Stamper v. Aluminum and Zinc Die Cast Co., 83-302

• Decision Date: 25 June 1984
• Docket Number: No. 83-302,83-302
• Citation: 283 Ark. 92,671 S.W.2d 170
• Court: Arkansas Supreme Court
• Parties: Al STAMPER, Appellant, v. ALUMINUM AND ZINC DIE CAST CO., Apco Power-Unit Corporation & Windsor Door Company, a Division of the Ceco Corporation, Appellees.

Page 170

671 S.W.2d 170

283 Ark. 92

Al STAMPER, Appellant, v. ALUMINUM AND ZINC DIE CAST CO., Apco Power-Unit Corporation & Windsor Door Company, a Division of the Ceco Corporation, Appellees.

No. 83-302.

Supreme Court of Arkansas.

June 25, 1984.

McDaniel, Gott & Wells, P.A. by Bobby McDaniel, and Beason & Coop by John W. Beason, Jonesboro, for appellant.

Barrett, Wheatley, Smith & Deacon, Jonesboro, for APCO Power Unit Corp.

Penix, Penix, Mixon & Lusby, Jonesboro, for Aluminum and Zinc Die Cast Co.

Frierson, Walker, Snellgrove & Laser, Jonesboro, for appellee for Windsor Door Co. HOLLINGSWORTH, Justice.

P.A. Hollingsworth, Justice. The appellant, Al Stamper, was adjusting a high tension spring on a garage door when the aluminum winding sleeve broke, causing him to lose the vision of his right eye. The appellant filed suit against Aluminum & Zinc Die Cast Co., (A & Z), the manufacturer of the winding sleeve; APCO Power-Unit Corp., (APCO), the seller; and Windsor Door Co., (Windsor), the distributor. The jury found that the appellant was guilty of negligence in making the adjustment which was a proximate cause of his injury. This appeal is before us under Sup.Ct.R. 29(1)(m) because it presents a question as to products liability.

The appellant raises two issues on appeal. First he claims the trial court erred in admitting into evidence the testimony and videotaped deposition of Gerald Sanders. The appellant's second argument challenges the trial court's denial of his motion for new trial. We find no merit in either issue and affirm the trial court.

The appellant first argues that the trial court erred in admitting into evidence the testimony and videotape deposition of Gerald Sanders, subrogation agent for the appellant's workers' compensation carrier, Aetna Insurance Co.

After the appellant was injured, the spring plug that fits inside the spring that opens the garage door was delivered to Sanders. He in turn mailed the part to Asa Morton, the appellant's expert, for analysis. After his examination, Morton mailed the part back to Sanders along with his report. Sanders claimed he never received the part. The spring plug was missing for over three years. About a month before the trial of this case, while Sanders was talking to an attorney involved in the litigation, the part came rolling out of his desk drawer. Mr. Sanders' testimony at the trial essentially repeated the above-recited facts. The videotape was of Mr. Sanders' office and was used to show the jury where the part was lost. There was no reference made in front of the jury to the fact that Mr. Sanders was a subrogation agent, and nothing in the videotape indicated that his office was in an insurance company. Nevertheless, the appellant argues that Mr. Sanders' testimony was irrelevant and should have been excluded.

The appellant attempted to have the testimony excluded through a motion in limine. The appellees argued that the testimony was important to their defense and suggested that it would be used to show that the part was altered or damaged while it was missing, or that the claimed loss of the part was a bad faith allegation.

The trial judge, after a hearing, admitted the testimony for the narrow purpose of discussing the loss of the part. He prohibited any mention of Mr. Sanders' occupation, the type of office in the videotape, or that an insurance company had compensated the appellant. At trial, the appellees never raised the question of the alteration of the missing part, nor did they argue that its loss was deliberate.

Although we agree with the appellant that the testimony and videotape deposition are seemingly lacking in relevance, we are unable to determine that any prejudice resulted to the appellant because of the admission of the testimony. We have long held that we reverse for prejudicial error only. Aetna Indemnity Co. v. Little Rock, 89 Ark. 95, 115 S.W. 960 (1909).

The appellant's second point concerns the trial court's denial of its post-trial motions for a new trial or a judgment notwithstanding the verdict. The appellant argues that the jury's verdict was based on a statement made by defense counsel in closing arguments which presented facts outside of the trial record. In his closing argument, A & Z's attorney argued that since the winding bar hole was seven feet ten inches above the ground, a six-foot ladder and a two-foot winding bar would make it possible for the winding bar to strike the ladder and break the spring's casting. The appellant argues that the height of the winding bar hole above the ground was not in the trial record. The appellant objected to the defense attorney's statement and the trial judge admonished the jury that the remarks of attorneys are not evidence. Nevertheless, the appellant argues the remark was highly prejudicial in that it enabled the jury to agree with one of the defense experts, Dr. Courtney Busche, who testified that the winding bar hit an object after the appellant released it.

Although the appellant now claims that the attorney's statement was highly prejudicial, he did not request a mistrial after the remark was made. Instead, he appeared satisfied with the court's admonition. In Howe v. Freeland, 237 Ark. 705, 375...