Wilson v. Benton

Lyle Brown, Justice.

As a result of a two car collision appellant John B. Wilson sued appellee James E. Benton. Appellee counterclaimed against appellant. Appellee brought in Calvert-McBride Printing Company as a third party defendant, alleging appellant was at the time of the collision acting in the scope of employment with Calvert-McBride. The jury found appellant and appellee drivers equally negligent. Here is the single point relied upon for reversal:

The court erred in providing the jury in addition to two general verdicts a special verdict form finding each party equally negligent and further erred in instructing the jury upon the effect that would be had by the jury returning the special verdict.

Before giving the jury the forms of verdicts the court gave this instruction which follows almost verbatim AMI 2104 (Civil) (1965):

If you should find that Mr. Wilson was not guilty of negligence which was a proximate cause of the occurrence, then he is entitled to recover the full amount of any damages you may find he sustained which were proximately caused by the negligence of Mr. Benton.

If you should find that Mr. Benton was not guilty of negligence which was a proximate cause of the occurrence, then he is entitled to recover the full amount of any damages you may find he has sustained which were proximately caused by Mr. Wilson.

If you should find that the occurrence was proximately caused by the negligence of both Mr. Wilson and Mr. Benton then you must compare the percentages of their negligence.

If the negligence of Mr. Wilson was of less degree than the negligence of Mr. Benton, then you should find for him on his complaint, and also for him on the cross-complaint of Mr. Benton. However, you must reduce the damages of Mr. Wilson in proportion to the degree of his own negligence.

If the negligence of Mr. Benton was of less degree than the negligence of Mr. Wilson, then you should find for Mr. Benton on his counterclaim and also for him on the complaint of Mr. Wilson. However, in that event, you must reduce the damages of Mr. Benton in proportion to the degree of his own negligence.

If you should find that Mr. Wilson and Mr. Benton were equally negligent or that neither was negligent, then neither can recover from the other and you should find against Mr. Wilson on his complaint and against Mr. Benton on his counterclaim.

As three forms of verdicts were submitted to the jury the court advised them:

And you are being given here for your deliberation without any suggestion on my part three forms of verdicts. You’re familiar with these, one here is— you would choose if you found for Mr. Wilson against Mr. Benton, written in here, “We, the jury find for Mr. Wilson on his complaint and assess his damages at $__”

On the other hand if you find for Mr. Benton against Mr. Wilson and his employer, Calvert-McBride, then, “We, the jury find for Mr. Benton on his cross-complaint and assess his damages at $__”

You’ve been instructed that if you find that both parties are equally negligent then neither of them can recover and so I have filled out another one here, “We, the jury find that both parties were .equally negligent.” That represents the three forms of verdicts that the jury could arrive at. . . .

Appellant made the following objection to the last form of verdict:

I also object to the third form of verdict which tells the jury — singles out to the jury that one type of verdict where they find that each side is fifty per cent negligent, that is effectively a comment on the evidence by the court, it is singling out one aspect of the case for extraordinary treatment and I particularly object to it in light of the court’s having read it to the jury and explained to the jury that that’s exactly what he had done and I object to that.

We find no error in the submission of the third form of verdict. In the first place that form is nothing more than a short form (and clearer) of this verdict:

We the jury find for the defendant on the complaint of the plaintiff; and we find for plaintiff on the counterclaim and cross-complaint of the defendant.

In the second place the third form of verdict and comment revealed no more information to the jury than it was told in the last paragraph of AMI 2104. There the court told them that neither party could recover if the parties were equally negligent.

Appellant relies on Argo v. Blackshear, 242 Ark. 817, 416 S. W. 2d 314 (1967). That case is not in point because it was submitted entirely on special interrogatories. There we held it was inappropriate for the court to tell the jury the ultimate effect of its answers to the submitted questions.

Appellant contends that the first two forms of verdicts were general verdicts and that the third form was a special verdict. The latter is special in that it deals with only one facet of the case; it also might be called a general verdict in that an affirmative answer disposes of the entire case. Be that as it may, if it were to be classified as a special interrogatory, as appellant would have us do, the submission of interrogatories along with general verdict forms is permissible. Ark. Stat. .Ann. § 27-1741.3 (Repl. 1962).

Affirmed.

Fogleman, J., dissents.