Jones v. Comer, No. 5-3116

CourtSupreme Court of Arkansas
Writing for the CourtROBINSON; JOHNSON
Citation374 S.W.2d 465,237 Ark. 500
PartiesEugene JONES et al., Appellants, v. Mr. and Mrs. Rufus COMER, Appellees.
Decision Date13 January 1964
Docket NumberNo. 5-3116

Page 465

374 S.W.2d 465
237 Ark. 500
Eugene JONES et al., Appellants,
v.
Mr. and Mrs. Rufus COMER, Appellees.
No. 5-3116.
Supreme Court of Arkansas.
Jan. 13, 1964.
Rehearing Denied Feb. 17, 1964.

Franklin Wilder, Charles R. Garner, Ft. Smith, for appellants.

Warner, Warner, Ragon & Smith, Ft. Smith, for appellees.

[237 Ark. 501] ROBINSON, Justice.

Appellants, Eugene Jones, Charles Williams and Betty Williams, and Richard Wilson James, Jr., were the parents of three young boys who drowned in a pond located on land owned by appellees near the city limits of Ft. Smith. The trial court granted defendants' motion for a summary judgment and plaintiffs have appealed. The only issue is the action of the trial court in granting the motion for summary judgment.

Ark.Stat.Ann. § 29-211 (Repl.1962) provides: '(b) * * * A party against whom a claim, counterclaim, or cross-claim is asserted or a declaratory judgment

Page 466

is sought may, at any time, move with or without supporting affidavits for a summary judgment in his favor as to all or any part thereof.

'(c) * * * The motion shall be served at least 10 days before the time fixed for the hearing. The adverse party prior to the day of hearing may serve opposing affidavits. The judgment sought shall be rendered forthwith if the pleading, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. * * *'

In the every recent case of Epps v. Remmel, Ark., 373 S.W.2d 141, decided by this court December 16, 1963, we pointed out that if in a hearing on a motion for summary judgment it is shown by uncontroverted affidavits that there is no genuine issue of fact, it becomes the duty of the trial court to dispuse of the case accordingly.

The plaintiffs allege that the defendants owned the property on which the pond is located, and it is further alleged in the complaint: 'Situate upon said described property and in the Northeast corner thereof is an old pond, lake or body of water approximately 150 feet long by 100 feet wide and 15 feet deep, upon which an old boat or part thereof was located together in the near proximity with a large tree with a hanging cable or rope [237 Ark. 502] used by the decedents and other children to swing upon, play with, wade in, swim in and otherwise enjoy because same was attracted to them. All of said lands being unfenced, unenclosed and easily accessible to the public and more particularly to the three decedents.

'Plaintiffs further state that the situated land, lake, swinging tree, playground and other areas as mentioned and allowed to be mentioned is a dangerous instrumentality that is attractive to children. That same had been made attractive to children and was an open invitation to children to come upon the premises. That all of same was in such an attractive character that the defendants, and each of them, knew or as reasonable, prudent persons, should have known, would invite the attention of children and draw them to it, particularly to their sported and playful natures; and defendants and each of them, allowed said condition and situation to exist, well knowing same to be attractive and dangerous to the public and more particularly to the three deceased minors.

'As a direct and proximate result of the conditions existing as aforesaid, the three deceased minor children on April 7th, 1962, went upon the described premises at or around 4:00 P.M. on said date and were drowned, thereby causing the damages as hereinafter complained of.'

The defendants filed an answer denying the allegations of the complaint and alleging the affirmative defense of contributory negligence. On authority of Ark.Stat.Anno. § 28-355 (Repl.1962), defendants then propounded interrogatories to plaintiffs, requesting: 'State the names and addresses of all persons known to you or your Attorneys having any knowledge or information of any facts relevant or pertinent to any of the allegations of fact contained in paragraphs 8, 9, 10, 11, 12 and 13 of your complaint.'

In response, plaintiffs filed a list of their witnesses. The defendants...

