Dierks Lumber & Coal Co. v. Mabry

• Decision Date: 08 July 1942
• Docket Number: No. 12214.,12214.
• Citation: 128 F.2d 1005
• Parties: DIERKS LUMBER & COAL CO. v. MABRY.
• Court: U.S. Court of Appeals — Eighth Circuit

128 F.2d 1005 (1942)

DIERKS LUMBER & COAL CO. v. MABRY.

No. 12214.

Circuit Court of Appeals, Eighth Circuit.

July 8, 1942.

Charles E. Whittaker, of Kansas City, Mo. (Scott Wood and E. H. Wootton, both of Hot Springs, Ark., and Watson, Ess, Groner, Barnett & Whittaker, of Kansas City, Mo., on the brief), for appellant.

Lee Cazort, Jr., of Little Rock, Ark. (Osro Cobb, of Little Rock, Ark., on the brief), for appellee.

Before STONE, SANBORN, and THOMAS, Circuit Judges.

SANBORN, Circuit Judge.

The appellant (defendant) has challenged the validity of a judgment for the appellee (plaintiff) entered upon the verdict of a jury in an action to recover damages for personal injuries alleged to have been sustained by the plaintiff as the result of the negligence of the defendant. The defendant asserts that the court erred in denying its motion for a directed verdict and its subsequent motion for judgment notwithstanding the verdict. The only question for consideration is whether, as a matter of law, the defendant was entitled to a judgment in its favor.

In her complaint the plaintiff alleged that E. W. Mabry, her husband, was, in July, 1940, an employee of the defendant; that she and her husband lived at Blakely, Arkansas, in a house owned by, and rented from, the defendant in a "logging front community entirely owned and controlled by the defendant;" that on or about July 14, 1940, E. W. Mabry was notified by his foreman, the agent of defendant, that Mabry was being transferred to a job at a remote point in the woods and that it would be necessary for him and his family to vacate the house which they were occupying, the defendant requiring Mabry to live at or near the new work in a trailer furnished by the defendant; that Mabry was ordered to begin the new work on Monday, July 15, 1940, and to move out of the house, which defendant had rented and promised to another employee who was to occupy it on that day; that the foreman directed Mabry to use a certain truck of defendant in removing his belongings from the house to the trailer house that he was to occupy at the logging front, or to any other place for safekeeping; that on July 14, 1940 (which was a Sunday), pursuant to the instructions which Mabry had received from his foreman, Mabry and the plaintiff loaded part of their belongings into the defendant's truck and undertook to transport them to a point about thirty miles from Blakely, for storage; that Mabry, while operating the truck upon a highway and while descending a hill, lost control of the truck, due to the absence of means for reducing its speed, and ran it into the "bank of the highway," injuring the plaintiff, who was riding in the truck; that the truck furnished to Mabry by the defendant was to its knowledge in a defective and dangerous condition, because it was without proper brakes and had a worn and defective transmission, which made it impossible for the driver to shift gears and check the speed of the truck in that way; and that the accident and the plaintiff's injuries were due to the negligence of the defendant in furnishing Mabry with the dangerously defective truck, in directing him to use it, and in not warning him of the dangers involved in its use. It is to be noted that the negligence charged is that of the defendant, and not that of Mabry, its employee.

In its answer the defendant admitted that it was the owner of the truck referred to by the plaintiff. The defendant alleged that a short time prior to July 14, 1940, Mabry requested it to loan him the truck to transport his household effects from Blakely, Arkansas, to the home of Mabry's brother in Aly, Arkansas, and that the defendant consented that Mabry might use the truck for that purpose without charge; that defendant "had no knowledge that the plaintiff would or did, if in fact she did, ride or attempt to ride on said truck while the same was so loaned to E. W. Mabry, for the purpose of moving his household furnishings as aforesaid," and that if the plaintiff was riding in the truck she was either a trespasser or a guest, and was not entitled to recover against defendant. The defendant denied that the truck was defective in any respect known to it, and alleged that the condition of the truck was as well known to Mabry as to the defendant. It denied that it was negligent.

Much of the evidence is not in substantial conflict. The accident happened, as alleged, while the plaintiff and her husband were taking part of their household goods to Aly, Arkansas, to be stored. They were using a truck of the defendant which had no usable brakes, and the gears of which could not always be shifted. The accident was due to the defective condition of the truck, which was unfit for the purpose for which it was being used. When Mabry took the truck he knew it was without usable brakes. Some four or five days before the accident Mabry knew that the truck had "hung in gear," and had heard his foreman say that he (the foreman) must have the truck repaired. The evidence does not show with certainty that on the day of the accident Mabry knew that the transmission had not been repaired, but there is no basis in the evidence for an inference that in using the truck he placed any reliance upon repairs having been made. The plaintiff, however, knew nothing about the defective condition of the truck.

The plaintiff's evidence tended to show that Mabry had been directed to take the job of grease man, which required that he move to a small portable house at the point where greasing was done, and which, at the time of the accident, was about a quarter of a mile from the house which he was occupying; that he could not get all of his household effects into the portable house; that the defendant desired to put somebody into the house in which Mabry and the plaintiff were living; that Mabry advised his foreman that he (Mabry)...