Jonesboro Coca-Cola Bottling Co. v. Holt

• Decision Date: 15 November 1937
• Docket Number: 4-4813
• Parties: JONESBORO COCA-COLA BOTTLING COMPANY v. HOLT
• Court: Arkansas Supreme Court

110 S.W.2d 535

194 Ark. 992

JONESBORO COCA-COLA BOTTLING COMPANY v. HOLT

4-4813

Supreme Court of Arkansas

November 15, 1937

Appeal from Lawrence Circuit Court, Eastern District; S. M. Bone Judge; affirmed.

Judgment affirmed.

W. P Smith and Arthur L. Adams, for appellant.

J. L Merrell, for appellee.

MEHAFFY J. GRIFFIN SMITH, C. J., dissents.

OPINION

MEHAFFY, J.

The appellee, Houston Holt, began this action in the Lawrence circuit court against the appellant, Jonesboro Coca-Cola Bottling Company, to recover damages for personal injuries alleged to have been caused by the negligence of the appellant. He alleged that while he was crossing Main street, in the town of Hoxie, Arkansas, at a regular street crossing, he was knocked down by the defendant's truck driven by an employee of said defendant, in a careless, negligent and reckless manner, without due regard to the safety of plaintiff, by suddenly and without warning backing said truck against plaintiff, striking him, inflicting serious and permanent injuries. He prayed judgment for $ 3,000.

The appellant filed motion to quash service, which was overruled by the court, and thereafter filed its answer, alleging that if appellee was injured in any manner, that it was caused wholly and entirely from causes other than those alleged in the complaint, and that if he was injured as alleged in the complaint, such injury was caused solely and entirely by the negligence of the appellee.

Houston Holt, the appellee, testified that he lived at Hoxie, is 30 years of age, has a family and is a common laborer; he named some of the people for whom he had worked; that his wages would be about $ 40 or $ 50 a month; he was injured in Hoxie about June 8, 1936; was going across the railroad in front of P. W. Woodyard's store; was going west and the Coca-Cola truck was on the west side of the street headed north; witness was on the regular street crossing; he was about a foot from the truck when it started backwards, and the back end of the truck hit him, it knocked the breath out of him; O. L. Davis helped him up, and he rode with Davis to Alicia; he suffered pain on the way and spit up a little blood; went to a doctor the next day; the doctor took witness to Newport for an X-ray; after he returned from Newport he was sick and confined to his bed about a week; Dr. Felts had him under treatment until he left and went to Texas; he was in Texas two months; had fever and had a hemorrhage; witness was in the hospital two or three days; he had been injured in accidents before; as he crossed the street he saw no car coming, and walked pretty fast to get across; did not hear the motor of the truck start, the driver of the truck shot it back two or three feet; as he crossed the street he did not notice whether anyone was in the truck.

Appellee's testimony was corroborated as to the truck's striking him and the manner in which it struck him, by other witnesses. Physicians testified as to his injuries.

There was conflict in the evidence as to manner in which he was struck by the truck and also as to the extent of his injuries.

There was a jury trial, a verdict and judgment for $ 3,000 and the case is here on appeal.

It would serve no useful purpose to set out the testimony in detail. While appellant insists that the evidence is not sufficient to sustain the verdict, it bases this argument on the fact, as it alleges, that the evidence of appellee's witnesses is unworthy of belief.

It is argued that O. L. Davis, one of the witnesses for appellee, is wholly unworthy of belief because, it says, he is a murderer, and that he should now be in the penitentiary. The evidence shows that Davis was convicted of murder and sentenced for life, but after he had served a little more than eight months he was pardoned by the Governor, and after he went back home was elected justice of the peace. It is argued that another witness for appellee, Jake Stephens, was a thief and undertook to get money from appellant for making a statement.

The credibility of these witnesses and the weight to be given to their testimony were questions for the jury. If they believed this testimony, it was ample to sustain the verdict. Besides, the appellee himself testified that he was crossing the street and that the truck, without warning, suddenly backed against him and injured him.

Appellant cites the case of Magnolia Petroleum Co. v. Saunders, 193 Ark. 1080, 104 S.W.2d 1062, and says that on the authority of this case the testimony of Jake Stephens should be wholly disregarded.

The court in that case said: "When testimony of witnesses is out of harmony, and the explanations they make are contradictory, such controversy is properly referable to a jury, and determination of a fact in this manner, if submitted under correct instructions, will not be disturbed on appeal. But where personal testimony is at variance with physical facts, and such repugnance is material, and is also self-evident, improbable conclusions drawn in favor of a party litigant through the sanction of a jury's verdict will not, on appeal, be looked upon as inviolate if in conflict with recognized elements of time, mathematics, and the accepted law of physics."

It appears, therefore, under the case relied on, that the credibility of witnesses and the weight to be given their testimony in this case were to be determined by the jury. It was not at variance with physical facts, and the argument made by appellant is on the credibility of the witnesses and the weight to be given to their testimony. This court, in a long line of decisions, has held that these are questions for the jury.

It is, also, contended by appellant that the appellee is not entitled to recover because he has undertaken to prove more than he has alleged in his complaint, and it calls attention first to Sevier v. Holliday, 2 Ark. 512. In that case the court said: "It is certainly true, as has been argued by the counsel, that every legal inference and presumption will be indulged in by this court which the pleadings and proof will warrant in favor of the verdict and judgment below. But where there is no basis to rest such presumptions upon, they are wholly inadmissible."

In the case of Snow v. Grace, 25 Ark. 570, relied on by appellant, the court said: "Upon this claim or indebtedness of $ 2,500 the jury assessed the damages and returned a verdict for $ 10,000. This being an action of assumpsit for goods sold, an ordinary suit on a contract, where the claim is defined, and the damages recoverable upon it, readily computed, we are unable to ascertain, even by the utmost stretch of the imagination, on what grounds, or upon what principle, the jury could return such an excessive verdict."

In the case just cited, there was a suit for $ 2,500, and a default judgment taken for $ 10,000.

Attention is, also, called to the case of Payne-Huntington Company v. Flournoy, 29 Ark. 500. The court said in that case: "Admit all that Payne says to be true, and that the new firm...