Williams v. Carr

• Decision Date: 24 April 1978
• Docket Number: No. 77-242,77-242
• Citation: 565 S.W.2d 400,263 Ark. 326
• Parties: Annie WILLIAMS, Individually and as administratrix et al., Appellants, v. Fondville L. CARR and Powell Brothers Gin and Land Company, Appellees.
• Court: Arkansas Supreme Court

Page 400

565 S.W.2d 400

263 Ark. 326

Annie WILLIAMS, Individually and as administratrix et al., Appellants, v. Fondville L. CARR and Powell Brothers Gin and Land Company, Appellees.

No. 77-242.

Supreme Court of Arkansas,In Banc.

April 24, 1978.

Rehearing Denied May 30, 1978.

Hale, Fogleman & Rogers, West Memphis, J. B. Cobb, Memphis, Tenn., for appellants.

Rieves, Rieves & Shelton, West Memphis, Reid, Burge & Prevallet, Blytheville, for appellees.

HOWARD, Justice.

The question presented for review is whether the jury's verdict is sustained by substantial evidence which found that the decedents and appellee, Fondville L. Carr, were equally guilty of negligence in the same degree, thus resulting in the dismissal of the wrongful death actions instituted by the personal representatives of the decedents.

FACTS

On October 22, 1974, at approximately 12:15 a. m., decedents, Vera Walker Joyner and Helen Walker, were passengers in a pickup truck owned and driven by Walter Turner ¹ in an easterly direction on Interstate Highway 55 enroute to Memphis, Tennessee. While the pickup truck was proceeding on the Rock Island Overpass in Crittenden County, Arkansas, the pickup truck was involved in an accident with a 1966 Pontiac station wagon. As a consequence, the station wagon came to rest across the westbound traffic lane causing the westbound traffic to back up in the direction of Memphis, while the pickup truck came to rest across the eastbound lane causing the traffic to back up in the direction of West Memphis, Arkansas.

While the decedents were in the process of discussing the accident with representatives of the Arkansas State Police near the pickup truck, appellee, Fondville L. Carr, while operating a 1966 Rio tractor-trailer unit in the westbound lane, crossed the median striking decedents and killing both of them. ²

Appellants instituted a wrongful death action against appellee and Powell Brothers Gin & Land Company of Memphis, Tennessee, the alleged employer of Fondville L. Carr, for compensatory damages in the sum of $750,000.00 and punitive damages in the sum of $150,000.00.

The case was tried to a jury. Among other things, the following interrogatory was submitted to and answered by the jury:

"4. Using 100% to represent the total responsibility for the occurrence, apportion responsibility between the parties whom you have found to be responsible. Answer: Fondville Carr 50%; Helen Walker 50%.

"a) Using 100% to represent the total responsibility for the occurrence, apportion the responsibility between the parties whom you have found to be responsible: Answer: Fondville Carr 50%, Vera Walker Joyner 50%." ³

The trial court directed a verdict in behalf of appellee on the issue of punitive damages and involving the question whether Fondville L. Carr was an agent, servant or employee of Powell Brothers Gin & Land Company.

On February 14, 1977, the trial court entered its judgment pursuant to the jury's verdict dismissing appellants' action.

On March 4, 1977, appellants presented their motion for a new trial which was denied by the trial court.

APPELLANTS' CONTENTIONS FOR REVERSAL

I. It was error to direct a verdict on the issue of punitive damages.

II. The trial court erred in submitting to the jury the issue of whether decedents were guilty of negligence which was a proximate cause of the accident.

III. The verdict of the jury apportioning negligence which was a proximate cause of the accident was not supported by any substantial evidence.

IV. The trial court erred in failing to direct a verdict that appellee Fondville Carr was guilty of negligence which was a proximate cause of the accident.

V. The trial court erred in giving an instruction of sudden emergency.

VI. The trial court erred in failing to instruct the jury in accordance with the United States Department of Transportation Regulation 391.41(a) prohibiting one from driving a motor vehicle unless he is physically qualified to do so.

VII. The trial court erred in refusing to allow rebuttal evidence of Arkansas Highway Department blueprint of Rock Island Overpass.

VIII. The trial court erred in not applying the Tennessee Law on measure of damages for wrongful death.

IX. The trial court erred in allowing a funeral home director to testify as an expert witness on the issue of what is more than normal grief.

