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John A. Fogleman, Justice, dissenting. I am in accord with what I believe to be the position of the majority as to the effect of requests by both parties for a directed verdict. I am not in accord with the application of the rule made in the majority opinion.
It has been made quite clear by the decisions of this court that, when each litigant asks for an instructed verdict in his favor, and no other instruction is requested by either side, they, in effect, agree that the issue may be decided by the court; and its ruling, having the same effect as the verdict of a jury, will be permitted to stand if there is substantial evidence to support it. National Garages v. Barry, 217 Ark. 593, 232 S. W. 2d 655. Submission or withdrawal of fact questions is then discretionary with the trial judge, but, if withdrawn, his judgment has the same effect as if the issues had been decided by the jury. Holloway v. Parker, 197 Ark. 209, 122 S. W. 2d 563, 119 A. L. R. 1359.
This rule is of no practical effect if the majority’s application is correct. Any party but asking any instruction, however erroneous or abstract, could avoid this rule. I do not believe that this is intended.
An examination of the two requested instructions clearly indicates to me that appellants did not present requests that required the submission of any issue. Requested instruction No. 1 was a binding instruction to return a verdict for appellant, because Frank Ryburn, the responsible officer of appellee, himself removed any doubt about the sale having been a private one. Surely, the majority does not mean to say that requested instructions that would inevitably result in a verdict for the party asking them are “other instructions.” There are many different forms of requests by which an instructed verdict may be sought. Where each requested instruction is, in effect, a peremptory instruction, the rule applies. Upson v. Robison, 179 Ark. 600, 17 S. W. 2d 305.
The instruction that appellant was entitled to recover any loss caused by a failure to comply with the Uniform Commercial Code would have submitted no issue to the jury. No provision or requirement of this comprehensive’ code is mentioned or set out. I cannot understand, and I doubt that the average juror could understand what, if any, issue he was to decide. To say the least, it is ambiguous, indefinite and uncertain. An indefinite instruction is not a proper instruction. Laster v. Raper, 173 Ark. 1181, 294 S. W. 994. The giving of an instruction so broad and unqualified as to mislead the jury is erroneous. Bertrand v. Byrd, 5 Ark. 651; Armistead v. Brooke, 18 Ark. 521. An in-instruction embracing matters and explanations not responsive to the pleadings or evidence so as to obscure the issue is error. Taylor v. Martin, 151 Ark. 200, 235 S. W. 411. It is also error to give an instruction so uncertain that standards and measures of the duty of á party are left to determination by the jury, although they are fixed by law. Little Rock Ry. & Electric Co. v. Goerner, 80 Ark. 158, 95 S. W. 1007, 7 L. R. A. (n.s.) 97, 10 Ann. Cas. 273.
The purpose of an instruction to the jury is to define the law applicable to the issues of fact in a particular case and to furnish a guide to assist in reaching a verdict. Hearn v. East Texas Motor Freight Lines, 219 Ark. 297, 241 S. W. 2d 259; J. C. Engleman, Inc. v. Briscoe, 172 Ark. 1088, 291 S. W. 795. This second requested instruction certainly would have performed none of these functions. It was abstract in that, if it submitted any issue to the jury, it was so comprehensive as to submit issues not raised' by the pleadings or evidence. Harkrider v. Cox, 230 Ark. 155, 321 S. W. 2d 226. There are literally dozens of commercial code requirements. Clearly, this instruction was so abstract that it would have left the determination of both law and facts to the jury and so general as to leave the jury to apply its own devices to the testimony, and should not have been given. See Wisconsin & Arkansas Lumber Co. v. McCloud, 168 Ark. 352, 270 S. W. 599. It was so deficient in this respect as to amount to no instruction. I submit that these two requests did not render improper the trial court’s proceeding to determine the issues.
