Arkansas Baking Co. v. Wyman

• Decision Date: 22 February 1932
• Docket Number: 158
• Citation: 47 S.W.2d 45,185 Ark. 310
• Parties: ARKANSAS BAKING COMPANY v. WYMAN
• Court: Arkansas Supreme Court

47 S.W.2d 45

185 Ark. 310

ARKANSAS BAKING COMPANY v. WYMAN

No. 158

Supreme Court of Arkansas

February 22, 1932

Appeal from Desha Circuit Court; T. G. Parham, Judge; affirmed.

Affirmed.

A W.Taylor and DeWitt Poe, for appellant.

Compere & Compere, for appellee.

OPINION

MCHANEY, J.

Appellee sued appellant for damages for the injury and death of his infant son, seven years of age, caused by the alleged negligence of appellant in driving its automobile truck against that of appellee while driving along a highway between Warren and Monticello, both traveling in the same direction. The accident occurred on the 26th day of December, 1930. The appellant's bread truck was driven into the rear end of appellee's truck with such force and violence as to dislodge and throw to the ground several persons riding on the rear of appellee's truck. Appellee, his wife and three children were riding in the cab of the truck, the little son, Wayne, sitting between his mother and father with his feet hanging down and his back some distance from the back of the seat. It is alleged that the impact from the collision threw the child back against the back of the seat in such a way as to injure the back of his head and neck near the base of the brain, causing a severe and painful injury, from which he died on January 16, 1931. Appellant denied the material allegations of the complaint, and the case was tried to a jury, which resulted in a verdict and judgment against appellant in the sum of $ 5,000 for the benefit of the estate for pain and suffering, and in the sum of $ 3,806.50 "for the benefit of the next of kin for medical bills, funeral expenses and loss of services during minority."

For a reversal of the judgment, it is first insisted that the evidence is insufficient to support the verdict; that it does not show that the deceased received any injury in the accident; and that it was impossible for the deceased to have received an injury at the place alleged by reason of the accident. It is true that at the time of the accident, which is undisputed, appellee did not know that his son had received an injury and did not know it for some days thereafter, although he knew that his little son was complaining about his head hurting him. At the time of the accident, as stated above, four or five persons riding on the rear of the truck were thrown out, and all the others except the deceased got out of the car account of the accident. Appellee soon discovered that there was no substantial damage to his car, and, although his car was knocked 40 or 50 feet down the road and they were all considerably shaken up, appellee did not know any person had been seriously injured. Dr. Smith, who examined the child about eighteen days after the accident, testified that the child had an injury at the back of his neck, about the edge of the hair and that such injury was caused from a lick received in that place. The evidence further shows that the child began complaining about his head shortly after the accident, and that he continued so to complain until his death. Shortly after the accident appellee discovered that bloody water was coming from the child's ears and nose, took the child to a physician who made a perfunctory examination and prescribed a wash for the bloody discharge. This physician was not advised that the child had been in an accident, as it did not occur to appellee at that time that he was suffering from an injury received therein. We think the evidence was sufficient to take this question to the jury under all the facts and circumstances, especially so in view of the fact that the child did not get out of the truck with the others during the excitement caused by the accident, and began to complain of his head hurting him only a short time after leaving the place of the accident. Nor do we think we can say as a matter of law that it was impossible for the child to have received the injury it did receive in the place and in the manner stated. This was a question for the jury. The evidence when viewed in the light most favorable to appellee, as we must do in determining its sufficiency, was such that the minds of reasonable men might differ as to the cause of the injury, and we cannot set the verdict aside on this account.

It is next insisted that there is no sufficient showing that the truck that caused the accident was appellant's property was being used at the time of the accident in its business, or that the driver of the truck was in its employ and that he was engaged in the business of appellant at the time of the accident. It is undisputed that the truck that caused the accident had appellant's name printed or painted thereon. It is further undisputed that this truck, or a like truck bearing the name of appellant, traveled over this highway daily. The evidence further shows that a short time prior to the accident, while appellee and another were in Warren they saw this same truck and the same driver who caused the accident delivering bread or other articles of merchandise to a customer in Warren. We think this evidence sufficient to establish the fact that the truck belonged to appellant, and that it was being operated at the time of the accident by its employee, and that this was sufficient to raise the inference that at the time of the accident he was acting within the scope of his employment and in the furtherance of his master's business. steel. Yantis-Harper Tire Co., 183 Ark. 912, 36 S.W.2d 406; Mullins v. Ritchie Grocer Co., 183 Ark. 218, 35 S.W.2d 1010; Terry Dairy Co. v. Parker, 144 Ark. 401, 223 S.W. 6. The facts established were sufficient to take this question to the jury, aside from the admissions of appellant's counsel made in his...