Waterfield v. Quimby

644 S.W.2d 241, 277 Ark. 472, 1982 Ark. LEXIS 1593
CourtSupreme Court of Arkansas
DecidedDecember 6, 1982
Docket82-130
StatusPublished
Cited by19 cases

This text of 644 S.W.2d 241 (Waterfield v. Quimby) is published on Counsel Stack Legal Research, covering Supreme Court of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Waterfield v. Quimby, 644 S.W.2d 241, 277 Ark. 472, 1982 Ark. LEXIS 1593 (Ark. 1982).

Opinions

Frank Holt, Justice.

This is a personal injury action arising out of an automobile accident on January 15, 1974, in which appellant Brenda Waterfield allegedly suffered back injuries. The jury awarded her $1,000. Her husband, appellant Billy Waterfield, was awarded no recovery on his action for loss of consortium and his wife’s medical expenses. The appellants filed a motion for a new trial and a motion to vacate.the order, both of which were denied. We affirm.

The appellants first assert that the trial court erred in sending the typed instructions to the jury, which instructions contained crossed out but not obliterated words and handwritten alterations. Admittedly, no objection was made, but the appellants argue that there was no opportunity to object because the trial court did not allow counsel to review the instructions before they were given to the jury. Instead, the instructions were merely handed to the jury.

We agree with the appellees that the record reflects the court and counsel for the parties reviewed the proposed instructions in a conference out of the hearing of the jury, during which there were various objections to some of them by both parties. For instance, counsel for the appellants referred specifically, inter alia, to the court’s handwriting when he said: “The Court has handwritten as indicated that he would not give the value of any earnings lost.” This was plaintiffs’ requested instruction No. 18 (AMI 2201), which was given as modified by the court. A notation on this instruction reads “obj. to mod.” A similar objection was noted to the court’s modification of plaintiffs’ instruction No. 19 which the court deleted that part permitting recovery for future medical expenses. The record reflects that the other instructions were also discussed. Further, after closing arguments, the court stated to the jury:

. . . [Y]ou’ve now heard the arguments of counsel, as well as the testimony of the witnesses and the exhibits received in evidence and the instructions of law that have been given you by the Court. So that you won’t have to be passing a lot of messages back and forth, I’m going to go ahead and let you take to the Jury Room with you the instructions. . . .

The court then gave the jury a lengthy explanation of their responsibilities and the verdict forms before the instructions were handed to the jury without any objection being interposed.

We agree with the appellees that the record sufficiently establishes that counsel for the appellants had an opportunity to object to the action of the court but did not do so. Accordingly, we need not address this contention on appeal. Wicks v. State, 270 Ark. 781, 606 S.W.2d 366 (1980). Furthermore, it is within the trial court’s discretion, even though one of the parties objects, to permit the jury to have the written instructions in the jury room during deliberation. Gambill v. Stroud, 258 Ark. 766, 531 S.W.2d 945 (1976). In any event, no prejudice has been shown. The instructions were read to the jury by the court. Nothing in them was confusing or illegible as a result of the handwritten modifications or the crossed out but unobliterated words. See ARCP, Rule 16, Missouri Pacific Railroad Company v. Watt, 186 Ark. 86, 52 S.W.2d 634 (1932); Eck v. Market Basket, 264 Or. 400, 505 P.2d 1156 (1973); and Universal Investment Co. v. Carpets, Inc., 16 Utah 2d 336, 400 P.2d 564 (1965).

The appellants next argue that the verdict is invalid because damages were awarded to Mrs. Waterfield but not to Mr. Waterfield. Although Mr. Waterfield testified that he paid the medical expenses, Mrs. Waterfield testified that she paid them and then that Mr. Waterfield paid them. It was possible, therefore, for the jury to conclude that it was compensating Mrs. Waterfield for the medical expenses incurred by her injuries when it awarded her $1,000. The total medical expenses were $176.60.

With respect to the issue of whether the verdict is inconsistent because no loss of consortium recovery is awarded to the spouse of the injured party, we agree with the cases holding that the jury need not, as a matter of law, give a pecuniary award for loss of consortium where damages are awarded to the injured spouse. It appears there is no fixed standard for ascertaining compensatory damages for loss of consortium. See MacCubbin v. Wallace, 42 Md. App. 325, 400 A.2d 461 (1979); and Cook v. Sweatt, 282 Ala. 177, 209 So.2d 891 (1965). Further, the only testimony on the loss of consortium was that of the appellants. The jury is not required to believe the testimony of any witness, particularly interested parties, since the testimony of interested parties is considered disputed as a matter of law. Bittle v. Smith, 254 Ark. 123, 491 S.W.2d 815 (1973); Zero Wholesale Gas Co., Inc. v. Stroud, 264 Ark. 27, 571 S.W.2d 74 (1978).

Appellants argue that the verdict must be set aside because of jury misconduct. This contention is based upon an affidavit from one juror stating remarks that allegedly were made by jurors describing the discussions during the course of jury deliberations. This affidavit plainly violates Rule 606 (b), Uniform Rules of Evidence, Ark. Stat. Ann. § 28-1001 (Repl. 1977), which provides:

Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury’s deliberations or to the effect of anything upon his or any other juror’s mind or emotions as influencing him to asset [assent] to or dissent from the verdict or indictment or concerning his mental processes in connection therewith, nor may his affidavit or evidence of any statement by him concerning a matter about which he would be precluded from testifying be received, but a juror may testify on the questions whether extraneous prejudicial information was improperly brought to the jury’s attention or whether any outside influence was improperly brought to bear upon any juror.

To that effect see Martin v. Blackmon, 277 Ark. 190, 640 S.W.2d 435 (1982); Ashby v. State, 271 Ark. 239, 607 S.W.2d 675 (1980); Sanson v. Pullum, 273 Ark. 325, 619 S.W.2d 641 (1981); and Veasey v. State, 276 Ark. 457, 637 S.W.2d 545 (1982). Since this affidavit is inadmissible, there is no evidence of juror misconduct.

The appellants also contend that a new trial should be granted because the award of $1,000 to Mrs. Waterfield is inadequate.

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Waterfield v. Quimby
644 S.W.2d 241 (Supreme Court of Arkansas, 1982)

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Bluebook (online)
644 S.W.2d 241, 277 Ark. 472, 1982 Ark. LEXIS 1593, Counsel Stack Legal Research, https://law.counselstack.com/opinion/waterfield-v-quimby-ark-1982.