Campbell v. Bastian

• Decision Date: 04 March 1963
• Docket Number: No. 5-2916,5-2916
• Citation: 236 Ark. 205,365 S.W.2d 249
• Parties: Odell CAMPBELL, Appellant, v. Morris BASTIAN et al., Appellees.
• Court: Arkansas Supreme Court

Page 249

365 S.W.2d 249

236 Ark. 205

Odell CAMPBELL, Appellant, v. Morris BASTIAN et al., Appellees.

No. 5-2916.

Supreme Court of Arkansas.

March 4, 1963.

H. G. Partlow, Jr., Blytheville, for appellant.

Reid & Burge, Gardner & Steinsiek, Blytheville, for appellees.

McFADDIN, Justice.

This case arises from a traffic mishap between two trucks: one was owned by Appellant Campbell and driven by James Ellis; and the other was owned by appellees, Bastian Truck Service (hereinafter called 'Bastian'), and driven by Dallas Peters. Both vehicles were proceeding in the same direction. The Campbell truck being in front, undertook to turn left to enter the driveway of the Campbell home; and the Bastian truck, undertaking to pass the Campbell vehicle, struck it and caused damage to both vehicles. Bastian filed action for damages; Campbell denied liability and cross complained for his damages. From a jury verdict and judgment for Bastian, Campbell brings this appeal, urging the points now to be discussed.

I. Continuance. The traffic mishap occurred in April 1960; the action was filed in September, 1960; and the case was continued in both the January 1961 term, and the June ¹ 1961 term. In the January 1962 term Campbell filed motion for continuance because of the absence of James Ellis, who was the driver of the Campbell vehicle in the traffic mishap; and the cause was continued for the term. When the new term started in June 1962, Campbell again moved for continuance because of the absence of James Ellis; the motion was denied; and the cause was tried on June 18, 1962. The denial of the motion for continuance in June 1962 is the point here argued.

We find no error committed by the Trial Court in denying the motion for continuance. The record shows that Campbell did not know the present whereabouts of Ellis and could give no assurance that he would be present if a further continuance should be granted. Campbell had obtained one or more continuances because of the absence of Ellis; yet Campbell, even in June 1962, had never located Ellis and could not say when, if ever, Ellis would be present. The Trial Court did not abuse its discretion in overruling the motion. See Black & White Cab Co. v. Doville, 221 Ark. 66, 251 S.W.2d 1005, and cases there cited.

II. Campbell's Motion For Instructed Verdict. At the close of the plaintiffs' case, Campbell moved for an instructed verdict. This motion was denied and such ruling is assigned as error. We find no merit in this assignment. When the Court denied Campbell's motion for an instructed verdict at the close of Bastian's case, Campbell proceeded to introduce his evidence, but did not renew his motion for an instructed verdict at the close of the entire case. In such a situation, Campbell's original motion was waived. Grooms v. Neff Harness Co., 79 Ark. 401, 96 S.W. 135; Ft. Smith Cotton Oil Co. v. Swift & Co., 197 Ark. 594, 124 S.W.2d 1; and Granite Mt. Rest Home, Inc. v. Schwarz, Ark., 364 S.W.2d 306. We add, however, that even if the motion had been made at the end of the entire case, it should have been overruled.

III. Refusal Of Requested Instruction. Campbell presented to the Court his requested Instruction No. 6, which contained this language:

'(B) The driver of a motor vehicle shall not follow another vehicle more closely than is reasonable or prudent having due regard for the speed of such vehicles and the traffic upon and the condition of the highway.'

The refusal of the Court to give the above instruction is assigned as error; but we find this assignment to be without merit. The evidence showed that the Bastian truck was undertaking to pass the Campbell truck when the Campbell truck turned to the left; and the Court gave a series of instructions ² on the duty of a vehicle overtaking and undertaking to pass another vehicle proceeding in the same direction. This was not a case of a vehicle following behind another vehicle, but rather, a case of passing a vehicle; and it would have confused the issues for the Court to have given the 'following too close' instruction in a case where all the testimony showed that it was an 'overtaking and passing' situation.

IV. Agency Of James Ellis. The Trial Court instructed the jury that James Ellis was the agent of Campbell in driving the Campbell truck at the time of the collision; and Campbell insists that such agency was a question for the jury. In other words, Campbell claims that the question of agency should have been submitted to the jury rather than declared as a matter of law. It is true that, ordinarily, agency is a question of fact to be determined by the jury; but agency becomes a question of law for the court when the material facts concerning it are not disputed and only one reasonable conclusion can be drawn therefrom. 3 C.J.S. Agency § 330, p. 325. As the Court of Appeals of Kentucky said in Wolford v. Scott, Nickels Bus Co., 257 S.W.2d 594:

'Where the facts are in dispute and the evidence is contradictory or conflicting the question of agency, like other questions of fact, is to be determined by a jury. However, where the facts are undisputed, the question becomes one of law for the court. Horne v. Hall, supra [(Ky.), 246 S.W.2d 441].'

The Supreme Court of Vermont, in Luce v. Chandler, 109 Vt. 275, 195 A. 246, an automobile case, used this language:

"Where the facts are undisputed and only one inference can reasonably be drawn from them, the court must determine whether they create an agency.' 1 Meacham on Agency (2d Ed.) § 295.

'Clearly the evidence above admits of no...