Firestone Tire & Rubber Co. v. Little

• Decision Date: 04 October 1982
• Docket Number: No. 82-17,82-17
• Citation: 276 Ark. 511,639 S.W.2d 726
• Court: Arkansas Supreme Court
• Parties: The FIRESTONE TIRE & RUBBER COMPANY, Appellant, v. Artie LITTLE, Appellee.

Page 726

639 S.W.2d 726

276 Ark. 511

The FIRESTONE TIRE & RUBBER COMPANY, Appellant, v. Artie LITTLE, Appellee.

No. 82-17.

Supreme Court of Arkansas.

Oct. 4, 1982.

Blackwell, Sanders, Matheny, Weary & Lombardi, Kansas City, Mo., and Rose Law Firm, P.A., Little Rock, for appellant.

Niewald, Risjord & Waldeck, Kansas City, Mo., and Shackleford, Shackleford & Phillips, P.A., El Dorado, for appellee.

HICKMAN, Justice.

This is a products liability case. In 1978, Artie Little, age 82, was walking by the roadside in Strong, Arkansas, when she was hit with a rim that came off the wheel of a passing truck. She filed suit for damages against the owner of the truck and trailer, Harvey Shelton, the owner of a service station who fixed a flat on the wheel of the trailer that day, Jackson Smith, and Firestone, the manufacturer of the rim. At trial, the jury exonerated both the owner of the truck and the service station owner, and awarded Artie Little $150,000 compensatory damages, and $200 punitive damages against Firestone.

The judgment has to be reversed because Firestone asked the day before trial whether the plaintiff and the two other defendants, Shelton and Smith, had entered into a "Mary Carter Agreement." A Mary Carter agreement is one in which a plaintiff secretly agrees with a defendant that if the plaintiff recovers from another defendant, the agreeing defendant's liability will be reduced. Those agreements were so named when one arose in Florida in Booth v. Mary Carter Paint Company, 202 So.2d 8 (Fla.App. 2d 1967). Firestone's counsel asked before trial if any agreements had been made whereby Shelton's or Smith's liability would be reduced if Artie Little recovered against Firestone. Smith's and Shelton's attorneys objected and the trial court did not order the disclosure of any such agreement. On appeal, the appellee argues that Firestone knew or suspected such an agreement existed several months before trial and should have attempted to discover that information far in advance of the day before trial. We do not find Firestone waived their right to object.

There seems to be little doubt of the existence of some sort of agreement and we hold that the trial court was wrong in not requiring the agreement to be disclosed. Furthermore, we join those states that hold such an agreement is not only discoverable but also may be admitted into evidence.

The state courts that have considered this question are split to some degree on whether such an agreement is unethical or against public policy. See Lum v. Stinnett, 87 Nev. 402, 488 P.2d 347 (1971), and Lubbock Manufacturing Co. v. Perez, 591 S.W.2d 907 (Tex.Civ.App.1979). But we have no hesitation in joining those that require a full disclosure in cases such as this. General Motors Corp. v. Lahocki, 286 M.D. 714, 410 A.2d 1039 (Md.App.1980); Gatto v. Walgreen Drug Co., 61 Ill.2d 513, 337 N.E.2d 23 (Ill.1975); Ward v. Ochoa, 284 So.2d 385 (Fla.1973); Pellett v. Sonotone Corp., 26 Cal.2d 705, 160 P.2d 783 (1945); See 65 A.L.R.3d 602. The testimony of Shelton and Smith was critical to Artie Little's case against Firestone. And, as it turns out, their testimony was no doubt a strong factor in the jury's determination that Firestone's RH5? rim was the sole cause of the accident and the complete exoneration of Shelton and Smith. It is readily apparent why the jury should know of any deals these parties made. As the Florida court said in the case of Ward v. Ochoa, supra:

Secrecy is the essence of such an arrangement, because the court or jury as trier of the facts, if apprised of this, would likely weigh differently the testimony and conduct of the signing defendant as related to the non-signing defendants. By painting a gruesome testimonial picture of the other defendant's conduct or, in some cases, by admissions against himself and the other defendants, he could diminish or eliminate his own liability by use of the secret 'Mary Carter Agreement.'

The search for the truth, in order to give justice to the litigants, is the primary duty of the courts. Secret agreements between plaintiffs and one or more of several multiple defendants can tend to mislead judges and juries, and border on collusion.

