*1 v. WELDER’S COCKMAN Eugene Johnnie COMPANY HOME SUPPLY COMPANY INSURANCE 78-326 580 S.W. 2d delivered
Opinion April Banc) (In 29,May [Rehearing 1979.] denied *2 Mattison, & Robinson Richard L. for Pearce appellant. Lovett, Hamlin, P.A., for Tom Forest Lowe & appellees. Holt, Frank when a Appellant, injured grind- Justice. disc he was suit using
ing disintegrated exploded, brought breach of to recover for strict liability, warranty, damages Welder’s, a distributor retail and negligence against appellee discs, Abrasive Gulf States Manufacturing Co., Home Insurance manufacturer. Company, carrier for workmen’s appellant’s compensation employer, Works, suit Benton intervened. The Gulf Crawler to trial and dismissed by agreement States settled prior case, of the At conclusion parties. Welder’s directed verdict was motion granted. erred. hold the court cor- asserts court We Appellant rect. the determination of court’s correctness In directing verdict, inferences take the evidence all reasonable *3 most whom the verdict was favorable party and, directed if there substantial evidence is tending an in it is to take the establish issue of that error favor party, R.R., 256 case from v. R.I. & Pac. Daniels jury. Chicago, v. Ark. 2d 175 The (1974); 511 S.W. Barrentine Henry Co., 206, 179 328 (1915). 120 Ark. S.W. Wrape that, to im- states since the necessary proof on the of strict pose liability theory liability implied same, he will of is warranty essentially merchantability discuss his of in terms strict although evidence liability for evidence breach also demonstrates liability appellee’s of He that he met his of of burden proof warranty. argues demonstrat- a factual issue to strict presenting liability by evidence, a defect in a circumstantial through ing product 250 Ark. S.W. v. GeneralMotors citing Corp., Higgins There, 2d (1971). we did not judicially tort, in in strict recognize theory liability discussing under that burden theory, party’s damages suing said: is that the defec-
In the absence direct proof product flaw or tive because of a inadequate causes the other must design, negate possible plaintiff would not failure of the for which the defendant product be inference in order to a reasonable raise responsible condition existed while the dangerous product still in the control defendant. our strict Subsequently, legislature recognized liability by Ark. Ann. 85-2-318.2 1977), Stat. enacting (Supp. § provides:
A is in product supplier subject damages for harm ato or to if: person property (a) the in the business of manufac- supplier engaged or otherwise dis- turing, assembling, selling, leasing such tributing product;
(b) him ain defective con- product supplied by dition which rendered it unreasonably dangerous; (c) the defective condition was cause of the a proximate harm to or to person property. that he adduced had sufficient evidence
Appellant argues show that the disc was dis- grinding supplied tributor a defective condition which rendered it un- and its reasonably defective condition was the dangerous, cause of his proximate injuries. Welder’s is in the
Appellee business of engaged selling discs other It distributing grinding supplies. disc in supplied employer 1973. From the time of August, appellant’s employer’s disc, of the receipt months to the date of previously, stored, the disc was nail, appellant’s injury, on a hanging *4 an area the in which there no were activities shop would disturb the disc. foreman, to the According who shop was the disc present had not been every day, disturbed the area was to the The foreman had open public. attached the to disc the properly before machine the grinding night use and accident. It appellant’s had not been resulting used it would last previously. Normally, several through days of continuous use before out. was wearing using the had, disc at the time of his properly been us- injury, it for 20 or 30 minutes when ing only it unexpectedly explod- ed. witness, to the According appellant’s expert disintegra- tion was not caused by a malfunction of the grinding machine, and the machine was at a running smoothly speed less than that recommended as the maximum for the disc. He could find that indicated a nothing defect. He that, felt manufacture, sometime after its a defect had been into the disc. injected method Appellee’s transporting to or desirable truck, mot way its was discs, loose in proper concerning the discs. safety All guidelines transport discs, were abrasives, design- including grinding handling bounc- sort shock them from by ed receiving any to prevent to disc would be one another. The subject or into around ing When witness was an blow. pre- if struck impact damage with a containing assumptions sented hypothetical question was evidence, which included that of the recited of a when delivered by in the trailer truck loose transported for 10 months undisturbed the disc had been stored appellee, it from employer, after appellant’s appellee purchase that it would be his was mounted and used properly, opinion sold and delivered by the disc was defective when appellee Welder’s to employer. this to the basis of his opinion, cross-examination
