Pineview Farms, Inc. v. A.O. Smith Harvestore, Inc., 88-205

• Decision Date: 27 February 1989
• Docket Number: No. 88-205,88-205
• Citation: 298 Ark. 78,765 S.W.2d 924
• Parties: PINEVIEW FARMS, INC., Appellant, v. A.O. SMITH HARVESTORE, INC., et al., Appellees.
• Court: Arkansas Supreme Court

Page 924

765 S.W.2d 924

298 Ark. 78

PINEVIEW FARMS, INC., Appellant, v.A.O. SMITH HARVESTORE, INC., et al., Appellees.

No. 88-205.

Supreme Court of Arkansas.

Feb. 27, 1989.

Robert J. Donovan, Marianna, for appellant.

Joseph E. Kilpatrick, Jr., Frances E. Scroggins, Little Rock, for appellees.

HOLT, Chief Justice.

AppellantPineview Farms, Inc.(Pineview) claims appelleesA.O. Smith Harvestore, Inc.(A.O. Smith), Southern Harvestore Systems (Southern), which is a subsidiary of A.O. Smith, and Gerald King and Joe McMullen, two servicemen of Southern, were negligent in failing to properly inspect and repair Pineview's grain silo.The trial court entered judgment in favor of the appellees.We affirm.

In July 1980 Pineview, located in Cabot, Arkansas, employed Southern, located in Harrison, Arkansas, to inspect and repair its Harvestore silo.The Harvestore silo system preserves feed by limiting oxygen that comes into contact with feed stored inside a silo.Breather bags allow temperature changes in the system to occur without affecting the vacuum.The estimate for the job was $7,500.00, which included resealing the silo, replacing the breather bags, and putting a new floor in the silo.

On July 18, 1980, employees of Southern partially resealed the silo.However, they did not replace the breather bags or the floor because they felt both were "okay."The charge for this work was $1,127.00.The silo was placed in use, and silage began spoiling shortly thereafter.

On October 27, 1981, Southern sent two servicemen to Pineview Farms in response to a call that the silo was on fire.Upon arrival, the servicemen found no evidence of fire but did find the unloader door open.They changed a valve, clamped down a top hatch, and checked the breather bags, which appeared to be in good condition.The charge for this service was $63.86.

On May 7, 1982, Southern replaced a cutter chain and hooks and conducted a pressure test.The charge was $2,412.13.

On July 13, 1982, two Southern servicemen (appellees King and McMullen) were sent to pressure check the silo and examine its foundation.They did a partial pressure check on the lower portion of the structure, replaced a bottom drain cap missing from the foundation, and fixed a faulty center hatch gasket.They also tested the breather bags, finding them to be in good condition.The charge was $141.33.

Pineview dumped spoiled silage into its fields in July or August of 1982.In November 1982 Pineview again put grain in the silo.Near this time, Robert Gordon, a representative from A.O. Smith, visited Pineview Farms.He inspected the breather bags and determined that the bags were old and "with fairly good accuracy" inoperable.However, he did not report this to Pineview, A.O. Smith, or Southern.

From November 1982 until February 1983, the silage deteriorated rapidly.Pineview called A.O. Smith in Chicago to discuss the problem.On February 9, 1983, Smith sent representatives from K-W Harvestore in Missouri to Pineview.The repairmen found four leaks in the silo and also found that the breather bags were bad.The repairmen fixed the leaks and replaced the breather bags and breather valve flaps.Pineview was not charged for this work.

In April of 1983, A.O. Smith's representative, Bob Gordon, met with Dr. Clinton Jewett, the manager of Pineview, concerning a delinquent account to Southern.In an interoffice memo concerning this visit, Gordon stated that (1)he questioned the credibility of the work performed by Southern on July 13, 1982, in that he and K-W Harvestore people found the breather bags to be very brittle and inoperative seven months later; that (2)he agreed to give Pineview $141.33 credit on the July 13, 1982, invoice; and that (3)he agreed to give Pineview a $440.32 credit on the July 18, 1980, invoice since Pineview paid for a complete reseal but only received a partial reseal.

In May of 1983, Pineview put another crop of grain in the silo.In about a month, some of the silage spoiled.On July 15, Pineview filed a complaint against A.O. Smith Harvestore, Southern Harvestore, Gerald King and Joe McMullen, alleging that from July 18, 1980, until July 15, 1983, A.O. Smith, through its agents (Southern, King, and McMullen) was negligent in failing to inspect and repair the silo and breather bags, resulting in damage to silage and livestock and loss of milk production in excess of $10,000.00.

