Emerson v. County of Santa Clara

40 Cal. 543

• Court: California Supreme Court
• Decided: January 15, 1871
• Docket: No. 2,330
• Status: Published

Opinions

Wallace, J.,

delivered tbe opinion of tbe Court, Rhodes, C. J., and Temple, J., concurring: Ceockett, J., dissenting:

It is admitted that tbe verdict was contrary to tbe instructions actually given by tbe Court, but it is said that it ought not to be disturbed because tbe instruction itself was not correct in point of law. A verdict of a jury in disobedience to tbe instructions of the Court upon a point of law is a verdict “ against law," within tbe meaning of Subdivision 6, Sec. 193, of tbe Practice Act, and for that reason should be set aside without further consideration. It mattersnot if tbe instruction disobeyed be itself erroneous in point of law; it is, nevertheless, binding upon tbe jury, who can no more be permitted to look beyond tbe instructions of tbe Court to ascertain tbe law than they would be allowed to go outside of tbe evidence to find tbe facts of tbe case.

When counsel engaged in a jury trial propound to tbe Court a proposition of law, in tbe form of an instruction to tbe jury, be has a right to have tbe instruction given or an exception entered of record for its refusal. He cannot be fairly deprived of both these rights. It is certain, however, that if the instruction be given as asked, be cannot have an exception, because be is supposed to have obtained tbe benefit of tbe instruction in tbe deliberation of tbe jury. Now, if tbe latter may, when they come to consider of their verdict, overrule tbe Court upon tbe point of law and deprive tbe party of all benefit of tbe instruction itself, it would seem that be is, after tbe most diligent endeavor, left in tbe exact position of one who has altogether failed to present any instruction whatever for the-consideration of tbe Court. Tbe consequence of such a practico would be to fearfully impair tbe integrity of trials by jury. Tbe question of law in theory supposed to have been settled by tbe Court before the retirement of the jury, and upon the determination of which exceptions has been reserved, would not have been really determined at all (otherwise, at least, than as mere abstract propositions of law), for the jury would have the right, in their retirement, to review the opinion of the Court, and disregard his instructions, when they did not accord with their own notions of the law of the case, the law while thus appearing to have been settled by the Court in a particular way, would, in reality, have been determined by the jury in exactly the opposite way, and while the Court would read the verdict as the finding of fact, arrived at by applying the law as the Court had announced it, the verdict would, in reality, be but a reversal by the jury of the rulings of the Court, for the errors in point of law, which the jury were of opinion that the Court had committed. Such a practice should not, in my opinion, be countenanced here by an inquiry as to whether the below Court or the jury was .mistaken in point of law in the particular case. We cannot consider that the jury well determined that which the law forbade them to attempt to determine at all, for the well known maxim is ad quesiionem legis non respondent juratores, etc. These views are supported by the cases of Bunten v. Orient Mutual Ins. Co. (4 Bosw. 262). and Fleming v. Marine Ins. Co. (4 Whart. 59).

Judgment and order reversed, and cause remanded for a new trial,

Sprague, J., delivered no opinion.