dissenting. My understanding of this case and the arguments on appeal differ in several respects from that of the majority. As I understand the matter the only issue presented is whether the trial court was required to set aside the jury verdict under the circumstances of this case.
The defendant (appellee) admitted liability at the commencement of the trial and obtained a ruling in limine preventing the plaintiff (appellant) from producing evidence relating to liability during the course of the trial. However, throughout the trial, and brief in this court, appellee unmistakably refers to the liability aspect of the occurrence.
It is my opinion that having admitted liability the court and the jury were bound to find in favor of the plaintiff (appellant). I do not read Harlan v. Curbo, 250 Ark. 610, 446 S.W.2d 459 (1971), to stand for the proposition for which it is quoted in the majority opinion. The jury in Harlan was asked to apportion the negligence and they found it to be 60%-40% in favor of the plaintiff-appellants. The question came up on the inadequacy of damages — not liability. The holding in Harlan was: “We must therefore adhere to our usual rule, that the trial court’s failure to award nominal damages is not reversible error.”
In Brophy v. Mahaffey & Associates, 252 Ark. 811, 481 S.W.2d 360 (1972), we held that it was not error to submit only one verdict form to the jury — a form finding for the plaintiff. The appellants in Brophy had conceded they were indebted to the appellees in some amount. In the case before us there should have been only one verdict form submitted to the jury. It should have been in favor of the plaintiff with the amount of damages left blank. It should have been up to the jury to place some figure in the blank.
In the case of Smith v. Arkansas Power & Light Co., 191 Ark. 389, 86 S.W.2d 411 (1935), this court stated:
When the undisputed evidence shows that plaintiff is entitled to recover substantial damages, a judgment will be reversed which awards only nominal damages, because a judgment for nominal damages is, in effect, a refusal to assess damages. When substantial damages are awarded, a judgment will not be reversed because of inadequacy, if there be no other error than that committed by the jury in measuring the damages. But a judgment even for substantial damages will be reversed where the undisputed testimony shows the damages to be inadequate, if error of a substantial and prejudicial nature was committed at the trial of the case.
This same language was approved in Worth James Constr. Co. v. Herring, 242 Ark. 156, 412 S.W.2d 838 (1967). I am of the opinion there was no substantial evidence upon which the jury could have found for the appellee. Also, see Barger v. Farrell, 289 Ark. 252, 711 S.W.2d 773 (1986).
The trial court’s denial or granting of a new trial is governed by A.R.C.P. Rule 59. On review the test depends on whether the motion was granted or denied; if the motion was granted we will affirm absent a manifest and clear abuse of discretion. If the motion was denied we will also affirm if there is substantial evidence to support the verdict. Landis v. Hastings, 276 Ark. 135, 633 S.W.2d 26 (1982).
The majority makes the same mistake the trial court and the jury made. The majority opinion is an obvious attempt to show how the jury could have decided liability and damages had the issues been open for them to decide. Apparently the appellee’s strategy of admitting liability and bridling the appellant’s witnesses about describing the accident worked. The majority takes three pages arguing the facts which are not in issue. No doubt the appellant could have presented a much stronger case had it been known that liability was still an issue.
An additional reason why the trial court should be reversed is A.R.C.P. Rule 59(a) which sets out the grounds for granting a new trial. One of the grounds stated is: “(6) the verdict or decision is clearly contrary to the preponderance of the evidence or is contrary to the law.” The verdict in the present case meets both criteria. I think the trial court had an absolute duty to set aside this verdict.
I would reverse and remand for a new trial.