Larimer v. Platte, 48042

• Decision Date: 06 May 1952
• Docket Number: No. 48042,48042
• Citation: 243 Iowa 1167,53 N.W.2d 262
• Parties: LARIMER v. PLATTE et al.
• Court: Iowa Supreme Court

Page 262

53 N.W.2d 262

243 Iowa 1167

LARIMER v. PLATTE et al.

No. 48042.

Supreme Court of Iowa.

May 6, 1952.

Otto L. Schluter, of Cedar Rapids, for appellant.

Elliott, Shuttleworth & Ingersoll, of Cedar Rapids, for appellees.

GARFIELD, Justice.

Plaintiff's decedent was killed in a collision between his automobile driven by him and a tractor-trailer owned by Platte, driven by Jacob. Plaintiff sued them both for damages of $52,000 due the estate. Platte filed a counterclaim against plaintiff for damage to the tractor-trailer. There was a verdict and judgment for $600 on the counterclaim. Plaintiff's motion for new trial was overruled. She has appealed, assigning as error the overruling of such motion.

The counterclaim alleged damages of $326 and $1879.49, as the reasonable cost of repairing the tractor and trailer respectively. For six weeks' loss of use of the tractor-trailer while the repairs were made damages were also claimed of $525 per week. At a pretrial conference pursuant to rule 136, R.C.P., it was agreed the damage to the tractor was $326 and to the trailer $1879.49 (the amounts claimed), the court could so state in its instructions to the jury and no witness need be called to establish such damages.

Pursuant to rule 138 the court entered an order reciting the action taken at the conference. Rule 138 provides such an entry 'will control the subsequent course of the action relative to matters it includes, unless modified to prevent manifest injustice.'

In accord with the above agreement, order and rule 138 the jury was instructed without objection that if its verdict was for the counterclaimant the measure of his damages was $326 for damage to his tractor and $1879.49 for damage to his trailer. The jury was also instructed to allow the reasonable value of the use of the tractor-trailer while being repaired with ordinary diligence but not in excess of $600. Defendant Platte testified his loss from nonuse of the tractor-trailer while being repaired was 'around $600, $650.' As above stated, the verdict was for $600 on the counterclaim. Judgment was entered on the verdict.

Plaintiff asserted in her motion for new trial and argues here the verdict is contrary to law because the jury was required either to find against her on the counterclaim for $326 damage to the tractor, $1879.49 damage to the trailer and damage, if any, for loss of use while being repaired not in excess of $600, or to find in her favor on the counterclaim. In other words plaintiff says she was entitled to have the jury decide whether, on the counterclaim, she owed Platte $2205.49 ($326 plus $1879.49) and any amount not more than $600 for loss of use of the tractor-trailer, or owed him nothing. It is said the jury never decided that question but violated the court's instructions, applied a measure of recovery of its own choosing and decided plaintiff owed defendant $600 on the counterclaim.

Defendants argue in support of the overruling of plaintiff's motion for new trial that she cannot complain the verdict against her on the counterclaim is for less than the amount fixed in the court's instructions. It is not contended recovery could be had on the counterclaim for loss of use of the tractor-trailer during repairs unless defendant Platte was entitled to recover the $2205.49 for repairing the damage thereto.

I. We think there is merit in plaintiff's position. One purpose of the pretrial proceeding was to settle the amount Platte was entitled to recover, if entitled to recover at all, on his counterclaim, for repairing the damage to his tractor-trailer.

Pursuant to the agreement and order, one of the court's instructions definitely fixed the sum Platte was entitled to recover for damage to his tractor-trailer, if any recovery on the counterclaim was allowed. This instruction, given without objection, became the law of the case. Jensen v. Duvall, 192 Iowa 960, 963, 185 N.W. 584; Porter v. Tenant, 197 Iowa 200, 202, 197 N.W. 79, and citations; Nichols v. Kirchner, 241 Iowa 99, 105, 40 N.W.2d 13, 17, and citations; Anno. 23 A.L.R. 305.

It was the jury's duty under the law and the oath it had taken, see rule 187(i), R.C.P., to follow the court's instructions and decide the questions therein submitted to it. One such question was whether plaintiff owed defendant Platte on his counterclaim $2205.49 together with any amount (not over $600) for loss of use of his tractor-trailer or owed him nothing. The jury failed to decide that question but violated the court's instructions and decided plaintiff owed Platte $600 on his counterclaim. There is no room under this record for that verdict and it should not stand.

It is no answer to say plaintiff was not prejudiced by the return of this verdict. If the jury had followed the instructions and rendered a verdict either for $2205.49, together with any amount it found due for loss of use, or for nothing, the verdict might have been for nothing. Both parties, plaintiff as well as defendant Platte, were entitled to a decision under the law stated in the court's instructions and not under the jury's ideas of rough justice in disregard of the law of the case.

