author: Carleton Harris, Chief Justice. Ed. F. McFaddin, Associate Justice,

text:
    Kapp v. Sullivan Chevrolet Co.
    5-2384
    353 S. W. 2d 5
    Opinion delivered January 8, 1962.
    [Rehearing denied February 12, 1962.]

      Roy <& Roy, for appellant.

      Reid S Burge; Frierson, Walker & Snellgrove, for appellee.
   Carleton Harris, Chief Justice.

This is an action for damages for personal injuries allegedly resulting from the breaking of the webbing of the passenger’s seat belt worn by Mrs. C. W. Kapp at the time of a motor vehicle collision which occurred on highway 66 near Amarillo, Texas, on October 12, 1957. Mrs. Kapp was a passenger in a 1954 Oldsmobile, operated by her husband, C. W. Kapp, and owned by the Blytheville Water Company. The Kapp’s vehicle collided with a 1956 Ford driven by Mrs. Robert Morales. The Morales car evidently skidded on a slick highway and crashed into the Oldsmobile. A third automobile, driven by James T. Arnold, which was following behind the Morales car, then hit the latter automobile. Two passengers were thrown from the Morales car and killed, and the Kapps received extensive and painful injuries. Mrs. Kapp’s head hit the dashboard, and she suffered severe injuries, mainly about the head and face, including the loss of most of her upper and lower teeth, and related jawbone. Suit was instituted in tort under negligence theories of product liability, by the Kapps against Sullivan Chevrolet Company of Blytheville, from which company the seat belt in question was purchased. The purchase was made by the Blytheville Water Company, employer of Mr. Kapp, and installed on the Kapp’s Oldsmobile by Sullivan in December, 1956. Sullivan filed a third party complaint against General Motors Corporation, from which it acquired the seat belt, as a joint tortfeasor. The complaint against Sullivan alleged the liability of that defendant under the doctrine of res ipsa loquitur, and specific negligence, inter alia, as follows: insufficient webbing strength and inadequate webbing durability, improper installation, inspection, and failure to properly instruct Kapp in the use of the belt. It was further alleged that the quality of the seat belt was misrepresented, and that promotional advertising materials circulated by the company had motivated appellants’ decision to purchase these particular belts; that the belts were not as represented. After the court, over the objections of appellants, permitted the third party complaint to be instituted against General Motors, the Kapps amended their complaint to charge the third party defendant with certain acts of negligence. After also alleging that the doctrine of res ipsa loquitur applied against this appellee, appellants, inter alia, alleged specific negligence a follows:

(a) The General Motors belt did not possess sufficient webbing strength to properly withstand the impact stress of automobile collisions;

(b) The belt and webbing material was not sufficiently durable to withstand ordinary wear, tear, and deterioration for a reasonable period of time. General Motors was further negligent by

(c) failing to design a crashworthy automobile seat belt or to specify or require suitable materials therein;

(d) selecting Davis as its supplier and failing to specify and require proper webbing tests by supplier and to supervise such tests;

(e) failing to itself properly test the product;

(f) selecting Sullivan Chevrolet as its distributor and installer of seat belts in the Blytheville community; Sullivan Chevrolet was not properly qualified nor equipped to discharge that function;

(g) failing to train Sullivan’s workmen or to require training of that dealer’s workmen to (1) detect flaws or weaknesses in seat belt webbing or (2) to properly install or test the belts when installation was complete, and

(h) failing to warn or inform the public of the limitations in safety or strength of the General Motors Corporation — Davis belts, or to mark or label the belts in that respect.

After the filing of several amendments, and answers thereto denying liability, the taking of discovery depositions, requests for admissions, and numerous motions, the case proceeded to trial on June 20, 1960, and continued until June 24th. At the close of all the evidence, the Sullivan Chevrolet Company and General Motors Corporation separately moved for directed verdicts, and the court granted these motions. From the judgment so entered, appellants bring this appeal.

The record in this case is voluminous; in fact, it is one of the largest transcripts ever filed in this Court. We think it well to state at the outset, that after close study of the allegations and the proof, we agree with the trial court that any verdict rendered for appellants, would necessarily be based on conjecture and speculation, and we have accordingly concluded that the evidence was insufficient to sustain a verdict against either General Motors or Sullivan Chevrolet Company. The basis for this conclusion will be hereafter discussed. In the meantime, we proceed to a discussion of some of the particular points urged by appellants as grounds for reversal.

First, appellants contend that the doctrine of res ipsa loquitur applies, and the case should have been submitted to the jury under that doctrine. Numerous pages in the brief are devoted to this argument, but we cannot agree with appellants, for all the elements necessary to permit application of the doctrine are not present. Among essential requirements are superior knowledge on the part of defendant as to the cause of the accident, the absence or unavailability of direct evidence of negligence, the existence of a sufficient duty on the part of defendant to use due care, and the accident must be caused by cm agency or instrumentality within defendant’s exclusive control. In 37 Words and Phrases, Res Ipsa Loquitur, page 488, paragraph 5, we find:

“The mere happening of accident does not justify recourse to ‘res ipsa loquitur’ rule in personal injury suit, but accident must further appear to be without explanation in light of ordinary experience, except on theory of defendant’s negligence to render rule applicable. ’ ’

In Bouvier’s Law Dictionary, Vol. II, p. 2908, appears the following:

“When the thing is shown to be under the management of the defendant or his servants, and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendant, that the accident arose from want of care.”

Further:

“The doctrine is that when a thing which causes injury without fault of the person injured, is shown to be under the exclusive control of defendant and would not cause the damage in ordinary course if the party in control used proper care, it affords reasonable evidence, in the absence of an explanation, that the injury arose from defendant’s want of care.”

In the instant case, we agree there was a duty on the part of each defendant to respectively use due care in the manufacture and inspection of the seat belt, and the installation of same in the Kapps’ automobile. Likewise, we agree as to the unavailability of direct evidence of negligence on the part of the company. To trace the particular history of the belt in question is impossible. The seat belts sold by General Motors, including this one, were neither numbered nor dated, and of course, proof of specific acts of negligence in the manufacture of the belt cannot be made. But we cannot say that the mere fact the belt broke shows it was defective, for in the first place, the proof reflects that no safety belt can withstand too great a stress upon it, and though this were not so, still an essential element for the application of the doctrine is missing, for this belt was not under the exclusive control of defendants. The proof reflects that the belt had been installed in the Oldsmobile and used for a period of approximately ten months before the collision in which it broke. During this period of time, it was used and controlled by appellants. Like any other article, a seat belt is subject to misuse, i.e., it can be weakened, for instance, among other things, by closing a door on it. Whether this particular belt was weakened by misuse, as far as the doctrine of res ipsa is concerned, is beside the point; the fact remains that the instrumentality allegedly causing the injury was not under the exclusive control of either appellee for the ten months’ period,. This precludes the application of the doctrine. Though we do not find it necessary to go so far in determining this case, it is interesting to note that the Supreme Court of Nebraska, by unanimous opinion, in the case of Sleezer v. Lang, 102 N. W. 2d 435, held that “a safety belt is not such a piece of equipment that the doctrine of res ipsa loquitur applies thereto in case it breaks.”

Appellants contend that they were prejudiced by the action of the court in permitting General Motors to be made a third party defendant by Sullivan. This contention is discussed rather at length, but we do not agree. It is true that General Motors was not a necessary or indispensable party as far as Kapp’s action against Sullivan was concerned, but under the allegations of Sullivan ’s third party complaint, the latter was entitled, under the Uniform Contribution Among Tortfeasors Act (Ark. Stats. Anno., § 34-1001) to join General Motors as a third party defendant. Of course, one of the primary purposes of the Act is to prevent the multiplicity of suits. Appellants’ principal allegation of prejudice was that the third party proceedings prevented a consolidation of the separate negligence and warranty actions brought by appellants against Sullivan. However, the record reflects that appellants subsequently withdrew the motion to consolidate. At any rate, it is admitted that Sullivan might well have a right of action over and against General Motors, and we have held that the invoking of the remedy afforded by the Act is discretionary with the trial court. We are unable to say that the court here abused its discretion in permitting the third party complaint to be filed.

