DeVazier v. Whit Davis Lumber Co.

Decision Date09 December 1974
Docket NumberNo. 74--205,74--205
Citation257 Ark. 371,516 S.W.2d 610
PartiesJames H. DeVAZIER and Debra Dawn DeVazier, Appellants, v. WHIT DAVIS LUMBER COMPANY and F & S Construction Company, Appellees and Cross-Appellants, and William Carpenter, Appellee.
CourtArkansas Supreme Court

McMath, Leatherman & Woods by Phillip H. McMath, and Mart Vehik, Little Rock, for appellants.

Smith, Williams, Friday, Eldredge & Clark by Overton S. Anderson and Joseph E. Kilpatrick, Little Rock, for F & S Const. Co.

Laser, Sharp, Haley, Young & Boswell, P.A., Little Rock, for Whit Davis Lumber Co.

Rice & Batton by Ben E. Rice, Jacksonville, for William Carpenter.

HOLT, Justice.

Appellants James DeVazier and his thirteen year old daughter, Debra, brought this action to recover damages for personal injuries suffered by Debra as a result of a large stack of sheetrock falling upon her legs. The father sought 'out of pocket' expenses and Debra sought damages for pain, suffering and permanent injury. The jury found each appellee and appellant Debra 25% responsible for the alleged injuries. The jury awarded Debra's father $3,200 for the expenses he had incurred and no damages to Debra. The trial court's denial of appellants' motion for a new trial 'solely on the issue of damages sustained by her (Debra) as a result of the negligent injury which the jury has found that she has sustained by reasons of the' negligence of the appellees is the basis for this appeal.

The relief which appellants seek is not permissible. We have consistently refused to affirm a judgment on the issue of liability and allow a partial new trial or one limited only to the issue of damages. Clark v. Ark. Democrat Co., 242 Ark. 497, 413 S.W.2d 629 (1967); Manzo v. Boulet 220 Ark. 106, 246 S.W.2d 126 (1952), and Krummen Motor Bus & Taxi Co. v. Mechanics' Lbr. Co., 175 Ark. 750, 300 S.W. 389 (1927). See also 58 Am.Jur.2d, New Trial, § 27. The rationale is that a verdict, the foundation of the judgment at law, is an entity which cannot be divided by the trial court. Therefore, the trial court was correct in denying appellants' motion for a new trial.

Although we deem it unnecessary to discuss appellants' other contentions for reversal, suffice it to say we have examined them and find no merit.

By cross-appeal, F & S Construction Company asserts that the trial court erred in refusing its motion for a directed verdict on the basis that, as a matter of law, Debra was a licensee as to it. We cannot agree. Appellee William Carpenter, a real estate agent since 1967, sells houses. In doing so, he shows a prospective buyer building plans as well as houses which are being built by F & S Construction Company pursuant to a 'turn-key' contract between Carpenter and F & S. Carpenter has keys to these pre-sold houses and does not have to secure permission from F & S to show them during construction. Carpenter was showing Debra's mother, a prospective purchaser, houses at her request. Debra was accompanying them. When they were inspecting one of the houses, which was under construction and pre-sold, a quantity of sheetrock stacked against a wall fell on Debra breaking a leg and ankle. It is F & S' contention that Debra was on the premises occupied by it merely as a sightseer for her own purposes and F & S Construction Company did not stand to benefit from her presence in the house.

Prosser, Law of Torts, § 61 (4th Ed. 1971), states:

The leading case of Indermaur v. Dames laid down the rule that as to those who enter premises upon business which concerns the occupier, and upon this invitation express or implied, the latter is under affirmative duty to protect them, not only against dangers of which he knows, but also against those which with reasonable care he might discover.

In Restatement (Second) of Torts § 332 (1965), Comment b at p. 176, invitation is defined as '* * * conduct which justifies others in believing that the possessor desires them to enter the land. * * * Any words or conduct of the possessor which lead or encourage the visitor to believe that his entry is desired may be sufficient for the invitation.' In the case at bar, F & S allowed Carpenter to have keys to houses which were under construction by it by contract with him and it was his practice to show the houses to customers when requested. Certainly, it must be said the jury could infer that showing the houses to prospective purchasers, as here, resulted in a financial benefit to both Carpenter and F. & S. See Alfrey Heading Co. v. Nichols, 139 Ark. 462, 215 S.W. 712 (1919).

Cross-appellant F & S next asserts there was no substantial evidence of negligence by it. Therefore, the court erred in denying its motion for a directed verdict. In determining this issue on appeal, our well settled rule is we consider only that evidence and all reasonable inferences deducible therefrom which are most favorable to the appellee....

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14 cases
  • Finazzo v. Fire Equip. Co.
    • United States
    • Court of Appeal of Michigan — District of US
    • April 17, 2018
    ...Court).2 Defendants cite the following jurisdictions as following the common-law rule of § 384 : see Devazier v. Whit Davis Lumber Co. , 257 Ark. 371, 374-375, 516 S.W.2d 610 (1974) ; Chuck v. Bd. of Trustees of Leland Stanford Jr. Univ., 179 Cal. App. 2d 405, 412-413, 3 Cal.Rptr. 825 (1960......
  • Smith v. Walt Bennett Ford, Inc.
    • United States
    • Arkansas Supreme Court
    • November 1, 1993
    ...a partial new trial on the issue of damages. See e.g., Hinkle v. Perry, 296 Ark. 114, 752 S.W.2d 267 (1988); DeVazier v. Whit Davis Lumber Co., 257 Ark. 371, 516 S.W.2d 610 (1974); Clark v. Arkansas Democrat Co., 242 Ark. 133, 497, 413 S.W.2d 629 (1967) (supplemental opinion on denial of re......
  • Sproles v. Associated Brigham Contractors, Inc.
    • United States
    • Arkansas Supreme Court
    • December 19, 1994
    ...applied the doctrine in numerous cases: Milam v. Midland Corporation, 282 Ark. 15, 665 S.W.2d 284 (1984); DeVazier v. Whit Davis Lumber Co., 257 Ark. 371, 516 S.W.2d 610 (1974); Southwestern Bell Telephone Co. v. Travelers Indemnity Co., 252 Ark. 400, 479 S.W.2d 232 (1972); Chesser v. King,......
  • Baxter v. Grobmyer Bros. Const. Co., 81-181
    • United States
    • Arkansas Supreme Court
    • March 29, 1982
    ...was entitled to both instructions, as the jury could have found liability under either theory. He relies on DeVazier v. Whit Davis Lumber Company, 257 Ark. 371, 516 S.W.2d 610 (1974), where we held, on the strength of Restatement of Torts, 2d, § 384, that a contractor who erects a structure......
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