ARK.] AMERICAN REFRIGERATOR TRANSIT COMPAN Y 955 , v.• STROOPE. AMERICAN REFRIGERATOR TRANSIT COMPANY v. STROOPE: • 4-4656 ' Opinion delivered December 9,.1935." . • 1. STATUTES-n , PROSPECTIVE DPERATION.—Statates should be construed as having" PrOpective operation only, ' unleSs it is' definitely 'ex'- pressed or necessarily implied therein that they are to haVe a . retroactive effect. • ; 2. ,JURy—SERVICE , OF. : JURY commIssioNERs.-7Under ., Acts 1933, .No. 161, providing that after .passage of the act "no Citizen • shall be ' eligible to 'serve as' jury' coinraissioner oftener than • one 'term. • every • foUr yeafsi" 'has no reference to service as jury commissioner prior to the passage . of the. act. 3. APPEAL AND ERROR—NECESSITY OF MOTION FOR :NEW TRIAL.=Error; .in giving'an instruction not inade a ground of the motion for new trial will , hot . be considered on..appeal. 4. MASTER AND SEItVANYNEGLIDENCE OF FELLOW-SERVANT.—Evidence in an action against an eniployer and a-fellow-servant; tending,to establish that the fellow-servant-was negligent in ,causing •a large bloCk of ice to fall on plaintiff's back, held to sustain . a ° finding of negligence causing injury to plaintiff. 5.' CORPORATIONS—SERVICE OF : PROCEss--In an action against a corporation 'and its employee, where the evidence was admitted to • •.be sufficient to establish that the corporation and employee were jOint-tortfeasors, . service on. the .employee in. the county of his residence and on ' the employer's designated a'gent in , another
county keld sufficient: •' ' ' • 6. , bAMAGES—AMOUNT "AWARDED.—. An awal!.d of $30,000' to a 29-year-- , old, man who had been strong.and healthy with an eXpectancy of. 36 .years, and ,had been earning , $250 per , month, who hecame a , physical wreck .as result of an injury, ° suffering great pain, held not excessive. .. Appeal from : Clark . Circuit Court ; Dexter. Bush, Judge ; affirmed., s.- Action by . D. A. Stroope. against the American Re- - frigerator,,Company and another:. Judgment for plaintiff, and defendants appeal. - R..E.,Wiley, Fletcher. McElhannon . and Henry . Don-ham, for. appellants. , • . • Pace:cf, Davis, J. H. Lookadoo and Tom W. Camp-bell, for appellee. • HUMPHREYS,. J. This ' • is. an appeal from a judgment for $30,000 rendered in favor of appellee against appel-la.nts in the cirCuit court . Of Clark 'County , on 'account 'Of
956 AMERICAN REFRIGERATOR TRANSIT COMPANY [191 v. STROOPE. an injury: received . hy him on-July 29, 1934, through the alleged negligence of appellants in allowing a piece of ice to fall from a loading doCk Or platform, that struck him on the back, while he was on the ground below inspecting and. pnchoking a drain pipe of a refrigerator car that was being iced.. by emploYees Of the ,American Refrigerator Transit Company at Gurdon. Appellant Tate was served with summons - in Clark County, where hp resided, and the AmeriCan Refrigerator Transit Company was served with sumMons by delivering a. copy thereof to its designated agent for service in Pulaski County. The American Refrigerator Transit CoMpany filed . a' MOtion• to quash the serviee upon it, which was overrnled by the court over AS objectien and exception, and.its rights thereunder, if any, Were properly saved throughout the trial— . An angwOr wa g filed . by appellants, denying the material allegations of the complaint.. . • - When the case was called for trial, appellants filed a motion to quash the panel of the petit jury, alleging that one of the jury 6imihisg iohers which selected the petit juty had serVed in that capacity Within four years and was ineligible under aCt 161 of the Acts of 1033 to again serve. . It was.:also . alleged. in the motion that the three jury commissioners had- Selected; upon the : panel, naming theth, Several' persons Who bad served upon petit and grand juries within the past tWo years and were ineligible under said act to again serve. The court excused from the •Panel those: persons . who had served on grand and petit juries within two years previous . and overruled the motion of appellants to quash • The entire panel, to which latter action Of the court appellants objected and excepted. -Appellants first contend that the judgment should be reversed because the trial court erred in overruling the motion . tO . quash tho entire panel of. Tait jurors. It is argued in support of this contention that orie of the commissioners who. had assisted in the selection of the panel had previously served in this capaeity within four years' prior thereto,. and that, under the provisions -of act 161