Appellants complain that they were not permitted to present evidence as to appellees’ tort of negligent misrepresentation through advertising, and error was thereby committed by the court. We very quickly reject this contention. In the first place, none of the excluded advertising specifically referred to seat belts, and no representation concerning seat belts is found in such advertising. Eather, in general, the advertising deals with the automobiles sold by General Motors, such as an advertisement in Life magazine captioned, “General Motors Leads the Way”- — “General Motors Products are Known and Trusted Around the World — -Wherever Wheels Turn and Propellers Spin” — “The New 1956 General Motors Cars Are Way Out in Front in Performance and Safety.” Certain advertising by Sullivan, appearing in the Blytheville Courier News, was offered, such, as “We’ve Got the Know How . . . Factory-Trained Mechanics . . . Experts . . . Factory-Approved Methods” — “The Leaders in Quality Service.” The only reference to seat belts in any of the advertising is purely a mention in a few ads that seat belts can be obtained as optional equipment, but there is no representation at all as to the quality or performance of the seat belts.

In addition, the evidence reflects that Kapp did not rely upon any representations made through advertising in purchasing the belts from Sullivan Chevrolet Company. He simply stated that he purchased the belts because the president of his company instructed him to do so. Kapp apparently selected Sullivan because he had already been doing business there, and was well acquainted with the foreman of the shop.

Appellants next complain that their rights to the use of discovery were abridged. To consider each alleged grievance would constitute an opinion in itself, for more than an entire volume of the transcript relates to motions, discovery interrogatories, requests for admissions, and related pleadings. Offhand, it would appear that discovery procedures were utilized, at least, as fully in this case as in any to ever be filed before the Court. In December, 1958, appellants took the discovery deposition of Charles M. Love, claims adjuster for U. S. F. & G. Insurance Company. This company carried the liability insurance on the Oldsmobile driven by Kapp, and likewise had issued a liability policy covering liability of Sullivan Chevrolet Company for any negligence in connection with the operation of its shop. In January, 1959, motions were filed for the production and inspection of certain documents, which apparently were complied with. In the following April, appellants took the discovery deposition of all employees of Sullivan Chevrolet Company who were connected with the seat belt sale or installation. In the same month, interrogatories were directed to General Motors Corporation under the discovery act. In May, a motion was directed to Sullivan Chevrolet to require the production for inspection and copying of the various investigative files of the liability insurance carrier. An order was entered by the court directing Sullivan to produce for appellants all signed or court reporter statements of witnesses, and memoranda made of the testimony of other witnesses, interviewed in the original investigation made in Texas following the accident. The Kapps complain that this last did not go far enough in that appellants were seeking access to the original reports made by the carrier. Quite a lengthy argument is directed to this point, but we find no prejudicial error. For one thing, there is no showing that the court’s order did not give access to all the statements and memoranda contained in the original investigation file. While it is not entirely clear, appellants are apparently complaining that the comment of investigators and correspondence with attorneys was omitted from the order. Appellants say that the information was necessary in regard to ‘ ‘ the measurements, the facts of the accident, explanation, and other pertinent data.” It is quite difficult to determine the definite information sought by appellants, — or the use to be made of same, — or why the information furnished was inadequate. Without discussing the propriety of the request, let it be said that it definitely appears from the evidence introduced by appellants at the trial, relative to the manner in which the accident occurred, that the information sought was obtained, either from the statements and memoranda made available by the court order, or from other sources. In other words, there was no showing of prejudice.

Discovery interrogatories were served on Sullivan Chevrolet Company, answers filed, objections filed thereto, and supplementary interrogatories were subsequently directed to Sullivan. Supplementary interrogatories were also directed to General Motors. Appellants filed requests for admissions against both appellees. This was followed by a second request for admission with numerous exhibits annexed. Appellants complain that Sullivan, as president of the Chevrolet company, withheld valuable information under the guise of giving only his personal knowledge. It appears from reading the interrogatories and answers, that Sullivan gave all the information of which he had personal knowledge or had been told, including the sources of his information. In answer to the first interrogatory propounded to Sullivan, the names of all persons known to have any information concerning relevant facts were furnished, together with addresses. Sullivan gave the substance of the reports furnished him by General Motors, Davis Aircraft and Edward Dye (expert appearing on behalf of appellees at the trial of the cause), to the effect that the belt broke because the force of the impact was so great that no belt could have withstood such force, and also because it appeared that the belt had been subjected to abuse. Appellants complain that appellees failed to furnish them with the names and addresses of experts in the seat belt field. We do not understand this contention, for the transcript shows that information concerning the experts consulted by appellees, including names, addresses and identity, was furnished; also, appellees listed the names of leading experts in the field. The transcript likewise reveals numerous names of employees of General Motors and Davis Aircraft Products, who had knowledge of seat belt manufacturing operations. Appellants say they were not given sufficient information, but they filed no objection to the sufficiency of the answers, and apparently never made any effort to take the deposition of any of the persons named. Actually, appellants’ own requests for admissions establish that appellants themselves knew and had the addresses of numerous manufacturers of seat belts, some close by, from which expert information could have been obtained.

Appellants further complain that discovery was not permitted relative to changes in belt specifications subsequent to the sale of this particular belt. Of course, the question in issue was due care in the manufacture of belts based upon applicable standards of knowledge and practices at the time this belt was manufactured. Any changes subsequently made on the basis of advances in the seat belt field would not be evidence of negligence in the manufacture of this belt. Jonesboro L. C. & E. R. Co. v. Kirksey, 204 S. W. 208 (not reported in Arkansas Reports). Appellees objected to particular requested admissions, including a request that appellees admit the alleged specifications of several other manufacturers producing seat belts. Appellees were requested to admit that the specifications of these manufacturers called for certain loop strengths. This was not competent in the absence of a showing that the practice of the named companies constituted accepted standards of the industry. The fact that some competitive companies used varying specifications from those of appellees, standing alone, would have no probative value. Jones v. Malvern Lumber Co., 58 Ark. 125, 23 S. W. 679.

Appellants complain that the official reports of the Texas Department of Public Safety relative to accident investigations are, under Texas law, confidential, and appellees refused to admit that appellants had made efforts to obtain information concerning the reports which had been refused. We fail to see how appellants were prejudiced. The deposition of the investigating officer, Fred F. Givens, a Texas highway patrolman, was taken. The examination of this officer was rather extensive, and supplied all necessary information relative to the official investigation of the collision.

We have examined each, alleged error under, this contention. Some deal with failure of appellants to answer requests for admissions; some deal with insufficiency of the answers; some deal with the court’s action in sustaining objections to particular questions; some deal with matters that address themselves to the discretion of the court, — but we findmq ruling that resulted in prejudice to appellants.

A discussion of other points relative to the trial in this case is unnecessary, and would be purely academic, for the outcome of the litigation really depends upon the answer to two questions: (1) Was there sufficient evidence of negligence on the part of either General Motors or Sullivan Chevrolet Company, or both, to make a jury question, and (2) Was the negligence of either a proximate cause of the injuries sustained by Mrs. Kapp? Perhaps the second question is more simply stated as follows: Were the injuries sustained by Mrs. Kapp the result of the breaking of the seat belt? Before appellants can prevail in this litigation, not only must the first question be answered in the affirmative, but also, the last question must be answered in the same manner. Before discussing the alleged negligence of either appellee, we think a brief general discussion of seat belts would be in order. Undoubtedly, the first comment that should be made (and this is undisputed) is that a study of all available seat belt literature establishes that no seat belt is manufactured which will remain unbreakable under all conditions. As admitted by General Motors, “Automobile safety seat belts are for the purpose of immobilizing persons traveling in motor vehicles during traffic accidents and other period of sudden deceleration. Each should keep its user ‘tied down’ in survivable crashes which leave the passenger compartment of such motor vehicle substantially intact.” It does appear that certain regulations should be met for safety purposes. The safety belt assembly (including webbing, release mechanism, and all integral parts), as required by the Department of Commerce for aircraft belts (adopted as the specifications in the contract for the making of the Davis belt used in this litigation), calls for a 3,000 pound loop load, i.e., 1,500 pounds to each strand, or specimen, of the seat belt. A further requirement is an additional 50% margin of strength in the webbing itself of 2,250 pounds per strand, - which makes a total loop load, as far as the webbing is concerned, of 4,500 pounds, though the belt overall is only required to hold 3,000 pounds. Both W. D. Wells, who testified for General Motors, and Guy Keith, who testified on behalf of appellants, agreed on these requirements.

Another fact which is established, and agreed upon by seat belt experts, is that at the time of impact, most adults (and probably children from seven years upward) will hit their heads on the instrument panel when wearing a seat belt. The belt is secured around the pelvic region of the body. At the time of impact, the belt stretches, the legs start up due to inertia forces, and the total body is bent forward in a u-shaped manner, the feet going up and the head coming down. According to testimony, an adult ordinarily hits the top of the dashboard rather than the side; without a belt, the person facing the direction in which the car is moving, would be thrown forward and upward at an angle of 30 to 40 degrees, and the head would strike the windshield, rather than the dashboard. Irrespective of the fact that a belt is securely fixed, there will still be about two inches of motion in the hips. The weight of the person wearing the belt also influences the stretch of the belt.

