Public-domain · open source
OpenJurist

48 Cal. 588

Fitzpatrick v. Himmelmann

California Supreme Court

Decided July 1, 1874

California Supreme Court · decided 1874-07-01

<p>Office of Tbiai, Juez.—It is the office of a trial jury, by their verdict, to find the facts in issue, whether general or special, and with the legal effect of those facts they have no concern.</p> <p>Dissent of Jubob .fbom Vebdiot.—Although a juror may, at the last moment, dissent from a verdict rendered, yet that dissent must be founded ón the question of fact presented by the verdict, and not upon imformation received from the Court, as to what is the legal effect of the verdict as found.</p> <p>yEBDicr of Jtjby.—If the jury have special issues submitted to them, and find on these issues, and also find a general verdict for the plaintiff; and when the verdict is read, the Court declares that on the findings the defendant must have judgment, and some of the jury then dissent from the special verdict, and the Court sends them out for further delibera tion, and they then return with general verdict, but are unable to agree on the special verdict, the Court should not accept the general verdict.</p>

Key passage — most relied on by later courts

“to declare, even at the last moment, that the verdict, as presented, is not his verdict”

quoted by 1 later decision, including 161 Cal. App. 4th 848 - Keener v. JELD-WEN, INC.

Good law ✅— No negative treatment on recordhow we know

Decided 1874-07-01

How this case has been cited

Cited by 6 later decisions — most recently May 2009

6 state decisions

3018741880189019001910192019301940195019601970198019902000decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

View the full empirical analysis of this case →

By the Court.

¶1The jury were instructed to find a verdict in response to certain special issues submitted to them by the Court. They did so, and at the same time found a general verdict in favor of the plaintiff. Upon their appearance in the court-room with these verdicts the Court remarked: “I

¶2suppose there must be a judgment in favor of the defendant on these findings;” and thereupon some of the jurors, declaring their dissatisfaction with their special verdict, they were sent out for further deliberation. They subsequently reported to the Court that, while they adhered to their general verdict in favor of the plaintiff they were unable to render any verdict upon the special issues. Thereupon the Court below, against the objections of the defendant, withdrew the special issues from the consideration of the jury, and, accepting the general verdict, rendered a judgment thereon in favor of-the plaintiff. . .

¶3It is apparent that the general verdict rendered under such circumstances should not have been accepted by the Court below.

¶4It is the office of a trial jury by their verdict, whether general or special, to find the facts in issue between the parties; with the legal effect of those facts, as resulting in a *590judgment in favor of the one party or the other, they have no concern whatever.

¶5While it is undoubtedly competent to a juror to declare, even at the last moment, that the verdict, as presented, is-not his verdict, his dissent must proceed upon the question of fact determined by the verdict. He is not at liberty to dissent merely because he mistook the legal effect of his verdict, or ascertains from the remark of the Court that the judgment to be rendere’d upon the verdict will be other

¶6then he had supposed.

¶7The proceedings in this case, upon the return of the jury into Court, plainly show that they would have adhered to their special verdict, if they had not accidentally found out that judgment would be rendered for Himmelmann instead of Fitzpatrick, and their general verdict rendered for the latter, under such circumstances, ought not to have been received, or made the basis of a judgment in the cause.

¶8Judgment and order reversed, and cause remanded for a. new trial.

/48/cal/588 · .json · Public domain