Lombard v. Cory

522 P.2d 581, 95 Idaho 868, 1974 Ida. LEXIS 528
CourtIdaho Supreme Court
DecidedMay 14, 1974
Docket11326
StatusPublished
Cited by18 cases

This text of 522 P.2d 581 (Lombard v. Cory) is published on Counsel Stack Legal Research, covering Idaho Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Lombard v. Cory, 522 P.2d 581, 95 Idaho 868, 1974 Ida. LEXIS 528 (Idaho 1974).

Opinions

DONALDSON, Justice.

This case involves the issues of whether damages awarded by the jury for injuries sustained by plaintiffs-appellants are sufficient and whether the jury determined the amount of damages awarded by means of a quotient verdict.

On September 28, 1969, plaintiffs-appellants, Ernest and Delcine Lombard, together with their three children, were returning to their home in Boise from Eden, Idaho. They were passing through Mountain Home at about 9:00 o’clock p. m. when their car was struck by a pickup truck driven by defendant-respondent Emer Cory, who had just pulled out of a cafe parking lot and onto the highway. Mr. Lombard testified that the Cory’s vehicle appeared in front of him without warning and that there was no time to avoid being hit. Mr. Cory testified that he thought that he had plenty of time in which to pull onto the highway, but that loose gravel along the shoulder of the road caused his tires to spin, thereby causing the accident.

Following the accident, the occupants of the two vehicles were taken to the Mountain Home Hospital for treatment of their injuries. Mr. Lombard testified that he was seated three or four feet from Mr. Cory in the emergency room and that he smelled alcohol on his breath. The police officer who investigated the accident testified that respondent Cory appeared intoxicated. Respondent testified that he had consumed three drinks earlier in the day, but that he had not drunk any alcohol within six hours of the accident and that he was not drunk when the accident occurred.

As a result of the accident, Mr. Lombard suffered injuries to his right knee when it struck the steering column. Surgical repair to the knee was required. Mrs. Lombard was thrown into the windshield, breaking the glass and cutting the right side of her face. Glass fragments lodged in her face. After striking the windshield, she bounced back to the seat, striking her left side against a metal strip on the side of the seat. This caused injury to her left kidney and eventually necessitated the removal of one quarter of the kidney.

After hearing the testimony and viewing the evidence, the jury found for the plaintiffs-appellants and awarded them their total medical expenses of $2,533.45, plus their children’s of $90.00. They also awarded Mr. Lombard general damages of $2,700.-00 and Mrs. Lombard $3,818.00. The trial court in entering judgment on the verdict added $400.00 to the jury’s award, that sum being the wages lost by Mrs. Lombard while she was recuperating. By mistake, this sum had not been submitted to the jury.

Subsequent to the entry of judgment, the foreman of the jury stated in two sworn affidavits that after retiring to deliberate, the jury held a free and open discussion on the question of liability and damages. They first determined that the respondents were liable. Then, in order to arrive at a figure for damages, each juror wrote down on a slip of paper the amount he or she thought was proper as general damages for Mr. Lombard and Mrs. Lombard. These figures were then averaged. In the case of Mr. Lombard, the jury then raised the [870]*870average. In the case of Mrs. Lombard, the figure reached was the jury’s award. However, in both cases, there was no agreement made in advance to be bound by the average arrived at and in both cases the average figure was discussed and then voted upon.

After the judgment was entered, appellants moved for a new trial on the grounds that the damages awarded to Mrs. Lombard were not sufficient and that the verdict of the jury was a quotient verdict and therefore void. The district court denied the motion and appellants have appealed from the order of denial. They have also appealed the refusal of the trial court to grant their motion for directed verdict made at the close of the testimony and to only submit to the jury the question of damages and from the judgment rendered in their favor.

Turning first to the refusal of the district court to grant appellants’ motion for directed verdict. Appellants requested the trial court to rule that as a matter of law the respondents were liable for damages and submit to the jury only the question of damages. The trial court correctly refused to do so in as much as there existed the questions of fact as to whether Mr. Cory was intoxicated and whether Mr. Lombard maintained an adequate lookout. Directed verdicts should only be granted when the evidence is so clear and undisputed that all reasonable minds must reach the same conclusion. Thomas v. Hinton, 76 Idaho 337, 281 P.2d 1050 (1955); Wilson v. United States, 154 F.Supp. 341 (D.C.N.D.New York 1957); Standard Accident Insurance Co. v. Winget, 197 F.2d 97 (9th Cir. 1952). Since there was evidence which could have supported a verdict in favor of respondents, the district court properly denied appellants’ motion.

However, even assuming arguendo that appellants were entitled to a directed verdict, the trial court’s failure to grant it would not be grounds for reversal by this Court since the jury found in favor of the appellants. Because the jury did find in their favor, the refusal to direct verdict in their favor would be harmless error and therefore not grounds for reversal.

“Harmless error. No error in either the admission or the exclusion of evidence and no error or defect in any ruling or order or in anything done or omitted by the court or by any of the parties is ground for granting a new trial or for setting aside a verdict or for the vacating, modifying, or otherwise disturbing a judgment or .order, unless refusal to take such action appears to the court inconsistent with substantial justice. The court at every stage of the proceeding must disregard any error or defect in the proceeding which does not affect the substantial rights of the parties.” I.R. C.P. 61.

One of the grounds advanced by appellants in their motion for a new trial and on this appeal was that the jury reached its verdict by chance by rendering a quotient verdict. It is well settled that this Court will not upset a denial of a new trial by the district court without a clear showing of abuse of discretion. Davis v. Bushnell, 93 Idaho 528, 465 P.2d 652 (1970); Archer v. Shields Lumber Co., 91 Idaho 861, 434 P.2d 79 (1967). Of course, if the jury’s verdict was a quotient verdict, then it was an abuse of discretion for the trial court to deny a new trial. I.C. § 10-602(2).

This Court has long adhered to the rule that where each juror submits the amount of damages he or she thinks is proper and these are averaged, it is not a quotient verdict so long as the jurors do not agree in advance to be bound by the average reached.

“A verdict is not subject to be challenged on the ground that it was a chance verdict because the jurors during the course of their deliberation, in order to compose their differences of opinion as to the amount that should be allowed, undertake to average their judgment, unless it clearly appears that before doing [871]*871so they each severally agree to be bound by the result of such chance methods after the result has been reached.” Cochran v. Gritman, 34 Idaho 654, 672, 203 P. 289, 295 (1921).

See Clark v.

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Lombard v. Cory
522 P.2d 581 (Idaho Supreme Court, 1974)

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Bluebook (online)
522 P.2d 581, 95 Idaho 868, 1974 Ida. LEXIS 528, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lombard-v-cory-idaho-1974.