Breitenberg v. Parker

• Decision Date: 26 November 1963
• Docket Number: No. 5-3114,5-3114
• Citation: 372 S.W.2d 828,237 Ark. 261
• Parties: E. J. BREITENBERG, Appellant, v. E. R. PARKER, Appellee.
• Court: Arkansas Supreme Court

Page 828

372 S.W.2d 828

237 Ark. 261

E. J. BREITENBERG, Appellant, v. E. R. PARKER, Appellee.

No. 5-3114.

Supreme Court of Arkansas.

Nov. 26, 1963.

Wootton, Land & Matthews, Hot Springs, for appellant.

Fred E. Briner, Benton, Holt, Park & Holt, Little Rock, for appellee.

McFADDIN, Justice.

This litigation results from a traffic mishap in which appellee, E. R. Parker, sustained physical injuries and property damages. On April 6, 1961, Mr. Parker, accompanied by two companions, was driving his car in a heavy line of traffic in Hot Springs, and E. J. Breitenberg was driving his car immediately behind the Parker vehicle. The car in front of Parker stopped suddenly; Parker stopped suddenly; Breitenberg's car struck the rear of the Parker car, damaging the vehicle and inflicting a whiplash injury on Parker; and this litigation resulted. The jury awarded Parker a verdict of $20,000.00; and Breitenberg appealed, ¹ claiming three points:

'1. The Appellee Parker improperly asked a question about the issuance of a traffic ticket to the Appellant Breitenberg and to Appellant Breitenberg's prejudice.

'2. The Trial Court erred in failing to grant Appellant's Motion for a New Trial on the basis that the jury did not have time to consider the evidence.

'3. The verdict of the jury was excessive.'

I. Improper Question. When Mr. Parker was testifying the following occurred:

'Q. Now when you left the scene--Do you know whether the city policeman gave Mr. Breitenberg a ticket or not?

'A. I didn't see it.

'MR. WOOTTEN: Your Honor, we object to any such question as that.

'THE COURT: Sustained. The jury will disregard the question even though it was answered in the form that it was.'

Appellant says that the question about whether Breitenberg received a ticket for traffic violation was improper under Ark.Stat.Ann. § 75-1011 (Repl.1957), and requires a reversal under such cases as Garver v. Utyesonich, 235 Ark. (Adv. Sh.) 33, 356 S.W.2d 744; Harbor v. Campbell, 235 Ark. (Adv. Sh.) 492, 360 S.W.2d 758; and Girard v. Kuklinski, 235 Ark. (Adv. Sh.) 337, 360 S.W.2d 115. We agree that the propounded question was improper; but the Trial Court promptly admonished the jury to disregard the question and the answer. The appellant seemed satisfied with the Court's ruling, and neither moved for a mistrial nor made any other evidence of disagreement with the ruling. In these circumstances, we hold that any prejudice arising from the question was removed by the ruling of the Trial Court. See Horton v. Smith, 219 Ark. 918, 245 S.W.2d 386.

II. Brief Time That The Jury Deliberated. The trial of this cause began on October 25th, and the verdict was returned on October 26th. On November 8, 1962, Breitenberg filed a motion for new trial, supported by the affidavit ² of counsel to the effect that less than fifteen minutes transpired from the time the jury left the box to consider its verdict until the time the jury returned to announce the verdict; and the appellant urges that this was too short a time to allow the jury to deliberate. When the jury came in with the verdict the appellant knew at that time how long the jury had been out, yet did not ask that the jury be sent back to reconsider the verdict or make any objection to the brevity of jury consideration until November 8th, which was long after the trial. If there had been any objection to be registered, it it should have been registered before the jury was allowed to separate.

We find no merit to this point urged by appellant. We have no statute in Arkansas which prescribes a length of time that a jury should consider its verdict; but the general rule from the vast number of cases on the point is well stated in 89 C.J.S. Trial § 462c, p. 93:

'While the verdict should be the result of sound judgment, dispassionate consideration, and conscientious reflection, and the jury should, if necessary, deliberate patiently and long on the issues which have been submitted to them, where the law does not positively prescribe the length of time a jury shall consider their verdict, they may render a valid verdict * * * on very brief deliberation after retiring, especially where the evidence is not complicated, or the facts are clearly drawn. The trial court may, at its discretion, cause the jury to reconsider the case if their decision is so hasty as to indicate a flippant disregard of their duties.'

Appellant's counsel cite us to no Arkansas case involving this question of speed of deliberation of the jury, and our search has failed to disclose any such case; but there are many cases from other jurisdictions, all to the effect that the losing party has no ground for a new trial on the basis that the jury verdict was reached in a very short time. Some such cases are: Beach v. Commonwealth (Ky.), 246 S.W.2d 587; O'Connell v. Ford, 58 R.I. 111, 191 A. 501; Urquhart v. Durham (N.C.), 72 S.E. 630; Carrara v. Noonan, 69 R.I. 111, 31 A.2d 424; Patillo v. Thompson, 106 Ga.App. 808, 128 S.E.2d 656; Gaskill v. Cook (Mo.), 315 S.W.2d 747; and Rustigian v. Molloy (R.I.), 186 A.2d 724. We like the language of the Kentucky Court in Beach v. Commonwealth, supra:

'The fact that the jury returned a verdict in about eight minutes after having the case submitted to them does not indicate to us that Beach did not receive a fair trial when the issues of fact were so clearly drawn. It is true that a verdict should be the result of dispassionate consideration and the jury, if necessary, should deliberate patiently until they reach a proper conclusion concerning the issues submitted to them. Yet where the law does not positively prescribe the length of time a jury shall spend in deliberation, the courts will not apply an arbitrary rule based upon the limits of time.'

III. Excessiveness Of The Verdict. Finally, appellant urges that the verdict of $20,000.00 is grossly excessive and we are cited to a number of our cases wherein verdicts have been reduced, some of which are: Coca-Cola Bottling Co. v. Shipp, 174 Ark. 130, 297 S.W. 856; Oviatt v. Garretson, 205 Ark. 792, 171 S.W.2d 287; Southern Natl. Ins. Co. v. Williams, 224 Ark. 938, 277 S.W.2d 487; and Ward Body Works v. Smallwood, 227 Ark. 314, 298 S.W.2d 332. The rule, as to the province of this Court in regard to reducing verdicts, is well stated...