Phillips Motor Co. v. Price
| Decision Date | 19 October 1942 |
| Docket Number | 4-6828 |
| Parties | PHILLIPS MOTOR COMPANY v. PRICE, ADMX |
| Court | Arkansas Supreme Court |
Appeal from Mississippi Circuit Court, Osceola District; G. E. Keck Judge; reversed and dismissed as to Phillips Motor Co. affirmed as to Mrs. Cal Gossett, Admx.
Judgment reversed and dismissed in part and affirmed in part.
Percy A. Wright and Reid & Evrard, for appellant.
Ivy & Nailling and A. F. Barham, for appellee.
Two separate suits were brought in the circuit court of the Osceola district of Mississippi county by appellees against appellants to recover damages growing out of a collision between two automobiles between 1 and 2 o'clock a. m February 5, 1941, on U.S. highway No. 61 in said district and county, on account of the immediate death of Nelson Catalina and Vernon Dean Price, occupants of one of the automobiles, through the alleged negligence of Cal Gossett who was driving the other automobile.
It was alleged in both complaints that at the time Cal Gossett negligently ran into the automobile occupied by Catalina and Price, Gossett was operating an automobile owned by the Phillips Motor Company and was engaged in business for said Phillips Motor Company. It was also alleged that Loyce Donaldson, intervener as a plaintiff, owned the automobile occupied by Catalina and Price.
In the Catalina suit damages were prayed for the benefit of the estate of Nelson Catalina, and for the benefit of his parents, as his next of kin.
In the Price suit damages were prayed for the benefit of the estate of Vernon Dean Price and for the benefit of his mother, as his next of kin. In that case Loyce Donaldson, the owner of the automobile, prayed for judgment for the damage done to his automobile in the collision.
Answers were filed by appellants in each case denying each and every material allegation therein and alleging that the collision occurred solely as a result of the negligence of Vernon Dean Price and Nelson Catalina.
The causes were consolidated for the purposes of trial, and at the conclusion of the evidence appellants requested that verdicts be directed in their favor in each case, which motions were overruled over appellants' objections and exceptions.
The causes were then submitted to a jury upon the pleadings, the testimony and correct instructions relative to the law of negligence and contributory negligence and to the law governing liability of a master for a negligent act of a servant when the servant is engaged in the business of his master.
The jury returned a verdict in the Catalina case for $ 2,000 for the benefit of the next of kin as compensation for the loss of contributions and for the benefit of his estate in the sum of $ 500 to cover funeral expenses.
The jury returned a verdict in the Price case in the sum of $ 4,800 for the benefit of the next of kin and $ 200 for the benefit of the estate to cover funeral expenses. The jury also rendered a verdict in favor of Loyce Donaldson, in the Price case, for $ 150 as compensation for damages to his automobile.
Separate judgments were rendered by the court on each verdict from which an appeal has been prosecuted to this court by appellants.
Appellants contend for a reversal of the judgments upon two grounds, one being that there is no substantial evidence in the record tending to show that Cal Gossett, who was also killed in the collision, was guilty of any negligence, and the second being that, at the time of the collision, Cal Gossett was not engaged upon any business for appellant, Phillips Motor Company, and that, even if he were negligent, there is no substantial evidence in the record showing that Cal Gossett was, at the time, engaged in the performance of any business for Phillips Motor Company.
There were no eye-witnesses to the collision. All three parties involved were so near dead when discovered that they were speechless and almost breathless. All three died on the scene or while being taken to the hospital. The Gossett automobile was afire, and it would have burned up in a very short time if the first witness on the scene had not extinguished the flame. The collision occurred at about 1:30 a. m. on February 5, 1941, on a gradual curve in U.S. highway No. 61 in the Osceola district of Mississippi county. Prior to the collision the Gossett automobile was being driven by Cal Gossett in a northerly direction, and the automobile owned by Loyce Donaldson, occupied by Catalina and Price, was proceeding in a southerly direction. After the collision within the curve the automobiles were about 150 feet apart and each was headed in the direction from which it was known to have been coming. After the collision each had turned around. The left front fender and headlight of the Gossett automobile was completely demolished and the witnesses said that it was injured all along the left side. The front left wheel of the Donaldson car was knocked off and the body or axle was let down and made a cut in the pavement of considerable length and width and pointed in the direction of the automobile as it skidded and turned over and finally landed on the west shoulder of the highway. The Donaldson car was damaged all over, or, as some witnesses said, "completely demolished." A few feet north of the cuts in the pavement on the west side of the middle line a lot of glass and dirt was found. A small amount of scattered glass was found on the east side of the middle line of the pavement. A map was prepared and introduced in evidence showing the curve in the highway, the relative positions in which the witnesses found the two automobiles after the collision, the location of the dirt, glass and cut places in the pavement, etc., which map is inserted in this opinion in aid of the statement of facts. (See end of opinion for copy of the map.)
The evidence showed that during the evening before the collision young Catalina and Price were out driving with some lady friends and refreshed themselves with soft drinks....
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