ARK.] SMITH v. ' ARKANSAS POWER & LIGHT CO. 389 SMITH v. ARKANSAS POWER & LIGHT COMPANY. 4-39.55
Opinion delivered October 7, 1935. APPEAL ND ERROR—CONCLUSIVENESS OF ' VERDICTS.—In revieWing a jury's verdict, the Supreme Court can only determine whether the testimony is legally sufficient, and, if so, it is. unimportant that the verdict is not in harmony with either theory on which the case was tried. 2. APPEAL AND ERROR—AMOUNT OF RECOVERY.—When undisputed evidence shows that plaintiff is entitled to substantial daniages, judgment will be reversed which awards nominal damages only, but if substantial damages are alirarded, judgment will not . be reversed for inadequacy. 3. APPEAL AND ERROR—AMOUNT , OF RECOVERY.—A judgment for substantial damages will , be reversed where the undispUted testi- .mony shows the damages'to be inailequate, if error 'of substantial and prejudicial nature wae committed at the trial.' 4. DAMAGES—AMOUNT OF RECOVERY.—Where a motorist was totally disabled as the result of a collision with a street car, was unconscious for 5 weeks and confined to a hospital for oyer 2 years, being totally disabled, and where his- hospital bill totaled $2,- 907.25, and he was earning $3,000 a year in excess of his expenses with reasonable prospects for promotion, held that a verdict of $5,000_was not so -inadequate as to require reversal ii_no
390 SMITH V. ARKANSAS POWER & LIGHT .CO. [191 other prejudicial error •occurred except in the assessment of damages. 5. MASTER AND SERVANT—COMPENSATION ACT.—The right of action Of an employee injUred in this State by.a third person, and the amount thereof, must be deterinined by the laws of this • State, uninfluenced by the laws of the State in which he was employed. 6. APPEAL AND ERROR—HARMLESS ERROR:—Alleged error in requiring the joinder, in an action by a travelling salesman injured in this .State, of his Tennessee employer and compensation insurer,. on the ground that under the Tennessee law they were subrogated to the employee's right of action on pa. ying compensation held immaterial where the employer and insurer Waived sueh right of subrogation. • TRIAL—INSTRUC'TION .IGNORING IssuE.—Where the issue . of discovered peril was involyed in a personal injury case, giving instructions at defendant's,request . which eliminated this issue held error. .Appeal from White Circuit Cour . t ; W. D,. Da,venport, Judge ; reversed. A.ction by Harold V. Smith against the Arkansas Power & Light Company ; there was judgment for the plaintiff, from which be has appealed, as . being for an insufficient amount. Pace & Davis and Buzbee, HarriSon, Buzbee & Wright, for .appellant: House, Moses & Holmes and Eugene.R. Warren, for appp]lep. . SMITH, J: In September, 1930, appellant was employed by House-Bond Hardware Company, of Memphis, Tennessee,. as a traveling salesman in this . and other States. At the time mentioned, and while so employed, he drove in his automobile -into the city of Pine Bluff during a hard rain. 'He drove over a wide and well-paved street, down the . center of which ran a street car track over which. .appellee operated . electrically-driven . street cars. There is no dispute but that there was ample room on each side of the street car track for the easy and safe . travel of automobiles. Appellant's automobile collided on this street with one Of appellee's street cars. The track where the collision occurred was perfectly straight for several hundred feet, and there was nothing to prevent appellant from seeing the approaching street car, on which the headlight was burning, nor was there anything
ARK.] SMITH V. 'ARKANSAS POWER & LIGHT Co. 391 to prevent the motorman on the street car from 'seeing' appellant; Indeed, each admitS seeing.the other as .they approached ,from op posite : direCtions. • The suit for damages : resulting from this collision, from which this appeal comes, was tried on 'appellant's behalf upon the . theory _ that the wheels-Upon the left hand'side of .his antOmobile became fastened in a : rut be; tWeen the street car track and the' adjacent street pavement, and, while_ plaintiff was thus fastened, the -street ear ran into him and demolished his . automobile and inflicted. upon him.injuries of a Seridus and- permanent character. Instructions were given at plaintiff's request declaring the law -of diseoVered peril. It 'was the • theory of the defendant street car company that:there •was no ca8e ,of discovered peril ;Al-Mt-the plaintiff drove upon the street car •tracks in such- a. manner ihat it' was :impossible. for the Motorman :to 7stop the car -in 'time . to 'prevent- the collision. .The testiniony is, ' in' irreconcilable 'conflict ; but there,was sufficient. testithony •tb, support either theory. ,A suit Was, bronght in the Clark Circilit Court in De-cember, 1932,. and; when the•case was called for trial, 'the defendant street Car. coMpany raised . the point _that the plaintiff had been-paid 8ome.cOmpensation for his injuries under the •Workthen's COmpensation I law of Tennessee (chapter 43, Code- of Tennessee,. 