Chicago Mill & Lumber Company v. Bryeans

• Decision Date: 10 February 1919
• Docket Number: 107
• Parties: CHICAGO MILL & LUMBER COMPANY v. BRYEANS
• Court: Arkansas Supreme Court

209 S.W. 69

137 Ark. 341

CHICAGO MILL & LUMBER COMPANY v. BRYEANS

No. 107

Supreme Court of Arkansas

February 10, 1919

Appeal from Crittenden Circuit Court; R. H. Dudley, Judge; affirmed.

Judgment affirmed.

W. R Satterfield and Chas. T. Coleman, for appellant.

The evidence here is materially different from that on the first appeal. 132 Ark. 282. In the present case there is no evidence to support the verdict. No liability of defendant is proven because (1) Bryeans started the difficulty. (2) If Breysacher started it, it was about a past offense and Bryeans was not acting within the scope of his authority, or (3) regardless of who started it, and took a "personal turn," the killing was prompted by the resentment of Breysacher and was terminated by the master and afterwards renewed by and through the fault of Bryeans. The court erred in its instructions to the jury and there is no evidence to support the verdict and it was error to allow punitive damages. 32 F. 838; 143 N.C. 176; 6 Labatt on Master and Serv., §§ 2286-8; 69 Md. 257; 106 Ark. 115; 115 Ark. 288; 84 Id. 193; 69 Id. 134; 81 Ga 485; 106 Ark. 115.

No case for punitive damages was made. 87 Ark. 123. The instructions are conflicting and misleading. 99 Ark. 377; 110 Id. 197; Crawford's New Digest, 4990, § 89.

J. T Coston, for appellee.

The verdict of the jury settles all questions of fact. Breysacher was the aggressor in the killing and was acting within the scope of his authority. The facts here are more favorable to plaintiff than on the first appeal and there is no error in the instructions given or refused. 200 S.W. 1005-6; 131 Id. 971; 42 Ark. 533; 88 S.W. 582; 6 Labatt M. & S., § 2348; 93 S.W. 600; 52 Id. 834; 18 So. 923; 200 S.W. 7005-6; 56 Id. 171; 44 Ark. 395; 55 Id. 614; 183 Id. 186; 64 Ark. 620; 102 S.W. 702; 126 Id. 378-9; 190 Id. 109; 86 Id. 413; 142 U.S. 23; 64 Ark. 613; 86 S.W. 1005; 87 Id. 442; 56 Ark. 602; 6 Labatt, § 2349. Punitive damages were properly allowed as the objection was a general one. 145 S.W. 567.

HUMPHREYS, J. HART and SMITH, JJ., dissenting.

OPINION

HUMPHREYS, J.

This cause was here on appeal under the style of Bryeans, Admx. v Chicago Mill & Lumber Co., and was reversed and remanded for a new trial on January 21, 1918. The case is reported in 132 Ark. 282, 200 S.W. 1004. Upon remand the case was submitted to a jury upon the pleadings, evidence adduced and instructions of the court. The jury returned a verdict against appellant for $ 9,000 compensatory damages, with interest, and $ 3,000 punitive damages, with interest at the rate of six per cent. per annum from April 4, 1915. A judgment was rendered in accordance with the verdict, except as to interest on the amount of punitive damages. From that judgment an appeal has been prosecuted to this court under proper proceedings. On the first hearing, the trial court acquitted the Chicago Mill & Lumber Company of liability. Upon appeal this court held that the testimony presented questions for determination by a jury and announced the general principles of law applicable to the facts in the case.

It is contended by appellant that the testimony in the record now before the court is materially different from the testimony in the record on the former appeal, and that now, under the undisputed evidence, appellant is not responsible. The suggested differences are that the evidence now shows, and did not show before, that the quarrel was (1) about a past event; (2) that Breysacher did not start it; (3) that it took a personal turn, and (4) that it came to a close through the intervention of appellant's assistant superintendent, after which Bryeans renewed it.

The first point of difference suggested involves that part of the testimony relative to violations of non-interference rules with Breysacher's men by outsiders. Quoting from the statement of the case on former appeal, the evidence on the particular point involved was as follows:

"Bryeans was authorized to haul kindling from appellee's (Chicago Mill & Lumber Company's) box factory, and he was in front of the kindling platform when the killing took place. He had been authorized to haul, and had been hauling kindling from appellee's plant for several years. He had driven his wagon to the platform and was lifting it in position to dump the kindling into it when Breysacher said to him, 'John, you will have to quit giving orders to that negro up there.' The negro at the time was on the kindling platform in the act of dumping a load of kindling into the wagon. * * * 'Furthermore, you have been bothering the men in the shop. Every time you go by, you bother Skinny Morgan; you stop and talk to him.'"

