Hardin v. Pennington
| Decision Date | 30 May 1966 |
| Docket Number | No. 5--3810,5--3810 |
| Parties | Renella HARDIN, Appellant, v. Mrs. Irene PENNINGTON, Appellee. |
| Court | Arkansas Supreme Court |
Cockrill, Laser, McGehee & Sharp, Little Rock, for appellant.
No brief filed for appellee.
This is an appeal from an order of the trial court granting a new trial. The case was an action for personal injuries brought by appellee against appellant and resulted in a verdict for appellant. Appellee, in due time, filed her motion for a new trial. On June 22, 1965 the motion for a new trial came on for hearing and after argument of counsel, the court granted the motion. Hence, this appeal.
Ark.Stat.Ann. § 27--1901 (Repl.1962) states as the first ground for granting a new trial:
'Irregularity in the proceedings of the court, jury or prevailing party, or any order of court or abuse of discretion, by which the party was prevented from having a fair trial.'
In Texas & Pacific Ry. Co. v. Stephens, 192 Ark. 115, at page 120, 90 S.W.2d 978, at page 981, this court said:
'This matter of approving or rejecting a verdict of the jury, by the trial court, is one that must appeal to judicial discretion. Discretion, of course, is opposed to arbitrary action, and is not controlled or interfered with by this court upon appeal.
Ordinarily this power of the court to review or consider judgments rendered by juries is called into action by a motion for new trial. The court, however, may, in the exercise of discretion, act upon a verdict at any time during the session of the court at which it was rendered.'
In 66 C.J.S. New Trial § 115, p. 328, it is said:
.
In Parmentier v. Ransom, 179 Or. 17, 169 P.2d 883 (1946) it was held:
'In the furtherance of justice the trial court is given a wide latitude in granting new trial on its own motion to correct errors of law, even when no exception has been taken upon the trial.'
In Anderson v. State ex rel. King, 171 Okl. 587, 43 P.2d 474 (1935) the Oklahoma Supreme Court held:
'In granting new trial on own volition, judge does not usurp province of jury where verdict discloses that jury misunderstood plain instructions of court.'
The trial judge, in granting a new trial, explained in detail that he had refused to give the appellee's requested Instruction No. 5 and he did not think that the giving of any other instruction properly presented the issues. It is sufficient to say that the court in its sound discretion exercised its inheerent power to grant a new trial; and that it is not shown that he acted arbitrarily in this case.
Affirmed.
I do not agree that the trial court was justified in setting aside the judgment. The majority opinion does not set out any of the facts, and it is accordingly necessary that I do so in order to explain my dissent. The case was an action for personal injuries, brought by Mrs. Irene Pennington, who was riding as a passenger in an automobile, driven by Mrs. Sarah Elizabeth Hughes. The Hughes automobile had a collision with another car driven by Renella Hardin, appellant herein. Mrs. Pennington brought suit against Mrs. Hardin, alleging that her injuries resulted from the negligence of appellant. Mrs. Hardin denied negligence, and alleged that the collision was caused by the negligence of Mrs. Hughes. On trial, the jury returned a verdict for appellant.
Subsequently, on motion of Mrs. Pennington, the court set aside this jury verdict, and granted a new trial. This was done because the court felt that it had made a mistake in not giving to the jury plaintiff's requested instruction No. 5. The majority have not set out this instruction, but it reads as follows:
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...Heil v. Roe, 253 Ark. 139, 484 S.W.2d 889; Millers Casualty Insurance Co. v. Holbert, 253 Ark. 69, 484 S.W.2d 528; Hardin v. Pennington, 240 Ark. 1000, 403 S.W.2d 71; Thomas v. Arnold, 192 Ark. 1127, 96 S.W.2d 1108. Of course, the latitude of the trial judge's discretion is much broader whe......
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Heil v. Roe, 5--5992
...to present the issues, exercised his inherent power to grant a new trial in his sound discretion, and not arbritarily. Hardin v. Pennington, 240 Ark. 1000, 403 S.W.2d 71. See also Millers Cas. Ins. Co. of Texas v. Holbert, delivered on September 18, 1972, Ark., 484 S.W.2d In Blackwood v. Ea......
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Security Life & Trust Co. v. First Nat. Bank in Little Rock
...that he should have, in the original trial, given a requested instruction and grants a new trial for that reason. In Hardin v. Pennington, 240 Ark. 1000, 403 S.W.2d 71, the trial judge decided that he should have given the appellee's requested instruction No. 5, and he accordingly granted a......
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Faulkner v. Swindler
...The annotation of 13 A.L.R.2d beginning at page 11 is of little assistance on the point involved here, nor is the case of Hardin v. Pennington, 403 S.W.2d 71 (Ark.1966), also relied upon by counsel for plaintiff because of different contexts.1 Engstrom v. Wise Dental Co., 97 Or. 634, 193 P.......