Benedict v. Michigan Beef & Provision Co.

Grant, C. J.

(after stating the facts). 1. There is no evidence to sustain this verdict. It was a compromise verdict, which has been condemned by this and other courts. Goodsell v. Seeley, 46 Mich. 623 ( 41 Am. Rep. 183 ). If the jury concluded that the plaintiff did not work the overtime testified to by him, there was not a scintilla of evidence by which they could determine how much overtime he did work. The jury were therefore bound under their oaths, the evidence, and the statement of plaintiff’s counsel, assented to by the court, to give plaintiff the entire amount of this claim or to reject it entirely. It is, however, urged that, since the jury have found that the contract was as claimed by plaintiff, and have fixed the amount at less than that to which he testified, the defendant is not prejudiced. Every litigant is entitled to have the verdict against him based upon evidence. If A. sue B. upon a promissory note of $100, and testifies that nothing has been paid, and B. testifies that he paid it, is a jury authorized to split the difference, and find that B. owes $50? Or, if A. sue B. for services for 100 days, and testifies that that was the contract, and that he worked the entire time, and B. testifies that the contract was for 10 days, and that that was all A. worked, can a jury find that A. worked 50 days, and render a judgment accordingly? It is well known to the profession that oftentimes, when a jury cannot agree as to what a contract is, they will compromise on an amount. Such is the *530 fair inference in this case. It is undoubtedly true that the jury would be justified in finding that it would be almost a physical impossibility for the plaintiff in this case to have worked the time which he testified; but are the jury justified in finding how much less time he worked, without any testimony as to how many days or hours less ? A litigant is always prejudiced when he can point to the record and say there is no tangible evidence to support the verdict. It was necessary for the jury to determine two things: First, what was the contract; and, second, having determined that in favor of plaintiff, how much overtime he worked. Each must be based upon testimony, and not upon conjecture. Such verdicts ought not, in my judgment, to be permitted to stand.

2. Many errors are assigned on the admission and rejection of testimony. In several instances no ground for the objection was stated, counsel contenting themselves-with simply saying, “Objected to.” Such objections will not be considered by the appellate court.

In view of the new trial, we may note one objection. Defendant offered testimony tending to show what the custom was in other similar establishments in employing engineers. This testimony was properly excluded. Plaintiff relied upon an express contract for 10 hours a day and payment for overtime. The judge correctly instructed the jury that this was the sole issue, and that, if there was no such contract, plaintiff could not recover.

Judgment should be reversed, and new trial ordered.

Montgomery, J.

The principal question presented in this case is whether the verdict rendered should be set aside on the ground that it is a compromise verdict. There is no doubt that, where the record is such as to make it clear that the jury have reached the result by “splitting differences,” neither party has had the benefit of their judgment, and such verdict ought not to be permitted to stand. See Goodsell v. Seeley, 46 Mich. 623 ( 41 Am. Rep. 183 ). But this is quite a different proposition than *531 the one suggested by the facts of this case, which is that, because the jury gave a verdict for a less sum than the plaintiff’s testimony showed him entitled to, the defendant has the right to complain, and to insist that the verdict was reached as a compromise. The inference is not a necessary one from the premises. The verdict for the less amount may have been the result of a mistake in computation, or it may have been that the jury, on their own judgment, considered portions of plaintiff’s testimony inherently improbable. It certainly does not appear in this case, as it did in Goodsell v. Seeley, supra, that the verdict was the result of a compromise.

Upon the other points suggested, I concur in the opinion of the Chief Justice, that no prejudicial error was committed.

The judgment is affirmed.

Hooker, Moore, and Long, JJ., concurred with Montgomery, J.