Williams v. Southwestern Bell Telephone Co.

893 S.W.2d 770, 319 Ark. 626, 1995 Ark. LEXIS 119
CourtSupreme Court of Arkansas
DecidedFebruary 27, 1995
Docket94-682
StatusPublished
Cited by13 cases

This text of 893 S.W.2d 770 (Williams v. Southwestern Bell Telephone Co.) 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
Williams v. Southwestern Bell Telephone Co., 893 S.W.2d 770, 319 Ark. 626, 1995 Ark. LEXIS 119 (Ark. 1995).

Opinion

Jack Holt, Jr. Chief Justice.

The appellant, Katherine Elizabeth Williams, allegedly sustained injury to her wrist on a pay-telephone cord maintained by the appellee, Southwestern Bell Telephone Company (“Bell”), and brought suit against Bell in Pulaski County Circuit Court for personal injury. The jury returned a verdict in favor of Bell, and the trial court entered judgment accordingly.

On appeal, Ms. Williams furnishes to this court a limited portion of the record of trial, primarily pleadings, pretrial motions, and testimony of two witnesses, claiming that the trial court erred in permitting Bell to offer expert testimony relative to properties of the allegedly defective metal telephone cord at issue, or similar cords, while not permitting her an opportunity to examine and test a similar cord and present expert testimony. Bell responds by claiming that there was no final appealable order or ruling regarding the introduction of expert testimony and that the testimony of James Williams Jr. believed to be expert testimony for Bell was not, as the court ruled in its discretion, expert testimony. We agree with Ms. Williams that the trial court erred in permitting expert testimony after a ruling, in essence, that expert testimony was unnecessary; however, because she failed to object to similar testimony offered by another witness, we hold that the admission of Mr. Williams’s testimony was harmless error.

In her complaint filed on November 7, 1992, Ms. Williams alleged that she was injured on November 11, 1989, when she attempted to use a pay telephone at the Junior League Baseball Field at Burns Park in North Little Rock. She claims that she severely cut her wrist on the metal cord which extended from the handset of the telephone, as the cord had apparently been stretched to expose a sharp-cutting edge. According to her complaint, Ms. Williams underwent surgery and was left with a permanent impairment. She alleged that Bell was negligent in permitting the telephone cord to remain in a defective and dangerous condition when it knew or should have known that it could have caused injury to her or to other members of the public. A jury verdict was rendered in favor of Bell.

Prior to trial, both parties directed interrogatories to one another. In answer to Ms. Williams’s inquiry, Bell stated that the telephone cord at issue, along with the handset, had been removed from the pay telephone in question on November 28, 1989, due to a report that the cord was frayed. As a result, a new cord had been put in its place and the old cord scrapped. Bell further responded that no inspection or testing had been done on the cord prior to its disposal.

In addition, Ms. Williams requested that Bell furnish to her the identity of each witness that it anticipated calling and to identify whether or not the parties would be called as expert witnesses and if so, to furnish the substance of the facts or opinions that he or she was expected to testify to, and the grounds for each opinion. Bell responded by stating that it would call James Williams, Jr. and Kurt Bender Jr., and that neither witness would be called as an expert.

On December 9, 1993, the trial court, after acknowledging an oral motion on the part of Ms. Williams, ordered Bell to check on the availability of a similar telephone cord, indicating that, after a telephone conference, it would advise the parties whether any testing could be done, and under what conditions. After Bell advised the court that it could produce a similar cord, the trial court directed that Bell produce such to Ms. Williams on the condition that no destructive testing be done unless representatives of all parties were present. No tests were performed.

On the same date, Bell filed a motion in limine requesting that the trial court prohibit Ms. Williams from offering expert testimony at trial due to the fact that she had not provided the name and address of an expert witness until three days prior to the trial date. Ms. Williams also filed a motion in limine asking that Bell be precluded from offering either testimony concerning the results of the testing of similar phone cords, if any, or “expert opinions” relative to properties of the cord at issue, or of similar cords.

