{ "id": 1871220, "name": "BUTLER MANUFACTURING CO. v. Robert M. HUGHES and Patsy HUGHES, his wife", "name_abbreviation": "Butler Manufacturing Co. v. Hughes", "decision_date": "1987-05-18", "docket_number": "86-243", "first_page": "198", "last_page": "206-B", "citations": [ { "type": "official", "cite": "292 Ark. 198" }, { "type": "parallel", "cite": "729 S.W.2d 142" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "252 Ark. 839", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1629979 ], "weight": 2, "year": 1972, "opinion_index": 0, "case_paths": [ "/ark/252/0839-01" ] }, { "cite": "277 Ark. 406", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1750255 ], "weight": 2, "year": 1982, "opinion_index": 0, "case_paths": [ "/ark/277/0406-01" ] }, { "cite": "260 Ark. 287", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1616766 ], "weight": 2, "year": 1976, "opinion_index": 0, "case_paths": [ "/ark/260/0287-01" ] }, { "cite": "552 S.W.2d 125", "category": "reporters:state_regional", "reporter": "S.W.2d", "year": 1977, "opinion_index": 0 }, { "cite": "261 Ark. 831", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1678921 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/ark/261/0831-01" ] }, { "cite": "283 Ark. 92", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1879938 ], "weight": 3, "year": 1984, "opinion_index": 0, "case_paths": [ "/ark/283/0092-01" ] }, { "cite": "268 Ark. 318", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1715471 ], "weight": 2, "year": 1980, "opinion_index": 0, "case_paths": [ "/ark/268/0318-01" ] }, { "cite": "256 Ark. 237", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8719126 ], "weight": 2, "year": 1974, "opinion_index": 0, "case_paths": [ "/ark/256/0237-01" ] }, { "cite": "271 Ark. 750", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1756074 ], "weight": 2, "year": 1981, "opinion_index": 0, "case_paths": [ "/ark/271/0750-01" ] }, { "cite": "627 F.2d 122", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1287915 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/f2d/627/0122-01" ] }, { "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": "284 Ark. 461", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1878692 ], "weight": 2, "year": 1985, "opinion_index": 0, "case_paths": [ "/ark/284/0461-01" ] }, { "cite": "284 Ark. 345", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1878633 ], "weight": 2, "year": 1984, "opinion_index": 0, "case_paths": [ "/ark/284/0345-01" ] }, { "cite": "731 S.W.2d 214", "category": "reporters:state_regional", "reporter": "S.W.2d", "opinion_index": 1 } ], "analysis": { "cardinality": 817, "char_count": 17557, "ocr_confidence": 0.937, "pagerank": { "raw": 3.863560723443198e-07, "percentile": 0.9001447574742775 }, "sha256": "865cbb4e72b26315c06d971529679622965b5e1fdf6ce6c7e6f244af7ad0e06f", "simhash": "1:ad8d896737ccd5b2", "word_count": 2894 }, "last_updated": "2023-07-14T16:51:01.167469+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "BUTLER MANUFACTURING CO. v. Robert M. HUGHES and Patsy HUGHES, his wife" ], "opinions": [ { "text": "Jack Holt, Jr., Chief Justice.\nThe appellee, Robert M. Hughes, a construction worker, was shocked while using a piece of equipment called a \u201croof runner\u201d and fell from the roof where he was working, receiving numerous injuries. Hughes and his wife sued the appellant, Butler Manufacturing Co., (Butler) from whom the machine was leased, under both products liability and negligence theories. The jury awarded the Hugheses $919,163.25 in damages. It is from a judgment based on that verdict that Butler brings this appeal. We find no merit to its arguments and affirm the judgment.\nThe accident occurred on September 21, 1981, while Hughes was working for Hampton & Crain Construction Co. The products liability theory asserted by Hughes was based on the contention that Butler leased the roof runner to Hampton & Crain in a defective condition, in that the restraining device, a rubber grommet, designed to relieve strain on the individual wires inside the machine, was missing when the roof runner was received. The negligence theory was that Butler was negligent in its choice of a quality control system, since their system permitted the roof runner to leave the company in this allegedly defective condition. Butler moved for directed verdicts on both theories which were denied. Butler\u2019s motion for a judgment notwithstanding the verdict was also denied.\nOn appeal, Butler challenges two comments made by the Hugheses\u2019 attorney during closing arguments; claims there was no substantial evidence of a product defect or of negligence; and objects to the court\u2019s jury instruction as to the measure of damages to be awarded for scars and disfigurement suffered by Hughes and to a jury instruction on concurring proximate cause.\n1. CLOSING ARGUMENT.\nThe Hugheses offered the testimony of Thomas H. Collard, Jr., a consulting engineer, as an expert witness about quality control engineering. Collard\u2019s testimony was limited by the judge to a discussion of quality control in a theoretical vein. The court instructed him not to testify specifically about Butler\u2019s quality control system. After this ruling, the following colloquy occurred:\nHugheses\u2019 Attorney: Based on your understanding of the quality control system that existed at Butler, based on your reading Mr. Martin\u2019s deposition, do you have an opinion as to the likelihood of a piece of equipment leaving that operation in a defective condition?