Plunkett-Jarrell Grocer Co. v. Freeman

• Decision Date: 09 March 1936
• Docket Number: 4-4194
• Parties: PLUNKETT-JARRELL GROCER COMPANY v. FREEMAN
• Court: Arkansas Supreme Court

92 S.W.2d 849

192 Ark. 380

PLUNKETT-JARRELL GROCER COMPANY v. FREEMAN

4-4194

Supreme Court of Arkansas

March 9, 1936

Appeal from Hot Spring Circuit Court; Henry B. Means, Judge affirmed.

Judgment affirmed.

Gordon E. Young and Martin, Wootton & Martin, for appellant.

F D. Goza and McMillan & McMillan, for appellee.

MEHAFFY J. BAKER, J., not participating. MCHANEY, J., dissenting.

OPINION

MEHAFFY, J.

This action was begun in the Hot Spring Circuit Court by the appellee to recover damages which he alleged were caused by the negligence of the appellant. He alleged that he was driving a Ford roadster along the paved highway from Hot Springs to Arkadelphia and was about three and one-half miles from Hot Springs when a truck belonging to the appellant, which was being driven toward Hot Springs by one of appellant's employees, was carelessly and at a reckless rate of speed driven against and struck appellee's roadster, damaging the roadster, and causing injuries to the appellee by breaking his arm, middle finger, palm, wrist, forearm, and elbow in 10 places; that he suffered loss of blood, bruises, torn ligaments and muscles on the left side of his body, causing him physical and mental pain and anguish and disfigurement, and that his injuries were permanent.

The appellant filed answer denying all the material allegations in the complaint. The cause was tried by jury. There was a verdict and judgment in favor of appellee for $ 10,000. A motion for new trial was filed and overruled, and the case is here on appeal.

Appellant's motion for a new trial contains 21 assignments of error, but only three are argued in its brief. Since the other assignments of error are not argued, under our rules of practice they are deemed to have been waived or abandoned. Reed v. State, 103 Ark. 391, 147 S.W. 76; Hurley v. Oliver, 91 Ark. 427, 121 S.W. 920; Commonwealth Public Service Co. v. Lindsay, 139 Ark. 283, 214 S.W. 9; Shawmutt Lbr. Co. v. Waites, 122 Ark. 224, 182 S.W. 907; Fitzhugh v. Leonard, 179 Ark. 816, 19 S.W.2d 1010; Austin v. J. R. Watkins Co., 185 Ark. 85, 46 S.W.2d 16.

The three assignments of error argued by appellant are, first, that the evidence is insufficient to support the verdict; second, that the court erred in giving instructions to the jury; third, that the verdict is excessive.

Ralph Plunkett, president of appellant, testified that the company operates 16 stores in the State of Arkansas, located at Little Rock, Hot Springs, Malvern, Hope, Ashdown, Nashville, Fordyce, Pine Bluff, and Stuttgart, and operates approximately 42 trucks. It is a matter of common knowledge that there is a paved highway from Little Rock to Texarkana, going through Arkadelphia. There is also a paved highway from Little Rock by way of Benton, where it leaves the Arkadelphia highway and goes to Hot Springs. There is a paved highway from Hot Springs to Arkadelphia. This highway connects the two above- mentioned highways.

August Lefler testified in substance that he is married, 32 years of age, and has lived in Arkadelphia since 1932, and in that year was operating a bus from Arkadelphia to Hot Springs; on August 10, 1932, Lefler was operating his bus on the highway. This was the date that the accident occurred. He left Hot Springs about 3:30 in the afternoon driving toward Arkadelphia on the paved highway, and saw the collision between the roadster driven by appellee, and truck which ran into it and hit him. He was about 100 or 125 yards from where the accident occurred. He testified that the truck was on the wrong side of the road, and after the accident the truck continued without stopping, and he saw as it passed him, that it was a Plunkett-Jarrell truck. The truck was dark-colored. He saw the appellee's car, which had been in the wreck. He was acquainted with appellee, but did not tell him that he saw the accident. He thought the case had been settled. On cross-examination he said that he operated on schedule, and the day of the accident they were scheduled to leave Hot Springs at 3:30 in the afternoon, but left about 15 or 20 minutes late and had an hour's delay with his car on the road: he knew the appellee two or three years prior to the accident, and had seen him often after the accident. He heard the collision, and the truck came past him toward town. The truck did not stop, and the accident made no particular impression on him. He knew of no serious trouble. When he went on he saw the roadster at Gilliam's Landing, and they were working on the roadster, and he recognized appellee at the time. Also a Mr. Dodson was a passenger. He did not know what damage had been done. Witness did not know about appellee's having filed suit, and after he found out the case had not been settled he did not want to go into court.

