*1
McMICKLE,
Linda
McMickle,
Administratrix of the Estate of Calvin
Deceased
David
&
E.
GRIFFIN
David
06-672
Supreme 5, 2007 delivered Opinion April denied [Rehearing May 17, 2007.] *3 P.A., Houseal, B. Michael for & Easley by: Easley, appellant. Harris, Butler, & Fletcher Phil by: Long, Jr., Hicky, Hicky, Long Brock, and Andrea for appellees/cross-appellants. Brown, McMickle, Linda Robert L. Appellant Justice. McMickle, of the Estate of
Administratix Calvin appeals from an order of in favor of David Griffin summary judgment appellee a a verdict favor judgment following David E. and David Griffin. On Taylor defendants/appellees, appeal, the she raises Because we with her on several of agree multiple points. raised, trial. we reverse and remand for new points facts are On set out McMickle’s these. complaint 9, 1999, 5:55 Calvin McMickel November at approximately p.m., was killed when Chevrolet into the of a his Blazer crashed back 44, Deere 8400 farm tractor Arkansas on State Highway John McMickle, 5.4 miles south of Elaine. to approximately According farm the the tractor too dark on a state Taylor driving slowly without sufficient warn a vehicle highway lighting following the tractor’s She further that had a presence. alleged Taylor plow tractor, attached to the of his rear which masked that any light have been might displayed. in her added was an complaint Taylor employee
of David Griffin at time of the collision and was within acting course and of his as Griffin’s She scope authority agent employee. asserted that and other unknown of Griffin failed to agents remove from tractor so that its could be plow seen by lights driver. further She following Griffin failed to assure complained that the tractor he owned and made available to his used employees that he failed to train and instruct his proper lighting; employees move farm at that he failed to train and equipment roadways night; instruct his for employees regarding legal requirements safely farm and that he failed to properly moving night; instruct equipment his not to attach which would employees conceal equipment tractor’s lights.
McMickle later amended her to add as a Farms complaint Tyler defendant but lawsuit her nonsuited subsequently complaint On October against Griffin then moved for entity. *4 motion, his summary In he that there was judgment. no alleged agency him, or between and and he employer/employee relationship Taylor concluded that there was no of issue material on fact this point. to Attached his motion for was an affidavitin which summary judgment he claimed to have no interest in Farms. He did admit he that Tyler Farms, leased land to but he stated that he was not equipment Tyler an officer of that nor was he officer employee an or stock- entity; holder of of the any that make Farms. also corporations up Tyler Taylor Farms, Griffin, an affidavit that his signed claiming and not was Tyler Farms, Cravens, employer. Taylor’s likewise supervisor Tyler Jerry an affidavitin of Griffin’smotion for signed support summary judgment that Griffin was connected with Farms as claiming an owner. Tyler her In to Griffin’s motion for response summary judgment, McMickle claimed that defense was counsel to extri- attempting cate Griffin from the lawsuit a scheme by using involving sixty-six which his dummy corporations devised in 1993 corporate lawyers to maximize to him but the government that scheme had payments of his farms. She the to do with day-to-day operations
nothing a “material no but that Griffin was that was claimed there question Farms Farms and that the of Tyler employees Tyler participant” was Griffin. Through knew that their employer principal Farms, was assured of receiving Griffin conduit Tyler $2,640,000 claimed. in annual she payments, motion, Also in her summary-judgment response fact alone a that created testimony Taylor’s argued because while an affidavit saying This was Taylor signed question. Griffin, he did for he swore in his that not work previous claimed that he did work for Griffin. McMickle also deposition that other was their Farms claimed Griffin Tyler employees Farms, as boss and that and not Tyler Griffin individually, provided from for a final she As argued apart them. housing point, he was individually vicarious also of Griffin’s liability, allegations case, that the as he for was assuring negligent responsible his tractor he owned and for use employed provided by employees The as statute. circuit court granted by proper lighting required Griffin, the motion as to individually. for summary judgment trial, a The case then went trial. After lengthy jury jury defendants, The found for and Griffin. Taylor jury specifically no and found that there was answered special interrogatories a on the of Calvin McMickle was negligence proximate part that, further found answers cause its jury damages. accident, as at the time of the Griffin’s acting agent The circuit court entered in favor of Taylor employee. judgment and Griffin on October 2005.
I. Violations Statutory For McMickle contends that her first point appeal, circuit court instruct to consider erred refusing jury Those certain violations some evidence statutory negligence. a re- violations include statutory permit requirement, lighting This court has quirement, speed requirement.1 previously when it is a noted that entitled to a instruction party “[a] law, there is in the correct statement of some basis evidence instruction.” Inc. Byme, Ivy, giving support *5 1 Though from the relevant McMickle’s not directly statutory quoted provisions, discussed in are based on the instructions that are proffered appeal pertinent provisions — 27-36-219, 27-36-204, 27-35-210, the statutes discussed herein 27-51- §§ namely 208.
323
463,
451,
229,
Ark.
court
S.W.3d
This
will
(2006).
reverse a trial court’s
refusal to
instruction
give
proffered
where there was an abuse of discretion.