Expert evidence was offered on behalf of appellants by Guy Keith and Guy Treat, and on behalf of appellees by Edward 17. Dye, W. D. Wells and Norie Higuchi.

We first examine the evidence of negligence against Sullivan Chevrolet Company that is relied upon by appellants. It is contended that the belts were improperly installed, and this faulty installation occasioned the breaking of the seat belt. The contention of improper installation was based on the fact that the specifications provided the seat belt should go around the end of the seat, whereas they were installed between the end of the seat and its plastic trim. Further, it is contended that the instructions that came with the belts related to installation in a Chevrolet, though these belts were installed in an Oldsmobile. There is not one line of evidence in the record to the effect that the method of installation caused the belt to break. The positive testimony of witnesses Dye and Wells was to the effect that the installation of the belts in an Oldsmobile, rather than in a Chevrolet, would not affect the strength of the belt, and they were of the view that the belt would be as sturdy and strong in the former automobile as in the latter. Mr. Dye testified that the trim around the seat was Royalite, a light weight plastic, and it would not damage the seat belt. Mr. Wells stated that the method of installation would not have prevented the belt from carrying its required loop load.

Appellants assert that the belt was installed by an inexperienced employee, and that the completed installation was not properly inspected by the foreman. This assertion is based upon the fact that the employee who installed the belt testified that he had only installed one other, and the completed job was not inspected by the shop foreman. This allegation contains the same weakness as the preceding argument, i.e., there is no proof that improper installation (if any), or a failure to make inspection after installation, contributed to the breaking of the belt.

It is next argued that Sullivan Chevrolet should have warned appellants of the limitations of the seat belt, and how to properly care for it. Considering the last first, a seat belt is not inherently dangerous, as contrasted with such properties as dynamite, nitroglycerin, other explosives, or certain drugs that are extremely dangerous unless properly used. Seemingly, the complaint is that Kapp was not told that he should be careful that a door did not slam on the belt, or advised of other similar misuse. This contention is answered completely by Mr. Kapp’s own testimony that the belt was not damaged in any manner prior to the collision. According to his testimony, it was not frayed or water soaked, nor did it show any signs of wear or deterioration in any way. He stated it was impossible for the belt to ever have been caught in the car door “because the way it come between the seat and the door, this buckle here.” He also stated that the part of the webbing that broke was never exposed to the hot sun, and the witness emphasized that these answers were correct. It would therefore appear that, even if a duty existed to brief Mr. Kapp as to proper use of the belt, according to Ms testimony, no damage was occasioned by the failure to do so.

We fail to see any significance, in a case of this nature, of a failure to explain the limitations of the belts. Apparently, the complaint is that Mr. Kapp was not informed that the seat belt would only protect up to certain limits. But, if Kapp had been advised that the belt’s strength was only 3,000 pounds, would that fact have prevented this collision? Would it have prevented the Morales’ car from skidding into his automobile? Would he have driven more slowly? Of course, simple logic tells us that Kapp did not rely upon the seat belts for protection from all consequences of a conceivable accident, and thereby relax his caution.

Let us now discuss the proof, and contentions, as related to General Motors Corporation. Mr. Dye, a resident of New York, is a professional research engineer, and has been working in this field for approximately 35 years. This witness appears well qualified in the seat "belt field. Prom the testimony, his qualifications appear as follows:

“Since graduation from school in 1924, I was with Indiana State Highway Department designing and building steel and concrete bridges; job as assistant professor of engineering and teaching of subjects in engineering mechanics and engineering, including strength of materials, kinetics. I finally became head of civil engineering at North State College. At the same time I had a professional engineering organization in which I carried out engineering. I was assistant engineer of the Yellowstone National Park for eight construction seasons; that is, during the summer seasons, designed, built, supervised construction of all kinds of civil engineering projects. I then became crash analyst and head of the Kinetic Test Department of Douglas Aircraft at El Centro, California, designing and building new aircraft, including dive bombers, and T. A. C. bombers; then CurtissWright Besearch Laboratory, 1943, assistant head of Physics Department at that laboratory. I was in sequence head of the Developmental Engineering, and director of the Developmental Division. I was head of the Industrial Division, and finally my position there as head of the Safety Design and Research Department. During my some sixteen and one-half years at the CurtissWright Research Laboratory, which became Cornell Aeronautics Research Laboratory, in January, 1946, I conducted many research projects in the general field of protecting humans against contact blows and sudden shock forces, including airplane crashes and auotmobile crashes, and conducted research toward preventing those conditions to the human occupant. I am now conducting my own research, called New Products. I conduct accident investigations such as this one. I carry out research for small industries particularly in the protection field. ’ ’ Dye has spent the last fifteen years specializing in the field of safety and protection, including seat belts from the commencement of the use of these belts in automobiles. In connection with his duties as head of the Safety Design Research Department of Cornell Aeronautics Research Laboratory, and a member of the Transportation Safety Research Committee of Cornell University, projects were conducted for the office of Naval Research, Medical Science Division, research for Greneral Motors in the safety of crashing automobiles, research for Hickock Company, manufacturer of seat belts, and research for Chrysler Motor Company. Because of his eminence in this field, Dye was invited to testify before a subcommittee of the Committee on Interstate and Foreign Commerce of the 85th Congress. This Committee conducted hearings in an effort to compile all data and research known regarding seat belts.

Dye was asked a hypothetical question based on the circumstances surrounding the collision, as shown by previous testimony, and including the weights of the vehicles involved, the speed of each, and subsequently the weight and height of Mrs. Kapp. This question was directed to whether the witness was able to arrive at a computation that would show the velocity or speed of the vehicles at the moment of impact “assuming that Mr. Kapp took his foot off the accelerator the moment the car started to skid when they were 200 feet apart.” In response to this question, the witness answered that he was able to make a computation, and he first explained the factors considered. This entailed the use of certain formulas, which, to relate here, would be of no particular benefit, and after minutely explaining the method used in arriving at his conclusion, Dye stated that the minimum number of G’s exerted on the belt would be 46.6, or a potential on the belt of 5,030 foot pounds. He stated that the peak load could well be much greater, up to 90 G’s, and therefore concluded that the potential force on the belt was somewhat between five and ten thousand pounds. This, of course, was greatly in excess of the required strength of the belt. W. D. Wells, senior staff assistant to the chief engineer of the Fisher Body Division of General Motors, and Nori Higuehi, chief engineer for Davis Aircraft, substantially concurred in the conclusions reached by Dye.

Guy Keith, principal expert witness for appellants, is a graduate of the University of Oklahoma in civil engineering, a licensed engineer in the state of Arkansas, a member of the American Society of Civil Engineers, Oklahoma Society of Professional Engineers, National Society of Professional Engineers, Tau Beta Phi, Sigma Tau, and associate professor at the University of Oklahoma. He listed his experience as follows:

“Eight after graduation in 1944, I went with the Seabees on active duty in an engineering capacity. After that, I worked for a steel company in design and detailing of steel for building of bridges and buildings. After that, planning engineer for Ideal Cement. After that, with an engineering firm on turnpikes, and 1950 with a firm engineering buildings, structures, roadways, schools, and roads, and in recent years I have been made vice-president of that organization.”

Keith, after explaining his reasons, gave the figure of 1,713.6 foot pounds, as the force exerted against the belt, which was, of course, well within the limits of the 3,000 pound overall loop load, and the 2,250 pounds per strand (webbing). Subsequently, on cross-examination, he admitted that this figure could be doubled. Appellees vigorously argue that Keith misapplied the formula, and his result was therefore erroneously reached. It is also pointed out that Keith, in reaching his conclusion, did not consider the weight or speed of the Morales’ Ford. While it would appear that the weight and speed of the Ford would be pertinent factors in determining the magnitude of the crash, we find it unnecessary because of reasons hereinafter set out, to enter into a discussion of this contention, or whether the formula was misapplied. It does definitely appear that Mr. Keith is not especially versed in the seat belt field. During the course of cross-examination of this witness, the following facts were elicited from Keith: that his experience with elastic propensity of nylon and other fibers is extremely limited, and he had done no work in this line before the instant case; his familiarity with the elastic propensity of the human body is the same as that of the average man; he has made no tests in that field; he did not take the elastic propensity of the human body into consideration in his calculations; his experience relative to the crash of automobiles was limited to personal experience: “I’ve had several wrecks myself.”

