Damages resulting from a fire in the home of the appellees, Mr. and Mrs. Lytle Carlton, were the subject of a claim brought against Pamela McDaniel, who is also an appellee, and Carroll Electric Cooperative Corporation (CECC), the appellant. Special verdict forms were submitted to the jury which found CECC liable but not Ms. McDaniel. Damages of $89,500.55, plus costs, were awarded against CECC which urges two points of appeal. First, CECC contends the Trial Court erred in giving an instruction on intervening cause, AMI 503. Second, it contends it is entitled to a new trial due to an inconsistency in the special verdicts returned by the jury. We affirm the judgment.
Mr. and Mrs. Carlton have cross-appealed. They contend the Trial Court erred by directing a verdict in favor of CECC on the issue of punitive damages and that it was error for the Trial Court to provide for interest on the judgment at 8% rather than the 10% required by statute. We hold the Trial Court did not err in directing a verdict on punitive damages. We reverse the decision to allow only 8% interest on the judgment, and we modify the judgment to provide interest at 10%.
At around 8:30 p.m., April 8, 1991, Ms. McDaniel lost control of her car due, according to her testimony, to oncoming headlights which “sort of blinded” her and her perception that the oncoming car was edging toward her lane. Her car left the road and struck a guy wire attached to a power pole owned by CECC and then struck another such pole. The guy wire on the first pole snapped, and the second pole was displaced some two inches at its base. A power outage occurred in the area at that time, apparently due to the tripping of a breaker in a CECC substation.
Shortly thereafter, a “troubleshooting” team, consisting of CECC employees Steve Embry and Terry Peters, was dispatched to the scene of the accident. They observed the poles and found no damage to them. Mr. Embry testified that the guy wire had, upon being broken, flipped up over the feeder line, and that caused the power outage.
After inspecting the poles with flashlights, Mr. Embry and Mr. Peters decided not to replace the guy wire and that it was safe to restore the power to the line served by the pole to which the guy wire had been attached. Some of the details of what happened next are unclear, but it is undisputed that a wire supported by that pole came down at some point and energized a nearby fence. The fence ran close to an LP gas tank outside the Carlton home which was about an eighth of a mile away from the accident scene. Power arced from the fence to the tank and ran from the tank up a pipe to a clothes dryer in the Carlton home. The fire was determined to have begun sometime later at the clothes dryer.
On the morning of April 9, Messrs. Embry and Peters reported the accident and broken guy wire to their supervisor Jim Tevebaugh. Mr. Tevebaugh testified he did not have time to go to the scene until around noon, about which time he heard on radio about a house fire which was occurring. When he arrived he found a broken feeder wire which had touched the fence and burned so it was hanging about six inches above the fence.
Mr. Tevebaugh and his crew replaced the broken feeder wire and then went on down the line to the scene of the accident where they replaced the broken guy wire. Mr. Tevebaugh and experts who also testified explained that in a single phase electrical line, such as the one being discussed, the feeder wire is strung some four feet higher than a neutral wire strung below it on the same poles.
Electrical engineer John G. St. Clair, an expert witness presented by the Carltons, testified that when the car hit the guy wire it pulled the guy wire back and then, when the guy wire broke, the pole was snapped forward. That caused the feeder wire to sag, and to sag further during the night, eventually causing the feeder wire to touch the neutral wire which did not sag as much because it caught on the branches of a tree. He said when the two wires touched it caused “fireworks.” It was his opinion that the guy wire should have been replaced and the remainder of the wire inspected that night prior to restoring power to the line. He concluded CECC had been careless and acted in disregard for human life by restoring power to the line and failing to take those precautions. •
Another electrical engineer, Eric Jackson, presented by CECC, testified that the collision with the guy wire caused a “galloping” in the wires which allowed the feeder wire to touch the neutral wire. That would have caused no breakage at that time but could have merely weakened the core of the feeder wire, and that would not have been apparent to one inspecting it shortly after the accident. The wire could then have broken due to wind or some other physical force in the 13 or 14 hours between the time of the accident and the fire. He disputed the “sag theory” espoused by Mr. St. Clair.
Over the objection of CECC, an instruction based on AMI 503 was given to the jury as follows:
Now, in this case Pamela Jean McDaniel contends and has the burden of proving that following any act or omission on her part an event intervened which in itself caused damage completely independent of her conduct. If you so find, then her act or omission was not a proximate cause of any damage resulting from the intervening event.
The jury was given these special verdict forms:
Do you find from a preponderance of the evidence that there was negligence on the part of Carroll Electric Cooperative Corporation which was a proximate cause of any damages?
Do you find from a preponderance of the evidence that there was negligence on the part of Pamela Jean McDaniel which was a proximate cause of any damages?
If you have answered either Interrogatory No. 1 or Interrogatory No. 2 “yes,” then answer this interrogatory: Using 100% to represent the total responsibility for the occurrence and any injuries and damages resulting from it, apportion the responsibility between the parties whom you have found to be responsible:
A final form asked the jury to assess the amount of damages shown by the preponderance of the evidence to have been suffered by the Carltons.
Nine jurors signed each of the first two forms as well as the fourth. The first one was answered “yes.” The second one was answered “no.” The third form, inquiring about the percentage of liability assigned to Ms. McDaniel and to CECC, was answered “100%” to CECC and “0%” to Ms. McDaniel. It was signed only by the jury foreman. When the Trial Court inquired whether that verdict was unanimous, a juror answered that it was not. The foreman then commented that he thought it unnecessary have the jurors sign that form in view of their responses to the first two forms. The jury was then returned to the jury room so that the third form could be signed by the jurors who agreed to it. It was returned with nine signatures. One of the signatures on the third form was that of Melissa Habermehl. Ms. Habermehl was not one of the nine who had signed the first form. She was thus on record as finding CECC 100% at fault but not as having found CECC negligent and the proximate cause of the damages.
