Walton v. Tull, 5-2533

• Decision Date: 26 March 1962
• Docket Number: No. 5-2533,5-2533
• Citation: 8 A.L.R.3d 708,356 S.W.2d 20,234 Ark. 882
• Parties: , 8 A.L.R.3d 708 Richard A. WALTON et al., Appellants, v. Luther S. TULL et al., Appellees.
• Court: Arkansas Supreme Court

Page 20

356 S.W.2d 20

234 Ark. 882, 8 A.L.R.3d 708

Richard A. WALTON et al., Appellants, v. Luther S. TULL et al., Appellees.

No. 5-2533.

Supreme Court of Arkansas.

March 26, 1962.

Rehearing Denied April 30, 1962.

Cockrill, Laser & McGehee, Little Rock, Parker Parker, Russellville, for appellants.

Wright, Lindsey, Jennings, Lester & Shults, Terral & Rawlings and Gail O. Matthews, Little Rock, for appellees.

GEORGE ROSE SMITH, Justice.

This is a tort case arising out of two successive traffic collisions, involving three cars. In the trial court there were various cross actions between the parties. Here there are appeals by two of the defendants and a cross appeal by the plaintiff. It will be simplest to identify the parties as we relate the facts.

On October 3, 1959, Luther S. Tull and his wife, Richard A. Walton and his wife, and a third couple were returning to Little Rock after having driven to a football game at Fayetteville. They were riding in a station wagon that was in effect being furnished by Tull, as the vehicle belonged to a company of which he was the president and a substantial stockholder. At Clarksville the group stopped so that Tull could attend a night game there. When the others picked up Tull after the game Walton was driving, and he remained at the wheel thereafter. Tull rode in the right front seat.

A few miles south of Russellville Walton overtook and started to pass a car being driven by D. A. Brigham. Just then Brigham started to turn left off the highway, and the two cars, traveling at moderate speeds, had a minor side-to-side collision, with no personal injuries. Brigham testified that he signaled his intention to turn left, but there is other testimony that no signal was given. On this phase of the case the jury attributed 66 per cent of the negligence to Walton and 34 per cent to Brigham. There is no appeal from this part of the judgment, which has been satisfied.

After the first collision the two cars came to a stop on the lefthand shoulder of the highway, facing in their original direction of travel. Brigham's car, in front, was completely off the pavement. The Tull station wagon was at a slight angle, with the front wheels off the pavement and the right rear wheel encroaching on the pavement a foot or two. Both cars had their lights on, it being almost eleven p. m.

From this point we disregard conflicts in the proof and state the facts in the light most favorable to the verdict. About ten seconds after the station wagon came to a stop Tull, who was in the right front seat, opened the door on his side and started to get out. As he extended his left leg toward the pavement the open door was struck by a car traveling in the direction opposite to that of the other two vehicles. This third car was being driven by Herman Glenn, who was so drunk that he mistakenly thought it was raining and did not fully realize that he had struck another car. Tull was painfully and seriously injured.

The plaintiff Tull brought suit against all three drivers, Walton, Brigham, and Glenn. The jury fixed Tull's damages at $27,500 and assigned 60 per cent of the negligence to Glenn, 20 per cent to Walton, 10 per cent to Brigham, and 10 per cent to Tull. The court credited the award with a $10,000 compromise payment previously agreed upon between Tull and Glenn and entered judgment for the balance against Walton and Glenn. There was a proviso that if either defendant should pay more than his proportionate share of the total judgment he would be entitled to contribution from the other. The court refused to allow Tull to recover any judgment against Brigham, because they were equally at fault.

The defendants Walton and Glenn have separately appealed, and Tull has cross appealed from the court's refusal to permit him to recover from Brigham. The case presents an unusual number of interesting questions in the field of tort law.

I. Although Glenn settled with Tull before the trial he is still pecuniarily interested, owing to his liability to Walton for contribution. Glenn first insists that, despite his intoxication, he was traveling in his proper lane of traffic and was, as a matter of law, free from negligence. We cannot accept this argument. Had Glenn not been almost insensibly drunk he might have realized that a collision had taken place between the other two cars and accordingly have approached the scene with caution. Even if Glenn should not have actually witnessed the mishap he might have understood the warning significance of two lighted vehicles facing in his direction on what was to them the wrong shoulder of the road. Again, had Glenn been in control of his faculties he might have been able to avoid hitting Tull. Questions of this kind are typically issues of fact for a jury. We hold there is substantial evidence to support the jury's conclusion that Glenn's drunken driving was a proximate cause of Tull's injuries.