This
See id.
court reviews
novo,
issues
de
because it is for this
statutory
court
interpretation
See,
to determine
the
of a statute.
Great Lakes
meaning
e.g.,
Bruner,
Chemical
Ark.
intent the Wardv. 361 Ark. legislature. S.W.3d767 Co., ArkansasTobacco Bd. (2005); Control v.Santa Fe Tobacco Natural Inc., 32, 199 (2004). S.W.3d 656 the Where ofa language statute is plain we determine unambiguous, intent legislative from the ordinary of the used. In meaning language Id. consider statute, reads, the ing of a we construe meaning it asit just giving words their ordinary and usually in accepted meaning common void, Id. We language. construe the statute no so that word left we superfluous insignificant, give meaning and effectto every statute, word in if Id. possible.
Id. at
a. Permit Requirement first to the circuit court’s with points ruling regard for farm tractors. That permit relevant requirement statute reads in part: (a) No vehicle operated of this state shall upon highways width, load,
have a total outside unladen or with in excess of one (102") hundred two inches certain devices excluding safety as state, designated by unless a width is greater by authorized special issued permit by competent authority in provided 27-35-210. § Ark. Code Ann. 27-35-206(a) (Repl. 2004) added). (emphasis § Two additional are statutes touched on parties First, 27-35-210, connection with a codi- necessary permit. § statute, fication of a 1955 provides, pertinent part: It shall be
(a)(2)(A) necessary to obtain a nor permit for shall it be unlawful move any vehicle in excess of machinery maximum width which is prescribed 27-35-206 used for normal as, to, such but not purposes only limited hay harvesting farm tractors, bulldozers, combines, etc., equipment, plows, where: *6 resources as a natural vehicle licensed It is hauled on a
(i) vehicle; a farm machinery being transported by vehicle is
(ii) The or of delivery a making dealer or repairman machinery equipment farm of the purchaser; used or equipment machinery new or or used a making pick machinery being The vehicle or is
(iii) farm from the of machinery equipment and the farm delivery up and for repairs a farm dealer or repair person to a of shop equipment farm; return to within a hours duringdaylight The movement is (iv) performed of thereof and no (50) origin part miles of fifty point radius of a and known as part is any highway designated the movement upon or any fully interstate and defense system highways of the national facility. accesshighway controlled - 2004) 27-35-210(a)(2)(A)(i) (iv) (Repl. (empha- Ark. Code Ann. § sis added). a different also a statute in subchapter,
The debate parties which provides: size, subchapter weight,
The of this governing provisions fire road or to machinery, imple- load shall apply apparatus, tractors, moved temporarily farm husbandry, including ments of vehicle under terms of operated special to a highway, upon as in this issued permit provided subchapter.
Ark. Code Ann. 27-35-102 (Repl. 2004). § that, 27-35-102 contradicts to the extent McMickle argues § 27-35-210, the latter controls
the more limited exemption cites further to an General the later-enacted statute. She Attorney the law on the subject which summarizes supports Opinion course, are not her contention. General Attorney Opinions, court. binding authority this court of a statute
On the issue by implication, repeal said: has a more statute of a nature does not general repeal specific
A statute
two.
is a
conflict between the
unless there
irreconcilable
plain,
Robinson,
Patrick
(1980);
v.
Ark.
27-35-210 is irreconcilable and results in a repeal by implication 27-35-102 for of farm tractors on purposes at § traveling highways That is because the night. General took Assembly clearly up matter of subject for farm tractors permits anew in the more current statute.2 We further hold that McMickle was entitled to an instruction based on 27-35-210. We reverse and remand on this § point.