Guy Treat, an associate of Keiths, also testified on behalf of appellants, and his views were similar to those of that witness. Like his colleague, he was without experience in the seat belt field, never having conducted any experiments or tests.

Appellants devote a number of pages to the contention that the company was negligent in not marking the belts. While it is true that a date or number on the belt would be of tremendous aid to appellants in their effort to prove specific negligence, we are unable to agree that this omission was, in itself, negligence. Of course, the fact that the belt was not marked in any manner, dated or numbered, did not contribute in any manner to its breaking. It might well be true that negligence could be found against a company that, for instance, sold unmarked belts that were several years old, but that situation does not exist in the case before us. The contracts entered into between General Motors and Davis Aircraft covered a nine months period, January 1, 1956, to October 1, 1956. Kapp purchased the seat belt in question from Sullivan in December of 1956. The evidence shows that nylon in storage will last almost indefinitely, and the proof is undisputed that a seat belt in use, under normal conditions, will last at least between one and one-half to two years without serious danger of deterioration. It therefore follows that this particular belt could not have been more than eleven or twelve months old when Kapp purchased it. Likewise, it was alleged that the belt was not properly tested. The proof is positive that the particular belt could not be tested, for a proper test would have destroyed its strength and durability. The manufacturer of the belts did make “spot checks”, but testing an individual belt would destroy the usefulness of that belt.

Appellants assert that in some respects, Mrs. Kapp’s injuries were worse than those of her husband, and he was not wearing a seat belt; that though it is true she remained in the automobile (while some occupants of the Morales car were thrown to the highway and killed), her husband also remained in the car. Apparently, the purpose of this argument is to demonstrate that Mrs. Kapp’s injuries were occasioned by wearing the belt. This argument is fallacious, for Kapp’s body was restrained by the steering wheel. Photographs show this wheel to have been forced considerably upward toward the top of the car. The abstract does not reflect the injuries sustained by Kapp, but does reflect that he spent five months in the hospital, and was not available for employment for another additional six months. The strongest evidence offered by appellants was that of Keith, but we do not think his testimony placed in issufe the question of negligence. Keith did not point out any fact that caused the belt to break; of course, he did not know if the belt had been subjected to any unknown factors prior to the breaking. As heretofore mentioned, he admitted that the amount of force he estimated to be exerted against the belt could, under some circumstances, be doubled. Likewise, he stated that he was not telling the jury that the total maximum force exerted on the belt was never more than 15.3 G-’s (equaling 1,713.6 foot pounds). In other words, Mr. Keith’s testimony as to the force applied to the belt was quite indefinite, and after all is said and done, a guess.

In Martin v. Arkansas Power & Light Company, 204 Ark. 41, 161 S. W. 2d 383, DeWitt Martin, a termite exterminator, working under a house, came into contact with an electric wire, which caused his death by electrocution. His brother attempted to extricate DeWitt, and received injury in doing so. Suit was instituted against appellee charging negligence. This Court held that the court should have directed a verdict for the defendant, and, inter alia, stated:

'“The transformer stepped this current down to 110 volts for domestic service, and there is no testimony that the transformer was ont of order or that it was not properly functioning. There is testimony that both the primary and secondary wires passed through the tops of two trees and were adjacent to and may have at times come in contact with some of the branches of these trees which were between the transformer and the Bynum residence, and it is appellants’ theory that the current from the high tension line was shorted or diverted to the service line by reason of contact with these limbs, causing an excess voltage on the service lines which killed DeWitt Martin and injured Clifton. Their expert witness said that it was possible for the current to be so diverted and that, in his opinion, that is what caused the injury. He said that a green tree limb was not a good conductor, but that, in his opinion, it was good enough to divert sufficient current to cause injury and death. This appears to be appellants’ whole ease, except some reliance is placed on an alleged defective ground wire on the third wire of the service circuit. We think the evidence given by the expert is lacking in definiteness and certainty. It is more or less speculative and conjectural. His conclusions depend upon assumed facts, such as a limb being a conductor and that if it were, why would not the current be grounded by the tree itself; that the same limb would have to contact both the primary and secondary wires at the same time and the latter at a point not insulated; and that the tree would not ground the current.”

We have concluded that there was not sufficient evidence of negligence on the part of either appellee to justify submitting the case to the jury. We have already said that the doctrine of res ipsa loquitur does not apply, and it is evident that no specific defect in the belt was established. Appellants’ entire case rests upon conjecture and speculation. Several possible causes of the break are argued, but in truth, they are only possibilities, and do not reach the status of probabilities. Negligence cannot be established by guess work. As stated in Henry H. Cross Co. v. Simmons, 96 F. 2d 482, a decision under Arkansas law:

“To submit to a jury a choice of possibilities is but to permit the jury to conjecture or guess, and where the evidence presents no more than such choice it is not substantial, and where proven facts give equal support to each of two inconsistent inferences, neither of them can be said to be established by substantial evidence and judgment must go against the party upon whom rests the burden of sustaining one of the inferences as against the other.”

In Glidewell v. Arkhola Sand & Gravel Co., 212 Ark. 838, 208 S. W. 2d 4, this Court said:

“ ‘Conjecture and speculation, however plausible, cannot be permitted to supply the place of proof,’ and in Turner v. Hot Springs Street Railway Company, 189 Ark. 894, 75 S. W. 2d 675, we find this language:
‘The trial court was correct in directing a verdict for appellee, because the testimony adduced by appellant was not sufficient to show that the injuries received were proximately due to any negligence of appellee. No witness testified that appellant’s fall was proximately due to the small pieces of snow and ice afterwards seen in the vestibule of the street car. It is true, the jury might have guessed or speculated that her fall was caused by stepping upon the small pieces of ice and packed snow in the vestibule of the street car, but, on the other hand, it was equally as probable that her fall was caused by packed snow or ice which had accumulated on her own shoes. The point is, juries are not permitted to guess or speculate as to the proximate cause of an alleged injury, the burden resting upon appellant to show by a preponderance of the evidence that her injuries were caused by some negligent act or omission of appellee.’ ”

In the same case, quoting from an earlier case, we said:

“It is not allowable, under the rules of evidence, to draw one inference from another., or to indulge presumption upon presumption to establish, a fact. Reasonable inferences may be drawn from positive or circumstantial evidence, but to allow inferences to be drawn from other inferences, or presumptions to be indulged from other presumptions, would carry the deduction into the realm of speculation and conjecture.”

The fact that appellees may have been guilty of negligence is not sufficient. Mr. Keith’s evidence was speculative and conjectural; of course, Dye’s evidence involved many of the same elements of conjecture, but appellants must fail, for on them rests the burden of establishing their case.

Were it otherwise, i.e., if we found sufficient evidence of negligence to say that a jury question was made on this issue, still, appellants could not prevail. Negligence alone is not sufficient. It must be established that such negligence was a proximate cause of the damages suffered. Who can say that the particular injuries complained of were caused by the breaking of this belt? Actually, in this accident, beginning and ending "in the snap of a finger,” one can only speculate as to when the belt broke. The testimony reflects such conjecture. Who can say that these injuries were not occasioned by the crash of the Morales’ car into the Oldsmobile? Certainly, as shown by the record, injuries were claimed, and recovered, from the Morales’ insurance carrier. It is not sufficient to show that the breaking of the belt could have caused the injuries complained of. Our feeling is expressed in the language of the Missouri Supreme Court, in the case of Stone v. Farmington Aviation Corp., 232 S. W. 2d 495. In that case, Stone instituted suit against Farmington for injuries sustained in the crash of an airplane rented by Stone from the defendant. Stone alleged that the seat belt broke on the rear seat, and caused his wife to be thrown against him, thereby occasioning his injuries. He alleged ‘ ‘ that the breaking of the rotten and defective belt was the direct and proximate cause of his injuries.” After reviewing the evidence, the Court said:

“* * * before recovery can be allowed plaintiff must prove his case as laid and his proof must take his case out of the realm of conjecture.

Who can say from these facts (there is no proof) when or why the belt broke? It appears only that after the crash it was found to be broken. Who can say from these facts (there is no proof) that except for the breaking of the belt plaintiff would not have been injured? Under the instant facts, such a conclusion is so unlikely and improbable that it must be instantly rejected. Who can say from these facts (there is no proof) that, assuming the breaking of the belt permitting Mrs. Stone to be thrown against the back of the plaintiff’s seat, that such fact contributed in any degree to the injuries plaintiff received in this crash, or that his injuries were any increased thereby? Only with guess and speculation could any one hazard an answer to those questions. Proximate causation here is left wholly within the field of conjecture and speculation. Many things must be assumed, and inference must here be piled upon inference to hold that plaintiff made a submissible case. We have no proof and no basis for allowable inference as to the negligence as alleged in the petition. Upon this record we cannot escape the ruling that no submissible case was made upon the theory presented. It is axiomatic that judgments based on speculation and conjecture cannot stand. For the above reasons the judgment appealed from cannot stand.”

