Martinmaas v. Engelmann6/28/2000
SCt 517, 520, 3 LEd2d 541, 545 (1959); Wilmington Star Mining Co. v. Fulton, 205 US 60, 79, 27 SCt 412, 419, 51 LEd 708, 718 (1907). The Eighth Circuit recognizes a harmless error exception. E.I. du Pont de Nemours & Co. v. Berkley & Co., Inc., 620 F2d 1247, 1258 n8 (8thCir 1980).
[ ] In contrast, South Dakota belongs to a minority of jurisdictions giving a converse meaning to the two-issue rule, calling it the general verdict rule: when a jury returns a general verdict encompassing two or more issues and the verdict is supported by at least one issue, the case will not be reversed. In Allen v. McLain, 75 SD 520, 69 NW2d 390 (1955), this Court wrote:
In determining whether error was probably harmless or probably prejudicial an appellate court is guided by all the factors in the case bearing on the likelihood of prejudice, the force of the evidence to sustain the verdict, the assumptions that the jury was intelligent, and where the verdict is sustainable on more than one theory, that the verdict is based on the theory unaffected by error, where nothing in the case suggests the contrary. Id. at 394 (citing 5 CJS Appeal and Error, § 1677).
In Allen, the appellant argued that the trial court's instructions allowed the jury "to assume that mere negligence as distinguished from willful and wanton misconduct, would be sufficient ground for a recovery by the plaintiff ... ." Id. at 392. The jury brought in a general "verdict of liability." The Court cited 5 CJS Appeal and Error, § 1562 (g), at 397: "As between proper and improper grounds or theories, a general verdict will often be presumed to be based on that ground or theory on which it can properly be sustained." Allen, 69 NW2d at 395.
[ ] Over the years, we have cited Allen several times in upholding the rule. In Limmer v. Westegaard, 251 NW2d 676, 679 (SD 1977), the Court wrote that " ithout an affirmative showing in the record to the contrary, we construe the jury verdict as rendered upon the properly submitted legal theory of negligence, rather than upon one improperly submitted." Likewise, in Eberle v. Siouxland Packing Co., Inc., 266 NW2d 256, 258 (SD 1978) the rule was reiterated: "This court has repeatedly stated that, in a civil case, if a general verdict is handed down and the jury could have decided the case on two theories, one proper and one improper, the reviewing court will assume that it was decided on the proper theory." As the trial court had instructed on both express and implied contract, the Court concluded that "even if the implied contract instructions were error, the giving of them was not reversible error." Id. See also Plucker v. Kappler, 311 NW2d 924, 925 (SD 1981) (verdict sustainable on theory other than the improper one); Dwyer v. Christensen, 77 SD 381, 92 NW2d 199, 202 (1958).
[ ] The general verdict rule controls in those actions brought on multiple theories of liability, where a single basis for damages applies. See First Interstate Dev. Corp. v. Ablanedo, 511 So2d 536, 538 (Fla 1987). The rationale for the rule was discussed in Knisely v. Community Traction Co., 180 NE 654, 654 (Ohio 1932):
The soundness or unsoundness of the rule cannot be argued upon principle, because no principle is involved. It is purely and solely a question as to whether the trial court will be held to a strict accountability to submit each and every issue in a case free from error, or whether, on the other hand, if one issue complete in itself as a cause of action or defense is submitted free from error, and there is nothing to indicate upon which issue a general verdict is grounded, other issues may be disregarded. The rule was designed to simplify the work of trial courts and t
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