Arkansas Kraft Corp. v. Johnson

• Decision Date: 24 February 1975
• Docket Number: No. 74--210,74--210
• Citation: 519 S.W.2d 74,257 Ark. 629
• Parties: ARKANSAS KRAFT CORPORATION, Appellant, v. Kathy JOHNSON, Administratrix of the Estate of Ben Johnson, Appellee.
• Court: Arkansas Supreme Court

Page 74

519 S.W.2d 74

257 Ark. 629

ARKANSAS KRAFT CORPORATION, Appellant, v. Kathy JOHNSON, Administratrix of the Estate of Ben Johnson, Appellee.

No. 74--210.

Supreme Court of Arkansas.

Feb. 24, 1975.

Laser, Sharp, Haley, Young & Boswell, Little Rock, for appellant.

William H. Sutton and Frederick S. Ursery, with Smith, Williams, Friday, Eldredge & Clark, Little Rock, for appellee.

HARRIS, Chief Justice.

Kathy Johnson, Administratrix of the Estate of her husband, Ben Johnson, instituted suit in the Pulaski County Circuit Court against Arkansas Kraft Corporation, hereafter called Kraft, appellant herein, alleging that on September 1, 1970, the deceased, an employee of Chicago, Rock Island & Pacific Railroad Company, hereafter called Railroad, was killed when he was struck by pulpwood logs which fell from a railroad car; further, that the pulpwood had been loaded on the train by Kraft employees who had been negligent in the loading operation in such a manner that the pulpwood had fallen from the car. Recovery was sought on behalf of the estate, appellee's widow, and one minor child, in the total amount of $601,936.32. Kraft answered, subsequently amending its answer, denying each and every material allegation except that the accident did occur, pleaded that the injuries resulting in Johnson's death were caused or contributed to by his own negligence and that, in the alternative, the injuries resulted from a risk or risks which Johnson assumed. On trial, the jury rendered a judgment in the amount of $35,000 for the widow, $45,000 for the daughter, and $1,960.00 for the estate, a total of $81,960.00. The court entered a total judgment for $81,936.32, ¹ and from such judgment comes this appeal. For reversal, four points are alleged which we proceed to discuss in the order listed.

'I.

THE COURT ERRED IN ALLOWING PLAINTIFF TO ADVISE THE JURY THAT A PRIOR SETTLEMENT HAD BEEN REACHED BETWEEN PLAINTIFF AND A THIRD PARTY, CHICAGO ROCK-ISLAND & PACIFIC RAILROAD COMPANY.'

Since Ben Johnson was an employee of a railroad company, his personal representative had a cause of action against the railroad under the Federal Employer's Liability Act for negligence resulting in the death of the decedent. Such an action was filed (prior to the litigation now before us) in Federal District Court under which an FELA recovery was sought. However, prior to trial of that case, appellee and the railroad settled for a total of $79,500.00. Prior to trial of the instant litigation, counsel for appellee disclosed an intention to inform the jury that the appellee had filed a separate suit against the railroad which had been settled for $79,500.00, and this was done over the objections of the appellant. ² It is argued that the court's action in permitting the amount of this settlement to be disclosed to the jury constituted error, appellant asserting that the proper procedure was for the jury not to be apprised of the settlement, but instead, the court should credit the amount of any judgment against Kraft with the settlement amount. As authority for this position, Kraft relies upon Walton v. Tull, 234 Ark. 882, 356 S.W.2d 20. There, Tull had sued several alleged tortfeasors for personal injuries arising out of an automobile accident but prior to trial, Tull settled his cause with one of the defendants. Subsequently, one of the defendants attempted to introduce the settlement to the jury which the trial court did not permit. On appeal, we upheld this action, pointing out that though in Giem v. Williams, 215 Ark. 705, 222 S.W.2d 800, the payment by one joint tortfeasor was considered by the jury, we did not hold that procedure to be proper in all cases. In affirming, we stated:

'The fact of settlement might have had a slight bearing upon Tull's credibility, but this reason for admitting the proof is outweighed by the arguments for its exclusion. The evidence would have informed the jury that one of the defendants had admitted liability and might also have been used as a basis for an argument that Tull had accepted the amount of the settlement as fair compensation for his injuries. The Uniform Contribution Among Tortfeasors Act contemplates that each tortfeasor will be credited with amounts paid by other joint tortfeasors, Ark.Stats., 34--1004, but the statute is silent about how the matter is to be handled.'

