The court has sustained an exception noted to each and every other instruction given by the court and to the refusal of the court to give each and every of the instructions requested by the defendant.26 An exception to the action of the court "in giving all the instructions asked by plaintiffs" was not.27 An isolated phrase in a charge is not a reversible error when no separate exception is taken thereto.28 An exception to the submission of a specified theory was held not to authorize the review of the charge as unauthorized by the evidence.29 An exception to a failure to charge specifically as to a theory of the case is ineffective when there was no preliminary request for such an instruction.30 A refusal to grant a request to withdraw from the jury one of several specific allegations of negligence may be a reversible error when there is no substantial evidence to sustain it.31 A judge is not required to charge the law on hypothetical questions which do not affect the case on trial.32 There is no error in refusing an instruction so drafted that it might mislead the jury.33 It was held to be no error to deny a request for an instruction that specified acts did not constitute negligence when the negligence charged was a combination of such acts with others.34 Whether instructions could have misled the jury is not to be determined from isolated statements in Fed. 910; Brent v. Chas. H. Lilly, V. 26 Sam Yick v. U. S., C. C. A., 240 Fed. 60. 27 Guerini Stone Co. v. Carlin Constr. Co., 248 U. S. 334, 340. 28 Southern Railway-Carolina Division v. Bennett, Administratrix, 233 U. S. 80; Barnes & Tucker Coal Co. v. Vozar, C. C. A., 227 Fed. 25. 29 Eaton v. Clabaugh, C. C. A., 251 Fed. 575. 30 Keystone Coal & Coke Co. v. Fekete, C. C. A., 232 Fed. 73. 31 Erie R. Co. v. Gallagher, C. C. A., 255 Fed. 814. 32 Etting v. Bank of U. S., 11 Wheat. 59, 6 L. ed. 419. 33 Guerini Stone Co. v. Carlin Constr. Co., 240 U. S. 264. 34 Boston Elevated Ry. Co. V. Teele, C. C. A., 248 Fed. 424. the charge but by a consideration of all the instructions given and the tendencies of proof in the case to which they could possibly be applied.35 The meaning of correspondence which constitutes a contract should not be submitted to the jury.36 When a party fails to call a witness who is under his control it is proper and sufficient to charge that the jury may draw such inferences as they see fit from his failure to call such witnesses to the stand.87 When an improper statement of a fact which might influence a jury is made by counsel in his summing up or at any time. during the trial it is the duty of the court, when requested to caution the jury to pay no attention thereto.38 But unless the court is asked to do this, the objection is waived.39 § 473k. Verdicts. A verdict may be general or special. The Federal courts are not bound to follow the State practice concerning the form of verdicts such as, a direction that exemplary damages must be separately assessed.2 The court has power under the common law to submit to the jury special interrogatories which are to be answered together with a general verdict, and the answers thereto should control when the general verdict is clearly inconsistent therewith. 35 Seaboard Air Line v. Padgett, 236 U. S. 668. 36 Akalitis v. Phila. R. Coal & Iron Co., C. C. A., 239 Fed. 299. 37 New York & Philadelphia Coal & Coke Co. v. Meyersdale Coal Co., C. C. A., 236 Fed. 536. 38 Crumpton v. U. S., 138 U. S. 361, 364, 34 L. ed. 958, 959; Wilson v. U. S., 149 U. S. 60, 13 Sup. Ct. 765, 37 L. ed. 650; supra, § 471i; infra, § 530. 39 Crumpton v. U. S., 138 U. S. 361, 364, 34 L. ed. 958, 959; Dunlop v. U. S., 165 U. S. 486, 498, 41 L. ed. 799, 803; Sawyer v. U. S., 202 U. S. 150, 50 L. ed. 972; Cudahy Packing Co. v. Shoumal, C. C. A., 125 Fed. 470. § 473k. 1 Indianapolis & St. L. This R. Co. v. Horst, 93 U. S. 291, 30 L. ed. 1161; Abbott v. Curtis & Co. Mfg. Co., 25 Fed. 402; U. S. Mut. Acc. Ass'n v. Barry, 131 U. S. 100, 33 L. ed. 60; Spokane & I. E. R. Co. v. Campbell, C. C. A., 217 Fed. 518, 523. 2 Times Pub. Co. v. Carlisle, C. C. A., 94 Fed. 762; McElwee v. Metropolitan Lumber Co., C. C. A., 69 Fed. 302, 319, 16 C. C. A., 232; Toledo, St. L. & W. R. Co. v. Reardon, C. C. A., 159 Fed. 366. 3 Victor-American Fuel Co. V. Peccarich, C. C. A., 209 Fed. 568; Erie R. R. Co. v. Downs, C. C. A., 250 Fed. 415. 