At a pretrial hearing, the trial court made the following statement in response to the parties various motions:

... I think I’ll go on record as saying now what I said in the telephone conference, that is, I don’t think this is — I think we’ll get off on a tangent if we get off on expert testimony in this particular case. I think if we keep it within what the common, ordinary juror can understand. You got a photograph of an outstretched cord there, you may have evidence of whether the telephone was operating or wasn’t, that’s certainly permissible, but she’s going to testify she got hurt on it and we set out the standard of negligence, what the company owes patrons and the jury can decide whether they breached that, or whether the lady got hurt on this cord, things like that. I don’t see this as, we can make it a complicated case, but I don’t think it is.

It is also significant that, during the course of these proceedings and prior to the court making its remarks, counsel for Bell assured the court that she had no intention of putting on expert testimony.

Although the court did not issue formal written orders as to its rulings on the motions, when we examine its remarks, it is clear to us that in advising the parties that there would be no need for expert testimony at trial, its comments were tantamount to a ruling which is now a proper subject for appeal.

Ms. Williams asserts that the trial court committed error in permitting James Williams, Jr. to testify as an expert witness on behalf of Bell relative to the properties of the alleged defective metal telephone cord at issue. Mr. Williams, a customer service technician with Bell, testified that he had been with the company for 22 years, had worked on pay phones 18 of those years, and, particularly, that he had repaired pay telephones in the Burns Park area. The exchange in question involved Mr. Williams’s testimony after he was shown pictures of the cord that were taken by Ms. Williams and her mother on the day after the incident, which had been admitted earlier as evidence. His testimony was as follows:

COUNSEL FOR BELL: Mr. Williams, I’d like you to look at those pictures and tell me, if you would, on Plaintiff’s Exhibit 1A, there’s a series of three pictures on front that show this telephone, first, I assume that’s the Burns Park telephone we are talking about?
WITNESS: Yes, this is the one that was at the Little League baseball field.
COUNSEL FOR BELL: You are familiar with that and service it often?
WITNESS: Yes.
COUNSEL FOR BELL: Mr. Williams, is it your opinion, after twenty years of being a repairman, that that telephone would be operating?
WITNESS: No, not in the condition this phone cord is.
COUNSEL FOR BELL: Are you sure of that?

Free access — add to your briefcase to read the full text and ask questions with AI

Related

R&L Carriers Shared Services, LLC v. Markley
2017 Ark. App. 240 (Court of Appeals of Arkansas, 2017)
Union Pacific Railroad v. Barber
149 S.W.3d 325 (Supreme Court of Arkansas, 2004)
Moore v. State
947 S.W.2d 395 (Court of Appeals of Arkansas, 1997)
Weber v. State
933 S.W.2d 370 (Supreme Court of Arkansas, 1996)
Jones v. State
931 S.W.2d 83 (Supreme Court of Arkansas, 1996)
Eichelberger v. State
916 S.W.2d 109 (Supreme Court of Arkansas, 1996)
Zufari v. Architecture Plus
914 S.W.2d 756 (Supreme Court of Arkansas, 1996)
Luedemann v. Wade
913 S.W.2d 773 (Supreme Court of Arkansas, 1996)
Carr v. General Motors Corp.
911 S.W.2d 575 (Supreme Court of Arkansas, 1995)
Callahan v. Clark
901 S.W.2d 842 (Supreme Court of Arkansas, 1995)
Bunn v. State
898 S.W.2d 450 (Supreme Court of Arkansas, 1995)
Brumley v. Naples
896 S.W.2d 860 (Supreme Court of Arkansas, 1995)

Cite This Page — Counsel Stack

Bluebook (online)
893 S.W.2d 770, 319 Ark. 626, 1995 Ark. LEXIS 119, Counsel Stack Legal Research, https://law.counselstack.com/opinion/williams-v-southwestern-bell-telephone-co-ark-1995.