Fisher v. Valco Farms

945 S.W.2d 369, 328 Ark. 741, 1997 Ark. LEXIS 352
CourtSupreme Court of Arkansas
DecidedJune 2, 1997
Docket96-661
StatusPublished
Cited by11 cases

This text of 945 S.W.2d 369 (Fisher v. Valco Farms) is published on Counsel Stack Legal Research, covering Supreme Court of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Fisher v. Valco Farms, 945 S.W.2d 369, 328 Ark. 741, 1997 Ark. LEXIS 352 (Ark. 1997).

Opinion

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, Valeo Farms, Danny McCollum, and Air-Aids, Inc., claiming that their negligence in applying the chemical, 2,4-D, to a rice field belonging to Valeo 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 Valeo 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.

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Bluebook (online)
945 S.W.2d 369, 328 Ark. 741, 1997 Ark. LEXIS 352, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fisher-v-valco-farms-ark-1997.