dissenting.
I dissent from the decision of the court as to the verdict on the first cause of action on the authority of Klein v. Miller, 159 Or 27, 77 P2d 1103, 116 ALR 820 (1938); McLean v. Sanders, 139 Or 144, 7 P2d 981 (1932); and Goyne v. Tracy, 94 Or 216, 185 P 584 (1919). This decision overrules not merely Klein, but all three of the cited cases. It holds that the verdict upon the first cause of action “must, be read as for the defendant”. Klein and McLean hold that in an action for the recovery of money a verdict which finds *465for the plaintiff and assesses damages at no dollars is neither a verdict in favor of the plaintiff nor a verdict in favor of the defendant, and is in effect no verdict at all. 159 Or 29; 139 Or 147. Both decisions cite and rely on Goyne, which holds that a court is without authority to enter a judgment on a verdict which finds for the plaintiff without more. The action was in a justice of the peace court for money had and received. The justice entered judgment for the full amount demanded and costs. On writ of review the Circuit Court remanded the cause for further proceedings, and we affirmed. All three decisions are based ultimately on the statute, which is controlling and which, so far as material, reads as follows:
“When a verdict is found for the plaintiff in an action for recovery of money * * * the jury shall also assess the amount of recovery * * ORS 17.425.
As recently as 1952, indeed, we reaffirmed the principle of these cases in Snyder v. Amermann, 194 Or 675, 679, 243 P2d 1082, when we said:
“ ‘We * * * find for * * * Plaintiff’, standing alone, simply means that the issues, other than damages, have been resolved in favor of plaintiff, but could not be considered as a verdict for general damages because it would not have legal efficacy, lacking in a damage finding. ’ ’
In the Klein and McLean cases we said that a verr diet such as that now under consideration will not support a valid judgment because of its uncertainty; that it was impossible to ascertain from the verdict whether the jury intended to find for the plaintiff or the defendant. McLean reversed a judgment for the defendant entered upon the verdict. That is to say, the Circuit Court was reversed for doing the very *466thing which the majority of this court now say should have been done in this case. Klein affirmed an order awarding the plaintiff a new trial. Klein (the only one of these three decisions now expressly overruled) is said to have been “written oblivious of our own decisions”. The record is not harmonious to that assertion. McLean was heard and decided in 1932 by a department of the court. Klein was heard and decided in banc in 1938, and in that case, in the brief of the appellant (defendant in the Circuit Court), an effort was made to distinguish McLean. The court was also asked to re-examine the question decided in McLean, and the dissenting opinion of Mr. Justice Rossmah in that case, which cites Snyder v. Portland Ry., Light & Power Co., 107 Or 673, 215 P 887, was commended by counsel to the favorable consideration of the court. In the Klein case Mr. Justice Rossman again dissented, and expressed with ability and learning precisely the same views which he now expounds for the majority in this case. The dissenting opinion cites Reynolds v. Kanzler, 126 Or 245, 269 P 230, and Snyder v. Portland Ry., Light & Power Co., supra, as authority for overturning what had theretofore been determined. The dissenting opinion also calls attention to the fact that counsel were present when the verdict was returned in the Klein case, and that the jury was polled, and no objection was made to the verdict, and that thereby “plaintiff waived his right to a verdict couched in any other form.” 159 Or 35.
I respectfully suggest, therefore, that Klein was decided by the court with its eyes open and after there had been pressed upon it, not only by counsel but by a member of the court, the very arguments and authorities now employed to sustain today’s decision, and that the doctrine announced in Klein and in McLean and in *467G-oyne is the law of this state, deliberately arrived at, and represents a deliberate rejection of the views of the majority in this case. This court has by no means been alone in the position it has taken upon this question. On the contrary, it has been one of a large and excellent company. Klein v. Miller is published in 116 American Law Eeports with an annotation commencing at p. 828, upon the following subject: “Verdict which finds for party upon his cause of action or counterclaim for money judgment, but which does not state amount of recovery, or is indefinite in this regard, or which affirmatively states that he is entitled to no amount.” At p. 829 the editors of ALE state that a verdict such as is described in the subject of the annotation “is not one on which a valid judgment can be entered”, and to that statement are cited decisions from twenty-nine jurisdictions in this country and from England, including Klein v. Miller, Goyne v. Tracy and McLean v. Sanders. The decisions cited support the statement of the editors. In these circumstances the court might well heed the admonition of Mr. Justice McBride in Wallace v. Portland Ry., L. & P. Co., 103 Or 68, 77, 204 P 147: “Courts should as a rule be reluctant to sweep away a precedent of long standing.”
