[753]*753The opinion of the court was delivered by
HajRvey, J.:
This is an action for damages for personal injuries against three defendants charged with negligence. A demurrer to the evidence was sustained as to one of the defendants, and as to the other two defendants the jury returned the following verdict:
“We,U;he jury, find for the plaintiff against the defendants and assess the amount uf plaintiff’s recovery from said defendants at $4,000. Isadore Wald-ner, doing business under the firm name and style of Superior Cleaning & Dyeing Co., $3,500, and the city of Kansas City, Kansas, $500.”
The trial court treated that part of the verdict after the figures “$4,000” as surplusage and rendered judgment in'favor of the plaintiff and against both defendants for $4,000. Both defendants prosecuted appeal. Isadore Waldner filed no abstract or brief and his appeal has been dismissed and the case is now for consideration upon the appeal by the city of Kansas City. The appellant filed a motion for a new trial and also a motion for judgment notwithstanding the verdict, both of which motions were overruled. Appellant now contends that the court erred in overruling its motion for a new trial and in overruling its motion for judgment and in entering judgment against it in the sum of $4,000 based upon this verdict.
It is well settled that in actions for damages against two or more joint tort-feasors the jury has no authority to apportion the damages among the defendants, in the absence of a statute specifically authorizing such apportionment, and this for the reason that if defendants are found guilty of negligence which produced the injury, the matter of the degree of negligence as between the defendants is so uncertain as not to form a proper basis for division of damages.
In Sutherland on Damages, 4th ed. § 463, it is said:
“In a joint action against several for trespass or other tort if all are found guilty entire or joint damages must be assessed against them.”
In 17 C. J. 1084, it is said:
“Where the rule is not modified by statute, an assessment of damages in an action against joint tort-feasors must be for a lump sum against those found guilty and cannot be severally apportioned between them.”
Many other authorities might be cited, but the rule -is of such long standing, and has been so universally and repeatedly applied, that we regard additional citation of authorities unnecessary, and especially in view of the fact that it is not specifically controverted in this case.
[754]*754Though the jury has no power or authority to apportion damages among defendants in ah action of this character, they sometimes attempt to do so and the question then arises as to what should be done with their verdict. The rule is thus laid down in 27 R. C. L. 893:
“There is some conflict as to whether a verdict against joint tort-feasors which assesses the damages severally can be cured or corrected. While there is some authority to the effect that such apportionment of damages is an essential part of the verdict which cannot be disregarded as surplusage and, therefore, no judgment can be entered thereon, it is generally held that the irregularity is not fatal and may be cured by amendment or correction. The question as to the manner in which the irregularity of a verdict severing the damages found against joint tort-feasors may be cured arises in two different ways, according to the form in which the verdict is rendered. Thus, where the verdict is that the plaintiff recover of the defendants a certain sum, followed by an apportionment of such damages among the several tort-feasors, this fixes the plaintiff’s right to recover the full amount against the guilty parties, and the trial court may receive the verdict and amend it by striking out as surplusage all after the finding of the joint liability, or it may return the verdict to the jury for correction. Where a several judgment is rendered against each defendant on such a verdict it is not necessary to enter a reversal because of the erroneous form in which it was entered, since it can be corrected by a direction of either the appellate or the trial court making the judgment conform to the established rule in such cases.”
. In 38 Cyc. 1890, the rule is stated thus:
“Verdicts are to have reasonable intendment, and surplusage or immaterial findings may be rejected in construing them. Thus, if the verdict finds the issue and something more, the latter part of the finding will be rejected as surplusage, and judgment rendered independently of the unnecessary matter, there being nothing to show that the jury reasoned falsely.”
In Olson v. Nebraska Telephone Co., 87 Neb. 593, 127 N. W. 916, an action to recover damages for personal injuries caused, as alleged, by the negligence of two corporations, there was a verdict for plaintiff for $10,000, “to be assessed equally against each of said corporations”; held, to be a joint verdict against both defendants for $10,000, and the judgment rendered against both for the full amount was affirmed.
In Pearson v. Arlington Dock Co., 111 Wash. 14, 189 Pac. 559, the verdict was as follows:
“We, the jury in the above-entitled cause, do find for the plaintiff and against both defendants in the sum of $3,750 each, Arlington Dock Company, North Coast Stevedoring Company. ($7,500.)” (p. 20.)