\nButler\u2019s Attorney: Your Honor, excuse me. There\u2019s just no way\u2014\nCourt: I\u2019m going to sustain that objection. I think he\u2019s gone about as far as an expert can go with looking at those documents. He\u2019s now testifying specifically at Butler and I\u2019ll sustain that.\nDuring the Hugheses\u2019 closing argument, their attorney made the following comments:\nMr. Collard also tells us, very importantly, that a system of quality control, such as that Butler had, i.e., virtually nonexistent\u2014with such a system it was very likely that a machine might get out of that plant in a defective condition. Okay?\nThe possibility is that they have no quality control procedures at Butler Manufacturing, none of any significance, according to Mr. Collard. I\u2019ve already gone over Mr. Collard\u2019s testimony as to what they should have done, should have had that checklist, should have had some sampling. If they had done that, they possibly would have prevented that device from getting out of Butler Manufacturing in a defective condition, but lacking such quality control, it\u2019s very possible, it\u2019s likely, according to Mr. Collard, that the machine might have left the factory in a defective condition.\nNo objection was made to these statements by Butler\u2019s attorney during the closing arguments. After closing arguments, in a proceeding out of the hearing of the jury, the court heard Butler\u2019s motion for mistrial based on these statements by the Hugheses\u2019 attorney. The court denied the motion, stating:\nWell, under the circumstances, the motion having been made at recess out of the presence of the jury, the Court considered the motion, felt that it was not prejudicial, that I had instructed them that comments of counsel not consistent with the evidence should be disregarded and, therefore, overrule the motion for mistrial.\nA trial judge has wide discretion to control counsel\u2019s argument and to deal with a motion for mistrial, and we do not reverse either decision absent a manifest abuse of that discretion. Wal-Mart Stores, Inc. v. Yarbrough, 284 Ark. 345, 681 S.W.2d 359 (1984); Jim Halsey Co. v. Bonar, 284 Ark. 461, 683 S.W.2d 898 (1985). Likewise, it is settled law that for the trial court to have committed reversible error, timely and accurate objection must have been made, so that the trial court was given the opportunity to correct such error. Gustafson v. State, 267 Ark. 830, 593 S.W.2d 187 (1980). Here, by waiting until after closing arguments when they were out of the presence of the jury to make a motion for mistrial, Butler\u2019s attorney did not give the trial court the opportunity to correct any error committed during the closing argument. By this action, they waived the objection.\nButler cites an Eighth Circuit Court of Appeals holding that counsel may make his objection to closing argument at the end of the argument, before the case is submitted to the jury. Lange v. Schultz, 627 F.2d 122 (8th Cir. 1980). We decline to follow the Eighth Circuit\u2019s position and instead require a timely objection, made at the time the alleged error occurs, so that the trial judge may take such action as is necessary to alleviate any prejudicial effect on the jury.\n2. SUBSTANTIAL EVIDENCE.\nButler next contends that the trial court erred by failing to grant its motion for judgment n.o.v. or its motion for a new trial, since no substantial evidence existed from which a jury could properly find that Butler\u2019s negligence or a defect in the roof runner proximately caused the injuries or damages to the Hugheses.\nWhen the trial court denies a motion for a new trial, this court determines only if the verdict is supported by substantial evidence. Ferrell v. Whittington, 271 Ark. 750, 610 S.W.2d 572 (1981). Likewise, the trial court may enter a judgment n.o.v. if there is no substantial evidence to support the verdict. In testing whether there is any substantial evidence, the evidence and all reasonable inferences deducible therefrom should be viewed in the light most favorable to the party against whom the verdict is sought. If there is any conflict in the evidence, or where the evidence is not in dispute but is in such a state that fair-minded men might draw different conclusions therefrom, it is error to direct a verdict. Westside Motors v. Curtis, 256 Ark. 237, 506 S.W.2d 563 (1974); Haseman v. Union Bank of Mena et al., 268 Ark. 318, 597 S.W.2d 67 (1980).\nWhere there is a conflict in the evidence, the determination by the jury of the issues is conclusive. The fact that this court would have reached a different conclusion will not warrant the setting aside of a verdict based upon conflicting evidence. Stamper v. Aluminum & Zinc Die Cast Co., 283 Ark. 92, 671 S.W.2d 170 (1984). Furthermore, the jury is authorized to believe or disbelieve any testimony and the weight and value to be given to the testimony of expert witnesses is the exclusive province of the jury. Id. On appeal, this court will not disturb the jury\u2019s conclusion unless we can say there is no reasonable probability in favor of appellee\u2019s version, and then only after giving legitimate effect to the presumption in favor of the jury findings. Love v. H.F. Const. Co., 261 Ark. 831, 552 S.W.2d 125 (1977).