In Interstate Business Men’s Acc. Assn. v. Sanderson, 144 Ark. 271, 222 S. W. 51, it was held that one who sought a peremptory instruction did not waive his right to a jury trial when he requested a correct instruction which would have submitted a fact issue to the jury. I submit that the holding in that case, in effect, applies the rule properly. The request for an instruction relied upon to take the case out of the operation of the rule must be both timely and sufficient. See Annot., 68 A. L. R. 2d 300, 305,1 (1959). There is no question but what the requests were timely. See Gill v. Burks, 207 Ark. 329, 180 S. W. 2d 578. They were neither sufficient nor proper.
I do not agree with the conclusion that a secured party does not comply with the requirements of the Uniform Commercial Code as a matter of law when he purchases a used automobile at his own private sale, nor do I agree that the disposition of the collateral here was not in compliance with Ark. Stat. Ann. § 85-9-501 et seq. (Add. 1961) as a matter of law. I think that a question of fact was involved and that the judgment rendered resolved those questions of fact.
A review of Ark. Stat. Ann. §§ 85-9-501 through 9-507 (Add. 1961) shows clearly that there was no intention to require a public sale for disposition of collateral. Comment 1 to § 85-9-504 indicates that the only restriction upon the sale of collateral by a secured party is that it be commercially reasonable. Section 85-9-507(2) states specifically that sales in the usual manner in a recognized market or at a price current in that market at the time or otherwise in conformity with reasonable commercial practices among dealers in the type of property sold are, as a matter of law, sales made in a reasonably commercial manner, but does not limit such sales to those three alternatives. See Comment 1, § 85-9-504. The only limitation upon the sale is that it be in good faith and in a commercially reasonable manner. Comments 1 & 2, § 85-9-507. The code specifically provides that the sale may be public or private and at any time or place and on any terms commercially reasonable. § 85-9-504(8). Purchase by the. secured party at private sale is permissible if the col- ’ lateral is of a type customarily sold on a recognized market or is the subject of widely distributed price quotations. We have held that used automobiles are not the type of collateral sold on a recognized market! Norton v. National Bank of Commerce, 240 Ark. 143, 398 S. W. 2d 538. Yet I do not see how it can be said, as a matter of law, that there is not a widely distributed' standard price quotation for used cars. It seems more in keeping with the recognized purpose of the commercial code to eliminate “red tape” in such dispositions of collateral to say that there is a question of fact as to whether there is a “widely distributed standard' price quotation.”
Mr. W. W. Bryant, Jr., a man of wide experience, in the automobile business since 1936 and who has. served as an appraiser of automobiles for 19 years, testified on this point. He stated that the NADA manual is a widely distributed guide or index used as a guide by all automobile dealers, banks and finance companies. According to him, it shows not only the factory average delivered price and loan value for each series in the truck line, but also the retail value and wholesale value. He stated that this manual is also used by insurance companies for replacement purposes and as “a unit symbol” on cars and trucks. ,/
Even though the circuit judge “directed a verdict,” the sole question for our determination is whether there was substantial evidence to support the judgment, Strange v. Planters Gin Co., 142 Ark. 100, 218 S. W. 188; Casteel v. Lee Williams Theatres, Inc., 221 Ark. 935, 256 S. W. 2d 732. I submit that the testimony of Bryant constitutes substantial evidence. His testimony could well be taken to show that there was a widely distributed standard price quotation for the type 6f collateral involved here. I do not think that we could say that this book was or was not a widely distributed standard price quotation as a matter of law.
The evidence indicates that the dealer realized a profit of $5.00 on his resale of the truck and that his private sale bid was $500 more than the price listed in the NADA manual. This result could well be more favorable to a defaulting buyer than the usual ceremonial public sale, where the seller can usually bid without competition.
I would affirm the judgment.
Harris, C. J., joins in this dissent.
Document Info
Docket Number: 5-5146
Judges: Byrd, Harris, Fogleman
Filed Date: 3/9/1970
Precedential Status: Precedential
Modified Date: 3/2/2024