Scheptmann v. Thorn ( 1981 )

George Rose Smith, Justice.

On the night of October 22, 1976, Randall Thorn was seriously injured when the pickup truck in which he was a passenger left the highway and overturned. The driver, John W. Hunt, and another passenger were killed. Thorn and his wife brought this action for personal injuries and loss of consortium against Hunt’s employer and Hunt’s estate. There were many disputed questions of fact, including whether Hunt was acting in the scope of his employment, Thorn’s status as a guest, willful and wanton negligence, comparative fault, assumption of risk, and the amount of damages.

The case was submitted on interrogatories, with the jury finding that Hunt was in the scope of his employment, that Thorn was not a guest and did not assume the risk, that Hunt was 80% at fault, and Thorn 20%, and that Thorn’s damages were $200,000 and his wife’s $50,000. Judgment was entered accordingly. For reversal the defendants argue that the trial judge responded so erroneously to the jury’s inquiries during their deliberation that a mistrial should have been declared. The awards are also said to be excessive.

After the jurors had deliberated for some time they returned to the courtroom and asked for instructions “about the undecided decisions we have.” The verdict forms (which the jurors had utilized as scratch paper) were handed to the judge, who went through them and made comments. The jury had not yet entered any amount of damages for Thorn or his wife. There was a majority of at least nine as to some of the interrogatories but not as to others.

We are concerned primarily with Interrogatory 4, by which the jury were to apportion the total fault between Hunt and Thorn. Toward the bottom of that form the jurors had each written their initials in a column, with a percentage figure for Hunt and another for Thorn, such as 50-50, 75-25, 90-10, etc. There is no indication that the jurors had added up the totals (which would have apportioned the fault as 73.33% in Hunt and 26.67% in Thorn). Some apportionment had actually been inserted in the blanks provided, but the judge did not announce it. Later those figures were so obliterated by the jury that the originals cannot be read. Eventually the jurors did arrive unanimously at the 80% fault for Hunt and 20% for Thorn.

The trial judge, in going through the verdict forms, announced whether or not there was at least a nine-vote majority for each interrogatory. Upon reaching Interrogatory 4 the judge’s original comments were as follows:

Now on this next interrogatory, No. 4 ... we have twelve initials on this particular interrogatory with figures following the names which I’m going to assume are percentages. (Jurors indicate this is correct.) This reminds me of a quotient verdict which is forbidden in the State of Arkansas; so I’m going to tell you we have no answer to Interrogatory 4.

After some further discussion the judge went on to say:

A quotient verdict is where everybody puts a figure in the hat and you add it up and divide by twelve, and the Supreme Court says that is not a verdict. And I feel that is what you all were starting to do or might have done.

Now, fine, it would be good to vote and let everybody say what they think it is and reach some kind of discussion on that, and come up with a decision you could be called upon and say — and probably will be called upon to say — is this your verdict? And say what is the figure and you say, “No, I didn’t agree to that. I agreed to something else.” We’re out the window again.

Start with that, that’s fine. But you all must hammer out a figure to which you can all agree, to which the apportionment of negligence is concerned. You have indicated that is what you’re going to do, but you have as yet not done that, because nine of you can’t agree on the answers to these things.

The court then gave the deadlocked jury instruction, AMI 2303, after which the following colloquy is pertinent:

Foreman Hall: Can we come up — on the percentage deals there if we hammer out a number between the twelve of us, suitable to all twelve of us, that all of us will stand behind, will that be suitable for the Court?

The Court: Yes, it will. And I want it to be everybody’s verdict and agreement, not your verdict originally but one you have agreed on individually. That is what I mean.

Juror Wood: We can’t take an average?

The Court: No. If the number you work out turns out to be an average, okay. But I want you to say, “That’s my number,” and I want you to stand behind it.

After the jury had retired again, defense counsel moved for a mistrial on the ground that the exchange between the court and the jurors with regard to a quotient verdict “is an invasion of the province of the jury at this point when they have not completed their deliberations.” The principa point argued for reversal is the court’s denial of that request for a mistrial.