On he that had made report witness admitted previous carrier, intervener, insurance compensation “[i]n or air either the f find conditions with grinder summary, accident,” bas- have caused disc would still This was ed an of the disc examination fragment. upon trial; he able he testified at was not his at the time conclusion it real that was defective to tell the “with certainty jury any 8”; it was it was or when delivered on August [by appellee] to disc his to make determination as why beyond ability his to determine it was also beyond ability exploded; to disc was defective when was delivered appellee a defect since the disc fragmentized, appellant’s employer; time; however, it at occurred some beyond point in- defective condition was to determine ability “with he could he had no information whereby jected; that the disc was form an reasonable certainty” opinion time of manufactured or at the delivery appellee properly a defect “it had appellant’s employer defect;” not “arrive at a did he not have a could finally, whether it conclusion certainty degree or not.” defective [the disc] 'n. v. 221 Ark. Comm. In Ark. State Byars, Highway *5 2d 738 said: (1953), we S.W. a evidence to ver-
Whether there is substantial support fact, a but one of law. Because a of dict question
617 witness testifies as a on his does not to conclusion part him is mean the evidence sub- that necessarily given by stantial, when he a has satisfactory explana- given of tion how he at the conclusion. arrived we “to There reiterated that verdict the evidence support nature, must of be a convincing imparting qualities Scott, 648, reasonable v. See also Sadler 203 Ark. certainty.” 158 (1942); 2d 40 S.W. and St. Southwestern Co. v. Louis Ry. Braswell, 143, 198 637 (1939). Ark. 127 S.W. 2d In v. Kapp 395, 353 2d 5 (1962), SullivanChevrolet 234 Ark. S.W. Company, we reiterated that however “[c]onjecture speculation, cannot be to plausible, permitted supply place proof.” burden of fact issue de- Appellant’s demonstrating his pendent In that upon testimony. expert’s summary witness admitted there his examination nothing with disc any would lead him to conclusion fragment that the disc was defective degree certainty when sold to the It was appellee appellant’s employer. beyond the disc ability say why exploded. Viewing evidence most it appellant’s cannot that favorably, say all to remove the negates asserted possibilities sufficiently issue of from the realm of speculation conjecture so toas entitle him to have the presented question jury. next argues, respect negligence, he adduced sufficient evidence on the issue of proximate causation. We have said that cause must be proximate prov- ed, fact, as a evidence, circumstantial or direct and not by Garner, speculation Co. v. conjecture. SuperiorForwarding 340, 236 366 Ark. 2d 290 In (1963). S.W. an action for the evidence is sufficient to show negligence, cause proximate if the “facts are of such a nature and are so connected proved and related to each other the conclusion therefrom may be inferred.” St. Fran. fairly Louis-San Co. v. Ry. Bishop, Ark. S.W. 2d 383 see also v. (1931); Glidewell Arkhola Co., Sand & Gravel (1948). Here, Ark. 2d 4 S.W. there was evidence that the explosion caused there was no evidence from which appellant’s injuries, be could inferred that action fairly Welder’s was the cause of the disc and proximate exploding evidence as resulting injuries. Appellant’s *6 it from the cause is not sufficient to remove realm
proximate or speculation. conjecture Affirmed.
Byrd dissent. Purtle, JJ., the reasons For Justice, dissenting. Purtle, I. John dissent. I must the respectfully stated in majority opinion on the brothers load overtaken my The work has apparently in this seated themselves have in they Court because opinion bench. box instead on the the jury v. Motors we in General me that stated It Higgins amazes if we had (1971) 2d 898 465 S.W. Ark. Corp., 250 it, then the like this we would strict in case approve 85-2-318.2 Ann. Ark. Stat. General enacted Assembly § we really now 1977) the say to cover subject, (Supp. set has been said The statute what we in didn’t mean Higgins. will interest of the brevity out in the opinion majority not be repeated.
