East Texas Motor Freight Lines, Inc. v. Freeman

• Citation: 713 S.W.2d 456,289 Ark. 539
• Decision Date: 21 July 1986
• Docket Number: No. 85-240,85-240
• Parties: EAST TEXAS MOTOR FREIGHT LINES, INC., Appellant, v. Ellen FREEMAN, Denise Clark, Ted Clifton Tullos, Sr., Individually and For the Use and Benefit of Ted Clifton Tullos, Jr., A Minor, and Clifford Gillespie, Appellees.
• Court: Supreme Court of Arkansas

Page 456

713 S.W.2d 456

289 Ark. 539

EAST TEXAS MOTOR FREIGHT LINES, INC., Appellant, v. Ellen FREEMAN, Denise Clark, Ted Clifton Tullos, Sr. Individually and For the Use and Benefit of Ted Clifton Tullos, Jr., A Minor, and Clifford Gillespie, Appellees.

No. 85-240.

Supreme Court of Arkansas.

July 21, 1986.

Wright, Lindsey & Jennings by Lee J. Muldrow and Gregory T. Jones, Little Rock, for appellant.

Hale, Fogleman & Rogers by Joe M. Rogers, West Memphis, Moore, Moore-Hart & Barton, Osceola, for appellees.

HAYS, Justice.

At about 6 o'clock on the evening of June 15, 1981 eleven vehicles collided in dense smoke along a stretch of Interstate Highway 55 in Crittenden County, Arkansas. Earlier that day farm workers of Clifford Gillespie set fire to a wheat field being prepared for soybean planting. The wheat field was to the east of the highway and the smoke carried to the west, primarily affecting north bound traffic.

Appellee Ellen Freeman was driving her car in a north bound lane with her daughter, Denise Clark, and her grandson Cliff Tullos, Jr., who are also appellees, riding as passengers. When Mrs. Freeman encountered the smoke she reduced her speed and as vision became increasingly difficult she saw one vehicle in the left lane and a tractor trailer of Abbott Laboratories, driven by Donald Sosnowski, partially blocking the right lane. She came to a stop and moments later an East Texas Motor Freight tractor trailer struck her vehicle and the Abbott vehicle simultaneously. It's driver, Noble McCreary, died in the collision.

This litigation in Crittenden County began when Abbott filed an action against East Texas Motor Freight, Ellen Freeman, Clifford Gillespie and others. Denise Clark and Ted Tullos intervened seeking damages for their injuries and Mrs. Freeman claimed damages for property loss and personal injuries against Gillespie and East Texas Motor Freight. There were cross claims for contribution.

Subsequently the wife and children of Noble McCreary filed a wrongful death action in federal court against Clifford Gillespie. Ellen Freeman, ETMF and others were joined as third party defendants in that litigation for purposes of contribution. In the course of those proceedings the district judge entered an order that all parties would be deemed to have sought contribution from all other parties and all such claims would be treated as disputed. Mrs. Freeman tried unsuccessfully to consolidate her claims in state court with the proceedings in federal court.

The federal case was tried in September of 1983 and resulted in verdicts in favor of McCreary's heirs and other claimants against Gillespie. The jury found that Gillespie was entirely at fault and that McCreary, Freeman and Sosnowski were not at fault.

Based on those findings ETMF moved for summary judgment in the state proceedings on grounds of res judicata and alternatively that Freeman, Clark and Tullos were collaterally estopped from relitigating the issues in state court. Summary judgment was denied and the case was tried, resulting in verdicts against ETMF for Mrs. Freeman of $41,849 for Ms. Clark of $27,086 and for Ted Tullos of $325. Gillespie was exonerated. A remittitur of $12,000 was ordered by the trial court as to the verdict on behalf of Mrs. Freeman.

ETMF has appealed. Appellees are Freeman, Clark, Tullos and Gillespie. Our jurisdiction attaches because the case involves the law of torts. Rule 29(1)(o).

ETMF challenges the trial court's rulings on the issues of res judicata and collateral estoppel, the admissibility of the testimony of a state trooper, the propriety of several jury instructions, in limiting the cross-examination of Ellen Freeman, and in allowing prejudgment interest on the property damage award.

Res Judicata and Collateral Estoppel

The similarity between the doctrines of res judicata and collateral estoppel has been the cause of some confusion, but the two are distinct. Res judicata or claim preclusion bars the relitigation of issues which were actually litigated or which could have been litigated in an earlier suit. Allen v. McCurry, 449 U.S. 90, 101 S.Ct 411, 66 L.Ed.2d 308 (1980). Whereas, collateral estoppel requires four elements before a determination is conclusive in a subsequent proceeding: 1) the issue sought to be precluded must be the same as that involved in the prior litigation; 2) that issue must have been actually litigated; 3) it must have been determined by a valid and final judgment; and 4) the determination must have been essential to the judgment. Newbern, Arkansas Civil Practice and Procedure (The Harrison Company, 1985) § 26-12, p. 262. Smith v. Roane, 284 Ark. 568, 683 S.W.2d 935 (1985); Lovell v. Mixon, 719 F.2d 1373 (8th Cir.1983).

