Little Rock Elec. Contractors, Inc. v. Okonite Co., 87-292

Decision Date01 February 1988
Docket NumberNo. 87-292,87-292
Citation294 Ark. 399,744 S.W.2d 381
Parties, 5 UCC Rep.Serv.2d 978 LITTLE ROCK ELECTRICAL CONTRACTORS, INC., Appellant, v. The OKONITE CO. and Dealers Electrical Supply Co., Inc., Appellees.
CourtArkansas Supreme Court

Michael R. Rainwater, Little Rock, for appellant.

Barber, McCaskill, Amsler, Jones & Hale, P.A., Little Rock, for appellees.

HOLT, Chief Justice.

This appeal is from a jury verdict in favor of the defendant appellees, Okonite and Dealers Electrical, on a complaint by the appellant, Little Rock Electrical Contractors, Inc. ("LRECI"), for breach of an implied warranty of merchantability. LRECI argues that the trial court committed reversible error in giving a comparative fault instruction over objection by LRECI that such an instruction was improper in a suit sounding in contract, not tort, for direct and incidental damages. We agree.

Sometime in 1984, LRECI placed an order for electrical cable from Dealers Electrical for use at the Millwood Water Treatment Plant. Okonite shipped several reels of the cable, ordered through Dealers Electrical, to the work site. After discovering punctures in the insulation material surrounding some of the cable, LRECI notified Dealers Electrical and Okonite. Suit was eventually brought by LRECI for breach of warranty on the basis that the punctures constituted defects which rendered the cable unfit for the ordinary purpose for which such cable is used. By its complaint, LRECI sought to recover the cost of replacement cable and any incidental damages. Okonite and Dealers Electrical defended on the theory that any damage to the cable occurred during LRECI's storage of the cable at the work site and was not a manufacturing defect or the result of conduct attributable to either Okonite or Dealers Electrical.

The trial court instructed the jury that to recover on a claim against Okonite and Dealers Electrical for breach of an implied warranty of merchantability, LRECI had to prove that: (1) LRECI sustained damages; (2) the defendant appellees sold cable that was not merchantable--not fit for the ordinary purposes for which such cable is used; (3) the unmerchantable condition was a proximate cause of LRECI's damages; and (4) LRECI was one whom the defendant appellees might reasonably expect to use the cable. See E.I. Du Pont de Nemours & Co. v. Dillaha, 280 Ark. 477, 659 S.W.2d 756 (1983).

However, over objection by LRECI, the court also instructed the jury that: (1) if LRECI's damages were caused by the fault of both LRECI and the defendant appellees, then the fault of both must be compared; and (2) if LRECI's fault was less than the fault of Okonite and Dealers Electrical, LRECI was entitled to recover damages reduced in proportion to the degree of its own fault; but (3) if Okonite and Dealers Electrical were not at fault, or if LRECI's fault was equal to or greater than that of the defendant appellees, LRECI was not entitled to recover any damages.

While that instruction properly tracks the language of subsections (1) and (2) of section (b) of our comparative fault statute, Ark.Code Ann. § 16-64-122 (1987), formerly found at Ark.Stat.Ann. §§ 27-1763--27-1765 (Repl.1979), LRECI convincingly argues that section (a) of 16-64-122 precludes application of the comparative fault defense to any actions but those for "damages for personal injuries or wrongful death or injury to property...."

We first deal with the contention by Okonite and Dealers Electrical that while LRECI made a timely and proper objection to the instruction, this court should not reach the merits of LRECI's argument as the objection was not abstracted.

The omission was an obvious one and upon discovery of the mistake, LRECI abstracted the objection in its reply brief. While we do not approve of that procedure, Rule 9(e)(2) of the Rules of the Supreme Court and the Court of...

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9 cases
  • Skinner v. R.J. Griffin & Co.
    • United States
    • Arkansas Supreme Court
    • June 14, 1993
    ...fault, we held we must reverse and remand for a new trial even though prejudice was not proved. Little Rock Electric Contractors, Inc. v. Okonite Co., 294 Ark. 399, 744 S.W.2d 381 (1988). The holding was based on our cases that provide when an error is shown in an instruction given, it is p......
  • Mercy Health Sys. of Nw. Ark. v. McGraw
    • United States
    • Arkansas Court of Appeals
    • August 28, 2013
    ...and resolve the conflict. 4.See Mercy Health Sys., supra. 5.Id. at 3, 2013 WL 361774. 6.See Little Rock Electrical Contractors, Inc. v. Okonite Co., 294 Ark. 399, 744 S.W.2d 381 (1988). Mercy also relies on the Eighth Circuit's decision following Okonite in E.D. Smith & Sons, Ltd. v. Arkans......
  • Young v. Johnson
    • United States
    • Arkansas Supreme Court
    • January 19, 1993
    ...Young's negligence from the jury did not have a prejudicial impact on the damages awarded to her. Cf. Little Rock Elec. Contrs., Inc. v. Okonite Co., 294 Ark. 399, 744 S.W.2d 381 (1988). In Okonite, a general verdict was returned, and we could not determine whether the error in giving a com......
  • Marx v. Huron Little Rock
    • United States
    • Arkansas Court of Appeals
    • November 10, 2004
    ...is an impossible burden, and prejudice will instead be presumed. See Skinner v. R.J. Griffin & Co., supra; Little Rock Elec. Contr. v. Okonite Co., 294 Ark. 399, 744 S.W.2d 381 (1988). ...
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