Rogers v. Lawrence

• Decision Date: 17 December 1956
• Docket Number: No. 5-924,5-924
• Citation: 296 S.W.2d 899,227 Ark. 117
• Parties: Mary E. ROGERS, Appellant, v. Hattie G. LAWRENCE, Appellee.
• Court: Arkansas Supreme Court

Page 899

296 S.W.2d 899

227 Ark. 117

Mary E. ROGERS, Appellant, v. Hattie G. LAWRENCE, Appellee.

No. 5-924.

Supreme Court of Arkansas.

Dec. 17, 1956.

Rehearing Denied Jan. 21, 1957.

Fred M. Pickens, Jr., Newport, for appellant.

Wayne Boyce, Tuckerman, for appellee.

SEAMSTER, Chief Justice.

The appellee, Mrs. Lawrence, filed this action against the appellant, Mrs. Rogers, seeking to recover damages for personal injuries sustained when Mrs. Rogers' car struck and injured Mrs. Lawrence. The answer alleged that Mrs. Lawrence was injured accidentally while a guest of Mrs. Rogers and therefore, could not recover because of the Arkansas guest statute. The guest issue was submitted to a jury; and a verdict returned for Mrs. Lawrence. The appellant presents several assignments, one relating to the guest issue, another relating to instructions, and another relating to the voir dire examination of the jury panel.

The first point for decision is the guest issue. Mrs. Lawrence, a lady past seventy-eight years of age, and living in Jackson County, went to Crittenden County in September, 1953, to visit friends there. She was visiting in the home of Mrs. Brewer when appellant, Mrs. Rogers, and another lady, came by to get Mrs. Brewer and Mrs. Lawrence to go to see Mrs. Rogers' new home. When the four ladies were seated in the car, Mrs. Rogers was driving with Mrs. Brunson beside her in the front seat; and Mrs. Brewer and Mrs. Lawrence were in the rear seat, with Mrs. Lawrence seated on the right. As they drove through the business district, after visiting at Mrs. Rogers' new home, Mrs. Lawrence requested that they stop at Mr. Holt's store so she could tell him goodbye, as she was leaving the next day for Jackson County.

Mrs. Rogers drove up parallel with the curb just one store away from Holt's store and stopped the car and Mrs. Lawrence stepped from the car to the street, ready to step up on the sidewalk. Just then, the car directly in front of Holt's store drove away, and Mrs. Rogers said: 'O. D. Cox is pulling out; I believe I will pull up'; and Mrs. Rogers began no move a car length forward. But in some way--either by the door or the fender hitting her--Mrs. Lawrence was knocked down by Mrs. Rogers' car and received the injuries involved in this case. Mrs. Lawrence stated the following:

'Mrs. Rogers pulled in parallel to the curb to park and stopped the motor. I opened the rear door of the car which opens toward the back of the car and stepped out. I had both feet on the ground (pavement) and I was not touching the car when Mrs. Rogers said, 'I think I will pull up a little bit' and stepped on the gas and the car door hit me on the right side. I was facing west and the car was facing south. I was knocked down between the curb and the car striking the left hip.'

There is no need to recite the other testimony because, on an appeal like this one, we accept the evidence strongest to the appellee's case. See Harrison v. Rosensweig, 185 Ark. 281, 47 S.W.2d 2; Potashnick Local Truck System, Inc., v. Archer, 207 Ark. 220, 179 S.W.2d 696; Albert v. Morris, 208 Ark. 808, 187 S.W.2d 909.

Appellant claims that under her own testimony, Mrs. Lawrence was a guest in Mrs. Rogers' car and cannot recover because of our guest statutes. Appellee says it was a question of fact for the jury to decide: (a) whether Mrs. Lawrence had left the car when she was injured; and (b) whether the stop at Holt's store was merely a part of a journey or was in itself such a complete stop as to suspend the guest relationship until Mrs. Lawrence should re-enter the car.

We have two guest statutes in Arkansas, being Act No. 61 of 1935 (now found in § 75-913 Ark.Stats.) and Act No. 179 of 1935 (now found in § 75-915 Ark.Stats.). The latter is the one most strongly relied on by the appellant; and the germane portion of it reads:

'No person transported or proposed to be transported by the owner or operator of a motor vehicle as a guest, without payment for such transportation, nor the husband, widow, executors, administrators or next of kin of such person, shall have a cause of action for damages against such owner or operator, or other persons responsible for the operation of such car, for personal injury, including death resulting therefrom, by persons while in, entering, or leaving such motor vehicle, unless such injury shall have been caused by the willful misconduct of such owner or operator.'

