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SUNDAY v. BURK

May 5, 1959

MERRY SUNDAY, PLAINTIFF,
v.
CARL J. BURK AND FRANK PHILLIPS PRODUCE CO., A CORPORATION, DEFENDANTS, COUNTER-CLAIMANTS AND THIRD PARTY PLAINTIFFS (MERRY SUNDAY, COUNTER-DEFENDANT, E.R. FRANKS, COUNTER-DEFENDANT, THIRD PARTY DEFENDANT, AND COUNTER-CLAIMANT, ESSIE B. FRANKS AND TRADERS AND GENERAL INSURANCE COMPANY, INTERVENORS, MIDWAY TRAILER MANUFACTURING CO., INTERVENOR).



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

  Statement

The complaint herein was originally filed January 9, 1959, by Merry Sunday in the Circuit Court for Hot Spring County, Arkansas, against the defendants, Carl J. Burk and Frank Phillips Produce Company, hereafter referred to as Burk and Phillips. The complaint alleged that Burk was an employee of Phillips, and in the course of his employment drove a Phillips tractor-trailer into an automobile in which Merry Sunday was riding. The complaint stated several allegations of negligence and prayed damages in the sum of $10,000.

The defendants, Burk and Phillips, answered, denied any negligence, and counterclaimed against the plaintiff, Merry Sunday, for personal injuries to the defendant Burk and property damage to the Phillips tractor and trailer. Burk and Phillips at the same time filed a third-party complaint against E.R. Franks, in which they alleged that he was the owner of the automobile in which the plaintiff was riding; that he was occupying the vehicle at the time of the collision, and that he was guilty of negligence in failing to direct the plaintiff, Merry Sunday, to stop his vehicle before entering a through highway.

Thereafter E.R. Franks filed his answer to the defendants' third party complaint and a cross-claim against the defendants, in which he alleged that the defendant Burk drove the Phillips tractor-trailer unit into the rear end of his automobile, and that Burk was guilty of negligence in failing to maintain a proper lookout, in driving at an excessive rate of speed, in failing to apply his brakes, and in failing to keep his truck under proper control.

With the pleadings in this state, the plaintiff, Merry Sunday, filed an amendment to her complaint in the Circuit Court of Hot Spring County, in which she alleged damages in the sum of $100,000. The defendants, Burk and Phillips, thereupon removed the case to this court.

Thereafter Essie B. Franks and Traders and General Insurance Company were permitted to file an intervention in which they alleged that Essie B. Franks was the sole owner of the automobile, that the same had been repaired at a total cost of $807.93, $100 of which had been paid by Essie B. Franks and $707.93 of which had been paid by the Traders and General Insurance Company under a policy of collision insurance. The intervenors alleged that the defendants, Burk and Phillips, were guilty of negligence and prayed damages in the sum of $807.93.

The Midway Trailer Manufacturing Company was permitted to file an intervention in which it alleged that it was the owner of a Chevrolet tractor, which was properly parked near the point of impact and which was damaged in the sum of $3,261 as a result of being struck by the Phillips tractor-trailer unit. It further alleged that the defendants, Burk and Phillips, the plaintiff, Merry Sunday, and the cross-claimant, E.R. Franks, were guilty of negligence which proximately caused the collision and its damages.

Following the filing of the interventions, the defendants, Burk and Phillips, concluded a settlement with the plaintiff, Merry Sunday, and upon stipulation of the parties all claims between Merry Sunday and Burk and Phillips were dismissed with prejudice. For convenience E.R. Franks will be denominated as cross-claimant and Burk and Phillips as cross-defendants.

On April 22, 1959, the claims of the cross-claimant, E.R. Franks, and the cross-defendants, Burk and Phillips, along with the interventions were tried to the court.

The parties stipulated that the intervenors' damages were as set forth in their respective interventions.

Following the conclusion of all the testimony, the court heard oral arguments for each party, and the case was submitted and taken under consideration. The court has considered all the testimony and the exhibits thereto, and now makes and files its formal Findings of Fact and Conclusions of Law.

Findings of Fact

1.

The cross-claimant, E.R. Franks, is a citizen of Texas, residing in the City of Houston. The cross-defendant, Frank Phillips Produce Company, is a Tennessee corporation with its principal place of business in Memphis, Tennessee, and is authorized to do business in the State of Arkansas. The cross-defendant, Carl J. Burk, is a citizen of Tennessee, residing in the City of Memphis. The amount in controversy is in excess of $10,000.

2.

On the morning of December 23, 1958, E.R. Franks and Merry Sunday were the sole occupants of a 1957 Plymouth automobile owned by Franks' wife, Essie B. Franks, who was not present. Franks was driving the vehicle from the Oaks Tourist Court with the intention of driving north on U.S. Highway 67 from the private driveway of the Oaks Court. The tourist court is situated approximately one and one-half miles south of Malvern, Arkansas, on the east side and some distance back from Highway 67. Highway 67 is a main traveled U.S. Highway, and in that vicinity runs generally in a north and south direction. The private driveway leading to and from the Oaks Court runs east and west and intersects the highway at a right angle.

Franks, driving his wife's automobile, proceeded from the court along the private driveway in a westerly direction toward Highway 67, and when he reached the intersection turned right or north, intending to drive toward Little Rock. At the same time the tractor and trailer owned by the defendant Phillips and driven by the defendant Burk was approaching from the south on Highway 67 but had not reached the intersection with the driveway to the Oaks Court. Shortly after Franks made his right ...


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