Kurry v. Frost

Decision Date25 May 1942
Docket Number4-6747
Citation162 S.W.2d 48,204 Ark. 386
CourtArkansas Supreme Court

Appeal from Logan Circuit Court, Southern District; J. O. Kincannon Judge; affirmed.

Case affirmed.

Hardin & Barton, for appellant.

Chas I. Evans and Paul X. Williams, for appellee.

SMITH J. Mr. Justice MEHAFFY is of opinion that the cause of action is barred by the statute of limitations.



On September 24, 1932, appellee was run down by a hit-and-run driver of an automobile in the town of Paris, and was severely injured. The car which ran him down was a B model, wine colored, Ford car, exactly like one owned by Steve Kurry who lived, over a hill north of the place of injury and in the same direction the car proceeded after striking the victim. The driver evidently lost control of the car, as it ran into a wire fence which it struck with its right fender. Shortly after the collision a witness saw Kurry's car in his garage with its lights on. Within a half an hour after the collision, investigating officers found the Kurry car in its garage with the lights turned off. The right headlight was broken, and the right fender had such scratches on it as a wire would have made and presented the appearance of having been very recently done.

Appellee brought suit against Mr. Kurry to compensate his injury. The case remained on the docket until January, 1941, when it was tried, and the trial resulted in a verdict for the defendant. The testimony in that case, like the testimony in the instant case, disclosed very convincingly that Mr. Kurry was not the driver of the car, but it did disclose, in appellee's opinion, that Mrs. Kurry was the driver, and, after obtaining this information, disclosed at the trial, suit was brought against Mrs. Kurry, and a judgment for $ 1,500 was rendered against her, from which is this appeal.

Appellee did not know prior to this first trial that Mrs. Kurry, and not her husband, was the driver who ran him down. Mrs. Kurry was driving alone on some mission not disclosed, and her husband was, therefore, not responsible for the tort committed in striking appellee. Brotherton v. Walden, ante, p. 92, 161 S.W.2d 391.

Appellee was struck about 9 p. m. Mrs. Kurry denied having driven the car that night, and the testimony on her behalf, if credited, shows very clearly that she did not drive the car. The jury could not have found for appellee if this testimony had been accepted as true, and it must be presumed that it was not believed. The credibility of the witnesses who gave this testimony was, of course, a question for the jury.

The testimony of Mrs. Kurry and that of two of her children is to the effect that Mrs. Kurry did not leave her home that night, and the testimony of Luther Adams, if true, very conclusively shows that Mrs. Kurry did not do so. Adams called at the Kurry home between 8 and 8:30 p. m., and remained there about an hour. It was during this time that appellee was struck. Adams did not, during that time, leave the room, but Mrs. Kurry did leave the room and did not return while witness was there. According to this witness, Mrs. Kurry went into a bedroom to attend a sick child. The testimony of this witness is much discredited by the stenographic report of his testimony at the first trial, where he testified as follows: "Q. Did any of them leave while you were there? A. Mrs. Kurry left while I was there. Q. Are you sure about that? A. Yes, sir. Q. Did anyone go with her? A. No, sir. Q. Did she come back while you were there? A. No, sir. Q. She didn't come back while you were there? A. No, sir."

This witness was corroborated by one George Kidwell, who testified that he accompanied Adams to the Kurry home, but remained in the car during the entire period of Adams' visit, and that during that time no one left the house, and no car was driven out of or into the garage. But, as we have said, the jury has passed upon the credibility of these witnesses.

The jury might well have found that Mrs. Kurry did not drive the car; but, we are unable to say that the finding of the jury to the contrary is not supported by substantial testimony.

It is argued that, even though the testimony sufficiently shows that appellee was struck by the Kurry car, it is purely speculative whether Mrs. Kurry was the driver. But it is not entirely so. Certainly, it is more speculative that it was driven by some other person. The car was in the garage immediately after the collision, with its lights burning, and these had been turned off when the officers came about half an hour later. It was not shown that Mrs. Kurry left the home; but it was shown that she left the room where Adams was being entertained by her husband, and that she did not return to the room. In the last analysis, the responsibility of passing upon this question of fact rested upon the jury; and we are unwilling to say that the verdict was without substantial testimony upon which to base it.

The court gave, over the objection and exception of appellant, an instruction on circumstantial evidence, of which appellant says it "might not be an erroneous abstract statement of law, but it is clearly abstract. It does not undertake to apply the evidence in this case."

The instruction was not abstract, as appellee's case depended upon proof of circumstances to support the inference and finding that appellant was the driver of the car, and it was the function of the jury to weigh and apply the testimony.

Other instructions were objected to, chiefly upon the ground that they were abstract and not warranted by the testimony in the case. We think they were not abstract and were correct declarations of the law upon the question of liability, if it were found that appellant was the driver of the car.

It is very earnestly insisted that the cause of action, which occurred about nine years before the suit was filed, was barred by the statute of limitations, and that defense was interposed. Upon that issue the court gave an instruction, numbered 2, reading as follows: "Section 8952 of Pope's Digest of the statutes of Arkansas reads as follows: 'Absconding Debtor. If any person by leaving the county, absconding or concealing himself, or any other improper act of his own, prevent the commencement of action in this act specified, such action may be commenced within the times respectively limited, after the commencement of such action shall have ceased to be so prevented.' If you find from a preponderance of the evidence that by reason of any improper act of the defendant the commencement of the action was prevented within three years of the time of receipt of his injuries, then plaintiff...

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    • United States
    • Arkansas Supreme Court
    • May 25, 1942
  • Gailor v. Alsabi
    • United States
    • United States State Supreme Court — District of Kentucky
    • February 18, 1999
    ...Diagnostic Laboratory, supra, at 914, citing Security Trust Co. v. Wilson, 307 Ky. 152, 210 S.W.2d 336 (1948) and Kurry v. Frost, 204 Ark. 386, 162 S.W.2d 48 (1942). In Munday v. Mayfair Diagnostic Laboratory, supra, the legal duty was imposed by the assumed name statute, KRS 365.015. In th......
  • Digiuro v. Ragland, No. 2003-CA-001555-MR (KY 6/25/2004), No. 2003-CA-001555-MR.
    • United States
    • United States State Supreme Court — District of Kentucky
    • June 25, 2004
    ...that he had exchanged her bonds for other bonds and taken the title in his own name." Id. at 339. The Court relied on Kurry v. Frost, 204 Ark. 386, 162 S.W.2d 48 (1942), which held that a party who, in violation of the law, left the scene of an automobile accident after striking another per......
  • Williams v. Purdy
    • United States
    • Arkansas Supreme Court
    • March 8, 1954
    ...of limitations does not begin to run until the fraud is discovered. Landman v. Fincher, 196 Ark. 609, 119 S.W.2d 521; Kurry v. Frost, 204 Ark. 386, 162 S.W.2d 48; State of Tennessee v. Barton, 210 Ark. 816, 198 S.W.2d 512. Some affirmative act of concealment must be done; mere failure to re......
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