*1 453 Davis and Mrs. involving Jones, confrontation occurred without Jones, any Canon said Essentially Canon. rock; with Mrs. Davis hit him the head provocation, it. Canon had and denied story, corroborated Canon’s Jones six work days (estimated medical of lost expenses $25.00 — $1,500 $1,000 week.) income of per weight It was for the trial court to determine the cannot credibility say of the witnesses. We finding there no substantial evidence support The amount of both wrong damages, award damages. the trier was a compensatory punitive, question Sisk, 461, v. Ark. 880 (1914). fact. Robertson S.W. awarded an assault where damages Punitive with aforethought. the assault was unwarranted or malice 695, v. Thompson, Collier S.W.2d finding We find no reason to below. legal question any Affirmed. HOMES,
TRANSIT
INC. and
v.
Elgin W. JONES
BELLAMY,
H.
and Grace BELLAMY
Jr.
Daggett, J. Daggett, P. for Donovan appellees. Jesse Purtle, A County jury I. Lee awarded John Justice. $825,000 out of an arising damages and Grace Veterans jury accident. also awarded automobile $95,500 claim subrogation Administration sum of on its as a result of the services rendered for the cost medical Both Bellamy. parties appeal. suffered injuries by John reversal, for dozen points argued by appellant About a error. We will not five alleges points and cross appellant all but we will consider individually set them out here We error and reverse and prejudicial find arguments. for a remand new trial. Homes, a mobile
Transit Inc. contracted to move home driver, Jones, Missouri to Texas. The W. Elgin pulled from mobile 40 between home Interstate along Highway Biscoe, Arkansas. A a mobile wheel from home Brinkley A was found in the traffic lane on 1-40. wheel was lying by Elgin from the mobile home W. missing being pulled The wheel was the same as the other wheels type Jones. underneath mobile home being transported appel- The tire were in lants. and wheel the outside lane *4 The was stopped westbound traffic on 1-40. mobile home on the mile west the the westbound shoulder of road about a and wheel incident tire when this occurred. in westbound 1-40 his specially was Bellamy wife, Grace, him. van with had with his He
equipped riding he was in an injured been classified as a since quadriplegic automobile accident in The van was modified in such 1951. as to to it use of one arm Bellamy by a manner allow steer inserted into a the wheel. first device on steering an when he was about object observed in his lane of traffic it. but 150 feet from At that time he released the accelerator else over what he at did because he intended to nothing pass However, time a tire. perceived to be a retread from it it was a recognized when he was about feet from his wife decision was to him it. His final about and warned wheel the tire and and drive past shoulder right swerve his However, the and when he failed clear object to wheel. it, injured over and the van flipped wheels struck left the surface of At the time of this occurrence appellees. was either wet or damp. highway court of error is first assignment
Appellants’ The tenth and a new grant failed to trial. improperly Therefore, we arguments procedural. also eleventh failed to the three points together. Appellees consider within for a new trial the time motion appellants’ respond a a (b) response by which by requires ARCP 78 provided a ARCP 55 (a) a or motion. opposing pleading respondent to enter a judgment against party court default requires to defend when a for affirmative relief who fails judgment new him. deals with trials against ARCP 59 sought a Section states: “When judgment. (d) amendment affidavits, they a trial is shall be for new based upon motion The shall have 10days with the motion. opposing party filed which which service within to file affidavits opposing after not may period be extended for an additional period .” provisions . . We know of no exceeding days by which would allow a new trial default. precedent does for default and it is Certainly ARCP 59 not such provide for a new the rule which covers grounds procedures in The with discretion exercising trial. trial court charged a new matter of a new trial. To allow trial granting trial in would be to discretion of the default remove the does to motion the matter. ARCP 59 not require response a new Of if affidavits are filed it trial. course then becomes incumbent upon opposing party respond affidavits with and a opposing pleading. also that the trial court erred argue as to liability motion bifurcate trial
