# Steel Erectors, Inc. v. Lee

> Supreme Court of Arkansas · July 17, 1972 · 253 Ark. 151

URL: https://www.frixlaw.com/law-library/cases/7818931

## Case

- **Full name:** STEEL ERECTORS, Inc. and James W. GIPSON v. Buell Ray LEE
- **Court:** Supreme Court of Arkansas
- **Decided:** July 17, 1972
- **Citations:** 253 Ark. 151; 484 S.W.2d 874; 1972 Ark. LEXIS 1431
- **Precedential status:** Published
- **Opinion:** On rehearing by Harris
- **Judges:** Harris
- **Cited by:** 4 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/7818931

## Opinion text

Supplemental Opinion on Rehearing delivered October 2, 1973
Appeal & error — partial reversal — review.—When a judgment against multiple tortfeasors is reversed, substantial justice requires a reversal as to all defendants where it appears that a different verdict would probably or possibly have been rendered against the remaining defendant if that defendant had been sued alone, or if the jury had realized that the remaining defendant would be solely liable.
Carleton Harris, Chief Justice. On rehearing, appellee points out that the erroneous instruction which occasioned the reversal only adversely affected the rights of appellant, Steel Erectors, Inc., and accordingly the judgment against Gipson should be affirmed. The case of Nowlin-Carr Co. v. Cook, 171 Ark. 51 , 283 S.W. 7 , is cited as authority. We cannot agree that this case is applicable. There, judgments were entered against Nowlin-Carr Co. and H. Flanagin. On appeal, the judgment against NowlinCarr was reversed, but the judgment against Flanagin was allowed to stand. However, the latter was found to be an independent contractor, while in the case before us, Gipson was found to be an employee of Steel Erectors at the time of the accident; this, of course, is a vastly different relationship. In addition, in Cook, the judgment against NowlinCarr was reversed and dismissed, while here the case was remanded for another trial as to Steel Erectors. It is provided in Ark. Stat. Ann. § 27-2144 (Repl. 1962) that this court may reverse, affirm, or modify the judgment or order appealed from, in whole or in part, as to any or all parties, and while we agree that a reversal as against one does not necessarily mean there should be a reversal against the other, we think the circumstances of this particular case require a reversal as to both.
In 5 Am Jur 2d, 377, § 950, Appeal and Error, it is stated:
“Although the early common-law rule was different, in most jurisdictions today, a judgment against multiple tortfeasors may be reversed as to one such defendant without affecting the judgments as to the others. This rule has been embodied in statutes in some jurisdictions. However, even under the ‘modern’ rule, the courts will not enter such a partial reversal where substantial justice requires a reversal as to all defendants, as where it appears that a different verdict would probably or possibly have been rendered against the remaining defendant if that defendant had been sued alone or if the jury had realized that the remaining defendant would be solely liable.”
In Washington Gaslight Co. v. Lansden, 172 U.S. 534 (Court of Appeals D. C.), a libel suit was instituted against a corporation and its officers. A single verdict was rendered against the corporation and two officers. On appeal, it was held that error was committed as to the corporation, but not as to the two officers. The court however reversed the case in its entirety, pointing out that the original verdict was against all three defendants and it was possible, if not probable, that if a verdict had been rendered against the individual defendant alone, it would have been for a materially lesser amount. The court said:
“At any rate, the jury has never been called upon to render a verdict against a sole defendant, and while it may be said that whether against one or against all the defendants, the plaintiff suffers the same damage and should be entitled to a verdict for the same sum, still the question arises whether a jury, in passing upon the several liability of the individual defendants, would give a verdict of the same amount as it would if both the other defendants remained. ****
Where the judgment is based upon a cause of action of such a nature that it might work injustice to one party defendant, if it were to remain intact as against him, while reversed for error as to the other defendants, then we think the power exists in the court, founded upon such fact of possible injustice, to reverse the judgment in toto and grant a new trial in regard to all the defendants.”
See also Courtney v. American Express Co., 113 S.E. 332 (South Carolina), where it was stated:
“It would be manifestly unjust, if there were no errors in the trial affecting Park, to allow a judgment of $5,000 to stand against him alone, in the uncertainty that, if not yoked up with the company, such a verdict would have been rendered against him.”
In line with the reasoning of the cases cited, we are certainly unable to say that, in an action against Gipson alone, the jury would have rendered a verdict for the same amount in damages, and we think simple justice requires a reversal in toto.
Petition denied.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/7818931. Public record. Not legal advice.