Opinion
No. 77-428
Opinion delivered June 12, 1978
1. JUDGMENTS — NUNC PRO TUNC JUDGMENT — WORDS "NUNC PRO TUNC" SURPLUSAGE. — Where a court was correct in entering a judgment, the words "nunc pro tunc" did not render it void, but were mere surplusage. 2. DAMAGES — STATUTORY PROVISIONS FOR ASSESSMENT OF DAMAGES BY JURY — EXCEPTION. — in a suit for damages, ordinarily, the jury must assess the amount of recovery as provided by Ark. Stat. Ann. 27-1742 (Repl. 1962); however, where the amount of damages was undisputed, and the parties at least tacitly agreed to submit the single issue of liability to the jury, the court correctly entered a judgment for the amount of undisputed damages upon the jury's finding for the plaintiffs. 3. DAMAGES — AGREEMENT BY PARTIES TO SUBMIT ONLY ISSUE OF LIABILITY TO JURY — CONDUCT EVIDENCING AGREEMENT. — in a suit for damages, the only reasonable conclusion that is possible from the record is that the parties agreed by their conduct that the issue of liability was the only controverted question, where there were no objections to the court's instructions submitting the issue of liability only, with no reference to the amount of the plaintiff's possible recovery, and no objections to the verdict form which submitted only the issue of liability, and where defendants offered no additional instructions and made no objections to the court's acceptance of the verdict and discharge of the jury.
Appeal from Poinsett Circuit Court, A. S. "Todd" Harrison, Judge; affirmed.
Lohnes T. Tiner, for appellants.
John R. Henry, for appellee.
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 FOGLEMAN and HOLT, JJ.