#### MRS. RILDA EDWARDS v. HOOD MOTOR COMPANY and WILLIAM GRAHAM HOOD, JR.

(Filed 19 March, 1952.)

1. Trial § 43—

While the trial court may refuse to accept an indefinite or inconsistent verdict, a party litigant has a substantial right in a consistent verdict in his favor on issues determinative of the rights of the parties, and where the trial court deprives him of this right by refusing to accept a consistent verdict, such error vitiates all subsequent proceedings and entitles appellant to a remand so that he may move for judgment on the verdict.

3. Negligence § 31—

A verdict to the effect that the driver and passengers in the first car were not injured by the negligence of the driver of the second car, and that the driver of the second car was injured by the negligence of the driver of the first car but was guilty of negligence contributing to his injury, *is held*reconcilable under a permissive application of the doctrine of proximate cause and not essentially inconsistent, and the trial court was without power, as a matter of law, to refuse to accept such verdict.

3. Trial § 48 *%*—

Where error of the trial court in refusing as a matter of law to accept a consistent verdict precluded consideration of motion by appellee to set aside the verdict as a matter of discretion, upon remand so that appellant might move for judgment on the verdict, appellee is entitled to move to set aside the verdict as a matter of discretion, notwithstanding that such motion ordinarily must be considered at trial term.

Appeal by defendants from *Bennett, Special Judge,*and a jury, at October Civil Term, 1951, of WayNe.

Civil action to recover damages for personal injuries sustained by the plaintiff in the collision of two automobiles, due to the alleged negligence of the defendants.

By consent this case was consolidated for trial with three companion cases: Mamie Boykin *v.*Hood Motor Company and William Graham Hood, Jr.; Flonnie Fields *v.*Hood Motor Company and William Graham *270Hood, Jr.; and Hood Motor Company *v.*Flonnie Fields and Mamie Boykin. Tbe appeal relates only to tbe ease in wbicb Eilda Edwards is plaintiff.

Tbe record discloses that tbe plaintiff, Eilda Edwards, was a guest rider in an automobile driven by Flonnie Fields but owned by Mamie Boykin, wbo was also in tbe car. Tbe other automobile, owned by tbe defendant Hood Motor Company, was being driven by tbe defendant William Graham Hood, Jr. Tbe two automobiles were meeting on State Highway No. 70. Tbe collision occurred while tbe car in wbicb tbe plaintiff was riding was turning left, across tbe line of travel of tbe approaching Hood ear, to enter a driveway leading to tbe borne of Flonnie Fields.

Tbe consolidated cases were submitted to tbe jury on tbe following issues:

Eilda EdwaRds *v.*Hood Motor Company et al. :

“I. Was tbe plaintiff injured by tbe negligence of tbe defendant, W. Graham Hood, Jr., as alleged in tbe complaint?

“2. What amount, if any, is plaintiff entitled to recover of tbe defendant ?”

Mamie Boykin *v.*Hood Motor CompaNy et al. :

“1. Was plaintiff injured by tbe negligence of tbe defendant, W. Graham Hood, Jr., as alleged in tbe complaint?

“2. Did Mrs. Flonnie Fields contribute by her negligence to tbe injury of tbe plaintiff, as alleged in tbe answer ?

“3. What amount, if any, is plaintiff entitled to recover of tbe defendant for personal injuries ?

“4. What amount, if any, is plaintiff entitled to recover of tbe defendants for damage to her automobile?”

Flonnie Fields *v.*Hood Motor CompaNy et al. :

“1. Was plaintiff injured through tbe negligence of tbe defendant, as alleged in tbe complaint ?

“2. Did plaintiff by her own negligence contribute to said injury, as alleged in the answer?

“3. What amount, if any, is plaintiff entitled to recover of the defendants ?”

W. Graham Hood, Jr., *v.*Flonnie Fields and Mamie Boykin:

“1. Were tbe plaintiffs damaged by tbe negligence of tbe defendants, as alleged in tbe complaint?

“2. Did plaintiff, W. Graham Hood, Jr., by bis own negligence contribute to said injury, as alleged in tbe answer ?

*271“3. What amount, if any, is plaintiff, W. Grabam Hood, Jr., entitled to recover of tbe defendants for personal injuries ?

“4. What amount, if any, are plaintiffs entitled to recover for damages to their automobile?”

The jury, after considering the cases, returned in open court and asked if they could answer the first issue “no” in all four cases. The court gave further instructions, after which the jury returned to their room for further deliberation. Later the jury returned and handed to the presiding judge the issues answered in the four cases as follows: In each of the first three cases, the first issue was answered “No” and the rest of the issues were unanswered; in the fourth case, both the first and the second issues were answered “Yes,” and the other issues were left unanswered.

The court, being of the opinion that the answers were inconsistent, refused to accept the verdicts. The court stated to the jury: “By your answers to the first issues (referring to the first issue in each of the three cases against the Hood defendants) you find no negligence on the part of the defendant Hood, and now by your answer to the second issue (referring to the second issue in the fourth case in which the Hoods are plaintiffs) you find he contributed to his own injury . . .”