1. Intervening cause
The question presented is whether the evidence justified giving an instruction which allowed the jury to consider whether the negligence it ultimately found on the part of CECC was, in the words of AMI 503, an “event [which] intervened which in itself caused damage completely independent of [Ms. McDaniel’s] conduct,” thus exonerating Ms. McDaniel of any liability.
Section 452 of the Restatement (Second) of Torts (1965), to which we referred in Kelly v. Wiggens,
Where, because of lapse of time or otherwise, the duty to prevent harm to another threatened by the actor’s negligent conduct is found to have shifted from the actor to a third person, the failure of the third person to prevent such harm is a superseding cause.
The Restatement provision and underlying commentaries are not very helpful here as they deal in the question of “duty” and whether it may be shifted entirely from one negligent actor to another. The matter of whether one party or another or more than one has a duty is a question of law for the Trial Court to decide. Lawhon Farm Supply, Inc. v. Hayes,
An electric company is held to a high degree of care in the erection, maintenance, operation, and inspection of its equipment used in the generation and transmission of electricity. Arkansas Power & Light Co. v. McGowan,
In this case, the Trial Court made no decision holding that whatever duty Ms. McDaniel may have had shifted over to CECC. Rather, the question of intervening cause was submitted to the jury on the basis of AMI 503 which requires the jury to determine whether the circumstances were such that the damages to the Carltons were caused by an event which was completely independent of Ms. McDaniel’s actions. The issue submitted to the jury was thus one of causation, not one of duty.
In Larson Machine, Inc. v. Wallace,
In Arkansas Kraft Corp. v. Johnson,
We understand and are sympathetic to CECC’s insistence that the fire in this case would not have happened had the guy wire not been severed by Ms. McDaniel. We are, however, persuaded that the evidence allowed the jury to find that the public, including the Carltons, was out of danger when the electricity went off immediately after the accident. The fire occurred some 14 or 15 hours later. It could have found that no further injury would have occurred had the power not been restored to the line without reattaching the guy wire, and thus that the negligence of CECC was an independent, intervening efficient cause of the damages.
2. Inconsistent special verdicts
Arkansas R. Civ. P. 48 and Ark. Const, art. 2, § 7, require that an other than unanimous verdict be signed by at least nine jurors. The problem here is that the special verdict finding CECC liable was not signed by Ms. Habermehl but the special verdict finding 100% liability on the part of CECC was signed by her. CECC contends this inconsistency entitles it to a new trial.
True enough, Ark. R. Civ. P. 48 provides that all jurors consenting to a verdict which is less than unanimous “shall sign the same.” See Center v. Johnson,
We have some doubt whether CECC has demonstrated any prejudice as a result of the juror having signed the one special verdict but not the other, but we conclude that it waived the right to have the matter considered on appeal by its failure to object at the trial. Ordinarily a party has an obligation to make such an objection before the jury is discharged or the error, if any, is waived. Wal-Mart Stores, Inc. v. Kelton,
Center v. Johnson, supra, is a plurality decision cited by CECC in support of its contention that its failure to question the special verdicts before discharge of the jury did not result in waiver of an issue concerning the verdicts on appeal. In that case, the Trial Court and the jury foreman announced that the verdict had been signed by nine jurors. When the verdict was inspected after the trial, it was discovered that only eight jurors had actually signed. We held that the objection was not waived because the parties had been misled by the announcement and thus had no reason to object.
This case is different. No one was misled by any announcement by the Trial Court. In fact, nine jurors had signed each of the special verdict forms. Not only was neither party misled, both were alerted to some confusion in the process of dealing with the special verdict procedure when it became necessary to return the jury for signatures on the third form. The problem could have been identified prior to the discharge of the jury had the parties simply examined the special verdict forms after they were returned and before the jury was discharged. We hold CECC’s objection on the basis of inconsistency of the special verdicts was waived.
3. Punitive damages
On the cross-appeal, we cannot say the directed verdict in favor of CECC on the Carltons’ claim for punitive damages was error. If any substantial evidence existed tending to establish an issue of fact on the issue, it was error for the trial court to take the case from the jury. Ikani v. Bennett,
An award of punitive damages is justified only where the evidence indicates that the defendant acted wantonly in causing the injury or with such a conscious indifference to the consequences that malice may be inferred. National By-Products, Inc. v. Searcy House Moving Co., Inc.,
4. Interest
The Carltons correctly contend in their second cross-appeal point that it was error for the Trial Court to award interest at 8% per annum on the judgment. Apparently, the judge crossed out the portion of the judgment form that provided that the amount of recovery of the plaintiffs shall bear interest at 10% per annum, and wrote above it the rate of 8%.
Arkansas Code Ann. § 16-65-114 (1987) provides as follows:
(a) Interest on any judgment entered by any court or magistrate on any contract shall bear interest at the rate provided by the contract or ten percent (10%) per annum, whichever is greater, and on any other judgment at ten percent (10%) per annum, but not more than the maximum rate permitted by the Arkansas Constitution, Article 19, Section 13, as amended.
CECC argues that the clear language of the statute indicates that the interest on any judgment is limited by the maximum rate allowable by the Constitution, and for that reason the Trial Court was correct when it assigned an interest rate of 8% per annum.
Article 19, section 13, of the Constitution does not apply to interest on judgments. McElroy v. Grisham,
The judgment is affirmed on appeal and affirmed in part and reversed and modified in part on cross-appeal.