Henry Wrape Company v. Barrentine

• Decision Date: 07 May 1917
• Docket Number: 365
• Citation: 195 S.W. 27,129 Ark. 111
• Parties: THE HENRY WRAPE COMPANY v. BARRENTINE
• Court: Arkansas Supreme Court

195 S.W. 27

129 Ark. 111

THE HENRY WRAPE COMPANY v. BARRENTINE

No. 365

Supreme Court of Arkansas

May 7, 1917

Appeal from White Circuit Court; J. M. Jackson, Judge; reversed.

Cause reversed and remanded.

Brundidge & Neelly, for appellant.

1. The case should be reversed for the improper argument of counsel for plaintiff. 58 Ark. 368; Ib. 473; 61 Id. 130; 63 Id. 174; 65 Id. 625; 70 Id. 305; 72 Id. 427.

2. It was error to refuse to permit defendant to identify and introduce plaintiff's former complaint. 105 Ark. 485; 1 R. C. L., § 34; 10 Id. 34.

3. The court erred in refusing instructions Nos. 7, 8, 9 and 10 as requested. They all told the jury that defendant was not liable unless the person inflicting the injury was at the time under the control of defendant and acting for it. This is the law. 105 Ark. 487.

4. It was error to give No. 5 for plaintiff. It was abstract and misleading. Also in giving No. 6. A peremptory instruction for defendant should have been given. 105 Ark. 485; Sherm & Redf. on Negl. 141; 168 U.S. 135; 199 N.Y. 388; 32 L. R. A (N. S.) 1038; 148 N.Y. 752; 43 N.W. 54.

Rachels & Yarnell, for appellee.

1. There is no error in the instructions given or refused. A case was made for a jury and they were properly instructed. 120 Ark. 206; 123 Id. 266-271; Acts 1907, Act 69; 32 L. R. A. (N. S.) 1038; 105 Ark. 485; 93 Id. 564; 90 Id. 108; 93 Id. 583; 102 Id. 648; 96 Id. 189. No specific objections were made to the instructions given. 96 Ark. 189; 119 Id. 537; 121 Id. 601; 102 Id. 326. But similar instructions were given substantially and the court need not multiply instructions on the same point. 121 Ark. 599-601; 102 Id. 326.

2. There was no prejudice in the court's action refusing to admit the complaint in the first suit. 33 Ark. 251-3; 102 Ark. 326, 640-5, etc. But the complaint is not made part of the bill of exceptions. 74 Ark. 90; 3 Enc. Pl. & Pr. 427; 70 Ark. 368; 124 Id. 161.

3. The remarks of counsel were not prejudicial. But if so, the court cured any possible error. 88 Ark. 62, 72-3, 103 Id 356-9, 100 Id. 437-445; 89 Id. 87. The remarks were merely humorous. 97 Ark. 344; 90 Id 398. No prejudice is shown. 74 Ark. 256, 259; 120 Id. 30.

OPINION

HUMPHREYS, J.

Appellee instituted this suit in the White circuit court against appellant to recover damages in the sum of $ 2,999 on account of an injury to his eye inflicted by a fellow servant negligently throwing a missile and hitting him therein, during the noon hour. Appellant denied the material allegations of the complaint and pleaded contributory negligence on the part of appellee.

A verdict of $ 1,500 was returned in favor of appellee, and a judgment rendered thereon, from which judgment an appeal has been prosecuted to this court.

Prior to the institution of this suit, appellee brought a suit against appellant in the same court, to which appellant filed a demurrer. The demurrer was sustained on the ground that the complaint did not state facts sufficient to constitute a cause of action. The appellee stood upon his complaint and the court dismissed his suit. Appellee then appealed the cause to the Supreme Court and the judgment of the lower court was affirmed. That case is reported under the style of Barrentine v. Henry Wrape Company, 105 Ark. 485, 152 S.W. 158. In that case, this court held that it was the master's duty to use ordinary care to free his premises from known dangers, including dangers from negligent or wilful acts of fellow-servants; that when the fellow-servant Committed the injury by a negligent act, it was necessary for him to be under the control of the master, but not necessary that he be in the strict performance of his duty at the time.

This is the second trial and appeal in the instant case. The court directed a verdict for appellant on the first trial, from which appellee appealed, and the case is reported in Volume 120, Arkansas Reports, page 206. The case was reversed by this court, upon the ground that the evidence tended to establish an issue in favor of appellee herein. In the discussion of the case, the court had occasion to reiterate the rule laid down in Barrentine v. Henry Wrape Company, 105 Ark. 485, 152 S.W. 158, which rule is as follows: "The master owes to his servants, while on his premises to perform service, and also to strangers who rightfully come upon the premises, the duty of exercising ordinary care to free the premises from known dangers, all dangers of which the master is informed. This, of course, includes dangers arising from negligent or wilful acts of the servants. Though it is not essential to the master's liability that the negligent servant should be acting at the time within the scope of his authority, yet it is essential that the master should have control of him or the opportunity to control his actions before the liability attaches on account of his conduct. If the servant in committing the negligent act is not proceeding within the line of his duty, and is not at the time within the control of the master, then the latter is not liable." The above rule is the law in this case, applicable to the facts herein, for the facts now before the court are substantially the same facts presented by the record on the former appeal.

It is insisted by appellant that the court committed error in refusing to give a peremptory instruction. The court on the first hearing of the case gave a peremptory instruction and the cause was reversed for that reason, holding that the facts, under the law, presented an issue to be determined by the jury. We have examined carefully to ascertain whether there are any material changes in the evidence and have been unable to find sufficient additional evidence to justify a peremptory instruction. Learned counsel have not pointed out wherein the evidence in this case differs materially from the evidence on the former appeal.

Appellant contends that the court committed reversible error in giving instruction No. 5, which omitted the words "ordinary care." Appellee contends that these words were carried in instructions Nos. 1 and 4, given by the court on the part of appellee, and instructions Nos. 2 and 3, on the part of appellant, and that it was not necessary to insert these words in instruction No. 5, unless the objection made by appellant to the instruction at the time was specific and not general. Appellee calls the court's attention to the fact that had a specific objection been made the trial court would have inserted the words because they were inserted in other instructions, showing that the court fully understood the law but inadvertently omitted them from instruction 5. Appellee is correct in his contention that doubtful phraseology and verbiage in instructions can be reached by specific...