b. Lighting Requirement The second violation statutory on challenged appeal regards lighting for farm requirements under equipment code. Mc- Mickle proffered instructions that the consider failure to with certain comply statutory as some lighting evi- requirements dence of Her instructions negligence. were based substantially statute, which following provides, pertinent part: (d)(1) farm Every tractor and every unit of farm self-propelled or equipment implement husbandry with an equipped electric shall,
lighting at system 27-36-204, all times mentioned in be § 2 Section 27-35-210 was enacted Act 98 of 1955, whereas 27-35-102 by was enacted § Act 300 of 1937. head lamps multiple-beam (2) with two single-beam equipped 27-36-212 and of 27-36-210 meeting requirements § § of not less from a distance lighted visible when one red (1) lamp least the rear. feet (500') five hundred than towed farm equip- farm tractor and combination (e) Every an electric with of husbandry equipped ment or towed implement be mentioned in 27-36-204 at all times shall system lighting as follows: with lamps equipped of hus- farm or implement towed unit of (2) equipment (2) two be with the combination shall equipped element of bandry not less than five from a distance of when lighted red visible lamps *8 alternative, or, (2) red an two the rear as (500') hundred feet to (600') feet within six hundred from all distances reflectors visible in front of lawful directly the rear when (100') feet one hundred of head lamps. beams upper with a lamp also be equipped combinations shall These
(3) of color between or shade a white or amber light, displaying amber, not less from a distance of when lighted white and visible to the rear. (500') five hundred feet than shall be in this section and reflectors (f)(1) required The lamps rear, as nearly front and as practicable, as to show from so positioned them on the side of the vehicle carrying the extreme of projection the vehicle. the used roadway passing tractor, farm whether or a unit of (2) equipment, If a farm towed, or more or (2) lamps with two or is equipped self-propelled or more (2) lamps the front or two reflectors visible from rear, be so or reflectors shall from the lamps reflectors visible to the left and to the both that the extreme projections positioned indicated as as nearly practicable. of the vehicle shall be right - - 2004). (2) (e)(2) (3) (f)(1) (Repl. Ann. 27-36-219 Ark. Code § her refused to that the circuit court give McMickle contends statute because it con- on the abovementioned instruction based hitch to a tractor that a attached three-point cluded plow farm a “towed unit equipment implement not of its own. not have wheels because does plow husbandry” that, circuit court’s ruling, contrary McMickle urges in her a unit is “towed” only, 27-36-219 does say § words, when around on wheels.” She cites to Webster’s “rolling which she defines “tow” as “to draw or Dictionary, says pull behind.” See Meriam Webster’s available at along Dictionary, She further claims that to http://www.m-w.com/dictionary/tow. conclude attached to the back of a tractor must have equipment when the farm statutorily has required lighting only equipment wheels defies common sense and an absurd result yields contrary See, this court’s decisions. Nat’l Centers, Home Inc. First e.g., Bank, Arkansas Valley S.W.3d 60 (2006) (noting that this court will not a statute to an absurd result interpret yield that defies common sense).
McMickle further asserts that when the General Assembly statute, enacted the it was concerned about the lighting traveling and about the public motorists like ability Calvin McMickle to see a concerned, hazardous situation. It was not she maintains with whether a again, farm piece has wheels. equipment McMickle also notes that late in the deliberations in the jury’s case, instant sent a note to the circuit jury court that requested proper guidance “Is there a law about lighting, asking: lighting on the claims, result, plow?” that the circuit court’s failure to instruct the on the for lighting requirements tractor and to her case. plow devastating and Griffin First, with several respond arguments. they 27-36-219 argue in terms of farm speaks only vehicles § with certain being and not that equipped lighting lamps actually Second, be lighted. that under they argue 27-36-219(e), with an phrase electric “equipped does not lighting system” *9 “combination of farm modify tractor and towed farm equipment” due to the absence Third, of a comma. contend that the they plow in this case was attached to the tractor hitch and by three-point not “towed” for 27-36-219. purposes claim that Finally, they of§ subsections (e) and (f) 27-36-219 are abstract statements of the § law and have no to the facts of this case. relationship Specifically, contend that there they is no evidence that Calvin McMickle tractor, to avoid the attempted which means the presence reflectors on the left hand of the would projections be plow irrelevant. This court has already this acknowledged opinion that we review issues of construction de novo statutory and that we look of a statute in plain language determining legislative intent. See GreatLakes that, Chemical We Corp., supra. acknowledge in common “towed” parlance, generally suggests being pulled case, however, the was In the instant plow or fashion.
some form Be that hitch on a crossbar. attached to the tractor by three-point mandate of 27-36-219 require read the clear as it we may, § Indeed, visible to the of the tractor. lights to the rear be visible lights combination, tractor, vehicle are men- or farm rear of the farm intent, the statute. nine times in Legislative no less than tioned on the that there be lighting is clear and unmistakable accordingly, that an this statute to say To read rear of this farm equipment. is could block the tractor’s lighting without attached lighting plow that this court will and one and absurd a nonsensical interpretation Inc., Centers, hold that We not make. See Nat’l Home supra. visible from on a farm tractor 27-36-219 requires lighting § its discretion in The circuit court abused rear of that tractor. whether 27-36-219 was instructed on to be allowing § whether, so, some evi- that violation constituted if violated and remand on this We reverse point. dence of negligence. c. Requirement Speed erred in that the circuit court next maintains slow her instruction regarding speed.
