Oviatt v. Garretson
| Decision Date | 03 May 1943 |
| Docket Number | Nos. 6930, 7057.,s. 6930, 7057. |
| Citation | 171 S.W.2d 287 |
| Parties | OVIATT et al. v. GARRETSON et al. (two cases). |
| Court | Arkansas Supreme Court |
Appeal from Circuit Court, Clark County; Dexter Bush, Judge.
Five separate actions by George Garretson, Paul Ruffing, Mrs. Elsie Ruffing, George Garretson, administrator of the estate of Helen Irene Jones Garretson, deceased, and C. C. Garretson, against Paul Howland, executor of the estate of Mrs. Emma Tarnutzer, deceased, Missouri Pacific Railroad Company, Guy A. Thompson, trustee, and others, for personal injuries, death, and property damage resulting from an automobile collision involving three automobiles. The first three actions and the last two actions were consolidated for separate trials. Verdicts and judgments for plaintiffs, and defendants appeal. Pending appeal, John B. Oviatt became administrator of the estate of Emma Tarnutzer, deceased, and was substituted as a party appellee.
Judgments affirmed, except as to George Garretson, and judgment in his favor affirmed on condition of entry of a remittitur, otherwise reversed and remanded for a new trial.
Moore, Burrow, Chowning & Hall, Henry Donham, and Pat Mehaffy, all of Little Rock, for appellants.
J. H. Lookadoo, of Arkadelphia, for appellees.
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 & Error.
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 lefthand 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 $25,000.00
2. Paul Ruffing 211.13
3. Mrs. Paul (Elsie) Ruffing 500.00
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) $7,500.00
5. George Garretson
Administrator, 5,000.00
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.
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 Sections 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. Highway Steel & Mfg. Co. v. Crawford County Cir. Ct., 308 U.S. 504, 60 S.Ct. 88, 84 L.Ed. 431. In Hess v. Pawloski, 274 U.S. 352, 47 S.Ct. 632, 71 L.Ed. 1091, 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 of 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...
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