Finally, it is asserted that the trial court erred in denying appellants’ motion for a new trial on the basis of finding newly discovered evidence from eyewitness James T. Arnold. Arnold was the operator of the third car involved in the collision. A full discussion of this contention would only unduly extend the length of this opinion, for we find no merit in same. Appellants, in moving for a new trial, attach to their motion a verified statement of Arnold, wherein he states that the speed of the Morales car was only 25 to 30 miles per hour rather than the 52 1/2 to 60 miles per hour which was the basis of the calculations of the experts; likewise, he stated that the speed of the Kapp vehicle should he reduced to 35 miles per hour. It is apparent from the record that appellants were aware for many months prior to the trial that Arnold was an eye-witness. In fact, approximately six months before the case was tried, requests for admissions were filed showing that appellants had in their possession at that time the name and address of Arnold, and considerable information relative to details of the accident. Appellants had two suits pending in the U. S. District Court in Jonesboro against Davis Aircraft Corporation and General Motors, and compulsory process was available to have compelled the attendance of Arnold for the taking of a deposition in Chicago. Appellants say the expense was too great to obtain this testimony, but it is self-evident that such expense would not compare with the expense of a second trial of this case. Be that as it may, we find no merit in the contention.

Affirmed.

McFaddin and Johnson, JJ., dissent.

Ed. F. McFaddin, Associate Justice,

dissenting. It was established beyond doubt that the seat belt broke in the automobile collision and that Mrs. Kapp was injured. The plaintiffs claimed that the seat belt was defective ; and this was denied by the defendants. So one of the main issues was whether the belt was defective. At the conclusion of all the evidence the Trial Court instructed the jury to return a verdict for the defendants, Bob Sullivan Chevrolet Company and General Motors Corporation; and, thereby, the Court declared that the plaintiffs had not presented any substantial evidence to sustain their allegation that the belt was defective. The plaintiffs assign as error the action of the Court in granting this instructed verdict for the defendants; and I think this assignment possesses merit. Therefore, I dissent from the affirmance by this Court.

The rule established by a long line of decisions is, that in determining whether the Trial Court committed error in directing a verdict for the defendant the Supreme Court gives the evidence for the plaintiff its strongest probative force. McAllister v. Calhoun, 212 Ark. 17, 205 S. W. 2d 40; Garner v. Mo. Pac. RR. Co., 210 Ark. 214, 195 S. W. 2d 39; and Smith v. Mo. Pac. RR. Co., 208 Ark. 40, 184 S. W. 2d 951. It is my opinion that the evidence was sufficient to take the case to the jury on the question of whether the belt was defective.

The witness Guy Keith testified: that the weight applied against the seat belt in the collision in which Mrs. Kapp was injured was 1,713.2 pounds; that the seat belt should have withstood a weight applied against it of 4,500 pounds; and yet this seat belt broke with less than 2,000 pounds weight applied against it. The witness Guy Treat testified to the same effect; and I maintain that the testimony of these two witnesses made a case for the jury on the question of whether the seat belt was defective.

The Majority Opinion says: “We have concluded that there was not sufficient proof of negligence on the part of either appellee to justify submitting the case to the jury.” If there was substantial evidence to show that the belt was defective, then that issue should have been submitted to the jury; and I maintain that when it was shown that a belt that should have withstood 4,500 pounds of applied pressure broke when less than 2,000 pounds of pressure was applied, there was sufficient testimony to take the case to the jury on the question of whether the belt was defective.

Finally, the Majority Opinion says that the plaintiffs fail to show that the breaking of the belt was the direct and proximate cause of Mrs. Kapp’s injuries. I maintain that the plaintiffs were not required to offer such proof. The plaintiffs offered proof (a) that the belt was defective; (b) that it broke; and (c) that the breaking of the belt concurred with other factors to result in Mrs. Kapp’s injuries. The plaintiffs made a clear case of concurring negligence; and, when concurring acts of negligence are shown, a case is made for the jury as to the proximate cause of the injury. Barnes v. Hope Basket Co., 186 Ark. 942, 56 S. W. 2d 1014; and Oviatt v. Garretson, 205 Ark. 792, 171 S. W. 2d 287.

I respectfully dissent from the Majority Opinion which affirms the action of the Trial Court in instructing a verdict for the defendants.

       Subsequently, the Kapps instituted an action against Sullivan for personal injury damages grounded in breach of warranty. This suit is still pending in the trial court. Suit is also pending in federal court against .General Motors and Davis Aircraft Products, Inc.

       Appellants contended that they had a separate tort action against General Motors which should be preserved for future use, regardless of the outcome of the litigation against Sullivan. In amending their complaint, they asked for severance of the cause so that same would be heard as two separate negligent cases against Sullivan Chevrolet and General Motors, with separate juries at the time of trial.

       This belt was not actually made by General Motors, but rather by Davis Aircraft Products, Inc., of New York. General Motors, by contract, used these belts as optional equipment for its cars. Actually, Davis did not manufacture the nylon webbing used in its belts, but the record does not disclose which of several companies, engaged in manufacturing nylon webbing, furnished the webbing used by Davis.

         Seat belts ordinarily break at an assembly point, rather than in the webbing.

       G - a unit of force applied to a body at rest equal to the force exerted on it by gravity.

       For example, it certainly seems that the result, to both the automobile and front seat occupant, of a collision between a Chevrolet (occupied by a passenger wearing a seat belt) and an Austin would differ greatly from that of a collision between a Chevrolet and a Cadillac. Likewise, in both instances, .we would think the result would be far different if the cars were traveling 30 m.p.h., rather than 60 m.p.h.

         From the testimony of Nori Higuchi, chief engineer for Davis:
      “Q. About how many belts did you test out of each lot? A. I would say it depended upon the size of the lot. Q. Assuming your average lot you testified to, one hundred fifty to two hundred belts. A. Test out of a lot that size, I would say one belt. Q. One belt out of every one hundred fifty? Is it not true to say you spot check these belts? A. That is the only way we can do. Q. A ratio of one to one hundred fifty? A. Approximately so. Q. In making your tests, will you tell us exactly your procedure used? A. We have a hydraulic testing machine. Q. What is the name of that machine? A. No particular name. Just a hydraulic cylinder to which we have a dynamometer. Pull that to 1,500 pounds and examine it for any defects. If no defects in the belt, we considered it satisfactory. Q. What happened to the belt you used after you pulled it to 1,500 pounds? A. We could no longer use it. Q. State whether or not when a belt has been loaded so it has broken, say a belt like that, after the belt has been broken, it is impossible to make a test of its pre-accident strength? A. Yes. Q. What — ? A. Since it has been subjected to the load, there is some weakening to it.”

       From his evidence: “Q. Talking about 15 G’s on this belt, if the load is a sudden or shock load, it might have been two to one, mightn’t it? A. It might have been two to one, yes, sir.”

       The speed of this vehicle had been calculated at 50 to 55 miles per hour.


source: Caselaw Access Project

author: Ed. F. McFaddin, Associate Justice.

license: Public Domain

text:
    England v. State.
    5017
    352 S. W. 2d 582
    Opinion delivered January 8, 1962.

      John E. Hooker, for appellant.

      Frank Holt, Attorney General, by Milas H. Hale, Asst. Attorney General, for appellee.
   Ed. F. McFaddin, Associate Justice.

