Page:North Dakota Reports (vol. 48).pdf/519

 “The Court: This inquiry pertains to the general verdict. Does it not?

“Foreman of the Jury: Yes; there were three blanks here, you see.

“The Court: The court on its own motion withdraws from the consideration of the jury any form of general verdict in this action, and I instruct the jury to confine its finding solely to the questions propounded in the special verdict. Probably that will relieve you gentlemen of your trouble. If you will just return these two blanks covering the general verdict and answer the questions as they appear thereon and under the instructions that I have already given you.

“Foreman of the Jury: That would not be in accordance with the findings. We couldn’t on the special verdict—

“The Court: Then you wall have to answer these questions then to the best of your ability.”

The jury then retired and returned with the special verdict, and the court read each question therein to the jury and asked them if the answers to the questions were as they had found them, and the jury answered in the affirmative. It is not necessary to set out the questions and answers at length.

In these circumstances the query presented is: Can it be said that the jury may not have been prejudiced by the submission of the general verdicts in connection with the special verdict, where, as here, the instructions given were such as may be termed general instead of being confined to the matters covered by the special verdict and such additional instructions as the court may properly give in cases where a special verdict is taken. As we read the instructions, they are so complete that. if a special verdict had not been submitted and the case had been submitted to the jury for a general verdict only, they would have been sufficient.

There is abundant authority sustaining the principle that where a special verdict is taken general instructions should not be given; in other words, in effect, holding that general instructions are not applicable to a special verdict. Cases more or less sustaining this principle are Goesel v. Davis, 100 Wis. 678, 76 N. W. 768; Musbach v. Wisconsin Chair Co., 108 Wis. 57, 84 N. W. 36; and, in addition to these, a long list of cases cited under subdivision B of the note to the case of State v. Hanner, 143 N. C. 632, 57 S. E. 154, 24 L. R. A. (N. S.) 63. Most of the authorities cited in this part of the note are from Wisconsin, with the exception of