Bill C. Harris Const. Co. Inc. v. Powers

• Decision Date: 18 July 1977
• Docket Number: No. 76-340,No. 2,76-340,2
• Citation: 554 S.W.2d 332,262 Ark. 96
• Parties: , 14 A.L.R.4th 812 BILL C. HARRIS CONSTRUCTION CO. INC., an Arkansas Corporation, and James H. Willis, Appellants, v. M. A. POWERS, Appellee
• Court: Arkansas Supreme Court

Page 332

554 S.W.2d 332

262 Ark. 96, 14 A.L.R.4th 812

BILL C. HARRIS CONSTRUCTION CO. INC., an Arkansas Corporation, and James H. Willis, Appellants, v. M. A. POWERS, Appellee.

No. 76-340.

Supreme Court of Arkansas, Division No. 2.

July 18, 1977.

William M. Stocks, Bethell, Callaway & Robertson by Thomas E. Robertson, Jr., Fort Smith, for appellants.

Garner, Garner & Cloar, Fort Smith, for appellee.

FOGLEMAN, Justice.

Appellee, M. A. Powers, as plaintiff, recovered a judgment for $9,300 against appellee Bill C. Harris Construction Co., Inc., as defendant, and the Harris Co., in turn, recovered a $4,650.00 judgment against appellant James H. Willis, cross-defendant, all for damages to Powers' TD-25B International Bulldozer. The Harris Co. and Willis appealed the judgments alleging error in the jury trial.

We state evidence in the light most favorable to the appellee. At the time the machine (which weighed over 50,000 pounds without the blade) was damaged it was in the possession of Willis under an agreement with Powers that Willis was to use the bulldozer, for a guaranteed minimum fee, to clear some property on the Harold Moore farm near Ft. Smith. Powers also gave Willis permission to use the machine on Willis' land at no extra charge. In November, 1972, Willis hired the Harris Co. to raise a roadbed over a slough between an island owned by Willis and the mainland of his farm, approximately a two-day job. While working on the roadbed a front end loader belonging to the construction company slipped off the roadbed into a precarious position. One Dority, a Harris employee, asked Willis if he could use the TD-25 and if Willis would help pull the loader onto the road. Willis testified that he checked the oil and fuel, and, after putting fuel in it, hooked the bulldozer to the loader with a large cable. Bill Harris showed up about that time and, after he saw the situation, had them unhook the TD-25 stating that he would send his bulldozer over in the morning to get the front end loader out of trouble.

The next day, using another bulldozer, equipped with a winch, and Powers' machine, Harris and his employees got the front end loader back on the road. Then Powers' bulldozer ran out of fuel. Dority obtained some fuel from Willis' pump and put it in the machine, but it would not start, apparently because it required a "bleeding" of the fuel injectors to remove air from them. This operation required use of a special wrench, which was not available at that time, according to a witness for the Harris Co. Another witness for Harris testified that it takes from four hours to a day and a half to "bleed" a bulldozer. Harris had the TD-25 pushed to the fuel tank on the island. There is a conflict in the testimony as to whether it was pushed to the island when it ran out of gas or later, in December. There is also a dispute as to whether Willis gave Harris express permission to use the Powers' bulldozer the second day.

The machine was still on the island in the spring of 1973 when the island was flooded. The water rose over the tracks of the bulldozer. It appears that Powers first learned that it was on the island and partially submerged when he sent a Mr. Rainwater to haul it back to Ft. Smith. After Rainwater reported to Powers that it could not be moved, Powers called Willis, who explained why and how the machine came to be on the island.

Powers testified that during the next two months he had discussed the responsibility of the Harris Company for moving the bulldozer with Harris on several occasions; that he made demand on Harris to move it to high ground to "bring it home"; and that each time Harris admitted his responsibility and said he would move it. Willis testified that he also talked to Harris several times, before the first flood, about moving the dozer off the island to high ground, and that Harris agreed, but did not move it. Harris did drain the oil and put antifreeze in it.

Harris testified that he never agreed to move the bulldozer to high ground and did not consider it his responsibility to do so; that he did not know that flooding was a problem on the island; that he had been asked to move it to Ft. Smith and agreed to do this, if he could, but that every time he went to Willis' property, either the gate was locked or the batteries were not in the bulldozer; therefore, he could not move it.

Powers testified that he finally told Harris that if he did not move the tractor within ten days that he would file suit. Powers did file this suit against the Harris Co. on July 25, 1973, claiming water damage to the bulldozer in the amount of $12,000, and seeking consequential damages and punitive damages in addition. For approximately two months during the summer of 1973, between the time Powers learned of the use of his machine by the Harris Company and his filing suit, the roadbed and the island were dry and the tractor could have been moved. In the fall of 1973, after this action was filed, the water rose again, completely submerging the machine for about fifty days.