denying that a (b) ARCP trial court damages. specifically provides in the This bifurcate issue case. any separate presented v. McDaniel Bros. rule considered the case of Hunter *5 Co., In Const. Hunter S.W.2d 196 discretion of the we held that it was within the specifically the damage trial court from separate liability phase “The of Rule Hunter purpose In we stated: a trial. of phase convenience, delay prejudice, avoid further is to (b) held that absent an of We then justice.” the needs and serve would not the trial court the decision of of discretion abuse the trial court cannot say We appeal. be disturbed in this matter. its discretion abused a in failing grant insist the court erred Appellants notice appeal. after both had filed parties new trial know no We notice was termed cross-appeal. Appellees’ trial a new simply the trial court to requires grant case which The fact both sides notice of give appeal. because appeal” their designated appeal “protective appellees error that harmless such of no ARCP 61 states significance. aside setting in a or order is not ruling grounds as a defect over In at substance form we looking verdict. vacating if happy be most readily appellees can see that would Also, merit were affirmed in toto. there is to some judgment in the We “protective appeal.” of the arguments presented that it was the trial court to fail to grant do not find error for notice of appeal. a new trial because both parties gave relate to for reversal appellants’ arguments Six Therefore, will be discussed. The evidence. these now points here is that first and perhaps strongest argument presented erred in evidence of the condition of the the court admitting in question. mobile home to the occurrence here subsequent be a on the facts as to dispute There seems to considerable with defective whether the mobile home was equipped wheels. Much of the to the relating subsequent in an eviden- condition of the mobile home was contained “all at which it was tiary deposition stipulated are to be time the objections deposition being made at the were taken.” of the mobile home Forty-two photographs Objections taken at new location Texas. introduction of these were not made at the time photographs after of the were made nine months deposition. photos home had been towed the accident after the mobile another 600 or miles from the scene of the accident. not ad- conditions Generally speaking, subsequent missible for the the condition purpose showing of the occurrence. Eudora object or instrument at the time
459 Womack, 74, Motor Ark. 111 530 Company v. 195 S.W.2d is It rule that evidence condition general prior shown condition may by only be evidence of a subsequent the condition has not and where the where changed lapse time was not of sufficient duration to make a material Ellis, McKnight difference. v. 806 S.W.2d 225 282 In the testimony case the present plaintiffs’ expert that all the in the could indicated shown damages photos have occurred after Brinkley accident between Womack, Eudora Motor Co. v. Biscoe. As was stated of the existence of a condition or state supra, “proof present of facts does not raise that the same any presumption or condition facts existed at a date.” this test prior Applying to the facts of this case we do not think it was to admit proper condition must subsequent We also of the proof. dispose appellees’ argument of the at the stipulation parties, taken, time the deposition is and that all controlling objections to the of the relevancy evidence were waived unless objection thereto was made at the time of the Use of deposition. is controlled depositions generally by ARCP ARCP (c) (3) (A) 32. states: “Objections of a witness or to the competency or competency, relevancy materiality of are not testimony waived failure to make by them before or during taking unless deposition, ground objection one which have been might obviated or removed if at presented (Our time.” emphasis.) This rule also states that be objections may made at the time the deposition offered into evidence subject the provisions of ARCP (b). ARCP permits stipu lations regarding It discovery procedures. reads as follows: otherwise,
Unless the court orders the parties may by written stipulation (1) provide depositions may be taken before any person, at time or any place, upon any notice and in any manner and when so taken be may used like any other depositions; (2) modify procedures provided these rules for other by methods of discovery. reporter’s that, *7 All record. Bellamy’s prior driving of
proof
appellee John
of prior
rule is that evidence
the
agree
general
that
parties
proving
for the
of
purpose
accidents
not be introduced
counsel
for
jury,
dire of the
During
voir
negligence.
they
whether
jurors
asked
repeatedly
prospective
appellees
were
drivers
handicapped
notion that
preconceived
had a
point
At one
handicap.
not as safe as drivers without a
asked,
The court
his
record?”
past driving
“What was
juror
“That, sir,
not
of this
selection.”
part
jury
is
responded,
negligence
rule that
acts of
exception
prior
general
is
testimony
is
the opposite
inadmissible
in a case where
that where
side. We have often said
presented by the other
he cannot
testimony
one
introduces
party
incompetent
is
to
evidence
if the
allowed
introduce
complain
party
other
Comm’n.
v.