This is an appeal of a misdemeanor case. The appellant, W. D. England, Jr., was charged in the Pine Bluff Municipal Court with the offense of disturbing the peace (§ 41-1401 Ark. Stats.). At the trial a number of witnesses testi.fied; and the appellant was convicted on each of three •counts. On appeal to the Circuit Court the case was tried before the Judge without a jury, and the attorneys stipulated as to the testimony, a portion of which was:

“It is stipulated and agreed between the parties that if the prosecution witnesses were present they would testify that W. D. England, Jr., operates a Go-Kart Race Track at approximately 20th and Ohio Street; that the Go-Kart Race Track has numerous small vehicles that operate between the hours of 7:00 p.m., up to midnight; that these witnesses live anywhere from one block to six blocks away from the Go-Kart Race Track; that during these hours of 7:00 p.m., to midnight there is a constant roaring of motors and is so loud five to six blocks away that they cannot hear their television sets unless turned up to the highest point; that they have difficulty in carrying on a conversation in their own homes and are unable to sleep during the time the motors are being operated; that several witnesses described the noises as if a gasoline lawnmower was being operated right underneath their window for hours at a time. Some witnesses testified that their children were unable to study or to sleep until nearly midnight . . . ”

Trial in the Circuit Court resulted in a conviction of the appellant on two counts, with a fine of $10.00 and costs on each count, and the fines were suspended “. . . on condition that the defendant does not operate so as to 'disturb the peace, and on payment of the costs.” There was no motion for new trial filed in the Lower Court, the appellant apparently being under the impression that the case could be appealed to this Court as a civil case, according to the provisions of Act 555 of 1953. (§ 27-2106.1 et seq. Ark. Stats.) But that Act relates only to civil cases. McConnell v. State, 227 Ark. 988, 302 S. W. 2d 805. In a misdemeanor case there must be a motion for new trial filed in the Circuit Court, if we are to look further than the face of the record. See City of Monticello v. Kimbro, 206 Ark. 503, 176 S. W. 2d 152; Holliman v. State, 213 Ark. 876, 213 S. W. 2d 617; Long v. State, 216 Ark. 681, 227 S. W. 2d 166; and Van Hook v. Helena, 170 Ark. 1083, 282 S. W. 673.

Appellant argnes most earnestly that upon examination of the face of the record we must reverse the judgment, because — says appellant — the information on which he was tried did not charge an offense. This information, omitting signature and verification, reads:

“The said W. D. ENGLAND, JE. in the County of Jefferson and State of Arkansas on the 1st day of October A. D., 1960, did then and there wilfully, unlawfully and maliciously disturb the peace and quiet of Albert Bridges by operating a go-kart race track and juke box in a loud and unusually noisy manner, contrary to the statutes in such cases made and provided, and against the peace and dignity of the State of Arkansas.”

The appellant says that he was tried for disturbing the peace under § 41-1401 Ark. Stats.; that the information merely showed that he had disturbed the peace and quiet of Albert Bridges; and that disturbing the peace and quiet of one person is not an offense under our statute or at common law.

There are two answers to this argument of appellant. By Initiated Act No. 3 of 1936, the People of Arkansas adopted a criminal reform measure which did away with many of the technicalities previously required; and, by Constitutional Amendment No. 21, the People provided that offenses prosecuted by indictment might likewise be prosecuted by information. In aecordanee with the said initiated measure, and this Constitutional Amendment, we weigh the information in this case. Section 43-1006 Ark. Stats, (which is § 22 of the said Initiated Act No. 3) says:

‘ ‘ The language of the indictment must be certain as to the title . . ., the name of the court . . ., and the name of the parties. It shall not be necessary to include statement of the act or acts constituting the offense, unless the offense cannot be charged without doing so . . . but the name of the offense charged in the indictment shall carry with it all such allegations . .

The information in this case charged W. D. England, Jr. with the crime of disturbing the peace. Such was sufficient to apprise him of the offense. Some of the cases construing the aforesaid section are Craig v. State, 194 Ark. 925, 114 S. W. 2d 1073; Budd v. State, 198 Ark. 869, 131 S. W. 2d 933; Johnson v. State, 199 Ark. 196, 133 S. W. 2d 15; and Baker v. State, 200 Ark. 688, 140 S. W. 2d 1008; and under these cases the information in this case charged an offense.

Another and more conclusive reason why the appellant cannot prevail on this appeal, is because he failed to raise the question of the sufficiency of the information at the proper time or in the proper manner. In Baker v. State, supra, we pointed out that if a defendant desired to raise the point that the information did not charge a crime or offense, he must either file a demurrer to the information or file a motion in arrest of judgment, in keeping with the provisions of what is now § 43-2208 et seq. Ark. Stats. In the case at bar, the appellant filed no demurrer to the information. Neither did he file a motion in arrest of judgment. He is trying to raise the question by appeal; and such is entirely inadequate.

Affirmed.

Johnson, J., dissents.

       The appellant’s place of amusement was located outside of the city limits of Pine Bluff.

       Comment has been made that if this Go-Kart Race Track disturbed the peace then many businesses would disturb the peace; but that conclusion does not logically follow. In 8 Am. Jur. 835, “Breach of Peace” § 4, it is said: “An act which if committed at a certain place or time would not amount to a breach of the peace may constitute a crime if committed at another time or place and under different circumstances. In other words, whether or not a given act amounts to a breach of the peace can only be determined in the light of the circumstances attending the act, and the time and place of its commission.” The question, of whether appellant’s operation of the Go-Kart Race Track at the time and place and hours here involved constituted a. breach of the peace, was a matter to be considered under the facts; and no factual issue is raised on this appeal because there was no motion for new trial.


text:
    Moss v. Infield.
    5-2536
    352 S. W. 2d 584
    Opinion delivered January 8, 1962.

      Mark E. Woolsey, for appellant.

      Barber, Henry, Thurman £ McCaskill, for appellee..
   Ed. F. McFaddin, Associate Justice.

This appeal stems from a collision of two motor vehicles. Appellant. Moss was plaintiff and appellee, Mrs. Infield, was-defendant. For convenience, we will refer to the parties-as they were styled in the Trial Court. The jury verdict was for the defendant; and the plaintiff brings this, appeal, urging two points for reversal.

1. Sufficiency Of The Evidence. Plaintiff saysr “. . . the verdict of the jury was arbitrary, not being supported by, but contrary to, the evidence.” The collision occurred at the intersection of Eighth Street and West Jonesboro Drive in Little Rock. The plaintiff was driving south on West Jonesboro Drive towards the-Eighth Street intersection, and the defendant was driving east on Eighth Street towards said intersection. It was stipulated that at this intersection West Jonesboro Drive is eighteen feet wide and Eighth Street is twenty-two feet wide.

The plaintiff testified: that he was driving south towards the intersection at a speed of twenty to twenty-five miles an hour; that when he first saw the defendant she was about fifty feet west from the intersection and slowing down; that when he was about twenty-five feet north from the intersection he realized that the defendant was not going to stop; and that the plaintiff applied his brakes in a vain effort to stop. The plaintiff also» testified that the defendant was going so slow he thought she would stop at the “yield” sign on Eighth Street, but,, instead, she proceeded on into the intersection; and that after plaintiff applied his brakes the front of his car hit the rear door and fender of the defendant’s car. It was stipulated that the point of impact occurred nineteen feet south of the north line of Eighth Street and fourteen feet east of the west line of West Jonesboro Drive; and that plaintiff’s car left fourteen feet of solid skid marks before the point of impact. The plaintiff insists that the defendant was negligent in failing to yield the right-of-way in accordance with the “yield” sign.

The defendant’s version of the collision is different. She testified that she was traveling east on Eighth Street at a speed of ten to twenty miles per hour; that when she was almost to the West Jonesboro Drive intersection, she looked north up West Jonesboro Drive and saw no one approaching; and that she then proceeded cautiously into the intersection and was well past the center of the intersection when plaintiff’s car, “which came out of nowhere,” struck the left rear door and fender of her car.

Whose fault caused the collision? That was for the jury, and we cannot say that the verdict was in error. If the jury believed the defendant’s version — as it did— then the jury could have concluded that the defendant first entered the intersection, that the plaintiff was driving very fast to have skidded fourteen feet, and, therefore, must have entered the intersection well after the defendant, who was proceeding cautiously. It is clearly apparent that the defendant was past the center of the intersection and proceeding east when her car was struck by the plaintiff’s car; and it was further shown that the plaintiff did not veer Ms car in any way to the right in. order to avoid the impact. With such a contradiction in the testimony, it was for the jury to decide which witnesses to believe; and we leave the verdict undisturbed.

II. Instructions. The only instruction to which the plaintiff objected and now claims to be erroneous is. Defendant’s Instruction No. 8, which reads:

“You are instructed that the driver of a vehicle' approaching a yield the right of way sign shall in obedience to such sign slow down to a speed that is reasonable under the existing conditions or shall stop if necessary,, and shall yield the right of way to any vehicle in the intersection or approaching on another highway so closely thereto as to constitute an immediate hazard.. However, you are further instructed that under Arkansas law the said driver having so yielded may proceed, and the drivers of all other vehicles approaching the intersection shall yield the right of way to the vehicle so-proceeding.
“A violation of a traffic law is not negligence within itself but if yon find that there was such a violation you may take it into consideration, along with all of the other evidence in the case, in determining if the party charged with negligence was guilty thereof.”

