Moon Distributors, Inc. v. White, 5--4707

• Decision Date: 18 November 1968
• Docket Number: No. 5--4707,5--4707
• Citation: 245 Ark. 627,434 S.W.2d 56
• Parties: MOON DISTRIBUTORS, INC., et al., Appellants, v. Carl Thomas WHITE, Jr., Administrator, et al., Appellees.
• Court: Arkansas Supreme Court

Page 56

434 S.W.2d 56

245 Ark. 627

MOON DISTRIBUTORS, INC., et al., Appellants, v. Carl Thomas WHITE, Jr., Administrator, et al., Appellees.

No. 5--4707.

Supreme Court of Arkansas.

Nov. 18, 1968.

Rehearing Denied Dec. 16, 1968.

Hall & Tucker, Benton, for appellants.

Cockrill, Laser, McGehee, Sharp & Boswell, Little Rock, for appellees.

GEORGE ROSE SMITH, Justice.

This action for the wrongful death of Wandasue White was brought by her surviving husband, the appellee, who is the administrator of her estate. The appeal is from a verdict and judgment awarding $1,500 to the estate; $67,500 for the husband; $50,000 for the decedent's stepdaughter, Karen White; $75,000 for the couple's adopted daughter, Sherry White; and $800 to White for his property damage. For reversal the appellants argue two points of law, both of first impression, and question the liberality of the awards.

First, the appellants insist that the trial court erred in submitting the case to the jury both upon specific assertions of negligence and upon the doctrine of res ipsa loquitur. The appellants take our prior cases to hold that when the plaintiff introduces proof of specific acts of negligence he thereby abandons his right to have the issue or res ipsa submitted to the jury.

Upon this issue the facts, at least in broad outline, are pertinent. On March 30, 1967, Mrs. White and two other women were traveling on Interstate 30, a divided four-lane highway. Coming from the other direction was a wrecker towing a dump truck. Both vehicles were owned by the appellant, Moon Distributors. Its employee, the appellant Paul Hastings, was driving the wrecker. For some reason not shown by exact proof the dump truck came unhitched, crossed the median, and ran over the White car, killing its occupants.

The plaintiff offered proof to show (a) that the coupling mechanism of the wrecker, which had been designed by Paul Hastings, was defective; (b) that the wrecker was being driven at an excessive speed; and (c) that just before the accident Hastings swerved from one lane to the other so suddenly as to cause the dump truck to fishtail before it came loose. The defendants contested that proof with evidence of their own. The court gave AMI instructions covering speed, control, and the statutory duties of one who is towing another vehicle. The court also gave AMI 610, on res ipsa. The final paragraph of AMI 610 was omitted, in accordance with the Note on Use, because specific acts of negligence were also being submitted.

The court was correct. In Johnson v. Greenfield, 210 Ark. 985, 198 S.W.2d 403 (1946), we held that the plaintiff did not waive the doctrine of res ipsa merely by pleading specific negligence, but we did not explicitly reach the question of whether both theories might go to the jury. Elsewhere, however, the decided weight of authority approves that procedure in a case like this one, where the exact cause of the accident cannot be proved with precision.

The landmark case is Cassady v. Old Colony Street R. Co., 184 Mass. 156, 68 N.E. 10, 63 L.R.A. 285 (1903), where the court said:

'It is true that, where the evidence shows the precise cause of the accident * * * there is, of course, no room for the application of the doctrine of presumption. The real cause being shown there is no occasion to inquire as to what the presumption would have been as to it if it had not been shown. But if, at the close of the evidence, the cause does not clearly appear, or if there is a dispute as to what it is, then it is open to the plaintiff to argue upon the whole evidence, and the jury are justified in relying upon presumptions, unless they are satisfied that the cause has been shown to be inconsistent with it. An unsuccessful attempt to prove by direct evidence the precise cause does not estop the plaintiff from relying upon the presumption applicable to it.'

A similar view was taken in Wells v. Asher, Mo.App., 286 S.W.2d 567 (1955):

'Legally, defendant's argument that plaintiff was precluded from a res ipsa submission by proof of specific negligence is, under the facts of the instant case, utterly self-destructive. For, it is firmly-established in this jurisdiction that, 'even though the plaintiff's evidence may tend to show the specific cause of the accident, he will nevertheless not lose the benefit of the doctrine, nor be deprived of the right to rely upon it in the submission of his case, if, after his evidence is in, 'the true cause is still left in doubt or is not clearly shown.'"