\nLooking at the evidence in the light most favorable to the Hugheses, testimony as to the allegedly defective condition of the roof runner was as follows. James Crain, a general contractor and owner of Hampton & Crain, testified that they ordered the roof runner when they were \u201cabout ready to put the roof on\u201d the gymnasium they were building. He stated the machine was sent by bus and arrived packed in a molded plastic box with two plastic bands around it. Caldwell Webster, Hampton & Crain\u2019s supervisor on the gymnasium project, testified that Butler representatives never told him not to use the roof runner if the restraining device was missing; that the roof runner was stored in a locked tool shed at night; and that Hughes was shocked twice by the machine. After the first time, Webster testified he noticed that the restraining device was missing. Hughes fell after he received the second shock. Webster then had an electrician check the machine and he found a loose wire. Mike Vail, an employee for Hampton & Crain at the time of the accident, testified that when he was picked up to go to the job site, he saw the roof runner box in the truck and noticed it was still banded the way it was the previous Friday in the shop. He said he noticed when Hughes was shocked the first time that the cord on the machine was wrapped with black electrician\u2019s tape and that the bracket that holds the cord in place was missing. He also testified the wires were loose without the restraining device. Hughes testified he was present when the roof runner was uncrated and at that time he noticed the rubber grommet was missing that holds the cord coming out of the machine in place.\nAs to the cause of the accident, the Hugheses offered the testimony of Robert Newell, an electrical engineer, that if a restraining device is missing on a piece of equipment which is metal-enclosed, an unreasonably dangerous situation exists. Newell stated that in his opinion, the most likely cause of the accident was that the black or hot wire in the roof runner broke and contacted the metal housing of the roof runner and shocked Hughes. Newell said the hot wire apparently broke because the restraining device was missing. Collard further testified that Butler\u2019s quality control system was \u201ca little lax.\u201d\nButler offered testimony that the circuit breaker used was too high and that if a lower amp fuse had been used, the chance of Hughes being shocked would have been greatly reduced. Newell disagreed with this conclusion, however, and said the circuit breaker did not have any direct effect on the shock Hughes received.\nAlthough there were conflicts in testimony, these were properly resolved by the jury. The foregoing testimony offered substantial evidence so as to justify the verdict and the denial of Butler\u2019s motion for new trial.\n3. JURY INSTRUCTION ON DAMAGES.\nButler contends that the court erred by instructing the jury as follows:\nIf you decide for Robert Hughes and/or Patsy Hughes on the question of liability . . . you must then fix the amount of money which will. . . compensate [them] . . .for any of the following seven elements of damages sustained which you find were proximately caused by the fault of Butler Manufacturing Company, Sixth, any scars, disfigurement, and visible results of his injuries.\nButler argues there was no showing of any scars, disfigurement or visible results of the injury in the evidence which would allow the jury to be so instructed.\nWe disagree with Butler\u2019s contention and find that there is sufficient evidence of disfigurement to justify the instruction. Dr. Harold Chakales, the orthopedic surgeon who treated Hughes, testified that Hughes suffered bilateral wrist fractures, which means the \u201cwrist is actually cracked here and knocked upwards and deformed.\u201d Dr. Chakales explained that Hughes had evidence \u201cof healed fractures of his left and right wrist with some collapse of the fractures. And this caused his wrists to be radial deviated and to have some prominence over the distal portion of the wrist.\u201d The doctor also testified that after surgery, cosmetically the wrists looked better because the \u201cbump that sticks out of there following this type of collapse\u201d was gone.\nThe doctor\u2019s explanation that Hughes\u2019s wrists were \u201cdeformed\u201d is sufficient proof of disfigurement and visible results of the injury. Although the wrists were evidently improved cosmetically by the surgery, the doctor did not testify that their appearance was now normal.\nButler argues that in Welter v. Curry, 260 Ark. 287, 539 S.W.2d 264 (1976), this court found scars were not compensable where the testimony did not indicate the scars were disfiguring, discomforting, humiliating, disabling, or normally visible. Butler argues this is the standard by which to judge Hughes\u2019s injuries. In Welter, however, the plaintiffs alleged in their complaint that disfiguring scars had been suffered that would cause that plaintiff humiliation and embarrassment. There was no similar allegation in this complaint and accordingly Hughes did not have to prove his injuries were humiliating. The instruction did require the jury to find disfigurement and visible results of the injury. No error was committed.