Ellsworth Bros. Truck Lines v. Mayes
| Citation | 438 S.W.2d 724,246 Ark. 441 |
| Decision Date | 24 March 1969 |
| Docket Number | No. 5--4817,5--4817 |
| Court | Supreme Court of Arkansas |
| Parties | ELLSWORTH BROTHERS TRUCK LINES et al., Appellants, v. S. Hubert MAYES, Jr., Admr., et al., Appellees. |
Rose, Meek, House, Barron, Nash & Williamson, Little Rock, for appellants.
McMath, Leatherman, Woods & Youngdahl, Little Rock, for appellees Mayes and Wise County Bank.
Cockrill, Laser, McGehee, Sharp & Boswell, Little Rock, for appellee Heaggan.
This is an appeal by Ellsworth Brothers Truck Lines and its truck driver, Herbert Roberts, from portions of an adverse judgment in an action for wrongful death brought in the Faulkner County Circuit Court by the personal representatives of Malloy and Adkins, who died instantly on April 10, 1967, in a highway collision in Faulkner County.
The facts revealed by the record are briefly these: Before daylight on April 10, 1967, the appellants' truck and trailer overtook a Plymouth automobile owned and being driven by Mrs. Willie Jean Heaggan. Rain was falling and the blacktop highway was wet and slick. Both vehicles were traveling about forty-five miles per hour with the truck and trailer about two hundred feet behind the Heaggan vehicle. The two vehicles had traveled in this manner for a distance of about two miles when the Heaggan vehicle, in negotiating a curve in the highway, skidded on the wet pavement and Mrs. Heaggan lost control of her automobile. The Heaggan vehicle skidded off of the highway and into a ditch on its right-hand side of the highway. It came to rest bogged down in mud but still headed in the same direction it was originally traveling. Appellant Roberts testified that the Heaggan automobile skidded across the center line of the highway at least twice before it finally left the highway, but Mrs. Heaggan denied that her automobile ever skidded across the center line of the highway.
While the Heaggan automobile was skidding from the highway, a Comet automobile belonging to, and being driven by, the decedent Malloy, approached the scene from the opposite direction and crashed into the left rear tandem wheels of appellants' trailer. The decedent Adkins was a hitchhiking passenger in the Malloy automobile and both Malloy and Adkins were killed instantly by the impact. The air lines to the brakes on the trailer were broken by the impact, thus locking the wheels on the trailer. After the impact the tractor and trailer continued approximately eighty feet on its proper side of the highway with the tractor portion remaining in its proper lane on the pavement, and with the damaged rear portion of the trailer skidding along the shoulder and ditch on its right-hand side of the highway. The truck and trailer came to rest with the tractor in its proper lane on the blacktop, but with the rear-end of the trailer in the ditch with its right front wheel of the rear tandem against the left rear bumper of the Heaggan automobile. The left rear tail light lens on the Heaggan vehicle was broken and that was the extent of the damage to the rear of the Heaggan vehicle.
Hubert Mayes, Jr., administrator of the estate of Charles Malloy, and Wise County National Bank, administrator of the estate of Buddy F. Adkins, sued Ellsworth Brothers Truck Lines, Inc., Herbert F. Roberts and Willie Jean Heaggan. The suit by Malloy's representative was for property damage and funeral expenses on behalf of the estate and for mental anguish on behalf of three surviving children. The suit by Adkins' representative was for funeral expenses on behalf of the estate, and for mental anguish on behalf of the surviving mother and father and five brothers and one sister. Roberts and Ellsworth filed a cross-complaint against Mrs. Heaggan for contribution on any judgment which the administrators might obtain against them and Mrs. Heaggan filed a cross-complaint against Roberts and Ellsworth for personal injuries, as well as for contribution, on any judgment which the administrators might obtain against her.
The trial court directed a verdict for Mrs. Heaggan on the complaint of the administrators and also on the cross-complaint for contribution filed by Roberts and Ellsworth. The jury found in favor of the administrators against Roberts and Ellsworth and for Roberts and Ellsworth on the Heaggan cross-complaint. In other words, the trial court held as a matter of law, that Mrs. Heaggan contributed no negligence at all to the proximate cause of the collision and resulting deaths of Malloy and Adkins and the jury found as a matter of fact, that the appellants contributed no negligence to the proximate cause of Mrs. Heaggan's injuries.
Judgment was entered on the verdict as follows:
'IT IS, THEREFORE, CONSIDERED, ORDERED AND ADJUDGED that the plaintiff Wise County Bank of Wise County, Virginia, administrator of the estate of Buddy F. Adkins, deceased do have and recover from Ellsworth Brothers Truck Lines, Inc. and Herbert F. Roberts the sum of $10,000 each for the use and benefit of Aaron Adkins and Ada Adkins and the sum of $500 each for the use and benefit of Clifford Adkins, Garland Adkins, Donnie Adkins, Emory Adkins, Elsie Adkins, and Raymond Adkins, and the sum of $350 for the use and benefit of the estate of Buddy F. Adkins, deceased. In sum total it is considered, ordered and adjudged that the said administrator recover from the defendants Ellsworth Brothers Truck Line, Inc. and Herbert F. Roberts the sum of $23,350 for the above beneficiaries.
