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SHAVER v. ARKANSAS BEST FREIGHT SYSTEM

March 31, 1959

DALLAS O. SHAVER ET AL., PLAINTIFFS,
v.
ARKANSAS-BEST FREIGHT SYSTEM, INC., ET AL., DEFENDANTS AND THIRD PARTY PLAINTIFFS (FRUEHAUF TRAILER COMPANY, THIRD PARTY DEFENDANT).



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

The plaintiffs*fn1 and the defendants, Arkansas-Best Freight System, Inc., and W. E. Hall, have filed separate motions to remand this case to the Circuit Court of Crawford County, Arkansas, whence it was removed by the third party defendant, Fruehauf Trailer Company.

The plaintiffs are citizens of Arkansas and residents of Sebastian County.

The defendant, Arkansas-Best Freight System, Inc., is a corporation organized and existing under the laws of the State of Arkansas, and has and maintains an office in the City of Fort Smith, Sebastian County. The defendant, W. E. Hall, is a citizen of Arkansas and a resident of Sebastian County.

The third party defendant, Fruehauf Trailer Company, is a corporation organized and existing under the laws of the State of Michigan, and is authorized to do business in Arkansas.

The complaint of plaintiffs was filed in the Crawford Circuit Court on December 12, 1958, seeking to recover a judgment against defendants, Arkansas-Best Freight System, Inc., and W. E. Hall, for damages for the death of Wendell W. Shaver and wife, Helen Ann Shaver, and the children, Barry A. Shaver, Wendell Allen Shaver, and Cynthia Ann Shaver, on November 30, 1958, through and by reason of the alleged negligent operation of a truck trailer by the defendants on U.S. Highway 71 in Crawford County, Arkansas.

It is not necessary to detail the specific acts of negligence which the plaintiffs alleged were the proximate cause of the death of the five persons.

On January 3, 1959, the defendants, Arkansas-Best Freight System, Inc., and W. E. Hall, filed their demurrer to the complaint of the plaintiffs, but the record does not disclose what action, if any, was taken on the demurrer in the state court.

Subsequent to the filing of the demurrer, the defendants filed a motion in the state court for leave to file a third party complaint. The third party complaint was filed January 17, 1959, against the third party defendant, Fruehauf Trailer Company, and alleged that the collision between the automobile that was being driven by the deceased, Wendell W. Shaver, and the tractor trailer was caused wholly, solely, and proximately by the negligence of the third party defendant, Fruehauf Trailer Company.

Specifically it is alleged:

    "2. Defendants and third party plaintiffs state that the
  plaintiffs herein have made claims against them for damages
  on accounts of the deaths of Wendell W. Shaver, Helen Ann
  Shaver, Barry A. Shaver, Wendell Allen Shaver and Cynthia Ann
  Shaver, alleging in substance that on some date prior to
  December 12, 1958, said persons were killed as a result of a
  collision between an automobile in which they were riding and
  a trailer owned and operated by the defendant, Arkansas-Best
  Freight System, Inc., and driven by the defendant, W. E.
  Hall, at a point on United States Highway No. 71, about 10
  miles North of Mountainburg, Arkansas, and alleging certain
  acts of negligence on the part of these defendants and third
  party plaintiffs, which the defendants and third party
  plaintiffs have denied.
    "3. Defendants and third party plaintiffs state that the
  third party defendant, Fruehauf Trailer Company, is liable to
  the plaintiffs for all of their claims alleged against these
  defendants and third party plaintiffs by reason of the
  negligence of the said third party defendant as follows:
    "(a) On or about June 1, 1956, the third party defendant sold
  and delivered to Best Motor Freight, Inc., predecessor of the
  defendant, Arkansas-Best Freight System, Inc., a 1956 open
  top trailer, Serial No. AV 301673, designed to be used in the
  transportation of freight by motor vehicle by being pulled by
  a truck-tractor; thereafter, on or about June 3, 1957, by
  reason of the merger of Best Motor Freight, Inc. and the
  defendant and third party plaintiff, Arkansas-Best Freight
  System, Inc., the said trailer became the property of said
  defendant and third party plaintiff.
    "(b) The said trailer was designed to be pulled by a
  truck-tractor by means of a king pin attached to the bottom
  of said trailer for attachment to the fifth wheel assembly of
  said truck-tractor, and at the time said trailer was sold and
  delivered as aforesaid, the same was equipped with a faulty
  and defective king pin of improper and negligent design and
  was constructed of faulty and defective materials, and was
  not designed in a safe manner, but was inherently dangerous
  when used in pulling said trailer when loaded or unloaded
  upon the highways, all of which facts were known to the third
  party defendant, Fruehauf Trailer Company, or could have been
  known to it in the exercise of ordinary care on its part.
    "(c) That notwithstanding it knew, or should have known, that
  the said trailer was sold and delivered as aforesaid for use
  in hauling freight upon highways and equipped with said
  inherently dangerous king pin of faulty and negligent design
  and manufacture, the said Fruehauf Trailer Company

  negligently sold and delivered said trailer as aforesaid and
  negligently failed to warn the purchaser thereof and this
  defendant and third party plaintiff's predecessor that the
  same was inherently dangerous and incapable of pulling normal
  loads by means of a truck-tractor as aforesaid.
    "(d) That at the time and place alleged in the complaint,
  said defendant and third party plaintiff was pulling said
  trailer, which was loaded in a normal manner with general
  freight of reasonable weight and dimensions, when suddenly
  and without warning the inherently dangerous and defective
  king pin on said trailer broke and gave way in such manner as
  to cause said trailer to become separated from the tractor
  pulling the same, as a result of which said trailer, being
  out of control of the tractor pulling same and driven by the
  defendant and third party plaintiff, W. E. Hall, ran into and
  against the automobile in which said deceased persons were
  riding, killing them, as alleged in the complaint.
    "(e) That at the time and place, the defendant and third
  party plaintiff, W. E. Hall, was operating said truck-tractor
  and trailer in a normal manner in the exercise of ordinary
  care, and that the collision of said trailer with the
  automobile aforesaid was not in any manner caused by any act
  of negligence on the part of said W. E. Hall or of his
  employer, Arkansas-Best Freight System, Inc., but the
  collision aforesaid and the deaths of said persons was caused
  wholly, solely and proximately by the negligence of the third
  party defendant, Fruehauf Trailer Company, as hereinabove
  alleged, and that therefore, the said third party defendant,
  Fruehauf Trailer Company, is liable to plaintiffs for all of
  the claims asserted by plaintiffs against the defendants,
  Arkansas-Best Freight System, Inc. and W. E. Hall."

The prayer of the third party complaint is that any judgment for damages to which the plaintiffs may be entitled should be rendered in their favor against the third party defendant.

On January 27, 1959, the defendants filed their answer to the complaint of the plaintiffs and a "cross-complaint" against the third party defendant, Fruehauf Trailer Company.

In the answer of the defendants they denied that either of them was negligent in any manner as alleged in the complaint, and that the death of the five persons was not caused by any act of negligence on the part of either of the ...


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