Porter v. Holford

Judgment reversed on the law and facts and a new trial granted, with costs to the appellant to abide the event. Memorandum: Plaintiff proved a prima facie case and was entitled to recover one half the reasonable value of the cost of necessary repairs to the roadway. There is some proof here from which the jury could find that the defendant’s property was damaged by reason of the repairs or construction of the roadway. We are unable to tell from this record how the jury arrived at the verdict of no cause of action. We think in the interest of justice there should be a new trial and the court should submit special questions to the jury including (1) What was the reasonable value of the cost of necessary repairs to the roadway? (2) Was the defendant’s property damaged by the repair or reconstruction of the roadway? (3) If the second question is answered in the affirmative, what was the amount of the damage? If the jury answers those questions the court can then direct a general verdict based upon the findings of the jury. All concur, except Kimball and Wheeler, JJ., who dissent and vote for affirmance. (Appeal by plaintiff from a judgment for no cause of action both as to plaintiff’s complaint and defendant’s counterclaim in an action for breach of contract.) Present — MeCurn, P. J., Vaughan, Kimball, Piper and Wheeler, JJ.