St. Louis Southwestern Ry. Co. v. Jackson

• Decision Date: 03 March 1969
• Docket Number: No. 5--4664,5--4664
• Citation: 438 S.W.2d 41,246 Ark. 268
• Parties: ST. LOUIS SOUTHWESTERN RAILWAY CO. et al., Appellants, v. Ward JACKSON, Admr., et al., Appellees.
• Court: Arkansas Supreme Court

Page 41

438 S.W.2d 41

246 Ark. 268

ST. LOUIS SOUTHWESTERN RAILWAY CO. et al., Appellants, v. Ward JACKSON, Admr., et al., Appellees.

No. 5--4664.

Supreme Court of Arkansas.

March 3, 1969.

Audrey Strait, Morrilton, and Barrett, Wheatley, Smith & Deacon, Jonesboro, for appellants.

Gordon, Gordon & Eddy, Morrilton, for appellees.

BYRD, Justice.

Following our reversal and remand in St. Louis Southwestern Railway Co. v. Jackson, 242 Ark. 858, 416 S.W.2d 273 (1967), this case was retried with the same witnesses used before, plus additional witnesses for both sides. The verdict in the former case was for $69,188.90 and the verdict upon which judgment was entered here is for $93,236.13. For reversal appellants set forth two points as follows:

I. There was absolutely no proof on negligence and a verdict should have been directed for all defendants.

II. The mental anguish award for the death of grandchildren was erroneous.

Appellees' witnesses again testified about the motorists' obstructed view of southbound freight trains and the dimness of the signal lights. Witnesses Otha Hewitt and Larry Coulson again testified that motorists traveling west did not have a clear and unobstructed view of a south bound train until they got witnin 150 feet of the railroad track. Other witnesses testified that this distance could be as much as 200 feet. Appellees' witnesses against testified that the signal lights were dim and difficult to see. One witness said they were much dimmer than the railroad's interlocking signal where the Missouri Pacific tracks cross the Cotton Belt tracks. A new witness, Albert Hess, testified that the signal lights were not near as bright as the flashing light on the car of the policeman called to investigate the second accident.

The testimony with reference to the previous two accidents within the same two-week period under similar circumstances was again presented, together with the traffic count and the overall view of the area. In the previous appeal we held this testimony sufficient to make a jury issue on excessive speed and abnormally dangerous crossing. We find that decision to be controlling here as the law of the case.

On the first appeal appellants contended that the grandparents were not entitled to recover damages for mental anguish occasioned by the death of the grandchildren because Tommy Jackson lived some few moments after the death of his children and thus any cause of action for mental anguish died with Tommy Jackson. We there pointed out that there was evidence from which the jury could find that all parties died simultaneously. In holding that the matter was properly submitted to the jury we said,

'It is true that when we had our mental anguish statute before us in Peuge, supra (Peugh v. Oliger, 233 Ark. 281, 345 S.W.2d 610), we there limited recovery for mental anguish to 'heirs at law' of the decedent. However, where a whole family is killed in a matter of moments, as is the situation here, the bench and bar should not expect a too literal interpretation of the words 'heirs at law' as the same are used in Peugh. Act 255 of 1957, creating the right to recover for mental anguish, certainly did not intend that right to be so limited.'

Upon retrial the matter came upon the same pleadings and was presented to the court under identical evidence but this time appellants contended that the grandparents are not within the enumerated relatives permitted to assert a cause of action for mental anguish under Act 255 of 1957. Under the doctrine of the law of the case, we hold that the trial court properly ruled against appellants on this issue.

We had before us an analogous situation in Moore, Admx. v. Robertson, 244 Ark. 837, 427 S.W.2d 796 (1968) wherein we said:

'On cross appeal Robertson first contends that the trial court's decision in favor of his codefendants, on the merits, should enure to his benefit as well. That contention is based upon a common-law rule that where one defendant answers and another defaults, a decision on the merits in favor of the answering defendant--upon a defense common to both defendants--operates as a release of the defaulting defendant. Burt v. Henderson, 152 Ark. 547, 238 S.W. 626 (1922).

