Oviatt v. Garretson

• Decision Date: 03 May 1943
• Docket Number: 4-6930,4-7057 Consolidated
• Citation: 171 S.W.2d 287,205 Ark. 792
• Parties: OVIATT, ADMINISTRATOR, v. GARRETSON
• Court: Arkansas Supreme Court

171 S.W.2d 287

205 Ark. 792

OVIATT, ADMINISTRATOR, v. GARRETSON

4-6930, 4-7057 Consolidated

Supreme Court of Arkansas

May 3, 1943

Appeal from Clark Circuit Court; Dexter Bush, Judge; affirmed if remittitur is entered.

Causes affirmed.

Moore Burrow, Chowning & Hall, Henry Donham and Pat Mehaffy, for appellants.

J. H Lookadoo, for appellees.

MCFADDIN, J. MR. JUSTICE KNOX, not participating.

OPINION

MCFADDIN, J.

These cases grow out of a three-car traffic mishap which occurred on U.S. Highway No. 67 in Clark county, Arkansas. Since jury verdicts were for appellees, we recite the facts favorable to them. St. Louis, I. M. & S. Ry. Co. v. Coleman, 97 Ark. 438, 135 S.W. 338; Davis v. Trimble, 76 Ark. 115, 88 S.W. 920, and West's Arkansas Digest, "Appeal and Error," § 1001.

On the 20th day of September, 1941, George Garretson was with his daughter-in-law, Helen Irene Jones Garretson, who was driving a Pontiac car south on highway No. 67, about two miles south of Arkadelphia, Arkansas. The road is straight north and south, and almost level for more than three miles. The right-of-way of the Missouri Pacific Railroad Company is east of and adjacent to the highway. The railroad employees had started a grass fire on the right-of-way, and allowed the fire to spread from the right-of-way to the highway. This fire caused a dense pall of smoke to extend along the highway for a distance of about four hundred feet. A breeze blowing from the east caused the smoke to be on and over the highway so as to render vision almost impossible at times. The smoke would settle to the highway or become dissipated, as the wind subsided or blew. George Garretson and his daughter-in-law, traveling about forty miles an hour south on the highway, passed a Chevrolet car and trailer proceeding in the same direction and occupied by Mr. and Mrs. Paul Ruffing, who were driving about twenty or twenty-five miles an hour. After the Garretson car had passed the Ruffing car and returned to its own side of the highway and was about four hundred feet in advance of the Ruffing car, the pall of smoke, previously mentioned, lowered over the highway, and completely obstructed vision. Then Mrs. Helen Garretson took her foot off of the accelerator and reduced her speed to about ten miles an hour, and was still some fifty or one hundred feet north of the smoke pall and in easy stopping distance from the smoke, when a Buick car driven by Mrs. Emma Tarnutzer, proceeding north on the highway, went through the smoke pall at a rate of speed of about sixty-five miles an hour, and came out of the smoke on Mrs. Tarnutzer's left-hand side of the road, and ran into the Garretson car with such force as to cause the instantaneous death of Mrs. Tarnutzer, fatal injuries to Mrs. Helen Irene Jones Garretson, and painful injuries to George Garretson. The Ruffing car and trailer continued south behind the Garretson car, and the Tarnutzer car drove the Garretson car a few feet back against the Ruffing car and trailer, injuring Mrs. Ruffing and damaging the Ruffing car and trailer. L. C. Wilbanks and Sam Tate were employees of the railroad company; and they started the fire on the railroad right-of-way and allowed it to spread to the highway right-of-way. Separate actions were filed by parties as follows: (1) George Garretson for his personal injuries. (2) Mr. Ruffing for his property damage. (3) Mrs. Ruffing for her personal injuries. (4) C. C. Garretson, husband of Mrs. Helen Irene Jones Garretson, for the loss of his wife. (5) George Garretson, administrator of the estate of Helen Irene Jones Garretson, for her conscious pain and suffering.

In all actions the defendants were Paul Howland, executor of the estate of Mrs. Emma Tarnutzer, deceased; Missouri Pacific Railroad Company, Guy A. Thompson, Trustee; L. C. Wilbanks and Sam Tate. Each plaintiff alleged the injuries and damages to have resulted from concurring acts of negligence of each and all of the defendants; that is, the railroad company and its employees were alleged to have been negligent in creating the fire and the pall of smoke over the highway; and Mrs. Emma Tarnutzer was alleged to have been negligent in driving at a fast and dangerous rate of speed and on the wrong side of the highway; and it was alleged that Mrs. Tarnutzer would not have been on the wrong side of the highway except for the smoke; and that the negligence of the defendants was, therefore, concurrent.

