
    Fox v. Boyd.
    
      (Jackson.
    
    April 7, 1900.)
    1. Verdict. Court's power to prevent return of defective.
    
    j It is not error for the Court to interpose, upon his own motion, to prevent the return of a verdict so defective that it could not he effectuated according’ to the plain and manifest intent and purpose of the jury. (Post, pp. 359, 360.)
    
    Case cited: George v. Belle, 101 Tenn., 625.
    2. Same. Same.
    
    Hence, when a jury, in a slander case, returned a verdict for the plaintiff, and assessed his damages at one dollar and costs, it was not erroneous, hut entirely proper, for the Court to refuse to receive it, and to send the jury hack after instructing them that it was their-province to award the damages only, and that the law disposed of the costs, and that if their verdict should not exceed five dollars the law awarded the costs against the plaintiff. The Court sustained a verdict for $¡5.10 returned upon these instructions. (Post, pp. 359, 360.)
    
    3. Chabge of Court. Error in, not cause for reversal, when.
    
    The defendant in a slander suit is not entitled to reversal on account of the Court’s error in charging that the verdict must be for more, instead of as much as five dollars damages, in order to carry full costs against the defendant, where the damages were assessed at only $5.10. He minimis non curat lex. (Post, pp. 360-362.) . ...
    Code construed: 5157, 4939 (S.); $$ 4138, 3922 (M. & V.); $$ 3402, 3198 (T. & S.).
    Cases cited: Bates v. Sullivan, 3 Head, 633; Steffner v. Burton, 87 Tenn., 135.
    PROM OBTON.
    Appeal in error from Circuit Court of Obion County. W. H.. Swiggabít, J.
    
      Moque & Wells and. Pierce &; Pabes' for Fox.
    O. B. SlMONTON & Sow and J. Gr. SMITH & Sow for Boyd.
   Caldwell, J.

Bovd sued Fox for slander. The jury returned a verdict in these words: “We° find for the plaintiff, and assess -his damages at one dollar and the cost.” Thereupon the trial Judge, on his own motion, addressing the jury, said: “The jury cannot dispose of or adjudge the cost, and unless the verdict is for more than $5 the cost would go against plaintiff under the law, notwithstanding the -jury might determine it the other way. With this explanation of the law as to cost you can still fix the damages at one dollar, or at such sum as you think proper. Perhaps you. had better retire and consider whether you wish to make any change in your verdict, leaving out of consideration the cost entirely; the law fixes that. You will assess the damages alone.”

To this action of the Court the defendant excepted, insisting that the. verdict should be accepted as rendered, and the jury discharged from the further consideration of the case.

The jury retired and on the next court day returned a second verdict in faxror of the plaintiff, assessing his damages at $5.10, without more. The defendant thereupon moved the Court to arrest judgment on tbe second verdict and pronounce judgment on tbe first one. ’ Both motions were overruled and judgment entered upon tbe second verdict against the defendant for $5.10 damages and all tbe cost of the suit. Tbe defendant appealed in error, and has assigned several objections to tbe rulings and action of tbe Court subsequent to the return of tbe first verdict.

Without formally stating tbe different assignments made, tbe questions raised by them will be grouped and decided under two beads.

1. The trial Judge rightly refused to accept and pronounce judgment upon tbe first verdict, because it undertook in terms, and contrary to law, to fix liability for cost. In that particular it went beyond the province of the jury and to that extent was incapable of being effectuated by judgment. If tbe case bad been an ordinary one, in which the cost goes against tbe unsuccessful, party as a matter of law, tbe Court might well have rejected that part of the verdict relating to cost as mere surplusage and pronounced judgment accordingly; but, since the case is in fact one of an exceptional class, in which liability for cost is not so determined, and since the verdict as rendered may well be said to have indicated a purpose on the part of the jury to give the plaintiff such a recovery as would cast the whole burden of the cost on the defendant, that course could not properly .have been pursued. The verdict in this view was obviously defective in a material part, and being so, sound practice required that the jury should be asked to correct it. 2 Elliott G-en. Prae., § 94-7; 28 Am. & Eng. Ene. L., 365.

The case of George v. Belle, 101 Tenn., 625, is precisely in point, and the decision there made, though not published at the time, is direct authority for the action of the Court in .the present case. It is true that in that case the defect in the first verdict was suggested to the Court by' the plaintiff’s counsel, while in this one the Court received no such suggestion, but that difference is not material. The Court has the same right to ask a correction of a defective verdict on his own motion as on the suggestion of counsel. The failure of counsel to suggest correction does not cure the defect, nor require the Court to pass it by unnoticed. Of course, it would have been improper for the Court to indicate to the jury that he thought the defendant should be required to pay all the costs, but neither the fact that he acted on his own motion nor anything else appearing in the bill of exceptions justifies the suggestion that he did so.

2. The instruction given the jury after the return of the first verdict was inaccurate in the statement that “unless the verdict is for more than $5 the cost would go against the plaintiff under the law.” On that point the Court should have said that unless the verdict should 'be for as much as $5 the plaintiff could recover no more costs than damages, the statute applicable to the case being in the. following language, viz.: “Where the verdict in slander is under $5 the plaintiff shall recover no more costs • than damages.” Shannon's Code, § 5157.

No doubt the learned Judge intended to apply the other similar statute (Shannon’s Code, §4939), which provides that “in civil actions founded upon assaults, assault and battery, malicious prosecution, false imprisonment, slanderous words . . . the plaintiff recovers no more costs than damages, unless the recovery exceed five dollars,” overlooking the fact that the inclusion therein of the clause, “slanderous words,” was a mere inadvertence on the part of the compilers of the Code of 1858, which was held in Bates v. Sullivan, 3 Head, 633, and in Steffnar v. Burton, 87 Tenn., 135, to have been ineffective and to have left the exclusive rule established for slander cases by the other section quoted ■ above, in full force.

But this oversight and consequent inaccuracy of the trial Judge do not constitute reversible error. At the most they could only have prejudiced the defendant to the extent of ten cents in the amount of damages found by the jury, and that is so small a matter as to require the application of the maxim “De minimis. non cured lex!’

Moreover, the jury might as well have returned a verdict for $5.10 as for $5 if the instruction had been strictly accurate; hence, it does not appear that the error did in fact prejudice the defendant even to the extent of ten cents, and for that additional reason it is not ground for reversal.

Affirmed.  