To this instruction the plaintiff offered only a general objection, and he concedes that this instruction is not inherently erroneous. A general objection is not sufficient unless an instruction is inherently erroneous. Trumbull v. Martin, 137 Ark. 495, 208 S. W. 803; and Carmichael v. Mercury, 224 Ark. 553, 275 S. W. 2d 15.

Finding no error, the judgment is affirmed.


author: George Rose Smith, J. Ed. F. McFaddin, Associate Justice, Jim Johnson, Associate Justice,

text:
    Ark. State Highway Commission v. Stanley.
    5-2510
    353 S. W. 2d 173
    Opinion delivered January 8, 1962.
    [Rehearing denied February 19, 1962.]

      Dowell Anders and Paul Johnson, for appellant.

      J. B. Milham, Kenneth C. Goffelt and Ben M. McCray, for appellee.
   George Rose Smith, J.

The appellees, Marshall Stanley and his wife, owned a rectangular tract of about 67 acres in Saline county. This is an action by the highway commission to condemn 18.03 acres for a 350-foot right of way running diagonally across the Stanleys’ land. After the taking the landowners will be left with two triangular parcels, one of about eight acres lying northwest of the new highway and the other of about 41 acres lying southeast of it.

This appeal questions a verdict and judgment awarding the appellees $150,000 for the 18.03 acres. For reversal the commission contends that the verdict is not supported by substantial competent evidence and that the trial court erred in refusing to permit the condemnor to make exploratory drilling tests upon that part of the land not being taken. We are of the opinion that the commission is right in both contentions.

Stanley testified that he bought the land in 1943 for about $8.00 an acre. The tax assessor testified that the 1960 assessment of the entire 67 acres, at 20 per cent of its value, was $440, indicating a worth of about $32.50 an acre. One of the appellees’ witnesses, a real estate dealer, valued the land, apart from its minerals, at $200 an acre, or $3,600 for the parcel being taken. The highway commission offered the testimony of two real estate appraisers; one fixed the value of the 18.03 acres at $3,500, the other at $3,750.

The verdict of $150,000 finds the land being condemned to be worth about $8,320 an acre. The appellees insist that this figure is supported by testimony tending to show that the tract contains valuable mineral deposits.

Two kinds of minerals have been found within the tract and extracted commercially. The first, referred to as white gravel, is used in surfacing driveways and walks. Drilling tests indicate that the tract contains 34,966 cubic yards of this gravel. Stanley has been selling it since 1943 for $2.00 a yard. His loading and severance tax expense is 15£ a yard, leaving a return of $1.85 for the gravel.

The second mineral is a fairly pure mixture of sand and gravel that can be used as the aggregate in the manufacture of concrete. Concrete that is made from this aggregate, with cement and water, is suitable for the production of septic tanks, grease traps, and well tile. The appellees’ tests indicate that the tract contains 241,759 cubic yards of this concrete aggregate.

The appellees relied upon three witnesses in their attempt to establish the value of the mineral deposits. Stanley himself described the physical characteristics of the land and recounted his experience in selling white gravel. He said that in seventeen years he had made from 100 to 150 sales in the Benton area. That would be a sale about every six weeks. The average volume of each sale is not shown. Stanley also explained the process by which he used the aggregate in the manufacture of septic tanks, grease traps, and well tile. He gave the yield from a yard of raw material and the selling prices for the finished products. This information, however, could not have been of any help to the jury, for there is no testimony about such essential factors as the cost of the cement, the labor expense, and the volume of sales.

After this introductory testimony Stanley stated that in his opinion the tract taken is worth twenty million dollars. This figure is arbitrary in that it has no relation whatever to any fact in the record. Stanley made no effort to say how he arrived at his valuation; it seems to have been plucked from the air and might equally well have been ten thousand dollars or a hundred million dollars. Even the opinion of an expert in the field of land valuation is not substantial evidence if he fails to show a fair or reasonable basis for his conclusion. Ark. State Highway Comm. v. Byars, 221 Ark. 845, 256 S. W. 2d 738. There is still less reason for finding the fanciful figure fixed by Stanley to be a sufficient foundation for the verdict in this case.

The appellees’ other two valuation witnesses were allowed to arrive at an opinion by multiplying the number of yards of each material by a fixed unit price. The witness Kimzey, a retired geologist not possessing any demonstrated expert knowledge of values, testified that 300,000 yards of concrete aggregate, at $5.00 a yard, would be worth $1,500,000; that 34,966 yards of white gravel, at $1.85 a yard, would be worth $64,687.10; and that these figures, when added to a land value of $3,600.00, produced a total valuation of $1,568,287.10. The third witness, a real estate broker, used a similar method of computation in arriving at a valuation of $2,311,347.00.

The practice of determining value by multiplying the number of yards or tons of material by a unit price has, as Orgel points out, been uniformly rejected by the courts. Orgel, Valuation Under Eminent Domain (2d Ed.), § 165; Nichols on Eminent Domain (3d Ed.), § 13.22. Well-reasoned decisions include United States v. 620 Acres, D. C. Ark., 101 F. Supp. 686; United States v. 765.56 Acres, D. C. N. Y., 174 F. Supp. 1; Hoy v. Kansas Turnpike Authority, 184 Kan. 70, 334 P. 2d 315; Gulf Interstate Gas Co. v. Garvin, Ky., 303 S. W. 2d 260; State v. Mottman Merc. Co., 51 Wash. 722, 321 P. 2d 912.

We had occasion to touch upon the rule in Ark. State Highway Comm. v. Cochran, 230 Ark. 881, 327 S. W. 2d 733, where we said: “As a general rule the market value of a tract of land cannot be determined simply by estimating the amount of stone or other mineral that it contains and then multiplying that estimate by a fixed price per unit.”

The exclusionary principle is plainly sound. The ultimate question for the jury is the market value of the land, the price that would be agreed upon by a willing buyer and a willing seller in a transaction at arm’s length. The mechanical process of assigning a retail value to every yard of mineral within the earth does not carry the jury beyond the realm of guesswork. That narrow formula fails to take into account vital considerations such as the cost of excavating the material, the cost of processing it, overhead expenses, the market for the finished product, and so on. In the case at bar the jury had almost no information about these matters. If the jurors had assumed without proof that an average order for white gravel for a driveway was, say, ten cubic yards, they might readily have determined that it would take Stanley almost 400 years to sell the deposits in the tract if the demand continued at the same rate as in the past. Obviously no purchaser would pay full retail value for the gravel in place in order to hold it for decades or centuries before recovering his investment. But what would he pay? The appellees’ proof left the jury without the facts needed for an answer to this question.

We are cited principally to our decision in City of Little Rock v. Moreland, 231 Ark. 996, 334 S. W. 2d 229, where we upheld a finding that a tract of land in Pulaski county, containing bloating clay that could be used in the manufacture of a lightweight concrete aggregate, had a fair market value of about $181 an acre. There is little resemblance between that case and this one. There, as the opinions indicate, the litigants produced the best expert testimony that could be found, the judgment of men engaged in the business with actual experience in the matter of locating and constructing new plants for the production of lightweight aggregate. They had familiarized themselves with the pertinent considerations, such as the cost of erecting and operating a plant, the amount of the finished product that the market available to a Pulaski county plant could be expected to absorb, the availability of mineral deposits in addition to those within the land being condemned, and the competition to be expected from other building materials. The final decree in that case rested upon comprehensive proof of a substantial nature. Similar evidence is not to be found in the present record.

The second issue is the matter of discovery. Before the trial the highway commission, having been refused access to that part of the appellees’ land not being condemned, applied to the court for an order permitting it to enter this land and make test drillings for the purpose of determining the extent of the mineral deposits therein. In response to this motion the appellees waived their claim to severance damages and used that waiver as a basis for contending that the condemnor was not entitled to explore the rest of their land. The court sustained the landowners’ position and entered an order declaring that no proof would be received concerning the physical characteristics of the land not being taken.

This was error. Our discovery statute provides: “Upon motion of any party showing good cause therefor . . . the court in which an action is pending may . . . order any party to permit entry upon designated land or other property in his possession or control for the purpose of inspecting, measuring, surveying, or photographing the property or any designated object or operation thereon.” Ark. Stats. 1947, § 28-356.

