Butler Mfg. Co. v. Hughes

• Decision Date: 18 May 1987
• Docket Number: No. 86-243,86-243
• Citation: 292 Ark. 198,729 S.W.2d 142
• Parties: BUTLER MANUFACTURING CO., Appellant, v. Robert M. HUGHES & Patsy Hughes, his wife, Appellees.
• Court: Arkansas Supreme Court

Page 142

729 S.W.2d 142

292 Ark. 198

BUTLER MANUFACTURING CO., Appellant, v. Robert M. HUGHES & Patsy Hughes, his wife, Appellees.

No. 86-243.

Supreme Court of Arkansas.

May 18, 1987.

James M. Simpson, H. Charles Gschwend, Jr., Little Rock, for appellant.

Spencer, Spencer, Depper & Guthrie, El Dorado, for appellees.

HOLT, Chief Justice.

The appellee, Robert M. Hughes, a construction worker, was shocked while using a piece of equipment called a "roof runner" and fell from the roof where he was working, receiving numerous injuries. Hughes and his wife sued the appellant, Butler Manufacturing Co., (Butler) from whom the machine was leased, under both products liability and negligence theories. The jury awarded the Hugheses $919,163.25 in damages. It is from a judgment based on that verdict that Butler brings this appeal. We find no merit to its arguments and affirm the judgment.

The accident occurred on September 21, 1981, while Hughes was working for Hampton & Crain Construction Co. The products liability theory asserted by Hughes was based on the contention that Butler leased the roof runner to Hampton & Crain in a defective condition, in that the restraining device, a rubber grommet, designed to relieve strain on the individual wires inside the machine, was missing when the roof runner was received. The negligence theory was that Butler was negligent in its choice of a quality control system, since their system permitted the roof runner to leave the company in this allegedly defective condition. Butler moved for directed verdicts on both theories which were denied. Butler's motion for a judgment notwithstanding the verdict was also denied.

On appeal, Butler challenges two comments made by the Hugheses' attorney during closing arguments; claims there was no substantial evidence of a product defect or of negligence; and objects to the court's jury instruction as to the measure of damages to be awarded for scars and disfigurement suffered by Hughes and to a jury instruction on concurring proximate cause.

1. CLOSING ARGUMENT.

The Hugheses offered the testimony of Thomas H. Collard, Jr., a consulting engineer, as an expert witness about quality control engineering. Collard's testimony was limited by the judge to a discussion of quality control in a theoretical vein. The court instructed him not to testify specifically about Butler's quality control system. After this ruling, the following colloquy occurred:

Hugheses' Attorney: Based on your understanding of the quality control system that existed at Butler, based on your reading Mr. Martin's deposition, do you have an opinion as to the likelihood of a piece of equipment leaving that operation in a defective condition?

Butler's Attorney: Your Honor, excuse me. There's just no way--

Court: I'm going to sustain that objection. I think he's gone about as far as an expert can go with looking at those documents. He's now testifying specifically at Butler and I'll sustain that.

During the Hugheses' closing argument, their attorney made the following comments Mr. Collard also tells us, very importantly, that a system of quality control, such as that Butler had, i.e., virtually nonexistent--with such a system it was very likely that a machine might get out of that plant in a defective condition. Okay?

....

The possibility is that they have no quality control procedures at Butler Manufacturing, none of any significance, according to Mr. Collard. I've already gone over Mr. Collard's testimony as to what they should have done, should have had that checklist, should have had some sampling. If they had done that, they possibly would have prevented that device from getting out of Butler Manufacturing in a defective condition, but lacking such quality control, it's very possible, it's likely, according to Mr. Collard, that the machine might have left the factory in a defective condition.

No objection was made to these statements by Butler's attorney during the closing arguments. After closing arguments, in a proceeding out of the hearing of the jury, the court heard Butler's motion for mistrial based on these statements by the Hugheses' attorney. The court denied the motion, stating:

Well, under the circumstances, the motion having been made at recess out of the presence of the jury, the Court considered the motion, felt that it was not prejudicial, that I had instructed them that comments of counsel not consistent with the evidence should be disregarded and, therefore, overrule the motion for mistrial.

A trial judge has wide discretion to control counsel's argument and to deal with a motion for mistrial, and we do not reverse either decision absent a manifest abuse of that discretion. Wal-Mart Stores, Inc. v. Yarbrough, 284 Ark. 345, 681 S.W.2d 359 (1984); Jim Halsey Co. v. Bonar, 284 Ark. 461, 683 S.W.2d 898 (1985). Likewise, it is settled law that for the trial court to have committed reversible error, timely and accurate objection must have been made, so that the trial court was given the opportunity to correct such error. Gustafson v. State, 267 Ark. 830, 593 S.W.2d 187 (1980). Here, by waiting until after closing arguments when they were out of the presence of the jury to make a motion for mistrial, Butler's attorney did not give the trial court the opportunity to correct any error committed during the closing argument. By this action, they waived the objection.

Butler cites an Eighth Circuit Court of Appeals holding that counsel may make his objection to closing argument at the end of the argument, before the case is submitted to the jury. Lange v. Schultz, 627 F.2d 122 (8th Cir.1980). We decline to follow the Eighth Circuit's position and instead require a timely objection, made at the time the alleged error occurs, so that the trial judge may take such action as is necessary to alleviate any prejudicial effect on the jury.

2. SUBSTANTIAL EVIDENCE.

Butler next contends that the trial court erred by failing to grant its motion for judgment n.o.v. or its motion for a new trial, since no substantial evidence existed from which a jury could properly find that Butler's negligence or a defect in the roof runner proximately caused the injuries or damages to the Hugheses.

When the trial court denies a motion for a new trial, this court determines only if the verdict is supported by substantial evidence. Ferrell v. Whittington, 271 Ark. 750, 610 S.W.2d 572 (1981). Likewise, the trial court may enter a judgment n.o.v. if there is no substantial evidence to support the verdict. In testing whether there is any substantial evidence, the evidence and all reasonable inferences deducible therefrom should be viewed in the light most favorable to the party against whom the verdict is sought. If there is any conflict in the evidence, or where the evidence is not in dispute but is in such a state that fair-minded men might draw different conclusions therefrom, it is error to direct a verdict. Westside Motors v. Curtis, 256 Ark. 237, 506 S.W.2d 563 (1974); Haseman v. Union Bank of Mena et al, 268 Ark. 318, 597 S.W.2d 67 (1980).

Where there is a conflict in the evidence, the determination by the jury of the issues is conclusive. The fact that this court would have reached a different conclusion will not warrant the setting aside of a verdict based upon conflicting evidence. Stamper v. Aluminum & Zinc Die Cast Co., 283 Ark. 92, 671 S.W.2d 170 (1984). Furthermore, the jury is authorized to believe or disbelieve any testimony and the weight and value to be given to the testimony of expert witnesses is the exclusive province of the jury. Id. On appeal, this court will not disturb the jury's conclusion unless we can say there is no reasonable probability in favor of appellee's version, and then only after giving legitimate effect to the presumption in favor of the jury findings. Love v. H.F. Const. Co., 261 Ark. 831, 552 S.W.2d 15 (1977).

Looking at the evidence in the light most favorable to the Hugheses, testimony as to the allegedly defective condition of the roof runner was as follows. James Crain, a general contractor and owner of Hampton & Crain, testified that they ordered the roof runner when they were "about ready to put the roof on" the gymnasium they...