The evidence in the present record disclosed that Bryeans was a preferred wood hauler and near the box factory loading his wagon, when Breysacher opened the conversation with him. Breysacher testified on direct examination that he complained to Bryeans about talking to his men, and called his special attention to the fact he had been talking to Skinny Morgan; that, on that particular occasion, he had not observed Bryeans talking to one of the employees. On cross-examination touching upon this point, Breysacher answered, in response to questions, as follows:

"Q. What did you first say to Bryeans? A. I don't recall word for word. As well as I can remember, I wanted him to quit bothering my men and told him that. There was a negro dumping a load of wood, and, if my memory is right, I told him especially that negro."

It is apparent from Breysacher's testimony that he was not complaining to Bryeans on account of a present interference with his men, but that he was calling his attention to past interferences in order to prevent future interferences. We do not think this fact differentiated the testimony in the present record from that given by F. W. Schatz on the first trial. The evidence of both Breysacher and Schatz showed that the negro was standing near by when Breysacher addressed Bryeans, but Schatz did not testify on the first trial that Bryeans was attempting to give the negro any orders on the particular occasion when addressed by Breysacher. Learned counsel has cited authorities under this heading in support of the contention that the quarrel and killing must have grown out of a present, and not a past infraction against the rule which Breysacher, as foreman, had a right to and was attempting to enforce before appellant, the master, would be responsible in damages for the killing. When the case was here on former appeal, this court held to the contrary under the facts of the case, which are not materially different from the facts now before us. The facts were, and are, that Breysacher had authority to prevent an interference by outsiders with his men. Bryeans was hauling wood from a point near the box factory. Breysacher had control of the men working there. A negro employee was unloading kindling near him. Breysacher claimed to have seen Bryeans talking to his men, and, in order to prevent immediate or further interferences, enjoined Bryeans from talking to the men in the shop. Taking into consideration that both the time and place offered an opportunity for Bryeans to again interfere with the men, this court held on former appeal that Breysacher was acting within the scope of his authority when he took Bryeans to task for having talked to the men and in attempting to prevent further interferences. It is unnecessary to discuss the authorities cited by appellant on this point, because the declaration of the court on former appeal became the law on the second trial of this case. Perry v. Little Rock & Ft. Smith Ry. Co., 44 Ark. 383; Ambleton v. Dyer, 53 Ark. 224, 13 S.W. 926; Vogel v. Little Rock, 55 Ark. 609, 19 S.W. 13.

On the second point of difference suggested, to the effect that the evidence now shows that Breysacher did not start the quarrel, learned counsel for appellant have not pointed out to us the differences in the evidence they contend for, but content themselves with the argument that the court erred on the former appeal in concluding that Breysacher began the quarrel by calling Bryeans' attention to the fact that he had been interfering with his men by talking to them. We have carefully read the testimony given by Breysacher on this trial and by Schatz on the former trial, with reference to the beginning of the controversy, and it seems clear to us that it was started by Breysacher approaching and saying to Bryeans that he must quit bothering the men in the shop, especially that negro who was near by; and in calling his special attention to the fact that he, Bryeans, had been bothering Skinny Morgan by talking to him. At least, it can not be said from the record before us that the undisputed evidence showed that Bryeans began the difficulty.

The third difference suggested is that the undisputed evidence in the present record showed that the killing resulted on account of Bryeans calling Breysacher a G-- d-- liar in relation to personal matters, and in assaulting him with a knife; while on the first trial the evidence tended to show that the killing had relation to the company's business. It is true that Breysacher testified on the second trial that he killed Bryeans in necessary self-defense, and that he did not have in mind the company's business at the time he fired the shot. It is also true that he did not give this testimony on the former trial. There is evidence, however, in the record, from which the jury might have concluded that Bryeans made no attack whatever upon Breysacher before or at the time Breysacher fired the fatal shot. Two witnesses testified that at the time the fatal shot was fired, the parties were six feet apart, and that Bryeans was standing perfectly still with his hands dropped...