George M. Green, manager of appellant's branch in Hope, Arkansas, keeps a record to show where the trucks were on August 10, 1932, in the form of sale records for the day, and delivery by the trucks on their regular routes; he examined the records for his territory and his trucks were not in the vicinity of Hot Springs at that time; on that date they had no hauls from Little Rock, and their trucks were all confined to local deliveries. He testified that if any occasion had arisen to haul merchandise to his branch office from Little Rock, his trucks would not have used the Arkadelphia-Hot Springs highway, but would have passed by Malvern, which is 20 miles nearer. On cross-examination this witness testified that they hauled merchandise from Little Rock to their branch office, and he knew they went by Malvern because that was the straightest way, and because of the time they would consume; he was not familiar with the Hot Springs branch.

Tim Schultz, an employee of the appellant, is manager of the Hot Springs branch, and he testified that a record was kept of the trips made on August 10, and that on that date an accident did not happen to either of their trucks. He also testified that the furthest customer that he had on the road from Hot Springs to Arkadelphia was C. C. Batterson, whose business is located a mile beyond the end of the car-line, and that they did not make deliveries beyond Batterson's; that the injury occurred on Wednesday, and that they made deliveries to Batterson on Monday and Thursday, and served no other stores except Batterson's, between there and the river; that his records showed that on August 10 deliveries were made to the Oaklawn Race Track; he did not ride with the truck, but knew where the men went from what they reported, and he made his records from their reports; he has no way of telling if some driver drove a truck on the highway between Oaklawn and the river, but does not think they did because there was no occasion. Trucks from the Little Rock branch make deliveries to the Hot Springs branch weekly. He has never seen trucks from Malvern, Hope or other cities in Hot Springs. Appellant operates regular routes, one of which runs toward Little Rock, to Browes Station, two miles. The other route toward Little Rock is made three times a week, on Monday, Wednesday and Friday, and August 10 was Wednesday. Men by the names of Robert Cheshire, Albert Howard and Roy James had driven trucks for Plunkett- Jarrell, but they did not deliver to Harris Mackey.

Luke Graves, another employee of appellant, testified that he was the driver of one of the trucks, and that on no occasion did he drive his truck beyond Batterson's store on the Hot Springs-Arkadelphia highway, nor did any one else. His truck was not where the accident occurred on August 10, and he did not have his truck beyond Batterson's store. He said the other truck was operated by Mack Wilson. Witness could not remember where he was on June 5, 1934, or August 8, 1933.

Mack Wilson, another employee of appellant, also testified that the Hot Springs branch operated two trucks, and in August, 1932, they delivered on Benton Street and Malvern Avenue. The other truck had another route; that he drove the Arkadelphia-Hot Springs highway as far as Batterson's store which is one mile from Oaklawn, and is the longest delivery on that route from Hot Springs. He did not deliver merchandise to Gilliam's Landing, nor beyond Batterson's store. He knows nothing of the accident which took place on August 10 in which a Plunkett-Jarrell truck collided with one driven by appellee. He never had an accident there, and it could not have happened without his knowledge. Gilliam's Dairy is about one mile and one-half beyond Batterson's. Witness testified that he never drove appellant's truck at any time except where orders were to be delivered, and the company's orders were obeyed by him. Does not know where he was on July 18, 1934, but knows he went to Batterson's store once a week. Made his regular run on August 10, 1932, and to Malvern Avenue that morning; he did not make a trip on the Arkadelphia highway; that if any trip was made on this highway he was the driver, and made a trip to Oaklawn on August 10.

Lloyd Alexander, another employee of appellant, testified that he was manager of appellant's branch at Malvern; that the trade territory from Malvern branch extends from Point Cedar, Arkadelphia, Sparkman, Willow, Butterfield Leola, Prattsville, Traskwood, and Bismarck. The Malvern trucks do not serve customers between Bismarck and Hot Springs. In going to Bismarck they take the road to Social Hill, which passes by Arkadelphia. They have customers there, but no customers from there to Hot Springs. The Malvern branch has three drivers. There is no reason for appellant's truck from Malvern to pass over the road from Bismarck to Hot Springs on company business. Sometimes his trucks coming back to Bismarck from Malvern, would go to the Caddo and come...