The case was tried before a jury, which found that (1) Southern Harvestore, Joe McMullen, and Gerald King were not negligent and that (2) Pineview's negligence was the proximate cause of the occurrence.The trial court entered judgment for A.O. Smith, Southern, King, and McMullen.Thereafter, Pineview filed a motion for new trial, which the trial court denied.From this order, Pineview appeals.

AMENDMENT OF PLEADINGS.

Pineview argues that the trial court erred in (1) denying its motion to amend the pleadings to conform to the evidence and in (2) failing to submit the issue of the independent negligence of A.O. Smith Harvestore to the jury.We hold to the contrary.

In a deposition taken seven months prior to trial, Bob Gordon, A.O. Smith's representative, testified that he inspected the breather bags in November of 1982 and determined that they were old and "with fairly good accuracy" inoperable, but did not disclose this fact to anyone.

Three months prior to trial, A.O. Smith filed a motion for summary judgment asking that it be dismissed from the case.In its response to this motion, Pineview asserted that Bob Gordon's inspection of the breather bags "constitutes independent inspection of the Harvestore silo by an agent of A.O. Smith Harvestore" and, "[c]onsequently, there is substantial evidence from which the jury could conclude that A.O. Smith Harvestore is guilty of an act of independent negligence."

Well into the trial, Pineview moved that the pleadings be amended to allege independent negligence on the part of A.O. Smith Harvestore to conform to the proof that Bob Gordon inspected the breather bags in 1982 and found them to be old but did not disclose this fact to anyone even though he thought they should have been replaced.The following exchange then took place:

The Court: Somewhere in my mind, I thought that motion wasn't necessary anymore.

Mr. Donovan (counsel for Pineview): Whether it is or not, Your Honor, I'd like to make it.And the allegation further is that Bob Gordon is the agent and employee of A.O. Smith Harvestore.

* * *

Mr. Allen: May I be heard on that, Your Honor?

The Court: Yes.

Mr. Allen (defense counsel): Your Honor, I offer Defendant's Exhibit 25 and Defendant's Exhibit 26, the pretrial information sheet and the supplemental pretrial information sheet filed by the Plaintiff in this case, which says, "This is a claim for negligent inspection and repair of a Harvestore silo and the resulting damage to livestock and loss of milk production as a consequence of the negligence," and the supplemental includes what each witness would testify to, and there's no testimony in there to anything other than negligent inspection or repair of the Harvestore silo.

The Court: What is he trying to make it conform to anyway?

Mr. Allen: He is trying to say now independent--independent liability on Harvestore, a claim that's never been in this case, and we move for a continuance because we didn't prepare for an independent liability case.We prepared for an agency case, and that's what he's been.

The Court: Well, I think the rule is that if the motion is objected to, it's denied anyway, as I remember the rule from ten years ago.I'm not sure the motion is good anyway, right now.But anyway, it is denied at this late date.

This motion was renewed at the conclusion of the proof and denied again by the trial court.In addition, Pineview objected to the court's failure to submit the question of A.O. Smith's independent negligence to the jury.

Ark.R.Civ.P. 15 provides as follows:

(b)Amendments to Conform to the Evidence.When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings.Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment; but failure so to amend does not affect the result of the trial of these issues.If evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, the court may allow the pleadings to be amended in its discretion.The court may allow a continuance to enable the objecting party to meet such evidence.

A party who knowingly acquiesces in the introduction of evidence relating to issues that are beyond the pleadings is in no position to contest a motion to conform.Bailey v. Matthews, 279 Ark. 117, 649 S.W.2d 175(1985).Newbern, Arkansas Civil Practice and Procedure§ 15-3(1985).Thus, consent is generally found when evidence is introduced without objection.Id.However, "a court will not imply consent merely because evidence relevant to a properly pleaded issue incidentally tends to establish an unpleaded claim."Quillen v. International Playtex, Inc., 789 F.2d 1041(4th Cir.1986).

It is undisputed that the appellees did not expressly consent to litigating the issue of A.O. Smith's liability, as principal, for agent Bob Gordon's negligence in failing to inform anyone after finding the breather bags to be old and inoperable in November of 1982.Thus, our only concern is whether the appellees impliedly consented to the trial of this issue.We quickly find they did not.

Granted, appellees did not object to testimony concerning this issue at Bob Gordon's deposition seven months prior to trial or at trial.Notwithstanding, since Gordon's testimony was relevant to the negligence of Southern and its employees in failing properly to...