Holiday Inns, Inc. v. Drew, 82-57

• Court: Supreme Court of Arkansas
• Citation: 635 S.W.2d 252,276 Ark. 390
• Docket Number: No. 82-57,82-57
• Parties: HOLIDAY INNS, INC., Appellant, v. Mary DREW, Appellee.
• Decision Date: 21 June 1982

Page 252

635 S.W.2d 252 276 Ark. 390 HOLIDAY INNS, INC., Appellant,
v.
Mary DREW, Appellee. No. 82-57. Supreme Court of Arkansas. June 21, 1982.

Page 253

[276 Ark. 391] Bridges, Young, Matthews, Holmes & Drake, Pine Bluff, for appellant.

Holloway & Bridewell, Lake Village, for appellee.

THOMAS M. BRAMHALL, Special Justice.

On the morning of November 14, 1975, Appellee, Mary Drew, drove from her home in Lake Village, Arkansas, to Appellant, Holiday Inn, in West Memphis, Arkansas, to join some friends who were registered there and attending a teacher's conference in one of Appellant's meeting rooms. She and one of her friends planned to leave the Holiday Inn as soon as the conference was over and travel to Memphis to do some [276 Ark. 392] personal shopping. Mrs. Drew arrived in West Memphis on the morning of the day in question and she and her friends had lunch at an unspecified location. Her friend had another meeting to attend that afternoon and they planned to leave for Memphis immediately thereafter. Mrs. Drew decided to attend the meeting with her friend rather than sit in the lobby and wait for her. In order to effect a quick departure, she was going to reserve some seats at the back of the meeting room while her friend checked out of the motel.

The room in which the meeting was held was immediately adjacent to the lobby. In route to the meeting room she noticed an employee of the motel vacuuming the lobby, and she also saw some acquaintances sitting on a couch. This couch was in the lobby and the furniture was arranged in such a way that one of the couches was away from the wall and it made sort of an entry to the meeting room. Near the wall was a table, and Mrs. Drew was heading between the couch and the table. As she turned to speak to her friends, her leg became entangled in the vacuum cleaner cord causing her to trip and fall. She hit her chest on a table and her knees on the floor. The jury returned a verdict of $75,000.00 against Holiday Inn which promptly appealed.

Approximately six weeks after the trial, the parties were notified that the court reporter's recording equipment had malfunctioned, and it was uncertain how much, if any, of the transcript would be reproducible. In November of 1981, more than six months after the trial, the incomplete transcript was given to the parties. The bench conferences, arguments concerning jury instructions, all motions made outside the hearing of the jury, some objections by counsel, and parts of the testimony of the

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witnesses were not recorded and thus not available to the attorneys or this court.

The parties and the trial judge attempted to reconstruct what occurred during the periods of time not recorded pursuant to Rule 6 of the Arkansas Rules of Appellate Procedure. Suffice it to say, substantial disagreement as to the events that transpired and statements made has evolved. The most notable disagreement centers around the events which surround the proffering of proposed jury instructions [276 Ark. 393] by the parties and the subsequent reading of the instructions to the jury.

On March 5, 1982, eleven months after the trial, the trial judge entered an order pursuant to Rule 6 of the Arkansas Rules of Appellate Procedure, which order provides in part as follows:

After all evidence has been presented, the Court and counsel retired to chambers to consider instructions. Counsel for Appellant attempted to offer certain instructions presumably AMI 206, 602 and 1106. The Court told counsel that the standard preliminary instructions should be selected and agreed upon and told counsel for Appellant that the Court would consider his proffered instructions after the standard instructions had been approved by the Court. At this point, counsel for Appellant stated these exact words or words to this effect, 'I don't care if you give these instructions or not.' The Court proceeded to assemble the instructions which were given and counsel for Appellee submitted his but counsel for Appellant failed to resubmit his instructions to the Court for the Court's acceptance or rejection.

Before counsel and the Court returned to the courtroom, it was agreed by the parties and the Court that the parties would be able to make any and all objections to the giving or rejection of instructions after the case was submitted to the jury.

Instructions were read to the jury and the case was argued. After the Court had instructed the jury, counsel for Appellant approached the bench and complained that the Court had not given Appellant's instructions. The Court at this time informed counsel for Appellant that the instructions in question had not been resubmitted in accordance with the Court's directions after having been withdrawn. (S 1-2).

Appellant argues, inter alia, that the record is defective and does not afford proper review by this court and the inadequate record is a ground for reversal. We agree.

[276 Ark. 394] The trial court, in its effort to settle the record, said that Appellant had not resubmitted its instructions in accordance with the court's direction after the instructions had been withdrawn. The finding that Appellant's instructions had been withdrawn is a conclusion reached by the trial court as distinguished from a recitation of the events which occurred and the facts surrounding the proffering of proposed jury instructions by the attorneys. The trial court did say that counsel for Appellant "attempted to offer" certain instructions, at which time the court told counsel for Appellant that the court would consider his proffered instructions after the standard instructions had been approved by the...