Moody Equipment & Supply Co. v. Union Nat. Bank, 81-10
| Decision Date | 13 July 1981 |
| Docket Number | No. 81-10,81-10 |
| Citation | 273 Ark. 319,619 S.W.2d 637 |
| Parties | MOODY EQUIPMENT & SUPPLY COMPANY, Appellant, v. UNION NATIONAL BANK, Administrator, et al., Appellees. |
| Court | Arkansas Supreme Court |
Thurman & Capps, Ltd., by Paul D. Capps, North Little Rock, for appellant.
McMath & Leatherman, P.A., by Sandy S. McMath, Little Rock, for appellees.
In this action for the wrongful death of William Dale Pryor, brought by the appellee bank as administrator, the jury's verdict was for the defendant, Moody Equipment & Supply Company. The trial judge, however, granted the plaintiff's motion for a new trial for misconduct of a witness for the defendant. ARCP, Rule 59(a). For reversal Moody argues that it was entitled to a directed verdict and that the trial court abused its discretion in granting a new trial. The case falls within our jurisdiction under Rule 29(1) (o).
The complaint, among other allegations, asserted that Moody was strictly liable for having sold a used crane that was so defective as to make it unreasonably dangerous. Ark.Stat.Ann. § 85-2-318.2 (Supp.1979). At the time of the accident the decedent, an employee of the general contractor on a building construction job, was loading plywood onto a harness so that it could be lifted by the crane. The crane's boom was extended over a high voltage line. The plaintiff's proof indicated that the piston cups in the crane's hydraulic system were so worn by long use that the fluid bled out. The resulting loss of compression caused the crane's boom to inch downward about four feet and touch the power line, electrocuting Pryor.
Moody does not seriously deny that it was at fault in selling the crane without having inspected the piston cups, but it argues that its negligence was superseded by various intervening causes, such as the contractor's failure to have the power line de-energized, the omission of several safety measures required by Ark.Stat.Ann. §§ 81-1405 and -1406 (Repl.1976), and the crane operator's failure to discontinue its use after the boom had unaccountably descended earlier on the same day. The jury, however, could have found from the evidence that the possibility of such occurrences was reasonably foreseeable in the ordinary course of the crane's intended use in construction work, so that the later acts of negligence by third persons became merely concurrent, not superseding, causes of Pryor's death. See Franco v. Bunyard, 261 Ark. 144, 547 S.W.2d 91 (1977), cert. den. 434 U.S. 835, 98 S.Ct. 123, 54 L.Ed.2d 96 (1977); Hartsock v. Forsgren, 236 Ark. 167, 365 S.W.2d 117 (1963). Hence Moody was not entitled to a directed verdict.
Second, near the end of the trial the plaintiff moved for a mistrial on the ground that two of Moody's witnesses, Jordan and Andrews, had been seen in conversation with jurors. The court at once conducted a hearing in chambers, but nothing of a seriously prejudicial nature developed. In particular, Andrews testified only that he had talked with one juror about having been in the military service and had recommended a Little Rock hotel to another juror. The court did not make a ruling, because at the close of the in-chambers hearing the plaintiff withdrew its motion for a mistrial.
After the verdict, however, the plaintiff raised the point again in a motion for a new trial. This time the proof developed misconduct not touched upon at the in-chambers hearing and not then brought to the attention of the plaintiff's attorney. A witness testified that during a recess a female juror had mentioned Andrew's blue eyes to him in a "downright flirty" manner. Another witness testified that he heard Andrews ask a juror (presumably the same one) where she lived and if it would be all right if "they" came to see her sometime; she said she'd be glad if they did. Andrews admitted that the juror told him he had pretty blue eyes, but he denied the rest. The trial judge evidently accepted the other testimony, which would indicate that Andrews had not been completely candid at the in-chambers hearing during the trial.
To reverse the judgment we would have to say that the trial judge abused his discretion in granting the motion for a new trial. It is fundamental, however, that the latitude of the trial judge's discretion increases proportionately as the situation presents to him a question that cannot equally well be presented to us by the printed record. For instance, we seldom reverse the trial judge's decision to grant a new trial on the ground that the jury's verdict was in his opinion contrary to the preponderance of the testimony. See Smith v. Villarreal, 253 Ark. 482, 486 S.W.2d 671 (1972). There he has the unique advantage of having heard the testimony at first-hand. Again, we have deferred scores of times to the trial judge's ruling upon a motion for a continuance. There he knows, for instance, as we cannot know, the propensity of a certain lawyer to seek a continuance in every case, or a docket condition that justifies a delay only for the strongest of reasons, or other matters not to be found in the printed record.
This case properly falls in the same category with respect to the trial judge's discretion. This trial judge had heard all the testimony and was in a position far superior to ours to know whether the proof was so nearly balanced that the misconduct of a witness and juror might have tipped the scales one way or the other. The trial judge had the advantage of having observed the witness Andrews at the in-chambers hearing, when the witness was understandably apologetic about having spoken to jurors at all. The trial judge was of course familiar with the courthouse in which the case was tried and knew to what extent its adequacy or deficiencies might or might not have brought witnesses and jurors into unavoidable contact with one another during recesses. In a situation such as the one presented by this case, it is not our place to set aside the trial judge's decision unless we can say with confidence that his discretion was markedly abused. Here we cannot make that statement.
Affirmed.
As far as I am able to ascertain this is the first time in history that a jury verdict has been set aside because one of the jurors stated one of the witnesses had "pretty blue eyes." In fact, during my trial days I heard similar remarks on a number of occasions and the thought never occurred to me, nor apparently to the court, nor even to the opposing attorney, that there was anything wrong with this. Even a juror must continue to live a fairly normal life during the tiem they are serving in...
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Smith v. Hopper
...better position than we are to observe the effect counsel's statements had on the jury. See, e.g., Moody Equip. & Supply Co. v. Union Nat'l Bank, 273 Ark. 319, 322, 619 S.W.2d 637, 639 (1981) (noting that the “trial judge had heard all the testimony and was in a position far superior to our......
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...a person with whom the juror knew it would be improper to engage in conversation. Similarly, in Moody Equipment & Supply Co. v. Union National Bank, Adm'r, 273 Ark. 319, 619 S.W.2d 637 (1981), a conversation occurred between the juror and a witness. In cases such as these, where the juror k......
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...on the part of the dealer was held to be an independent intervening cause. In the recent opinion of Moody Equipment & Supply Co. v. Union National Bank, 273 Ark. 319, 619 S.W.2d 637 (1981), we dealt with whether the negligence of the original defendant could be considered when the facts con......
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CAMPBELL v. HANKINS
...considerable discretion is even more difficult when a new trial has been granted. We bear in mind Moody Equip. & Supply Co. v. Union Nat'l Bank, 273 Ark. 319, 322, 619 S.W.2d 637, 639 (1981), where our supreme court wrote, “This trial judge had heard all the testimony and was in a position ......