Dissenting. — I dissent.
The jury in the above-entitled ease returned a verdict against the defendant Milton R. Unger, the driver of the automobile, and defendant Herbert B. Woodward, Inc., owner of the car, in the sum of $6,677.16. Thereafter upon instructions of the court the jury retired and returned a verdict against defendant Unger in the sum of $5,341.71 and against defendant Herbert E. Woodward, Inc., in the sum of $1335.45.
This court by increasing the amount of the verdict against defendant Herbert E. Woodward, Inc., is depriving said defendant of the constitutional right to a jury’s determination of one of the main issues in the case, to wit, the amount of damage to be assessed, and in my opinion is substituting the judgment of this court for that of a trial jury.
It is fallacious to say that the jury fixed the damage against defendant Herbert E. Woodward, Inc., in the sum of $5,000 by its first verdict, for the reason that by its second verdict it fixed the damage against the same defendant in the amount of $1335.45. In fact, there is no way to determine the amount of the verdict the jury intended to return against this defendant, the verdicts which were returned being totally and wholly irreconcilable.
Hence in my opinion the judgment should be reversed and a new trial granted.
A petition by respondent to have the cause heard in the Supreme Court, after judgment in the District Court of Appeal, was denied by the Supreme Court on December 14, 1939.