Bragg v. Mayes, Sudderth & Etheredge, Inc.
| Decision Date | 30 January 1989 |
| Docket Number | No. 88-152,88-152 |
| Citation | 764 S.W.2d 44,297 Ark. 537 |
| Parties | Mel BRAGG, Appellant, v. MAYES, SUDDERTH & ETHEREDGE, INC. and Lashlee Steel Company, Appellees. |
| Court | Arkansas Supreme Court |
Gibson, Ellis, Parker & Tedder, Benton, for appellant.
Bridges, Young, Matthews, Holmes & Drake, Pine Bluff, for appellees.
This case is a second appeal. In a prior appeal, Hill Construction Co. v. Bragg, 291 Ark. 382, 725 S.W.2d 538 (1987), we found error in the failure to give certain jury instructions, and remanded this cause for a new trial. The earlier suit was brought by the appellant, Mel Bragg, an ironworker, concerning injuries he sustained when a steel column fell on him during the construction of a building. That action was against the general contractor, Hill Construction Co., and the architect and engineers, Mayes, Sudderth & Etheredge, Inc. (Mayes), who prepared the plans for the building.
After the reversal of the first appeal, Lashlee Steel Company (Lashlee) was joined as a tortfeasor who allegedly bore some liability to Bragg for his injuries. 1 During the course of the second trial, Bragg and Hill Construction Co. settled their differences, whereby Bragg received the sum of $145,000.00; Hill Construction Co. was dismissed from the suit. When the trial proceeded, Bragg and the remaining defendants, Mayes and Lashlee, all made references concerning the settlement terms reached between Bragg and Hill Construction Co., and although those remarks were made before the jury, no one interposed an objection. After the parties presented their evidence and rested, the trial court submitted the case to the jury on special interrogatories, and the jury returned its verdict in favor of Mayes and Lashlee. Accordingly, the trial court dismissed Bragg's suit with prejudice, and Bragg brings this second appeal. We affirm.
Bragg's argument for reversal involves the settlement between Bragg and Hill Construction Co. and the trial court's allowing the amount of that settlement to be made a part of one of the interrogatories given the jury regarding the damages Bragg sought from Mayes and Lashlee. In this respect, the trial court read the following AMI 201 instruction with five interrogatories to the jury:
After I have completed my instructions to you on the law in this case, you will be given a number of written questions called interrogatories. These interrogatories present the issues of fact which you must decide. In order that you may be fully acquainted with the issues of fact which are now being submitted in this case for your determination, I will now read these interrogatories, some or all of which you may be called upon to answer. You should keep this in mind as I explain the law that applies to this case.
INTERROGATORY NO. 1: Do you find from a preponderance of the evidence that Mayes, Sudderth & Etheredge, Inc. was guilty of negligence which was a proximate cause of the occurrence?
Answer it "Yes" or "No."
INTERROGATORY NO. 2: Do you find from a preponderance of the evidence that Lashlee Steel was guilty of negligence which was a proximate cause of the occurrence?
The answer will be "Yes" or "No."
INTERROGATORY NO. 3: Do you find from a preponderance of the evidence that Mel Bragg was guilty of negligence which was a proximate cause of his damages?
Answer "Yes" or "No."
INTERROGATORY NO. 4: If you have answered at least two of the foregoing interrogatories "yes," then answer the following interrogatory.
Using 100% to represent the total responsibility for the occurrence of any injuries or damages resulting from it, apportion the responsibility between the parties whom you have found to be responsible.
Answer: Lashlee Steel, with a percentage, if any. Mayes, Sudderth & Etheredge, Inc., with a percentage, if any. And Mel Bragg with a percentage, if any.
INTERROGATORY NO. 5: State the amount of damages which you find from a preponderance of the evidence were sustained by Mel Bragg as a result of the accident, after first having deducted the $145,000 paid by Hill Construction Company.
Answer: $__________.
Bragg's objection to the foregoing instruction and interrogatories went only to the form of Interrogatory No. 5. He argued that Interrogatory No. 5, as written, was a comment on the evidence, since it informed the jury to deduct the $145,000 paid Bragg by Hill Construction Co. from the amount...
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