No prejudicial error occurred. Where the jurors each submit a figure and agree in advance that the verdict will be one twelfth of the total, the verdict is by lot and cannot be upheld. If, however, there is no agreement in advance to be bound by the procedure, but the jurors do adopt the result, it is a quotient verdict and is valid. National Credit Corp. v. Ritchey, 252 Ark. 106, 477 S.W. 2d 488 (1972). Thus, although quotient verdicts are frowned upon, the trial judge was wrong in saying that they are forbidden in Arkansas. (It is, of course, most unlikely that the jurors had any clear idea of what is meant by a quotient verdict.)

Despite the misstatement, any possibility of a misunderstanding was eliminated by the judge’s offhand but lucid explanation. He told the jurors that it would be good to let them all say what they thought and engage in discussion, but after that beginning they should hammer out an apportionment to which they could all agree. The foreman’s last question shows that the court’s explanation was clearly understood.

It is suggested that the procedure was seriously defective, because the final 80-20 apportionment of fault may not have been the exact ratio the jury first brought into the courtroom and then obliterated. Perhaps not, but it is impossible to say that the appellants were prejudiced by whatever change the jurors may have made. Even more important, any revision was achieved by unanimous vote after the jurors had received a clear explanation of what their goal should be and were therefore in a position to improve on their first conclusion by further deliberation. Thus the parties ultimately received the jurors’ best collective judgment, the very purpose of a jury trial.

Second, it is argued that the trial judge’s remarks to the jury had the effect of telling them the effect of their answers to the interrogatories, which would be contrary to our practice. Wright v. Covey, 233 Ark. 798, 349 S.W. 2d 344, 90 A.L.R. 2d 1033 (1961). We quote the challenged remarks, made in response to a juror’s inquiry about whether all the interrogatories had to be answered:

The Court: Depending upon what your answers are, you would not, under one set of facts, have to answer every interrogatory. If your answers to some of the interrogatories are different, then you may have to answer each and every one of them, and the way you have started off answering these interrogatories I will tell you you will probably have to answer every one of them.

We are not persuaded that the court’s remarks told the jury the effect of their answers upon the parties’ ultimate liability. Of course the jurors, as practical persons, knew that the interrogatories were not propounded idly, that they were intended to have some effect upon the outcome of the lawsuit. But the court spoke only in generalities, so much so that we are wholly unable to see how the jurors could have derived any usable information from the remarks in question.

Third, we do not find the $200,000 award to Randall Thorn to be excessive. At the time of his injury he was 46, active and vigorous, with a substantial income from construction work and from farming. His injuries affected his physical and nervous condition to such an extent as to be totally disabling. The testimony of an expert witness, if accepted by the jury, would have supported a somewhat larger award. The amount of the verdict does not shock the conscience of the court or suggest passion or prejudice on the part of the jury.

On the other hand, most of Mrs. Thorn’s pertinent testimony related to the additional farm work she must do because of her husband’s disability. We have often reduced consortium awards to a wife because the jury evidently considered such matters, which not only are included in the husband’s recovery but also are not properly embraced within the concept of consortium. White v. Mitchell, 263 Ark. 787, 568 S.W. 2d 216 (1978); Scoff v.Jansson, 257 Ark. 410, 516 S.W. 2d 589 (1974);Ark. La. Gas Co. v. Strickland, 238 Ark. 284, 379 S.W. 2d 280 (1964). Here, construing the testimony most favorably to the appellees, we cannot sustain an award of more than $25,000 for loss of consortium.

Affirmed as to Randall Thorn. Affirmed as to Mrs. Thorn upon condition that a remittitur of $25,000 be filed within 17 calendar days; otherwise reversed and remanded as to her cause of action.

Hickman, J., dissents. Adkisson, C.J., and Hays, J., dissent in part.