Reporter’s Notes:

(1996): With the merger of the District Court rules into the Mass. R. Civ. P., Rule 49 has been made applicable to the District Court, to the extent that Massachusetts law permits trial by jury in District Court civil actions.

(1973): Rule 49, identical to Federal Rule 49, prescribes two special methods by which the court may submit issues of fact to a jury: the special verdict, and the general verdict accompanied by answers to interrogatories. Under Rule 49(a) the court may require a jury to return only a special verdict. The issue may be put to the jury under this rule in one of three ways: (1) It may submit written questions; (2) it may submit written alternative special findings (so long as they are within the pleading and evidence), or (3) it may use such other method as it deems “appropriate.”

If the court omits any issue of fact, each party waives his right to trial by jury as to that issue unless he objects before the jury retires. The court may make a finding as to that issue; if it fails to make any finding, the issues will be deemed to have been decided in accordance with the judgment on the special verdict. Palmiero v. Spada Distributing Co., 217 F.2d 561 (9th Cir. 1954).

The special verdict, well known in Massachusetts practice, originated in common law. See Frati v. Jannini, 226 Mass. 430, 431 (1917). It is recognized by G.L. c. 231, § 124, G.L. c. 231A, § 1 (declaratory judgment) and G.L. c. 231, § 85 (comparative negligence). Except for cases falling under Mass.G.L. c. 281, § 85 (comparative negligence), under prior practice the trial judge had fall discretion to determine whether or not the jury should return a general or a special verdict, Stone v. Orth Chevrolet Co., Inc., 284 Mass. 525, 528 (1933). The Reporters have found no limitation on the court’s discretion as to the form or nature of the questions to be presented to the jury other than Mass.G.L. c. 231, § 85, supra, requiring the jury to find: (1) the amount of damages which would have been recoverable had there been no contributory negligence; and (2) the degree of negligence of each party expressed as a percentage.

The provision of Rule 49(a) that a party waives his jury right pro tanto if any issue is not submitted by the court to the jury is new to Massachusetts, as is the provision permitting the judge to find the facts of any such non-submitted issue. In Fitzgerald v. Young, 225 Mass. 116, 121 (1916) the judge failed to submit an issue of material fact to the jury. The jury returned with findings tending to show that the defendant was not liable. Over the plaintiff’s objection, the judge thereupon directed a verdict for the defendant. The Supreme Judicial Court held that the plaintiff had a right to a jury trial on the omitted issue of fact. See also Stone v. Orth Chevrolet Co., Inc., 284 Mass. 525, 528 (1933).

Note that in Fitzgerald the plaintiffs objection was held to be timely, even though it was made after the judge directed a verdict for the defendant. This directly conflicts with Rule 49(a). Further, the Fitzgerald jury in fact returned a “special verdict,” as the term is used in Rule 49(a). It answered the special questions submitted to it; the judge then directed a defendant’s verdict. Under Rule 49(a), the judge would merely have entered judgment for the defendant; the net effect is identical. Rule 49(a), in other words, allows the jury to find the basic facts, with the judge then applying the law to those facts and entering judgment for the appropriate party.

Rule 49(b) allows the court to require the jury to return, not merely a general verdict, but also specific answers to one or more special interrogatories. In federal practice, the court has fall discretion as to whether or not special questions should be submitted to the jury, Moyer v. Aetna Life Insurance Co., 126 F.2d 141, 145 (1941). If the general verdict and the answers to the interrogatories are consistent the court will enter the appropriate judgment. If the answers to the interrogatories are consistent with each other but inconsistent with the general verdict the court has three options: (1) enter judgment in accordance with the answers to interrogatories notwithstanding the general verdict; (2) return the jury for further consideration; or (3) order a new trial.

Under Federal Rule 49(b), “every reasonable intendment in favor of the general verdict should be indulged in an effort to harmonize the two. The answers override the general verdict and warrant the entry of judgment in disregard of the latter only where the conflict on a material question is beyond reconciliation on any reasonable theory consistent with the evidence and its fair inferences.” Mayer v. Petzelt, 311 F.2d 601, 603n. (7th Cir.1962), quoting Theurer v. Holland Furnace Co., 124 F.2d 494, 498 (10th Cir.1941).

If the answers to interrogatories are inconsistent with each other and one or more is also inconsistent with the general verdict, the court may only (1) order the jury out for further consideration; or (2) order a new trial.

In Massachusetts, the practice of submitting special questions to the jury along with a request for a general verdict is recognized by statute, G.L. c. 231, § 124 and G.L. c. 231A, § 1. But the court’s power to utilize the procedure is not statutory, Burgess v. Giovannucci, 314 Mass. 252, 256 (1943), and the court has full discretion as to whether or not special questions should be submitted, Viaux v. John T. Scully Foundation, 247 Mass. 296, 301 (1924).

The Reporters know no Massachusetts case dealing specifically with the problem of a general verdict which is inconsistent with one or more special questions. In Dorr v. Fenno, 29 Mass. 521, 525-526 (1882), a case involving jury misconduct (quotient verdict), the court indicated by way of dictum that a judge could either send the jury back for further deliberations or set the verdict aside in the event that the general verdict was inconsistent with the answers to special questions.

Rule 49(b) is inconsistent with Massachusetts practice in two respects. Rule 49(b) requires that special questions be in writing; under prior Massachusetts practice the judge could put the questions to the jury orally, Newell v. Rosenberg, 275 Mass. 455, 458 (1931). Rule 49(b) also requires that the special questions be submitted “together with appropriate forms for a general verdict” (emphasis added); prior Massachusetts practice permitted the judge to submit questions after the jury had returned with a general verdict, Id.