ARR.] AMERICAN REFRIGERATOR TRANSIT COMPANY: 957. i. STROOPE:. of the' Acts. of 4033 he ,was .to servo as. a jury commissioney . within four:years from the date of this pre-\T.i.ous service.. This: depends on whether the act relates to the service of. a commissioner . prior to its passage or whether ,to his :service in that,eapacity . after its :passage. The language of. the act is as.:follows : • - . "From- and after the- passage of this . actno' citizen of this State shall be eligible -to serve as a jury commissioner oftener than one term every four years.-!? - , The general rule is that. statutes should be construed aS • haViao. ProSPeetiVe operatiOn ofilY, unless• it iS defi, nitelY -. expressed-. of' clearlY- and neceSsarily implied , Such Statutes that . .they; are .to;haVe retroactiYe effect.. Fayetteville. Bnilding C : Loan .AssOe i . ation . v Boln, 6,3 Aik 576, 40 K. N. 710 . , ; B , lack v. Special...Schoal Dist6ot 116 Arl: 472,1173 S. . -. . W. 846 1 1104; Dulaney v. Continental Life Insnral . tee Co:, 186 / Ark. '47, 47 , S. W. (2d) 1082 ..4cefield v. Teiyipr; 185 Ark. 08, 48 S. W. .(2d) 832. There : is no language or clear and-necessary inaj;Uca-tion in . act . 161 oi the Acts of 1933 supporting:the con- struction that , the Legislature intended for it to operate retrospectively. , :The language , u . sed is : clear and , unam:-. biguous that. a citizen shalt . be disqualified ,from:serving, as a jury, commissioner oftener thai y once every four years after , the , passage of . the act: The undisputed evidence shows that the jury commissioner in question . in.the instant case never , served in that capacity after the.passage of the act until he assisted , in the selection: of this par;- ticular:papel of . petit jurors.. , The trial.conrt did, not ery. in overruling app . ellanfs ; ' . . m . otion to quash-the,. entire . Appellants tiext coatend for a reversal ; 0:the judgment. because the trial . court.eryed in giving appellee 's,re,- quested instructions . Nos. and . 6, and in_ refusiag to.give. appellants' requested instrucfions Nos. 2 and ,3. . ,.The giving of instruction No. .6 was ;not made ground of , the motion for a new- trial, .and the alleged-error. in giving same caanot be considered on' this appeal.. Appellants . argue that it was error to give, appellee's . re-' quested , instruction ,No.: 1 -and to , refuse to: give appellants:'-
958 AMERICAN REFRIGERATOR TRANSIT COMPANi7 [191
v. STROOPE. requested instructions Nos. 2 and 3 because no evidence was adduced to support a finding 'of negligence on the part of Rayniond Tate, who was appellee's co-employee and who was Sued jointly with the American Refrigerator Transit 'Company, their employer, for negligently causing the injury inflicted upon appellee. The evidence adduced, stated: in' the most favorable light to. appellee, in substance, (adopting, in part, appellee's - statement of facts) is as follows: . •,• .• . . • The appellee, who was in the . , emPloy . of Appellant American Refrigerator Transit Company on the night.of the 29th of . July, 1934, with a crew of selen other men, engaged .in re-icing a 'refrigerator ear at . Ourdon, was injured. The car waS being re,ieed at a loading dock or platform at . the jnnetio Of the Womble . Branch Line with the main line of the Missouri Pacific RailrOad.. The'load-iiig . dock WO built' for the i ptirpose . Of • re-icing ears, and WaS abOut 250 feet long from north td south and was about tbir6r , feet wide.. The railroad tracks ran 'on either side of the doek. The dock a O n the east side was about 17 feet high,.. the platform the dock being about even With the toP of . the . refriOrator, car standing on the track, rnakiniit Convenient te' put ice in the top of the cal' from the . platform of the dock. In the roof of 'the ear there were four :hdles to receive the ice, two at. each end of the car. Over these holes there were : lids that Were opened When- the car was to be re-iced. On' the west' side Of the dock, the railroad tracks were WIC up so. that the doors' of the refrigerator 'ears carrying ice were even with the platforni. The ice in these cars *came in blocks weighing 300 pounds each. When this ice was removed to the'plat-forin,-the 300-pound blocks were cut into three' 100-pound blocks bY thectew, to enable-then:1 tO more eaSily put the ice 'into the refrigerator-car. Between the top of the refrigerator -car and the toP of the platform there was a space about 16 'inches in width. The method adopted to put the ice in the refrigerator ears was by using pike - poles . to push the ice across the platform and by giving it enough momentum to cause the ice to leap over the space.between the' platform and the car and go into the
ARK.] AMERICAN REFRIGERATOR TRAN5IT COMPANY 959
