Jernigan v. Cash, 89-29

• Decision Date: 10 April 1989
• Docket Number: No. 89-29,89-29
• Citation: 767 S.W.2d 517,298 Ark. 347
• Parties: Russell Gene JERNIGAN, Appellant, v. Hubert Lynn CASH and James H. Wilson, Appellees.
• Court: Arkansas Supreme Court

Page 517

767 S.W.2d 517

298 Ark. 347

Russell Gene JERNIGAN, Appellant, v. Hubert Lynn CASH and James H. Wilson, Appellees.

No. 89-29.

Supreme Court of Arkansas.

April 10, 1989.

Dale Lipsmeyer, Morrilton, for appellant.

Lizabeth Lookadoo, Walter A. Kendel, Jr., Little Rock, for appellees.

HOLT, Chief Justice.

Appellee Hubert Lynn Cash filed suit against appellant Russell Gene Jernigan alleging that Jernigan damaged Cash's automobile by negligently driving his own automobile into Cash's. Jernigan denied this allegation and moved to join appellee James H. Wilson, whose vehicle was also damaged in the incident, as a plaintiff pursuant to Ark.R.Civ.P. 19(a). The trial court granted his motion. After trial without jury, the trial court found that Jernigan was negligent and entered judgment for Cash in the amount of $7,500.00 and for Wilson in the amount of $1,143.16. From this order, Jernigan appeals. We find that the trial court erred in allowing an amendment to Cash's complaint and reverse and remand.

On June 7, 1986, Jernigan and a friend, Hayden Booth, went to the "Party Tyme" bar in Morgan, Arkansas. Jernigan had several drinks and then started playing pool. A stranger, hereinafter referred to as John Doe, approached Jernigan and began harassing him. John Doe was asked to leave "Party Tyme" but returned a short time later and renewed the harassment. Eventually, both Jernigan and Booth were asked to leave "Party Tyme" because they were arguing loudly. While Jernigan and Booth were sitting in Jernigan's car with the motor running in a parking lot adjacent to "Party Tyme," Jernigan was approached by John Doe, who began to hit him through the open window. John Doe then told Jernigan to get out of the car; Jernigan refused. Thereafter, John Doe informed Jernigan that if he would not get out of the car, he would shoot him. According to Jernigan, Doe drew a gun from his waist. Booth testified that he heard the threat but did not see a gun. Jernigan put his vehicle in gear, backed up, and drove off in an erratic manner, running into several vehicles, two of which were owned by appellees. Jernigan exited his car immediately and ran from the scene.

Jernigan first contends that there was no substantial evidence for the trial court to find him negligent in that he acted reasonably in an emergency situation.

When a case is tried by a circuit court sitting without a jury, our inquiry on appeal is not whether there is substantial evidence to support the factual findings of the court, but whether the findings are clearly erroneous (clearly against the preponderance of the evidence). Bassett v. Hobart Corp., 292 Ark. 592, 732 S.W.2d 133 (1987). See also Superior Improvement Co. v. Mastic Corp., 270 Ark. 471, 604 S.W.2d 950 (1980). In reviewing a finding of fact by a trial court, we consider the evidence and all reasonable inferences therefrom in a light most favorable to the appellee. McCartney v. McLaughlin, 296 Ark. 344, 756 S.W.2d 907 (1988).

The test for negligence is whether the defendant, in light of all the circumstances, acted as a person of ordinary prudence would have acted under the same or similar circumstances. Earnest v. Joe Works Chevrolet, Inc., 295 Ark. 90, 746 S.W.2d 554 (1988). Verson Allsteel Press Co. v. Garner, 261 Ark. 133, 547 S.W.2d 411 (1977).