In 3 Ark.Law Review at page 101 there is a comment on cases from various states involving the guest statute; and also in 1 Ark.Law Review at page 50 there is an article on the Arkansas guest statute. In addition, we have several cases on these statutes, but none decides the question here posed. Some of our more recent cases are: Corruthers v. Mason, 224 Ark. 929, 277 S.W.2d 60; Derrick v. Rock, 218 Ark. 339, 236 S.W.2d 726; Steward v. Thomas, 222 Ark. 849, 262 S.W.2d 901.

Since the Act 179 uses the words 'transported or proposed to be transported', 'entering' or 'leaving', it is that statute on which the appellant most relies on her claim that the Trial Court should have instructed a verdict for her. We seldom have a case in which both sides show the research and diligence that has been exhibited in the case at bar. Learned counsel for appellant has favored us with a brief giving the statute and decision from each and every state in the Union that has a guest statute in any way resembling our statute; and also numerous text books and law review articles are referred to in the brief. Since the oral argument, we have discovered an annotation in 50 A.L.R.2d 974, which volume was not distributed until after the argument.

But in the final analysis the issues are simply these: When the guest has left the vehicle, intending to later reenter after transacting other matters, can the Court say, as a matter of law, that the intention to resume the journey makes the guest relationship continue while the guest is entirely away from the car? Again, should the Court leave it to the jury to decide whether, under the facts in each particular case, the guest relationship was terminated when the guest had both feet on the ground and was not touching the car?

We believe the jury should have been allowed to decide the fact question, just as was done in the case at bar. The guest statute is in derogation of the common law and is to be strictly construed. Ward v. George 195 Ark. 216, 112 S.W.2d 30; Arkansas Valley Co-op. Rural Electric Co. v. Elkins, 200 Ark. 883, 141 S.W.2d 538; Whittecar v. Cheatham, Ark., 287 S.W.2d 578.

The 'guest statutes' were enacted to prevent collusive suits. Ward v. George, supra. Certainly there was no collusion in the case at bar; and when we give the guest statute the strict construction that we have held proper, then it seems clear that the jury should have decided whether Mrs. Lawrence continued as Mrs. Rogers' automotive guest even when out of the car to go into a store. Someone must say as a fact when the automotive guest status ceased after Mrs. Lawrence left the car, had both feet on the ground and had ceased to be in contact with the car. Our system of jurisprudence leaves fact questions such as these to the jury. In the recent case of Whittecar v. Cheatham, Ark., 287 S.W.2d 578, 579, decided March 5, 1956, we said: 'Ordinarily the issue of whether one is a guest is a question of fact. Brand v. Rorke, Ark., 280 S.W.2d 906.' Therefore, the Trial Court was correct in refusing appellant's motion for an instructed verdict.

As to appellant's assignment regarding the requested instructions, little need be said. It would unnecessarily prolong this opinion to give these instructions in extenso. Appellant insists that each of her instructions 4 to 8, inclusive, should have been given; but we find that the Court covered the correct portion of these instructions in its own instructions 1, 6, 8 and 9 and in defendant's instructions 1 and 2.

Finally, appellant claims that the Court committed fatal error in permitting the attorney for the appellee to ask the venire of prospective jurymen these questions:

'1. Are you now, or have you been, employed as an adjuster by any liability insurance company?

'2. Do you, or any of you, own stock in or have any financial interest in any insurance company that has automobile and liability insurance?

'3. Are you now, or have you been in the past, employed as an adjuster for any liability insurance company?'

We have held that the trial court has discretion in allowing questions like this to be asked on voir dire (see Ellis & Lewis v. Warner, 182 Ark. 613, 32 S.W.2d 167); and we are of the opinion that the trial court did not abuse its discretion in the case at bar. The questions here asked were not materially different from those permitted in Halbrook v. Williams, 185 Ark. 885, 50 S.W.2d 243. Furthermore, we have recent cases all on the same point. See Missouri Pac. Transp. Co. v. Talley, 199 Ark. 835, 136 S.W.2d 688, certiorari dismissed by U.S. Supreme Ct., 311 U.S. 722, 61 S.Ct. 5, 85 L.Ed. 470; Brundrett v. Hargrove, 204 Ark. 258, 161 S.W.2d 762; and Dedmon v. Thalheimer, Ark., 290 S.W.2d 16.

Finding no error, the judgment is affirmed.

HOLT, Justice (dissenting).

All concede that the present case is one of first...