Henshaw v. Henderson
| Decision Date | 21 May 1962 |
| Docket Number | No. 5-2467,5-2467 |
| Citation | 235 Ark. 130,359 S.W.2d 436 |
| Parties | Joe Wilburn HENSHAW, Appellant, v. D. C. HENDERSON, Special Administrator of the Estate of Peggy Henderson, Appellee. |
| Court | Arkansas Supreme Court |
McMillan & McMillan and Otis H. Turner, Arkadelphia, for appellant.
Cole & Scott & Wiley Smith, Malvern, for appellee.
Early in the evening of April 25, 1960, the appellant, Joe Wilburn Henshaw, called at the apartment of Miss Sarah Overturf in the City of Hot Springs with the intention of having Miss Overturf accompany him for an automobile ride.
Sharing the apartment with Miss Overturf was Miss Peggy Henderson. Miss Henderson did not wish to be left alone in the apartment and it was decided that she would accompany the appellant and Miss Overturf. These three parties, in the appellant's new Chevrolet convertible, drove up Central Avenue in Hot Springs toward the race track. At Truman's Tavern the appellant got out and went in by himself and came out with a can of beer. He then drove out the Golf Links Road to a tourist court where it had been planned they would meet a married couple who were friends of both the appellant and Miss Overturf but it was found that the couple was not in.
Either at that time or shortly before, and the time is immaterial, it was suggested that they would drive to Malvern to get a young man of Miss Peggy Henderson's acquaintance who was to be her escort for the evening. Upon leaving the tourist court it appears that the car progressed a short distance when it struck a Plymouth automobile parked near the pavement. The impact inflicted minor damage to the left rear of the Plymouth automobile.
At that point the appellant, as driver of the car, seems to have lost control of the vehicle which partly skidded across the road in a left-hand direction and traveled about 190 feet where it struck a large oak tree. Either at the point of impact or shortly prior thereto the two young ladies were thrown from the car and the force of the impact was such that the Chevrolet convertible was wrecked and subsequently caught fire. Miss Henderson died as a result of the accident and D. C. Henderson, as special administrator of the estate of Peggy Henderson, brought this action in the Circuit Court of Hot Spring County to recover damages for the wrongful death of Miss Henderson.
The case was duly tried before a jury which returned a verdict of $1,750.00 for the estate of Peggy Henderson; the sum of $2,500.00 for Mrs. D. C. Henderson; and $2,500.00 for D. C. Henderson, the Hendersons being the next of kin of the deceased.
Judgment was duly entered and to reverse that judgment the appellant brings this appeal.
The record clearly establishes that both Miss Overturf and Miss Henderson were guests in the car driven by the appellant. Therefore the allegations of the appellee must be viewed in the light of our guest statute. Our guest statute, Ark.Stats. 75-913 [Also 75-915], is as follows:
In establishing the rule as to guests in the case of Simms v. Tingle, 232 Ark. 239, 335 S.W.2d 449, we said:
The status being that of guests, it must be established that the appellant operated the automobile in a wilful and wanton manner in disregard of the rights of others.
In order to establish wilful and wanton negligence on the part of the appellant, appellee has presented some testimony in regard to beer drinking by the appellant and testimony as to the speed at which the appellant operated his automobile. These are matters for the jury's consideration on a retrial of this cause since we find error on which this present cause must be reversed and hence we do not find it necessary to go further into the points thus presented.
It appears from the record that the appellee presented as a witness Glen Minton, a trooper for the Arkansas State Police. Mr. Minton was presented as an expert with thirteen years service with the State Police.
Mr. Minton was permitted to testify, over the objection of the appellant, that he was called to the scene of the accident shortly after it occurred. He described in detail the position of the Plymouth automobile and the Chevrolet convertible; the point where the two girls were found; and the position of the appellant who was unconscious on the front seat of his car and was further permitted to testify that on the morning of the trial he had taken his car, a 1960 Chevrolet, from a dead stop and accelerated as fast as possible for two-tenths of a mile [this being the distance between the motel and the location of the Plymouth that was struck] and that he attained a speed of 75 miles per hour; that it was one of the requirements of his position to estimate the speed of vehicles involved in a collision and that viewing the distance the Chevrolet convertible was out of control and the severity of the impact, he thought the Chevrolet convertible was traveling 80 miles per hour.
Appellant properly objected to this line of testimony. There is no need to resort to expert opinion in the absence of evidence to indicate that it was beyond the jury's ability to understand the facts and draw its own conclusion.
In the case of Conway v. Hudspeth, 229 Ark. 735, 318 S.W.2d 137, we said:
'We do not agree with the appellants' contention that the proffered testimony was admissible as the opinion of an expert. It has been said that the courts look with disfavor upon attempts to reconstruct traffic accidents by means of expert testimony, owing to the impossibility of establishing with certainty the many factors that must be taken into consideration. Moniz v. Bettencourt, 24 Cal.App.2d 718, 76 P.2d 535. In the case at hand the officer was not asked to describe every physical fact that he had seen and then to explain his deductions, in the manner that ballistic experts often explain their conclusion that a certain weapon fired a certain bullet. Here the officer was asked his opinion on the basis of the position of the vehicles, the damage to them, 'and other physical evidence found at the scene.' In the absence of anything to indicate that it was beyond the jurors' ability to understand the facts and draw their own conclusions, there was no need to resort to expert opinion. Missouri Pac. R. Co. v. Barry, 172 Ark. 729, 290 S.W. 942.'
The witness' test was made with a car other than the one involved in the accident and there is no showing that his test was made under the same conditions that prevailed at the time and at the place of the accident. The testimony of a policeman as an expert carries great weight but when it is predicated on conditions different than those under scrutiny it is inadmissible.
The objection of the appellant was timely and should have been sustained. For error in overruling the objection this cause is reversed and remanded for further proceedings not inconsistent herewith.
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