Threlkeld v. Worsham

• Decision Date: 14 March 1990
• Docket Number: No. CA,CA
• Citation: 785 S.W.2d 249,30 Ark.App. 251
• Parties: Robert THRELKELD and Sammy Grisham d/b/a T & G Cattle Company, Appellants, v. Don WORSHAM and Mike Statler, Appellees. 89-185.
• Court: Arkansas Court of Appeals

Page 249

785 S.W.2d 249

30 Ark.App. 251

Robert THRELKELD and Sammy Grisham d/b/a T & G Cattle Company, Appellants, v. Don WORSHAM and Mike Statler, Appellees.

No. CA 89-185.

Court of Appeals of Arkansas Division I.

March 14, 1990.

Larry Dean Kissee, Ash Flat, W. Swain Perkins, Thayer, for appellants.

J. Scott Davidson, H. David Blair, Batesville, Jim Short, Salem, for appellees.

MAYFIELD, Judge.

The appellees in this case, Don Worsham and Mike Statler, are residents of Arkansas. They filed separate lawsuits against appellants for breach of express and implied warranties, the selling of unreasonably dangerous cattle in a defective condition, and for knowingly bringing (or causing to be brought) diseased cattle into the state of Arkansas. The cases were consolidated for trial. Appellants, who are residents of Missouri, argued that Missouri law controlled the implied warranty issue. Before trial, appellants filed a motion to strike appellees' claims for damages for breach of implied warranty, because under Missouri law, a written warranty was necessary to maintain such a claim involving livestock. The trial judge denied this motion. At trial, appellants again argued that Missouri law controlled on the implied warranty issue. This objection was overruled, and the jury was instructed on the law of Arkansas. The case was submitted on interrogatories covering the separate theories of implied warranty, strict products liability, and statutory liability. The answer to each interrogatory was favorable to the appellees, and judgments were entered for them in the amounts found by the jury.

On appeal, appellants argue that: (1) the trial court erred in not applying Missouri law to each of the theories relied upon by the appellees, and (2) that the trial court erred in denying appellants' challenge to a juror for cause. With regard to the theory of strict liability for supplying cattle in a defective condition which rendered them unreasonably dangerous, and the statutory liability under Ark.Code Ann. Section 2-40-101(c) for bringing, or causing to be brought, cattle into Arkansas knowing them to be suffering from a contagious or infectious disease, the appellees correctly point out that the appellants have failed to preserve objections for appeal on these theories. Appellants did object to the giving of instructions using Arkansas law on the implied warranty theory but made no such objection to the application of Arkansas law to the other claims, and we do not consider arguments on appeal if they were not raised in the trial court. Ark. Burial Ass'n v. Dixon Funeral Home, Inc., 25 Ark.App. 18, 24, 751 S.W.2d 356, 359 (1988).

In W.M. Bashlin Co. v. Smith, 277 Ark. 406, 643 S.W.2d 526 (1982), the jury verdict was submitted on interrogatories concerning two grounds for recovery: (1) defective product liability, and (2) negligence. The court said:

We have recognized that more than one theory of liability may properly be used in matters involving products liability. AMI 1012 provides first for a finding of a defect in the product and second that there was negligence on the part of the supplier. The plaintiff need not bear the burden of proving both theories of liability, it is enough that he prove either.

277 Ark. at 414, 643 S.W.2d 526. And in E.I. DuPont de Nemours & Co. v. Dillaha, 280 Ark. 477, 659 S.W.2d 756 (1983), the jury returned a general verdict which could be sustained under both strict product liability and warranty theories. In affirming the trial court's judgment, the Arkansas Supreme Court said there was substantial evidence to sustain the jury's verdict under either theory. Therefore, we think the instant case must be affirmed under either the products liability or statutory liability theories, regardless of the warranty theory. The abstract simply does not show that any alleged error on the first two theories was preserved for appeal, and the only theory for recovery that is contested on appeal is the one based on breach of warranty. However, if we do need to examine the implied warranty issue, we find that the case should also be affirmed on that theory.

We find no Arkansas case clearly in point on the issue of the application of Arkansas law to the claims based upon breach of implied warranty. Arkansas Code Annotated Section 4-1-105(1) (1987) provides as follows:

Except as provided hereafter in this section, when a transaction bears a reasonable relation to this state and also to another state or nation, the parties may agree that the law either of this state or of such other state or nation shall govern their rights and duties. Failing such agreement, this subtitle applies to transactions bearing an appropriate relation to this state.

