McMickle v. Griffin
| Decision Date | 05 April 2007 |
| Docket Number | No. 06-672.,06-672. |
| Citation | 254 S.W.3d 729,369 Ark. 318 |
| Parties | Linda McMICKLE, Administra-Trix of the Estate of Calvin McMickle, Deceased, Appellant/Cross-Appellee, v. David GRIFFIN and David E. Taylor, Appellees/Cross-Appellants. |
| Court | Arkansas Supreme Court |
Easley & Houseal, P.A., by: B. Michael Easley, Forrest City, for appellant.
Butler, Hicky, Long & Harris, by: Fletcher Long, Jr., Phil Hicky, and Andrea Brock, Forrest City, for appellees/cross-appellants.
Appellant Linda McMickle, Administratrix of the Estate of Calvin McMickle, appeals from an order of summary judgment in favor of appellee David Griffin and a judgment following a jury verdict in favor of defendants/appellees, David E. Taylor and David Griffin. On appeal, she raises multiple points. Because we agree with her on several of the points raised, we reverse and remand for a new trial.
The facts set out in McMickle's complaint are these. On November 9, 1999, at approximately 5:55 p.m., Calvin McMickel was killed when his Chevrolet Blazer crashed into the back of a John Deere 8400 farm tractor on Arkansas State Highway 44, approximately 5.4 miles south of Elaine. According to McMickle, Taylor was driving the farm tractor too slowly in the dark on a state highway without sufficient lighting to warn a following vehicle of the tractor's presence. She further alleged that Taylor had a plow attached to the rear of his tractor, which masked any light that might have been displayed.
McMickle added in her complaint that Taylor was an employee of David Griffin at the time of the collision and was acting within the course and scope of his authority as Griffin's agent and employee. She asserted that Taylor and other unknown agents of Griffin failed to remove the plow from the tractor so that its lights could be seen by a following driver. She further complained that Griffin failed to assure that the tractor he owned and made available to his employees used proper lighting; that he failed to train and instruct his employees not to move farm equipment on roadways at night; that he failed to train and instruct his employees regarding the legal requirements for safely and properly moving farm equipment at night; and that he failed to instruct his employees not to attach equipment which would conceal the tractor's lights.
McMickle later amended her complaint to add Tyler Farms as a defendant to the lawsuit but subsequently nonsuited her complaint against that entity. On October 30, 2002, Griffin then moved for summary judgment. In his motion, he alleged that there was no agency or employer/employee relationship between Taylor and him, and he concluded that there was no issue of material fact on this point. Attached to his motion for summary judgment was an affidavit in which he claimed to have no interest in Tyler Farms. He did admit that he leased land and equipment to Tyler Farms, but he stated that he was not an officer or employee of that entity; nor was he an officer or stockholder of any of the corporations that make up Tyler Farms. Taylor also signed an affidavit claiming that Tyler Farms, and not Griffin, was his employer. Taylor's supervisor at Tyler Farms, Jerry Cravens, likewise signed an affidavit in support of Griffin's motion for summary judgment claiming that Griffin was not connected with Tyler Farms as an owner.
In her response to Griffin's motion for summary judgment, McMickle claimed that defense counsel was attempting to extricate Griffin from the lawsuit by using a scheme involving sixty-six dummy corporations which his corporate lawyers devised in 1993 to maximize government payments to him but that the scheme had nothing to do with the day-to-day operations of his farms. She claimed that there was no question but that Griffin was a "material participant" in Tyler Farms and that the employees of Tyler Farms knew that their principal employer was Griffin. Through the conduit of Tyler Farms, Griffin was assured of receiving $2,640,000 in annual payments, she claimed.
Also in her response to the summary-judgment motion, McMickle argued that Taylor's testimony alone created a fact question. This was because while Taylor signed an affidavit saying that he did not work for Griffin, he swore in his previous deposition that he did work for Griffin. McMickle also claimed that other employees of Tyler Farms claimed that Griffin was their boss and that Griffin individually, and not as Tyler Farms, provided housing for them. As a final point, she argued that apart from allegations of Griffin's vicarious liability, he was also individually negligent in this case, as he was responsible for assuring that the tractor he owned and provided for use by his employees employed proper lighting as required by statute. The circuit court granted the motion for summary judgment as to Griffin, individually.
