Edwards v. Jeffers
| Decision Date | 01 June 1942 |
| Docket Number | 4-6757 |
| Citation | 162 S.W.2d 472,204 Ark. 400 |
| Parties | EDWARDS v. JEFFERS |
| Court | Arkansas Supreme Court |
Appeal from Franklin Circuit Court, Ozark District; J. O. Kincannon Judge; reversed.
Reversed and cause dismissed.
Miles & Young and Mark Woolsey, for appellant.
Carter & Taylor, J. E. Yates and Partain & Agee, for appellee.
OPINION
Appellee Esther Jeffers, and Gordon Jeffers, her husband, joined in a suit under our guest statute against appellants, Irene Edwards and Chester Edwards, in the Franklin circuit court, Ozark district. Esther Jeffers sought to recover $ 15,000 to compensate personal injuries alleged to have been received by her while riding in an automobile owned by appellants and which was overturned. Gordon Jeffers sought to recover $ 2,500 for loss of services, etc. When the case was reached for trial Gordon Jeffers took a nonsuit without prejudice.
Esther Jeffers alleged in her complaint that she was riding in appellants' Buick automobile "at the specific request and insistence of appellants and for their benefit"; that Mrs. Edwards drove the car at a reckless, dangerous and unlawful rate of speed and that while attempting to negotiate a curve on the gravel highway, the car left the road, turned over in a ditch, and as a result she was seriously injured.
She further alleged that her injuries were caused by the willful and gross carelessness of appellants in that Irene Edwards operated the car at a careless and unlawful rate of speed and that her "action and conduct amounted to willful and gross negligence."
Appellants denied every material allegation in the complaint and affirmatively pleaded that appellee, Esther Jeffers, was a guest of appellants at the time of the alleged injuries to her and is barred from recovery of damages under our "guest statute," §§ 1302-1304 of Pope's Digest.
A jury awarded Mrs. Jeffers damages in the amount of $ 3,500 and from the judgment on this verdict comes this appeal.
This cause was tried by the court below on the theory that Esther Jeffers was a guest in appellants' car at the time of the alleged injury. This is clearly shown by the instructions given. Under § 1302 of Pope's Digest a guest is denied the right to recover "unless such automotive vehicle was willfully and wantonly operated in disregard of the rights of the others." Section 1303 provides "The term guest as used in this act shall mean self-invited guest or guest at sufferance." Section 1304 is similar in effect to § 1302 except under this provision certain persons there named are denied the right of recovery under any circumstances.
Appellee requested seven instructions, all of which the court gave. Appellants also requested seven instructions, four of which the court gave. In the instructions requested and given on behalf of the appellee, and those requested and given on behalf of the appellants, the trial court submitted but one issue and that was if appellee, Esther Jeffers, was being transported as a guest in an automobile operated by appellants and that appellant, Mrs. Edwards, drove and operated the car in a willful and wanton manner in disregard of the rights of Esther Jeffers, and such operation amounted to willful and wanton misconduct or negligence on the part of the driver of the car, and as a result Esther Jeffers was injured, then Esther Jeffers should recover. No instruction was requested by either party, and none was given by the court, on the theory that appellee was not a guest at the time of the injury, in which event it would have only been necessary for appellee, Esther Jeffers, to show that appellant, Irene Edwards, failed to use ordinary care in the operation of the car at the time it turned over and injured appellee.
While appellee argues here that she was not a guest within the terms of the statute, supra, it is too late to raise that issue here for the first time. In Brown v. LeMay, 101 Ark. 95, 141 S.W. 759, this court said: "The rule is well settled that when a cause is tried in the lower court upon a definite theory, it cannot for the first time be contended in this court that it should have been tried upon a different one."
And in Southern Insurance Company v. Hastings, 64 Ark. 253, 41 S.W. 1093, this court said:
The primary question presented, and the one decisive of this case, therefore, is: Were the injuries complained of by appellee, Esther Jeffers, occasioned by the willful and wanton negligence of Irene Edwards in the operation of the automobile?
The evidence is to the effect that appellee and appellants were good friends. The Edwards were visitors in the home of appellee in the morning before the accident in the afternoon. On Sunday afternoon, October 13, 1940, while appellee, Esther Jeffers, was a guest in appellants' Buick sedan automobile at a point on state highway No. 96 near Cecil, Franklin county, Arkansas, where the highway makes a sharp or "square" turn, Mrs. Edwards, the driver, lost control of the car, it skidded on the gravel, left the highway and turned over on its side in a ditch and Esther Jeffers was injured. At the time of the accident, Mrs. Jeffers was riding on the front seat with Mrs. Edwards and Mrs. Edwards' husband and their three-year-old daughter were on the back seat. Appellee estimated the speed of the car at between sixty and seventy miles per hour, "maybe faster." Mrs. Edwards estimated the speed at between forty and fifty.
Mrs. Jeffers also testified:
Grady Bearden testified that he heard Mr. Edwards say to his wife "You wasn't driving less than seventy or eighty." And as to the extent of the damages to the car, Mr. Bearden further testified: ...
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