W.E. Pender & Sons, Inc. v. Lee

DAVID M. GLOVER, Judge.

11 During the installation of a water well at his rural residence, appellee, Bui'ton Lee, was injured when a fiberglass mat flew out from under a pipe truck driven by one of appellant’s employees, Jonathan McGinty. Lee brought a negligence action against appellant, W.E. Pender & Sons, Inc. d/b/a Acklin Drilling. The case was tried to a jury, which returned a verdict in favor of Pender & Sons. Lee filed a motion for new trial, asserting newly discovered evidence in the form of a post-trial letter and an alleged oral admission from McGinty as the basis. Following a hearing, the trial court granted the motion for new trial. This appeal followed, with Pender & Sons contending that 1) there was no newly discovered evidence; and, even if McGinty’s post-trial letter and alleged oral statement were “newly discovered evidence,” 2) it would be merely impeaching or cumulative; and 3) it would not have changed the result of the trial. Lee 12also filed a cross-appeal, contending that the trial court erred in excluding McGinty’s admission of fault, given during his deposition. On the direct appeal, we reverse the trial court’s grant of a new trial; on the cross-appeal, we affirm the exclusion of the testimony regarding fault.

Lee hired Pender & Sons to drill a well on his property. Pender & Sons placed fiberglass mats around the drilling site in order to provide traction for the heavy trucks that were used in the drilling. When the drilling was completed, McGinty began to back up the pipe truck; one of the fiberglass mats flew out from under the right-rear tire and struck Lee, injuring his leg. At trial, McGinty, called as a witness by Lee, testified in pertinent part:

At the time of the accident I got in the truck, waited for air pressure to build up for the brakes. I put my foot on the brake, released the air brakes, let out on the clutch real gently until I felt the transmission catch, and gently let off the brake so the truck wouldn’t roll forward, and started giving a little bit of acceleration, holding a steady accelerator, continuing to let out on the clutch, trying not to spin the tires, and one of the tires spun. The tire did not spin before the mat came out. There was no warning of a problem. The truck did not lurch. I did not gun the engine or race the motor. I had moved the truck like that in the past without problems. I had no reason to believe the mat would go out to the side of the truck. I had never heard of such a thing happening. I had driven the pipe truck before.

Although he testified that the truck did not move when he let the clutch out, when he was shown a photograph of the scene, he then stated that if the truck moved, he did not remember it. He agreed that one of Lee’s photograph exhibits “shows the truck appears to be directly over the well,” and that the bed of the truck could not have been directly | ;iover the well while they were drilling the well. Thus, he acknowledged that the truck had been moved.

Travis Acklin, testifying on behalf of Pender & Sons, stated that while he did not remember moving the truck at first, after looking at the photographs and seeing the well underneath the pipe truck, the pipe truck would had to have been moved approximately four to five feet. He said that they “must have backed the truck up one time before McGinty got back in it and backed it up again spinning the board out.” He explained that he motioned for McGinty “to come on back”; that McGinty began to accelerate gently and began to engage the clutch; and that as McGinty engaged the clutch, “in just a split second the wheels spun and kicked the mat out.” Acklin said that the mat flew “out to the side,” just above the ground, and struck Lee. He acknowledged that he could not see McGinty’s foot as he eased off the clutch; that the truck put a lot of velocity to the board; that he had never seen that happen before; that they “operated the truck the same way as we always did”; that McGinty “did not let the clutch out faster than I think he did” and that he could hear the sound of the engine pulling down as McGinty was gradually releasing the clutch; and that he was directing McGinty, motioning him to come back.

Lee testified on his own behalf at trial:

After the well was dug I used my tractor to pull the dirt away. I had just pulled my tractor around and parked it and got off of it. The pipe truck did not get moved during that time. There was absolutely not enough time for somebody to put a board right behind the front wheel before I got off my tractor and got hit.

|4I testified in my deposition that I couldn’t give a yes or no on whether they had just begun to back up the truck as I got off my tractor. I really don’t remember. I remember walking and getting off my tractor and walking around the front, and the next thing you know I’m on the ground.

