Summary
In Delta School of Commerce, Inc. v. Wood, 766 S.W.2d 424 (Ark. 1989), a student sued a vocational school and its president, Steve McCray, for fraudulent inducement of enrollment in a nursing program.
Summary of this case from Arkansas Methodist Hospital Corporation v. ForbesOpinion
Doug Wood, [298 Ark. 202-A] Jes Askew III, Little Rock, for appellants.
Page 739
Everett Martindale, Little Rock, for appellee.
SUPPLEMENTAL OPINION ON DENIAL OF REHEARING.
HOLT, Chief Justice.
On rehearing, appellants contend that we erred in holding that they waived their right to challenge the jury instruction on deceit because they did not object to the instruction at the time it was being read to the jury by the trial court. We adhere to our position that appellants' failure to object resulted in a waiver. However, we do wish to clarify our holding.
In our original opinion, 298 Ark. 195, 766 S.W.2d 424, we stated that no party may assign as error on appeal "the giving or failure to give an instruction unless he objects thereto before or at the time the instruction is given, stating distinctly the manner to which he objects and the grounds of his objection," quoting the language of Ark.R.Civ.P. 51. In utilizing Rule 51 as a basis for our decision, we do not intend to imply that the appellants were barred from challenging the [298 Ark. 202-B] failure to instruct on this issue because they did not object at the time the instruction was read to the jury. (Emphasis added.)
To the contrary, had the appellants objected to the giving of this instruction by the trial court before the case was submitted to the jury, such objection would have been sufficient to preserve the issue on appeal. It is well settled that failure to object to the giving of an erroneous jury instruction before the case is submitted to the jury is a waiver of any error committed by the court in giving it. Tinsley v. Cross Development Co., 277 Ark. 306, 642 S.W.2d 286 (1982); Willis v. Elledge, 242 Ark. 305, 413 S.W.2d 636 (1967).
The record does not reveal that the appellants objected to the court's giving of this particular instruction to the jury at any time during the course of the proceedings. This issue is raised for the first time on appeal. Accordingly, they are in no position to challenge the instruction as given by the trial court.
Petition denied.
GLAZE, J., concurs.
GLAZE, Associate Justice, concurring.
I agree the appellants' petition for rehearing should be denied, but I would add that the instruction proffered by the appellants was insufficient and incorrect. In Higgins v. Hines, 289 Ark. 281, 711 S.W.2d 783 (1986), the court set forth the five elements required to constitute the tort of deceit, and in setting out element two, we adopted a rule which requires "knowledge or belief on the part of the defendant that the representation is false or that he has not a sufficient basis of information to make it." (Emphasis added.) See also AMI Civil 3d, 405. Appellants' proffered instruction in this cause omitted the foregoing, emphasized language. This omission, in my view, was a vital one, especially when considering the evidence that this court, in pertinent part, reviewed and recited in its majority opinion. Regardless of whether appellants had made a timely objection to the instruction given by the trial court, they simply failed to proffer a correct instruction in its stead--a duty required of them in order to prevail on this point on appeal.
In Grendell v. Kiehl, 291 Ark. 228, 723 S.W.2d 830 (1987), this element was worded as follows: [S]cienter--knowledge by the defendant that the representation was false, or an assertion of fact which he does not know to be true.