Reynolds v. Kanzler, supra, cited by the majority, is not at all in point. The question there was upon the construction of two verdicts, one of which found for plaintiffs on their first cause of action and assessed their damages at a certain sum, and the other of which found for the defendants on a counterclaim in a larger sum. The court held that, construed together, the verdicts meant that defendants were entitled to recover the difference between the two sums, and stated that the applicable rule was, “if, from the data contained *468in the findings returned, the amount recoverable is determinable by a mere mathematical calculation, the findings are sufficient.”
There was also in that case a verdict on plaintiff’s second cause of action which read:
“On plaintiffs’ second cause of action we find that plaintiffs, Richard P. Landis and Mabelle E. Landis, are entitled to recover of and from the defendants, James A. Reynolds and Minerva D. Reynolds, damages in the sum of $ None.”
The question of the construction and validity of this verdict was not mentioned either in the briefs of counsel or in the opinion of the court. It differs markedly from the verdict in dispute here because it does not purport to be a verdict for the plaintiffs and contains no finding in favor of the plaintiffs. A verdict that plaintiff is entitled to recover nothing is on its face a defendant’s verdict. But in this case the jury, by their verdict, found in favor of the plaintiff and then allowed him no damages. It is that kind of verdict which our statute denounces and which this court has held too uncertain to be the basis of a judgment.
Much of the court’s opinion is given over to an attempt to show that a party waives his right to complain of an irregular verdict by failing to object before the jury is discharged. Were this a case in which the court had denied the motion for a new trial and the plaintiff had appealed, a different question might be presented. But an appeal to this court, based on the denial of a motion for a new trial, is on a different footing from an appeal from an order granting such a motion. We have many times held that the trial court has discretion to set aside a judgment and order a new trial for prejudicial error notwithstanding the failure of counsel to call the matter seasonably to the attention *469of the court and obtain a ruling. Neal v. Haight, 187 Or 13, 32, 206 P2d 1197; Lyons v. Browning, 170 Or 350, 354, 133 P2d 599; Timmins v. Hale, 122 Or 24, 32, 256 P. 770; Spokane County v. Pacific Bridge Co., 106 Or 550, 553, 213 P 151; Archambeau v. Edmunson, 87 Or 476, 487, 171 P 186. Moreover, as some of the cases cited in the opinion of the majority show, the question of the construction of the verdict is primarily for the trial judge. Simmons v. Fish, 210 Mass 563, 97 NE 102, for example, recognizes the right of the trial judge to determine whether a verdict similar to the one under discussion is an improper compromise verdict and to set it aside for that reason. Fairmount Glass Works v. Cub Fork Coal Co., 287 US 474, 77 L ed 439, 53 S Ct 252, is implicit with the thought that the trial judge had the power to hold that “the jury found for the plaintiff and failed to perform its task of assessing damages”, and that the verdict would be subject to be set aside for that reason. Under the theory of these cases, which are relied on as authority by the majority, the trial judge would have been justified in setting aside the verdict under discussion and ordering a new trial for either of the foregoing reasons, and under established procedure this court would not disturb the ruling notwithstanding the failure of counsel to object to the verdict before the discharge of the jury. Snyder v. Portland Ry., Light & Power Co., supra, is not in conflict with this view, for in that case the trial judge refused to grant a new trial and we affirmed the order.
Although the opinion of the majority is replete with general statements by textwriters and judges respecting the rule of waiver, it is significant that not a single decision has been cited which applies the rule to a verdict such as we are now considering. In *470none of the more than fifty cases cited in the annotation in 116 ALE to which I have referred is the subject of waiver so much as mentioned. Schumacher v. Moffitt, 71 Or 79, 142 P 353, cited in the majority opinion, is not in point. That case was an action to recover a balance due for labor performed. The verdict was for the plaintiff “as prayed for in his complaint”. The court entered a judgment for the amount prayed for, and on appeal this court said with respect to the verdict:
“The verdict was irregular, but the intent of the jury can be deduced from it, and, in the absence of any objection at the time of its rendition, it was sufficient * * *.”
That, however, was a verdict in which the jury did “assess the amount of recovery”, as our statute requires, though in an unconventional manner, and there could be no doubt about what the jury intended. Entry of judgment thereon was not an unauthorized act, and so it was entirely proper to hold that the party had waived any objection to receiving the verdict by his silence. But Wall v. Van Meter, 311 Ky 198, 223 SW2d 734, 20 ALR2d 272, is a case in point. It was an action to recover damages for personal injuries in which a general verdict for the plaintiff for $98, the exact amount, the testimony showed, that he expended for medical treatment, was held to be bad as violating the instructions of the court. A judgment entered on the verdict was reversed. The appellee, defendant in the lower court, insisted, in the language of the opinion, that “it was incumbent upon appellant to move the court to have the jury correct the verdict and by failing to make such motion, what he calls ‘the irregularity’ in the verdict was waived”, citing two Kentucky cases. One of these, the court held, was not in point because *471the only thing wrong with the verdict was that the jury had failed to separate its findings of several items of damages, and instead brought in a verdict for a lump sum of money. The other case was said to support the appellant’s contention rather than that of appellee, and the conrt, in rejecting the claim of waiver, sáid:
“* * * In the instant case we have no irregularity in the verdict bnt an ignoring of the fundamental law given the jury by the court in its instructions.”
