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BOULDEN v. HERRING

December 17, 1954

MRS. LEE E. BOULDEN, ADMINISTRATRIX OF THE ESTATE OF LEE E. BOULDEN, DECEASED, PLAINTIFF,
v.
M. HERRING AND M. HERRING WHOLESALE LUMBER COMPANY, A CORPORATION, DEFENDANTS, HOPE FLOORING & LUMBER COMPANY AND COMMERCIAL STANDARD INSURANCE COMPANY, INTERVENORS.



The opinion of the court was delivered by: John E. Miller, District Judge.

The questions before the court for determination are mixed questions of law and fact, and it seems desirable to dispose of them in an opinion rather than by separate findings of fact and conclusions of law. There is no substantial factual dispute between the parties, but the contentions of the parties to this proceeding arise from conflicting inferences drawn from the undisputed facts.

On April 9, 1953, the plaintiff appeared by her attorneys, Lookadoo & Lookadoo, the defendants, M. Herring and M. Herring Wholesale Lumber Company, a corporation, appeared by their attorneys, Wootton, Land & Matthews, and the intervenors, Hope Flooring and Lumber Company and Commercial Standard Insurance Company, appeared by their attorneys, Gannaway & Gannaway, and "by consent of all parties, a jury is waived, and this cause is submitted to the court sitting as a jury." At the conclusion of the hearing at that time, the court entered a judgment in the sum of $15,000 in favor of the plaintiff, Mrs. Lee E. Boulden, Administratrix, for the benefit of the Estate of Lee E. Boulden, deceased, and the widow and next of kin, against the defendants. It is recited in the judgment that the court found the intervenors "are entitled to a lien upon the said sum of Fifteen Thousand ($15,000) Dollars, by reason of payments heretofore made, and hereafter to be made, to the said Mrs. Lee E. Boulden, under provisions of the Workmen's Compensation Law of the State of Arkansas, but the (determination of the) amount of such lien should be reserved for the further consideration and judgment of this court."

The court further directed that the defendants should pay into the registry of the court the said sum of $15,000, being $5,000 for the use and benefit of the Estate of Lee E. Boulden, deceased, and $10,000 for the use and benefit of the widow and next of kin, and that, upon the deposit of said sum in the registry of the court, the defendants "shall be acquitted of all further liability to both the plaintiffs and the intervenors herein, and said judgment shall be satisfied of record."

The defendants deposited the said sum of $15,000 in the registry of the court and the court proceeded to distribute said funds according to the interest of the plaintiff and the intervenors. The judgment distributing the funds was entered April 17, 1953, and therein it was found and declared by the court:

    "That reasonable cost of obtaining and
  collecting the judgment herein is $7,500.00 and
  that, after payment of such costs, the plaintiff
  is entitled to receive one-third of the net
  amount remaining, and the Clerk of the Court
  shall distribute and pay to the parties herein
  from the said sum of $15,000.00 now in the
  registry of the court the following amounts:
  Lookadoo & Lookadoo, as
    costs of collection,      $7,500.00;
  The plaintiff, Mrs. Lee
    E. Boulden,
    (Administratrix),          2,500.00;
  The intervenor,
    Commercial Standard
    Insurance Company,         2,053.78.
    "That the remaining sum of $2,946.22 shall be
  held in the registry of this court subject to
  payment to said intervenor upon proof of further
  payments of compensation by it as required by
  law.
    "That the intervenors are not entitled to
  recover two-thirds of the full amount of the
  judgment rendered herein in favor of plaintiff,
  but are only entitled to a lien on two-thirds of
  the net amount received after payment of the cost
  of collection, which cost of collection includes
  the attorney's fee to the attorneys of the
  plaintiff."

The intervenors perfected an appeal from the judgment distributing the funds as above set forth.

Disposition of the appeal was postponed by the United States Court of Appeals for the Eighth Circuit until the case of Winfrey & Carlile v. Nickles, Adm'r, had been determined by the Supreme Court of Arkansas. The Supreme Court of Arkansas, on June 28, 1954, rendered its opinion in the Nickles case, 270 S.W.2d 923, and, following that decision, the United States Court of Appeals rendered its decision on September 3, 1954, on the appeal of the intervenors. The United States Court of Appeals was of the opinion that the conflicting contentions of the parties had not been fully developed and considered by this court prior to the time of the decision by the Supreme Court of Arkansas in the Nickles case and, accordingly, vacated the judgment rendered by this court on April 17, 1953, and remanded the case for further proceedings. Hope Flooring & Lumber Co. v. Boulden, Adm'x, 8 Cir., 215 F.2d 731.

The Mandate of the Court of Appeals was filed herein on September 27, 1954, "for further proceedings consistent with the opinion of this court this day filed herein. Neither party is allowed costs in this Court. September 3, 1954."

The cause came on for hearing on December 13, 1954, in accordance with the Mandate, and at that time the plaintiff and her attorneys, Messrs. Lookadoo and Lookadoo, introduced testimony in support of their contentions and the intervenors likewise introduced testimony in support of their contentions. As heretofore stated, there is no substantial dispute as to the facts. The questions presented before the court arise because of the conflicting contentions of the plaintiff and her attorneys and the intervenors as to their respective interests in the judgment that was recovered by the plaintiff as Administratrix against the tort-feasors, the defendants.

The testimony disclosed that Lee E. Boulden was employed by the Hope Flooring & Lumber Company and that on March 3, 1952, about 5 a. m., the plaintiff received serious personal injuries while acting within the scope of his employment; that the proximate cause of the injuries was the negligence of an employee of defendants.

