Bailey v. Stewart
| Decision Date | 11 February 1963 |
| Docket Number | No. 5-2897,5-2897 |
| Citation | 364 S.W.2d 662,236 Ark. 80 |
| Parties | John M. BAILEY, Appellant, v. John L. STEWART et ux., Appellees. |
| Court | Arkansas Supreme Court |
Williams & Gardner, Russellville, for appellant.
Jeff Mobley, Russellville, for appellees.
This is an action by Mr. and Mrs. John L. Stewart to recover damages for personal injuries suffered by Stewart in a traffic accident and for the ensuing loss of consortium suffered by his wife. The defendant Bailey appeals from a judgment, entered upon a jury verdict, awarding $10,000 to the husband and $1,000 to the wife. The appellant questions the sufficiency of the evidence and the amount of each award.
It is first contended that Bailey was entitled to a directed verdict, for the reason that Stewart's injuries were caused solely by the negligence of a third person, Jimmy F. Cossey. We think the court was right in submitting the case to the jury, whose verdict found Bailey and Cossey to be joint tortfeasors, with 50 per cent of the total negligence being attributed to each of them.
The accident happened on a November afternoon near a drive-in cafe in Dardanelle, where Stewart was standing outside a window provided for take-out purchases. Cossey, driving a car owned by Don Duvall, and Bailey, driving his two-ton truck, were approaching the vicinity of the cafe from opposite directions. Cossey attempted to turn left, across Bailey's traffic lane, to enter the cafe parking area. Cossey testified that he signaled his intention to turn, with his arm and with his signal light, and that he though he could turn safely in front of the truck, which was still some distance away. In this thought Cossey proved to be mistaken. Bailey's truck, after laying down 42 feet of skid marks, struck the righthand side of Cossey's car, which had almost completely left the street, and knocked it with great force against a parked truck. The latter vehicle rolled forward and pinned Stewart to the wall of the cafe, causing serious and painful injuries to both his legs.
We think it plain that the issue of Bailey's negligence involved a question of fact for the jury. Bailey testified that Cossey did not give a signal of any kind. The jury could have found, however, that the signal was actually given and that consequently Bailey was guilty of negligence in failing to observe it and thereby avoid the collision.
We do not consider Mrs. Stewart's $1,000 judgment to be excessive. A wife's right to recover for loss of consortium was recognized by our decision in Missouri Pacific Transportation Co. v. Miller, 227 Ark. 351, 299 S.W.2d 41. Stewart was 36 years old at the time of his injury. He was confined to a hospital for eleven days and to his home for six weeks. During much of this time he was completely helpless, lying in bed with at first both legs and later one leg suspended in the air in a cast. Mrs. Stewart acted in the home as her husband's nurse, giving up her job to be with him constantly and to attend to all his physical needs. It was about six months before Stewart was able to walk without crutches. In the circumstances it cannot be said that the verdict for Mrs. Stewart is so excessive as to require a reduction in this court.
This brings us to the principal question in the case: Did the trial judge, in entering a judgment in favor of Stewart for $10,000, correctly interpret the jury's answer to a special interrogatory upon the subject of Stewart's damages? The appellant contends that the award should have been credited with a settlement of $9,000 that Stewart had received from Cossey and Duvall, leaving a net liability against Bailey of only $1,000.
Bailey, the original defendant, brought Cossey and Duvall into the case as third party defendants. They pleaded, and subsequently proved, that they had extinguished their liability by the payment of $9,000 to Mr. and Mrs. Stewart. The release which the Stewarts executed, and which was introduced at the trial, recited that it was intended to conform to the Uniform Contribution Among Joint Tortfeasors Act and to relieve Cossey and Duvall from any liability for contribution. Ark.Stats.1947, § 34-1005, was referred to in the release.
The trial judge, in instructing the jury, explained that the Stewarts' execution of the release did not relieve Bailey from liability, but the court did not indicate to the jury whether or not Bailey was entitled to benefit by the $9,000 compromise settlement. Instead, the trial judge told the jury that he would be able to enter a proper judgment if the jurors answered certain interrogatories, among which the following (with the jury's answers) are pertinent to this appeal:
'1. Do you find from a preponderance of the evidence that the...
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