Ford Motor Co. v. Fish

• Decision Date: 22 May 1961
• Docket Number: No. 5-2416,5-2416
• Parties: FORD MOTOR COMPANY, Appellant, v. Charlie FISH, Appellee.
• Court: Arkansas Supreme Court

Page 469

346 S.W.2d 469

233 Ark. 634

FORD MOTOR COMPANY, Appellant, v. Charlie FISH, Appellee.

No. 5-2416.

Supreme Court of Arkansas.

May 22, 1961.

Wright, Lindsey, Jennings, Lester & Shults, Little Rock, for appellant.

Talbot Field, Jr., Hope, O. Wendell Hall, Jr., Benton, Mehaffy, Smith & Williams, Robert V. Light, Little Rock, for appellee.

McFADDIN, Justice.

This is the second time this case has been to this Court. In the opinion on the first appeal (Ford Motor Co. v. Fish, Ark., 335 S.W.2d 713, decided May 30, 1960) we recited the facts in considerable detail, and reference is hereby made to that opinion for factual recitations. On the first appeal we reversed the judgment for the reasons therein stated, and the cause was remanded. On retrial, there was a jury verdict and judgment in favor of Fish against the Ford Motor Company; and the case is now before us on this second appeal in which the Ford Motor Company urges the two points now to be discussed.

I. The appellant says: 'The evidence was not sufficient to sustain a verdict against appellant, and the trial court should have directed a verdict for appellant.' On the first appeal, the Ford Motor Company urged that it was entitled to a directed verdict; and, in denying that contention, we said: 'There was evidence of specific negligence, though not of the strongest nature. For instance, the witness Mayer testified that the brake was binding, which occasioned his taking it to Cook's Machine Shop to see if the drum was out of round; there was the evidence of the skid mark, and the evidence of Fish himself as to the pull to the right; the testimony that the mechanism had not been disturbed and had remained sealed, and that the drum was an eighth of an inch out of round.' We then concluded, '* * * the judgment is reversed, and the cause remanded.'

On the second trial, the evidence for the plaintiff Fish was practically the same as that in the first trial except: (a) the hypothetical question asked the witness Bearden in the first trial--and held by us to be error--was not repropounded; and (b) the witness Mayer added some details to his testimony in the second trial and also admitted that he did not know how to use a certain gauge discussed by appellant's witnesses. But, with the exception of these items, we cannot discover--and appellant has not shown us--any material difference between the evidence to support the plaintiff's case in the first trial and the evidence to support the plaintiff's case in the second trial. Since we held on the first appeal that the evidence for the plaintiff made a case for the jury, and since we now find--as we do--that the evidence for the plaintiff in the second trial was equal to that in the first trial, it must necessarily follow that the appellant was not entitled to an instructed verdict on the second trial.

In Hallum v. Blackford, 202 Ark. 544, 151 S.W.2d 82, 83, it was insisted that the Court should have directed a verdict. But we pointed out that we had denied that contention on the first appeal and that the plaintiffs' evidence on the second trial was the same as on the first trial; and we said: 'Under the rule many times annunced by this court, the decision on the former appeal becomes the law of the case on this appeal unless we can say that the testimony on this second appeal is substantially different from that on the first appeal. We think it unnecessary to attempt to set out or abstract the testimony presented in this record. Suffice it to say, * * * that after carefully reviewing it and comparing it with the testimony on the first trial, we find no substantial or material difference.' In Missouri Pacific R. R. Co. v. Foreman, 196 Ark. 636, 119 S.W.2d 747, 750, Mr. Justice Donham cited scores of cases on the rule of 'law of the case', and concluded with this language: 'We hold that, since the question as to whether or not the evidence was sufficient to go to the jury in the instant case was settled by this court on the former appeal, there was no error committed by the lower court in submitting the case to the jury on the second trial.'

In McDonough v. Williams, 86 Ark. 600, 112 S.W. 164, 167, Mr. Justice McCulloch used this language: 'Learned counsel for appellant argue, with much zeal an plausibility, that the plaintiff did not make out a case to go to the jury, and that the findings of the jury as to the various essential elements of the alleged cause of action are not supported by evidence. The same question was argued with equal force and confidence when the case was before us on former appeal, but we decided that there was enough evidence to go to the jury. There is little difference in the evidence in the present record and in that presented on the former appeal, and we must treat the former decision as conclusive of the question.'

It is true that in the second trial in the case at bar the Ford Motor Company offered additional witnesses; but the additional evidence was only an effort to contradict and weaken the plaintiff's case, and all such additional evidece did not destroy the fact that the plaintiff had made a case to go to the jury. The decision as to the weight of the evidence was for the jury. The fact remains that we held on the first appeal that the evidence offered by the plaintiff Fish made a case for the jury; and that holding is the law of the case on this appeal since the evidence of the plaintiff was practically the same at...