John R. Cowley & Bros., Inc. v. Brown

Decision Date28 September 1990
Citation569 So.2d 375
CourtAlabama Supreme Court
PartiesJOHN R. COWLEY & BROTHERS, INC. v. John James BROWN. 89-214.

Robert H. Smith of Collins, Galloway & Smith, Mobile, for appellant.

Joseph O. Kulakowski, Mobile, for appellee.

SHORES, Justice.

This is an appeal from a judgment entered on a jury verdict of $300,000 for the plaintiff, John James Brown, and against the defendant, John R. Cowley & Brothers, Inc. ("Cowley"), an Alabama corporation. We affirm.

Brown received very serious injures when a steel tank he was cutting with a blow torch exploded. Brown sued, alleging that negligence and/or wantonness on the part of Cowley was the proximate cause of the severe burns that he suffered in the explosion. His complaint alleged that the defendant was negligent and/or wanton in representing to him that the tank in question had been cleaned and thus was not dangerous. He alleged in his complaint that his hands, arms, face, and body were severely burned. He further alleged that he received a burn to his throat so serious that his larnyx, or voice box, had to be surgically removed, resulting in his loss of speech. Cowley filed a motion for summary judgment or, in the alternative, a motion in limine, directed at Brown's allegation that his laryngectomy resulted from the explosion, contending that it was due to cancer. The trial judge sustained Cowley's objection to any questioning relative to any causal connection between the cancer and the burn. Cowley also raised the affirmative defense of contributory negligence.

Cowley filed a motion for a directed verdict, which was granted as to all but a single count. At the conclusion of the trial, the judge heard the argument of counsel and stated: "All right. What I am going to do is send the case to the jury on the single claim that the defendant was guilty of negligence in furnishing to the plaintiff's employer a tank which was represented by the defendant to be clean or appropriate for being cut up." (R.T. 284.) On June 26, 1989, the jury returned a verdict in favor of Brown. Cowley filed a motion for a JNOV, or, in the alternative, for a new trial, which was denied by the trial judge. This appeal followed.

Cowley first contends that Brown failed to prove by substantial evidence that Cowley breached a duty owing to him. It next contends that Brown failed to prove by substantial evidence that the representations made to him were made by an agent of Cowley acting within the line and scope of his employment. Finally, Cowley contends that Brown was contributorily negligent as a matter of law, and is, therefore, barred from recovery. There is no dispute as to the extent of Brown's injuries and the amount of damages awarded. There is no claim that the award is excessive.

The three arguments raised by Cowley on appeal all revolve around the question of the sufficiency of the evidence. Cowley argues that the trial court erred in failing to direct a verdict and in failing to enter in its favor a judgment notwithstanding the verdict on the issues of agency and negligence, and that Brown was guilty of contributory negligence. "The law of Alabama is clear as to the standards for testing a motion for directed verdict and a motion for judgment notwithstanding the verdict (JNOV). The standard for testing a motion for directed verdict is identical to that for testing a motion for JNOV. Casey v. Jones, 410 So.2d 5 (Ala.1981). Both motions test the sufficiency of the evidence. Wright v. Fountain, 454 So.2d 520 (Ala.1984)." Black Belt Wood Co. v. Sessions 514 So.2d 1249, 1251 (Ala.1986). Evidentiary challenges, except on grounds of admissibility, are divided into two separate and distinct categories: sufficiency of the evidence raised by motion for JNOV and measured by the substantial evidence rule; and weight and preponderance of the evidence, raised by motion for a new trial and measured by the "palpably wrong and manifestly unjust" standard. Nelson Bros. Inc. v. Busby, 513 So.2d 1015, 1018 (Ala.1987), quoting Burroughs Corp. v. Hall Affiliates, Inc., 423 So.2d 1348 (Ala.1982).

Substantial evidence is defined as "evidence of such quality and weight that reasonable and fair-minded persons in the exercise of impartial judgment might reach different conclusions as to the existence of the fact sought to be proven." Code 1975, § 12-21-12(d); Economy Fire & Cas. Co. v. Goar, 551 So.2d 957, 959 (Ala.1989); see also Bass v. SouthTrust Bank of Baldwin County, 538 So.2d 794, 797-98 (Ala.1989).

The evidence before us indicates that Brown worked as a scrap metal cutter for James Anderson. His job was to cut large steel fabrications into one-foot by three-foot pieces. The site at which he worked was divided into five cutting lanes. He was in lane three. He testified that the large steel fabrications were delivered on trucks belonging to Cowley.

