Winters v. Barr

Supreme Court of Arkansas

Winters v. Barr

566 S.W.2d 745, 263 Ark. 618, 1978 Ark. LEXIS 2055

CourtSupreme Court of Arkansas

DecidedJune 12, 1978

Docket77-428

StatusPublished

Cited by1 cases

This text of 566 S.W.2d 745 (Winters v. Barr) 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

Winters v. Barr, 566 S.W.2d 745, 263 Ark. 618, 1978 Ark. LEXIS 2055 (Ark. 1978).

Pincite

Opinion

George Rose Smith, Justice.

The appellee, as the purchaser, brought suit against the manufacturer and the seller of a remote-control garage door, which the complaint alleged to have been worthless. The complaint alleged damages of $910, and the plaintiff so testified, without contradiction. The case was tried before the late Judge John S. Mosby, who submitted to the jury only the issue of liability. That is, the form of verdict was as follows:

We, the Jury, find for the Plaintiff.

Foreman

We, the Jury, find for the Defendants.

Foreman

Nine members of the jury signed the verdict in favor of the plaintiff. Judge Mosby accepted the verdict, stated that it was in proper form, and discharged the jury. After Judge Mosby’s death Judge Harrison, another judge of the same court, entered a nunc pro tunc judgment in favor of the plaintiff for $910. This appeal is from that judgment.

Upon the particular facts of the case Judge Harrison was right in entering judgment, although the words “nunc pro tunc” were surplusage. Ordinarily, it is true, the jury must assess the amount of the recovery. Ark. Stat. Ann. § 27-1742 (Repl. 1962). Here, however, the only inference to be drawn is that the parties at least tacitly agreed to submit the single issue of liability, the amount of damages being undisputed (except in the sense that a party’s testimony is not regarded as undisputed). The court’s instructions submitted the issue of liability only, with no reference to the amount of the plaintiff’s possible recovery. The verdict form submitted only the issue of liability. The defendants offered no additional instructions, made no objections to the instructions that were given, made no objection to the form of verdict, and made no objection to the court’s acceptance of the verdict and discharge of the jury. No reasonable conclusion is possible except that the parties agreed by their conduct, if not in so many words, that the issue of liability was the only controverted question. Judge Harrison was therefore right in entering the judgment that Judge Mosby would undoubtedly have entered if he had lived. See City of Fort Smith v. France, 250 Ark. 294, 465 S.W. 2d 315 (1971). The defendants have had a fair trial upon the only disputed issue and are not entitled to a second trial.

Affirmed.

We agree.

Harris, C.J., and Fogi eman and Hoi.t, JJ.

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George Rose Smith, Justice.

The appellee, as the purchaser, brought suit against the manufacturer and the seller of a remote-control garage door, which the complaint alleged to have been worthless. The complaint alleged damages of $910, and the plaintiff so testified, without contradiction. The case was tried before the late Judge John S. Mosby, who submitted to the jury only the issue of liability. That is, the form of verdict was as follows:

We, the Jury, find for the Plaintiff.

Foreman

We, the Jury, find for the Defendants.

Foreman

Nine members of the jury signed the verdict in favor of the plaintiff. Judge Mosby accepted the verdict, stated that it was in proper form, and discharged the jury. After Judge Mosby’s death Judge Harrison, another judge of the same court, entered a nunc pro tunc judgment in favor of the plaintiff for $910. This appeal is from that judgment.

Upon the particular facts of the case Judge Harrison was right in entering judgment, although the words “nunc pro tunc” were surplusage. Ordinarily, it is true, the jury must assess the amount of the recovery. Ark. Stat. Ann. § 27-1742 (Repl. 1962). Here, however, the only inference to be drawn is that the parties at least tacitly agreed to submit the single issue of liability, the amount of damages being undisputed (except in the sense that a party’s testimony is not regarded as undisputed). The court’s instructions submitted the issue of liability only, with no reference to the amount of the plaintiff’s possible recovery. The verdict form submitted only the issue of liability. The defendants offered no additional instructions, made no objections to the instructions that were given, made no objection to the form of verdict, and made no objection to the court’s acceptance of the verdict and discharge of the jury. No reasonable conclusion is possible except that the parties agreed by their conduct, if not in so many words, that the issue of liability was the only controverted question. Judge Harrison was therefore right in entering the judgment that Judge Mosby would undoubtedly have entered if he had lived. See City of Fort Smith v. France, 250 Ark. 294, 465 S.W. 2d 315 (1971). The defendants have had a fair trial upon the only disputed issue and are not entitled to a second trial.

Affirmed.

We agree.

Harris, C.J., and Fogi eman and Hoi.t, JJ.

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566 S.W.2d 745, 263 Ark. 618, 1978 Ark. LEXIS 2055, Counsel Stack Legal Research, https://law.counselstack.com/opinion/winters-v-barr-ark-1978.

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