4 Ibid. Spokane & I. E. R. Co. v. Campbell, 217 Fed. 518. can only be done where the special verdict has been found respecting every material issue.5 It was held that a verdict: "We the jury in the above case sustain the validity of the contract. sued upon, and fix the damages at ten dollars;" was fatally defective and insufficient to sustain a judgment. The direction to the jury to make special findings is within the discretion of the court. It has been held that a judgment will not be reversed when the court has requested the jury to find upon particular questions of fact, because the jury failed to answer an interrogatory, improvidently submitted, concerning a fact which was not disputed. Where an issue of fact concerning jurisdictional allegations, such as difference of citizenship, is raised with other issues, all the issues are tried together, in the absence of any State practice to the contrary; but the jury should be requested to make a separate finding as to the jurisdictional allegations, independent from their general verdict. It has been held to be improper to submit to the same jury the question whether a release was obtained by fraud and the question whether the defendant was liable for the cause of action covered by the case; 10 but the soundness of this authority may be doubted. After a jury which had rendered a general verdict had been discharged it was held to be too late to recall them in order that they might make special findings.11 The proceedings upon a motion to set aside a general verdict and render judgment upon the special findings of the jury are pursued and determined by the common law and not by the State practice.12 Where the findings in the verdict are inconsistent, they will not support a judgment.13 Where two counts are submitted, a general verdict is considered as a verdict upon both of them.14 The damages which may be awarded in actions at common law for damages because of the infringement of patents 16 and copyrights 17 are previously described. The verdict may be written or oral. A sealed verdict is in writing signed by the jurors or by the foreman.18 It is the better practice for the jury to answer all special questions in writing. In the districts of New York a general verdict is usually oral taken down by the clerk.19 The verdict should be returned to the judge in open court; 20 but a stipulation that the clerk may receive the verdict with the same effect as if the court were in session makes a verdict so rendered valid.21 In cases of tort the allowance of interest is discretionary with the jury.22 The court has no power to add interest when the jury has failed to include this in the verdict.23 When, however, the verdict is for a specified sum "with interest, the court may compute the interest and enter judgment for this in addition to the verdict.24 Upon the recall of the jurors after their discharge, they were permitted to alter their verdict so as to allow interest.25 13 East St. Louis Cotton Oil Co. v. Skinner Bros. Mfg. Co., C. C. A., 249 Fed. 439. 14 Buckeye Cotton Oil Co. V. Sloan, C. C. A., 250 Fed. 712. 16 Supra, § 389a. 17 Supra, § 389h. 18 Myers v. U. S., C. C. A., 223 Fed. 919. Blank forms of verdicts may be given to the jury. Phila. & R. Ry. Co. v. Skerman, C. C. A., 247 Fed. 269. 19 Ibid. 20 Nelson v. Wood, C. C. A., 210 Fed. 18. 21 U. S. v. Bachman, 246 Fed. 1009. 22 Eddy v. La Fayette, 163 U. S. 456, 467, 16 Sup. Ct. 1082, 1086, 41 L. ed. 225, affirming C. C. A., 49 Fed. 807; White v. U. S., C. C. A., 202 Fed. 501; United Mine Workers of America v. Coronado Coal Co., C. C. A., 258 Fed. 829, 846. 23 United Mine Workers of America v. Coronado Coal Co., C. C. A., 258 Fed. 829, 847. 24 Thomsen v. Cayser, 243 U. S. 66, 37 Sup. Ct. 353, 61 L. ed. 597. 25 Burlingame v. Central R. of Minn., 21 Fed. 706. When it appeared by the affidavit by all the jurors that it was their intention to allow interest, the court corrected the verdict accordingly. 26 When the verdict was inconsistent, upon the affidavit of all the jurors it was corrected after their separation.27 This was also done when a jury returned a verdict against two defendants after they had agreed to find against one and in favor of the other.28 When a verdict had been rendered in favor of the plaintiff upon two inconsistent counts the court upon the affidavit of plaintiff's counsel that the only evidence offered on the trial was on the part of the plaintiff in support of a single count amended the verdict so as to apply to such count alone and permitted him to enter a nolle prosequi upon the other.29 A verdict for the plaintiff upon a special cause of action cannot, after the discharge of the jury, be amended so as to show a finding for the defendant on the other causes of action, when the jury were not asked before their discharge what their finding was thereupon.30 An order made subsequent to the verdict to strike out evidence nunc pro tunc as of the date of the trial will not cure an error in admitting it, even though there was no exception thereto at the time of the trial.31 § 474. Trials by the court. There can be no trial by the court of issues of fact in an action at common law, except by the consent of the parties; even in a case where the State statute permits such a trial.2 The Revised Statutes provide: "Issues of fact in civil cases in any Circuit Court may be tried and determined by the court, without the intervention of a jury, whenever the parties, or their attorneys of record, file with the clerk a stipulation in writing waiving a jury. The finding of the court upon the facts, which may be either general or special, shall have the same effect as the verdict of a jury."3 |