Industrial Farm Home Gas Co. v. McDonald

• Decision Date: 05 March 1962
• Docket Number: No. 5-2605,5-2605
• Citation: 234 Ark. 744,355 S.W.2d 174
• Parties: INDUSTRIAL FARM HOME GAS CO., Appellant, v. Ronald McDONALD, by Gladys McDonald as His Next Friend, and A. C. McDonald, Appellees.
• Court: Arkansas Supreme Court

Page 174

355 S.W.2d 174

234 Ark. 744

INDUSTRIAL FARM HOME GAS CO., Appellant, v. Ronald McDONALD, by Gladys McDonald as His Next Friend, and A. C. McDonald, Appellees.

No. 5-2605.

Supreme Court of Arkansas.

March 5, 1962.

Rehearing Denied April 9, 1962.

Frierson, Walker & Snellgrove, Jonesboro, for appellant.

John Watkins, Paragould, W. B. Howard, Jonesboro, Kirsch, Cathey & Brown, Paragould, for appellees.

HARRIS, Chief Justice.

Ronald McDonald, appellee, a minor, was injured in a collision, between a pickup truck, driven by appellee, and a butane gas delivery truck, owned by appellant, Industrial Farm Home Gas Company, and driven by its employee, James Gathings. The collision took place on a rural road in Greene County in March, 1960, during a time when snow and ice covered the area. The impact occurred at the top of a hill where there is a right angle turn creating a blind curve. The gas truck was proceeding uphill in a westerly direction, ¹ and McDonald, 15 years of age, was approaching the curve from the north. The road, covered with snow and ice, and according to the testimony, extremely slick and dangerous, ran through a deep cut, so that the vision of each party was obscured. According to McDonald, he approached the curve at a speed of about 15 miles per hour, and according to Gathings, he (Gathings) approached at a speed of approximately 5 miles per hour. Admittedly, both operators were driving slowly, and, according to the testimony of each, were about 25 feet apart before they observed each other. It appears from the evidence that this distance was the approximate limit of visibility, and neither could have observed the other earlier. When the drivers came into view, McDonald applied his brakes, and his truck began to skid, striking the gas truck a few inches behind the left head light, and the left fender of appellant's truck striking the left fender of appellant's truck. According to the boy, he had gotten over to the right as far as he could go, and the gas truck was in the middle of the road at the time of the collision. McDonald was unable to say whether any part of his vehicle was across the center of the road. Gathings testified that he had gotten to his right as far as possible, and denied that he was in the center of the roadway. One thing is evident; the road (which was just a dirt, country road, with a little gravel on it) was quite narrow. No one testified as to its width, but photographs in the record establish its narrowness--probably no wider than to permit two vehicles to barely pass.

Suit for personal injuries was instituted against appellant by Gladys McDonald, mother and next friend of the minor, Ronald. Appellant answered, denied negligence, pleaded contributory negligence, and asserted that the negligence of Ronald McDonald exceeded that of appellant; a counterclaim was filed seeking damages to the gas truck in the amount of $175. A third party complaint was filed against A. C. McDonald, Ronald's father, alleging that the former was the owner of the truck, and that he was negligent in trusting the vehicle to his son, who was only 15 years of age. Judgment was sought against the father in the amount of $175. The third party defendant subsequently moved to strike so much of the third party complaint as sought relief under the provisions of the Arkansas Contribution Among Tortfeasors Act, and the motion was granted. The cause proceeded to trial, and after the taking of evidence, was submitted to the jury on interrogatories. The jury found both McDonald and appellant's driver, Gathings, to be negligent, establishing Gathings' negligence at 60%, and McDonald's at 40%. Damages to McDonald were fixed at $7000. Judgment against appellant was accordingly entered by the Court in the amount of $4200 and costs, and the cause dismissed as to A. C. McDonald. From the judgment so entered, appellant brings this appeal. For reversal, several points are urged, and we proceed to a discussion of same.

I.

'The Court erred by informing the jury of the effect of answers to interrogatories on liability of appellant.'

The Court submitted the case to the jury upon interrogatories in the customary form, #1, inquiring if they found Gathings guilty of negligence; #2, if they found Ronald McDonald guilty of negligence; and #3 (if the answer to both questions was 'yes'), the percentage of fault attributable to each. As previously stated, the jury prorated the negligence as 60% to Gathings and 40% to McDonald. After the jury had retired, they subsequently returned to the courtroom and asked the Court a question. The Court answered that question, and the record then reflects the following:

'Foreman of Jury: Another question, in making this on a percentage basis, if, on account of the boy's injuries, do we include, stipulate the damage done to the boy?