Lee based his motion for a new trial on the following two items of “newly discovered evidence”: 1) Lee’s affidavit asserting an alleged post-trial oral admission by McGinty to Lee that McGinty “had ‘gunned’ the engine of the pipe truck when backing it out of the job site, which caused the rear wheel to spin and shoot the Mud-Traks board out from under it, causing [Lee’s] injuries”; 2) a written statement from McGinty in which he stated:

After seeing the pictures in court on the 28-29 of August and trying to remember what happened the day of the accident. My testimony on the dates above were not completely true. I stated that the pipe truck was never moved after the well was completed. That was not true. At the beginning of the trial I was told the pipe truck was never moved. I couldn’t remember so I assumed it wasn’t. The accident happened a little over four years ago. I gave my deposition nineteen months ago. In order for me to remember everything I said in my deposition or events that happened on the day of accident, I would’ve needed copies of the deposition and copies of the photographs. I had neither! In my opinion this is asking a lot from one person.

At the hearing on Lee’s motion, McGinty testified in part, “I never gunned the truck, but yes, I had to accelerate the truck to try to get it to move. [Lee’s] testimony about what I said on August 80 is not true. ... I did not tell him I lied about gunning the engine of the truck. I first learned yesterday afternoon he was saying I lied about gunning the engine of the truck.”

Direct Appeal

| BIn challenging the trial court’s grant of a new trial, Pender & Sons contends that the ruling should be reversed because 1) there was no new evidence about either the location of the truck or the “gunning” of the engine, and, even if the alleged oral statement by McGinty and his written statement were newly discovered evidence, 2) it would be merely impeaching or cumulative, and 3) it would not have changed the result of the trial.

Rule 59 of the Arkansas Rules of Civil Procedure provides in part:

(a) Grounds. A new trial may be granted to all or any of the parties and on all or part of the claim on the application of the party aggrieved, for any of the following grounds materially affecting the substantial rights of such party: ... (7) newly discovered evidence material for the party applying, which he could not, with reasonable diligence, have discovered and produced at the trial [.]

(Emphasis added.) As our supreme court explained in Roetzel v. Brown, 321 Ark. 187, 190, 900 S.W.2d 185, 186 (1995):

Rule 59(a)(7) provides that a new trial may be granted on grounds of “newly discovered evidence material for the party applying, which he could not, with reasonable diligence, have discovered and produced at the trial.” A new trial based on newly discovered evidence is not favored. The decision to grant a new trial based on newly discovered evidence is a decision within the sound discretion of the trial court and will not be reversed absent an abuse of that discretion. At the hearing on the motion for new trial based on newly discovered evidence, the burden is on the moving party to establish he or she “could not with reasonable diligence have discovered and produced the evidence at the time of trial, that the evidence is not merely impeaching or cumulative, and that the additional testimony would probably have changed the result of the trial”

(Emphasis added & citations omitted.) Abuse of discretion is discretion improvidently exercised, i e., exercised thoughtlessly and without due consideration. Id.

| f,Accordingly, to establish his entitlement to a new trial, Lee had the burden of first proving that the evidence he was relying upon in support of his motion was truly “new,” ie., that he “could not with reasonable diligence have discovered and produced the evidence at the time of trial.” The two items of “new” evidence are McGinty’s post-trial written statement, which discussed the location of the truck, and his alleged oral statement to Lee that he had lied about gunning the engine (a statement which McGinty disputed making and about which he said nothing in his written statement). We are not convinced this evidence is properly categorized as “newly discovered.”