When a person is confronted with a sudden emergency created by the conduct of another, his course of conduct must be measured by what a man of ordinary prudence would do in an emergency, rather than what he might do on more mature deliberation. James v. South Central Stages, Inc., 160 F.Supp. 288 (W.D.Ark.1958); Keene v. George Enterprises, 145 F.Supp. 641 (W.D.Ark.1956). See Lambert v. Saunders, 205 Ark. 717, 170 S.W.2d 375 (1943); Missouri Pacific Transportation Co. v. Mitchell, 199 Ark. 1045, 137 S.W.2d 242 (1940). See also Restatement (Second) of Torts § 296 (1965). The existence of an emergency does not automatically absolve one from liability for his conduct; the standard still remains that of a reasonable man under the circumstances. Ferrer v. Harris, 55 N.Y.2d 285, 434 N.E.2d 231, 449 N.Y.S.2d 162 (1982).

The fact that a person was voluntarily intoxicated at the time of the occurrence can be considered by the trier of fact in determining whether he was negligent. See Mills v. Silbernagel & Co., 204 Ark. 734, 164 S.W.2d 893 (1942); Powell v. Berry, 145 Ga. 696, 89 S.E. 753 (1916). See also Inderrieden v. Phillips, 294 Ark. 156, 741 S.W.2d 255 (1987). Ordinary care is measured by what a prudent sober man, not a prudent intoxicated man, would do under like circumstances. Little Rock Ry. & Elec. Co. v. Billings, 173 F. 903 (8th Cir.1909); Powell, supra.

When viewed in a light most favorable to appellees, the evidence shows that Jernigan drank several bourbon and Cokes before the accident; he was threatened by John Doe; John Doe did not employ a gun; and in response to these threats, Jernigan took a path of retreat that caused extensive damage to appellees' vehicle. After considering this evidence, the trial court determined that Jernigan was negligent in that a reasonable person would not have created a "demolition derby" in response to the circumstances with which Jernigan was confronted.

We cannot say that the trial court's finding that Jernigan was negligent is clearly erroneous. Whether Jernigan acted reasonably under the circumstances is a matter for the trier of fact to determine. See Jones v. Ferguson, 243 Ark. 698, 421 S.W.2d 607 (1967). See also Elk Corp. of Arkansas v. Jackson, 291 Ark. 448, 725 S.W.2d 829 (1987). Simply stated, we decline to substitute our judgment for that of the trial court.

Jernigan also argues that the trial court erred in allowing an amendment to appellee Cash's complaint after he had rested his case.

In his complaint, Cash asked for $4,314.04 (cost of repair) in damages to his new 1986 Honda Accord. Testimony was introduced at trial that he paid $13,500.00 for the car; repair costs were $4,314.04; the car was worth five or six thousand dollars after the accident; and the car still has air leaks, and its doors rattle and will not shut. At the close of trial, the following exchange took place:

The Court: I'm awarding Mr. Wilson $1,143.16 and Mr. Cash $7,500.00. I know what Hondas are worth. I drive one. I feel sorry for him. I wouldn't trade mine for any other car. Maybe a Porsche 944 Turbo, but--that's a good car and I feel for him.

Mr. Staten (Cash's counsel): Your Honor, for the record, in my complaint I believe that we only asked for damages in the amount of the repair bill and I'm going to--

The Court: Well, that's all you're entitled to.

Mr. Staten: Well, I was going to amend my complaint since there is still--this trial is bifurcated and open-end damages.

The Court: You should have done that before you came in here. What did you pray for?

Mr. Staten: The amount of the repair bill.

The Court: Forty-three fourteen.

Mr. Staten: Four Thousand three hundred fourteen dollars and four cents.

The Court: I think he's been damaged more than that. I really do.

Mr. Staten: I think he has too, your Honor, based upon the proof I found out about today. And since the trial is not over yet and judgment technically has not been entered--

The Court: All right, I'll allow you to amend it. I think like I say, maybe I know too much about Hondas but I know a brand new Honda with a hundred miles on it and it gets wrecked like this and you say I've only been damaged forty-three...