Powers had the bulldozer moved to high ground in early 1974 at a cost of $165. On July 11, 1974, the Harris Co. filed a cross-complaint against Willis alleging that any damage to the dozer was due to the negligence of Willis and Powers, jointly and severally, in failing to protect the machine from rising waters.

On appeal, the sufficiency of the evidence to establish liability is not really contested by either Harris or Willis. The principal errors alleged are in regard to evidence of, and assessment of, damages and admission into evidence of an affidavit made by a Harris Co. employee who was a witness for the Harris Co. Throughout their joint brief Willis argues that damages should be assessed on the basis that Willis was acting as Powers' agent and this theory was argued to the trial court. But the case went to the jury on the theory of bailment, without any objection by Harris, and he offered no instructions on the theory of agency. A bailee is not an agent and an agent is not a bailee. The rules governing these relationships are entirely different. Compare the results in Richards v. McCall, 187 Ark. 61, 58 S.W.2d 432 with Featherston v. Jackson, 183 Ark. 373, 36 S.W.2d 405. This subject will be discussed in more detail later.

I

Appellants combine four arguments under their first assignment of error: (1) The trial court erred in denying their motion for directed verdict against them in the amount of $165, the cost to Powers for moving the bulldozer in early 1974; that the damages are limited to this amount because the doctrine of avoidable consequences applies and there is no evidence of any damage to the machine attributable exclusively to the first flood; (2) the evidence is insufficient to support a verdict for $9,300 because plaintiff was not qualified to give his opinion as to the value of the bulldozer; (3) plaintiff has no right to recover all of the damages from the Harris Co.; (4) damages are allowed only to the date suit is commenced.

(1) The doctrine of avoidable consequences limits the amount of recoverable damages in that a party cannot recover damages resulting from consequences which he could reasonably have avoided by reasonable care, effort or expenditure. Lake Village Implement Co. v. Cox, 252 Ark. 224, 478 S.W.2d 36; Wisconsin & Arkansas Lumber Co. v. Scott, 167 Ark. 84, 267 S.W. 780; Louisville, N. O. & Texas Rd. Co. v. Jackson, 123 Ark. 1, 184 S.W. 450, Ann.Cas.1918A, 604; Taylor v. Steadman, 143 Ark. 486, 220 S.W. 821. The doctrine appears equally applicable to damages caused by breach of contract and those caused by negligence. Western Union Telegraph Co. v. Ivy, 102 Ark. 246, 143 S.W. 1078. Therefore, we will draw from both kinds of authorities to reach our conclusion on this matter.

The burden of proving that a plaintiff could have avoided some or all of the damages by acting prudently rests on the defendant, (Kohlenberger v. Tyson's Foods, 256 Ark. 584, 510 S.W.2d 555; City of Paragould v. Arkansas Light & Power Co., 171 Ark. 86, 284 S.W. 529, 46 A.L.R. 1186; Hegler v. Board of Education of Bearden School Dist., 447 F.2d 1078 (8 Cir., 1971)), not only on the question of causation of damages for failure to avoid harmful consequences, (Farmers Cooperative Ass'n. v. Phillips, 243 Ark. 809, 422 S.W.2d 418), but also on the question of the amount of damage that might have been avoided. Williams v. Hildebrand, 220 Ark. 202, 247 S.W.2d 356. But whether one had acted reasonably in minimizing, mitigating or avoiding damages is, in most cases, a question of fact. See 22 Am.Jur.2d 441, Damages § 339; 25A C.J.S. Damages § 176(9), p. 187; Lake Village Implement Co. v. Cox, supra; Baston v. Davis, 229 Ark. 666, 318 S.W.2d 837; Beeble v. Arksansas Power & Light Co., 172 Ark. 262, 287 S.W. 766.

While being cross-examined by Harris' attorney, Powers testified:

Mr. Willis did not notify me that the water was about to come up and something might go under; I never inquired myself about whether the water was about to come up and endanger my property.

It must be remembered that, during the entire time, the machine was in the possession of Willis as bailed property, on Willis' land. There is no evidence that the island flooded regularly or that if it did, that this was a fact that Powers knew or should have known, and we cannot say that the mere fact that Powers waited from the summer of 1973 to early 1974 to move this 50,000 pound behemoth (which would not run under its own power without repair) is so conclusive on the issue that it became a question of law, especially when the defendants have not shown that Powers knew or should have known that it was in danger of being damaged further. Appellants' evidence that the machine was worth no more before the second flood than after was obviously rejected by the jury. It was not error to fail to direct a verdict for Powers for $165.00.

(2) Powers testified that he ran Po...