Saliba v. Saliba

• Decision Date: 05 November 1928
• Docket Number: 235
• Citation: 11 S.W.2d 774,178 Ark. 250
• Parties: SALIBA v. SALIBA
• Court: Arkansas Supreme Court

11 S.W.2d 774

178 Ark. 250

SALIBA v. SALIBA

No. 235

Supreme Court of Arkansas

November 5, 1928

Appeal from Mississippi Circuit Court, Osceola District; G. E. Keck Judge; judgment modified.

STATEMENT BY THE COURT.

The plaintiff, appellee, has recovered damages in this action against the defendant, appellant, for injuries in consequence of his wrist being badly cut by a broken glass while assisting, upon the invitation of the defendant, in pushing his automobile out of a ditch. The rear wheels of the Studebaker car in which appellant was driving with his brother, Dr. G. M. Saliba, had slipped or fallen into the ditch on the side of the street. Appellee, in another car with two others, came along, and proffered assistance, and were invited to get in behind the car and push or help get it out. While appellee, in the middle between the two others was so engaged, the car had been pushed to the top of the ditch, and suddenly lurched and rolled backwards. He put up his hands to help hold it, and either put them against the glass of the back window or they slipped against the glass breaking it, and his wrists were badly cut. The complaint alleged the negligence, "that the plaintiff took a position behind said car, and was pushing same with his hands in an effort to extricate the defendant and his car from its unfortunate predicament, and, while in that position, the defendant, who knew plaintiff's position, suddenly negligently and carelessly reversed the lever, or gear, of the car, and increased the supply of gasoline, thereby causing the car to suddenly lurch backward against the plaintiff. That the plaintiff's hands slipped, or he involuntarily threw them up, and they came in contact with the glass in the rear of the said car, which broke, and cut both of plaintiff's wrists painfully and severely, thereby inflicting on the plaintiff permanent, painful injuries."

The answer denied any negligence, and alleged that plaintiff assumed the risk by voluntarily exposing himself thereto, and also pleaded contributory negligence.

The tendons and nerves on appellee's right wrist were cut through to the bone, and, after two surgical operations and much pain suffered, the fingers of his hand are so drawn now as to resemble a claw. The hand is permanently injured, and can never be of much use, and pain may be suffered on account of it at intervals from now on.

Appellant was present in court, and did not testify. The court instructed the jury, giving, over appellant's objections, instructions Nos. 2, 4 and 5, as follows.

"No. 2. You are further told that, if you find that the defendant negligently released the brakes, or negligently failed to apply the brakes on the car, and thereby permitted it to suddenly run back and injure the plaintiff, your verdict will be in favor of the plaintiff, unless you further find that he himself was guilty of contributory negligence."

"No. 4. If you find that either party to the suit has withheld any evidence under his control, the law presumes that such evidence, if introduced, would be against him.

"No. 5. If you find for the plaintiff you will fix his damages at such a sum as you may find, from a preponderance of the evidence, would compensate him for the amount of his doctors' bills, drug bills, nurse bills, hospital bills, the damage, if any, to his earning capacity, and the physical and mental pain that he has suffered in the past and may suffer in the future, if any, on account of his injury, with interest thereon at the rate of 6 per cent. per annum from the 22d day of April, 1926, down to this date."

The jury rendered a verdict for the plaintiff, and from the judgment thereon this appeal is prosecuted.

Judgment affirmed.

Moore, Gray & Burrow, Reid & Everard and Everett B. Gibson, Jr., for appellant.

Bruce Ivy and J. T. Coston, for appellee.

KIRBY J. SMITH, J., dissents.

OPINION

KIRBY, J., (after stating the facts).

It is insisted, first, for reversal, and the question was raised by both the demurrer and the answer, that the court was without jurisdiction to try the cause, it being against a citizen and resident of the other judicial district of the county. The process, however, was issued and served upon the defendant in the district of the county where the suit was filed, and the fact that defendant was a resident and citizen of the other judicial district of the county did not deprive the court of the district where the suit was brought and the defendant was found of jurisdiction of the action, which was a transitory one. It is true the act creating the two judicial districts of Mississippi County, act 81 of 1901, and the amendatory act 468 of 1919, contain the provision, § 4 of the original act and § 1 of the amendatory act, that "no citizen of either the Osceola or the Chickasawba District of said county shall be liable to be sued in any action in said courts, in the other district." But § 6 of the original act provides that, in order to ascertain the jurisdiction of actions cognizable in the circuit and chancery courts, "the said districts for all purposes * * * shall be considered as separate and distinct counties and the mode and place for trying suits and determining causes shall be determined by the general law applicable to different counties." It is further provided that certain processes shall run through the whole county, but that none, except subpoenas for witnesses, criminal processes and executions issued from the circuit court and chancery court of the Osceola District, shall be served on any citizen or resident of the Chickasawba District. If there were no provision in the act except the one of the fourth section, that no citizen of either of the districts shall be liable to be sued in any action in the courts in the other district, appellant's contention would...