Moore v. Robertson, 5--4566

• Court: Arkansas Supreme Court
• Writing for the Court: GEORGE ROSE SMITH
• Citation: Moore v. Robertson, 244 Ark. 837, 427 S.W.2d 796 (Ark. 1968)
• Decision Date: 13 May 1968
• Docket Number: No. 5--4566,5--4566
• Parties: Mary Alice MOORE, Administratrix, et al., Appellants, v. Michael ROBERTSON, Appellee.

Page 796

427 S.W.2d 796

244 Ark. 837

Mary Alice MOORE, Administratrix, et al., Appellants, v. Michael ROBERTSON, Appellee.

No. 5--4566.

Supreme Court of Arkansas.

May 13, 1968.

Bernard Whetstone, Little Rock, for appellants.

John M. Graves, Camden, and Louis Tarlowski, Little Rock, for appellee.

GEORGE ROSE SMITH, Justice.

This action arose from a collision between a car being driven by Ezell Walters and a truck being driven by the appellee, Michael Robertson. Clayton Moore, a passenger in the Walters car, was killed, and Wallace Montgomery, another passenger, was injured. This action for wrongful death and for personal injuries was brought by two of the appellants, Moore's widow and Montgomery. Moore's daughter later intervened as a plaintiff. There were ultimately three defendants in the case: The appellee Robertson, who was driving the truck, Jim Ritchie, who owned the truck, and J. O. Aschcraft, who was Robertson's regular employer. The plaintiffs alleged alternatively that at the time of the collision Robertson was acting as the agent of each of his codefendants.

Robertson failed to plead to the complaint within the time required by statute. The court entered a default judgment against Robertson, reserving the issue of damages for a later determination. Later on, however, the court set aside the default judgment and allowed Robertson to defend the suit. Upon a trial on the merits the court found in favor of all three defendants, finding specifically that none of the three defendants was negligent and that Robertson was not acting as agent for either Ritchie or Ashcraft at the time of the collision.

When the trial court announced his decision counsel for the plaintiffs made a rather unusual request, asking that the court, despite his decision in favor of the defendants, nevertheless find the amount of the plaintiffs' damages, to provide for the possibility that on appeal the court's action in setting aside the default judgment against Robertson might be reversed. With some reluctance the court acceded to that request and made offhand findings of damages totaling $24,620.60.

Counsel for the plaintiffs proved to be a good prophet, for on the first appeal we held that the court should not have set aside the default judgment. We remanded the case 'for reinstatement of the default judgment.' Moore v. Robertson, 242 Ark. 413 413 S.W.2d 872 (1967). Upon remand the trial court heard a number of witnesses on the issue of damages and made awards to the plaintiffs totaling $9,200.00. The case now reaches this court for the second time, on appeal and cross appeal.

On direct appeal the plaintiffs insist that on remand the trial court had no choice except to make awards totaling $24,620.60 in accordance with its findings at the end of the first trial. That same argument was made on the first appeal and was rejected, our direction on remand being only that the default judgment be reinstated. That conclusion is now binding as the law of the case. Storthz v. Fullerton, 185 Ark. 634, 48 S.W.2d 560 (1932). We may appropriately add that we are still of the same opinion as we were then. To allow the losing litigant to encumber the appeal with contingent or provisional issues would needlessly complicate the proof in the trial court, the responsibilities of counsel on appeal, and this court's consideration of the controlling question. Moreover, as this record demonstrates, the trial court's treatment of semifictitious issues is apt to have all the disadvantages of a...