refusing give proffered reads: The relevant statutory provision vehicleat such a slowspeed No shalldrivea motor (a) person traffic reasonablemovementof except asto the normaland impede or in forsafe necessary operation compliance when reduced speed with the law. 1994). Annotated 27-51-208(a)
Arkansas Code (Repl. that the evidence showed McMickle notes limit after dark when miles hour under speed driving forty per further the back of the She her husband crashed into plow. there were two himself that Taylor acknowledged emphasizes avoid alternate he could have taken to driving routes Thus, the reduced was not neces- she asserts that speed highway. with the farm tractor or in for the safe compliance sary operation the law. Hooten v. McMickle relies on For her case authority, DeJar case,
nett, In that court 376 S.W.2d (1964). instruction did not err in held that the trial court giving appellee’s “ 5A, shall drive a motor ‘No number which person provided: the normal and reason a slow as to vehicle such impede speed *10 when reduced is necessary movement of traffic speed able except ” Hooten, 237 Ark. in with law.’ for safe compliance operation on Arkansas 274. That instruction was based 376 S.W.2d at Annotated entitled ‘Minimum 75-604(a) 1963), Statutes (Supp. which is now codified as 27-51-208(a). Speed Regulation,’ Hooten, this court that such an a tractor-driver in urged appellant, or was not instruction was an abstract statement of law involved one evidence because the collision only responsive tractor and one automobile with no other vehicles involved. being nonetheless, Hooten, that the
This court observed appel- lant testified that he was fourteen miles traveling approximately hour and that the testified that his was per appellee speed approxi- he miles hour at the time first observed the mately fifty per about ahead of him. This court also appellant twenty-five steps observed that the admitted that he was familiar with the appellant traveled, road and knew it was that the testified heavily appellee that there was traffic at the time that made it oncoming impossible for him to and that the admitted that pass appellant, appellant had the center would have to cross line to him. appellee pass court, This as a final referred to the of two point, testimony witnesses who had almost driven into the rear of the appellant’s tractor before the accident and to the fact that the appellee’s shoulder was sixteen feet wide at the scene of the accident. Based facts, on all these we held in Hootenthat the instruction given was jury proper. and Griffin Hootenon its facts. Taylor distinguish They point case,
out that in the instant one-half of the tractor was on the accident, shoulder of the road at the time of the where none of the tractor in Hootenwas on the shoulder. also note that in the They case, instant there was no traffic and no proof oncoming proof that Calvin McMickle around the tractor or go attempted apply his brakes. state that the shoulder in this case was Finally, they four feet wide. Because contend that the instruction at issue they does not bear on the issue of causation and that the proximate law, instruction in this case is an abstract statement of the they that this court affirm the circuit court on this issue. request
The Hooten case does have facts that are not present Nevertheless, noted, the instant case. previously party entitled ato instruction that is a correct statement of the law so as there is some basis the evidence to long giving support Inc., instruction. See The evidence was that Byme, supra. presented was miles hour under the limit at Taylor driving forty per speed case, We conclude that under the facts of this there is some night. evidence that at a slow in violation of the driving speed *11 and, thus, in the to
statute there is “some basis evidence support the instruction” on slow Id. at 241 S.W.3d giving speed. short, In whether violated is a 27-51-208(a) 239. Taylor jury § McMickle was entitled to the instruction based Because question. the circuit court abused its discretion in on 27-51-208(a), failing the circuit to instruct on this law. We reverse court on this point.
II. SummaryJudgmentfor Griffin For her second on that the McMickle argues point appeal, circuit court erred that Griffin breached no duty concluding owed to Calvin McMickle as a matter of law and by granting in his favor on the claim. summary judgment direct-negligence McMickle that the left summary explains judgment respon- deat claim for trial based on the Griffin against superior employer- with and She employee relationship Taylor Taylor’s negligence. out that she that Griffin was liable for to points argued failing the farm maintain tractor used inspect for properly by Taylor to instruct on safe of that machin- failing operation ery.
At the summary-judgment stage, argued Griffin had a to instruct and like duty supervise employees Taylor. She also uncommon for his out on testified that it Griffin was not points appeal to be on the road at In equipment night. addition, Griffin testified that there were no safety meetings discussions the movement of the tractor at regarding night. tractor,
McMickle further contends that as the owner of Griffin had a to ensure that it was not driven or moved on duty any in an unsafe condition. states that She Griffin leased the highway tractor and Farms, that was set plow Tyler partnership up by Griffin, directors, with his in order to employees acting comply with federal farm to Mc- regulations regarding grants. According Mickle, structure, Griffin remained despite corporate Taylor’s principal. She next 5.2 of the leasebetween Griffin points Paragraph wreck, Farmsfor the farm tractor involved in the which Tyler Griffin’s for modification to the
specificallyrequired approval evidence, tractor or tractor There was also she that the plow. emphasizes, altered the leasehold. wiring significantly during Tay- testified, addition, lor that certain tractor had been lights sum, McMickle, for six to weeks. In inoperable eight according Griffin breached his to maintain his tractor and duty plow properly for for which he knew would be used. purposes they v. Ballentine McMickle relies on Brooks Trucking,
For support, Inc., she claims this where (1966), 408 S.W.2d from that a lessor was insulated liability court the theory rejected that a *12 adduces Brooksfor the leasing a lease. She proposition by when there is no is entitled to a directed verdict only company evidence of Here, the actual on the of negligence leasing company. part however, McMickle, there evidence of to was according in this case. at the Griffin summary-judgment stage negligence by the without cites that Griffin lights She purchased plow proof mentioned, evidence, and the mounted reflectors already properly and were to be used at that he knew that the tractor going plow favor, in her She concludes that all the evidence night. construing material fact as to whether Griffin there were issues of genuine actual to instruct his committed failing employees negligence and and in to maintain his agents failing equipment. the facts in Griffin
Taylor argue following undisputed the tractor and were new Griffin in response: plow purchased by Farms; and delivered in the tractor new condition to Tyler had been in the of Farms since that time Tyler plow possession Griffin; to a lease between Farms and agreement Tyler pursuant the lease other agreement Tyler provided, among things, Farms was to and maintain the at its sole cost and keep equipment Griffin did not make to the tractor or expense; any changes plow time; Farms maintained the from the date Tyler equipment claim, it was received new to the lease. pursuant equipment They furthermore, that the issue of whether Griffin owed to duty Calvin McMickle was a and not the law one for question jury. Because the lease contract in this case the placed obligation Farms, maintain the tractor and on plow Tyler they argue there was no on Griffin’s in favor of the duty part general public. standard of review for has been
Our summary judgment often stated: review,
On
we determine if
appellate
summary judgment
based on whether the
items
appropriate
evidentiary
presented by
of the motion leave a material fact
moving party
support
Picado,
(2002).
unanswered.
v.
