Millers Cas. Ins. Co. v. Holbert
| Decision Date | 18 September 1972 |
| Docket Number | No. 5--5977,5--5977 |
| Court | Arkansas Supreme Court |
| Parties | MILLERS CASUALTY INSURANCE CO., Appellant, v. Claud HOLBERT, Appellee. |
Thomas M. Bramhall, Little Rock, for appellant.
Wright, Lindsey & Jennings, Little Rock, for appellee.
The circuit judge granted appellee's motion for a new trial of his claim against appellant for losses on account of vandalism and malicious mischief which he asserted came within the coverage of insurance policies issued by appellant. The jury verdict on appellee's claim for damage to a duplex dwelling house was for appellant. On a claim for damage to an apartment, the verdict fixed the loss at only $5,800, although appellee claimed that the loss amounted to $15,000, and introduced evidence which might have sustained such a verdict. The basis for granting a new trial was the circuit judge's opinion that there were prejudicial errors in his giving of instructions to the jury. The judge stated that he had given inherently erroneous instructions covering issues that never should have been submitted to the jury.
Appellant argues that this action constituted an abuse of the circuit judge's discretion because there was only one portion of one instruction which might have been deemed erroneous and that the court and the attorneys all knew when it was given that it was erroneous in that the jury was told that it should find for appellant if any portion of appellee's loss was caused by his own neglect, rather than diminish the recovery to the extent that this neglect caused loss. Appellant then argues that the error in the instruction was cured by the jury verdict, because the jury did not allow appellee the full amount of damages to the apartment building to which the instruction would have applied but actually did what it should have, i.e., diminished the recovery by allowing only $5,800.
We are unable to say that there has been any abuse of discretion in this case regardless of whether the instructions were erroneous or correct. We have held that a trial judge who explained in detail that, by refusing an instruction, he had, in his opinion, failed to present the issues, exercised his inherent power to grant a new trial in his sound discretion, and not arbitrarily. Hardin v. Pennington, 240 Ark. 1000, 403 S.W.2d 71. Here the circuit judge explained in detail that he should not have submitted to the jury the issue of appellee's neglect at or after the occurrence or an issue relating to the occurrence of the loss at a time when the hazard insured against had been increased over that existing when the policy...
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