1932, §§ 6851 et seq.), and that the compensation thus paid under that act operates to assign the cause of action, to. plaintiff's emPloyer to the:extent of. Such payments: .It•was therefore prayed that -the plaintiff's employer •and the insurance company Which had -insured the 'employer against- the fiability, as required by the compensation. act be• made parties... Sec tion 6895 of the Tennessee act provides, In part, that.: “Every employer . under -and . affected by :this. chapter shall insure and keep insured his • liability hereunder in some person . or persons,.association, organization, or corporation authorized , to transact , the business of ,workmen's compensation insurance in this . State, * " • .The Clark Circuit'Conrt'sustained the motion, *hereupon the plaintiff took .a nonsuit; „and in December, 1933, comMenced a. new suit' in the White Citeuit -Court. The complaint filed in _this . last -case- did not make the em-
392 SMITH V. .ARKANSAS POWER & LIGHT .CG: [191 ployer and its insurer parties. When the case was called for trial in the White Circuit Court the motion which had been filed and sustained in the Clark Circuit Court was renewed. The White Circuit Court sustained the motion and directed that the employer and its insurers be made parties. This. proceeding was had before the trial of the case began. . The plaintiff .thereafter immediately filed interVentions by both the employer and its insurer,. disclaiming any pecuniary interest in the- cause other than .that existing by virtue of the Tennessee Workmen's Compensation Law. The intervention filed by the employer recites that : "It has heretofore .anthorized and does hereby authorize the • plaintiff, Harold V. Smith, .to prosecute, in so far. as the interests of House-Bond Hardware Company may be involved, the above-styled Suit in his own name, and it hereby adopts the complaint an& the. proceedings of the plaintiff; Harold V. Smith, in this cause, and, to the end that there may not be .any appareht defect of , partieS, plaintiff in-this• cause does hereby aSk leave of court to be named as a party plaintiff herein!? •The insurance company filed a similar pleading, but, before they were,filed,- plaintiff excepted to the ruling of the court requiring them to.be made parties and to diSclose their interest in the litigation. The acquiescence of the employer and the insurer to the prosecution of thd suit had not been made to appear untillhese pleadings *ere filed. • The trial resulted in a verdict and judgment for the plaintiff for . the snm Of $5,000, from which the plaintiff has aPpealed,- upon the ground that error in the trial Of the cause resulted in the . retnrn of a verdict which the undisputed testiniony shows to be grossly inadequate to coMpensate the damage which the undisputed evidence shows was sustained ' by the plaintiff. * The defendant resists the reversal iof, the jiidgment from which-this aPpeal comes upon the ground that plaintiff recovered- damages in a very substantial amount. It is insisted that a judgment for damages will only be reversed for inadequacy where nominal* damages were awarded, and will*not be reversed for inadeqUacy where substantial damages were awarded. The following cases
ARK.] SMITH V. ARKANSAS POWER & LIGHT CO: 3931 are cited and discussed-by opposing cOunsel • Dunbar v. Cowger, 68 Ark. 441, 59 S. W. 951; Carroll v. Texarkana Gas & Electric Co., 102 . •Ark. 137, 143- S. W. 586; Bothe v. Morris, 103 Ark.•370, 116 S. W. 1184 ; Martin v. Kraem-er, 172 Ark. 397, 288 S. W. 903 ; Krummen Motor BUS & Taxi Co. v. Mechanics' Llouber Co., 175 Ark. 750,300 S. W. 389; . Fulbright y..PhiPps, '176 Ark. 356, 3. :S. W. (2d) 49; KiMbrough y.": Joh4son, 182' Ark..522 32 S. W. (2d) 154; 'P ow er:s v.' bod Parts C orPoration, 184 Ark. 1032, 41 S. W. (2d) 324. In the case . of 'F'Wb• righi v. PhiPps, supra r it was said : "We have held • that where a jury found,. Under conflicting testimonY, that a . plaintiff was entitled to recover damages, and the' undiSputed testimoriy showed the damages . were substantial, the : judgMent for nomihal damages onlY was an error, to Correct which this Court would reverse 'the judgment. This . iS irue, however', because a judgment for noininal daiiiages is, in effect,.a fusal to asSess dathages..' [Citing- cases.] Here' the verl diet' and judgment . WaS notfor a nothinal sum, but was for a very Substantial ainolint, to-wit, 'the sum of $5,000. There was therefore no ref-a : sal' to render' judginent far more than 'a noininal , arm:flint." In the case 'froM which We have just . quoted, the testimony was to the effeCt that the plaintiff was entitled to recover $10,000, if 'entitled, to . recover anything • at all, but the jury returned *a Nerdict 'for only one-half •that amount. It was insisted that the verdict did not• com, port with either theory of the case and should be reversed for that reason. We 'recognized the fact, however, that verdicts of juries must necessarily result from a reconciliation of the yiews of. inclividual jurors which are often conflicting, and, if the jury system is to be eMployed as a practical method of settling finally disputed questions of fact, appellate courts, in.reviewing the verdicts,-can only determine whetber the testimony is.legally sufficient, to support the verdict returned. It.the testimony is legally sufficient to support the .verdict, it is-,unimportant that the verdict is not in harmony with either theory upon which the case was tried., Welherefore affirmed the judgment in this Fulbright case, from which we have just
