Sloan v. Tarlton

• Decision Date: 04 January 1961
• Docket Number: No. 16550.,16550.
• Citation: 285 F.2d 575
• Parties: Earl SLOAN, Jr., Appellant, v. Norma Lee TARLTON et al., Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

285 F.2d 575 (1961)

Earl SLOAN, Jr., Appellant, v. Norma Lee TARLTON et al., Appellees.

No. 16550.

United States Court of Appeals Eighth Circuit.

January 4, 1961.

Frank Sloan, Jonesboro, Ark., for appellant. Berl S. Smith, Jonesboro, Ark., on the brief.

Henry Woods, of McMath, Leatherman, Woods & Youngdahl, Little Rock, Ark., for appellees. Douglas Bradley, Jonesboro, Ark., on the brief.

Before WOODROUGH, VAN OOSTERHOUT and MATTHES, Circuit Judges.

VAN OOSTERHOUT, Circuit Judge.

Defendant Sloan appeals from final judgment awarding damages against him for wrongful death of John Tarlton resulting from injuries sustained while Tarlton was admittedly a guest in the automobile operated by the defendant. The judgment is based upon a finding of wilful and wanton misconduct on the part of the defendant. The facts will be summarized in the course of the opinion.

Jurisdiction, based upon diversity of citizenship, is established.

Defendant made motions for a directed verdict at the close of plaintiff's evidence and at the close of all of the evidence, and made a motion pursuant to Rule 50 of the Federal Rules of Civil Procedure, 28 U.S.C.A., for judgment in accordance with his motion for directed verdict. All of said motions were overruled. Said motions all raised the issue of the sufficiency of the evidence to support the verdict.

The sole issue presented by this appeal is the sufficiency of the evidence to support a finding that the defendant was guilty of wilful and wanton misconduct which was a proximate cause of the accident.

Since this cause of action arose in Arkansas, the law of that state controls. Arkansas has two guest statutes, § 75-913 and § 75-915, Arkansas Statutes. Said statutes have been held to be synonymous, and to impose liability to a guest upon a host driver who is guilty of wilful and wanton misconduct. Steward v. Thomas, 222 Ark. 849, 262 S.W.2d 901, 902; Harkrider v. Cox, 230 Ark. 155, 321 S.W.2d 226, 227.

No cause of action lies in favor of a guest against the owner or operator of an automobile unless the injury was caused by the wanton and wilful misconduct of the operator of said automobile. In the Steward case, supra, the court approves the definition of wilful misconduct found at page 142 of Malcolm on Automobile Guest Law, said definition being:

"Wilful misconduct depends upon the facts of a particular case, and necessarily involves deliberate, intentional, or wanton conduct in doing or omitting to perform acts, with knowledge or appreciation of the fact, on the part of the culpable person, that danger is likely to result therefrom." 222 Ark. 849, 262 S.W.2d 904

In Harkrider v. Cox, Ark., 334 S.W.2d 875, at page 877, the court states:

"We do not agree that willful and wanton disregard or misconduct is an area, or field, of law entirely distinct and apart from negligence. Our previous opinion several times mentions `wilful and wanton negligence\'. `Wilful and wanton negligence\' and `willful and wanton disregard\' are synonymous in meaning * * *."

The Harkrider case was before the Arkansas Supreme Court on three occasions. In that case, a collision occurred when the host driver, in a dense fog with visibility limited to some fifty to one hundred feet, turned to the left to pass a truck traveling in the same direction at forty miles per hour, whereupon a collision occurred with a vehicle approaching from the opposite direction. The judgment for the guest was reversed in an opinion filed December 8, 1958.¹ Such opinion was withdrawn on March 2, 1959, and a new opinion was substituted. Harkrider v. Cox, 230 Ark. 155, 321 S.W. 2d 226. A majority of the court held a jury question was presented on the issue of wilful and wanton misconduct, but reversed and remanded the case for error in instructions. Upon retrial, plaintiff again obtained a judgment. This judgment was affirmed. Harkrider v. Cox, Ark., 334 S.W.2d 875.

Callaway v. Cherry, 229 Ark. 297, 314 S.W.2d 506, involved in part the claim of Don Rogers, a guest, against Neil Cherry, the driver of the car he was occupying. The Cherry car collided with a car operated by Callaway which was turning to the left to leave the highway. The court, in finding a submissible issue of wanton and wilful misconduct was presented, states:

"We think that the testimony about Cherry\'s greatly excessive speed warranted the submission of this issue to the jury. About a quarter of a mile from the scene of the accident young Cherry had passed another car which was traveling at 45 or 50 miles an hour. One of the occupants of this car testified that the Cherry vehicle was traveling very fast; `that car was just rocking when it passed me.\' Another stated positively that Cherry was traveling at least 90 miles an hour. About the same estimate was given by the plaintiff. We do not intimate that any violation of the 60-mile-an-hour speed limit justifies a finding of wilful and wanton misconduct, but `the difference between gross negligence and wilful and wanton misconduct is so narrow and indistinct that in many instances the question is one for the jury.\' Froman v. J. R. Kelley Stave & Heading Co., 196 Ark. 808, 120 S.W.2d 164, 167. Without attempting to lay down an inflexible rule on the subject, we hold that the testimony in this case warranted the court\'s submission of the issue to the jury." 314 S.W.2d at pages 508, 509.

The most recent Arkansas case involving the guest statute that we found is Cousins v. Cooper, Ark., 339 S.W.2d 316. The court upheld a verdict for the plaintiff, stating:

"There was evidence to show that Cousins was traveling between 80 and 90 miles an hour when he tried to pass Lambert and also that there was fog which, to some extent, might have obstructed the vision. So without detailing the other evidence, we conclude that there was sufficient evidence to take the question of willful and wanton negligence to the jury * * *." 339 S.W.2d 318.

There are Arkansas cases which tend to support defendant's position, among them, Steward v. Thomas, supra, and Edwards v. Jeffers, 204 Ark. 400, 162 S.W.2d 472. Plaintiff's position in such cases is not as strong as plaintiff's position in the present case.

In Harkrider v. Cox, at page 227 of 321 S.W.2d, the court cites in footnote 2 many Arkansas cases involving the interpretation of the guest statute. The court states:

"Defendant\'s counsel have listed many of our cases involving the said guest statutes; but for us to discuss each of these cases in detail would be a work of supererogation and would serve no useful purpose; because, after all, it is a question in each case whether the particular facts therein made a jury question as to wilful and wanton negligence."

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