349 Ark.
5.2 Farms shallnot Tyler modify, improve Equip- ment without the consent of David prior Brooks Griffin. All repairs, item replacements, improvements any of Equipment kind, of whatever nature or shall become description immediately of David Brooks Griffin. property The fact Griffin’s involvement in question modifi- surrounding cations made to the tractor and/or is clear from 5.2. plow
We conclude that there are issues of material genuine fact Griffin’s actual and we reverse the surrounding negligence, summary judgment.
III. Photographs McMickle next asserts that the circuit court abused its discretion in 113 into evidence that did admitting photographs circumstances that were picture similar to the circum- substantially stances Calvin McMickle’s death. McMickle surrounding explains
333 were taken three the defendants offered that the by photographs did not recreation and that their the collision staged after years the accident. Accord- reflect the conditions night accurately and, McMickle, irrelevant were these photographs ing value, that value was substan- extent that had any they probative to McMickle. of unfair danger prejudice tially outweighed to recur on issues are and the other likely Because this issue ensuing Inc., Foods, 326 retrial, v. Harvest we address them. See Pennington 347, Bruns, Ark. 704, Bruns v. 485 (1996); Ark. S.W.2d 691 (1986). 719 S.W.2d
There were two sets of by Taylor photographs presented that the Griffin, 113 in number. explains totaling on instruc- based his reconstruction photographs photographer at trial She nobody tions from attorneys. complains appellees’ admitted into evidence fairly testified the photographs the scene at the time of the accident. She accurately portrayed de- that neither set of accurately further maintains photographs time the accident based on the the circumstances at the picted this court’s McMickle cites testimony eyewitnesses. opinion Revels, v. 311 Ark. 841 S.W.2d Rich MountainElectric Inc. Co-op, where this court held that a trial court (1992), authority, taken a after abused its discretion year by admitting photographs the accident in question. Revels, court laid out our standard of review for the
In
admission
post-accident photographs:
discretion,
of evidenceiswithin the trial court’s
relevancy
to reversal
if an
of discretionis demonstrated.
abuse
subject
State,
v.
(1991);
815 S.W.2d947
Turner
Bradford
Lamitina,
Fisher,
*14
361, 761
v.
(1988);
297Ark.
S.W.2d929
Ryker
177,
for
(1987).
Ark.
Id. at 841 S.W.2d 154. Relevant the fact that is of to make existence “having any tendency determination of the action more or less consequence probable be without the evidence.” Ark. R. Evid. 401 than it would probable (2007). Revels, trees
In this court noted that growing photographs after the incident in did not near lines a depict power year question the which the or the tree that was blown into lines site power that, caused the at issue. Because of court this held power outage that those did not the fairly photographs correctly depict and, thus, at situation issue were not of the issue of they probative whether the failed to clean a situation after a power company up storm and restore for the This court power poultry growers. concluded that the trial court erred in the into accepting pictures evidence, but this court also held that the error did not justify reversal the because court had based its on the failure to ruling the cause of the rather than pursue on the outage diligently, photographs. Co., McMickle relies on Carter v. Missouri Railroad Pacific 278,
Ark.
Carter,
reenact the original
the essential
happening,
elements of the
be
experiment must
similarto those
substantially
at the
existing
time of the accident. Hubbardv.