394 'SMITH V. ARKANSAS POWER & LIGHT CO. [191 quoted, rendered upon the inconsistent verdict returned in that case, and in so doing said : "It is true that the verdict is not consistent, but this is .not ground for uS to reverse the judgment, as it is supported by very substantial and sufficient testimony." The case of Kimbrough v. J ohnson, supra, was one in which tbe plaintiff sued for $5,000 damages .to compensate injuries sustained by falling into a hole which the defendant's employees were alleged to have negligently left open. There was a verdict and judgment for the plaintiff in the suni of $114.04, which the plaintiff asked us to, reverse for -its inadequacy. -The. trial court refused to charge the jury at the request of the plaintiff that it was the defendant's duty under -the law to fill the hole. We there said 'that "If the court had instructed the jury that it was appellee . 's duty , under the law to fill tbe hole, a greater amount) might have been awarded appellant for his injuries." -We reversed the judgment for the refusal of the court to declare the law in regard fo defendant's neglect of duty. TWo members of the court disSented from the judgment of reversal on tbe ground that the failure to properly instruct the jury was not prejudicial, for the reason that appellant had recovered a judgment for ,substantial damages. The rule to be deduced from these cases appears to be this : When the undisputed evidence shows that plaintiff is entitled to recover substantial damages, a judgMent will be reversed which awards only nominal damages, because a judgment for nominal damages is, in effect, a - refusal to assess damages. - When substantial damages are 'awarded, a judgment will not be reversed because of inadequacy, if there-be mi other error than that committed by the jury in measuring the damages. But a-judgment evcif for substantial damages will be reversed where the undisputed testimony shows the damages to be inadequate, if error of a substantial and prejudicial nature was committed at the trial of the case. This is upon the theory, as was said in the Kimbtough case, supra, that but for such error damages might have been prOperly assessed. -
ARK.] SMITH V . ARKANSA'S. POWER & LIGHT 'CO: 395 Now, as has been,.said, the testimony is sharplY conflicting as to whether • the street car company is liable in any sum, and a verdict. Might have been returned in• its "faVor upon the giound that its :motorman . : Wa8 guilty 'of no negligence, and:also upon the ground that the:plaintiff's injury was; thc:result of his own :negligenee. But, if liable •at all; the undisputed testiniony shows , the verdict to be 'grossly inadequate.. The plaintiff was uncon, scious for five . weeks after, this ;injury, and was confined in the hospital for over two years, and is even yet under treatment. His injnries, physical and 'mental, have totally , disabled him..• His hoSpital• bill totaled . $2,90725. He was earning $3,000 a year in•excess of his expenses, with reasonable prospects for promotion.' Plaintiff's actual pecuniary loss was therefore much more than $5,000, without :taking into account any compensation for the pain sufferol Yet, notWithstanding these facts, we would not, under the authority of the cases above cited, reVerse the judgment' for its inadequacy of Compensation if' the rec-. ord contained no prejudicial errer except that of assessing the damages; 'inasmuch aS' substantial damages were awarded. .But, if there was Other errOr bta material and prejudicial' natnre, the judgment mnSt be ; reversed, notwithstanding the award 'of snbstantial; and not nominal, dam:ages. Was there such error? Appellant insists :that the action of the trial court in requiring his employer and the insurance company to be made parties was such an error. But it is.unnecessary to decide that question, fo . r • the • reason presently stated. It is true, of course, as appellant insists, that, as lie was injured in , this State, his right to recover compensation for those injuries and- the amount thereof Must be determined by the lawa Of this State, uninfluenced by the compensation laws of the State in which plaintiff was employed. Standard Pipe Line: Co. v. -Burnett, 188 Ark: 491,66 S. W. (2d) 637; Standard Oil Co. of *La. v. Bich-erson, 188 Ark. 882, 67 S. W. (2d) 1003 : ; • Logan- v. • Mis-sori. Valley ,Bridge it Iron Co., 157'. Ark. • 528, 249 S. W. 21... - •