X. It was error to allow expert witness to testify in view of violation of discovery request for names of witnesses.

XI. The trial court erred in refusing to grant a new trial because of inadequacy of damages.

XII. It was error to direct a verdict that appellee Fondville Carr was not an agent, servant or employee of appellee Powell Brothers Gin & Land Company.

THE DECISION

The points asserted by appellants for reversal will be discussed in seriatim:

I.

We are persuaded that the trial court was correct in directing a verdict in behalf of appellee-defendant on the issue of punitive damages. Therefore, the trial court is affirmed on this contention.

In Williams v. Walker, 256 Ark. 421, 508 S.W.2d 52, we held that the recovery of exemplary damages is dependent upon the recovery of actual damages. The jury found that decedents and appellee were equally at fault, consequently, there was no recovery for actual damages by appellants-plaintiffs.

II.

We are convinced that appellants' second contention has merit. The trial court should have held as a matter of law that decedents were not guilty of negligence which was a proximate cause of the incident resulting in their untimely deaths. Consequently, we reverse the trial court's action in submitting this question to the jury.

It is clear from the evidence that the decedents were following the instructions and directions of the Arkansas State Police at the time decedents were struck and killed by the truck driven by appellee, Fondville L. Carr. Moreover, the evidence reflects that decedents were standing at the only available and safest place at the time of the incident.

The evidence also reflects that Kim Wegner who was operating a truck in the westbound traffic lane, stopped his vehicle in the vicinity of the first accident, put his four-way flashers on and ran back in the direction of Memphis and placed flares on a crest in the westbound traffic lane in order to warn approaching vehicles of the existing emergency. After the state police arrived, Kim Wegner obtained additional flares from the police and placed them on the crest.

Kim Wegner testified that after Fondville L. Carr's truck had crossed the median and entered the eastbound traffic lane and struck the decedents, he (Kim Wegner) and the state police observed that the flares were still burning in the westbound lane.

Fondville L. Carr testified that he got up the morning of October 21, 1974, at 7:00 o'clock a. m. and reported to work; that he had had only "3 or maybe 31/2" hours of sleep in the "cab" of his truck between the time he reported for work and the time of the accident which occurred shortly after midnight. It is clear from the record that all other motorists in the westbound lane observed the flares and brought their vehicles to a stop in line with the backed up traffic.

We deem it unnecessary to discuss appellants' contentions III and IV in view of the position the Court has taken in contention II.

V.

We conclude that the trial court erred in giving an instruction on sudden emergency to the jury. The record does not support a finding that appellee, Fondville L. Carr, was faced with an emergency. Moreover, one has to be free of negligence in order to be entitled to an instruction of sudden emergency. In other words, one may not create an emergency by his own action and then seek to take advantage of the situation by requesting an instruction on sudden emergency.

VI.

Relative to this contention, we conclude that on a retrial of this cause, provided a request is made, an instruction pertaining to Regulation 391-41(a) of the United States Department of Transportation should be granted. We cannot visualize any prejudice resulting from the admissibility of this regulation.

VII.

We hold that the blueprint of the Rock Island Overpass prepared by the Arkansas Highway Department is admissible and, accordingly, the trial court committed error in refusing to admit this document. It is clear from the evidence that the overpass was constructed pursuant to the offered blueprint and that there had not been any alterations or changes in the structure; consequently, the blueprint was a correct mechanical drawing of the overpass at the time the accident occurred. See: Ark. La. Gas Co. v. Lawrence, 239 Ark. 365, 389 S.W.2d 431.

VIII.

In Wallis v. Mrs. Smith's Pie Company, 261 Ark. 622, 550 S.W.2d 453, we held that in a tort action involving a resident or residents of another state and/or a resident of Arkansas, our courts are free to apply the rule based on the "most significant relationship" as affected by the following named choice-influencing considerations: (1) Predictability of results. (2) Maintenance of interstate and international order. (3) Simplification of the judicial task. (4) Advancement of the forum's governmental interests. (5) Application of the better rule of law. In other words, the Arkansas Court, as the forum court, is free to apply the substantive law of a sister state where it finds that such state has a significant interest in the outcome of the issues involved. However, the rules of the road of the state where the tortious conduct occurred are applied.

Under Wallis, the substantive law of Tennessee is applicable, but Arkansas' rules of the road are applicable in the instant case.

We conclude that the trial court committed error in not applying Tennessee's substantive law inasmuch as both appellants-plaintiffs and appellees-defendants are residents of the State of Tennessee, while the accident occurred in the State of Arkansas. However, the parties may elect to be governed by both Arkansas'...