[755]*755The court said:
“While the verdict is somewhat awkward, it is perfectly plain that the jury meant to find a verdict of 37,500 for the plaintiff against both defendants, ■each defendant to pay one-half of that amount. The jury did not hav.e any right to segregate this amount and make each defendant liable for a portion thereof, consequently that portion of the verdict where the jury undertakes to do so must be considered surplusage.” (p. 20.)
In San Marcos Elec. Light & Power Co. v. Compton, 48 Tex. Civ. App. 586, 107 S. W. 1151, in an action by a widow to recover damages on account of the death of her husband against two defendants, the jury returned a verdict as follows:
“We, the jury, find the defendants, The San Marcos Electric Light & Power Company, and the San Marcos Telephone Company, both guilty of gross negligence that caused the death of L. B. Compton and therefore assess the damages at 35,000, or in other words, 32,500 [from] each of the Companies, apportioned as follows: the plaintiff, Idalena Compton, to receive from the San Marcos Electric Light & Power Company, 31,500, and also 31,500 from the San Marcos Telephone Company; the plaintiff, A. S. Compton, to receive ’ from the San Marcos Electric Light & Power Company the sum of $750 and also 3750 from the San Marcos Telephone Company; the plaintiff, Mrs. M. A. Compton, to receive from the San Marcos Electric Light & Power Company the sum of 3250 and also 3250 from the San Marcos Telephone Company'.”
The court held that so much of the verdict as apportioned the damages should be treated as surplusage and judgment rendered against both defendants for the full amount fixed by the verdict.
In Robyn v. White, 189 N. W.
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[753]*753The opinion of the court was delivered by
HajRvey, J.:
This is an action for damages for personal injuries against three defendants charged with negligence. A demurrer to the evidence was sustained as to one of the defendants, and as to the other two defendants the jury returned the following verdict:
“We,U;he jury, find for the plaintiff against the defendants and assess the amount uf plaintiff’s recovery from said defendants at $4,000. Isadore Wald-ner, doing business under the firm name and style of Superior Cleaning & Dyeing Co., $3,500, and the city of Kansas City, Kansas, $500.”
The trial court treated that part of the verdict after the figures “$4,000” as surplusage and rendered judgment in'favor of the plaintiff and against both defendants for $4,000. Both defendants prosecuted appeal. Isadore Waldner filed no abstract or brief and his appeal has been dismissed and the case is now for consideration upon the appeal by the city of Kansas City. The appellant filed a motion for a new trial and also a motion for judgment notwithstanding the verdict, both of which motions were overruled. Appellant now contends that the court erred in overruling its motion for a new trial and in overruling its motion for judgment and in entering judgment against it in the sum of $4,000 based upon this verdict.
It is well settled that in actions for damages against two or more joint tort-feasors the jury has no authority to apportion the damages among the defendants, in the absence of a statute specifically authorizing such apportionment, and this for the reason that if defendants are found guilty of negligence which produced the injury, the matter of the degree of negligence as between the defendants is so uncertain as not to form a proper basis for division of damages.
In Sutherland on Damages, 4th ed. § 463, it is said:
“In a joint action against several for trespass or other tort if all are found guilty entire or joint damages must be assessed against them.”
In 17 C. J. 1084, it is said:
“Where the rule is not modified by statute, an assessment of damages in an action against joint tort-feasors must be for a lump sum against those found guilty and cannot be severally apportioned between them.”
Many other authorities might be cited, but the rule -is of such long standing, and has been so universally and repeatedly applied, that we regard additional citation of authorities unnecessary, and especially in view of the fact that it is not specifically controverted in this case.
[754]*754Though the jury has no power or authority to apportion damages among defendants in ah action of this character, they sometimes attempt to do so and the question then arises as to what should be done with their verdict. The rule is thus laid down in 27 R. C. L. 893:
“There is some conflict as to whether a verdict against joint tort-feasors which assesses the damages severally can be cured or corrected. While there is some authority to the effect that such apportionment of damages is an essential part of the verdict which cannot be disregarded as surplusage and, therefore, no judgment can be entered thereon, it is generally held that the irregularity is not fatal and may be cured by amendment or correction. The question as to the manner in which the irregularity of a verdict severing the damages found against joint tort-feasors may be cured arises in two different ways, according to the form in which the verdict is rendered. Thus, where the verdict is that the plaintiff recover of the defendants a certain sum, followed by an apportionment of such damages among the several tort-feasors, this fixes the plaintiff’s right to recover the full amount against the guilty parties, and the trial court may receive the verdict and amend it by striking out as surplusage all after the finding of the joint liability, or it may return the verdict to the jury for correction. Where a several judgment is rendered against each defendant on such a verdict it is not necessary to enter a reversal because of the erroneous form in which it was entered, since it can be corrected by a direction of either the appellate or the trial court making the judgment conform to the established rule in such cases.”