'The Court: You determine that, what you feel the weight of the evidence establishes is his damages, what you feel the total compensation should be. The Court: Do you have another question? Foreman of Jury: We want to know, too, if we make this settlement on a percentage basis, the hospital bills we have a record of here, is that going to be on a percentage basis or do we make it in full? The Court: Let me give you an example, perhaps I might clarify this in an example. I am not using the facts in this case at all. Going to use, say 'A' and 'B', who become involved in charges and countercharges of negligence as against each other, each claims to have been damaged. In my example, let us assume the jury says 'A' is 25 percent at fault and 'B' is 75 percent at fault. The jury found, in response to interrogatories, after it made that determination of 25 and 75 percent, as indicated by the interrogatories, since 'B' is 75 percent at fault, which is more than 50 percent, he is not entitled to recover anything, having contributed most of the fault causing the damages. 'A', if the jury funds his damages as established, say for example, to be $100.00, then the total amount of his recovery against 'B' would be $100.00 less 25 percent, which is a deduction made because he contributed 25 percent of the fault that brought about the particular injuries to himself.

(Note: Short conference at Bar of Court.)

'The Court: At the request of counsel, in the event--go back to my example of 'A' and 'B'. In the event the jury found 'A' 50 percent at fault and 'B' 50 percent at fault, in that event, since they are equally at fault, neither can recover against the other any damages and it would not be necessary to make any calculation as to damages.

'The Court: Any other question.

(Note: The jury again retired to consider case.)

'Mr. Walker: The defendant objects to the Court's explanation insofar as the Court undertook to explain to the jury the effect of a finding of negligence in diminution of the damages by showing the result which would follow from a certain percentage of negligence, on the ground that this example tends to inflame the jury and prejudice them to establish a result which would not follow from a fair, unbiased answer to the interrogatories.

'Mr. Howard: Let the record show, the objection was made after the jury retired, counsel stood mute at the time that the Court was instructing the jury.

'Mr. Burris: The third party defendant concurs in the objection and adopts the objection of the defendant.'

Appellant vigorously argues that the Court committed reversible error by informing the jury of the effect of answers to interrogatories. The case of Wright v. Covey, Ark., 1961, 349 S.W.2d 344, is relied upon in support of this contention. In that case, we held that no error was committed because the information given the jury was already known by them, but appellant says that in the matter before us, it is obvious the jury did not already know, nor understand, the effect of the interrogatories. Quoting from its brief:

'It is obvious that the jury did not already know what the Court told them in detail and with illustrations as to how their answers to interrogatories would determine the ultimate outcome of the case. The jury clearly did not understand the effect of the interrogatories or even how they were used and it was quite obvious that they desired to decide the merits of the matter by a general verdict according to their own notions of right and wrong. The effect of the Court's explanation was to afford them the means of determining how to make certain that the plaintiff prevailed, even though they apparently were not convinced that such a result would follow by simple and direct answers to the plain interrogatories which were addressed to them.'

Appellant further states:

'Thus, the Court followed exactly the practice which was condemned in Wright v. Covey, decided Sept. 11, 1961, 108 Law Rep. No. 5, p. 174 at 177 [Ark., 349 S.W.2d 344] where the Court made the following statement: 'The appellants rely upon the rule, often announced in other jurisdictions, which prohibits a trial court, in submitting a case upon special interrogatories, from informing the jury of the effect that their answers may have upon the ultimate liability of the parties. Mitchell v. Perkins, 334 Mich. 192, 54 N.W.2d 293; Grasso v. Cannonball Motor Freight Lines, 125 Tax. 154, 81 S.W.2d 482; Anderson v. Seelow, 224 Wis. 230, 271 N.W. 844. The reason for the rule is that the special interrogatories are intended to elicit the jury's unbiased judgment upon the issues of fact, and this purpose might be frustrated if the jurors are in a position to frame their answers with a conscious desire to aid one side or the other.'

We are unable to consider this contention for no proper objection was made. Appellant's objection does not go to the fact that the Court's statement informed the jury of the effect their answers would have on the ultimate liability of the parties; rather, the objection is that the Court's explanation 'tends to inflame the jury and prejudice them.' We find...