{ "id": 1681249, "name": "Bailey v. Stewart", "name_abbreviation": "Bailey v. Stewart", "decision_date": "1963-02-11", "docket_number": "5-2897", "first_page": "80", "last_page": "85", "citations": [ { "type": "official", "cite": "236 Ark. 80" }, { "type": "parallel", "cite": "364 S.W.2d 662" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "222 Ark. 877", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1653073 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ark/222/0877-01" ] }, { "cite": "34 Ark. 632", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1875679 ], "opinion_index": 0, "case_paths": [ "/ark/34/0632-01" ] }, { "cite": "235 Ark. 744", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1684900 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ark/235/0744-01" ] }, { "cite": "192 S. W. 216", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "127 Ark. 254", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1550280 ], "opinion_index": 0, "case_paths": [ "/ark/127/0254-01" ] }, { "cite": "234 Ark. 882", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1688439 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ark/234/0882-01" ] }, { "cite": "215 Ark. 705", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1464675 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ark/215/0705-01" ] }, { "cite": "227 Ark. 351", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1705619 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ark/227/0351-01" ] } ], "analysis": { "cardinality": 528, "char_count": 8740, "ocr_confidence": 0.502, "pagerank": { "raw": 2.518178258854387e-07, "percentile": 0.8112316586797146 }, "sha256": "2c360996ef24c9fd661182fc142760e103b44029b7f5d76f1c9a6c290428b294", "simhash": "1:cb6609246104cdbb", "word_count": 1517 }, "last_updated": "2023-07-14T16:38:16.140393+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Bailey v. Stewart." ], "opinions": [ { "text": "G-eorge Rose Smith, J.\nThis is an action by Mr. and Mrs. John L. Stewart to recover damages for personal injuries suffered by Stewart in a traffic accident and for the ensuing loss of consortium suffered by his wife. The defendant Bailey appeals from a judgment, entered upon a jury verdict, awarding $10,000 to the husband and $1,000 to the wife. The appellant questions the sufficiency of the evidence and the amount of each award.\nIt is first contended that Bailey was entitled to a directed verdict, for the reason that Stewart\u2019s injuries were caused solely by the negligence of a third person, Jimmy F. Cossey. We think the court was right in submitting the case to the jury, whose verdict found Bailey and Cossey to be joint tortfeasors, with 50 per cent of the total negligence being attributed to each of them.\nThe accident happened on a November afternoon near a drive-in cafe in Dardanelle, where Stewart was standing outside a window provided for take-out purchases. Cossey, driving a car owned by Don Duvall, and Bailey, driving his two-ton truck, were approaching the vicinity of the cafe from opposite directions. Cossey attempted to turn left, across Bailey\u2019s traffic lane, to enter the cafe parking area. Cossey testified that he signaled his intention to turn, with his arm and with his signal light, and that he thought he could turn safely in front of the truck, which was still some distance away. In this thought Cossey proved to be mistaken. Bailey\u2019s truck, after laying down 42 feet of skid marks, struck the righthand side of Cossey\u2019s car, which had almost completely left the street, and knocked it with great force against a parked truck. The latter vehicle rolled forward and pinned Stewart to the wall of the cafe, causing serious and painful injuries to both his legs.\nWe think it plain that the issue of Bailey\u2019s negligence involved a question of fact for the jury. Bailey testified that Cossey did not give a signal of any kind. The jury could have found, however, that the signal was actually given and that consequently Bailey was guilty of negligence in failing to observe it and thereby avoid the collision.\nWe do not consider Mrs. Stewart\u2019s $1,000 judgment to be excessive. A wife\u2019s right to recover for loss of consortium was recognized by our decision in Missouri Pacific Transp. Co. v. Miller, 227 Ark. 351, 299 S. W. 2d 41. Stewart was 36 years old at the time of his injury. He was confined to a hospital for eleven days and to his home for six weeks. During much of this time he was completely helpless, lying in bed with at first both legs and later one leg suspended in the air in a cast. Mrs. Stewart acted in the home as her husband\u2019s nurse, giving up her job to be with him constantly and to attend to all his physical needs. It was about six months before Stewart was able to walk without crutches. In the circumstances it cannot be said that the verdict for Mrs. Stewart is so excessive as to require a reduction in this court.\nThis brings us to the principal question in the case: Did the trial judge, in entering a judgment in favor of Stewart for $10,000, correctly interpret the jury\u2019s answer to a special interrogatory upon the subject of Stewart\u2019s damages 1 The appellant contends that the award should have been credited with a settlement of $9,000 that Stewart had received from Cossey and Duvall, leaving a net liability against Bailey of only $1,000.