Many of the cases were reviewed in Weigand v. Pennsylvania R. Co., 3rd Cir., 267 F.2d 281 (1959), where the court said:

'However, we have before us not only a res ipsa claim but one capable of some specific proof regarding the railroad's alleged negligence. In these peculiar circumstances to force the plaintiff to abandon one of his theories is not only illogical but unfair. Whichever he chose might fail and the discarded contention might have convinced the jury.'

See also Freitas v. Peerless Stages, 108 Cal.App.2d 749, 239 P.2d 671; and the annotation thereto in 33 A.L.R.2d 778 (1952).

The case at bar illustrates the wisdom of the rule. As a practical matter, the eyewitnesses to the tragedy could not even describe what they saw without bringing specific negligence into the case. No description of the occurrence would be complete without some reference to Hastings's speed and to the dump truck's fishtailing. The jury's first question would naturally be: Was the coupling between the wrecker and the dump truck defective? Realistically, the plaintiff had to answer that question. To compel the plaintiff to choose between specific negligence and res ipsa would put him in this dilemma: If he chose specific acts, the jury might find itself unable to decide that any one of the three asserted causes of the accident had been proved by a preponderance of the evidence. Yet, if the plaintiff chose res ipsa, the jury would be completely in the dark about the duties imposed by law upon Moon to drive at a reasonable speed, to keep its vehicles under control, and to provide a proper coupling device. As the court said in the Weignand case, supra, to put the plaintiff in that dilemma would be not only illogical but unfair.

The cases principally relied upon by the appellants are not out of harmoney with the rule we are adopting. In Reece v. Webster, 221 Ark. 826, 256 S.W.2d 345 (1953), the defendant's tractor exploded and fatally injured a boy who was walking past it. On that proof alone the plaintiff could have relied on res ipsa. But the plaintiff went further and directed his entire proof to showing that the explosion was caused by a defective sediment bulb that allowed gasoline to drip upon hot metal and explode. No other cause of the explosion was suggested 'either in pleadings, proof or argument.' Hence, in the language of the landmark Cassady case, supra, where the evidence shows the precise cause of the accident there is no room for presumption.

Our holding in Ford Motor Co. v. Fish, 232 Ark. 270, 335 S.W.2d 713 (1960), is even farther from the mark. There the plaintiff testified that as he was driving his truck down the highway the brakes suddenly locked, causing the truck to leave the highway and turn over, injuring him. Unlike like the situations in the Reece case, supra, and in the one at bar, a mere account of how the accident happened did not, in the Fish case, make a submissible issue of res ipsa. That is, res ipsa involves a showing that the plaintiff himself was not negligent. That showing was not made by Fish, because, as we observed, 'automobiles ordinarily depart the road through negligence of the operator, rather than through negligence of the manufacturer.' Hence Fish was properly compelled to prove the specific cause of the accident, because it was really an instance of res ipsa non loquitur: The thing does not speak for itself.

On the first point we conclude that the trial court was right in submitting all the issues to the jury.

Secondly, the appellants contend that neither Karen White, a stepdaughter, nor Sherry White, an adopted daughter, is entitled to assert a cause of action for Wandasue White's death. The two contentions must be discussed separately.

Considering Sherry's case first, the adoption statute provides that the adopting parents shall have 'the right of recovery' for the child's death by wrongful act, but there is no corresponding provision that the child shall have the right of recovery for an adoptive parent's death. Ark.Stat.Ann. § 56--109 (1947). We do not agree with the appellants' argument that the omission shows a legislative intent to deny an adopted child's right to asset a cause of action for the wrongful death of a foster parent. In the case of the adopted child's death the legislature had to choose between investing the cause of action in the natural parents and investing it in the foster parents. It chose the latter, specifically referring to 'the' right of recovery. No similar choice had to be made with respect to the foster parent's death; so the appellants' argument fails.

With respect to Karen, a stepmother stands in loco parentis to the child when, as here, the two live in the same home as mother and daughter. She Dodd v. United States, 76 F.Supp. 991 (W.D.Ark.1948), and Miller v. United States, 8th Cir., 123 F.2d 715 (1942). Nevertheless, the appellants insist that a stepdaughter cannot recover for pecuniary injuries suffered upon the death of her stepmother, for the reason that the statute refers to 'persons to whom the deceased stood in loco parentis' only with respect to damages for mental anguish and not with respect to damages for...