Fisher v. Valco Farms

Vernon FISHER v. VALCO FARMS, a Partnership;
Danny McCollum; and Air-Aids, Inc., a
Corporation

96-661                                             ___ S.W.2d ___

                    Supreme Court of Arkansas
                 Opinion delivered June 2, 1997


1.   Trial -- verdict -- setting aside -- preponderance-of-evidence standard. -
     - The supreme court has imposed strict limitations on the
     exercise of a trial court's discretion in setting aside a jury
     verdict and requires that the verdict must be clearly against
     the preponderance of the evidence.

2.   New trial -- review of denial. -- On review of the denial of a
     motion for a new trial, the test is whether there is any
     substantial evidence to support the jury verdict.

3.   New trial -- substantial evidence supported jury verdict -- trial court did
     not abuse discretion in denying new-trial motion. -- Where the jury's
     verdict, which found that appellees were not negligent in
     applying a chemical to a rice field, was supported by
     substantial evidence suggesting several possible sources of
     damage to appellant's cotton, the supreme court concluded that
     the trial court did not abuse its discretion by not granting
     appellant's motion for a new trial.

4.   New trial -- reversal of decision requires showing of abuse of discretion.
     -- The appellate court reverses a trial court's decision
     granting or refusing a new trial only where an abuse of
     discretion is shown.

5.   Trial -- verdict -- failure to object to irregularity before discharge of
     jury constitutes waiver. -- The failure to object to some
     irregularity in a verdict prior to the discharge of the jury
     constitutes a waiver of that irregularity; the time to correct
     or clarify a verdict is before the jury is discharged.

6.   Trial -- verdict -- no objection from either party after poll -- trial
     court did not abuse discretion in accepting verdict. -- Where the jury
     was polled at appellant's request, and nine of the twelve
     jurors supported the verdict, and where there was no objection
     from either party after the poll, the supreme court concluded
     that the trial court did not abuse its discretion in accepting
     the verdict.

7.   Appeal & error -- review limited to record as abstracted. -- The
     appellate court's review is limited to the record as
     abstracted; where appellant did not abstract the verdict form
     on which he based a claim of irregularity, the argument was
     procedurally barred.

8.   Trial -- verdict -- waiver of objection to unsigned verdict form. -- The
     requirement that the verdict be in writing and signed by the
     foreman is waived when rendered in open court, duly received
     without objection by either party, and thereafter duly
     recorded; an appellant waives any objection to the verdict
     when it is returned without the foreman's signature, and the
     appellant is present and makes no objection.

9.   Trial -- verdict -- appellant waived objection to requirement that verdict
     forms be signed. -- Where the verdict was in writing and rendered
     in open court, as required under Ark. Code Ann.  16-64-119(c)
     (1987), was duly received without objection, and was duly
     recorded, the supreme court concluded that appellant waived
     any objection to the requirement that the verdict forms be
     signed.

10.  Trial -- jury-instruction objection -- appellant's burden. -- Under ARCP
     Rule 51, any objections to a jury instruction must be made
     before or at the time the instructions are given; the burden
     is on appellant to make a proffer of the instruction to the
     trial court and to make his objections.

11.  Trial -- jury-instruction objection -- In the instance of a jury-
     instruction objection, the proffered instruction must be
     included in the record and abstract to enable the appellate
     court to consider it; an instruction that is not contained in
     the record is not preserved and will not be addressed on
     appeal. 
12.  Appeal & error -- neither abstract nor record contained requested
     instructions -- argument not reached. -- Where neither the abstract
     nor the record contained either instruction requested by
     appellant, the supreme court could not determine from the
     record whether, or in what form, the proposed instructions
     were proffered; the court did not reach appellant's argument
     that the trial court failed to give either of the instructions
     because it was not preserved for review.

13.  Appeal & error -- directed-verdict argument not reached where appellant
     never obtained ruling. -- The burden of obtaining a ruling is on
     the movant, and any objections and questions left unresolved
     are waived and may not be relied upon on appeal; the supreme
     court could not reach appellant's argument that the trial
     court erred in failing to grant his directed-verdict motion
     because he never obtained a ruling; it was appellant's burden
     to obtain a ruling, and the absence of a ruling constituted a
     waiver of the issue on appeal.

14.  Appeal & error -- contributory-negligence argument not preserved for
     review. -- To preserve the issue concerning a contributory-
     negligence instruction, appellant was required to make a
     timely objection by informing the trial judge why the
     instruction was wrong; where the record did not reflect that
     appellant made any objection to the trial court's jury
     instruction on contributory negligence, and where no
     supplement to the record had been received, the issue was not
     preserved for review.


     Appeal from Poinsett Circuit Court; David Burnett, Judge;
affirmed.
     Mike Everett, for appellant.
     Fletcher Long, Jr., for appellees.