. In 38 Cyc. 1890, the rule is stated thus:
“Verdicts are to have reasonable intendment, and surplusage or immaterial findings may be rejected in construing them. Thus, if the verdict finds the issue and something more, the latter part of the finding will be rejected as surplusage, and judgment rendered independently of the unnecessary matter, there being nothing to show that the jury reasoned falsely.”
In Olson v. Nebraska Telephone Co., 87 Neb. 593, 127 N. W. 916, an action to recover damages for personal injuries caused, as alleged, by the negligence of two corporations, there was a verdict for plaintiff for $10,000, “to be assessed equally against each of said corporations”; held, to be a joint verdict against both defendants for $10,000, and the judgment rendered against both for the full amount was affirmed.
In Pearson v. Arlington Dock Co., 111 Wash. 14, 189 Pac. 559, the verdict was as follows:
“We, the jury in the above-entitled cause, do find for the plaintiff and against both defendants in the sum of $3,750 each, Arlington Dock Company, North Coast Stevedoring Company. ($7,500.)” (p. 20.)
[755]*755The court said:
“While the verdict is somewhat awkward, it is perfectly plain that the jury meant to find a verdict of 37,500 for the plaintiff against both defendants, ■each defendant to pay one-half of that amount. The jury did not hav.e any right to segregate this amount and make each defendant liable for a portion thereof, consequently that portion of the verdict where the jury undertakes to do so must be considered surplusage.” (p. 20.)
In San Marcos Elec. Light & Power Co. v. Compton, 48 Tex. Civ. App. 586, 107 S. W. 1151, in an action by a widow to recover damages on account of the death of her husband against two defendants, the jury returned a verdict as follows:
“We, the jury, find the defendants, The San Marcos Electric Light & Power Company, and the San Marcos Telephone Company, both guilty of gross negligence that caused the death of L. B. Compton and therefore assess the damages at 35,000, or in other words, 32,500 [from] each of the Companies, apportioned as follows: the plaintiff, Idalena Compton, to receive from the San Marcos Electric Light & Power Company, 31,500, and also 31,500 from the San Marcos Telephone Company; the plaintiff, A. S. Compton, to receive ’ from the San Marcos Electric Light & Power Company the sum of $750 and also 3750 from the San Marcos Telephone Company; the plaintiff, Mrs. M. A. Compton, to receive from the San Marcos Electric Light & Power Company the sum of 3250 and also 3250 from the San Marcos Telephone Company'.”
The court held that so much of the verdict as apportioned the damages should be treated as surplusage and judgment rendered against both defendants for the full amount fixed by the verdict.
In Robyn v. White, 189 N. W. (Minn.) 577, the jury returned a verdict for plaintiff in proper form, but appended to it the following: “We, the jurors, recommend that the sum of $2,300 claimed to be recovered by this suit be donated to the American Red Cross,” and this was signed by each of the jurors. This was held not to vitiate the verdict. The court said:
“We think the better rule is that when there is a verdict clear and sufficient in all respects, such foreign and irrelevant matter may be rejected as harmless surplusage. It is much the same in principle as a recommendation of clemency.” (p. 578.)