Highway
directed to the same issue. Ark. State
Pittman,
709,
Evidence
Ark.
Appellants argue an based upon to render an Bentley opinion witness John Bentley’s laid. was where no foundation proper experiment striking avoided was could not have opinion In order wheel circumstances. existing under been have have circumstances it would recreate exact the test the time of of friction at shown the coefficient It is at of the accident. exactly the same as that the time *8 Therefore, the create such a condition. likely impossible to in or tests must rule is that such experiments Arkansas as substantially same conducted under conditions in in issue. at the time of the occurrence conditions existence Henderson, 130, 359 Henshaw v. S.W.2d 436 time of were described The conditions at the this occurrence differently by if various witnesses. It is sufficient the experi sub are which are ments conducted under circumstances Dritt stantially to those at the time of the occurrence. similar Morris, Therefore, we v. 235 Ark. 357 S.W.2d it to that was not allow opinion improper in the con existing and the variances expert’s testimony, ditions were credibility. matters of
It is erred in an allowing also that argued the amount of future expert testify economic to about medical Witness calculated expense. Huntley between range future services would expense hospital $1,560,772.00. $709,371.41 that no The argument this foundation was laid prior proper presentation would Bellamy evidence. Another witness testified that This hospitalization 40% of time. witness ad- require from mitted cross-examination suffered his in the serious illnesses and had much of time many spent in a hospital. past
There does not to be appear any clear-cut testimony any particular amount of the time Bellamy expects spend in the hospital attributable to this occurrence. Appellants had initially objected motion in limine to testimony future regarding and medical hospital expense. Objections were also raised at the trial. It is clear quite that appellants properly objected to this The testimony. testimony in submitted the trial of this case was because a improper proper foundation was not established before the testimony was given. Because the proof presentation of evidence will undoubtedly not be the same on retrial we say cannot that this evidence not be in presented form. proper
The jury permitted view a videotape depicting “day the life of H. Bellamy, it was Naturally Jr.” impossible to separate the injuries from the resulting accident in question and those received The previously. prior injuries were more pronounced in the film than were the ones under consideration. He was á before quadriplegic the accident and had to be lifted from his bed and his chair ‘ very much in the same manner as was done in ‘day life” film. Whether to admit such evidence generally lies within However, the sound discretion of the trial court. due to the special circumstances of this case the prejudicial effect of this evidence obviously its outweighed value. probative
Appellants’
final two arguments question the propriety
of the jury instructions. Appellants contend the trial court
erred in
instructing
jury on sudden
emergency.
court gave AMI 614 as instruction
number
over the
*9
and
general
specific
of
objection
appellants. The primary
objection was on the grounds that there was
of
no evidence
a
sudden emergency. Before a person is entitled
the benefit
to
of
AMI
having
614 given he must have
of
been aware
danger and have perceived the
and acted in
emergency
accordance with the stress caused
If
by the
danger.
