{ "id": 6648013, "name": "CURTIS COMMUNICATIONS d/b/a KLAZ RADIO v. Ron W. COLLAR", "name_abbreviation": "Curtis Communications v. Collar", "decision_date": "1984-03-07", "docket_number": "CA 83-129", "first_page": "14", "last_page": "18", "citations": [ { "type": "official", "cite": "11 Ark. App. 14" }, { "type": "parallel", "cite": "665 S.W.2d 301" } ], "court": { "name_abbreviation": "Ark. Ct. App.", "id": 13370, "name": "Arkansas Court of Appeals" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "267 Ark. 830", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1719927 ], "weight": 2, "year": 1980, "opinion_index": 0, "case_paths": [ "/ark/267/0830-01" ] }, { "cite": "275 Ark. 400", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1753693 ], "weight": 2, "year": 1982, "opinion_index": 0, "case_paths": [ "/ark/275/0400-01" ] }, { "cite": "265 Ark. 519", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1664712 ], "weight": 2, "year": 1979, "opinion_index": 0, "case_paths": [ "/ark/265/0519-01" ] } ], "analysis": { "cardinality": 387, "char_count": 6020, "ocr_confidence": 0.844, "pagerank": { "raw": 7.728108280744093e-08, "percentile": 0.45441201398228237 }, "sha256": "ca159ad220972ae00571bc7764809d8ef9040a96fcfa7e904309cc0116ba832c", "simhash": "1:637d7701a52e12b2", "word_count": 985 }, "last_updated": "2023-07-14T21:16:17.677907+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Corbin and Glaze, JJ., agree." ], "parties": [ "CURTIS COMMUNICATIONS d/b/a KLAZ RADIO v. Ron W. COLLAR" ], "opinions": [ { "text": "Lawson Cloninger, Judge.\nThis is an action brought to recover sales commissions alleged to be due the appellee, Ron W. Collar, for radio advertisements sold while in the employment of appellant, KLAZ Radio. Appellee was a commission salesperson for appellant from May of 1979 until July 25, 1980, at which time he resigned his position. Appellee was compensated on a commission basis amounting to 15% of his gross sales collected by appellant within 60 days of billing. Appellee brought this suit, alleging that he was also entitled for sales made by him and collected within 60 days of billing, but collected after the effective date of his resignation. Appellant argued that it was their policy to not pay after the effective date of termination of employment regardless of when collections were made.\nA jury trial resulted in a verdict finding the appellee entitled to commissions for collections after his resignation in the amount of $3,500.08 for which judgment was entered. Appellant now brings this appeal.\nIts first point for reversal is that the verdict is contrary to a preponderance of the evidence presented at trial. However, this is not the correct standard from an appeal of a jury verdict. It is only when there is no substantial evidence to support a jury verdict or where fair minded men can only draw a contrary conclusion to that reached by the jury that an appellate court can set aside a jury verdict. B. J. McAdams, Inc. v. Best Refrigerated Express, Inc., 265 Ark. 519, 579 S.W.2d 608 (1979).\nIn the instant case, there was a fact question presented regarding whether or not appellee was entitled to additional compensation. Collar and two other employees of appellant testified that it was their understanding that they would receive commissions if an account was billed and paid within two months, even after termination of employment. Two employees of appellant testified that the company policy had been that a salesman was paid on collections received through his last day of employment. This presented a fact question for the jury and there was substantial evidence to support the verdict.\nAppellant\u2019s second point for reversal is that the instructions to the jury were confusing and erroneous in the statement of law in this case. Specifically, appellant alleges that plaintiff\u2019s jury instruction No. 6 was an erroneous instruction. There is no evidence in the transcript that appellant ever objected to the instruction, or that he proffered his own instruction. No party may assign as error the giving of an instruction unless he objects thereto before or at the time the instruction is given. Arkansas Rules of Civil Procedure, Rule 51. Further, a party\u2019s failure to offer an instruction of his own on the issue precludes him from raising the argument on appeal. Baxter v. Grobmyer Bros. Construction Co., 275 Ark. 400, 631 S.W.2d 265 (1982).\nAppellant\u2019s third point for reversal is that the court erred in failing to instruct the jury on the statutory definition of wages. Appellant asked for an instruction based on Ark. Stat. Ann. \u00a7 81-1103(n) (Supp. 1983) which states in pertinent part:\n'Wages\u2019 means all remuneration paid for personal services including commissions and bonuses and cash value of all remuneration paid, in any medium other than cash and all remuneration paid as \u2018back pay\u2019 in settlement of a claim or grievance involving a discharge. The reasonable cash value of remuneration paid in any medium other than cash shall be estimated and determined in accorance with the rules prescribed by the Director . . .\nAppellant cites no authority for his argument that this should have been included in the instructions to the jury. As appellee points out, this definition of wages is only relevant when used in the text of the Employment Security Act. See Ark. Stat. Ann. \u00a7 81-1103, supra. There is no issue involved in this case which deals with the Employment Security Act. Further, appellant has not shown how he was prejudiced by refusal to give the instruction.\nAppellant\u2019s fourth point for reversal is that the court erred in failing to grant the appellant\u2019s motion for a mistrial on the basis of misconduct of appellee\u2019s attorney. Specifically, appellant argues that it was prejudiced by appellee\u2019s attorney asking the witness, Debbie Gilstrap, if she remembered the radio station being sued on several occasions. Appellant argues that this was an obvious attempt to prejudice the jury against appellant. No authority is cited for this position. It is further argued that the trial judge neglected to instruct the jury to disregard counsel\u2019s prejudicial remarks. However, appellant did not ask the trial judge to admonish the jury. All it requested was a mistrial, which the trial judge refused. The granting of a motion for mistrial is an extreme remedy and has generally been held to be within the province of the trial court. Gustafson v State, 267 Ark. 830, 593 S.W.2d 187 (Ark. App. 1980).\nAppellant\u2019s counsel, on re-direct examination, asked the witness if all employees were treated the same upon termination. On re-cross examination, appellee\u2019s attorney asked if other employees had contended that they were entitled to wages which had not been paid. When the witness stated she could not remember, appellee\u2019s counsel asked, \u201cYou don\u2019t remember the station getting su\u00e9d on several occasions on wages?\u201d Appellant\u2019s counsel objected to the question which was sustained. Although we believe, as the trial judge did, that the question was prejudicial, we hold that he did not abuse his discretion in denying a mistrial, since the witness did not answer the question. Further, appellant\u2019s attorney invited the line of questioning when he asked the witness if all employees were treated the same upon termination.\nAffirmed.\nCorbin and Glaze, JJ., agree.", "type": "majority", "author": "Lawson Cloninger, Judge." } ], "attorneys": [ "David L. Hale, for appellant.", "R. L. Walloch, for appellee." ], "corrections": "", "head_matter": "CURTIS COMMUNICATIONS d/b/a KLAZ RADIO v. Ron W. COLLAR\nCA 83-129\n665 S.W.2d 301\nCourt of Appeals of Arkansas Division I\nOpinion delivered March 7, 1984\nDavid L. Hale, for appellant.\nR. L. Walloch, for appellee." }, "file_name": "0014-01", "first_page_order": 34, "last_page_order": 38 }