Power
McDonough
Equipment,
272,
887,
83 Ill.App.3d
38 Ill.Dec.
excluded. See 224, v. International Wagner 611 F.2d 233 908, 910 Co., (8th F.2d B.F. Collinsv. Goodrich Cir.1979); (8th Cir.1977). Carr v. 281-82, at 315-16
Carter, 681 S.W.2d (quoting Ark. at 3-4, Co., 365 (1983)). 655 S.W.2d Motor Suzuki hand, the circuit court at McMickle urges In the case different lighting all the showing erred when it allowed pictures into evi- and different tractor-lighting configurations conditions these in all that the conditions carte blanche. She asserts dence to the scene be similar cannot substantially different photographs the that the the collision. She adds depicted the time of pictures substan- circumstances that were under tractor lights operation described the to the circumstances by eyewitnesses. dissimilar tially a result that arose as contends that the unfair She further prejudice different sets of two photographs, of the seeing completely jury’s situation, out- the far neither of which accurately represented understand the facts usefulness to the to better jury weighed the trial court’s court should reverse the case. She claims that this these into evidence. decision to admit photographs at trial was in and answer that the Griffin testimony Taylor at a time when conflict as to whether the accident took lights place to be on and on the tractor were or were operating. required testified that the tractor note that there were witnesses who They in that the tractor had various combinations of lighting: question rear; that the tractor had one white on had no light lights rear; and two amber that the tractor had four white lights rear; two that the tractor had two white flashers on lights Further, rear; seen. on the and that two flashers were flashers Williams, Dr. testified that the McMickle’s Larry lights expert, McMickle for him to be were not a sufficient Calvin warning collision, that of the have able to before the some might lights stop obscured, and that one would not be able to tell where been were located relation highway. lights incident, Adrian who State Ray, investigated Trooper could be seen to Dr. Williams that the lights testified contrast Moreover, and Griffin from a distance of 300 or 400 yards. at trial reflect that McMickle introduced photographs emphasize like the rear no what the tractor looked from with lights ing these showed synthesis, using photographs computerized tractor in from to demonstrate a vehicle question approaching Mindful of the conflicts in the rear with no on' the tractor. lights and to rebut the imaging computer testimony used photographs and Griffin’s witness, Patterson, McMickle, Ken Taylor’s *16 took 113 the tractor on the photographs depicted highway where the accident occurred with all of the combinations possible no at all. daylight were lights, including lights pictures taken at different distances and at different times of the with day, some taken at dark and some around dusk. and Griffin also declare that
Taylor the conflict in given and the fact that McMickle testimony introduced only pictures rear, the tractor with no on in the the circuit court was well lights within its discretion in that the ruling were appellees’ photographs relevant, foundation subject for their introduc- laying proper tion. assert that laid a They foundation for the they proper pictures based on the evidence: the in that following area had not highway the tractor and changed; were the plow actual photographed accident; involved in the equipment tractor and were plow both reflect configured what looked like accurately on the they accident; of the the tractor and night were located on the plow in the same collision; location as at the highway time of the Ken Patterson testified that the were fair photographs representations the scene and that they tractor and fairly he depicted plow; took distances and at pictures varying various there light settings; was to distort the and the nothing were pictures any way photos an accurate of what the human could portrayal see. eye actually and Griffin underscore that one of the issues in major this case was whether the tractor was visible Calvin McMickle in advance of the collision sufficiently for him to have avoided the them, collision. their According were relevant to photographs determination, that without these they argue pictures, would have been shown jury what the only tractor looked like rear, with no at all on the lights in the portrayed photographs offered McMickle. computer synthesis conclude that the They aided the photographs understanding testi- conflicting mony. The time of the available, accident and the daylight course, is a matter of between the great Neverthe- dispute parties.
less, introduction of must be tied to a wit- photographs specific ness’s about Moreover, circumstances and testimony time of day. we are of the fact that the sheer cognizant number of the photo- introduced at trial graphs have the may to confuse and tendency overwhelm a jury.
While we understand the circuit court’s that ruling were to counteract photographs McMickle’s necessary own evidence, a photographic foundation was proper before required means into evidence. That could admitted be each photograph that each testifying photograph witness was necessary, foundation but the accident of the scene of a fair representation the time of circumstances at similar to the substantially also was Cravens, in the field and the co-workers Jerry accident. Taylor, *17 but that too dark in Exhibit were that the testified photographs accident. Only the time of of the day in Exhibit 5 those depicted certain, other the that for because would have known Taylor left on at the when Taylor testified to the conditions witnesses field We are after the accident. or conditions immediately his tractor for the witness that is the only not holding Taylor appropriate be a must we are foundation but holding proper photographs, conclude We in instance every laid every regarding photograph. laid for each foundation was not to the extent proper this, too, reversible constituted error. photograph,
IV Statute Wrongful-Death Next, erred whether the circuit court we address the issue of of statute recovery in that the allowing ruling wrongful-death the does not loss-of-life damages apply retroactively. Specifically, the is whether 2001 amendment the wrongful-death issue life is or remedial to allow for loss of statute damages procedural that can be to Mc- retroactively. According legislation applied Mickle, Anno- Act 1516 of now codified Arkansas Code which the loss-of-life tated 16-62-101 added 2005), (Repl. § of added an element already provision, merely damages create cause of action and did not new substantive existing create or disturb vested new rights, obligations. rights, however, claim, that Act 1516 of 2001 Griffin life new in to claim for loss of creates a right damages for loss and creates a new on their obligation part damages pay as to life. that McMickle to offer sought of They proof emphasize $3.1 Dollars. loss-of-life the amount Million damages statute referred to The death wrongful provides: another, an (a)(1) For doneto wrongs person property be and the action wrongdoer, may action maintained may against or, death, after his or by be his or her broughtby injured person or, executor or after against her administrator wrongdoer of the the executoror administrator deathof wrongdoer,against in all as manner with likeeffect wrongdoer, respects same actionsfounded on contracts. of this shall be so
(2) (a)(1) subdivision section Nothing construed to extend its to actions of or libel. slander provisions In addition to all
(b) by other elements damages provided law,a decedent’s estate for the loss of life may recover decedent’s anas element of independent damages.