Brown testified that equipment such as trucks, cranes, and magnet trucks, belonging to Cowley, came to the cutting site to retrieve the scrap steel, which was hauled to be weighed at Cowley's scales, a short distance away. Brown further testified that no scrap metal company other than defendant Cowley weighed the scrap metal. Brown never witnessed any steel being picked up that was not picked up by Cowley's trucks.

James R. Brewer, president and owner of Freeman Wrecking Company, rented the cutting site to James Anderson. Brewer testified that he was there every day and could observe the yard. Brewer testified as follows:

"Q. [Mr. Kulakowski:] Can you tell the jury where this--these cutting lanes got their raw steel to cut?

"A. [Mr. Brewer:] From Cowley.

"Q. Okay. Can you tell the jury who got the raw steel once it was cut up into one-by-three pieces?

"A. Cowley came and picked it up.

"Q. Did you ever know of any other business that would pick up steel from those lanes?

"A. No, sir.

"Q. Only Cowley?

"A. As far as I know.

"Q. Okay. And you were there to watch it, were you not? You have got kind of a bird's-eye view, do you not?

"A. Right."

(R.T. 38-39.)

Brewer testified further that he had had occasion before the date of the accident to see Cowley's trucks going into and out of the cutting site, and that he knew the Cowley trucks and drivers by sight. He had known them as Cowley employees for years. Brewer testified that Anderson owned only a pick-up truck and that only Cowley owned big trucks and magnetic loaders. The testimony of Emmitt Dubose, Cowley's president, confirms that only Cowley owned big trucks, although he disputes whether a Cowley truck delivered the tank that exploded. Dubose testified that all of the Cowley trucks had the name "Cowley & Brothers, Inc." on the side of the truck. However, Brewer said that he did not recall Cowley's green Mack trucks having the Cowley name on them. Brewer also testified that he never saw any other company's trucks parked at the cutting site except Cowley's.

Brewer testified that at the cutting site Cowley had bins called "roll-off boxes," which would be filled up with scrap iron, and that the Cowley trucks, which had been specially adapted for that purpose, would hook up to them and haul the scrap to Cowley's yard. Dubose testified that Cowley had such bins at many sites throughout Mobile.

The testimony reflects that there was no office, no bathroom, and no scrap cleaning facility at the cutting site. Brown testified that Jim Anderson often used Cowley's office for the business that was generated from the scrap.

Brewer, who had been in the scrap business for 25 years, testified that before such tanks should be scrapped the tanks could be cleaned by various methods, but must be cleaned. He testified that he had never observed any type of cleaning equipment at the cutting site. Brown testified that he is knowledgeable about fuel tanks and that he knew that the tanks had to be either steamed or washed with water to the very top so that they would not blow up when one started to cut them.

Brown testified that on the day prior to the explosion, he arrived at work and found a tank in his cutting lane. He said he was told by Jim Anderson that the tank was clean and that he cut the tank into scrap. On the same day, Brown testified, he specifically recalled that a green truck became stuck in the mud on his cutting lane. He said that although the truck did not have the Cowley name on its side, he recognized it as being a Cowley truck. Brown said it was driven by a "heavyset" black man that Brown recognized because of his having driven a Cowley truck on earlier occasions, and Brown said that he had talked to this man about who the man worked for. Brown testified that he talked to the truckdriver about the tank, and that the driver said it was clean and that it was like the one Brown had cut up that day. Brown stated that he believed the truck driver when the driver told him that the tank had been cleaned and that it was just like the one he had already cut. He said that he did not work on the tank that day because it was raining.

On the morning of November 6, 1986, Brown went to work, hooked up his blow torch, lit it, and heated the tank delivered to him on the previous morning. The tank exploded, knocking him about 10 or 12 feet away from the tank. He was badly burned and was put in great pain. He testified that these injuries have resulted in his being unable to work and being so sensitive to heat and cold that he no longer enjoys recreational activities. James and Diana Godwin both testified to Brown's weakened condition since the accident and to his alleged sensitivity to heat and cold. Expert testimony was given by Dr. Arnold Luterman, M.D., as to Brown's injuries.

Emmitt Dubose, president of Cowley, testified that James Anderson was not an employee of Cowley's, but that Cowley did have a scrap bin located at his yard. Dubose testified that Anderson approached him one day and said that he was going into the scrap business and wanted to know if Cowley would be willing to sell him...

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