Reed v. McGibboney
| Decision Date | 18 December 1967 |
| Docket Number | No. 5--4298,5--4298 |
| Citation | 422 S.W.2d 115,243 Ark. 789 |
| Parties | Raymond REED et al., Appellants, v. Frank McGIBBONEY et al., Appellees. |
| Court | Arkansas Supreme Court |
Lightle & Tedder, Searcy, for appellees.
Appellants Raymond Reed, the driver, and Ray Whitkamp, the owner of an automobile involved in a head-on collision near Cabot, Arkansas, which injured appellees Mr. and Mrs. Frank McGibboney, their daughter Sheila and Mrs. McGibboney's sister, Jackie L. Hamilton, on August 23, 1965, appeal from judgments totaling $47,100, raising numerous issues.
Ray Whitkamp, Lee Huckabee, Henry Schaechtel and Alvin Slayton were members of the Southern Farmers Association Cooperative. On August 23, 1965, at the suggestion of the local manager of the Co-op, they attended an open house of the Southern Farmers Association in Little Rock with Raymond Reed. They drove from Pocahontas in Whitkamp's car, with Reed driving at Whitkamp's request. On the return trip, at a point on highway 67 six-tenths of a mile south of the Cabot city limits, Reed drove over a rise in the highway and found that a car ahead had stopped Frank McGibboney received cuts and contusions. His pregnant wife received, in addition to cuts and contusions, a comminuted tibial plateau fracture of the knee and fractures of the second and third metacarpals (the bones immediately between the knuckles and the wrist) of the right hand.
to make a left turn off the highway. Two cars were stacked up behind the left-turning vehicle and a third car immediately in front of Reed, driven by Richard Thompson, pulled to the right shoulder to avoid colliding with the stacked up vehicles. When Reed was unable to stop before colliding with the vehicles ahead, he pulled to his left in an effort to pass the stacked vehicles and turn into a driveway off the left side of the highway. In so doing, he collided with a vehicle driven in the opposite direction by Frank McGibboney, in which the other appellees were passengers. The collision occurred at a point some two to twelve feet off the paved portion of the highway.
Sheila McGibboney had a minor concussion and several cuts, contusions and bruises which resulted in a two-inch scar on her head near the hairline.
Jackie Hamilton received multiple lacerations of the face and nose, requiring over 200 sutures. She was bleeding so profusely at the scene of the accident that she was blinded with her own blood and thought she was going to die because of the blood coming from her throat. Her facial scars are permanent and will persist even with plastic surgery.
The jury awarded $1,350 to Frank McGibboney, $750 to his daughter Sheila, $15,000 to his wife, and $30,000 to Jackie L. Hamilton.
Appellants' first contention is that the trial court erred in admitting color photographs, made by Dr. Hayes, of Jackie Hamilton's condition when she arrived at the hospital. Even though the trial court found the photographs to be inflammatory, we do not think he committed reversible error in permitting them to be introduced and exhibited to the jury. In Russell v. Coffman, 237 Ark. 778, 376 S.W.2d 269 (1964), we pointed out that the admission of photographs is ordinarily within the trial court's discretion, particularly when the picture is an aid to making the testimony of the witnesses more easily understood. We think our reasoning there is sound, for if a Thomas Gray, a William Shakespeare or an Edgar Allan Poe had witnessed the accident, their descriptions of it would as aptly and inflammatorily have described Jackie Hamilton's condition as do the pictures in this record. And while appellants would agree that the eloquence of a Gray, a Shakespeare or a Poe would not help their cause, we do not believe that they would argue that their word description would not be legitimate or proper to go to the jury. Consequently we do not find the pictures, which show what words would have described, to have been improperly admitted. The pictures certainly demonstrated that Jackie Hamilton was not puffing when she said she feared for her life.
On the day following the collision Herman West, accompanied by appellees' attorney, made photographs of the scene of the accident. At the trial, both he and State Trooper Lyndell Holcomb were permitted, over objection, to identify on the photographs the point of impact of the two vehicles. While such identification may not be technically proper, under the record here we are unable to see how the matter constitutes reversible error. It was not disputed that Reed pulled into the left lane or that the collision occurred off the paved portion of the highway. Reed testified that he did not see the McGibboney vehicle coming from the north until he pulled to the left, and unequivocally stated that he knew he was going to have a wreck there anyway if he could not get off. He expected to hit someone and pulled to the left because in his opinion that was the best thing to do. The testimony of witnesses West and Holcomb was to matters ordinarily stipulated in a trial of this kind, and Appellants complain of the testimony of Drs. Hayes and McKenzie about the possible aftermath of the injuries to Jackie Hamilton and Mrs. McGibboney. Dr. Hayes' testimony concerned the effect that facial scars such as Jackie's could have upon young girls of her age. The doctor testified that he could not predict what would happen in an individual case--that he had seen young girls become sort of recluses and others who did not give any external evidence of psychological maladjustment. His testimony was that it might affect her in the future. Dr. McKenzie testified that there was a possibility of Mrs. McGibboney's developing an arthritic change in her knee because of the fracture of the cartilage and the inability to get a complete anatomical reduction of the surface of the lateral joint space.
we find that any error of the trial court in connection with the point of impact is harmless error.
We agree with the trial court that Dr. Hayes' medical opinion about the psychological effect in general of such scars upon young girls was properly admissible. We also agree with the trial court that Dr. McKenzie's statement was proper, since his other testimony showed that Mrs. McGibboney had already developed some arthritic changes in her right ankle from injuries received in a prior accident. Great Republic Life Ins. Co. v. Lankford, 198 Ark. 166, 127 S.W.2d 811 (1939).
On the issue of joint enterprise, the proof shows that the Co-op members were traveling in Whitkamp's car, driven by Reed, for the common purpose of attending a Southern Farmers Association open house. Mr. Whitkamp asked Reed to drive his automobile. Whitkamp stated that he could have asked him to stop the car and taken control himself at any time. Upon this evidence plaintiffs offered the joint enterprise instruction (A.M.I. 712). Appellants' objections to the instructions were as follows:
Appellant argues here that the joint enterprise instruction was...
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Perry v. State
...have been applied in sustaining the admission of photographs depicting conditions resulting from bodily injuries. Reed v. McGibboney, 243 Ark, 789, 422 S.W.2d 115. We there pointed out that an oral description of such conditions by a witness who was unusually eloquent might be as inflammato......
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Johnson Timber Corp. v. Sturdivant, 87-163
...that the passenger's conduct was a negligent act or omission which operated as a proximate cause of the injury. Reed v. McGibboney, 243 Ark. 789, 422 S.W.2d 115 (1967). There was no such evidence in the present case. Under the circumstances of this case, it would have been pure speculation ......
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Yant v. Woods
...to have agreed to an equal voice in the management of the vehicle." Neal, 305 Ark. at 101, 805 S.W.2d 643. See also Reed v. McGibboney, 243 Ark. 789, 422 S.W.2d 115 (1967) (where the evidence showed that one of the passengers in the car stated he could have the driver to stop the car and co......
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Yant v. Woods, ___ S.W.3d. ___ (Ark. 6/26/2003)
...by implication to have agreed to an equal voice in the management of the vehicle." Neal, 305 Ark. at 101. See also Reed v. McGibboney, 243 Ark. 789, 422 S.W.2d 115 (1967) (where the evidence showed that one of the passengers in the car stated he could have asked the driver to stop the car a......