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14 practice notes
  • Ryder Truck Rental, Inc. v. Kramer, No. 77-263
    • United States
    • Supreme Court of Arkansas
    • March 27, 1978
    ...party is otherwise entitled thereto as a matter of law. Universal Life Ins. Co. v. Howlett, 240 Ark. 458, 400 S.W.2d 294; Jones v. Comer, 237 Ark. 500, 374 S.W.2d 465. In reviewing the record, the trial court must view it in the light most favorable to the party resisting the motion with al......
  • Purser v. Corpus Christi State Nat. Bank, No. 74--291
    • United States
    • Supreme Court of Arkansas
    • May 5, 1975
    ...undisputed and true for the purposes of the motion. Coffelt v. Arkansas Power & Light Co., 248 Ark. 313, 451 S.W.2d 881; Jones v. Comer, 237 Ark. 500, 374 S.W.2d 465; Sleeper v. Sweetser, 247 Ark. 477, 446 S.W.2d 228; Ashley v. Eisele, 247 Ark. 281, 445 S.W.2d 76. If indeed they are true, P......
  • Gordon v. Matson, No. 5--4646
    • United States
    • Supreme Court of Arkansas
    • April 1, 1969
    ...pretrial order then the order granting summary judgment must be affirmed. Epps v. Remmel, 237 Ark. 391, 373 S.W.2d 141; Jones v. Comer, 237 Ark 500, 374 S.W.2d It appears to be the general rule that the responsibilities of the prime contractor to employees of the subcontractor on the job ar......
  • Van Dalsen v. Inman, No. 5-3267
    • United States
    • Supreme Court of Arkansas
    • June 1, 1964
    ...Ark. (Adv.Op.) 713, 368 S.W.2d 89; Epps v. Remmel, 237 Ark. (Adv.Op.) 391, 373 S.W.2d 141; and Jones v. Comer, 237 Ark. (Adv.Op.) 500, 374 S.W.2d 465. In Russell v. City of Rogers supra, we 'Our recent summary judgment statute, Act 123 of 1961, is a re-enactment of Rule 56 of the Federal Ru......
  • Request a trial to view additional results
14 cases
  • Ryder Truck Rental, Inc. v. Kramer, No. 77-263
    • United States
    • Supreme Court of Arkansas
    • March 27, 1978
    ...party is otherwise entitled thereto as a matter of law. Universal Life Ins. Co. v. Howlett, 240 Ark. 458, 400 S.W.2d 294; Jones v. Comer, 237 Ark. 500, 374 S.W.2d 465. In reviewing the record, the trial court must view it in the light most favorable to the party resisting the motion with al......
  • Purser v. Corpus Christi State Nat. Bank, No. 74--291
    • United States
    • Supreme Court of Arkansas
    • May 5, 1975
    ...undisputed and true for the purposes of the motion. Coffelt v. Arkansas Power & Light Co., 248 Ark. 313, 451 S.W.2d 881; Jones v. Comer, 237 Ark. 500, 374 S.W.2d 465; Sleeper v. Sweetser, 247 Ark. 477, 446 S.W.2d 228; Ashley v. Eisele, 247 Ark. 281, 445 S.W.2d 76. If indeed they are true, P......
  • Gordon v. Matson, No. 5--4646
    • United States
    • Supreme Court of Arkansas
    • April 1, 1969
    ...pretrial order then the order granting summary judgment must be affirmed. Epps v. Remmel, 237 Ark. 391, 373 S.W.2d 141; Jones v. Comer, 237 Ark 500, 374 S.W.2d It appears to be the general rule that the responsibilities of the prime contractor to employees of the subcontractor on the job ar......
  • Van Dalsen v. Inman, No. 5-3267
    • United States
    • Supreme Court of Arkansas
    • June 1, 1964
    ...Ark. (Adv.Op.) 713, 368 S.W.2d 89; Epps v. Remmel, 237 Ark. (Adv.Op.) 391, 373 S.W.2d 141; and Jones v. Comer, 237 Ark. (Adv.Op.) 500, 374 S.W.2d 465. In Russell v. City of Rogers supra, we 'Our recent summary judgment statute, Act 123 of 1961, is a re-enactment of Rule 56 of the Federal Ru......
  • Request a trial to view additional results

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