In Giem, mentioned in the previous citation, the administratrix brought suit against Giem, a general contractor, and suit was also filed against a subcontractor. The subcontractor (Tune) was dismissed as a defendant prior to the trial following his payment to the administratrix of the sum of $4,000 in return for a covenant not to sue. At the trial, Giem introduced into evidence the settlement between the subcontractor and the plaintiff. When the jury awarded the plaintiff a verdict in the amount of $8,550, Giem moved the court to credit the verdict with the $4,000 which the subcontractor had paid in settlement. The motion was denied and on appeal we affirmed, stating:

'Appellants had the right, under section 34--1007, Ark.Stats. of 1947, to make Tune a third-party defendant, even after the appellee had dismissed as to him. But, instead of availing themselves of the said section, appellants evidently decided to proceed under section 34--1004, Ark.Stats. of 1947, which reads: 'Release of one tortfeasor--effect on injured person's claim--A release by the injured person of one joint tortfeasor, whether before or after judgment, does not discharge the other tortfeasors unless the release so provides; but reduces the claim against the other tortfeasors in the amount of the consideration paid for the release, or in any amount or proportion by which the release provides that the total claim shall be reduced, if greater than the consideration paid.'

'At all events, as between appellants and appellee, appellants in the trial of the case before the jury obtained the full benefit of the above-quoted section by introducing into evidence, proof as to the amount of money that appellee received from Tune. Certainly, in such circumstances, appellants were not entitled to have the court--after the verdict--make the allowance again.'

In Woodard v. Holliday, 235 Ark. 744, 361 S.W.2d 744, West Bend, a joint tortfeasor, settled with the plaintiffs and a covenant not to sue was executed. On appeal, this court cited the provisions of Section 4 of the Uniform Contribution Among Tortfeasors Act, Ark.Stat.Ann. § 34--1004 (Repl.1962), and then stated:

'This statute was approved by this court in Giem v. Williams, 215 Ark. 705, 222 S.W.2d 800. In that case evidence as to the amount paid by one of the joint tortfeasors was introduced into evidence at the trial of the other tortfeasor. After the verdict, the court correctly refused to reduce the amount of the verdict by the amount paid by the other tortfeasor prior to trial, since the jury was advised of the settlement and the amount prior to reaching its verdict. (Our emphasis). As the court said in that opinion:

'At all events, as between appellants and appellee, appellants in the trial of the case before the jury obtained the full benefit of the above-quoted section by introducing into evidence, proof as to the amount of money that appellee received from Tune. Certainly, in such circumstances, appellants were not entitled to have the court--after the verdict--make the allowance again.' (Emphasis ours.)

'In the instant case, the trial court refused appellant permission to introduce evidence of West Bend's settlement payment to appellees, but after verdict the trial court, under the theory that the law of joint tortfeasors applied, correctly credited the judgment with the $5,000 payment, since the jury had no knowledge of the West Bend settlement and therefore assessed the total damages of appellees.' (Our emphasis).

Appellant argues that Walton v. Tull, supra, prohibits the disclosure of the Rock Island settlement to the jury, apparently contending that since Walton was handed down subsequent to Giem, the latter is controlling. We do not agree. In the first place, there is nothing in Walton which overrules Giem. The court only commented that we did not hold that the Giem procedure was proper in all cases. Walton v. Tull, supra, was handed down on March 26, 1962 (rehearing denied April 30, 1962) and the fact that Giem was not overruled is emphasized by Woodard (handed down on November 19, 1962) in the just quoted language from that case. Furthermore, in Bailey v. Stewart, 236 Ark. 80, 364 S.W.2d 662 (February 11, 1963), the language of the opinion clearly denotes that Giem has not been overruled, though the point there in issue was not affected by either Giem or Walton. We said:

'The Giem case and the Walton case, relied upon by the trial judge, do not quite reach the point at issue. In the former we held that where the jury had been informed of a compromise payment made by another tortfeasor its amount should not have been subtracted from the verdict, as the jury had already taken it into consideration. In the Walton case we indicated (and later declared, after the trial below, in Woodard v. Holliday, 235 Ark. 744, 361 S,W.2d 744) that such a deduction would be proper where the jury had not been told about the settlement made by the other tortfeasor.'

Actually, this court has never reversed a judgment on either basis, i.e., the jury was told, or not told, about settlement with another tortfeasor.

Appellant asserts that it was particularly prejudiced because, when the settlement was disclosed, it tended to negate in the jury's mind the validity of two defenses it had raised, viz., contributory negligence and assumption of risk. Appellant says that the jury, having been apprised that the railroad had admitted liability, obviously concluded that the railroad did not believe the deceased was contributorily negligent or had assumed the risk of riding next to an overloaded freight car. It is alleged...