*1 Teasley In the case the court found the widow had rights. waived her Such not the case here. prompted parents

What of the deceased to at- part tempt disproportionate meager to commit a of this estate to the burial of I their son do not know. But be may, they seeking itas were to commit a fund which power was not in their It seems clear to me commit. though appellee that even knew that the widow was place on her to its of business to make the funeral arrangements, nevertheless elected to contract with the parents regarded good. of the deceased whose credit it parents opinion, my were at deceased, best but officious volunteers who contracted a debt which they should now be made to assume. opinion strongly

I am case should respect- reversed and dismissed and for that I reason fully majority dissent from the view. J., joins

I am authorized to that Robinson, state this dissent.

Henshaw Henderson. 5-2467 359 S. W. 2d 436

Opinion May delivered 1962. [Rehearing September 10, 1962.] denied *2 appel Turner, Otis H. McMillan & McMillan & lant. appellee. Wiley Smith,

&Cole Scott and Early in the Associate Justice. Bohlinger, Neill appellant, evening April Wilburn the Joe 25, 1960, apartment at of Miss Sarah Over- Henshaw, called the Springs City intention of Hot turf in with accompany having for an automobile turf him Miss-Over ride. apartment

Sharing was Miss with Miss Overturf Peggy to be did not wish Miss Henderson Henderson. apartment that she left and it was decided alone in accompany appellant and Miss Overturf. would appellant’s parties, new Chevrolet These three Springs up Hot drove Central Avenue convertible, appel- At Tavern toward race track. Truman’s got out came lant out and went himself and ato He out Golf Links Road can of beer. then drove planned they meet would tourist court it had been where appellant couple both the married who were friends of couple it and Miss Overturf but was found not in. shortly the time before, at that time or

Either suggested they drive would it was immaterial, young Peggy get Henderson’s man of Miss Malvern acquaintance evening. her for the who escort appears Upon leaving that the car the tourist court Plymouth progressed when it struck a short distance impact pavement. in- parked near the automobile flicted minor left damage rear of the Plymouth automobile. point

At appellant, car, as driver of the seems to have lost control of the vehicle which partly skidded across the road in a left-hand direction and trav- eled about 190 feet where it tree. large struck oak Either at the point impact or thereto shortly prior two ladies were thrown from the car young force of the impact was such that the Chevrolet convertible was wrecked and Miss Hender- subsequently caught fire. son died aas result of the Henderson, accident D. C. as special administrator of the estate of Hender- Peggy *3 son, this action in brought the Circuit Court of Hot Spring to recover for the County damages wrongful (cid:127) death of Miss Henderson.

The case was tried before a which returned duly jury a verdict $1,750.00 of Henderson; for the estate of Peggy the sum of $2,500.00 for Mrs. and Henderson; D. C. $2,500.00 for D. C. the Hendersons the Henderson, being of kin of the deceased. next

Judgment was to that judg- entered and reverse duly ment the appellant brings appeal.

The record clearly establishes both Miss Over- and turf Miss Henderson were guests in the car driven the by appellant. Therefore the of allegations appel the lee must be in viewed the of our light guest statute. Our guest Ark. statute, Stats. 75-913 also [75-915], is as follows:

“ Action by guest prohibited except in case of wilful negligence. person transported a guest as in any —No automotive vehicle the upon in public highways or air- craft flown in the being or while air, the upon ground, shall have cause of action the against owner or opera- tor of such or on vehicle, of aircraft, damage accbunt any death or injury, loss occasioned the operation of such automotive or vehicle aircraft unless such vehicle or aircraft was and wantonly operated in disre- wilfully gard rights the 1, others. No. 1935, 61, [Acts § Pope’s Dig., p. No. 1955, § 1, Acts § 1302; 175, 135; ” p. 406.] guests establishing in the case of In rule Tingle, we 2d 239, 449, v. 232 Ark. S. W. Simms said: determining general the status of rule for

“The transportation passenger is that if automobile operation only carriage a benefit its confers or direct person given is the ride benefits whom on compan- hospitality, as are incidental to other than such person extending ionship, upon invi- or the like, (Ark. passenger guest within the statutes is tation, 75-915), carriage tends but if § 75-913 Stats. promotion passenger the mutual interests of both the if car- benefit, the driver for their common or primarily objective riage attainment some passenger guest. purpose operator, is not or George, 195 Ark. 2d 30.” Ward S. W. being guests, it that of must estab- status appellant operated the automobile in

lished that the rights disregard wilful wanton manner in others. *4 negligence

In order wilful establish and- to. wanton presented part appellee appellant, the has. some on the of regard drinking by appellant testimony in to heer the speed appellant testimony the at which the and operated jury’s the automobile. These are matters for his on a retrial of this cause since we find consideration present and on cause be reversed error which must necessary go not further into hence we do find the points presented. thus appellee pre- appears that the

