Brundrett v. Hargrove

• Decision Date: 11 May 1942
• Docket Number: 4-6756
• Citation: 161 S.W.2d 762,204 Ark. 258
• Parties: BRUNDRETT v. HARGROVE, ADMINISTRATRIX
• Court: Arkansas Supreme Court

161 S.W.2d 762

204 Ark. 258

BRUNDRETT v. HARGROVE, ADMINISTRATRIX

4-6756

Supreme Court of Arkansas

May 11, 1942

Appeal from Independence Circuit Court; S. M. Bone, Judge; reversed and dismissed in part; affirmed in part if remittitur is entered.

Judgment affirmed otherwise reversed and cause remanded.

R W. Tucker and Arthur L. Adams, for appellant.

Dene H. Coleman and S. M. Casey, for appellee.

MCHANEY J. HUMPHREYS, J., dissents from both orders. MEHAFFY, J dissents from order on pain and suffering.

OPINION

MCHANEY, J.

Appellant operates two buses, one of which he drives himself and one driven by his employee, Price, between Batesville and Oil Trough, for the transportation of passengers for hire, each making two round trips daily. Price lives about one mile from Oil Trough on the highway to Batesville over which the bus line operates. Appellant operates under a permit so to do from the Corporation Commission and carries liability insurance, as he is required to do as a common carrier. With the knowledge and consent of appellant, Price drives his bus to his home and keeps it there over night, after completing his runs, and returns to Oil Trough the following morning to begin his schedule of trips to Batesville and return. In addition to his regular trips as above stated, appellant made special trips, called "show trips," three nights per week, including Saturday nights, to the south and east of Oil Trough, for the purpose of transporting patrons to and from the picture show in Oil Trough. He usually made these "show trips" himself, but occasionally he had Price make them.

On December 21, 1940, Price was directed to make the "show trip," and, as was customary, after completing his day runs, drove his bus to his home to get his dinner and to bring his wife and children to the picture show. On his return to Oil Trough after dinner, his bus collided with a bicycle on which appellee's adult son and intestate, M. M. Hargrove, was riding, resulting in the death of the latter.

This action was brought by appellee, now deceased, to recover damages for the death of his son, charging negligent operation of the bus. It was defended on the grounds, among others, that at the time of the accident Price was not on the business of appellant, but on a mission of his own, outside the scope of his employment; and that there could be no recovery for conscious pain and suffering because deceased was killed instantly.

Trial resulted in a verdict and judgment in favor of appellee for $ 5,000 for loss of contributions of his adult son and for $ 2,500 for the benefit of his son's estate for conscious pain and suffering. This appeal followed in due course.

The judgment was rendered October 21, 1941. On April 6, 1942, the death of appellee, Monroe Hargrove, was suggested and conceded as having occurred on March 23, 1942, and this court entered an order that the case be revived in the name of Lillian Hargrove as administratrix in succession. On April 4, 1942, after both parties had filed briefs, appellant filed in this court his petition and brief to abate the action as to contributions because of the death of Monroe Hargrove, and this is the first question we have for determination. It is conceded that, if Monroe Hargrove, the father, had died prior to the judgment, the action as to him for loss of contributions would have abated and we agree with this concession. Appellant cites and relies upon the case of Jenkins v. Midland Valley R. Co., 134 Ark. 1, 203 S.W. 1, construing and applying what are now §§ 1273, 1277 and 1278 of Pope's Digest. We think this case is not in point as it was held that the right of action of the widow for the death of her husband did not survive her death. She died before judgment. Here, the case proceeded to judgment and was appealed to this court and briefed, before the death of Monroe Hargrove. The general rule is stated in 1 Am. Jur. 62, as follows: "The general rule is that an action is not abated by death after judgment. The action ceases upon a judgment, and, subject to the right of review, cannot be affected by events happening thereafter. . . ." C. J. S., § 167, says: "It is well settled in most jurisdictions that an action is not abated by the death of a party after the cause of action has been merged in a final judgment and while the judgment stands, even though the judgment is based on a cause of action which would not survive the death of a party before judgment." The adjudicated cases appear to support the general rule, so the motion to abate is denied.

For a reversal of the judgment, appellant first contends the court erred in permitting one of counsel for appellee to ask the members of the jury panel, over his objections and exceptions, on voir dire, whether any of them were connected, "directly or indirectly with any insurance company that carries liability insurance on trucks or carriers for hire, such as buses." We see no objection to the form of the question, which seems to be appellant's principal objection to it. The statute, § 2025 of Pope's Digest, as amended by Act 203 of 1939, requires all such carriers to carry a surety policy or bond for the protection of all persons and property from damages caused by the negligent operation of the motor vehicle carrier. Conceding that the object of the question was to inform the jurors of the existence of insurance and that appellant would not have to pay any judgment they might render, the question did not give them any information they did not presumptively already have. We think this matter is ruled adversely to appellant by Mo. Trans. Co. v. Talley, 199 Ark. 835, 136 S.W.2d 688. Nor can we say the question was asked in bad faith, even though the attorney knew all the jurors.

It is next urged that the court should have directed a verdict for appellant at his request, because Price was not on his master's business at the time of the accident. This question was submitted to the jury in instructions that told them that if he were on an errand of his own, in which appellant had no interest and with which he was in no manner connected, their verdict should be for appellant. But, if...