Actions 1, 2 and 3, as above listed, were consolidated and tried to a jury on February 3, 1942, and resulted in verdicts and consequent judgments as follows: (1) George Garretson, $ 25,000; (2) Paul Ruffing, $ 211.13; (3) Mrs. Paul (Elsie) Ruffing, $ 500.

The appeal in these three actions is now cause No. 6930 in this court.

Actions 4 and 5, as above listed, were consolidated and tried to a jury on July 30, 1942, and resulted in verdicts and consequent judgments as follows: (4) C. C. Garretson (husband), $ 7,500; (5) George Garretson, administrator, $ 5,000.

The appeal in these two actions is now cause No. 7057 in this court.

All verdicts and judgments were against the defendants jointly and severally; and all have appealed. Pending the appeal, John B. Oviatt has become administrator of the estate of Mrs. Emma Tarnutzer, deceased; and has been substituted for Paul Howland, executor. The records and briefs are voluminous. The transcripts contain 874 pages; the abstracts contain 378 pages; and the briefs contain 340 pages. Many questions are argued, but these can be reduced to seven points: (1) The administrator of the estate of Mrs. Emma Tarnutzer claims the service on the estate is void. (2) The railroad company claims there is no evidence that its employees started the fire. (3) The railroad company claims that the smoke was not the proximate cause of the collision and that the rules of concurrent negligence do not apply. (4) All appellants claim the appellees were jointly and severally guilty of contributory negligence. (5) All appellants claim errors in giving and refusing instructions. (6) In case No. 6930 herein, all the appellants claim the trial court erred in refusing to grant a new trial on the ground of newly-discovered evidence. (7) The appellants claim that each verdict was excessive.

We dispose of these points in the order listed.

I. The Service Question.

Mrs. Emma Tarnutzer was killed in the collision, and this suit was against the executor of her estate. He was served with summons under the provisions of act 40 of 1941, and he questions the validity of that service.

The Legislature of Arkansas, by act No. 39 of 1933, provided for the service of process in civil actions upon nonresident owners, drivers, etc. This act is §§ 1375 and 1376 of Pope's Digest, and has been held constitutional by the Supreme Court of Arkansas in the cases of Kelso v. Bush, 191 Ark. 1044, 89 S.W.2d 594; Alexander v. Bush, 199 Ark. 562, 134 S.W.2d 519, and Highway Steel & Mfg. Co. v. Kincannon, 198 Ark. 134, 127 S.W.2d 816, and in this last-mentioned case, the United States Supreme Court denied an appeal because of the want of a substantial federal question (308 U.S. 504, 60 S.Ct. 88, 84 L.Ed. 431). In Hess v. Pawloski, 274 U.S. 352, 71 L.Ed. 1091, 47 S.Ct. 632, the United States Supreme Court upheld the constitutionality of the Massachusetts act similar to the Arkansas act.

There was no provision in the said act of 1933 whereby service of process could be obtained upon the estate of a deceased nonresident owner or driver. To remedy that situation, the General Assembly of 1941 passed act No. 40, which amended act 39 of 1933, and provided that in a suit against any nonresident owner or driver, in case of death of such person, the action could be filed or continued against the administrator, executor, or other legal representative of the estate of such person; and said act 40 of 1941 provided that service of process might be had upon the executor, administrator or legal representative of the estate by complying with the provisions of the said statute.

Mrs. Tarnutzer's executor claims that the act appointed the Secretary of State as the agent for service of process on the nonresident owner, and that upon the death of the nonresident owner the agency expired. Many cases are cited in the able brief of the attorney for Mrs. Tarnutzer's executor to sustain the well-known rule that death works a revocation of agency where the agency is not coupled with an interest, etc.; but we consider all of these cases to be beside the point. It is true that act 40 of 1941, stated that by using our highways a nonresident owner or driver constituted the Secretary of State as his agent for service of process; but that agency was not a common-law agency. The state, in passing such a statute, was acting under its police power, and such power is not limited to the rules of agency and contract. A nonresident who utilized the state's highways at a time when the General Assembly had promulgated laws under the police power was bound by such statutes. Consequences of his or her negligence could not be abrogated by the general rules of contract and agency; hence, an administrator or executor would not be relieved under the doctrine that the power of agency ends with death of the principal. The question goes to the power of the sovereign to pass such a law. We hold it has such power and has properly exercised it.

In Young v. Masci, 289 U.S. 253, 53 S.Ct. 599 77 L.Ed. 1158, 88 A. L. R. 170, the Supreme Court of the United States had before it a case where a nonresident owner had allowed another to drive his car into the state of New York. The question of the validity of the New York statute was raised, and the Supreme Court of the United States said: "Thus the...