It from the record trooper a the Arkan- as a Minton, sented witness Glen expert presented as an Minton was Police. Mr. sas State years with Police. with thirteen service the State permitted objec- testify, Minton was over Mr. appellant, to the scene of of that he was called tion shortly after it occurred.. He described accident position Plymouth and the of the automobile detail point girls the two were convertible; Chevrolet where position appellant and the who was uncon- found; of per- on the front seat of his car and was further scious testify morning that mitted on the the trial he had stop his taken from dead car, Chevrolet, possible as fast as accelerated two-tenths of mile being [this motel loca- the distance between the and the struck] Plymouth that was that he at- tion speed per hour; tained 75 miles that it one of requirements position of his to estimate the viewing in a vehicles involved collision that the dis- out tance Chevrolet convertible was of control and severity impact, thought he the Chevrolet traveling per convertible miles hour.

Appellant objected properly to this testi- line of mony. expert opinion There is need to resort to in the beyond absence of evidence to that it indicate jury’s ability to understand the facts and draw its own conclusion. Conway Hudspeth,

In the ease of v. 229 Ark. 735, 137, 318 S.W. 2d we said: agree appellants’

“We do not with the contention proffered testimony opin was admissible as the expert. ion of It has been said the courts look upon attempts with disfavor to reconstruct traffic acci expert testimony, owing impos dents means to the sibility establishing certainty many factors that must be taken into consideration. Moniz Betten App. court, 24 Cal. 2nd 76 P. 2d 535. In the case at every physical hand officer was not asked to describe explain fact he had seen and then to his deductions, experts explain manner ballistic often their weapon conclusion that a certain fired certain bullet. *5 opinion Here the officer was asked his on the basis of position damage of the vehicles, the to them, ‘and physical other evidence at found the scene.’ In the ab anything of beyond sence to inicdate that it was jurors’ ability to understand the facts and draw their expert to resort to was need conclusions, there own Barry, opinion. Ark. R. Mo. Co. Pac. 942.”

S.W. a car other than test was made with The witness’ showing is no accident and there involved in the the one conditions that under the same his test was made place prevailed at accident. at the time and expert great policeman testimony of carries The predicated weight different on conditions but when it is scrutiny it is inadmissible. than those under appellant timely objection should The overruling objec- For error in sustained. have been for cause reversed remanded further tion this proceedings not inconsistent herewith. C. JJ., J., &

Harris, Robinson, dissent. Smith (Dissenting). Justice Chief While Harris, Carleton every family sympathy I the unfortunate have young lady am who killed in I forced accident, holding Majority, I think this dissent to the prior holding the law as emasculates set out numerous holdings Majority say jury of this Court. question because combination of evi- made dence relative and intoxication. Let us examine first the evidence as to intoxication.

(1) Henshaw himself testified that he had two cans part early at after- noon; of beer one can portion picked up of a can after he his date noon, night. (2) (now Ashley) testified that Sarah Overturf get she could smell alcohol when he came to her for leaving premises go to the she her car, date. On part “He kinda stumbled once.” He drank stated, can of beer after she was with him. arranged

(3) Hughes, Mrs. Delbert who the date with him to her for Henshaw with Miss went Overturf, p. apartment or 6 testified that she no- about 5:30 m., nothing any- nor ticed unusual about he walked, *6 136

thing different about the he handled the automobile driving, nothing while smelled on his breath while with him.

(4) trooper Glen Arkansas Minton, State who went the scene Police, accident, testified that he could smell alcohol on but breath, Henshaw’s indicating had a “sour” smell, the alcohol been had consumed sometime than before, rather re- cently.1

No one was testified Henshaw intoxicated. speed.

Let us next examine’the evidence relative to (1) Dayton Thornton, who was the mechanic, only eye traveling highway in his car witness, family. with his wife and Thornton Mr. observed speed entire and estimated the occurrence, of Henshaw’s mph.; automobile to somewhat between 50 65 he say exceeding mph. would the car was not (2) Glen Minton, mentioned, heretofore who did subsequently not observe the but accident, called to appellant’s' speed mph. scene, estimated at 80 This based, estimate was as stated, he “on the distance that ” severity impact. car out of control (The holding Majority testimony inadmissible, holding, thoroughly agree.) with which I (3) speed, Miss did Overturf never estimate the only saying going very the car was fast.