'The appellee's contention is not now available to him, because it could and should have been made on the first appeal. The rule is that the decision on the first appeal is conclusive of any arguments that were or could have been made at that time. Storthz v. Fullerton, supra (185 Ark. 634, 48 S.W.2d 560). The case at bar confirms the wisdom of the rule. If the appellee's contention has merit--a point which we do not decide--its assertion on the first appeal would have done away with the necessity for a second trial and a second appeal, with their attendant expenditure of time and money. Such waste can be effectively prevented only by a strict adherence to the principle that points not urged upon the first appeal are not available later on.'

We would be less than honest if we did not agree with appellant that the law of the case doctrine is a harsh rule, but when weighed on the scale of justice we find that the confusion and uncertainty which would result without use of the doctrine outweighs the harshness. In Porter v. Doe on Dem. Hanley, 10 Ark. 186 (1849) we had before us a case which after remand was retried upon substantially the same evidence. In applying the law of the case doctrine, we said:

'The counsel for the appellant has argued at some length, the main question decided by this Court upon the first appeal, and asks that we review that decision for the purpose of correcting what he assumes as error in the decision. We have duly considered this proposition (for the question is not raised by the assignment of errors) and inasmuch as the decisions of this Court have not been altogether uniform on this point, we will proceed to review them and determine whether, in the after adjudications of this Court upon the same case, its decisions can, under any circumstances, be modified or overruled. The cases of The Real Estate Bank v. Rawdon et al., 5 Ark. 558. Fortenbury (Fortenberry) v. Frazier et al., 5 Ark. 202 and Walker & Faulkner v. Walker, 2 Eng. 542 expressly decide that after the term has expired at which the decision is made, it is final and conclusive between the parties; that the Circuit Court is bound by the decision of this Court and must carry it into execution; that the inferior court cannot vary the decision, nor can it give further relief as to any matter decided, not even when it is apparent that this Court has mistaken a material fact. In the case of Fortenbury (Fortenberry) v. Frazier et al., the court says 'After a case has been decided by the Supreme Court and remanded to the inferior Court and is again brought before the Supreme Court, nothing is before the Court for adjudication but the proceedings subsequent to the mandate.' In the case of The Real Estate Bank v. Rawdon et al., 5 Ark. 558, upon a question as to whether the Court had power to reconsider its decisions at the close of the term at which they were made, although the Court were divided, a majority being of opinion that even though the motion is made at the same term, it must be decided also at that term or the judgment will be conclusive, still they were unanimously of the opinion, that where no motion for a reconsideration is interposed, the decisions at the close of its term, became final and conclusive upon the parties.

'In a more recent case, (Rutherford, use, &c. v. Lafferty, 2 Eng. 402,) this court seems to have departed from the rule laid down in these cases, whilst their authority is not questioned. On the contrary, it would seem that the court recognized the general principle, but based its decision upon the fact that the Supreme Court, in its former decision, had overlooked an important fact in the case. This was doubtless true; but then the question recurs, can the decision be held as conclusive between the parties and yet subject to correction and revision as to a misapprehension of facts? If for these, why not for errors as to the law also? We are at a loss for any satisfactory reason for the distinction, and are unwilling to concede that it should exist. It would not only authorize the appeal made to the court in this instance, but in all cases where the counsel, in their zeal for the success of their clients, might and doubtless would, where there was a hope of success, ask that the whole case be reviewed. The uncertainty and confusion which would result from such a practice, would strike vitally that progressive principle which lies at the foundation of all judicial proceedings so happily illustrated in the order and system of pleading and practice, which make each definite step in the progress of the cause conclusive upon the parties, and point them prospectively to an ultimate and final decision of the case. These rules of pleading have their origin in the same common principle alike applicable to the judgments of courts, where litigation ceases, and the judgment of each court is final and conclusive in the inferior courts unless set aside or reversed by an appellate tribunal; in the superior court, unconditionally so. If the propriety of this rule could need illustration, it is abundantly to be found in the case of Rutherford, use, &c. v. Lafferty. There the Supreme Court decided that the plaintiff had no right of action whatever in the matter in controversy, and reversed the decision of the Circuit Court. When the case returned to the Circuit Court, in obedience to the decision of this court it decided that the plaintiff had no right of action, and rendered judgment against him for costs. The plaintiff appealed to this court again, and this court reversed the decision of the Circuit Court which had been rendered on the mandate of this court, for the reason that this court had mistaken an important fact in the case. So that, in fact, there are...