IT IS FURTHER CONSIDERED, ORDERED AND ADJUDGED that the plaintiff S. Hubert Mayes, Jr., Administrator of the estate of Charles Maloy do have and recover the sum of $1,500 for the use and benefit of Patrick Maloy and the sum of $1,000 each for the use and benefit of Charles Maloy and Shannon Cannopash and the sum of $1,750 for the use and benefit of the estate of Charles Maloy, deceased. In sum total it is considered, ordered and adjudged that the said administrator recover from the defendants Ellsworth Brothers Truck Line, Inc. and Herbert F. Roberts the sum of $5,250 for the above beneficiaries.
IT IS FURTHER CONSIDERED, ORDERED AND ADJUDGED that by direction of the court the plaintiffs take nothing from Willie Jean Heaggan on their complaint against her and that the defendants Ellsworth Brothers Truck Line and Herbert F. Roberts take nothing by virtue of their claim for contribution and that both the complaint of the plaintiffs and the cross-complaint of the defendants Ellsworth Brothers Truck Line, Inc. and Herbert F. Roberts against Willie Jean Heaggan is hereby dismissed, to which action the plaintiffs and the defendants Ellsworth Brothers Truck Line, Inc. and Herbert F. Roberts duly note their exceptions.
IT IS FURTHER CONSIDERED, ORDERED AND ADJUDGED that Willie Jean Heaggan take nothing by virtue of her cross-complaint for damages against Ellsworth Brothers Truck Line, Inc. and Herbert F. Roberts.'
The appellants paid part of the judgment in favor of the estate of Adkins, including funeral expenses and damages for mental anguish to the parents and a brother, Clifford, who testified at the trial. The appellants also paid part of the judgment in favor of the estate of Malloy, including funeral expenses and $1,500.00 damages for mental anguish to a son, Patrick, who testified at the trial. The verdict was rendered and the judgment was dated May 14 1968. On June 12, 1968, motion to vacate judgment was filed by Heaggan as follows:
'Comes Willie Jean Heaggan by her attorney, Felver A. Rowell, Jr., and moves the Court to set aside the Judgment of the Court rendered in this cause and grant her a new trial for the following reasons:
(1)--That the Judgment is contrary to the law.
(2)--That the Judgment is contrary to the evidence.
(3)--That the Judgment is contrary to the law and the evidence.
(4)--That the verdict of the jury is inadequate in that the damage does not equal the actual pecuniary injuries sustained.
(5)--That the verdict is not sustained by sufficient evidence and is contrary to law.
WHEREFORE, PREMISES CONSIDERED the defendant and counter-claimant prays that this Court set aside the Judgment of this Court and that a new trial be granted, or in the alternative, that the Judgment be set aside and Judgment entered in favor of this party, notwithstanding the Judgment and for any and all other relief to which she may be entitled in a court of law.'
On August 5, 1968, the trial court granted the motion as follows:
'On this 5th day of August, 1968, there is presented to the Court the Motion of defendant Willie Jean Heaggan to set aside the verdict of the jury finding in favor of Herbert F. Roberts and Ellsworth Brothers Truck Lines, Inc. on her Cross-Claim against them and to vacate that part of the Judgment based thereon and to grant her a new trial, and said defendant appears by her attorney, Felver A. Rowell, Jr., and Ellsworth Brothers Truck Lines, Inc. and Herbert F. Roberts appear by their attorney, J. W. Barron, and the Court being well and sufficiently advised is of the opinion that said Motion should be granted.
IT IS, THEREFORE, CONSIDERED, ORDERED AND ADJUDGED that the verdict of the jury herein finding in favor of Herbert F. Roberts and Ellsworth Brothers Truck Lines, Inc. on the Cross-Claim of Willie Jean Heaggan, and that part of the Judgment rendered in favor of Herbert F. Roberts and Ellsworth Brothers Truck Lines, Inc. on the Cross-Claim of Willie Jean Heaggan, be, and the same are hereby, vacated and set aside and that Willie Jean Heaggan be, and she is hereby granted a new trial on her Cross-Claim against Herbert F. Roberts and Ellsworth Brothers Truck Lines, Inc. to all of which the defendants Herbert F. Roberts and Ellsworth Brothers Truck Lines, Inc. object.'
On appeal to this court the appellants designate the following points for reversal:
'The court erred in directing a verdict for Willie Jean Heaggan on appellants' cross-complaint against her for contribution.
The court erred in granting the...
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