Here, Denise Clark and Ted Tullos were not parties to the federal case, and Mrs. Freeman was joined only for purposes of contribution. Mrs. Freeman was not obligated to counter-claim against ETMF in the federal action because of her pending state claim. See F.R.C.P. 13(a). Moreover, the attempt to consolidate her claims pending in state court with the federal action was rejected by the federal judge. Hence, the issues involving the liability of ETMF for the injuries and property claims of the appellees, Freeman, Clark and Tullos, had not been litigated prior to the trial in Crittenden County.

In several cases we have applied the doctrine of collateral estoppel to attempts to relitigate issues of negligence where the liability was derivative. In Barnett v. Isabell, 282 Ark. 88, 666 S.W.2d 393 (1984), the Barnett family, after successfully suing the employer of Robert Isabell, sued Isabell for injuries arising out of the same occurrence. We affirmed the trial court's granting of summary judgment because the liability was entirely derivative and the issues had been decided. The rationale for the doctrines is the policy of the law to end litigation "by preventing a party who had had one fair trial of a question of fact from again drawing it into controversy ..." See also Davis, Admn. v. Perryman, 225 Ark. 963, 286 S.W.2d 844 (1956) and Ted Saum & Co. v. Swaffar, 237 Ark. 971, 377 S.W.2d 606 (1964).

But we have never extended the concept of collateral estoppel to the point that claimants who have had no trial at all, nor any opportunity to present their claims, are precluded by the outcome of litigation to which they were not privy. We believe justice preserves to everyone the right to his "day in court."

Testimony of Trooper Whitley

ETMF insists the trial court should have granted its motion for a mistrial when the trial court permitted State Trooper Terrie Whitley, to testify about "extra" skid marks which could be seen in photographs of the accident scene but which she had not observed during her investigation, nor noted on her accident report. On her accident report she indicated the ETMF vehicle had twenty-four feet of skid marks. ETMF contends the effect of the trial court's ruling qualified Trooper Whitley to testify on accident reconstruction which she was not competent to do.

We have been unable to find anything in the officer's testimony which is particularly damaging to ETMF. The length of the "extra" skid marks is never stated and so far as we can determine, the testimony may have been inconsequential. The only conceivable conclusion which might arise from extra skid marks would relate to the speed and the officer made it perfectly plain that she was not able to determine the speed of any of the vehicles and made no attempt to do so. The officer's testimony involved essentially what she could see in several photographs. All parties were permitted to question her on these details and the trial court offered to caution the jury to make its own interpretation of the photographs. The offer was refused. In short, we find nothing in Officer Whitley's testimony that meets the requirement of substantial prejudice under Rule 103 of the Uniform Rules of Evidence.

Future Pain and Suffering

ETMF urges the jury should not have been instructed to consider future pain and suffering, mental anguish or the permanency of injuries in assessing damages. We concede the proof is marginal but on balance we cannot say it was so deficient as to fail to produce a submissible issue for the jury. No hard and fast rule exists by which to test the permanency of injuries and to a degree each case must be examined on its own.

ETMF cites St. Louis Iron Mountain & Southern Ry. Co. v. Bird, 106 Ark. 177, 153 S.W. 104 (1913) and other cases holding that a jury may not consider any claims for permanent injuries unless they are proved to a reasonable certainty, supported by affirmative proof of permanency. Midwest Bus Lines, Inc. v. Williams, 243 Ark. 854, 422 S.W.2d 869 (1968).

Ms. Clark testified that she sustained a head injury and suffered nausea, vomiting and severe and continuing headaches up to the time of trial, a period of approximately three and a half years. Viewing that testimony in a light most favorable to the appellees a jury could conclude that consequences of injuries which continue over three and a half years will occur in the future. Bailey and Davis v. Bradford, 244 Ark. 8, 423 S.W.2d 565 (1968). Moreover, lay testimony without expert corroboration is sufficient. Id.

Mrs. Freeman's injuries are more emotional than physical. She sustained a blow to the forehead, a cut on her back and a contusion on her leg the size of a fist. Ms. Clark testified that since the accident her mother avoids driving or permitting her grandchildren to go with her when she is driving, that she makes excuses to keep from driving and becomes a "total wreck" a couple of days before a trip; that she "goes all to pieces just from driving" home from Ms. Clark's house and is paranoid about 18-wheelers behind her.

While we have held that future pain and permanency must be established with reasonable certainty and not left to the jury's speculation and conjecture, Handy Dan...