Williams v. Curtis
| Decision Date | 18 March 1974 |
| Docket Number | No. 73--242,73--242 |
| Citation | 256 Ark. 237,506 S.W.2d 563 |
| Parties | L. C. WILLIAMS, d/b/a Westside Motors, Appellant, v. George CURTIS, Appellee. |
| Court | Arkansas Supreme Court |
Davis, Plegge & Lowe, Little Rock, for appellant.
Dodds, Kidd, Hendricks & Ryan, Little Rock, for appellee.
On October 4, 1971, the appellee George Curtis was struck by an automobile and injured as he was crossing a street in North Little Rock. The automobile belonged to L. C. Williams, d/b/a Westside Motors, and was being driven at the time by Gerald Hall, a full-time employee of Dalton L. Sims, d/b/a Sims Upholstering. Curtis filed a damage suit for personal injuries against Williams, Hall and Sims and obtained a joint and several judgment against all three on a jury verdict for $10,000.
At the close of the plaintiff's case, Williams moved for a directed verdict as to him and the motion was denied by the trial court. Williams renewed his motion after he also testified as a witness called by the plaintiff-appellee. He did not renew his motion for a directed verdict at the close of all the testimony but he did move for judgment notwithstanding the verdict. The motions were denied by the trial court and judgment was entered as already stated. On appeal to this court Williams states the points he relies on as follows:
'1. The trial court erred in failing to direct a verdict for the appellant at the conclusion of the plaintiff's testimony.
2. The trial court abused its discretion when it allowed appellee to present further testimony from appellant purporting to establish agency between Sims' driver and appellant.
3. The trial court erred in failing to direct a judgment notwithstanding the verdict.
4. The trial court erred in failing to admonish the jury to disregard the improper references to insurance when the court specifically advised appellant's counsel that he would do so when denying a motion for mistrial.'
On the date here involved, the appellant Williams operated a used car lot where he was engaged in the business of selling used automobiles. Sims operated an upholstery shop some distance from Williams' car lot where he was engaged in the business of installing and repairing automobile upholstery. Hall was employed full time by Sims and was assigned the duty of picking up automobiles from Sims' customers and returning them to the customers after Sims had finished with the upholstery work involved. Williams was one of Sims' customers and on October 4, 1971, Sims had done some upholstery work on an automobile belonging to Williams and while Hall was in the process of driving the automobile back to Williams' car lot, the automobile struck and injured the appellee Curtis.
Johnny Foster, a police officer who investigated the accident, was first called as a witness by the plaintiff-appellee Curtis. He testified as to his investigation of the accident but his testimony contributed nothing to the points here involved. Mr. Curtis next testified in his own behalf but he only gave his version of how the accident occurred and described his injuries. Mr. Roy Spann was next called as a witness by the appellee-plaintiff. He said he was driving his automobile immediately behind the automobile that struck Mr. Curtis and that he saw the automobile strike Curtis. He then testified as to his version of what occurred. The deposition of Dr. Thomas Rooney was next read into evidence, having to do only with the nature and extent of Mr. Curtis' injuries.
The defendant Hall was then called as a witness by the plaintiff-appellee Curtis. He testified that he was employed by Sims Upholstering in the capacity of delivering cars. He said that on the day in question he was driving an automobile owned by Westside Motors and was on his way to deliver the automobile back to Westside Motors when the automobile struck Mr. Curtis. He testified that he had previously picked up automobiles and returned them to Mr. Williams' car lot. He said Mr. Williams would merely point out the automobile to be worked on by Sims and he would drive it to Sims' shop and then return it. He said Mr. Williams did not give him any directions at all regarding the speed or routes over which he was to drive the automobile. He said that if Mr. Williams had given him such directions, he would have attempted to carry them out because he knew the automobiles belonged to Williams.
On cross-examination Mr. Hall testified that he had been working for Sims Upholstery for about four or five months and restated that on previous occasions he had picked up and delivered automobiles to Westside Motors for Mr. Sims. He said that Mr. Williams had never given him any instructions in regard to driving the automobiles. He said that he would have to see Mr. Williams to find out which automobile he was to pick up and deliver to Sims Upholstery. He said that on some occasions Sims Upholstery would have one of Williams' automobiles working on it and that when he would deliver that automobile back to Williams, he would pick up another one. He said he was on his way returning the automobile from Sims Upholstery shop to Williams' used car lot when the accident occurred, and that one of the other upholstery shop employees was to have picked him up at William's lot and returned him to his place of employment after the automobile was delivered to Williams' lot. He said that after he was involved in the accident with Mr. Williams' automobile, he did not report the accident to Mr. Williams because he did not see him. He said he had never reported the accident to Mr. Williams and up until the date of trial, he had never had occasion to discuss the accident with him. He testified on cross-examination that he was driving west on Washington Avenue and had stopped at an intersection traffic light. He said when the light changed, he started forward and Mr. Curtis jumped out in front of him and he could not avoid striking him. The remainder of Mr. Hall's testimony had to do with the occurrences at the scene of the accident and the manner in which it happened.
At the conclusion of Mr. Hall's testimony, Mr. Curtis rested his case, whereupon the trial judge and the attorneys retired to chambers where, out of the presence of the jury, Williams presented his motion for a directed verdict and the motion was denied as set out in the record as follows:
The attorney for the plaintiff-appellee Mr. Curtis then submitted medical bills and period of life expectancy previously agreed to by stipulation and then stated: 'At this time we call Mr. Williams to the stand.'
Under direct examination by Mr. Curtis' counsel, the appellant Williams testified that he together with his wife were owners of Westside Motors. He testified that from time to time he had the upholstery in his automobiles repaired by Sims Upholstery shop and that Sims came, or sent an employee, to his lot to pick up the automobiles. He said that his agreement with Sims was that Sims was to come and get the cars. He said the automobiles in which he had the upholstery repaired by Sims were used automobiles he kept on his lot for resale, and that his purpose in having the upholstery replaced or repaired was to put the automobiles in better salable condition. He said he had been using Sims Upholstery service for approximately 18 months and had been doing business with Sims for some time. He said he had seen Mr. Hall previously but did not know him personally. He said he assumed that Hall was employed by Sims Upholstery because he had come to his lot with Sims when he came for an automobile. He said that he was aware that Hall was driving one of his automobiles when the accident occurred, and that he assumed he was an employee of Sims. He said that he did not feel he had the right to give instructions to Mr. Sims' employee. He said that he felt that he would have a right to instruct Mr. Sims what he wanted done with his automobiles, and that if he knew his automobiles were being driven in a manner that was not satisfactory to him, he felt he would have a right to change the people that were doing work on his automobiles.
Mr. Williams was examined at some length as to what rights he felt he would have in directing Mr. Hall in the operation of an automobile he was delivering to or from the Sims Upholstery shop, and the substance of his answers was that he assumed that a man he was doing business with, such as Mr. Sims, would handle a customer's automobile with care and in a satisfactory manner and that if he felt otherwise, he would take his business elsewhere. He said he did not feel he had the right to give another man's employee orders on how to do something.
Following Mr. Williams' testimony, the plaintiff-appellee again rested, whereupon outside the hearing of the jury Williams renewed his motion for...
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