     Ray Thornton, Justice.
     A cotton crop belonging to appellant Vernon Fisher was damaged
by an agricultural chemical that drifted onto his cotton.  Mr.
Fisher brought an action against appellees, Valco Farms, Danny
McCollum, and Air-Aids, Inc., claiming that their negligence in
applying the chemical, 2,4-D, to a rice field belonging to Valco
Farms by cropdusters operated by Air-Aids, Inc., caused damage to
appellant's cotton crop located two miles north of the rice field. 
The jury returned a verdict finding that appellees were not
negligent.
     Appellant moved for a new trial alleging that irregularities
existed in the proceedings and that the verdict was clearly
contrary to the preponderance of the evidence.  The trial court did
not rule on this motion and it was deemed denied.  On appeal,
appellant also asserts that the court committed error in failing to
instruct the jury on res ipsa loquitur, AMI Civ. 3d 611, and in
failing to instruct on the inherent danger of 2,4-D, AMI Civ. 3d
708.  Appellant also urges that the court erred in failing to grant
his motion for a directed verdict on contributory negligence and in
including a provision regarding appellant's contributory negligence
in the verdict forms.  We have reviewed each point and have
determined that the judgment should be affirmed.
     We first consider appellant's allegation that the verdict was
clearly contrary to the preponderance of the evidence.  We have
imposed strict limitations on the exercise of a trial court's
discretion in setting aside a jury verdict and require that the
verdict must be clearly against the preponderance of the evidence. 
Ray v. Green, 310 Ark. 571, 839 S.W.2d 515 (1992).  In our review
of the denial of a motion for a new trial, our test is whether
there is any substantial evidence to support the jury verdict.  Id.
at 573.
     In the case before us, there was substantial evidence
suggesting several possible sources of the damage to appellant's
cotton.  Two State Plant Board investigators testified that the
chemical 2,4-D may have drifted from Valco Farm's rice field. 
However, an expert for appellees testified that most of the damage
to the cotton was from other sources, including the possibility
that 2,4-DB had been applied to appellant's soybean crop adjacent
to his cotton.  He also told the jury that he had found containers
of 2,4-DB, some of which were partially empty, in appellant's
equipment shed.  He testified that while 2,4-D and 2,4-DB were
chemically different, both chemicals had the same effect on cotton.
     Our review shows that there was substantial evidence to
support the jury verdict, and we conclude that the trial court did
not abuse its discretion by not granting the motion for a new trial
on the basis of this allegation.
     We next turn to appellant's argument that irregularities in
the proceedings required a new trial pursuant to Ark. R. Civ. P.
59.  We reverse a trial court's decision granting or refusing a new
trial only where an abuse of discretion is shown.  Clayton v.
Wagon, 276 Ark. 124, 633 S.W.2d 19 (1982).  
     First, appellant claims that the jury verdicts did not reflect
the results that the jury had intended.  The jury returned verdicts
on interrogatories provided to them, and apparently were not told
that if they found appellees were not negligent, it was not
necessary to fill out other interrogatories apportioning
responsibility for damages.  After the jury reported its responses
that appellees were not negligent, the trial court proceeded to
read the jury's responses to other interrogatories and then noted:
We should have had on here ladies and gentlemen -- and I
apologize -- that if you answered Interrogatories One,
Two, Three, and Six: No, then there wouldn't be any need
to answer the others.  But we didn't have that on here. 
So if you gentlemen don't have any questions, I'm going
to accept the verdicts....
Although the additional interrogatories were not required to be
completed, we note that the results were consistent with the
verdict in that the jury apportioned 70% of the damage to the
cotton crop to appellant.
     It is well established that the failure to object to some
irregularity in a verdict prior to the discharge of the jury
constitutes a waiver of that irregularity.  Northern Pac. R.R. Co.
v. Urlin, 158 U.S. 271 (1895).  The time to correct or clarify a
verdict is before the jury is discharged.  Barham v. Rupert Crafton
Comm'n Co., 290 Ark. 211, 718 S.W.2d 432 (1986).
     The jury was polled at appellant's request, and nine of the
twelve jurors supported the verdict.  There was no objection from
either party after the poll, and we conclude that the trial court
did not abuse its discretion in accepting the verdict.
     Appellant's second assignment of jury irregularity requiring
a new trial is the assertion that on one of the verdict forms, the
jury had written "yes" two times and then crossed both of them out
and substituted the word "no."  Appellant did not abstract the
verdict form for our review.  Our review is limited to the record
as abstracted; therefore, this argument is procedurally barred. 
Southern Farm Bureau Cas. Ins. v. Allen, 326 Ark. 1023, 934 S.W.2d 527 (1996).
     Appellant's next argument for a new trial is that there was an
irregularity in the proceedings because the jury returned unsigned
verdict forms.  Appellant claims that because the verdict forms
were unsigned, the trial court was required to grant a new trial.
     Arkansas Code Ann.  16-64-119 provides the following
requirements:
     The verdict shall be written, signed by the foreman, and
     read by the court or clerk to the jury, and the inquiry
