McCord v. Bailey, No. 4-4983.

• Court: Supreme Court of Arkansas
• Writing for the Court: Baker
• Citation: 114 S.W.2d 840
• Parties: McCORD v. BAILEY et al.
• Docket Number: No. 4-4983.
• Decision Date: 21 March 1938

114 S.W.2d 840 McCORD
v.
BAILEY et al. No. 4-4983. Supreme Court of Arkansas. March 21, 1938.

Page 841

Appeal from Circuit Court, Crawford County; J. O. Kincannon, Judge.

Action by Lee Bailey and another against J. P. McCord for injuries sustained in an automobile collision, wherein defendant filed a cross-complaint against the plaintiffs. Judgment for each plaintiff for $1,500, and defendant appeals.

Affirmed on condition that each plaintiff enter a remittitur of $1,000, otherwise reversed and remanded.

C. W. Knott, of Fort Smith, and R. S. Wilson, of Van Buren, for appellant.

J. Bun Perrymore and D. H. Howell, both of Van Buren, for appellees.

BAKER, Justice.

The appellant was operating a wholesale grocery house in Fort Smith. At the time of the accident one of his trucks, operated in the conduct of his business, was upon highway 22 approaching the business district of Fort Smith, Ark., in the nighttime. The appellees were in a small car driving east upon the same highway when a collision between the truck and the small car occurred. This collision resulted in considerable damage to the small car, injuries suffered by each of the appellees, and some damage to the truck, and the loss of perhaps about $50 worth of sugar, with which the truck was laden. The plaintiffs in the proceedings were Lee Bailey and Dewey Mills, who alleged that as they approached the place where the accident occurred appellant's truck rounded

Page 842

a turn in the road, a short distance away, and came meeting them; that it was evidently out of control and weaving from side to side on the highway; and that this caused the two vehicles to collide. The appellant, by a cross-complaint, alleged the same fact in regard to the driver of the small car; that is, that it was weaving from side to side back and forth across the highway. Testimony was conflicting in regard to the manner in which the accident occurred. The facts in regard to liability were properly submitted to the jury, which determined by its verdict that the plaintiffs, Bailey and Mills, were in due care for their own persons and property and for others upon the highway at the time the accident occurred, and that McCord's driver was at fault. This finding of the jury, being supported by substantial evidence, is conclusive upon this appeal.

This announcement so often repeated has taken the form and standing of a maxim established by its mere statement.

On this particular phase of the case, we think it unnecessary to set forth the disputed evidence, whether for or against a recovery. Each of the plaintiffs recovered a judgment for $1,500. Bailey was not so seriously injured apparently as was Mills, but his automobile was damaged, and this perhaps justified the jury in holding that both suffered about the same amount of financial loss by reason of the accident.

It is argued with considerable force, and we think with cause, that the verdicts were excessive, and it is also argued that two instructions given by the court, both of which had to do with the measure of damages, were conflicting, and that there was error on account thereof. These propositions were the only ones that have given us any trouble. It appears that the logical order of discussion of these matters necessitates a consideration of the two instructions.

The first of these instructions was No. 13, which reads as follows: "13. If you find for the plaintiffs, then you will fix their damage, if any, at such a sum as you may find from the evidence will fairly compensate them for the injuries received, if any, in determining this you may take into consideration the mental and physical pain and suffering that they or either of them have endured, if any, and that he will endure in the future, if any; the temporary or permanent character of his injuries, if any; his diminished capacity to work and earn a living on account of such injuries, if any; and from all these elements, if proven, you may fix the damages, if any, in favor of the plaintiffs."

The objection made to that instruction at the time it was considered, as stated in appellant's brief, is as follows: "The defendant specifically objects to the giving of that portion of plaintiff's requested instruction No. 13 which directs the jury to take into consideration the plaintiff's diminished capacity to work and earn a living on account of such injury, if any."

Thereafter, the court gave defendant's instruction No. 2, which reads as follows: "You are instructed that under the law and evidence in this case there is no sufficient evidence to warrant a finding that the plaintiffs have received any permanent injury and your verdict will be for the defendant upon that issue."

It must be obvious to any one that these two instructions are in conflict, that if instruction given and identified as instruction No. 2 asked by defendant, is correct, then certainly the court should not have given instruction No. 13, by which there was submitted to the jury the question of permanency of the injuries and the decreased earning ability of each of the plaintiffs.

The defendant reserved his objections in his motion for a new trial under two different subdivisions, the first to the effect that the court erred in giving plaintiffs' instruction No. 13 and again in another paragraph to the effect that the court erred in overruling defendant's specific objection to plaintiffs' instruction No. 13, because it directs that the jury might take into...