Missouri Pacific Transportation Co. v. Parker
| Decision Date | 13 May 1940 |
| Docket Number | 4-5917,4-5946 |
| Parties | MISSOURI PACIFIC TRANSPORTATION COMPANY v. PARKER, ADMR |
| Court | Arkansas Supreme Court |
Appeal from Nevada Circuit Court; Dexter Bush, Judge; affirmed in part and as to other appellees affirmed if a remittitur is entered.
Judgment affirmed otherwise reversed and remanded.
Steve Carrigan and House, Moses & Holmes, for appellants.
Pace & Davis, W. F. Denman, Tom W. Campbell and Fred A Isgrig, for appellees.
Moore Burrow & Chowning, amici curiae.
OPINION
On the night of December 2, 1938, about 10:30 o'clock, three boys, James Carroll, Gordon Flagg and Joe Parker, residents of Morrilton, Arkansas, while returning from Plumerville to Morrilton, where they had attended a basketball game, had a collision with a large passenger bus belonging to appellant, Missouri Pacific Transportation Company, and driven by the other appellant, Chas. D. Johnson, and all three boys were killed. Young Carroll was driving the car in which they were riding, he and Flagg each being in their sixteenth year and Parker was past seventeen. The mothers of the Carroll and Flagg boys and the father of the Parker boy were duly appointed the personal representatives of their respective sons' estates and brought separate actions against appellants to recover damages for the benefit of said estates for conscious pain and suffering and for the benefit of themselves for the pecuniary loss sustained by each. Roy Palmer, a passenger on the bus, also brought an action against appellants to recover damages for personal injuries sustained by him. Although this accident occurred in Conway county, just a short distance south or east of Morrilton, where all the parties plaintiff and all the witnesses resided, these actions were brought at Prescott in Nevada county, some one hundred miles or more away.
The bus was traveling in an easterly direction toward Little Rock, and the car in which the boys were riding was going in the opposite direction and traveling on its right side of the highway. The negligence charged against appellants is that the driver of the bus, Johnson, attempted to pass another car traveling in the same direction and pulled over to his left side of the road, in the path of the car in which the boys were riding. Johnson, in an effort to exonerate himself, testified that the car in front of him suddenly stopped, at a time when he was too close to it to stop his bus, and that to avoid striking it, he pulled to the left across the highway and into a ditch and that the car the boys were in had plenty of room to pass had it remained on the highway, but that its driver pulled to the right and struck the bus off the highway. We think a case of liability was made for the jury, even though his testimony had been accepted by the jury as true, for had he been driving at a reasonable rate of speed and at a safe distance from the car he says stopped in front of him, it would not have been necessary to drive the bus in the path of the oncoming car. The fact that it was a dark and rainy night with slippery road conditions made it all the more necessary for care and caution.
But appellants concede that a question of liability was made for the jury. Trials resulted in verdicts and judgments as follows: For the Carroll boy $ 16,000 to the mother and $ 2,000 for the estate on account of conscious pain and suffering; for the Flagg boy $ 16,000 for the mother; and for the Parker boy $ 16,000 for the father. There was also a verdict and judgment for $ 10,000 for appellee, Palmer, making a total of $ 60,000 in the four cases which were consolidated for purposes of trial, and have been briefed together on appeal.
A number of errors of the trial court are assigned and argued for a reversal of these judgments, some of which will be hereinafter discussed. One of them relates to the empaneling of the jury. In June, 1939, the court appointed three jury commissioners to select the regular panel of petit jurors to serve at the July term of the Nevada circuit court, and a jury was selected. After the July term of court was convened and the jury so selected was empaneled, a motion was made in another case then pending to quash the panel because one of the jury commissioners had served as such within four years prior to this service. The motion was sustained and the panel was quashed, and at the same time the court appointed three other jury commissioners to select a jury to serve at an adjourned term of court to convene on August 7, 1939. A jury of 32 was selected and summoned, but the court, on investigation, decided that the statutes do not provide for the selection of a jury by jury commissioners after the term begins, but that, in case the jury panel is quashed, it is the duty of the court to order the sheriff to select a jury from the bystanders. So, the court, on its own motion, quashed the panel selected by the second set of jury commissioners and directed the sheriff to select a jury from the bystanders. The panel selected by the second set of commissioners contained nine of the jurors selected by the first set, which was quashed on motion. Acting on the order of the court, the sheriff selected a jury panel of 32 jurors who were the same as those quashed on the court's own motion. Appellants moved to quash the panel selected by the sheriff, setting out the matters above stated, which motion was overruled.
We think no reversible error was committed in this regard. The mere fact, if it be a fact, that the first and second panels selected by the two sets of jury commissioners were illegally selected, did not disqualify them as jurors, if later properly selected. Section 8333 of Pope's Digest provides: "If, for any cause, the jury commissioners shall not be appointed, or shall fail to select a grand or petit jury, as provided in this chapter, or the panel selected shall be set aside, or the jury lists returned in court shall be lost or destroyed, the court shall order the sheriff to summon a grand or petit jury of the proper number who shall attend and perform the duties thereof, respectively, as if they had been regularly selected."
While that section does not direct the court to order the sheriff to summon "bystanders," the fact is that the sheriff selected a jury from all parts of the county, they being present in court in obedience to a summons, having been selected by illegal jury commissioners, as the court thought. It is not suggested by appellants that any one of the jurors so selected was otherwise disqualified. Compare Hulen v. State, 196 Ark. 22, 115 S.W.2d 860.
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