The written statement is a reiteration of testimony that McGinty provided at trial. Upon examining a photograph during his original trial testimony, McGinty acknowledged that he must have been mistaken about the truck not being moved because the photograph showed that it had been moved approximately four to five feet. His post-trial written statement adds nothing significant to his trial testimony.¹ Likewise, the assertion in Lee’s affidavit of the alleged oral statement by McGinty that he had in fact “gunned” the engine was denied by McGinty, thus turning the statement’s very existence into a “he said/he said” dispute. In every single statement on the subject by McGinty, including his testimony at the motion hearing, he denied “gunning” the 17engine.² This type of evidence could, with reasonable diligence, have been discovered and produced at the time of trial through cross-examination and other methods of attacking unfavorable testimony.

Even if we were to conclude that both McGinty’s post-trial letter and alleged oral statement were “newly discovered evidence,” Pender & Sons contends that it would be merely impeaching or cumulative. We agree.

At a retrial, with the addition of this “new evidence,” McGinty would presumably repeat what he had already acknowledged at the original trial, together with Acklin, that the truck had been moved approximately four or five feet — not during the injury episode, but prior to that incident. Thus, it is clear that McGinty’s written statement would be merely cumulative. In addition, at a retrial, McGinty would presumably continue to deny that he “gunned” the engine, and Lee’s testimony about McGinty’s alleged post-trial statement would be used to try to impeach McGinty’s testimony. Thus, this alleged oral statement would be merely impeaching.³

| sAs explained in Roetzel, supra, even if evidence is new, if it is merely cumulative or impeaching, it does not satisfy a moving party’s burden of establishing that there is newly discovered evidence that would justify a new trial. That is the situation we have here. Accordingly, we hold that the trial court abused its discretion in granting Lee’s motion for a new trial. We have determined that Lee did not satisfy his burden of proving that the evidence he relied upon was truly newly discovered evidence that was not merely impeaching or cumulative.

In light of our holdings concerning Pen-der & Sons’ first two contentions, it is not necessary to address its third contention, i.e., that the evidence relied upon by Lee would not have changed the result of the trial.

Cross-Appeal

In his cross-appeal, Lee contends that the circuit court abused its discretion in excluding McGinty’s deposition testimony because it was substantial evidence of Pender & Sons’ liability. We disagree.

The trial court has broad discretion when it comes to the admissibility of |9evidence. Meins v. Meins, 93 Ark.App. 292, 218 S.W.3d 366 (2005). The appellate court will not reverse the lower court’s ruling on an evidentiary issue unless the appellant can show that the court abused its discretion. Id. In order to show abuse of discretion, the appellant must demonstrate that the trial court acted improvidently, thoughtlessly, or without due consideration. Id. Additionally, the appellate court will not reverse an evidentiary ruling absent a showing of prejudice. Id.

In his deposition, McGinty stated:

Q. And has Mr. Lee ever said to you whether this was or was not anyone’s fault?

A. Well, it was our fault.

Q. Okay. Did he ever say that to you?

A. I can’t remember. But I think he knew.

Q. Right. And that’s kinda why we’re here today, don’t you think?

A. Yes.

Q. Okay. And we can count on your testimony in that regard, that — .

A. (Affirmative nod).

Q. Okay.

A. Yes, ma’am.

After considering Pender & Sons’ motion in limine, the trial court excluded McGinty’s deposition testimony from the actual trial, reasoning that it invaded the jury’s province. | inWe find no abuse of discretion in the trial court’s exclusion of this evidence.

Rule 701 of the Arkansas Rules of Evidence provides:

Opinion testimony by lay witnesses.

If the witness is not testifying as an expert, his testimony in the form of opinions or inferences is limited to those opinions or inferences which are

(1) Rationally based on the perception of the witness; and

(2) Helpful to a clear understanding of his testimony or the determination of a fact in issue.

