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