Ark. Code Ann. 16-62-101 2005). (Repl. included in subsection was added Act (b) language 2001. retroactive this court has Regarding application,
said:
Our rule on this could be more point clear. Retroactivity otherwise, is a matter of it intent. Unless states legislative expressly we for its presume legislature intends laws to apply only prospectively.
However, rule does not to or ordinarily apply procedural remedial The strict legislation. rule of construction not apply does to remedial statutes which do not disturb vested or create rights, new only but a or more obligations, supply new appropriate remedy to enforce an or existing right Procedural is obligation. legislation more often retroactive given The cardinal for application. principle remedial the construing legislation is for courts to give appropriate enactment, to the which its regard the mischief spirit promoted abolished, addition, to be and the sought remedy In we proposed. statutes, have retroactive of approved civil application especially those the fiscalaffairsof concerning For we government. example, held that the State can taxes. United retroactively impose The States Court has alsosaid can be Supreme taxes retroactively applied. 286, 296-97, Bean v. 9 Child Support Enforcement, Office of 520, S.W.3d 526 (2000) (internal citations omitted). This court has said: also
Although distinction between remedial procedures impair- draw, ment of vested to often difficult it rights has becomefirmly establishedthat is no there vested right anyparticularmode procedure of create, diminish, or Statutes which do remedy. or enlarge, destroy contractual vested but relate rights, to remedies or only modes of are not within the procedure, general mle retro- against
339
words,
changes
statutes effecting
In other
operation.
spective
application,
have valid retrospective
or remedy may
civil procedure
guar-
constitutional
without violating
remedial legislation may,
which
antees,
causes of action
to suits on
be construed ...
to apply
which
the statute ... A statute
date of
effective
arose prior
remedy,
an
remedy, enlarges
existing
a new
merely provides
.
. .
unconstitutionally retrospective.
a
is not
remedy
substitutes
412,
Inc.,
403,
Loislaw.com,
183
v.
Ark.
Inc.
JurisDictionUSA,
560,
added)
Padgett
565-66 (2004)
(quoting
S.W.3d
(emphasis
2d
Am.
Haston,
16A
(1983)
Ark.
V. Agency contends her fifth and final For appeal, point her She circuit court erred that limiting proof agency. the circuit court have allowed should specifically, complains, Farms, her introduce evidence to show Tyler makeup Farms, and Farms how oper- Griffin’s relationship Tyler Tyler show, for have been ated. She asserts she should permitted Farms, one thing, Tyler partnership, comprised entities, all of which were formed corporate sixty-six separate because she names of Griffin’s She maintains that employees. *19 evidence, to was not allowed introduce this she was precluded character of the Farms from the true demonstrating opera- Tyler between an tion to or agency employment relationship prove Griffin and Taylor. to the has announced the with
This court following respect of agency: question an the evidence to the nature and extent of agent’s
When as conflict, is in it is a of fact for the fact-finder. authority question 366, S.W.2d MobileHome v. 255 Ark. 500 Chyrchel, Southland Corp. circumstances, and An be established (1973). 778 can agency is admissible. Id. agency evidence to establish any tending 340 231, Inc., 239, Studio, 341 Telecomms.,
Found. Inc. v. Moe Ark. 531, 537 S.W.3d (2000). said
We have also that “courts will ignore corporate of a it.” v. form where fairness demands subsidiary Woodyard Co., 94, 99, 13, Insurance 268 Ark. Arkansas 594 S.W.2d Diversified This “where it to is done is (1980). usually prevent necessary is a tool of where mere wrongdoing subsidiary parent.” Id.
Because the evidence of the nature Taylor’s case, Griffin’s was in should conflict this court relationship have allowed evidence to establish any tending agency employ ment to be It admitted. seems evidence show tending that Griffin was in control of Farms and/or actually Tyler Farms would sixty-six corporations comprise Tyler certainly be relevant to the of his This question relationship Taylor. case, is as this there was question disputed conflicting testimony from for as to whether he for Taylor, worked example, actually evidence, at the of the Griffin time accident. By allowing the circuit court abused its discretion.