\n4. JURY INSTRUCTION ON CONCURRING PROXIMATE CAUSE.\nFinally, Butler contends it was error to instruct the jury on concurring proximate cause, AMI Civil 501, in conjunction with instructing them on AMI Civil 503, because it had a tendency to confuse the jurors on the question of whether Hampton & Crain\u2019s negligence could bar the Hugheses\u2019 recovery.\nAMI 502, as read to the jury, stated:\nWhen the negligent acts or omissions of two or more persons work together as proximate causes of damage to another, each of those persons may be found to be liable. This is true regardless of the relative degree of fault between them. If you find that negligence of the defendant proximately caused damage to the plaintiff, it is not a defense that some other person may also have been to blame.\nAMI 503 read:\nIf, following any act or omission of a party, an event intervened which in itself caused any damage, completely independent of the conduct of that party, then his act or omission was not a proximate cause of the damage.\nThese two instructions state the applicable rules of law. This court has explained that negligence of a third party is no defense unless it is the sole proximate cause of the injury, and a plaintiff may recover from the original defendant if that defendant\u2019s negligence was a contributing factor to the injury. W.M. Bashlin Co. v. Smith, 277 Ark. 406, 643 S.W.2d 526 (1982); Gatlin v. Cooper Tire & Rubber Co., 252 Ark. 839, 481 S.W.2d 338 (1972). Under these instructions, the jury could have found Butler and Hampton & Crain negligent, and still returned a verdict for the Hugheses against Butler; they could have found only Butler to be negligent; or they could have found Butler not negligent. AMI 502 states that it is not a defense that some other person may \u201calso\u201d have been to blame. The word \u201calso\u201d indicates that it is no defense for Butler that Hampton & Crain may have been negligent if Butler too was negligent. If the jury felt that Hampton & Crain was solely to blame, AMI 502 did not instruct them to find against Butler. Accordingly, the instructions did not have a tendency to confuse the jurors and there is no merit to Butler\u2019s contention.\nAffirmed.", "type": "majority", "author": "Jack Holt, Jr., Chief Justice." }, { "text": "Supplemental Opinion on Denial of Rehearing\nJune 29, 1987\n731 S.W.2d 214\n1. Trial \u2014 failure to make timely objection to closing argument. \u2014 By not objecting when the statements were made during plaintiff\u2019s closing argument and waiting until after plaintiff\u2019s closing argument to make a motion for mistrial, appellant failed to make a timely objection that would have given the trial court the opportunity to correct any error committed during the closing argument.\n2. Appeal & error \u2014 repetition of argument made on appeal IS AN INAPPROPRIATE SUBJECT FOR PETITION FOR REHEARING. \u2014 A repetition of an argument made on appeal is an inappropriate subject for a petition for rehearing. [Sup. Ct. R. 20(g).]\nPetition for Rehearing; denied.\nJack Holt, Jr., Chief Justice.\nThe appellant, Butler Manufacturing Co., has filed a petition for rehearing based on an alleged error of law and fact in this court\u2019s opinion handed down May 18, 1987. 292 Ark. 198, 729 S.W.2d 142 (1987). In that opinion we explained that Butler had waived its objection to certain statements made during closing argument because they did not make a timely objection. Specifically, we stated: \u201cNo objection was made to these statements by Butler\u2019s attorney during the closing arguments.\u201d Actually, the record reveals that an objection in the form of a motion for mistrial was apparently made after the plaintiff\u2019s closing argument and before Butler\u2019s argument, in a proceeding out of the presence of the jury. This proceeding was not part of the record, but the judge referred to its having taken place elsewhere in the transcript. This error in the opinion does not affect the outcome of Butler\u2019s appeal inasmuch as, by not objecting when the statements were made during plaintiff\u2019s closing argument, Butler still failed to make a timely objection that would have given the trial court the opportunity to correct any error committed during the closing argument.\nButler\u2019s other argument involves the law governing the granting of a new trial and is essentially a repetition of his original argument. It is therefore an inappropriate subject for a petition for rehearing. Sup. Ct. R. 20(g).\nAccordingly, the petition for rehearing is denied.", "type": "rehearing", "author": "Jack Holt, Jr., Chief Justice." } ], "attorneys": [ "Friday, Eldredge & Clark, by: James M. Simpson and H. Charles Gschwend, Jr., for appellant.", "Spencer, Spencer, Depper & Guthrie, for appellees." ], "corrections": "", "head_matter": "BUTLER MANUFACTURING CO. v. Robert M. HUGHES and Patsy HUGHES, his wife\n86-243\n729 S.W.2d 142\nSupreme Court of Arkansas\nOpinion delivered May 18, 1987\n[Supplemental Opinion on Denial of Rehearing June 29, 1987.]\nFriday, Eldredge & Clark, by: James M. Simpson and H. Charles Gschwend, Jr., for appellant.\nSpencer, Spencer, Depper & Guthrie, for appellees." }, "file_name": "0198-01", "first_page_order": 224, "last_page_order": 234 }