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August 21, 1957


The opinion of the court was delivered by: Lemley, Chief Judge.

    This personal injury action, which was submitted to the jury on interrogatories pursuant to Rule 49(a), Fed.Rules Civ. Proc., 28 U.S.C.A., is now before the Court upon certain post-trial motions filed by the respective parties after the jury returned its answers to the interrogatories propounded to it. Upon the jury's answers being read in open court, it was at once apparent that they raised certain legal questions as to the ultimate rights of the parties, and the Court prior to attempting to render judgment requested counsel on both sides to file motions for the entry of what each considered to be an appropriate judgment, and to accompany their motions with memorandum briefs, with each side being given an opportunity to file a reply brief. Such motions have now been filed and briefed, and the case is ready for final disposition.*fn1

The accident out of which this litigation arose took place about 4:25 P.M. on December 26, 1954 at a point on U.S. Highway No. 67 a short distance north of the City of Prescott, Nevada County, Arkansas, and opposite a salvage yard located on the east side of the highway operated by the plaintiff. Immediately prior to the accident the plaintiff, a citizen of Arkansas, accompanied by his father, O.T. Ingersoll, had been proceeding in plaintiff's pick-up truck south along the highway, and as they approached the salvage yard, the plaintiff undertook to make a left-hand turn across the highway to enter a driveway leading to his place of business. At the same time the defendants, James Mason and Martha Mason, his wife, and her niece, the intervenor, Frankie Lene Rachal, all citizens of Illinois, were proceeding north along the highway in a 1954 model Dodge automobile being operated by James Mason, and the collision occurred before the plaintiff had completed his turning movement.

It was the theory of the plaintiff that he was operating his pick-up truck with ordinary care, that he had commenced his turning movement and had crossed the northbound traffic lane, and had gone onto the east shoulder of the highway and was proceeding south along the shoulder preparatory to turning into the driveway when the Mason car came around a curve at an excessive rate of speed, ran off of the main traveled portion of the highway and onto the shoulder and struck his pick-up truck. He charged that the driver of the Mason car was guilty of negligence in failing to keep a proper lookout, in driving at an excessive rate of speed, and in failing to maintain proper control. He further alleged that the car was jointly owned by James and Martha Mason, and that the latter was driving under the supervision of her husband, that they were engaged on a joint enterprise, and that the alleged negligence of Martha Mason was imputed to her husband. At the commencement of the trial, however, the plaintiff conceded that the car was being operated by James Mason, but he insisted upon his contentions that the car was jointly owned by the Masons and that they were on a joint enterprise so that the alleged negligence of the driver would be imputed to his wife, and he advanced the further contention that James Mason was operating the car as his wife's agent.

In their pleadings and throughout the trial, the Masons consistently took the position that the car was being operated by James Mason; and they denied that he was guilty of any negligence, or that his negligence was imputed to Martha Mason upon any theory of joint enterprise or agency. By way of counterclaim the Masons asserted that their alleged injuries and damage were proximately caused by the negligence of the plaintiff in undertaking to make a left-hand turn when it was not safe to do so and without giving a proper turning signal, and in operating his pick-up truck while intoxicated. In that connection they contended that as the Mason car approached the Ingersoll pick-up truck which was obscured from their view by another vehicle proceeding ahead of him in the same direction, he suddenly and without warning turned his vehicle across the center line of the highway directly into the path of the Mason car, and that the collision occurred, not on the shoulder of the road, but in their portion of the paved surface of the highway. In their counterclaim they asked for compensatory damages and also prayed for punitive damages on the theory that the alleged negligence of Ingersoll was willful and wanton. The intervenor, Frankie Lene Rachal, adopted the allegations of the counterclaim and likewise sought both compensatory and punitive damages. By appropriate responsive pleadings addressed to the counterclaim and intervention the plaintiff denied that any of his adversaries was entitled to any recovery whatever.

After the evidence had been concluded and after the case had been argued, the case was submitted to the jury upon six interrogatories, which, together with the jury's answers thereto, are set forth in Appendix "A" to this opinion. As will be noted from its answers to the interrogatories, the jury found that both the plaintiff and James Mason were guilty of negligence which proximately caused or contributed to the accident, that the Mason car was owned exclusively by James Mason, but that Martha Mason had with him an equal right of control with respect to the operation thereof, that all of the parties had sustained actual damages, and that Martha Mason was "entitled to an award" of punitive damages in the sum of $5,000.*fn2

As is usual in cases of this kind, the evidence as to how the accident occurred and as to who was to blame was sharply conflicting, and we are satisfied that the jury's findings that the accident was proximately caused by the joint and concurrent negligence of the plaintiff and of James Mason were amply supported by the evidence. As a matter of fact, neither side appears to quarrel seriously with those findings; nor does either side question the amounts of actual damages found by the jury, which amounts were conservative, or the amount of punitive damages found with respect to Martha Mason, although the plaintiff does urgently contend that the finding of such damages has no substantial evidentiary basis.

