Hodges v. Smith

• Decision Date: 24 October 1927
• Docket Number: 253
• Parties: HODGES v. SMITH
• Court: Arkansas Supreme Court

298 S.W. 1023

175 Ark. 101

HODGES v. SMITH

No. 253

Supreme Court of Arkansas

October 24, 1927

Appeal from White Circuit Court; E. D. Robertson, Judge; modified.

STATEMENT OF FACTS.

J. O Smith sued W. A. Hodges to recover damages for injuries to his person and to his automobile occasioned, as alleged through the negligence of Hodges in driving his automobile against the front wheel of the automobile in which Smith was riding.

According to the evidence for the plaintiff, on the 27th day of January, 1926, about four o'clock in the afternoon, while he was driving a 1922 model Ford truck northward along a public highway in White County, Arkansas, he was overtaken by W. A. Hodges, driving a Dodge sedan, and after the front wheels of the Dodge sedan had passed the truck, Hodges swerved to the right, and his car caught the front wheel of the truck and forced it over an embankment, throwing Smith out and severely injuring him. The son of Smith was riding in the car with him, and positively recognized W. A. Hodges as the man who was driving the Dodge sedan which ran into the Ford truck. Other witnesses near the scene of the accident testified that W. A. Hodges was the person who was driving the Dodge sedan which ran into the Ford truck driven by J. O Smith. While Smith was crossing a bridge, Hodges blew his horn as a warning that he intended to pass Smith. He was driving at the rate of fifteen or twenty miles an hour, while Smith was not going over eight or ten miles an hour. Smith was driving along the right-hand side of the road, and there was plenty of room for Hodges to have passed his car without running into it.

Hodges denied that he was the person who ran into the truck driven by Smith and turned it over the embankment on the side of the road on the day in question.

The jury returned the following verdict: "We, the jury, find for the plaintiff in the sum of $ 100 as actual damages to the truck, and the further sum of &25 for physical damage and the further sum of $ 300 as punitive damages."

From the judgment rendered the defendant has duly prosecuted an appeal to this court.

Judgment in favor of plaintiff.

J. N. Rachels, for appellant.

Mehaffy & Miller and Culbert L. Pearce, for appellee.

OPINION

HART, C. J., (after stating the facts).

It is first earnestly insisted that the judgment should be reversed because the court refused to grant the motion of the defendant for a continuance. According to the evidence for the plaintiff, the accident occurred about four o'clock in the afternoon on January 27, 1926, while he was driving northward in White County, Arkansas, towards Bald Knob. It was the theory of the defendant that on that day his car, which was a Dodge sedan, was in a garage at Bald Knob which was operated by G. T. Henry. Bill Kent worked in the garage, and, in his motion for a continuance, the defendant set up that he could prove by Kent that, for several days before the alleged accident, he was the only mechanic that had worked on the defendant's car, and that the defendant's car was in the garage where he worked all day on the 27th day of January, 1926. The record shows that the defendant testified to this fact, if fact it was, and that he was corroborated by the testimony of the keeper of the garage. The complaint of the plaintiff alleges that the accident occurred on the 27th day of January, 1926, and this put the defendant on notice that he was charged with having negligently run into the plaintiff's car on that day north of a concrete bridge across Gin Creek, in White County, Arkansas, while said car of the plaintiff was traveling in a northerly direction. This put the defendant on notice of what he should prove as a defense to the action, and that, if he claimed he was not the person who overtook the plaintiff in an automobile and negligently ran into the car driven by the plaintiff, he could prove such fact by showing that he was at another place on that day. It could not be said that he could only prove his whereabouts by the owner of the garage and a mechanic working therein. It cannot be said that his defense to the action could only be established by showing that his car was in a garage in Bald Knob. He could have shown that he was not the person who ran into the plaintiff by establishing that he was at another place at the time the accident occurred. Hence the testimony of Kent was cumulative merely, and the court did not abuse its discretion in refusing to grant the defendant a continuance on account of the absence of Kent. Spear Mining Co. v. Shinn, 93 Ark. 346, 124 S.W. 1045; and El Dorado Ice & Cold Storage Co. v. Dingle & Kincaid, 173 Ark. 506, 292 S.W. 690.

Again it cannot be said that the defendant made a sufficient showing of diligence in the matter within the rule announced in Finley v. Clift, 164 Ark. 190, 261 S.W. 391, and in numerous other cases decided by this court. According to the allegations of the complaint, the...