Postal Telegraph-Cable Co. v. White

• Decision Date: 18 February 1935
• Docket Number: No. 4-3677.,4-3677.
• Citation: 80 S.W.2d 633
• Parties: POSTAL TELEGRAPH-CABLE CO. v. WHITE.
• Court: Arkansas Supreme Court

80 S.W.2d 633

POSTAL TELEGRAPH-CABLE CO. v. WHITE.

No. 4-3677.

Supreme Court of Arkansas.

February 18, 1935.

Rehearing Denied April 21, 1935.

Appeal from Circuit Court, St. Francis County; R. J. Williams, Special Judge.

Action by E. A. White against the Postal Telegraph-Cable Company. Judgment for plaintiff, and defendant appeals.

Affirmed.

Samuel C. Bowman and Howard L. Kern, both of New York City, Mann & Mann, of Forrest City, and Rose, Hemingway, Cantrell & Loughborough, of Little Rock, for appellant.

S. S. Hargraves and Winstead Johnson, both of Memphis, Tenn., and Fred A. Isgrig, of Little Rock, for appellee.

Smith B. Atwood, of St. Louis, Mo., and Edward B. Downie, of Little Rock, amici curiæ.

HUMPHREYS, Justice.

This is the second appeal in this case. On the first appeal, the judgment for $10,000 was reversed, and the cause remanded for a new trial because instruction No. 1, given at the request of appellee, ignored the affirmative defenses of contributory negligence, the assumption of the risk, and the release executed by appellee to appellant; and because instructions 2 and 3 given on behalf of appellee were in conflict with correct instructions 2 and 4 given on behalf of appellant relating to contributory negligence and the assumption of the risk.

Upon a retrial of the cause, the errors pointed out by this court in instructing the jury in the first trial were corrected, and the cause was submitted to the jury under instructions which took into account the affirmative defenses of appellant and which did not conflict one with the other. The facts on the retrial of the cause were substantially the same as on the first trial, and there being no material difference in the testimony on the two trials of the cause, it is unnecessary to restate the facts in this opinion. Reference for a statement of the facts herein is, therefore, made to the case of Postal Telegraph-Cable Company v. White, 188 Ark. 361, 66 S.W.(2d) 642. It may be stated in passing that some additional testimony was introduced in this case tending to show that the injury resulting to appellee on account of the collision was of a permanent nature.

The questions of whether the written release under the facts in this case was binding upon appellee as a matter of law, and whether appellee was barred by delay in repudiating the settlement and release, and whether the accident was inevitable as a matter of law, and whether Clyde White was not the agent of appellant in seizing the steering wheel of the automobile as a matter of law, and whether Clyde White was not the fellow servant of appellant as a matter of law, were questions before this court on the former appeal, and this court held that each of these questions involved disputed issues of fact to be determined by a jury and not by the court. This ruling became and is the law in the instant case.

Appellant contends that the court erred in giving appellee's instruction No. 5, which is as follows: "You are instructed that if you find that Dr. Bogart was the defendant company's physician and that he represented to E. A. White, the plaintiff herein, that his injuries were temporary and that plaintiff would soon recover, and if you further find that the plaintiff relied and acted upon such statements in executing a release to the defendant, and if you further find that Dr. Bogart was mistaken as to the extent and duration of plaintiff's injuries and that plaintiff is still suffering from his injuries, you are then instructed that the plaintiff would not be bound by the release, and it would be void."

The instruction is criticized on the ground that the evidence reflects that Dr. Bogart was called by appellee and was not appellant's physician. The evidence is in conflict as to whether Dr. Bogart was appellant's physician, so it was proper to submit that issue to the jury, and it was properly submitted in instruction No. 5. It is also suggested that Dr. Bogart made no mistake in advising appellee that his injuries were temporary. This was also a disputed question of fact, so it was proper to include that issue in the instruction for their determination.

We have examined the instructions given and refused, as well as the modification of instruction No. 18, and find no errors therein.

Appellant also contends that the statute, section 7144 of Crawford & Moses' Digest, known as the "fellow servant law," is void, and that this judgment based thereon must be reversed for that reason. It is argued that this law is void because in conflict with the provision of the Fourteenth Amendment to the Constitution of the United States, which provides that no state shall deny to any person within its jurisdiction the equal protection of the law. This section of the digest is section 1 of Act No. 175 of 1913 (page 734),...