To the action of the court in refusing to accept the verdicts as so returned, the defendant appellants (Hoods) excepted.

The court, before sending the jury back to the jury room, reinstructed them on the doctrine of intervening or insulated negligence at their request, and thereupon the jury returned to the jury room for further deliberation.

At this point, and for the first time, the plaintiff, Eilda Edwards, through counsel, moved the court that she be permitted to take a voluntary nonsuit. The court declined to allow the motion, to which action she excepted.

Shortly after resuming deliberations, the jury returned with its second group of verdicts. This time the answers were as follows: In the first three cases the answers were identical with those in the first group of verdicts, whereas in the fourth case (1) the first issue was answered “Yes,” (2) the second issue “No,” (3) the third issue “none,” and" (4) the fourth issue “$500.00.”

The court accepted the verdicts. Thereupon the plaintiff, Eilda Edwards, renewed her motion for leave to take a voluntary nonsuit, and also moved that the verdict be set aside for the reason she was previously denied the right to take a nonsuit. After argument of counsel, the defendants, Hood Motor Company and William Graham Hood, Jr., tendered judgment in the instant case in accord with the verdict. This the court refused to sign. The defendants excepted. Thereupon the court *272signed an order setting aside tbe verdict as a matter of law, assigning as tbe reason that tbe court erred in overruling tbe plaintiff’s first motion for leave to take a nonsuit. To tbe signing of tbis order tbe defendants excepted.

Thereupon, tbe court entered judgment dismissing tbe action as upon voluntary nonsuit, to wbicb tbe defendants excepted.

Tbe defendants, having excepted as indicated, appealed to tbis Court, assigning errors.

*J. Faison Thomson and H. T. Ray for plaintiff, appellee.*

*Taylor & Allen, Lindsay G. Warren, -Jr., and Paul B. Edmundson for defendants, appellants.*

JohNsON, J.

Before a verdict is complete it must be accepted by tbe court, but it is tbe duty of tbe presiding judge, before accepting a verdict, to scrutinize its form and substance to prevent insufficient or inconsistent findings from becoming a record of tbe court. Therefore, where tbe findings are indefinite or inconsistent, tbe presiding judge may give additional instructions and direct tbe jury to retire again and bring in a proper verdict, but be may not tell them what their verdict shall be. *Baird v. Ball,*204 N.C. 469, 168 S.E. 667.

However, a party litigant has a substantial right in a verdict obtained in bis favor. Accordingly, where a consistent verdict has been returned on issues wbicb are determinative and is rejected by tbe court as a matter of law, and such ruling is held to be erroneous, tbe appellate Court will remand tbe cause for appropriate proceedings. *Allen v. Yarborough,*201 N.C. 568, 160 S.E. 833; *Butler v. Gantt,*220 N.C. 711, 18 S.E. 2d 119; *Ferrall v. Ferrall,*153 N.C. 174, 69 S.E. 60; *Abernethy v. Yount,*138 N.C. 337, 50 S.E. 696.

In tbe trial below, tbe verdicts first returned may be reconciled under a permissive application of tbe doctrine of proximate cause *(Luttrell v. Mineral Co.,*220 N.C. 782, 18 S.E. 2d 412), and tbis is so, apart from application of tbe principles of intervening or insulated negligence *(Butner v. Spease,*217 N.C. 82, 6 S.E. 2d 808).

While tbe record indicates tbe jury may have applied tbe doctrine of intervening or insulated negligence in arriving at their composite verdicts, nevertheless, it does not follow as a matter of law or factual certainty that such was tbe case. Hence, tbe verdict in tbe instant case is not essentially inconsistent. Tbe court may have set tbe verdict aside as a matter of discretion, but it was error to refuse to accept tbe verdict as a matter of law. *Allen v. Yarborough, supra.*Tbis error vitiated all subsequent proceedings below, and we so bold. Tbe verdict will be treated as having been received, and tbe cause will be remanded for further proceedings, with tbe parties being relegated to their rights as of tbe coming in *273of tbe verdict to tbe extent (1) that tbe plaintiff may move tbe court to set aside tbe verdict in tbe exercise of its discretion, and (2) tbat tbe defendants may move for judgment on tbe verdict. Ordinarily, a motion to set aside a verdict in tbe discretion of tbe court must be made and decided at tbe trial term. *Fowler v. Murdock,*172 N.C. 349, 90 S.E. 301; McIntosh, N. C. Practice and Procedure, p. 671. However, tbis rule is subject to exception where, as bere, an erroneous ruling of tbe trial court deprives a litigant of tbe opportunity to invoke tbis inherent discretionary power of tbe court. *Batson v. Laundry Co.,*202 N.C. 560, 163 S.E. 600; *Tickle v. Hobgood,*212 N.C. 762, 194 S.E. 461.

Error and remanded.