In Lake Erie & W. R. Co. v. Halleck, 136 N. E. (Ind.) 39, being a suit for damages for personal injuries against the railroad company and another, the jury returned the following verdict: “We, the jury, find for the plaintiff against both of the defendants, and assess her damages at $800; Lake Erie & Western Railroad Co., $700; John Jordan, $100.” (p. 40.) The court said:
“It is also well established that: ‘A verdict finding the whole issue, or the [756]*756substance of it, is not vitiated by finding more; for the finding of what is not in issue is but surplusage.’ Gould, Pleading (9th ed.), 486. It will be observed that the jury by its verdict found for plaintiff against both defendants, and assessed the damages at $800. If the jury had been content to stop there, no objection could be made to the verdict. Not being, so content, the jury assumed to apportion the damages, and in so doing exceeded its jurisdiction, and found ‘more’ than was involved in the issue. Under the rule above cited, which is supported by the weight of judicial authority, that part of the verdict by which the jury attempted to apportion the damages must be treated as surplusage, and does not vitiate that which is necessary and well found. 27 R. C. L. 893; Currier v. Swan, 63 Me. 323; Pearson v. Arlington Dock Co., 111 Wash. 14, 189 Pac. 559; San Marcos Electric, etc,, Co. v. Compton, 48 Tex. Civ. App. 586, 107 S. W. 1151; San Antonio & A. P. R. Co. v. Bowles, 88 Tex. 634, 32 S. W. 880; Windham v. Williams, 27 Miss. 313; Post v. Stockwell, 34 Hun (N.Y.) 375; Washington Market Co. v. Clagett, 19 App. D. C. 12.” (p.40.)
In The State v. Cassady, 12 Kan. 550, the defendant was tried on an information charging burglary and grand larceny. The jury found him guilty of being an accessory before the fact to grand larceny. This was treated as a verdict of guilty of grand larceny and he was sentenced accordingly. The court said:
“The verdict might properly have been simply guilty of larceny. Yet •specifying the particular connection of defendant with the crime did not vitiate the verdict. It wrought no prejudice to his rights.” (p.557.)
In The State v. Wolkow, 110 Kan. 722, 205 Pac. 639, defendant was charged with burglary with explosives, and grand larceny. The verdict was:
“We, the jury empaneled and sworn in the above-entitled case, do upon our oaths find the defendant, Ben Wolkow, guilty of grand larceny, as charged in the information by an agent within the State of Kansas, the defendant, Ben Wolkow, at the time of the commission of said larceny being without the State of Kansas.” (p.727.)
Defendant contended upon his appeal that the information “did not charge appellant with committing a crime by an agent, and therefore he was not, by the verdict of the jury, convicted of the offense charged.” The court said: “This verdict merely contained some unnecessary and surplus matter which could not prejudice the defendant.” (p. 727.)
In Nation v. Littler, post, p. 764, 52 Pac. 96, the jury returned a verdict for plaintiff for a definite amount and assessed one-half of. the costs to each of the parties. The part of the verdict apportioning costs was set aside by the court as being surplusage.
[757]*757In Hanson v. Kendt, 94 Kan. 310, 146 Pac. 1190, in an action for damages against several defendants, a verdict in favor of the defendants with the additional words “not guilty” was returned. It was held -that the added words were surplusage and did not vitiate the verdict.
In Circle v. Potter, 83 Kan. 363, 111 Pac. 479, the jury returned a verdict for the plaintiff with the addition that certain instruments should be surrendered and canceled of record. The trial court returned the verdict to the jury and instructed them that the matter of cancellation and delivery of the instrument was not before the jury, and the jury, after consideration, returned a verdict for a different sum and without this added matter. This court said that the trial court might have received the first verdict 'and ignored the sur-plusage but that it was within his discretion to return it to the jury.
It has been repeatedly held; in this state and elsewhere, that a recommendation of clemency made by a jury in a criminal case did not vitiate a verdict of guilty, the recommendation being a matter outside of the issues for the jury and being regarded as surplusage.
It will be noted in this case that the verdict of the jury is complete without that part attempting to make an apportionment. Omitting that portion, it reads: “We, the jury, find for the plaintiff against the defendants and assess the amount of plaintiff’s recovery from said defendants at $4,000.” This verdict so read is complete in itself. It is a finding upon every issue submitted to the jury. (There appear to have been no special' findings.) It found, in effect, negligence of both defendants; the amount of injury due to the plaintiff; and the amount that the defendants should pay plaintiff. When the jury had reached that verdict its duties were performed. It could not segregate the damages, and up to that point had not attempted to do so. There had been no request by the defendants for the damages to be segregated. No instruction of the court had authorized the jury to do anything else than find the general verdict. So far as its duty in the trial of this case is concerned, the jury’s functions were completely exhausted. No other question was before it and none other could be decided by it, therefore such additions as it would attempt to make being unauthorized — not in accordance with any request or instruction — cannot be binding upon the court and should be regarded as surplusage.
The judgment of the court below will be affirmed.