This case is perhaps complicated because the demand that became liquidated was made in the counterclaim to which the administratrix was defendant and because of the inclusion in the counterclaim of the unliquidated demand for damage for loss of use of the tractor-trailer while under repair. On principle, however, the situation is the same as if a plaintiff had sued for $1000 which the parties agreed he was entitled to recover, if entitled to recover at all, the agreement was confirmed by order of court and the jury was so instructed, without objection, yet a verdict was returned for $250. Upon sound reason and by the decided weight of authority such a verdict should not stand if either party objects thereto.

The decisions amply support this statement from 39 Am.Jur., New Trial, § 148: 'And where, in actions to recover a liquidated amount, the jury renders a verdict for a less sum than that which was required quired by the court's instructions, the prevailing view is that the party against whom the verdict is returned may object to its inadequacy, although there is authority to the contrary.' After the pretrial proceeding the amount claimed by Platte for repair of his tractor-trailer was of course a liquidated amount.

A number of decisions which support our conclusion are found in Annotations 23 A.L.R. 305, 31 A.L.R. 1091, 1099, 174 A.L.R. 765, 778. The first of these annotations states: 'Accordingly it is generally held that where the court instructs the jury as to the specific amount of a party's liability, if he is found to be liable at all, and the jury disregards the instruction and brings in a verdict for a different amount, it is the duty of the court to set aside the verdict and grant a new trial.'

In Stetson v. Stindt, 3 Cir., 279 F. 209, 211, 23 A.L.R. 302, 304, the trial judge held the fact the verdict was for less than the jury should have found against defendant was not a valid reason for granting him a new trial. Upon appeal this was reversed. The opinion states: 'We are persuaded by the * * * last line of authorities that a verdict like the one under consideration, which is perverse and directly violative of the charge of the court and is wholly without evidence to support it, cannot stand. It is not sufficient to say that the defendant cannot complain because he was not injured. He was injured by being deprived of the right of a litigant to have the jury determine his liability under the law as laid down by the court. That liability might be for more than the jury found; yet it might be for nothing.'

Other precedents which hold a new trial should be granted a party where a verdict against him is substantially less than the court has instructed to return, if any recovery is allowed, include: S. D. Winn. Cigar Co. v. Wilson, 35 Ala.App. 466, 48 So.2d 64; Kundred v. Butler, 93 Ind.App. 691, 177 N.E. 345, 347; Winston v. McKnab, 134 Kan. 75, 4 P.2d 401; Dunn v. Blue Grass Realty Co., 163 Ky. 384, 173 S.W. 1122; Alden v. Sacramento Suburban Fruit Lands Co., 137 Minn. 161, 163 N.W. 133; Cole v. Armour, 154 Mo. 333, 353, 55 S.W. 476, 482; Jas. Turner & Sons v. Great Northern R. Co., 67 N.D. 347, 272 N.W. 489 (damage to property from fire); Tou Velle v. Farm Bureau Co-op Exch., 112 Or. 476, 229 P. 83; Barry v. Kettelle, 49 R.I. 50, 139 A. 664; New Home Sewing-Mach. Co. v. Simon, 107 Wis. 368, 83 N.W. 649, 653.

Siverts v. Dahoot, 150 Minn. 179, 184 N.W. 839, applies the doctrine of these decisions where a verdict for about one third the correct amount was returned on a counterclaim. The opinion states, 'The argument is made that plaintiff should not be heard to complain since he is not prejudiced. The argument is not sound.'

Coming to our own cases, our conclusion finds support in this language from Jensen v. Duvall, supra, 192 Iowa 960, 963, 965 185 N.W. 584, 585, although the appeal there was by plaintiff in whose favor the inadequate verdict was returned: 'Where a verdict is lower than the undisputed testimony would fix it, and not in conformity with the instructions of the court, the court * * * should grant a new trial. * * *

'The jury entirely disregarded the instructions of the court, and either party was entitled to a new trial. Defendant waived his right to a new trial. Plaintiff demanded a new trial, and a new trial must be granted him.' (Italics added.)

Rueber v. Negles, 147 Iowa 734, 742, 126 N.W. 966, points out that where a jury is instructed to return a verdict for a fixed amount or nothing, a verdict for a much smaller sum leaves it uncertain whether there should be no recovery at all or recovery for the full amount, so either party has ground for a new trial. See also J. I. Case Threshing Machine Co. v. Fisher, 144 Iowa 45, 51, 122 N.W. 575.

We have repeatedly held it is the jury's duty to follow...