In their motion for judgment the counterclaimants and intervenor pray that judgment be entered for them for the compensatory damages found by the jury, and that Martha Mason have judgment in addition for the punitive damages so found. In support of their motion these parties, in addition to contending that the contributory negligence of James Mason was not imputed to his wife and that she was free from independent contributory negligence, urge that the finding of the jury that Martha Mason was entitled to punitive damages necessarily implied the finding that the conduct of the plaintiff was wanton and reckless, and that such being the case the contributory negligence of James Mason or of Martha Mason would not constitute a defense available to the plaintiff. The validity of that contention is, of course, challenged by the plaintiff.

In passing upon the conflicting contentions just outlined it is necessary to keep in mind that this is a diversity case, and that the governing law is that of Arkansas; and, further, that the evidence in the case must be viewed in the light most favorable to the answers returned by the jury to the several interrogatories.

Taking up first the question of punitive damages, counsel did not object at the trial to the propounding of Interrogatory No. 6, and without stopping to analyze the conflicting testimony, it may be said that there was substantial, if not overwhelming evidence to the effect that at the time of the accident the plaintiff was operating his pick-up while in a seriously intoxicated condition, and under Arkansas law such evidence is sufficient to justify an award of punitive damages. Miller v. Blanton, 213 Ark. 246, 210 S.W.2d 293, 3 A.L.R.2d 203; Hall v. Young, 218 Ark. 348, 236 S.W.2d 431, 20 A.L.R.2d 1207.

In Miller v. Blanton, supra, the Court held that punitive damages may be inflicted even though the defendant did not intentionally harm the plaintiff if the former's conduct was characterized by a wanton disregard of the rights and safety of others, and that evidence of intoxication was sufficient to take the question of punitive damages to the jury. In that connection it was said: "When Miller imbibed alcoholic liquor he knew that he was taking into his stomach a substance that would stupefy his senses, retard his muscular and nervous reaction, and impair, if not destroy, the perfect co-ordination of eye, brain and muscles that is essential to safe driving. After Miller voluntarily rendered himself unfit to operate a car properly he undertook to drive his automobile, a potentially lethal machine, down a well traveled highway. His conduct in doing this was distinctly anti-social, and the jury was amply authorized in saying by their verdict that he was exhibiting a `wanton disregard of the rights and safety of others.'" 213 Ark. at page 249, 210 S.W.2d at page 294. And in Hall v. Young, supra, the Court stated: "We will not attempt to detail the testimony. It is sufficient to say that the jury was warranted in concluding that the collision was the proximate result of appellant's gross and wanton negligence in operating his car on a rainy night over the narrow, slippery road at an excessive speed while intoxicated. Under our holding in the recent case of Miller v. Blanton * * * the evidence, when viewed in the light most favorable to appellee, was sufficient to sustain the verdict for both compensatory and punitive damages." 218 Ark. at page 349, 236 S.W.2d at page 432.

Furthermore, in cases arising under the Arkansas automobile guest statutes (Acts 61 and 179 of 1935, Ark.Stats. §§ 75-913 and 75-915), which provide in substance that the owner or operator of an automobile shall not be liable to a gratuitous guest for injuries received by him unless the vehicle was being "willfully and wantonly operated in disregard of the rights of the others," or unless the operator was guilty of "wilful misconduct," it has been held that the conduct which will impose liability under those statutes is essentially the same in quality as that which will render a person liable for punitive damages. Steward v. Thomas, 222 Ark. 849, 262 S.W.2d 901; see also Froman v. J.R. Kelley Stave & Heading Co., 196 Ark. 808, 120 S.W.2d 164; and Cooper v. Calico, 214 Ark. 853, 218 S.W.2d 723. And in the case last cited it was held that evidence of intoxication on the part of a driver is sufficient to take to the jury the question of his liability to a guest since the jury "might reasonably say that an operator so situated intentionally satisfied his appetite at the expense of physical coordination, hence there was constructive intent to do the things that would naturally flow from intoxication." 214 Ark. at pages 858-859, 218 S.W.2d at page 726.

While we agree with the Masons that the question of punitive damages was properly submitted to the jury, and that its finding that Martha Mason was entitled to such damages was supported by the evidence,*fn5 and while we also agree with them that this finding necessarily stigmatized the plaintiff's conduct as having been wanton and reckless,*fn6 we are unable to agree with them in their contention that such finding renders immaterial the contributory negligence of James Mason or that of Martha Mason, if it exists.

Although there is authority to the effect that where the conduct of the party sought to be charged is wanton and reckless, contributory negligence on the part of the person injured is not a defense, there is also authority the other way;*fn7 and from our consideration of the Arkansas authorities we are satisfied that this State must be aligned with those taking the latter view, and that under Arkansas law, as it existed at the time of the Ingersoll-Mason collision, contributory negligence was a defense in all cases, except those in which ...

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