PRACTICE AND PROCEDURE - GENERAL VERDICT ON SEVERAL COUNTS - IS NEW TRIAL NECESSARY WHEN ONE OF TWO COUNTS IS UNSUPPORTED BY EVIDENCE?

Plaintiff sued defendant to recover damages arising from personal injuries claimed to have been suffered by him while in the employ of defendant, who was not under the workmen's compensation statute. In the first count of his declaration plaintiff claimed that defendant did not furnish him a safe place in which to work, and in the second count that defendant set him at work on dangerous materials. The jury returned a verdict of "guilty on both counts" and assessed "total damages" at $998.71. The trial court, on a motion for judgment notwithstanding the verdict, ruled that as a matter of law there was insufficient evidence to support count one, but entered a judgment for the sum assessed by the jury.

Defendant appealed. Held, since there is no way of knowing whether part of the jury assessed damages on one count and part on the other, and since they could not "legally have found defendant guilty on both counts and awarded damages on but one count. . . . 'there must consequently be a new trial.'" Hughes v. Michoff, 288 Mich. 259, 284 N. W. 718 (1939).