McChristian v. Hooten

Decision Date27 January 1969
Docket NumberNo. 5--4771,5--4771
Citation436 S.W.2d 844,245 Ark. 1045
PartiesNoble McCHRISTIAN et al., Appellants, v. Tommy HOOTEN et al., Appellees.
CourtArkansas Supreme Court

Dobbs, Pryor & Shaver, Ft. Smith, for appellants.

Hardin, Barton, Hardin & Jesson, Ft. Smith, for appellees.

JONES, Justice.

Tommy, Rhoda and Michael Hooten filed suit in the Sebastian County Circuit Court against Joseph R. Marlow and Noble McChristian for personal injuries and property damages sustained as a result of an automobile collision in Madison County, Arkansas. McChristian cross-complained against Marlow for contribution as a joint tort feasor, and Marlow cross-complained against McChristian for his property damage. Tommy Hooten alleged damages in the amount of $35,000.00 for personal injuries and $3,500.00 for property damages to his automobile.

A jury trial resulted in a verdict against McChristian for $40,000.00 in favor of Tommy Hooten; for $1,200.00 in favor of Rhoda Hooten and for $188.00 in favor of Michael Hooten. Tommy Hooten only proved $1,400.00 damage to his automobile, so upon a voluntary remittitur of $3,600.00, judgment was entered in his favor for $36,400.00. Judgment was entered on the verdict for Rhoda and Michael Hooten. McChristian has appealed and relies on the following points for reversal:

'The court should have granted the request for a directed verdict.

Only eight jurors found McChristian liable for all of the $40,000.00 verdict, and the answers to the interrogatories are inconsistent and conflicting.

The verdict is excessive and the result of passion and prejudice, and a new trial should have been granted.'

The record reveals that on February 12, 1967, Tommy, Rhoda and Michael Hooten were riding in an automobile belonging to Tommy and being driven by a friend, Jerry Parker. They were traveling west and slightly upgrade on state highway 74 near Huntsville, Arkansas. Marlow was driving his automobile east and downgrade on the same highway, meeting the Hooten automobile. McChristian drove his pickup truck south from a side road into highway 74 and turned east onto the highway between the oncoming Hooten and Marlow automobiles. In an effort to avoid colliding with the McChristian vehicle, the Marlow vehicle skidded approximately 462 feet from the crest of a hill, went off the pavement into the gravel on the south side of the highway behind the McChristian vehicle. It then cut back across the south side of the highway immediately behind the McChristian vehicle; went around the McChristian vehicle, and collided head-on with the Hooten automobile on the north side of the highway a few feet east, and in front of, the McChristian vehicle.

The testimony is in conflict as to whether the McChristian vehicle stopped before entering the highway and whether it had completely cleared the north side of the highway and had completely straightened out on its south and proper side of the highway when the collision occurred. McChristian testified that he stopped his vehicle and looked both ways before entering the highway and that he saw no vehicle approaching from either direction. He testified that he had completely crossed the north side of the highway and had turned his vehicle straight into the south lane and his proper side of the highway when the collision occurred. Marlow and the driver of the Hooten automobile testified that they saw McChristian drive slowly from the side road out into the highway between the two oncoming automobiles and that they did not see him stop before entering the highway. They testified that the left rear wheel of his pickup was about on the center line of the highway when the collision occurred.

The case was submitted to the jury upon interrogatories signed by jurors as follows:

'1. Do you find from a preponderance of the evidence that James Marlow was guilty of negligence which was a proximate cause of the occurrence?

Answer: No (yes or no)

s/Mrs. N. D. Lawrence

s/Mrs. Phil Hatcher

s/Mrs. L. Hobbs

s/Mrs. E. G. Dooley

s/Floyd E. Evans

s/Mrs. Leland Duncan

s/Dale Moore

s/Harley A. Wilson

s/Robert L. Taylor

2. Do you find from a preponderance of the evidence that Noble McChristian was guilty of negligence which was a proximate cause of the occurrence?