VI. Cross-Appeal Griffin, On as cross-appeal, Taylor appellees/cross- assert that the court circuit erred their appellants, denying motion for verdict directed on behalf of Griffin there no sufficient evidence be- any employee/employer relationship them, tween and Griffin. at trial was Taylor According proof Griffin, but, clear was not an Taylor employee agent rather, that worked for Farms. Tyler This court’s standard of review for a to circuit challenge court’s denial of a motion for directed verdict as follows:
A directed is a verdict motion of the challenge sufficiency evidence, and when of a reviewing denial motion for directed verdict, we determine whether the verdict jury’s was supported by Evans, substantial evidence. The Bank Eureka Springs 438, S.W.3d 681 (2003). We have defined substan- tial evidence as follows:
Substantial evidence is defined as evidence of force sufficient and character to other way conclusion one or the with compel it reasonable and must force the mind certainty to pass beyond
341 v. Cas.Ins.Co. Auto State Property or conjecture. mere suspicion Quinn, Barnes, 49, (1999); S.W.2d 555 Ark. 991 338 Swaim[,] 240, 848 Rankins, S.W2d 924 Ark. Anderson, 312 Inc.v. Flake & evidence, we of the the sufficiency determining When (1993). there arising inferences reasonable and all review the evidence behalf on whose to the party most favorable in the light from entered, highest that evidence we give judgment should be verdict motion for directed value. Id. A probative insubstantial as is so the evidence viewed when granted set aside. Conagra, to be verdict for party the jury’s require 672, 13 A motion Strother, (2000). S.W3d 150 340 Ark. Inc.v. when there is a conflict denied verdict should be for directed evidence, such that a fair-minded evidence is or when the Stores,Inc. conclusions. Wal-Mart reach different might people 173, Kelton, (1991). 806 S.W.2d373 307-308, 304, Foster, 123 Co., Ark. Const. Inc. v. D’Arbonne (2003). S.W.3d 897-98 455-56, at 234. Inc., S.W.3d Ark. at
Byme, evidence, McMickle that following We with agree her, substantially supported most favorable viewed in light first Taylor’s court’s decision. points the circuit and that Griffin he worked for Griffin testimony deposition orders. She he would follow Griffin’s He also said that was his boss. coworker, Lee Ivory refers to the testimony Taylor’s also for Griffin since Gilmore, Sr., that he had worked who testified and other tractors machinery. a farmer and driving was his immediate Cravens supervisor testified Jerry Gilmore also testified to Griffin. Gilmore and that Cravens reported him a tractors him for by providing driving Griffin compensated occurred, Further, when the accident to live. house in which Inman farm Gary the scene after manager arrived on Griffin to be there. Griffin told him that he needed him and contacted times week the farm three to five that he visits per himself testified he con added that Inman. Griffin to meet with farm manager of each maximize the value in order to trolled the planting crops between that the lease arrangement testified acre. Griffin Finally, all the that he received and him was such profits Farms Tyler end of the at the year. was not left with money Farms Tyler affirm on the We cross-appeal. Affirmed on cross and remanded. appeal.
Reversed *21 341-A ON OF
SUPPLEMENTAL OPINION DENIAL REHEARING 17,2007 MAY 341-B *22 P.A., for B. Michael Houseal, Easely, & by: Easely appellant/cross-appellee. Harris, Phil Fletcher
Butler, Hicky, & Long,Jr., Long by: Hicky, Brock,for and Andrea appellees/cross-appellants. Petitioners David Grif Robert L. Brown, Justice. as The E. as well Agriculture
fin and David Taylor, curiae, Ark. Arkansas, raise the issue of whether as amicus Council Ark. Code Ann. 2004) Ann. 27-35-210(a) repealed Code (Repl. § the two statutes or whether 2004) 27-35-102 by implication (Repl. § a that reiterate our be read We original holding can harmoniously. occurred, we has and deny rehearing. by implication repeal briefs advance the and the amicus’s Both the petitioners’ with deals 27-35-210(a)(2)(A) special per argument § time that the tractor at the maintain mits for hauled cargoes. They and, thus, this a not hauled on vehicle of the accident was being because that does not We disagree interpretation section apply. is too narrow. the statute Ann. Ark. Code As in our original opinion, quoted §27- that no vehicle shall be 2004) operated
35-206(a) provides (Repl. inches without a with a width in excess of 102 on state highways deals This as 27-35-210. prohibition special permit provided § 27-35- not limited to Section cargo. with width is hauling to that then sets out 210(a)(2)(A) requirement, exceptions permit hours. on the movement highways during daylight including where also is not limited to situations 27-35-210(a)(2)(A) Section hauled. being cargo case, decided was the issue to be
In the instant whether inches in exceeded 102 the attached which the tractor with plow, width, so, was moved on hours. If daylight highway during did need a That is the for tractor/plow the special permit. question to decide on retrial. jury matter,
On a with related we disagree petitioners and amicuscuriaethat was not enacted later 27-35-210(a)(2)(A) § than 27-35-102. section was included in Act Though permit § 300 of codified at was language 27-35-210(a)(2)(A) § not enacted until 32 of Act 1971. an irrevocable Accordingly, conflict two between the statutes exists.
Petitioners raise as their third for point rehearing with respect lighting requirement, opinion erroneously stated that the had not been on instructed Ark. Code Ann. 27-36-219 when it had been instructed 27- 2004), on (Repl. § § with 36-219(d)(l). Section deals 27-36-219(d)(l) requirement of one red rear on the tractor one-half hour light after sunset. however, The issue at trial was whether appeal, lighting on the attached which required plow blocked allegedly tractor’s We read lighting. 27-36-219(e) (f) requiring a farm tractor or unit farm whether equipment, self-propelled *23 towed, have or reflectors visible from rear. lamps Lamps reflectors rear of a be an tractor blocked solely may thus, and, attached not be visible plow may sufficiently comply This, with this statute. is a for the again, to decide. question Petition for denied. rehearing D.
Michael BELL v. STATE Arkansas CR 06-871 254 S.W.3d725 Court of
Supreme Arkansas 5, 2007 delivered Opinion April