Summary
In Saliba v. Saliba, 178 Ark. 250, 11 S.W.2d 774 (1928), the lower court instructed the jury that failure to produce evidence under a party's control creates a presumption that it would be unfavorable to him.
Summary of this case from Jones v. BrownOpinion
Opinion delivered November 5, 1928.
1. VENUE — TRANSITORY ACTIONS. — Under 4 of Acts of 1901, p. 136, creating two judicial districts of Mississippi County, and act 468 of 1919, amendatory thereof, providing that no citizen of either district shall be liable to be sued in the other district, and that "the said districts for all purposes * * * shall be considered as separate and distinct counties, and the mode and place for trying suits and determining causes shall be determined by the general law applicable to different counties," held that the court of one district had jurisdiction in a personal injury action to try an action against a resident of the other district where process was served in the former district. 2. AUTOMOBILES — CARE TOWARD INVITEE. — One who, at the invitation of the driver of an automobile, gets behind the car to assist in removing it from a ditch, is not a "volunteer," and the driver must exercise ordinary care to prevent injury to him. 3. TRIAL — INSTRUCTIONS CONSTRUED AS WHOLE. — In an action for personal injuries, failure to include a definition of contributory negligence in an instruction as to negligence held not error where contributory negligence was defined in other instructions. 4. AUTOMOBILES — NEGLIGENCE IN BACKING CAR. — In an action for injuries sustained by plaintiff while assisting in pushing defendant's automobile out of the ditch, in which plaintiff alleged, and there was proof, that defendant carelessly reversed the gears of the car and increased the supply of gasoline, thereby causing it to roll backward, an instruction that plaintiff could recover if defendant negligently released the brakes or permitted the car to run back, held not error. 6. APPEAL AND ERROR — ERROR AS TO INTEREST — REMISSION OF EXCESS. — In an action for personal injuries, an instruction authorizing the jury to allow interest in its verdict from the time of the injury rather than from the time of judgment, while erroneous, will not be ground for reversal where the excess of interest is a definite amount, and the judgment can be reduced accordingly.
Appeal from Mississippi Circuit Court, Osceola District; G. E. Keck, Judge; judgment modified.
Moore, Gray Burrow, Reid Everard and Everett B. Gibson, Jr., for appellant.
Bruce Ivy and J. T. Coston, for appellee.
STATEMENT BY THE COURT.
The plaintiff, appellee, has recovered damages in this action against the defendant, appellant, for injuries in consequence of his wrist being badly cut by a broken glass while assisting, upon the invitation of the defendant, in pushing his automobile out of a ditch. The rear wheels of the Studebaker car in which appellant was driving with his brother, Dr. G. M. Saliba, had slipped or fallen into the ditch on the side of the street. Appellee, in another car with two others, came along, and proffered assistance, and were invited to get in behind the car and push or help get it out. While appellee, in the middle between the two others, was so engaged, the car had been pushed to the top of the ditch, and suddenly lurched and rolled backwards. He put up his hands to help hold it, and either put them against the glass of the back window or they slipped against the glass, breaking it, and his wrists were badly cut. The complaint alleged the negligence, "that the plaintiff took a position behind said car, and was pushing same with his hands in an effort to extricate the defendant and his car from its unfortunate predicament, and, while in that position, the defendant, who knew plaintiff's position, suddenly, negligently and carelessly reversed the lever, or gear, of the car, and increased the supply of gasoline, thereby causing the car to suddenly lurch backward against the plaintiff. That the plaintiff's hands slipped, or he involuntarily threw them up, and they came in contact with the glass in the rear of the said car, which broke, and cut both of plaintiff's wrists painfully and severely, thereby inflicting on the plaintiff permanent, painful injuries."
The answer denied any negligence, and alleged that plaintiff assumed the risk by voluntarily exposing himself thereto, and also pleaded contributory negligence.