(4) driving Henshaw testified that he was not in mph. excess 55of speed. testimony was all

This relative to evidence, I do . not think that the aforementioned strongest competent intoxication, establishes and the evi- per dence was 65 miles hour. course, Of explained experience arresting peo The officer that from his intoxicated, ple who were he had learned there was a difference in the and when the taken, a fresh had smell drinks the breath when drink been period had been taken over a of time. He stated a fresh drink though container, out of smelled stance, fresh while in the latter in , the breath becomes soured. . we that in numerous have said order to sustain a cases, recovery negligence under the Guest must Statute,, greater degree gross negligence; be of even than it must *7 be willful or wanton. 204 Jffers, 401, Edwards v. Ark. damages In a 162 S. W. 2d 472. an award of to case, guest by was reversed this cause of Court,-and.the action passenger dismissed. Mrs. in the Jeffers, Edwards injured rapidly was when ear, the ear traveled too around curve and overturned. There was evidence traveling speed automobile was at 70 to 80 miles per hour. There was even evidence Mrs. Jeffers protested two or times three to Mrs. Edwards about the speed being rate of at which the driven. This car. negligence Court said that no willful and wanton purely speed. established. This case involved a matter of In Lewis v. Co., Chitwood Motor 196 86, S. W. Ark. 2d 1072, Court said that if a driver is under the liquor influence of to such an extent as to him make incompetent and such driver, intoxicated condition con- complained injuries guest, by tributes to the still, recovery passenger by there can nobe if the or knew, ordinary exercise of care should have known, liquor, driver under- the influence of but not with- standing knowledge, such with rode him. In one of our more recent cases, Poole v. James, 231 810, Ark. guest operated S. W. 2d in a car James insti- damages, following tuted suit a directed verdict appealed. for the defendant trial This court, quoting Cyclopedia Court, from Blashfield’s of Automo- bile Law and said: Practice, dangerous,

“Where the road becomes or the passenger guest riding of the machine in which or is becomes excessive or or unlawful, the driver is otherwise ought careless or reckless in his conduct, and this is or to passenger, duty, be known to the he is under the ordinary protect injury, exercise of to care, himself from danger, to against caution the driver remonstrate dangerous it, ing unless the and, character of the surround- dangerous operation or conditions manner of is grave potentiality altered such a as to lessen the quit may safely the car if that or to harm, done, request stop the driver to when has vehicle, and, stopped, get out of the car.” the facts in not course, Of these eases are identical with principle just the facts in the instant case, law, but the exactly the same. Let us review the evi enunciated, dence in the case before us to determine whether guests in with him Henshaw’s car remonstrated about speed, opportunity quit his or had the the car. In the place, first if Henshaw was intoxicated when he went to apartment, girls (and should) the Overturf could go have Miss testified refused him. Overturf that she smelled and he “kinda stumbled once” alcohol, (though say she did not this was because of intoxication, *8 people completely and have been known to stumble when sober). In she testified that she Henshaw walk fact, saw ing, apartment, and with him in talked and she was go go not afraid to with and Miss him, him. She did upon going insisted also. Miss Over- Also, Henderson turf testified she had been around Henshaw once since him accident, and had heard and she observed talk, speech no difference in his on the occasion latter and night accident. testified that Henshaw She Springs driving started out in Hot and had to fast, ‘‘ ’’ squeal keep hitting his brakes to from a car in front light; eyes at a of them red she closed her thereafter, they until scared, because she was reached Truman’s pur got out went in and Tavern, where Henshaw and car chased the can of beer heretofore mentioned. The parked girls both minutes, there for several and they opportunity quit had a clear to the car; instead, tourist, they and drove to the court where were remained, (cid:127) couple. Again, to meet a married Miss testified Overturf eyes they until reached their destina she closed her stopped minutes, also, tion. the car was for several Here, quit girls opportunity to the car. both had a second and requested leaving they Henshaw to drive to it, Instead of pick up boy and friend, to Miss Henderson’s Malvern purpose driving where Malvern, toward this was the During all this from the time, occurred. the accident period leaving apartment until the accident oc single protest curred, no one made a to Henshaw about speed, purchased; his or the can that he of beer had nor girls request go did either home. Likewise, Miss Overturf driving there testified difference in his stop (the court),

from the last made tourist previous driving. the scene of the “It his accident, only was about the same.” She testified time anything driving was said about his was between Tru man’s Tavern and the tourist when him court, she told blowing (they riding her scarf off were in convert ible), put and he slowed down for her to it back on. She nothing stated he did he indicate would not have requested slowed down had he been do so. Under the principles of law heretofore set I am out, convinced that judgment should reversed, cause dis missed. respectfully

I therefore dissent. join George in this JJ., Smith Robinson, Rose dissent.

Davis v. Kukar, Adm’x. 5-2612 357 S. W. 2d 275

Opinion May delivered 21, 1962.