These instructions were that, should the jury find for the plaintiff, they should award him such a sum of damages as- would fairly and reasonably compensate him for physical and mental suffering and for medical expenses incurred. They were held to have been ignored because the jury awarded the plaintiff only the amount of his medical bills.
It will be observed that the verdict in the Kentucky case was invalid for the same reason that the verdict on the second cause of action in this case was invalid. The decision, however, applies with equal force to the verdict on the first cause of action.
The court quotes liberally from 64 CJ, Trial, 1110 § 916, but overlooks the following statement in that section: “Failure to object to an invalid verdict will not preclude a party from subsequently attacking it” (italics added), citing Davis v. Stone, 172 Ky 696, 189 SW 937, and E. B. Whitfield-Baker Co. v. Anderson, 147 Ga 242, 93 SE 406, which support the text.
The court also quotes from Busch, Law and Tactics in Jury Trials § 599. In a footnote to that section the author calls attention to “defects not waived”, citing E. B. Whitfield-Baker Co. v. Anderson, supra, and Panhandle & S. F. Ry. Co. v. Clarendon Grain Co., *472(Tex Civ App) 215 SW 866. The Texas case holds that objection to a joint verdict against defendants, whose liability was separate and distinct, was not waived by failure to object to the reception of the verdict since the “verdict and judgment thereon was not merely defective or informal but positively erroneous.”
Since the verdict in question is not a mere informal or irregular statement of the jury’s decision, but, as this court has repeatedly held, is invalid and contrary to our statute, a judgment entered upon it may be properly challenged for the first time by motion to set it aside and for a new trial. And it is a matter of no consequence, in my opinion, whether or not such a verdict is “void”. The introduction of that word into the discussion adds nothing to the argument. We are not concerned here with a question of collateral attack.
I also dissent from the court’s decision respecting the verdict on the second cause of action.
It is established law in this state that in an action based on negligence a verdict for plaintiff for substantial special damages and which allows no general damages is invalid and may be set aside on motion. Snyder v. Amermann, supra; Hall v. Cornett, 193 Or 634, 240 P2d 231. Counsel for defendant seek to distinguish these holdings because damage is the gravamen of an action for negligence, whereas, in an action for assault and battery, an intentional tort, a verdict for nominal damages may be allowed even though no actual damages are suffered. The distinction is pointed out and the authorities reviewed in Hall v. Cornett, supra, at pp. 643, 644. It might have application to this case if in fact the plaintiff had suffered no real injury or if there were a dispute in the evidence upon that issue. But that is not the state of the present case because it is shown without contradiction that the *473plaintiff was severely beaten in the second altercation and that one of his ribs was broken, necessitating the services of a physician. If, as the jury necessarily found by its verdict for special damages, the defendant was guilty of assault and battery, then plaintiff was entitled to reasonable compensation for his injuries. Dunbar v. Cowger, 68 Ark 444, 59 SW 951; 25 CJS 469, Damages § 11. But a verdict for $1 is not reasonable or any compensation. It is a verdict for nominal damages, which is the same thing as no damages at all. Hall v. Cornett, supra, p. 644. The same rule, therefore, should be applied here as in that case. To hold that the Circuit Court had the power to set aside such a verdict involves no conflict with our decision in Van Lom v. Schneidermann, 187 Or 89, 210 P2d 461, 11 ALR2d 1195, since the court’s action did not call for the re-examination of a question of facts tried by a jury, but only for the decision of a question of law. We so held in Hall v. Cornett (193 Or 647).
It was suggested on the reargument by counsel for the defendant that there were circumstances of provocation in evidence which would authorize the jury to mitigate the damages, and that in this view the verdict for $1 compensatory damages need not necessarily be deemed a verdict for nominal damages. The suggestion is without merit, for while provocative words and acts may be considered by the jury in mitigation of punitive damages, this is not true of compensatory damages. Penn v. Henderson, 174 Or 1, 20, 146 P2d 760; Housman v. Peterson, 76 Or 556, 559, 560, 149 P 538. And see Annotation, 63 ALR 890.
It is also contended that the rule of Snyder v. Amermann and Hall v. Cornett does not apply because the sum of $35 special damages is not a substantial sum. I do not agree. The amount allowed was exactly the *474amount of special damages established by the evidence and submitted to the jury in the court’s instructions.
