Grain Dealers Mut. Ins. Co. v. Porterfield

• Decision Date: 23 September 1985
• Docket Number: No. 85-56,85-56
• Citation: 287 Ark. 27,695 S.W.2d 833
• Parties: , 27 Ed. Law Rep. 977 GRAIN DEALERS MUTUAL INSURANCE COMPANY, Appellant, v. Helen PORTERFIELD, Individually and as Administratrix of the Estate of Vernie Porterfield, Deceased, Appellee.
• Court: Arkansas Supreme Court

Page 833

695 S.W.2d 833

287 Ark. 27, 27 Ed. Law Rep. 977

GRAIN DEALERS MUTUAL INSURANCE COMPANY, Appellant, v. Helen PORTERFIELD, Individually and as Administratrix of the

Estate of Vernie Porterfield, Deceased, Appellee.

No. 85-56.

Supreme Court of Arkansas.

Sept. 23, 1985.

Boswell, Tucker & Smith by Ted Boswell and David E. Smith, Bryant, for appellant.

Curtis E. Rickard, Benton, for appellee.

HAYS, Justice.

This is a wrongful death case. Helen Porterfield, appellee, brought suit for herself and the estate of her husband, Vernie Porterfield, who was electrocuted on July 19, 1983, while working at the football stadium of Malvern High School. Mrs. Porterfield filed suit against Grain Dealers Mutual Insurance Company, appellant, the public liability carrier of the Malvern Special School District. By third party complaint, Arkansas Power and Light Company was made a party defendant.

The issues of negligence and comparative fault were submitted to the jury by special interrogatories and a verdict of $131,127 was returned. The jury apportioned negligence between the parties at 75 percent to Malvern Special School District, 20 percent to Vernie Porterfield, and 5 percent to Arkansas Power and Light Company. Grain Dealers Mutual has appealed on the basis of three points of error: the testimony of E.L. Cody, called by appellee as an expert witness, should have been stricken; the trial court should have granted a defense motion for a directed verdict because there was no proof that negligence of the school district was a proximate cause of Vernie Porterfield's death; and a mistrial should have been granted because counsel for Helen Porterfield told the jury in closing argument that if they found Vernie Porterfield fifty percent at fault that "ended the matter."

We need not reach the first and third points, as we agree with appellant that the trial court should have directed a verdict for the defendants at the close of the plaintiff's case because there was no proof that any negligence by the defendants was a proximate cause of the death of Vernie Porterfield.

The test concerning the granting of a motion for a directed verdict by the trial court has been clearly stated. The evidence, with all reasonable inferences, is viewed in the light most favorable to the party opposing the motion, and given its highest and strongest probative value. When viewed in that light if the evidence is so lacking in substance that it would require that a jury verdict be set aside, the motion must be granted. Pritchard v. Times Southwest Broadcasting, Inc., 277 Ark. 458, 642 S.W.2d 877 (1982); Cowling v. Clinton Board of Education, 273 Ark. 214, 618 S.W.2d 158 (1981). Evidence is said to be substantial when it "is of sufficient force and character that it will, with reasonable and material certainty and precision, compel a conclusion one way or the other. It must force or induce the mind to pass beyond a suspicion or a conjecture." Ford on Evidence, Vol. 4, Paragraph 549, page 276; DuPont v. Dillaha, 280 Ark. 477, 659 S.W.2d 756 (1983).

The facts of the case are largely undisputed. In December of 1982 a tornado destroyed the press box of the football stadium at Malvern High School. The stadium had been built in 1936 by the WPA, and the press box contained a wiring system commonly used in that day, known as a two-wire Romex. With the adoption of the National Electrical Code about fifteen years ago, a three-wire system would have been required for the press box, the third-wire providing a ground. The National Electrical Code was adopted by a Malvern City Ordinance.

When the press box was rebuilt in early 1983, two employees from the maintenance crew of the school district were assigned the task of rebuilding the press box. Although they realized that new construction required a three-wire system they installed a two-wire system since that was the system originally installed. No permit was obtained by the school district and, hence, there were no interim or final inspections of the electrical system as would have been required with a permit.

After the press box was rebuilt Mr. James McDonald was employed to construct a metal stairway at the rear of the stadium leading to the press box. Mr. McDonald hired Vernie Porterfield to help him and together they had completed the stairway, with the exception of the handrails.

Vernie Porterfield was working alone installing the handrails on the morning of the accident. He had arrived about 7:30 and parked his welding truck near the press box, draping the welding leads over a...