Warrender v. McMurrin, 51365

• Decision Date: 05 May 1964
• Docket Number: No. 51365,51365
• Parties: Dalgarno 'Scotty' WARRENDER, Appellee, v. A. G. McMURRIN, Marvin D. McMurrin, Appellants.
• Court: Iowa Supreme Court

Page 285

128 N.W.2d 285

256 Iowa 617

Dalgarno 'Scotty' WARRENDER, Appellee, v. A. G. McMURRIN, Marvin D. McMurrin, Appellants.

No. 51365.

Supreme Court of Iowa.

May 5, 1964.

Gleysteen, Nelson, Harper, Kunze & Eidsmoe, Sioux City, for appellants.

Miller, Miller & Miller, Cherokee, for appellee.

SNELL, Justice.

In a farm accident case defendants have appealed from the order of the trial court granting a new trial.

On July 31, 1962 plaintiff was an experienced farmhand serving as a temporary employee of defendants. He was unloading baled straw from a flatbed wagon. Some of the bales of straw slipped and fell from the wagon striking plaintiff causing him to fall backwards on some rocks. He suffered three fractured ribs, soreness, pain, some atelectasis or squeezing of the lung, and, in the opinion of the examining radiologist, a little pneumothorax or air accumulating between the lining of the lung and the chest wall.

Plaintiff was hospitalized four days and was under medical supervision and wore a brace for about six weeks. Up until the time of trial in March, 1963 he had done no physical labor. His medical and hospital bills totaled $154.05.

Plaintiff was 68 years old and had not worked steadily since 1952. His annual earnings were very modest. For all of the various items for which a plaintiff in a personal injury action usually seeks recovery plaintiff asked $15,000.00.

Plaintiff alleged and offered evidence that defendants were proximately negligent in requiring plaintiff to work upon a flatbed wagon in an area strewn with rocks; on a wagon parked by one of the defendants on sloping ground; and on a flatbed wagon containing baled straw stacked in a slanting manner.

The case was submitted to a jury. There is no claim of error in the admission of evidence or in the instructions.

The jury returned a verdict for plaintiff in the sum of $350.00.

Plaintiff moved for a new trial on three grounds: That the verdict was inadequate; inequitable; and a compromise verdict whereby some jurors exchanged their convictions that there should have been a verdict for defendants in return for a vote of a low and inadequate verdict.

The court sustained the motion on all three grounds and defendants appeal alleging error in each particular.

We will consider the grounds in inverse order.

I. In support of the motion for new trial plaintiff offered the affidavit of one juror. The affidavit stated that after some deliberation a ballot showed that the jury stood 10 to 2 against a finding of negligence.

Subsequently a ballot on whether plaintiff should receive compensation favored plaintiff by 8 to 4.

Later each juror wrote on a ballot his or her idea as to what should be awarded plaintiff. The amounts varied from nothing to $2,500.00. The average was $35.00. Although this amount was the final verdict there is no claim that there was any agreement to be bound by the average.

No one claims that the result was a quotient verdict.

The jury was instructed and retired for deliberations at 3:15 P.M. and returned the verdict at 8:45 P.M. The deliberations extended throughout 5 1/2 hours less such time as was needed for an evening meal. There is nothing in the affidavit to indicate that the verdict was precipitous, impulsive, coerced or rendered without proper deliberation. Neither is there anything to suggest that the manner in which the jury reached its final verdict constituted such misconduct as to require a new trial. Jury verdicts may not be set aside just because the essential propositions are not finally determined in the order suggested by the court's instructions.

The allegations in the affidavit and the resulting suspicion that the verdict was a compromise would not support an order for a new trial. These matters all inhered in the verdict. Jury verdicts may not be so impeached. If verdicts could be so attacked and set aside there would seldom, if ever, be a finality as to jury verdicts. Long v. Gilchrist, 251 Iowa 1294, 1299, 105 N.W.2d 82.

In Keller v. Dodds, 224 Iowa 935, 277 N.W. 467 the showing of improper matters discussed and considered was much stronger than in the case before us. It was held that the showing on that ground was insufficient to order a new trial.

The statements and quotations in Allbee v. Berry, 254 Iowa 712, 718, 179, 119 N.W.2d 230 about compromise verdicts had a different background and related to inadequacy of a verdict and not misconduct of a jury. An inadequate verdict resulting from a compromise may be set aside but it is set aside because of inadequacy or misconception of the jury's duty and not because it is a compromise or reconciliation of opinions. The abject surrender of an abiding conviction for no reason except to return a verdict might be an improper compromise but a final verdict representing a reconciliation or change in first expressed impressions is not a basis for new trial.

The trial court's order for a new trial is sufficiently supported on other grounds. We will consider the question of inadequacy and the court's power to order a new trial because thereof in the next division.

II. The trial court found the...