v. STROOPE. bole in the top of the can The pike poles were of wood, four or five feet long,. with a metal pike in the end of them, the end ,being inserted in the ice while pushing it. There are four drain . pipes near the corners of the refrigerator car, and these pipes are used to drainthe water out of the car Made by the melting ice, and frequently these pipes become stopped.up or clogged, and it , is then necessary to open , them . up. On the. night . of the injurY there Was. onlY one car . to be re-iced. ThiS :car Was brought in on the Womble branch,. and the dock crew, ' while waiting for it to arrive,. Were engaged in tat(ing the, iee out .or the cars and cutting the same into smaller blocls ' When the' car was seen approaching, Mr. Kinman, the foreman of the gang, directed Appellee, .StrOope, tO go down .and examine the drain 'pipes of 'the car and 'Open up any of them that might need it. This' instruction to aPpellee•Was given 'in the'presence -of -appellant Tate and the' other members of : the crew, and' they All saW him gO 'below tO perforni this taSk.. Tt -had been the: rnle; Proniulgated'by the fOremah Of the crew,..and • UniversallY obserVed:in the past, that no 'ice . .ShoUld he'meved froth' the'.platform — to the Car while Any one was below inspecting the drain pipes, and appellant 'Tate testified that he knew this to be the -rule. The drain : pipes were' located directlY beneath the hole where the ice was put in the tori of. the' car. While appellee Stroope- was at the northwest' corner -of the car; bent over and engaged in inspecting the drain pipe, appellant Tate- attempted to 'move a piece . of ice from the .platform . to the car,. and in so -doing broke' the ice in two pieces,: and one piece weighing between 25,and 50 pounds.fell a distance of about 17 'feet,. striking appel-lee in the haek and 'injuring him. so that he will be'a permanent' cripple.. The : Neck 'of ice that . Tate . was tiying*to put across the open space betWeen the dock' and car Was lying about three feet from the edge of the platforin; and, in order to give it enough momentum to make it clear the space between the , platform and.the car, he struck the ice too hard with his pike pole and broke it ih , two pieces, one piece of ice going into the hole , in the ear and the other piece falling 'below and striking appellee. .1-1e,could and
960 AMERICAN REFRICERATOR TRANS ' IT COMPAN Y [191 v. STROOPE. should have moved the piece of ice back on the platform far enough so that he could haVe given it sufficient mo-frientum to cause it to go from the platform into the hole in the car without striking it too bard with his pike pole in an effort 'to put it over from . where it was lying -within three feet of -the edge of the platforth. - • The evidence thns . s-uinmarized w . aS sufficient to war-raht the . jury in finding that . Tate . was negligent . in moving th6 ice while appellee was on the ground inspecting arid iinchoking the drairi pipes, as Well hs in:the mariner he brindled the ice When he . 'attempted to Put it'in the car. . Since learned counsel for:appellants -admit that there is . sufficient evidence in the record to establish liability against,the American Refrigerator, Transit Company, and sinee , the record discloses: ample evidence ! to sustain,the finding of the : jury;that frate.was a joint tort-feasor with it, the service upon . the American . Ref rigerator. Transit Company i ln , Pulaski County , ,was good, so theArial,court did: not err in refusing ,to quash , tbe. service. , upon the AMerican Refrigerator Transit Comp q ny, and did not err in subrditting , the issne of whether Tate was guilty, of negligence causing the injury to appelle.e. The next • and last contention of aPpellants for a reversalof • the judgment is that the judgmerit is excessive. At.the tinae of the injury, appellee was 29 yeaiS of age, strong and healthy, with. an expectancy of 36 years, and .had been earning $250 a month conthmously for eight . years.. According.to the testimony.introduced by ap-pellee; which the jury accepted as , true; appellee is h .Com: plete.physical wreck hs a resnit of the injury, and is continuing to -grow worse- inStead 4: better. 'His -suffering was• intense •from and.after . the injury:for a long, period of time. ;In . view of his helplessness and the painohe has suffered, we are of .opinion that the . judgment is not excessive.. •• • No error appearing, the judgment is ifffirmed. Mr. justices ' MCHANEY and BAKER dissent as to the Construction-of the act, and Mr. Justice SMITH' is of opin-ien the verdict is excessive.
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.