Answer: Yes (yes or no)

s/Mrs. N. D. Lawrence

s/Mrs. Phil Hatcher

s/Mrs. L. Hobbs

s/Mrs. E. G. Dooley

s/Floyd E. Evans

s/Mrs. Leland Duncan

s/Luther H. Hodges

s/Dale Moore

s/E. V. Swift

s/Harley A. Wilson

s/Robert L. Taylor 3. If you have answered 'yes' to either interrogatory 1 or 2 then answer this interrogatory:

Using 100% to represent the total responsibility for the occurrence and any injuries or damages resulting from it, apportion the responsibility between Mr. Marlow and Mr. McChristian.

Answer: Mr. Joseph R. Marlow _ _%

Mr. Noble McChristian 100%

s/Mrs. N. D. Lawrence

s/Mrs. Phil Hatcher

s/Mrs. L. Hobbs

s/Mrs. E. G. Dooley

s/Floyd E. Evans

s/Mrs. Leland Duncan

s/Dale Moore

s/Harley A. Wilson

s/Robert L. Taylor

4. State the amount of any damages which you find from a preponderance if the evidence were sustained by Tommy Hooten.

Answer: $40,000.00

s/Mrs. N. D. Lawrence

s/Mrs. Phil Hatcher

s/Mrs. L. Hobbs

s/Mrs. E. G. Dooley

s/Mrs. Leland Duncan

s/Luther H. Hodges

s/Dale Moore

s/E. V. Swift

s/Harley A. Wilson

s/Robert L. Taylor

5. State the amount of any damages which you find from a preponderance if the evidence were sustained by Rhoda Hooten.

Answer: $1200.00

s/Robert L. Taylor

Foreman

6. State the amount of damages which you find from a preponderance if the evidence were sustained by Michael Hooten.

Answer: $118.00

s/Robert L. Taylor

Foreman

7. State the amount of any damages which you find from a preponderance if the evidence were sustained by James Marlow.

Answer: $NO

s/Robert L. Taylor

Foreman'

We now discuss appellants' points in the order designated. The appellants' motion for directed verdict was presented in the form of requested instructions which were denied by the trial court. In passing on assignment of error in refusing to direct a verdict for the defendant in Hawkins v. Missouri Pacific Pailroad Company, Thompson, Trustee, 217 Ark. 42, 228 S.W.2d 642, this court said:

'A directed verdict for the defendant is proper only when there is no substantial evidence from which the jurors as reasonable men could possibly find the issues for the plaintiff. In such circumstances the trial judge must give to the plaintiff's evidence its highest probative value, taking into account all reasonable inferences that may sensibly be deduced from it, and may grant the motion only if the evidence viewed in that light would be so insubstantial as to require him to set aside a verdict for the plaintiff should such a verdict be returned by the jury.'

And again in St. Louis, I.M. & S. Ry. Co. v. Fuqua, 114 Ark. 112, 169 S.W. 786, we said:

'The rule is that where fair-minded men might honestly differ as to the conclusion to be drawn from facts, whether controverted or uncontroverted, the question at issue should go to the jury.'

We conclude that the trial court was correct in denying appellants' motion for a directed verdict.

In arguing his second point the appellants would disqualify two of the ten jurors who found that Tommy Hooten's damages amounted to $40,000.00, because these two jurors failed to sign interrogatories 1 and 3 finding Marlow not guilty of negligence and apportioning the negligence all to the appellant McChristian. The appellants cite cases from Wisconsin in support of their contention, but we conclude that the laws of Arkansas make no such distinction.

The Wisconsin constitution, as cited by the appellants, authorizes the legislature to provide 'that a valid verdict, in civil cases, may be based on the votes of a specified number of the jury, not less than five-sixths thereof.' (Emphasis supplied.) The legislature of Wisconsin by statute provided 'a verdict, finding or answer agreed to by five-sixths of the jurors shall be the verdict, finding or answer of the jury.' (Emphasis supplied.)

The number of jurors required to return a verdict in Arkansas is fixed by the constitution, Amendment 16 to Art. 2, § 7, which provides:

'* * * (I)n all jury trials in civil cases, where as many as nine of the jurors agree upon a verdict, the verdict so agreed upon shall be returned as the verdict of such jury, provided, however, that where a verdict is returned by less than twelve jurors all the jurors consenting to such verdict shall sign the same.'

As to special verdicts, Ark.Stat.Ann. § 27--1741.2 (Repl.1962) provides:

'A court may require a jury in a civil action to return only a special verdict in the form of a special written finding upon each issue of fact.'

We...

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