II. Glenn's second contention is that he is not liable to Walton for contribution, for the reason that there was no service of summons upon Walton's cross complaint against Glenn. This point was not raised below. Glenn participated actively in the trial; his attorney cross-examined Walton. This conduct was a general entry of appearance. Purnell v. Nichol, 173 Ark. 496, 292 S.W. 686. If Glenn had prevailed the judgment in his favor would have ended the matter. He cannot be allowed to speculate upon the chance of a favorable outcome, without objection, and then demand a second trial when he loses.

III. Walton insists that his negligence in attempting to pass Brigham in disregard of the latter's signal was not a proximate cause of Tull's injuries when he was later struck by a third car. It is argued that the negligence of Glenn and of Tull was a superseding cause that broke the connection between Walton's negligence and Tull's injuries. Walton's counsel endeavor to show how difficult it would have been for Walton to foresee that his attempt to pass the Brigham car would set the stage for the later events that caused Tull to be hurt.

That Walton could not have foreseen the exact manner in which Tull was to be injured is not alone a sufficient reason for relieving Walton of liability. Rest., Torts, § 435. As a direct result of Walton's carelessness Tull was put in a position the jury were entitled to regard as hazardous. The vital question is whether the subsequent conduct of Glenn and Tull became a superseding factor.

This general subject was discussed at some length in Hill v. Wilson, 216 Ark. 179, 184, 224 S.W.2d 797. There we approved this statement from § 447 of the Restatement of Torts: 'The fact that an intervening act of a third person is negligent in itself or is done in a negligent manner does not make it a superseding cause of harm to another which the actor's negligent conduct is a substantial factor in bringing about, if * * * a reasonable man knowing the situation existing when the act of the third person was done would not regard it as highly extraordinary that the third person had so acted.'

If, as a result of Walton's negligence, the station wagon had come to a stop entirely upon the pavement and had immediately been hit by a third vehicle in its proper lane of traffic it cannot be doubted that a jury would be justified in finding that Walton's negligence was an actionable cause of Tull's injuries. In the actual case Tull was placed in a position of peril in that the station wagon was partly on the pavement. One ordinarily assumes the righthand door to be a safe exit, but here that way out exposed Tull to immediate danger. From the fact situation as a whole the jury might well have concluded that Tull's impulse to open the door and leave the car, in circumstances where he might understandably have been excited or confused, was not 'highly extraordinary.' Nor was the jury bound to say that it was highly extraordinary that Tull should have been struck by a passing car. Viewing the evidence in its entirety, with all its permissible inferences, we think the court was right in submitting the question of Walton's negligence to the jury.

IV. Walton contends that it was a question of fact whether Tull was a guest at the time he was injured; if so, he could not recover without proof of willful and wanton misconduct on Walton's part. Ark.Stats.1947, § 75-913 et seq. It is accordingly urged that te court erred in taking this issue from the jury and permitting Tull to recover upon proof of simple negligence.

Tull's company owned the station wagon; so, as far as Walton was concerned, it really belonged to Tull. Thus the situation in effect presents the question of to what extent a person may be a guest within his own car.

This problem has provoked a variety of solutions in the jurisdictions where it has arisen. We lay aside those cases turning upon a business relationship, as where the owner takes a ride with a garage mechanic to see if repair work has been done satisfactorily. Gage v. Chapin Motors, Inc., 115 Conn. 546, 162 A. 17; Thomas v. Hughes, 177 Kan. 347, 279 P.2d 286, 65 A.L.R.2d 306. The case at bar involved a purely social relation; so we limit our consideration to cases where the owner has simply permitted some one else to take the wheel upon a social occasion.

The principal case finding an owner to have been a guest in his own car is Phelps v. Benson, 252 Minn. 301, 457, 90 N.W.2d 533. There two couples were sharing expenses upon a vacation trip. The court upheld a jury verdict finding that the owner was a guest while the other man was driving. The court was influenced by two considerations: First, the statute in question was to be liberally construed (whereas most guest statutes are considered to be in derogation of the common law and therefore to be strictly construed); and, secondly, the statute was passed to prevent collusion, and that possibility is equally present whether or not the driver happens to own the car. The only other case that ...