I concur with Judge Wilbur except in his conclusion that because the same nine jurors who agreed upon the verdict of twenty-five thousand dollars for compensatory damages did not also agree upon the verdict of five thousand dollars for punitive damages, the latter verdict cannot stand. With that I cannot agree. The two verdicts are separate and each is supported by the requisite number of jurors, and that would seem to be enough.
Judge Wilbur's reasoning, as I understand it, proceeds upon the proposition that "so far as the judgment is concerned and the collection thereof it is utterly immaterial whether the damages are classified as punitive or compensatory. They constitute the amount of the award made by the court in favor of the plaintiff." With this proposition as the basis, he then reaches the conclusion that there was but one verdict for thirty thousand dollars, and that nine jurors are not shown to have concurred in this verdict. If this reasoning be true, it would certainly seem to mean that the verdict for twenty-five thousand dollars compensatory damages must fall as well as the verdict for five thousand dollars punitive damages. The reasoning whereby he holds that the verdict for five thousand dollars punitive damages cannot stand can be applied with equal force to the verdict *Page 199 for compensatory damages. If there is but one verdict, then it is for thirty thousand dollars, and nine jurors have not concurred in it. Why it should be void as to one element and not as to the other, I do not see.
The fallacy in the reasoning seems to me to consist in the assumption that there was in reality but one verdict. There was not one verdict, but there were two. The statement that "so faras the judgment is concerned and the collection thereof it is utterly immaterial whether the damages are classified as punitive or compensatory. They constitute the amount of the award made by the court in favor of plaintiff," is, of course, true, but we are not dealing here either with the judgment or its collection. We are dealing with the matter of rendering a verdict, and certainly two verdicts were rendered, as the opinion itself states, and each upon a separate and distinct issue, and each supported by the requisite number of jurors. Furthermore, there is no inconsistency between the verdicts. Each verdict implies that the defendant is liable for a libel. Upon the issue as to the amount of actual damages, nine jurors believed that such damages in the amount of twenty-five thousand dollars had been suffered, and so found. On the other hand, on the issue as to punitive damages, nine jurors likewise believed that the libel was malicious and that the proper amount to be allowed because of this element was five thousand dollars, and so found. Two or three of the jurors who had concurred in the verdict fixing the amount of compensatory damages did not agree with this, either because they did not believe the libel was malicious or because they did not agree with the amount fixed as punitive damages. The point of the matter is that there were two verdicts, not one; that all the jurors who concurred in either verdict agreed that the defendant was liable for a libel; that they disagreed only upon the separate and distinct issues as to the amount of damages actually suffered, and the amount of punitive damages, if any, which should be assessed; that upon each of these distinct issues a verdict supported by nine jurors as required by law was returned, and that the vote of no juror upon either of these verdicts was inconsistent with his vote upon the other. The case is nothing more than one wherein what were really special verdicts were asked upon distinct and separate elements *Page 200 of damage, and such verdicts were returned. Upon their being returned, the court took the assessments so arrived at of the two elements of damage, added them together to obtain the total amount for which the defendant was liable, and gave judgment accordingly. This would seem to be exactly what the code provides may be done. (Code Civ. Proc., secs. 624, 625.)
Shaw, J., and Lawlor, J., concurred.