant excepted to the refusal to accept the verdict as beyond the authority and scope of the court’s jurisdiction and attempted to get an instruction to the jury, which the court refused to receive. Thereafter, the jury brought in a verdict for $200 for the plaintiff and judgment was entered thereon.

The refusal of the court to receive any request to charge after this action upon -its part was clear error. As said in Chapman v. McCormick (86 N. Y. 479): “ The jury were before the court in their proper places. Its ear was-withheld from the counsel, not because he did not speak in season, but because anticipating the object of counsel the court decided to deny him. It may be that no suggestion would have changed that mind, but had it been heard the defendant would have had either the benefit of an exception to that decision or á ruling of the court in accordance with his views. To one or the other he was entitled; and it was beyond the power of the court to deprive him of it. As a trial judge is bound to instruct the jury -on' each proposition of law- submitted to him by counsel bearing upon the evidence, *■ * * so it must be a legal right of counsel to submit such propositions * ■ *" * and its denial by the court a subject of exception and review upon appeal.” If. that be the rule' in an ordinary case, if after .the charge counsel has the absolute right to present a request, perhaps required by the charge, how much moi:e so when the court has undertaken to interfere with the verdict of the jury ?

Assuming arguendo that the' court had the power to refuse to receive the verdict, it certainly was the right of counsel to have the court instruct the jury that nevertheless they were not bound by the views of the court, but the determination of the amount was still ■ within their discretion. The error in refusing to. hear the proposed request is fatal to this judgment. ■

Upon the main proposition I am also inclined to think-that it cannot be sustained. ■ So far as I have been able to'discover, no pase sustains the proposition that where the damages are unliquidated in an action upon a tort the court has the power to instruct the jury as to the amount which they should ‘bring in or refuse to receive a verdict, which is substantial in amount. As I understand it, there are. three, classes of cases in which a .judge cail interfere with the verdict. First, if. the damages are nominal, as.for instance, ,in;a death case if the jury should return a verdict of .six cents. 'This is so palpably inconsistent that the "court is authorized in refusing to receive it.and sending the jury back for further- consideration. (Rogan v. Mullins, 22 App. Div. 117.)

Secondly, where in an action ex contyactu if a party is entitled to a verdict at all he is entitled to a fixed sum, as in Hatch v. Attrill (118 N. Y. 383). In that case tlie jury brought in a sealed verdict for $50,000. .The court refused to receive it, and directed the jury to.retire and instructed them if they found a verdict, for the-plaintiff to. find it for the full amount claimed. The- jury afterwards returned into court and rendered a verdict for $163,695.31. The court said; “The amount of the debt due the plaintiff was that for which the verdict was finally rendered. That was not questioned. Whether or' not the plaintiff' was' entitled to recover- any -sum ■ against the defendants, was a question of fact for the jury, buttin' the event they found for the plaintiff the amount of -the debt was the measure of recovery. . When, therefore,, the jury found that the plaintiff was entitled to recover,; their -further duty-was plain. The court refused to .receive the verdict as first found, because it ' was not such an one as the jury, under the instructions of the-court, legally were at liberty to render, and they were sent back to reconsider the verdict, so far as it related to the question of fact, with directions as to the amount of it in the event they found for the _ plaintiff. In ■ that respect and in such event it was- matter Of- correction of a mistake. The province of the jury was not to. any extent invaded by this action of the court. And,before the Verdict was recorded, tit was within the recognized power of the court for the purpose,, and as done in' this instance, to send the jury back to reconsider their verdict.”

The third ■ class of cases is where interest .is added Or other obvious amendments are made so that the verdict may express the real Views of the. jury with the consénf of the jury. As in Modg kins v. Mead (119 N. Y. 166), the court having directed the jury .that if they found for the plaintiff, the verdict should lie for a given . sum, a sealed verdict was returned for the plaintiff without any amount stated. Upon motion thereafter upon affidavits of all the jury that they had forgotten the .amount, but as the court had ‘ stated the exact amount which the plaintiff was entitled to if he received ■ a verdict, they supposed the court would insert that amount and the verdict was amended accordingly. This case does not come within any of those classes. At first blush the argument is rather persuasive that as the court undoubtedly has the power to set aside the verdict as inadequate it makes for simplicity to refuse' to receive an inadequate verdict and require the same jury to repass upon the question. But where is the line to be drawn ? Supposing this jury on.its second return to court had brought in a verdict for $150 and the court had concluded that amount inadequate and sent it-out again, would it not be a complete substitution of. judge for jury as assessors of the damages ? I think the proposition is dangerous and if sustained would .prove an invitation to improper interference. I see no difference in principle between refusing to receive a verdict for a substantial, though in the opinion of the court inadequate amount, and sending the jury back to bring in a larger one, and instructing the jury in the first instance that they must bring in a 'verdict for at least a given amount. It has been held by the General Term of the Superior Court that an instruction to the jury at the request of the plaintiff’s counsel that a verdict for $5,000 in a damage case would not be an exorbitant. amount as matter of law was reversible error. (Wersebe v. Broadway & Seventh Ave. R. Co., 1 Misc. Rep. 472.)

It follows, therefore, that the determination of the Appellate Term, affirming the judgment' and order of the City Court, should be reversed, and that a new tidal should be had, with costs to the appellant to abide the event. .

Laughlin, J., concurred.

Ingraham, J.:

_I concur with Mr. .Justice Clarke in directing a reversal of this .judgment upon the ground that it was error to instruct the jury that their verdict was insufficient and to refuse to receive any request to charge after' this determination; .but I do not concur in the conclusion that the court was without power fo request-the jury to reconsider their instruction - as to the amount • of their verdict. - Where a jury, by' finding a vérdic.t for the plain tiff, have found-the. main issue against the defendant, but in assessing the damages have made an obvious mistake, whether'the-damages were liquidated or j unliquidated, I think the court- has power to call tlieir attention . to the circumstances arid ask - them again to consider the question as to" the'amount of damage "to which the plaintiff was entitled.

•Of course, in a case where the damages are unliquidated it would be error" for the court to intimate to. the jury that the question of .the amount of damage was not for them, or to give any instructions which' would indicate the-amount of damage • to- ■ which the court considered the plaintiff would be entitled; but subject to sacli proper instructions as would prevent a misconception by the jury, I see iio reason wby the court could not have the right to ask the jury to again consider the-question. It would have the "right to' set aside the verdict after it Was received and order a new trial before another jury.' The. verdict-not-having been .received, the whole question was still with the jury. If the jury had returned a verdict which was not regular as to form, or which for any reason was not a proper verdict, the court has the undoubted" power to resubmit the question to the jury with such instructions as would enable them to properly perform tile duties, imposed upon them,' and it seems to ' me that where the jury have definitely decided that the plaintiff is • entitled to recover, but have fixed the damages- at an amount which to the court seems entirely inadequate, the court had the right to ask the jury to reconsider that question, but that reconsideration must ■ be by the jury uninfluenced by any instructions of the court as 'to the amount of their verdict. The court -in .this case clearly violated ■this rule by instructing the jury, in effect, -that they must bring in a' verdict for a larger amount and refusing to entertain an application by the defendant for further instructions upon the question.

I concur, therefore, in the reversal of the judgment.

Patterson, P. J., and Scott, J., concurred.

Determination reversed, new trial ordered, costs to appellant to abide event. " * ' ..:  