Law v. Collins

• Decision Date: 06 March 1967
• Docket Number: No. 5--4144,5--4144
• Citation: 242 Ark. 83,411 S.W.2d 877
• Parties: Sterns M. LAW, Jr., Appellant, v. Scottie COLLINS et ux., Appellees.
• Court: Arkansas Supreme Court

Page 877

411 S.W.2d 877

242 Ark. 83

Sterns M. LAW, Jr., Appellant, v. Scottie COLLINS et ux., Appellees.

No. 5--4144.

Supreme Court of Arkansas.

March 6, 1967.

Mobley & Bullock, Russellville, for appellant.

Williams & Gardner, Russellville, for appellees.

FOGLEMAN, Justice.

Appellant asks us to reverse the action of the trial court granting appellees a new trial upon the grounds of inadequacy of the jury verdict in favor of appellees and newly discovered evidence.

The parties were involved in an automobile collision on October 13, 1965. Appellee Scottie Collins and appellant Sterns M. Law were the drivers of the respective vehicles involved, both of which were proceeding in an easterly direction on Highway #64 immediately prior to the collision. Mrs. Collins was returning to her home from her work as a housekeeper, driving a pickup truck which belonged to her husband, appellee Earnest Collins. She either stopped or slowed her vehicle to make a left-hand turn onto Mill Creek Road and was struck by the vehicle driven by Law who was approaching from her rear. There was a dispute as to whether a proper signal was given by Mrs. Collins before the collision.

Appellees' complaint charged that appellant was negligent in several particulars, most of which related to the disregard of the superior right of the forward vehicle to the use of the highway. Both Law and Mrs. Collins suffered injuries and the Collins vehicle was damaged. In his answer, appellant included a counterclaim for medical expenses on account of injuries received by his wife and minor children who were passengers in the vehicle driven by him.

Trial was had on April 19, 1966, resulting in a jury verdict for appellee Scottie Collins in a jury verdict for appellee Scottie Collins assessing her damages at $750.00. A Collins on the counterclaim of Law. The jury was instructed that if it found Scottie Collins free of negligence as a proximate cause of the collision, it should award the full amount of any damages she sustained by reason of the negligence of appellant, but that if it found Law free of negligence, then he was entitled to recover from Mrs. Collins the full amount of his damages proximately caused by any negligence on her part. The instruction (AMI 2104) then went into application of the comparative negligence statute. The court then gave AMI 2201 telling the jury that if it found for Mrs. Collins on the question of liability, it must fix the amount of her damages and gave them the measure thereof. The jury was also instructed that if it found for appellant Law on the question of liability, it must fix the amount of his damages.

The court submitted the following forms of verdicts:

We, the jury, find for Scottie Collins on her Complaint, and against Sterns M. Law, Jr., the defendant, and assess her damages at _ _ dollars.

We, the jury, find for Earnest Collins on his Complaint, against Sterns M. Law, Jr., the defendant, and assess his damages at _ _ dollars.

We, the jury, find for Sterns M. Law, Jr., on his Counterclaim, and against the plaintiff, Scottie Collins, and fix his damages at _ _ dollars.

We, the jury, find against Sterns M. Law, Jr., on his Counterclaim, and for the defendant, Scottie Collins.

We, the jury, find for Sterns M. Law, Jr., the defendant, and against Scottie Collins, the plaintiff, on their Complaint.

The court instructed the jury that its verdict would be in one of the forms submitted. No objection was made by either party.

After deliberation, the jury first returned into court a verdict finding for appellee Scottie Collins on her complaint and fixing her damages at $750.00. This was the only verdict returned at this time. The trial judge then, with consent of counsel, directed the jury to retire and assess the damages of Earnest Collins since there was no negligence on his part. Thereafter they returned with such a verdict fixing his damages at $200.00.

While it seems that this is a case which might better have been submitted to the jury on interrogatories, or at least that there might better have been more explicit instructions about the use of the forms of verdicts, we think that the only proper conclusion to be reached is that the jury found that Law was guilty of negligence in a greater degree than was appellee Scottie Collins.

The granting of a new trial to Earnest Collins was not an abuse of discretion. We have always followed the rule that the action of the trial judge on a motion for new trial upon a statutory ground should not be reversed in the absence of abuse of his discretion. The claim of Earnest Collins was only for property damage. He was the only witness on the amount of his damages. He testified that his vehicle was worth $600.00 less after the collision than it was before. He offered a repair bill totaling $599.85. There is some question whether the jury ever saw or had the repair bill read to them, but Collins did admit that some of the items thereon may not have resulted from the collision. These items, however, would account for a reduction in damages in an amount far less than $400.00. Error in the assessment of the amount of recovery, whether too large or too small, where the action is for the injury of property, is one of the statutory grounds for a new trial. Ark.Stat.Ann. § 27--1901 (Repl.1962). While the testimony of a party is not to be treated as uncontradicted in testing sufficiency of evidence to support a verdict, the trial judge who saw and heard the witnesses apparently found that his testimony was such that a $200.00 verdict was erroneous.

Quite a different situation presents itself in the case of Mrs. Collins. Since the trial judge instructed the jury on the law of comparative negligence and told them to return their verdict on one of the forms submitted, it is proper to assume that they found both parties negligent, but appellant more negligent than Mrs. Collins. It would follow that they made an appropriate deduction from the damages awarded her in accord with the court's instruction. The record, of course, is silent as to the amount of damages they found before the deduction and as to the percentage of negligence they attributed to her. Mrs. Collins testified that her medical expenses consisted of:

She also testified that she lost twenty weeks work at one time and six and one-half weeks at another, but that she had earned $84.00 during the latter period. She said that she earned $40.00 per week when working.

It was admitted that Mrs. Collins had been nervous and unable to sleep following major surgery sometime previous to the collision, and that she was taking medication on account of that condition. She said that the nerve pills she took for the pre-existing condition, and continued taking after the collision, cost fifteen cents per day.

The action of the court in granting a new trial to Mrs. Collins on the basis of inadequacy of damages must be viewed in the light of the prohibition in Ark.Stat.Ann. § 27--1902 (Repl.1962) (Civil Code, § 372) which states:

'A new trial shall not be granted on account of the smallness of damages in an action for an injury to the person or reputation, nor in any other action where the damages shall equal the actual pecuniary injury sustained.'

While this precise section has not been construed by us, courts of other states having the identical language have held that this statute prohibits the granting of new trials in any action for personal injuries. See Sharpe v. O'Brien, 39 Ind. 501; Blakely v. Omaha & C. B. Street R. Co., 94 Neb. 119, 142 N.W. 525; O'Reilly v. Hoover, 70 Neb. 357, 97 S.W. 470; Murray v. Decker, 132 Okl. 188, 270 P. 38.

It has even been held that this section prevents the granting of a new trial when the verdict is for nominal damages only in spite of evidence of substantial damage. Norton v. Lincoln Traction Co., 92 Neb. 649, 138 N.W. 1132; Langdon v. Clarke, 73 Neb. 516, 103 N.W. 62; Woodard v. Sanderson, 83 Okl. 173, 201 P. 361.

Although the statute has not been mentioned, this court has refused to follow this latter most narrow construction. Our cases indicate an inclination to permit a new trial for inadequacy of damages where evidence clearly establishes pecuniary injury in excess of the damages. Dunbar v....