The opinion of the majority dwells at length on one of the grounds of plaintiff’s motion for a new trial, to wit, misconduct of the jury, and labors the point that this ground is waived by the failure of a party to make timely disclosure to the court of the misconduct and to apply for proper relief. I do not know what the rule would be where (as in this case) the alleged misconduct becomes known to the court and counsel at the same time. That, however, is a purely academic question, as is the entire discussion of this subject in view of the court’s holding—in which I concur— that no such misconduct is involved.
In support of the motion four grounds are assigned. Number 4 reads in part that the verdict is “inconsistent * * * and is contrary to the uncontradicted evidence and instructions of the Court.”
Our new trial statute, ORS 17.610, provides that a new trial may be granted for the following causes, among others:
“(6) Insufficiency of the evidence to justify the verdict or other decision, or that it is against law.
“(7) Error in law occurring at the trial, and excepted to by the party making the application.”
The fourth ground of the motion is a sufficient statement that the verdict is “against law”. For the defect in the verdict here is precisely the defect in the first verdict in Hall v. Cornett, as well as the verdict in Snyder v. Amermann, and we said in Hall v. Cornett:
‘ ‘ The award of nominal general damage and substantial damage involved an inconsistency. It indicated a compromise and they [the jury] violated *475the instructions of the court. The first verdict was therefore, not ‘such as the court may received ” 193 Or 645, 646.
The language which I have italicized is taken from OES 17.360, the first sentence of which reads:
“When the verdict is given, and is such as the court may receive, and if the required number of jurors agree, and the jury is not again sent out, the clerk shall file the verdict.”
The fourth ground of the motion for a new trial also indicates an error in law occurring at the trial, namely, the receipt by the court of an invalid verdict. The fact that no exception was taken by counsel for plaintiff is not important in view of the fact that the court allowed the motion, for, as I have already pointed out, the trial judge in this state has authority in the interest of justice to grant a new trial for error at law even though no exception was taken by the party making the application. See Lyons v. Browning, supra, 170 Or 354. Moreover, in several recent cases we have re-affirmed the rule that the trial judge is given wide latitude in the granting of new trials, and his decision will be upheld on appeal when any “tenable ground” in support of it appears in the record. Hitchman v. Bush, 195 Or 640, 642, 247 P2d 211; Christianson v. Muller, 193 Or 548, 551, 239 P2d 835; Bartholomew v. Oregonian Pub. Co., 188 Or 407, 411, 216 P2d 257. We have also recently said that “It is well established by the decisions of this court that where error has been committed, a motion for a new trial is addressed to the sound discretion of the trial court and will be reviewed only for a manifest abuse of discretion.” (Italics added.) In Hall v. Cornett we held that the' court was right in refusing to receive a verdict which was bad for the same reason that the verdict on the *476second canse of action in this case was bad. In Snyder v. Amermann we went further. In that case the court not only received the verdict and entered a judgment on it for the plaintiff, but denied the plaintiff’s motion for a new trial. The appeal was by the plaintiff from the judgment, and the ruling on the motion for a new trial was assigned as error. We said that if the verdict was one for special damages “it cannot stand because, under the well-recognized rule of law, before a verdict for special damages may be entered in a case of this kind, there must be a general verdict.” (194 OR 678.) The record in that case failed to disclose any exception to any ruling of the court having to do with the validity of the verdict unless it be to the denial of the motion for a new trial. Nevertheless, we held that the ruling was error and reversed. In this case the majority hold that it was error for the court to grant a new trial because of the same kind of defect in the verdict, and this is done notwithstanding our repeated pronouncements that if “tenable ground” for such a decision appears in the record we will not disturb it, and that we will not review it except for abuse of discretion. If entering judgment on a verdict for substantial special damages and no general damages is a tenable ground for reversing an order denying a motion for a new trial in one case, I should like to know why it is not an equally tenable ground for affirming an order which grants such a motion in another case.
To my mind the most serious implication of the court’s decision does not arise from the overruling of established precedents—which is sometimes desirable— but from the further inroads made by the court upon the already too greatly diminished powers of the trial judges of this state. See Van Lom v. Schneidermann, supra, 187 Or 113. When the Constitution unduly limits *477judicial power we must accept it. But we should be careful about using our own prerogative in such a way as to impose unwarranted restraints on the authority of the courts where the cases are actually tried. Whatever room for differences of opinion there may be about the proper construction of the verdict on the first cause of action in this case, there can be none—and none is suggested—about the invalidity of the verdict on the second cause of action—that it is inconsistent, an improper compromise verdict, contrary to the instructions of the court, and such a verdict as should not have been received. Yet this court now says that, simply because counsel did not speak when he might have spoken, the judge who presided over the trial was without the power to set aside a judgment based upon such an illegal verdict. That, as I view it, is a mistaken and unfortunate exercise of power on our part.
I am authorized to say that Mr. Justice Brand concurs in the foregoing opinion.