396 SMITH V. ARKANSAS POWER & LIGHT . CO. [191 But it was shown by the plaintiff 's own testithony that-he had received benefits under § 6865 of the Workmen'S Compensation Law of Tennessee, which reads as. ' ' Whenever any injury for which compensation is payable under this chapter shall have been sustained under, .circumstances creating in some otlier person than the employer a legal liability to pay damages in respect thereto, the injured employee may, at his option, either claim compensation -or proceed at law . against such other person to recover damages, or proceed against both:the employer and such other person, but he shall not be entitled to Collect from both ; and, if compensation is awarded under this chapter, the, employer, having .paid the compensation 6r having become liable 'therefor, may
collect, in his own name or in the name of the injured employee in a'suit brought for the purpose, from the . other
person against whom legal liability for damages exists, the indemnity paid or payable to the injured employee." Section 6895 . of this act requires . all: employers affected by, :the -provisions of the, act to insure and keep insured his liability thereunder with . some insurer authorized to trans ., a ct t - h . e business .of workmen's compen- sation . insurance in thaf State. Opposing counsel have cited and reviewed the .Ten-nessee cases which have; construed this , statute, one , of the most recefit being that of Keen v. Allison, 166 Teim. 218, 60 S. W. .(2d) 158, where it was said : " This section of the Code has been considered in several cases, and it is well, settled that an employee who receives worknian's compenSation for an accident contributed to . or brought about by the negligence of the third partY, upon collecting such compensation, loses his right, in his own behalf, to sue such third party for damages. This right of action against the third party passes to the employer by statutory subrogation. This -is undoubtedly the rule when the employee collects compensation from his employer without reservation or exception of the right of action against the third party, or without waiver of the right of subrogation by the employer. (Citing cases.) " But whether the effect of this statute is to make plaintiff's employer and the insurer either proper or
XRK.] SMITH V. ARKANSAS POWER & LIGHT CO. 3'97 necessary parties need not •n6w be 'determined, because theease of Keen v. Allison; supra, makes.it clear that the employer may waive any Tight . of subrogation or authority to ste . which this act cOnfers,:. and the employer hag waived that right in this ease and has• been joined as a partyplaintiff, as has the insurer also,,inorderthat there may be no. defect .of parties... So that upon the remand of the cause this question will be unimportant, for. the reason that the employer and • the insurance company• have passed out of the case by waiving any rights they may have acquired under the Workmen's Compensation Law by virtue of payments to plaintiff under the provisions of that act. • There was an error, however, for which the judg, ment must be reversed under the rule stated. As has been said, the plaintiff sought to • recover upon tbe theory of discovered peril, and instructions were given . at the plaintiff's request which declared the law applicable to that issue. But the instructions given at•the request of defendant eliminated that issue. For instance, instruction 9• given at the defendant's request readS as, follows : "If y6U find that the plaintiff was 'guilty of negligence in attempting to . driiie upon the street car track in:front of the street car approaching on said track and.that his negligence brought. about his injury or damage, then he canna recover in this case, although you may find that the motorman on the street car failed to st6p the car within time to avoid the . colliSion." Instruction numbered 16 given at defendant's request also eliminated that issue. It reads as *follows "The court . instructs the• jnry that the plaintiff cannot recover if the collision was caused • by *the negligence of the plaintiff himself. ,• The court-fUrther inStructs you that i.f you find that the plaintiff waS in any manner at fault or that the plaintiff committed . any act Which was •a contributing cause to the accident, then the plaintiff cannot recover. In other words, the court tells you:that, if this accident was caused by any negligent act of the plaintiff, he cannot recover, or if the aceident was caused*by the combined negligence of •the plaintiff and the motorman, then plaintiff cannot •recover."
398 [191 It was error to . thus eliminate the question of discovered peril, as there was sufficient testimony to warrant the submission of that issue, and but for this error the jury might more adequately have compensated the damage if there was liability therefor. For the error of withdrawing the question of discovered peril, as was done in instructions 9 and 16, the judgment must be reversed, and it is so ordered, and the cause will be remanded for a new trial.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.