Firestone's most ardent argument is that the case should be dismissed because it is impossible that the wheel in evidence is the accident wheel. ¹ The entire lawsuit focuses on the RH5? rim base which Firestone had manufactured from 1946 to 1973. It is not disputed that almost twenty-five million such rims were manufactured. The rim base consists of two parts, an outer ring, which is the part that supposedly flew off and struck Artie Little, and the base itself, which is the widest part of the rim and on which a disc is either bolted or welded. The disc is the part that contains the bolt holes.

Firestone's argument that the wheel in question could not have caused the accident is premised on the testimony of the truck driver, Shelton, and Smith, the wheel introduced into evidence, testimony of certain Firestone employees, and other exhibits. The testimony was: The owner, Shelton, said he bought the trailer in question in 1968 and had never changed the wheels. The previous owner testified there had never been a multi-piece wheel on the trailer. (That would exclude the wheel in question.) Baker, the driver, said the day before the accident he noticed the left front outside wheel on the tandem trailer was flat. The next morning Jackson Smith fixed the flat with Baker's help. Baker left Smith's station and drove about four blocks when he saw Artie Little walking along and then saw her disappear. He stopped his truck and ran to her assistance. He found that the tire that had been fixed had exploded and Artie Little was thrown into a ditch. Apparently the rim had come off and struck her. The base and tire were still on the truck, but the tire was in shreds. What happened next to the outer rim and wheel is somewhat in dispute.

Smith said the ring and rim were brought to his station where he kept them inside the building on a junk pile until someone picked them up. The truck owner, Shelton, said he picked them up at the accident scene, took them home and cut out the "eye" of the disc so it could not be used by anyone else. The "eye" is merely the center of the disc where the bolt holes are located. Baker, the driver, said he also went to Shelton's. Shelton said he had both the remaining disc and the ring which were picked up at his place by one of the lawyers. The "eye" he cut out was never produced. It was this wheel assembly that was introduced by Artie Little as the Firestone product that caused the accident. Shelton testified that he was convinced that the wheel assembly in evidence was the one that came off the truck; Baker testified that the wheel in evidence was exactly like the accident wheel.

Firestone produced evidence that the wheel in evidence had only "five hand" holes and they never produced a "five hand" hole assembly that only had six bolt holes--it either had eight or ten bolt holes. A technical advisor for Firestone examined the trailer and testified that the axle on Shelton's trail could only take a six bolt wheel. Furthermore, when the assembly was shown to Jackson Smith at trial, he said that the assembly could not have been the one he put on that day because the outer ring would easily slip off the base and it would not hold as an RH5? should. He said, however, that he was not mistaken that the wheel he put on the truck that day was a RH5? ; he had handled thousands of them. Furthermore, he said he knew they were dangerous and had cautioned his customers that used them.

Mr. Roger B. McCarthy, an engineer from California employed by Failure Analysis Associates, said he tried to duplicate the rim assembly in evidence. He said such an assembly would not hold sufficient pressure to be driven (which would be 85 to 90 pounds), and would come apart at about 45 pounds pressure. He said he filled the tire three times with water and it came apart each time at about 45 pounds.

Firestone's argument, of course, is one that should be made to the jury. We cannot find that it was physically impossible that the wheel actually introduced was not the accident wheel. General Motors Corp. v. Tate, 257 Ark. 347, 516 S.W.2d 602 (1974), is cited by the appellant as controlling on the issue of the weight to be given the defendant's evidence of the physical impossibility of the accident occurring in the way the plaintiff claims. We held in General Motors that such evidence may not be arbitrarily and capriciously disregarded by the trier of fact. In this case the defendant's facts were disputed. The appellee produced witnesses that said the wheel in evidence was the accident wheel. While Firestone raised serious questions about the authenticity of this rim, it was for the jury to decide which witnesses to believe. Circle Realty Co. v. Gottlieb, 267 Ark. 160, 589 S.W.2d 574 (1979). Actually we cannot say it was essential in this particular case that Artie Little produce the accident wheel.

There is no doubt Firestone was harmed by the admission of certain documentary evidence, and its admissibility was the subject of most of the other objections raised by Firestone. One of the most damaging documents was a letter written in 1969 to an attorney involved in litigation over a multi-piece wheel. It was written by Paul Hykes, an engineer who worked for the Budd Company, which bought the Firestone RH5? rims and used them in the manufacture of wheels. The letter said, in part:

I am convinced that the RH5? Rim, aside from the safety aspect, has more than its share of field failures.

The RH5? Rim is a clever design, two continuous rings vs. one split ring on other two piece demountable side ring rim and designs or one split lock ring on the three piece versions. This permits lighter weight, lower cost. The material used is comparable to that used in other designs of rims. Its...