instruction is warranted it informs the
that the actor
jury
is
not held to the same judgment
him in
“required of
calmer
and more deliberate moments.” Bardwell v. McLaughlin,
782,
463 in than 2 road less in the the object reach would Bellamy that 55 driving he was testified it. He he observed after seconds he that to him and visible became when the tire m.p.h. blocking a vehicle found his left but to pulling thought tried and control the cruise then disengaged He change. lane speedy where He as in a position what to do. to decide in this from the facts say made. We cannot had to be decision emergency. with a sudden that he was not confronted instruction. of this in the giving find no error We an element expenses future medical The matter of number instruction By Bellamy’s damages disputed. John instructed, things, other among 2201) the (AMI jury 26 value the present be allowed to recover should Bellamy care, The Veterans services. treatment and future medical to 42 in the case pursuant intervened Administration had future medical cost of both past for the U.S.C. § However, apparently Administration the Veterans services. It was future services. for the cost of abandoned its claim It has $95,000 services. medical for the cost of past awarded the government that when held in other jurisdictions been bemay the damages in such a case remedy to its pursue fails Patterson, S. W.2d Arvin v. plaintiff. recovered Talbot, App. Ga. Whitaker v. 1968); Civ. (Tx. App., Therefore, retrial if the upon S.E.2d subrogation its does not pursue Administration Veterans this instruction. it will again proper give claim court that the 1) and argue: The appellees cross-appeal a photograph excluded from evidence improperly home; 2) that affixed to the side of the mobile decal liability; 3) issue of on the erred to direct a verdict refusing 611; that it 4) AMI refused to give court improperly California; 5) made videotape was error to admit a for the credit the court erred in giving in aid attendance. given allotment instance, the decal concerning In the first for the purpose home was relevant the mobile affixed no We see in relation to other matters. the home identifying retrial should be excluded. Upon this evidence why reason should be admitted. this evidence
464 correctly
The facts of the show that the court clearly The for a directed verdict. appellees’ overruled motion wheel tire belonged refused to admit that the to the unit which were they Neither the moving. legislature nor this court has adopted theory of strict in liability Therefore, case of this nature. strict liability inapplicable on retrial of this case. The mere of an accident happening not conclusive of liability part even in anyone strict liability context. this is a Again, matter which will probably not be in presented the same manner on retrial. As in presented the original trial there were questions fact to be decided It was not jury. error to refuse to direct a verdict.
The court refused to AMI 611 concerns the give which doctrine of res ipsa This court has held loquitur. frequently in order for res must ipsa apply, plaintiff be free White, 627, from negligence. Moon Distributors v. Ark. S.W.2d doctrine should be where applied the evidence shows that the defendant alone was in control Therefore, of the object the loss. we think the causing in evidence was such a state that the court properly exercised its discretion in AMI refusing 611. give
As to the appellants’ we have videotape, partially discussed this matter in We addressed preceding paragraphs. Co., same of evidence Carr v. Suzuki Motor type stated, we “It S.W.2d There is well settled that when a test or is an to re- experiment attempt enact the essential original happening, elements experiment must be similar substantially to those at existing the time of the accident. . . it was not [A]lthough necessary that conditions of an experiment identical to those occurrence, at existing time of the there must be a substantial similarity, likely the variation must not be confuse and mislead the jury.” Admittedly the circum- stances the test surrounding duplicated, they were not but were so close that the trial court exercised its properly discretion to be introduced. permitting videotape We do not think the court erred in allowing appellants $1,257.00 credit which Administration the Veterans in aid paying Bellamy and attendance This expenses.
465 under here to the occurrence prior sum was being paid on received It is not income being consideration. collateral here in the accident injuries received account aas to paid If this amount was being question. occurrence, have it would in this result of received injuries Amos, Adm’x rule. See our source to collateral subject been 1100, Salmon, Ark. 482 S.W.2d v. & Stroud reversed and remanded the reasons the case is For stated in manner not inconsistent with to the retry directions with this opinion. and
Reversed remanded. J.,
Hickman, not participating.
Hays, J., dissents. being case is This Justice, dissenting. Hays,
Steele evidentiary rulings for entirely remanded a second trial reversal. collectively neither warrant which nor individually had the was tried the appellants The case fairly with on an present footing their opportunity proof equal system the the Thus the appellees. county litigants, no of a trial to itself are the burden second being put heavy verdict. proof fully real purpose, supports of evidence recognized admissibility We have best, is a an at of evidence relevancy inexact science that the discretion, very subject only matter the trial court’s Hamblin discretionary limited review applicable rulings. State, it v. Even when S.W.2d can the trial was incorrect technically be said if we it is only reversible admitting excluding were can determine on one appeal rights party Evid. 103. affected Unif. R. such evidence. substantially by to that None of the three on for reversal rise points relied level.