There is supplier dispute injury. caused product Neither is proximately selling supplier engaged disputed was the the defective condition prox- nor that product harm to imate cause of appellant. out an almost case
After against appellee, setting perfect from a decision “to turn around and then quote majority nature, of a support must be a verdict evidence convincing This, contend, I importing qualities certainty.” to decide. jury but I brothers no fault in the law stated by my I find we know about the results reached. All strongly disagree dismissed. There is is that the case was manufacturer of a settlement in the record which having speaks speck this case difference in been It should not make reached. out of the case. the manufacturer Maybe appellant how got was no than them more conjecture thought proof against was to the best single strategy go speculation defendant. found the on which the disc
Appellant’s expert grinder was used to be defective. The testified that foreman *7 shop the disc had been stored and attached to correctly properly witnesses grinder. Appellant’s effectively any negated defect after the disc was delivered The occurring by appellee. testified, as follows: expert eseentially, didI the disc that were examine me. fragments brought 30, 1974, that Cockman on was Assuming May Johnnie at his a when injured disc place employment 9 the disc was a inch exploded; that inch by type /4 disc, 27 which means grinder center type depressed machine; wheel mounted on a that portable grinding disc was unused mounted even before the ac- previously cident; used; that it had not been that it was first utiliz- accident; ed for 20 to 30 minutes on the of the morning that disc was 1973 from a truck purchased August operated Welder’s that the discs were Supply; truck; carried loose on the trailer it that was trans- after it leaves Malvern the Benton ported Crawler Benton; Works in that it was stored after in a purchase storage area of Benton Crawler not Works and was dis- from turbed the time of until day before purchase the accident when it was mounted on the happened machine; it that was mounted attached properly and was used flat the track crawler being dozer type to remove or welding smooth down excess material; it bin; that was not into a that the put grinder did testified, not over-rev as Í have it is previously my the disc was opinion that defective and was defective when sold Welder’s Supply Company.
It is if it was used and so forth my opinion properly and since there was no with the problem grinder, can I derive is that the only disc defective. opinion And that it was defective when delivered Welder’s to Benton Crawler Works. Supply This when considered testimony, with he testimony could find no defect process, clearly manufacturing carries to the and the possible liability supplier purchaser. a case for the witnesses at made
The least purchaser’s disc when testified they jury against appellee testimony of the The while custody purchaser. damaged he hauled driver for the seller by showing also pointed of ma- Any the disc in a manner cause a defect. type likely defect into would inject jor impact probably ser- when into thereby likely explode placed rendering vice or use. brothers
My testimony misinterpret expert’s defect and that he find no he testified could that he in the and further that he could find defect grinder “real that it was defective could certainty” say course, it was he could not when delivered Of say by appellee. *8 such a fool would so to testify when delivered. defective Only found was that he circumstances. All he was under the saying nor in the in the manufacture defect grinder. the It was This two other damaged by left only probabilities: it was had how seller or the He no knowledge purchaser. the for the offered by handled testimony the parties except However, the eliminated witnesses. witnesses purchaser’s before it was stored and handled him how showing exactly use. the we are need not cite authority
I proposition its force the evidence probative supposed give strongest directed verdict. The testimony, a expert’s reviewing alone, seller and created standing jury question named defend- was not a purchaser purchaser worker’s was limited to ant his liability compensa- because tion benefits. evidence, whcch, if believ- offered substantial set in Stat.
ed would meet element out Ark. every jury, Therefore, I ask 85-2-318.2 strict liability. Ann. regarding § it when stated in whether or not we meant Higgins: defec- that the absence of direct In the proof product flaw or tive because of a inadequate the other causes must possible design, negate plaintiff would for which the defendant failure the product inference order to raise be responsible condition existed while the dangerous product was still in the control of the defendant. still holds that even after enact-
Apparently majority ment of the strict still statute may plaintiff recover on circumstantial I evidence. do not so interpret law or the decisions made in the past. reasons, more,
For these I would reverse many remand with directions to allow to decide the fact jury least, at cir- questions, same amount of assuming, cumstantial evidence is at the new trial. presented Byrd,
I am authorized state that me J., joins dissent.
Michael
McGUIRE v.
STATE
Arkansas
Joe