Messrs. Lookadoo and Lookadoo, attorneys at Arkadelphia, Arkansas, were employed by Lee E. Boulden to represent him in his claim against the defendants to recover damages for the personal injuries sustained by him, and he agreed to pay his attorneys for such services a sum equal to 50 per cent of any amount that might be recovered from the defendants, after the payment of the expense of the trial and preparation for trial. Accordingly, the attorneys for the plaintiff, Lee E. Boulden, filed suit against the defendants in the Circuit Court of Clark County, Arkansas, on August 8, 1952. The basis of the complaint was that the plaintiff, Lee E. Boulden, on March 3, 1952, at about 5 a. m., was driving his car on U.S. Highway No. 82 about two miles east of Lewisville in Lafayette County, Arkansas; that he was traveling at a legal and lawful rate of speed and on his own right hand side of the highway and in the exercise of reasonable care, prudence and caution at the time when he suddenly came upon a truck owned by the defendants and parked on the right hand side of said highway, headed in an easterly direction, which was the same direction that the plaintiff was traveling; that it was dark and raining and the defendants' agent, servant and employee had carelessly and negligently parked the large truck and trailer owned by the defendants on the right hand side of the highway without putting out any flares or lights or warnings of any kind whatsoever; that when plaintiff discovered the unlighted truck and trailer parked as aforesaid he made every effort to avoid striking the same but was unable to do so and struck the left rear portion of the trailer and, as a result thereof, received serious personal injuries. Then follow descriptive allegations of the alleged injuries and the prayer for the recovery of a judgment to compensate for the injuries.

On August 20, 1952, the defendants filed their petition for removal on the ground that the plaintiff and defendants were citizens of different states and that the amount involved exceeded, exclusive of interest and costs, the sum of $3,000. Following the filing of the petition for removal, the defendants filed their answer denying the allegations of negligence and also denying that the plaintiff had suffered excruciating physical pain and mental anguish and that he would continue to suffer great and excruciating physical pain and mental anguish; that his injuries were permanent and lasting and that he would never be as strong and healthy as he was prior to the time complained of herein and that he would have to lead a very sheltered life for the rest of his days; and that plaintiff would never be able to work and earn a living for himself and family.

In addition to these denials, the defendants pleaded contributory negligence on the part of the plaintiff as a complete bar to his alleged cause of action.

The plaintiff died September 18, 1952, and the present plaintiff, Mrs. Lee E. Boulden, was appointed Administratrix of the Estate of the deceased on September 22, 1952. The cause had been set for pre-trial conference on September 23, 1952, and at that time the plaintiff appeared by his attorneys and the defendants by their attorneys. When the case was reached upon a call of the calendar for the pre-trial conference, the attorneys for plaintiff suggested the death of Lee E. Boulden and filed the Letters of Administration granted to the present plaintiff, Mrs. Lee E. Boulden, and upon their motion and on September 23, the cause was revived in the name of the present plaintiff as Administratrix of the Estate of Lee E. Boulden, deceased.

At that time the attorneys for the defendants were contending that the death of Lee E. Boulden was not caused by the injuries received by him on March 3, 1952, but that his death was caused by tuberculosis. To resolve this question, the attorneys agreed to take the deposition of Dr. J.D. Riley, Superintendent and Medical Director of the Arkansas Tuberculosis Sanatorium at Booneville, Arkansas, at which institution Mr. Boulden had died on September 18, 1952.

Dr. Riley is without doubt the outstanding authority on tuberculosis in the State of Arkansas and is generally recognized as such by the medical profession in Arkansas. His deposition was taken on September 26, 1952, by the attorneys, for the plaintiff and the attorneys for the defendant and was filed in this court on March 18, 1953. The deposition and the testimony of Dr. Riley disclosed that the cause of the death of Lee E. Boulden was the injury that he had received on March 3, 1952, which reactivated an arrested case of tuberculosis. When these facts were developed, the intervenors appeared on September 29, 1952, and filed their intervention in which they alleged that the intervenor, Hope Flooring & Lumber Company, carried compensation insurance with the intervenor, Commercial Standard Insurance Company and that by the terms of the Workmen's Compensation Act of Arkansas, Ark.Stats. § 81-1301 et seq., the intervenors have paid to the plaintiff as compensation, medical and hospital bills to September 15, 1952, the sum of $1,101.16. The intervention makes no mention of the death of Lee E. Boulden or the revival of the cause of action in the name of the present plaintiff as administratrix. They further alleged in their intervention that they had not only paid to the plaintiff, Lee E. Boulden, the said sum of $1,101.16 but that they would in all probability be required to pay additional sums, and they alleged:

    "Intervenors state that the claim of plaintiff
  herein against intervenors was accepted and not
  contested by intervenors and that said amounts
  which have been paid and which will be paid were
  paid without any contest, and that no cost of
  collection should be deducted from any recovery
  or settlement herein and that the intervenors are
  entitled to two-thirds of the full amount of any
  judgment or settlement amounts."

The prayer of the intervention was that the intervenors have a first lien upon two-thirds of the amount of money "recovered herein by judgment or of any settlement made between the plaintiff and defendants, or either of them, up to the amount that intervenors have already paid under the Arkansas Workmen's Compensation Act and upon any additional amounts that intervenors, or either of them, may be required to pay in the future as compensation or for ...


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