Comments 2 and 3 to Ark.Stat.Ann. Section 85-1-105 (Add.1961) (now Ark.Code Ann. Section 4-1-105 (1987)) state:

2. Where there is no agreement as to the governing law, the Act is applicable to any transaction having an "appropriate" relation to any state which enacts it. Of course the Act applies to any transaction which takes place in its entirety in a state which has enacted the Act. But the mere fact that suit is brought in a state does not make it appropriate to apply the substantive law of that state. Cases where a relation to the enacting state is not "appropriate" include, for example, those where the parties have clearly contracted on the basis of some other law, as where the law of the place of contracting and the law of the place of contemplated performance are the same and are contrary to the law under the Code.

3. Where a transaction has significant contacts with a state which has enacted the Act and also with other jurisdictions, the question what relation is "appropriate" is left to judicial decision. In deciding that question, the court is not strictly bound by precedents established in other contexts. Thus a conflict-of-laws decision refusing to apply a purely local statute or rule of law to a particular multistate transaction may not be valid precedent for refusal to apply the Code in an analogous situation. Application of the Code in such circumstances may be justified by its comprehensiveness, by the policy of uniformity, and by the fact that it is in large part a reformulation and restatement of the law merchant and of the understanding of a business community which transcends state and even national boundaries. Compare Global Commerce Corp. v. Clark-Babbitt Industries, Inc., 239 F.2d 716, 719 (2d Cir.1956). In particular, where a transaction is governed in large part by the Code, application of another law to some detail of performance because of an accident of geography may violate the commercial understanding of the parties.

The trial court apparently believed that the transactions in the case at bar were "transactions bearing an appropriate relation to this state." Clearly, there was no agreement by the parties as to which state's law would govern.

In Wallis v. Mrs. Smith's Pie Co., 261 Ark. 622, 550 S.W.2d 453 (1977), the Arkansas Supreme Court was presented with an issue involving the proper choice of law in a tort case resulting from a motor vehicle accident, and the court expressed approval of Dr. Robert Leflar's "choice-influencing considerations," which are: (1) predictability of results; (2) maintenance of interstate and international order; (3) simplification of the judicial task; (4) advancement of the forum's governmental interests; and (5) application of the better rule of law. See also R. Leflar, L. McDougal & R. Felix, American Conflicts Law Section 95, at 279 (4th ed.1986). In Wallis, the supreme court reversed the trial court's application of Missouri's contributory negligence statute, because it found that Arkansas' comparative fault statute is a better rule of law. The supreme court stated:

This State's governmental interest in its citizens is best served by application of our comparative fault statute rather than Missouri's contributory negligence law. As expressed in Clark v. Clark, 107 N.H. 351, 222 A.2d 205 (1966), probably the truest governmental interest the forum has is "in the fair and efficient administration of justice," and in our opinion application of our statute better achieves that result.

261 Ark. at 632, 550 S.W.2d at 458.

Arkansas Code Annotated Section 2-40-101(c) (1987) provides:

Any person who shall bring in, or cause to be brought in, to the state any animal suffering from a contagious or infectious disease or that has been exposed to the contagion or infection of any disease, knowing it to have been so diseased or to have been so exposed, shall be guilty of a misdemeanor. Upon conviction, an offender shall be fined in any sum not to exceed five hundred dollars ($500). He shall, moreover, be liable for damages to others due to infection from the animal.

Thus, it is clear that Arkansas has a state interest in preventing the bringing of diseased livestock into this state.

In the treatise American Conflicts Law, the authors state [S]ome choice-of-law statutes have been intelligently framed, with deliberate and foresighted planning of anticipated consequences. Section 1-105(1) of the Uniform Commercial Code is an example. It reads:

Except as provided hereafter in this section, when a transaction bears a reasonable relation to this state and also to another state or nation the parties may agree that the law either of this state or of such other state or nation shall govern their rights and duties. Failing such agreement this Act applies to transactions bearing an appropriate relation to this state.

Then certain areas of the new law are excepted, and more specific choices of law are laid down for them. The two ideas that are basic to the main part of this enactment are (1) parties should be free to plan their transactions with reference to what relevant law is to govern them, and (2) if they have not so planned a given transaction, the "better law" (which has an appropriate relation...