Our supreme court explained in Thompson v. Perkins, 322 Ark. 720, 724-25, 911 S.W.2d 582, 584-85 (1995):

We have said that Rule 701 is not a rule against conclusions; it is a rule conditionally favoring them. Carton v. Missouri Pac. R.R., 303 Ark. 568, 798 S.W.2d 674 (1990). In Carton v. Missouri Pac. R.R., we said:

[E]ven if the witness does have the requisite personal knowledge, any inferences or opinions he expresses must thereafter pass the rational connection and “helpful” tests of Rule 701. “The rational connection test means only that the opinion or inference is one which a normal person would form on the basis of the observed facts. He may express the opinion or inference rather than the underlying observations if the expression would be ‘helpful to a clear understanding of his testimony or the determination of a fact in issue.’ ” If, however, an opinion without the underlying facts would be misleading, then an objection may be properly sustained. (Citations omitted.) Further, testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact. A.R.E. Rule 704; Davlin v. State, 320 Ark. 624, 899 S.W.2d 451 (1995).

Here, appellant’s testimony regarding the right-of-way was based on observed facts provided in his testimony — the location of his motorcycle, the oncoming vehicles in the northbound lane, and the yield sign. His opinion that appellee had the right-of-ivay is one ivhich a normal person would \nform, on the basis of the facts observed, and his opinion testimony did not mmdate a legal conclusion. See Davlin v. State, supra; Carton v. Missouri Pac. R.R., supra. Finally, his opinion was helpful to the determination of a fact in issue, whether ap-pellee was negligent. Thus, the trial court did not abuse its discretion in admitting the testimony. See Scroggins[Scoggins] v. Southern Farmers’ Ass’n, 304 Ark. 426, 803 S.W.2d 515 (1991); see also Robinson v. Bump, 894 F.2d 758 (5th Cir.1990) (admission in negligence action of lay opinion that defendant was “in total control” of vehicle not an abuse of discretion); Young v. Illinois Cent. Gulf R. Co., 618 F.2d 332 (5th Cir.1980) (testimony from lay witnesses concerning their impression of condition of railroad crossing improperly excluded).

(Emphasis added.) The word “fault” is defined as:

1. An error or defect of judgment or of conduct; any deviation from prudence or duty resulting from inattention, incapacity, perversity, bad faith, or mismanagement. See Negligence. Cf. Liability. 2. Civil law. The intentional or negligent failure to maintain some standard of conduct when that failure results in harm to another person.

Black’s Law Dictionary 641 (8th ed. 2004).

Here, the trial court clearly regarded McGinty’s deposition testimony regarding “fault” as raising the possibility that it would mandate a legal conclusion, and therefore excluded it. We find no abuse of the trial court’s discretion in reaching that conclusion.

Reversed on direct appeal; affirmed on cross-appeal.

PITTMAN, ROBBINS, GRUBER, and HENRY, JJ., agree. MARSHALL and BROWN, JJ., would affirm on direct appeal and on cross-appeal. HART and BAKER, JJ., would affirm on direct appeal and reverse on cross-appeal.

1 . Marshall, J., dissenting, interprets McGinty's trial testimony on truck movement to have "wavered a bit” when "confronted with photographs” and then states that McGinty gave "revised testimony” at the hearing on motion for new trial.

2 . Notwithstanding similar references by both dissenters, neither the record nor the majority opinion contain any McGinty post-trial admission that he "gunned the engine.”

3 . In fact, as part of its rationale for granting Lee a new trial, the trial court emphasized "impeachment purposes”:

The Court: And as I recall, he changed his testimony. I’m not saying there was anything untoward. He changed his testimony between the time he took the deposition and the moment that he walked into the courthouse as I recall about that, Mr. Williams. It's a close call. I just think that the interests of justice are best served by utilizing the line of cases that say, I’m going to use my discretion, and we’re just going to try it all over again. And Mr. McGinty can say everything that he believed happened, and Mr. Lee can say what he says. Everybody’s got everybody’s prior testimony for impeachment purposes, and then the jury can just make a decision. Mr. McGinty now has an independent recollection that is significantly different, and I think the trier of fact needs to decide whether they think that makes a difference or not.

(Emphasis added.)