It the underparts is said that evidence of the condition of the collision of the mobile home nine months after some not lost been show the was should not have received to wheel In first but due to unavoidably, appellant’s negligence. home the mobile the conditions described beneath place, altered materially were not the kind that would be distance, in a far the trial judge of time or passage this whether better than we are to determine position In second place, evidence should have been allowed. argument no answer at all to majority gives appellees’ evidentiary should when objected have *12 of the whom this was offered deposition by proof witness that.all objections was taken under a written stipulation The record supports would be stated during deposition. had assertion this was the and appellees’ stipulation that have made timely objection, appellees might been able to show later conditions were unchanged that the accident, from time of were entitled to they at least if that under even this opportunity Finally, the stipulation. excluded, it, is as the outcome is not dependent there was no of from could jury which shortage proof reasonably infer that the wheel was lost fault alone. through
n Another evidentiary charged error wrongfully H. trial court involves a videotape showing John who trial. The film is Bellamy, Jr., was unable to attend the over just twenty except minutes with no audio long, It in a Bellamy conversation. shows background lying John brushed, by bed his teeth shaved an hospital having being lifted a orderly finally placed by a harness be being mechanical device from his bed into a wheelchair. Each these events would have been if verbally admissible is described at the trial and the use of this of evidence type matter for trial court’s discretion. Appellants’ arguments that this evidence Bellamy’s prior physical condition render believe, inadmissible I go to rather than weight, film, admissibility. Whatever of the it said it essentially innocuous no stretch of can by reasoning be labelled substantially Certainly its prejudicial. reception does not warrant a reversal.
Next, that an majority expert concludes economic should not have been future allowed to estimate the cost of witness, services. The Pat based his hospital Huntley, estimates on the McGlamery of Dr. that testimony Roy John Bellamy would require hospitalization forty percent time. lay submit failed to Appellants appellees proper foundation for this evidence what by establishing part such hospitalization would be attributable pre-existing conditions of the But testified that appellee. Bellamy Grace Bellamy’s general health before the accident was good, John cold; but for an occasional he one hospitalized or two weeks each year for an annual and it is checkup, clear that, from Dr. McGlamery’s testimony unlike others with a similar did not handicap, Bellamy require hospitali- John zation. The trial court heard the its testimony entirety, whereas we see it it is only abstracted far portions from clear that this which was offered testimony, only an consideration, estimate for the jury’s should not have been admitted. I would not so reverse on slender a ground.
It is not clear whether the would reverse on two majority contention, other points of i.e. the record of prior driving Bellamy and the exclusion of as to proffered testimony the side effects of medications taken being at the time of the accident. The weakness of the latter proof *13 ’ the side effects were admittedly there only “possible’ was no attempt show that ill Bellamy experienced any of the effects which sometimes these accompany medications. As to the driving history, appellant concedes proof such not collision, competent to show in a negligence latter but urges that appellees opened the door for this proof. argument - - is wholly without substance neither the trial judge’s dire, comment on voir nor the remark of a witness for “some handicapped are better than persons average drivers because they aware of their deficiencies for it” compensate were of any real consequence, certainly insufficient grounds for retrial. Minor incidents of this sort intersperse almost all trials of any length complexity and the trial court is a far better judge of the impact such things.
Giving appellants’ all arguments possible there weight, is no sound basis for concluding that appellants’ case was substantially to their prejudice required by affected rule cited above. notes following ARCP state “[sjhould agreements hand, of counsel out get the has the power under Rule to overrule or reject Therefore, any of counsel. agreement any stipulation by in this area corrected may which arise problems the court on case basis.” refusing permit court erred Appellants argue