
    Grace Wiegand, by Annie Wiegand, her Guardian ad Litem, Respondent, v. Fee Brothers Company, Appellant.
    
    
      What compromise verdict in a negligence case requires a new trial—review of, on a motion for a new trial, under Code of Civil Procedure, § 999 — waiver of the impropriety.
    
    The court, presiding at the trial of an action to recover damages for personal injuries, submitted the case to the jury with instructions to render a verdict upon two specific questions, namely, whether the defendant was guilty of negligence, and whether the plaintiff was guilty of contributory negligence. The jury rendered the following verdict:
    “ Wiegand vs. Fee Bros. Co.
    ''1. Was the plaintiff guilty of negligence contributing to the injury complained of?
    “Answer—No.
    
      “ 2. Was the defendant guilty of negligence in not causing the elevator to' he properly guarded?
    “Answer:
    “Yes; as qualified below. **
    “* We find a verdict for the plaintiff, damages $1,000.
    “** The jury after deliberating all night, there being no possibility of agreeing except on a compromise verdict, has finally agreed to the compromise in regard to question Mo. 2, the item (*), the verdict and the question of damages all to be taken together.” Upon their coming in with such verdict the following discussion took place: “ The Court: Is it the unanimous verdict that you find for the plaintiff $1,000? The Foreman: Yes, sir. The Court: Is it also true that you are unable to agree upon an answer to the second question except as you have? The Foreman: Yes, sir. The Court: I understand that you mean by that verdict that there is no question of compromise in reference to the amount of damages; you all agree to that amount for the plaintiff? The Foreman: Yes, sir.”
    
      Held, that it appeared from the verdict and discussion that some members of the jury, against their judgment and convictions, agreed to a verdict in favor of the plaintiff upon the question of the defendant’s negligence, in consideration of an agreement by other members of the jury that the verdict should not exceed a certain amount;
    That such conduct on the part of the jury was so grave an impropriety as to justify the court in setting aside the verdict of its own motion.
    
      Qumre, whether the impropriety was presented to the court by a motion by the defendant for a new trial under the provisions of section 999 of the Code of Civil Procedure.
    
      Semble, that, even if laches existed on the part of the defendant in not moving to set the verdict aside, it would not operate as a waiver of the irregularity.
    Appeal by the defendant, Fee Brothers Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Monroe on the 11th day of February, 1902, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 11th day of February, 1902, denying the defendant’s motion for a new trial made upon the minutes.
    
      G. D. Kiehel, for the appellant.
    
      Frederick A. Mann, for the respondent.
    
      
       Decided June 6, 1902.
    
   Hiscock, J.:

We think that the judgment and order appealed from should be reversed on account of the irregularities and miscarriage of justice appearing upon the face of the verdict upon which the judgment in question was entered.

This action was brought to recover for personal injuries claimed to have been caused by the negligence of defendant in connection with an elevator upon premises owned by it. The case was closely contested upon the main questions of defendant’s negligence and plaintiff’s freedom from contributory negligence. In due time the jury was charged and sent out by the court with instructions to render a verdict upon the specific questions submitted to them, whether the plaintiff was guilty of contributory negligence and whether the defendant was guilty of negligence in not causing the elevator to be properly guarded.

The jury rendered its verdict in the following form :

“ Wiegand v. Fee Bros. Co.
“1. Was the plaintiff guilty of negligence contributing to the injury complained of ?
Answer —Ho.
“2. Was the defendant guilty of negligence in not causing the elevator to be properly guarded ?
“ Answer:
“Tes; as qualified below.
“ * We find a verdict for the plaintiff, damages $1,000.
“ * * The jury after deliberating all night, there being no possibility of agreeing except on a compromise verdict, has finally agreed to the compromise in regard to question Ho. 2, the item *, the verdict, and the question of damages, all to be taken together.”

Apparently upon the jury coming in with this verdict, the following discussion took place:

“ The Court: Is it the unanimous verdict that you find for the plaintiff $1,000? The Foreman: Yes, sir. The Court: Is it also true that you are unable to agree upon an answer to the second question except as you have? The Foreman: Yes, sir. The Court: I understand that you mean by that verdict that there is no question of compromise in reference to the amount of damages; you all agree to that amount for the plaintiff? The Foreman: Yes, sir.”

We think it thus appears from the verdict itself and from the discussion between the court and the jury beyond any question, that some members of the jury, against their judgment and convictions, agreed to a verdict in favor of plaintiff upon the question of defendant’s negligence, in consideration of an agreement by other members of the jury that the verdict should not exceed a certain amount.

It is clear from the verdict itself and the proceedings attending its rendition that the compromise spoken of did not relate merely to the question of damages; was not such an adjustment of the conflicting views of the different members of the jury upon that subject as might legally be permitted. It, upon the contrary, appears to us very clearly that the rights of the defendant were bargained away upon the main issue whether it was negligent or not, in consideration of an understanding that it should not be beaten in too large an amount. While we must fully recognize that frequently it is not only proper but necessary that jurymen should, if possible, harmonize and reconcile their views of evidence, it is too clear to require discussion that the methods employed in this case were not lawful or proper.

The counsel for the appellant urges that the error above discussed was presented to the court by his motion for a new trial under the provisions of section 999 of the Code. Without deciding whether he is correct in this view, we regard the irregularity and improper proceeding referred to as grave enough so that this court, within its inherent power, should set aside the verdict and judgment based thereon of its own motion if necessary.

Even if it should be urged that the appellant had not objected to the verdict being received and did not promptly or properly seek to have it set aside, we should still feel that the fault complained of was one which could not be waived by a party to the suit. It affects the regularity, validity and justice of-a proceeding in this court, and we feel that as a matter of public policy we should not allow it to pass even if the party injured thereby has not sufficiently objected to it.

The judgment and order appealed from should be reversed, with costs to abide event.

Adams, P. J., McLennan, Spring and Williams, JJ., concurred.

Judgment and order reversed, and new trial ordered, with costs to the appellant to abide the event.

Casjes DETERMINED IN THE FIRST DEPARTMENT nr the APPELLATE DIVISION, %mwf 1902.  