The tendons and nerves on appellee's right wrist were cut through to the bone, and, after two surgical operations and much pain suffered, the fingers of his hand are so drawn now as to resemble a claw. The hand is permanently injured, and can never be of much use, and pain may be suffered on account of it at intervals from now on.
Appellant was present in court, and did not testify. The court instructed the jury, giving, over appellant's objections, instructions Nos. 2, 4 and 5, as follows.
"No. 2. You are further told that, if you find that the defendant negligently released the brakes, or negligently failed to apply the brakes on the car, and thereby permitted it to suddenly run back and injure the plaintiff, your verdict will be in favor of the plaintiff, unless you further find that he himself was guilty of contributory negligence."
"No. 4. If you find that either party to the suit has withheld any evidence under his control, the law presumes that such evidence, if introduced, would be against him.
"No. 5. If you find for the plaintiff you will fix his damages at such a sum as you may find, from a preponderance of the evidence, would compensate him for the amount of his doctors' bills, drug bills, nurse bills, hospital bills, the damage, if any, to his earning capacity, and the physical and mental pain that he has suffered in the past and may suffer in the future, if any, on account of his injury, with interest thereon at the rate of 6 per cent. per annum from the 22d day of April, 1926, down to this date."
The jury rendered a verdict for the plaintiff, and from the judgment thereon this appeal is prosecuted.
(after stating the facts). It is insisted, first, for reversal, and the question was raised by both the demurrer and the answer, that the court was without jurisdiction to try the cause, it being against a citizen and resident of the other judicial district of the county. The process, however, was issued and served upon the defendant in the district of the county where the suit was filed, and the fact that defendant was a resident and citizen of the other judicial district of the county did not deprive the court of the district where the suit was brought and the defendant was found of jurisdiction of the action, which was a transitory one. It is true the act creating the two judicial districts of Mississippi County, act 81 of 1901, and the amendatory act 468 of 1919, contain the provision, 4 of the original act and 1 of the amendatory act, that "no citizen of either the Osceola or the Chickasawba District of said county shall be liable to be sued in any action in said courts, in the other district." But 6 of the original act provides that, in order to ascertain the jurisdiction of actions cognizable in the circuit and chancery courts, "the said districts for all purposes * * * be considered as separate and distinct counties, and the mode and place for trying suits and determining causes shall be determined by the general law applicable to different counties." It is further provided that certain processes shall run through the whole county, but that none, except subpoenas for witnesses, criminal processes and executions issued from the circuit court and chancery court of the Osceola District, shall be served on any citizen or resident of the Chickasawba District. If there were no provision in the act except the one of the fourth section, that no citizen of either of the districts shall be liable to be sued in any action in the courts in the other district, appellant's contention would not be without merit, but, construing the whole act together, and especially said 6, which specifically provides that the jurisdiction of actions shall be determined as between the two districts as though they were separate and distinct counties, it cannot be sustained. The cause of action for damages, being a transitory one, could be brought in any county in the State where the defendant could be found, and his having been served with process in the district in the county where the suit was brought gave that court jurisdiction to determine the cause.
The court correctly declared the law requiring the exercise of ordinary care by the driver of the car to prevent injury to appellee, who had been expressly invited by him to help push the car in getting it out of the ditch. We have held the owner or driver of the car is bound to the exercise of ordinary care in operating it to prevent injury to invited guests riding therein, and certainly one who, at the express invitation of such driver or operator of an automobile, gets in behind the car to assist in removing it from a ditch, is not a volunteer in any sense that would reduce the degree of care required to be exercised by the operator of the car to prevent injury to him to less than ordinary care.
No error was committed in not including a definition of contributory negligence in the instruction No. 1 complained about, wherein the court declared the law and told the jury, if they found such condition to exist, that plaintiff was entitled to recover, unless he was guilty of contributory negligence, contributory negligence being defined in other instructions.