\nBailey, the original defendant, brought Cossey and Duvall into the case as third party defendants. They pleaded, and subsequently proved, that they had extinguished their liability by the payment of $9,000 to Mr. and Mrs. Stewart. The release which the Stewarts executed, and which was introduced at the trial, recited that it was intended to conform to the Uniform Contribution Among Joint Tortfeasors Act and to relieve Cossey and Duvall from any liability for contribution. Ark. Stats. 1947, \u00a7 34-1005, was referred to in the release.\nThe trial judge, in instructing the jury, explained that the Stewarts \u2019 execution of the release did not relieve Bailey from liability, but the court did not indicate to the jury whether or not Bailey was entitled to benefit by the $9,000 compromise settlement. Instead, the trial judge told the jury that he would be able to enter a proper judgment if the jurors answered certain interrogatories, among which the following (with the jury\u2019s answers) are pertinent to this appeal:\n\u201c1. Do you find from a preponderance of the evidence that the plaintiff, John L. Stewart, is entitled to recover damages in this action from the defendant, John M. Bailey?\n\u201cYes.\n\u201c2. If your answer to the above question is \u2018Yes\u2019 then answer this question:\n\u201cWhat do you find from the evidence, if any, to be the actual damages sustained by the plaintiff, John L. Stewart, if any, without reference to the amount of payment in settlement as made by Jimmy F. Cossey and Don D. Duvall?\n\u201c$10,000.00\n(Insert actual damages, if any) \u201d\nBefore the court entered judgment upon the verdict the Stewarts \u2019 attorney filed a motion asking that Stewart be given judgment for the full $10,000, or, in the alternative, that he be granted a new trial owing to the jury\u2019s mistake. With this motion counsel tendered an affidavit, signed by the jurors, stating that the jury had intended for the $10,000 award to be in addition to the $9,000 settlement. The parties submitted briefs upon Stewart\u2019s motion. The trial court, citing Giem v. Williams, 215 Ark. 705, 222 S. W. 2d 800, and Walton v. Tull, 234 Ark. 882, 356 S. W. 2d 20, held that Stewart was entitled to judgment for the entire $10,000, without any credit being given for the $9,000 settlement.\nWe lay aside, as did the circuit judge, the jurors\u2019 affidavit. Such an attempt to explain the verdict is incompetent, for reasons of public policy, and should not have been made. Reiff v. Interstate Business Men\u2019s Acc. Assn., 127 Ark. 254, 192 S. W. 216.\nThe Giem case and the Walton case, relied upon by the trial judge, do not quite reach the point at issue. In the former we held that where the jury had been informed of a compromise payment made by another tortfeasor its amount should not have been subtracted from the verdict, as the jury had already taken it into consideration. In the Walton case we indicated (and later declared, after the trial below, in Woodard v. Holliday, 235 Ark. 744, 361 S. W. 2d 744) that snch a deduction would be proper where the jury had not been told about the settlement made by the other tortfeasor.\nThose cases would be controlling if it were not for the fact that here the pivotal question was explicitly submitted to the jury by the court\u2019s interrogatories. The court asked the jury, by the interrogatory we have quoted: \u201cWhat do you find ... to be the actual damages sustained by the plaintiff, John L. Stewart, if any, without reference to the amount of payment in settlement as made by Jimmy F. Cossey and Don D. Duvall\u00b6\u201d\nWe cannot construe the clause that we have italicized as being the equivalent of saying \u201cafter first having deducted\u201d the amount of the Cossey-Duvall payment. In fact, the actual statement and the one we have just suggested are diametrically opposite. We find it impossible to hold that a finding of the actual damages \u201cwithout reference\u201d to the amount of a compromise settlement is in effect a finding of those damages after the amount of the settlement has been taken into account.\nThe appellant asks that we end this litigation by reducing Stewart\u2019s judgment to $1,000. We are not convinced that justice would be achieved by that course. The Stewarts\u2019 post-trial motion asked for judgment in the full amount of the verdict or for a new trial. The circuit judge erroneously entered judgment for the full amount. Had he rejected that part of the movants\u2019 prayer he might still have granted a new trial upon the ground that a net award of $1,000 damages to Stewart (the amount of the verdict less the amount of the settlement) would have been against the weight of the evidence. Oliver v. State, 34 Ark. 632; Bockman v. World Ins. Co., 222 Ark. 877, 263 S. W. 2d 486. The fact that the trial judge actually entered a judgment for the full $10,000 strongly indicates that he would not have regarded a $1,000 recovery as representing everything that Stewart was entitled to. In this situation the only fair course is to grant Stewart\u2019s alternative prayer for a new trial.\nThe judgment in favor of Stewart is reversed, and, unless he elects within seventeen days to accept a judgment for $1,000 in accordance with the verdict, the cause will be remanded for a new trial.", "type": "majority", "author": "G-eorge Rose Smith, J." } ], "attorneys": [ "Williams & Gardner, for appellant.", "Jeff Motley, for appellee." ], "corrections": "", "head_matter": "Bailey v. Stewart.\n5-2897\n364 S. W. 2d 662\nOpinion delivered February 11, 1963.\nWilliams & Gardner, for appellant.\nJeff Motley, for appellee." }, "file_name": "0080-01", "first_page_order": 102, "last_page_order": 107 }