Page:North Dakota Reports (vol. 48).pdf/518

 imprisonment against any of the defendants. (2) Prejudicial remarks of counsel and plaintiffs to the jury calling for punitive damages. (3) Several errors of the trial court with respect to the submission of a special verdict, among which are the submission of general verdicts together with a special verdict, the giving of general instructions with the special verdict, and the giving of instructions clearly advising the jury of the effect the answer to such question would have upon the rights of the parties, and the failure to instruct as to specific questions. As we view the record on appeal, it will be necessary, for the reasons hereinafter set forth, that a new trial be granted. It will not be necessary to here discuss other than the third point above stated. In passing, it may be well to remark, as there will be a new trial, the remarks of counsel mentioned in the second point and claimed to be prejudicial will need no discussion.

In the course of giving the instructions the court submitted a special verdict, which consisted of eight distinct and separate questions, all of which the jury answered. The court at the close of its instructions, in addition to submitting the special verdict, submitted to the jury two forms of general verdict, one of which was in such form that, if the blanks in it were properly filled by the jury, it would be a verdict in defendant’s favor. The other, if the blanks were filled, would be a verdict in the defendant’s favor. With reference to these forms of general verdict the court stated to the jury that—

“Whichever form of verdict you find, you will have your foreman date and sign the same, and when you have agreed upon your verdict you will notify the bailiff and you will be returned into court.”

The defendant at this time objected to the submission of the general verdicts, and excepted to the submitting of general instructions and to the failure to instruct as to specific questions. The jury retired, and after a short time returned in open court for further instructions, and the following occurred:

“Foreman of the Jury: I do not really understand how to fill out this blank.

“The Court: This is the special verdict blank.

“Foreman of the Jury: Yes, sir; we do not understand that we are to write in the names of each individual of the defendants here, or whether they are to be written in as one.