dissenting:
I do not agree with the majority of my associates as expressed in the foregoing opinion. Briefly, my position is as follows:
When the first verdicts set out in the majority opinion were returned by the jury they were not accepted by the court. The conclusions of the jury were not clearly stated and it was the duty of the trial judge to ascertain just exactly what they meant before discharging them. As was stated in Bino v. Veenhuizen, 141 Wash. 18, 250 Pac. 450, 451, 49 A. L. R. 1297:
“All too often questions arise upon the true construction of verdicts, even those that are only informal and defective, and appeals result. It is to the interest of clients, counsel and the courts to have verdicts returned in such form as to obviate perplexing questions arising therefrom. The trial court out of an abundance of caution desired to have the verdict in proper form. His action, therefore, should be commended rather than fi'owned upon.
“A juror, after agreeing to a verdict, may, when the jury is polled and his name called, refuse to assent to the verdict, although within the jury room he has assented. * * * In such a case the jury may be sent out to further deliberate. Until a verdict is reached and the jury discharged its action is not final.”
After the court had read the first findings of the jury and had further instructed them they returned to their room and found verdicts against one defendant, only. Again the judge endeavored to find out exactly what they meant and was told by the foreman in no uncertain terms, in the presence of the other members of the jury and *821before they were discharged, that they intended to find verdicts against the master and not against the servant, which verdicts the court accepted.
If we concede that the court committed error when he told the jury that they should return to their room and find verdicts “against one or the other of said defendants, or both,” then the plaintiffs were entitled to a new trial, which they have had, and which they admit was a fair trial, though the verdicts were against them.
I therefore think that the judgments of the trial court should be affirmed.
Epes, J., concurs in this dissent.