The case then went to trial. After a lengthy jury trial, the jury found for the defendants, Taylor and Griffin. The jury specifically answered special interrogatories and found that there was no negligence on the part of Calvin McMickle that was a proximate cause of any damages. The jury further found by its answers that, at the time of the accident, Taylor was acting as Griffin's agent or employee. The circuit court entered judgment in favor of Taylor and Griffin on October 17, 2005.
For her first point on appeal, McMickle contends that the circuit court erred in refusing to instruct the jury to consider certain statutory violations as some evidence of negligence. Those statutory violations include a permit requirement, a lighting requirement, and a speed requirement.1 This court has previously noted that "[a] party is entitled to a jury instruction when it is a correct statement of the law, and there is some basis in the evidence to support giving the instruction." Byme, Inc. v. Ivy, 367 Ark. 451, 463, 241 S.W.3d 229, 239 (2006). This court will reverse a trial court's refusal to give a proffered instruction only where there was an abuse of discretion. See id. This court reviews issues of statutory interpretation de novo, because it is for this court to determine the meaning of a statute. See, e.g., Great Lakes Chemical Corp. v. Bruner, 368 Ark. 74, 243 S.W.3d 285 (2006). Regarding our standard of review for statutory construction, we have said:
The basic rule of statutory construction is to give effect to the intent of the legislature. Ward v. Doss, 361 Ark. 153, 205 S.W.3d 767 (2005); Arkansas Tobacco Control Bd. v. Santa Fe Natural Tobacco Co., Inc., 360 Ark. 32, 199 S.W.3d 656 (2004). Where the language of a statute is plain and unambiguous, we determine legislative intent from the ordinary meaning of the language used. Id. In considering the meaning of a statute, we construe it just as it reads, giving the words their ordinary and usually accepted meaning in common language. Id. We construe the statute so that no word is left void, superfluous or insignificant, and we give meaning and effect to every word in the statute, if possible. Id.
McMickle first points to the circuit court's ruling with regard to the permit requirement for farm tractors. That relevant statute reads in part:
(a) No vehicle operated upon the highways of this state shall have a total outside width, unladen or with load, in excess of one hundred two inches (102") excluding certain safety devices as designated by the state, unless a greater width is authorized by special permit issued by competent authority as provided in § 27-35-210....
Ark.Code Ann. § 27-35-206(a) (Repl.2004) (emphasis added).
Two additional statutes are touched on by the parties in connection with the necessary permit. First, § 27-35-210, a codification of a 1955 statute, provides, in pertinent part:
(a)(2)(A) It shall not be necessary to obtain a permit for nor shall it be unlawful to move any vehicle or machinery in excess of the maximum width prescribed in § 27-35-206 which is used for normal farm purposes only such as, but not limited to, hay harvesting equipment, plows, tractors, bulldozers, combines, etc., where:
(i) It is hauled on a vehicle licensed as a natural resources vehicle;
(ii) The vehicle or machinery is being transported by a farm machinery equipment dealer or repairman in making a delivery of new or used equipment or machinery to the farm of the purchaser; or
(iii) The vehicle or machinery is being used in making a pick up and delivery of the farm machinery or equipment from the farm to a shop of a farm equipment dealer or repair person for repairs and return to the farm; and
(iv) The movement is performed during daylight hours within a radius of fifty (50) miles of the point of origin thereof and no part of the movement is upon any highway designated and known as a part of the national system of interstate and defense highways or any fully controlled access highway facility.
Ark.Code Ann. § 27-35-210(a)(2)(A)(i) — (iv) (Repl.2004) (emphasis added).
The parties also debate a statute in a different subchapter, which provides:
The provisions of this subchapter governing size, weight, and load shall not apply to fire apparatus, road machinery, or to implements of husbandry, including farm tractors, temporarily moved upon a highway, or to a vehicle operated under the terms of a special permit issued as provided in this subchapter.
Ark.Code Ann. § 27-35-102 (Repl.2004).
McMickle argues that, to the extent § 27-35-102 contradicts the more limited exemption in § 27-35-210, the latter controls as the later-enacted statute. She cites further to an Attorney General Opinion which summarizes the law on the subject and supports her contention. Attorney General Opinions, of course, are not binding authority on this court.
On the issue of repeal of a statute by implication, this court has said:
A statute of a general nature does...
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