     made whether it is their verdict.
Ark. Code Ann.  16-64-119(c) (1987).  We have long held that the
requirement that the verdict be in writing and signed by the
foreman is waived when rendered in open court "and duly received
without objection by either party to the cause and thereafter is
duly recorded."  Hodges v. Bayley, 102 Ark. 200, 204, 143 S.W. 92,
93 (1912).  We have further stated that an appellant waives any
objection to the verdict when it is returned without the foreman's
signature, and the appellant is present and makes no objection. 
Rucker v. Cox, 200 Ark. 247, 138 S.W.2d 778 (1940).
     Here, the verdict was in writing and rendered in open court,
as required under Ark. Code Ann.  16-64-119(c).  However, because
the verdict was "duly received without objection" and "duly
recorded," we conclude that appellant waived any objection to the
requirement that the verdict forms be signed.
     Appellant raises three additional assignments of error. 
Appellant alleges trial court error in the failure to give jury
instructions AMI Civ. 3d 611 and 708 under two separate points;
however, we review them together.  Appellant argues that the trial
court made an error of law by refusing to instruct the jury on res
ipsa loquitur, AMI Civ. 3d 611, and that pursuant to Ark. R. Civ.
P. 59(a)(8) he is entitled to a new trial.  Appellant also claims
that the evidence presented at trial was sufficient to make a fact
question of whether the chemical 2,4-D is inherently dangerous and
that the trial court erred in failing to give AMI Civ. 3d 708 on
that issue.
     The Arkansas Rules of Civil Procedure set out the requirement
for properly preserving a jury-instruction objection on appeal as
follows:
     No party may assign as error the giving or the failure to
     give an instruction unless he objects thereto before or
     at the time the instruction is given, stating distinctly
     the matter to which he objects and the grounds of his
     objection, and no party may assign as error the failure
     to instruct on any issue unless such party has submitted
     a proposed instruction on that issue.
Ark. R. Civ. P. 51.  Under this rule, any objections must be made
before or at the time the instructions are given.  The burden is on
appellant to make a proffer of the instruction to the trial court
and to make his objections.  Precision Steel Warehouse v. Anderson-
Martin, 313 Ark. 258, 854 S.W.2d 321 (1993).  That proffered
instruction must then be included in the record and abstract to
enable the appellate court to consider it.  Wallace v. State, 326
Ark. 376, 931 S.W.2d 113 (1996).  An instruction that is not
contained in the record is not preserved and will not be addressed
on appeal.  Marcum v. State, 299 Ark. 30, 771 S.W.2d 250 (1989).  
     Here, neither the abstract nor the record contains either the
AMI Civ. 3d 611 or the AMI Civ. 3d 708 instruction requested by
appellant.  The only record we have of this point is the following
trial court comment:
     THE COURT:  Plaintiffs objected to refusal of the Court
     to give AMI 708 and 611.  Defendants objected to the
     giving of 601 and they will amplify their objections
     later.
     (Return to open court)
The forms as printed in AMI Civ. 3d contain numerous blanks and
choices of alternative language.  We cannot determine from the
record whether, or in what form, these proposed instructions were
proffered.  Therefore, we do not reach appellant's argument that
the trial court failed to give either of these jury instructions
because these points are not preserved for our review.
     In his final point of appeal, appellant alleges two errors. 
First, appellant urges that the trial court erred in failing to
grant his motion for a directed verdict, requesting that the
affirmative defense of contributory negligence be stricken. 
Second, he argues that the trial court erred by giving an
instruction on the issue of appellant's contributory negligence and
by including in the verdict form a provision allowing such a
finding.  We determine that neither of these arguments has merit
for the following reasons.
     After appellant made his motion for a directed verdict on the
issue of the contributory-negligence defense, the court stated,
"Let's skip on to the next motion.  I will reserve that for right
now."  Although there was discussion on the issue, the abstract
does not reveal that the trial court ever ruled on appellant's
motion.
     It is well established that the burden of obtaining a ruling
is on the movant, and any objections and questions left unresolved
are waived and may not be relied upon on appeal.  Danzie v. State,
326 Ark. 34, 930 S.W.2d 310 (1996).  We cannot reach this argument
because appellant never obtained a ruling.  It was appellant's
burden to obtain a ruling, and the absence of a ruling constitutes
a waiver of this issue on appeal.
     The record does not reflect that appellant made any objection
to the trial court's jury instruction on contributory negligence. 
To preserve the issue for this court's review, appellant is
required to make a timely objection by informing the trial judge
why the instruction was wrong.  Ark. R. Civ. P. 51; St. Louis
Southwestern Ry. Co. v. Grider, 321 Ark. 84, 900 S.W.2d 530 (1995). 
In his brief to this court, appellant acknowledges this defect and
claims that he "will attempt to supplement the record to show this
objection as per Rules of Appellate Procedure #6."  No supplement
has been received, and this issue is not preserved for our review.
     We have carefully considered each of the assignments of error
and conclude that the judgment should be affirmed.