It is next insisted that the court erred in giving instruction No. 2, which, it is claimed, was abstract, there being no allegation of the complaint or testimony in support of it. It is true that the negligence was alleged to consist in suddenly and carelessly reversing the lever or gear of the car and increasing the supply of gasoline, thereby causing it to lurch and roll backward, creating the necessity for plaintiff's protecting himself against it. Some of the witnesses testified that the injury resulted from the negligence as alleged. Dr. Saliba, who was in the car with appellant, stated that he stood on the right of it, and the appellee and the others walked around to the rear of the car for the purpose of pushing and helping him out of the ditch, and "he placed his car in gear and started forward, and with their and my assistance had his car almost out of the ditch, when suddenly, and without warning, he reversed his car and ran backward toward them at a very rapid rate of speed. It seemed that he reversed the car and suddenly pressed his foot on the accelerator, and that, together with the weight of the car, ran it back very suddenly." One witness testified the car rolled back rapidly, but did not come back suddenly like it had been thrown in reverse, and, as it came back, the plaintiff put his hands under the glass, and they slipped and crashed through the glass. This was the only testimony contrary to that of the plaintiff in proof of the allegation of the negligence that caused the injury, and it was unobjected to. Of course it only created an inference that the injury might have been caused by the failure to put on the brakes at the proper time, but, since the negligence in fact consisted in allowing the car to lurch and roll suddenly backward without warning, the instruction relative to the failure to apply the brakes cannot be regarded as abstract, in view of the undisputed testimony disclosing that the injury might have occurred because of that fact.
No error was committed in the giving of instruction No. 4. It was objected to only as inherently wrong. The instruction as given related to either party, and told the jury that, if either party had withheld any evidence under his control, the law presumed that it would be against him if it had been introduced. The defendant in the suit, who was driving the car, and who knew whether the injury was caused as alleged by putting the car in reverse, was present in court at the trial, and made no statement about it, and it was disclosed that only one of the four boys who saw the accident testified, stating the car did not appear to jerk as though it had been reversed, but rather to have rolled suddenly backward. The appellant's testimony would not have been trivial and could not have been considered as merely cumulative, and appellee was not bound to take a chance in calling upon him to testify about the transaction. The question as to whether the car was reversed was an important one of fact, and the fact rested peculiarly within the knowledge of appellant, who was driving the car, and he failed to give his version of it as a witness on the stand. The court did not err in giving said instruction to the jury. Miller v. Jones, 32 Ark. 346; Ramey v. Fletcher, 176 Ark. 196, 2 S.W.2d 84; Hollon v. Ry., 133 N.Y.S. 206; Kirby v. Talmage, 160 U.S. 383, 16 S.Ct. 379, 10 R.C.L. 886.
Instruction No. 5, authorizing the jury to allow interest in its verdict from the time of the injury rather than the judgment, should not have been given. 8 R.C.L. 533; Western Union v. Davis Cotton Co., 170 Ark. 506, 280 S.W. 977. The most of the damage was unliquidated, and, although the jury might have taken the delay in consideration as an element of damages in fixing the amount of the recovery, it should not have added the interest to the amount of the verdict, but, since that is a definite amount, and the judgment can be reduced accordingly, the error will be rendered harmless. The amount of the interest, as shown by the verdict, can be deducted from the amount of the judgment, relieving against any prejudice that could have resulted from the giving of the instruction. The verdict is not otherwise excessive. It is true the testimony showed that appellee is receiving the same salary in compensation for his services now as he did before the injury occurred, but this was a severe injury, which has permanently disabled him, the hand being virtually useless henceforth, and may be the cause of pain and suffering to appellee in the future. Then, too, it was shown that $1,500 had been expended for medical attention.
We find no other errors in the record, and the judgment will be modified by the reduction of the amount of the interest found in the verdict, interest being recoverable only upon the amount of the judgment from its rendition, and, as modified, will be affirmed. It is so ordered.
SMITH, J., dissents.