The language of this statute was taken verbatim from Federal Rule 34. It follows that our legislature, in adopting the wording of the federal rule, also adopted the principle of liberal construction that had been announced in the leading case of Hickman v. Taylor, 329 U.S. 495, 91 L. Ed. 451, 67 S. Ct. 385: “We agree, of course, that the deposition-discovery rules are to be accorded a broad and liberal treatment. No longer can the time-honored cry of ‘fishing expedition’ serve to preclude a party from inquiring into the facts underlying his opponent’s case. Mutual knowledge of all the relevant facts gathered by both parties is essential to proper litigation. To that end, either party may compel the other to disgorge whatever facts he has in his possession.”

The discovery provision authorizing an entry upon land is to be liberally construed. United States v. Nat. Steel Corp., D. C. Tex., 26 F. R. D. 603. The extent to which a discovery order may go is well illustrated by the holding in Williams v. Continental Oil Co., 10th Cir., 215 F. 2d 4, cert. den. 348 U. S. 928, 99 L. ed. 728, 75 S. Ct. 341. The question was whether the defendant’s oil well had been drilled so far off the perpendicular as to invade the plaintiff’s land. The trial court refused to allow the plaintiff to enter the land and made a directional survey, which would involve unseating the pump at the bottom of the well and pulling out all the tubing, with some danger to the future productivity of the well. 14 F. R. D. 58. The court of appeals reversed this order and permitted the survey, reasoning that good cause had been shown simply because if the plaintiff could not obtain the desired information by means of the requested survey it could not be obtained at all. The possibility that the well might be damaged was met by the requirement of an indemnity bond.

In the granting or refusal of an order for discovery the two controlling considerations are relevancy and good cause. Barron & Holtzoff, Federal Practice and Procedure (1961), § 793. Here it is plain that the appellees’ waiver of severance damages did not destroy the relevancy of the information sought by the highway commission. Severance damages are compensation for the landowner’s loss in having his property cut in two. With those damages out of the case the remaining issue is the market value of the tract being taken. If the existence of other nearby mineral deposits has any relevancy to the question of market value then the disclaimer of severance damages is not a bar to the commission’s right to discovery.

It can hardly be seriously denied that the market value of lands containing non-precious minerals such as this white gravel and concrete aggregate is directly affected by the abundance or scarcity of similar deposits in the vicinity. If the appellees owned the only such deposits in Saline county they would evidently be in a position to demand a better price for their land than would be the ease if the minerals could be found almost anywhere in the county. Consequently it is important for the condemnor to be in a position to prove the existence of other deposits. Specifically, if it should be found that the rest of the appellees’ land contains more white gravel and concrete aggregate than they can be expected to sell in the indefinite future, that fact directly affects the market value of the tract being taken and is a proper matter for the jury’s consideration.

Good cause for the discovery order exists. The statute provides that the court may permit an entry upon a party’s land for the purpose of inspection. There is no practical way to inspect minerals in place except by such test drilling as both parties have already engaged in upon the tract being condemned. The exploratory holes appear to be three inches in diameter and are refilled immediately, so that there is no suggestion of any injury to the land. We are therefore of the opinion that the highway commission is entitled, at a reasonable time in advance of a retrial, to an order permitting it to enter upon the land for the purpose of ascertaining the extent of mineral deposits therein. Of course the commission may be required to give a bond if the landowners undertake to show, as they have not yet done, that the drilling may damage the land.

Reversed and remanded for a new trial.

Bohlinger, J., not participating.

Ed. F. McFaddin, Associate Justice,

concurring in part; and dissenting in part. The Majority Opinion decides two issues. The first issue relates to the judgment of $150,000.00 to the landowners; and I agree with the Majority that this judgment should be reversed. This will be further mentioned in Topic I, infra.

The second issue decided by the Majority relates to the refusal of the Trial Court to allow the Highway Commission to make exploratory drilling tests on lands owned by the Stanleys adjacent to the lands taken. The Majority holds that the Circuit Court was in error in refusing the Highway Commission’s request; and I dissent on this second issue because I am of the opinion that the Circuit Court ruling should not be disturbed on this point. This will be discussed in Topic II, infra.

I. Admission Of Incompetent Evidence As To Value Of Land. I agree with the Majority that the judgment in this case must be reversed because of the admission of incompetent evidence as to the value of the land. The landowners undertook to show: (a) the number of cubic yards and the net dollar value of the white gravel on the land taken; (b) the number of cubic yards and the net dollar value of the concrete aggregate on the tract; and (c) the value of the tract of 18.03 acres as ordinary land. These three items were then totaled to show the landowners’ claims for damages. In 156 American Law Reports 1416, there is an annotation entitled: “Determination in eminent domain proceedings of market value of land as affected by mineral deposits or similar conditions ’ ’; and the holdings all over the country as to the basic rule are summarized:

“With remarkable unanimity the courts hold that in determining the compensation in eminent domain proceedings for the land to be condemned, the existence of valuable mineral deposits in the land taken constitutes an element which may be taken into consideration if and insofar as it influences the market value of the land. The reason for this rule is that the measure of compensation in eminent domain proceedings is the market value of the land to be condemned as a whole with due consideration of all the components that make for its value. This rule has been expressed in a great number of decisions and has also been recognized by all the leading textwriters on this subject. It has been applied indiscriminately to all forms of mineral deposits, such as limestone, ore, gold, fire clay, coal, sand and gravel, and stone. Occasionally the rule has been expressed by the negative statement that the award may not be reached by separately evaluating the land and the deposits, since the latter, being only one element among many in determining the market value of the land, cannot be considered as an independent factor the value of which is to be simply added to the value of the land.” (Emphasis supplied.)

The landowners could have shown the various mineral deposits as circumstances to be considered if and insofar as they influenced the market value of the land, but could not — as was done in this case — separately evaluate the deposits and then total the separate valuations to determine the value of the land. The question was the market value of land having such deposits, and the independent factors of minerals do not, in themselves, determine market value. So the landowners’ entire approach to the determination of value was erroneous.

II. Drilling Holes On Property Not Involved In This Action. It is from the Majority holding on this point that I dissent. The Highway Commission condemned a tract of 18.03 acres. The landowners (appellees) waived all severance damages, and only sought recovery for the lands actually taken. The question was thus narrowed to the value of the 18.03 acres. Lazenby v. Ark. Hwy. Comm., 231 Ark. 601, 331 S. W. 2d 705.

The landowners (appellees) claimed that the land taken contained valuable clay and gravel deposits; and the Highway Commission (appellant) sought a court order to be allowed to drill holes on other lands of the landowners, being lands adjacent to the lands taken. The Trial Court conducted a hearing on the motion, at which hearing the Highway Commission offered the witness Robert B. McElwaine, who testified:

“As far as what I would want to do, it is my opinion that it would be impossible on mineral deposits of this type to evaluate the property being taken without knowing about the rest of the mineral deposit involved, not only on that tract, but in the remainder of the tract. I would propose to go onto the remaining properties, make a topographical survey, map and lay out, drill holes from which samples would be taken and tests performed and from that arrive at the amount of minerals on the whole tract in order to arrive at the amount of valuation of the minerals being taken.”

And, on cross-examination of the same witness, the following occurred:

‘ ‘ Q. Did I understand you to say that you could not determine the value of that mineral unless you knew what deposits were in the community, the land laying around it?
A. That is right.
Q. Does that include the land of other land owners?
A. In so far as it is possible to evaluate it, yes.
Q. Doesn’t include the other land owners in that area ?
A. It would include the right of way up and down the highway there, and if I had all the information I would like to have, yes.
Q. In order to take your testimony outside of the speculative realm you would have to have the knowledge of a considerable portion of the land in that community?
A. This is the focal point right here. I would like to examine the other land, but I would not go into so much work and drill on it as I would the focal point.
Q. I understand the Stanleys own sixty-eight acres and this right of way runs across the whole business; if it was necessary to drill their land to ascertain what the value of the property was in the right of way proper, I can’t understand why you would have to have the information from the other lands.
A. The more we observe from the focal point we may want to go on the other lands to obtain some more detailed information.
Q. How would you do that?
A. I would endeavor to get the permission of the land owners.”

The foregoing excerpts constitute a reasonable summary of the testimony of this witness — the only witness offered by the Highway Commission in support of its motion — and from this testimony the Trial Court'concluded that it would not make an order allowing the Highway Commission to go on the landowners’ private property and drill holes. The Majority Opinion says that the Trial Court committed reversible error, and cites § 28-356 Ark. Stats., which is a copy of Federal Rule No. 34. I desire to defend the ruling of the Trial Court under three headings:

(a) “Good Cause.” Our statute says, “Upon motion of any party showing good cause . . .” Good cause necessarily implies reasonable diligence on the part of the movant, and inability to obtain the desired evidence in any other method. The cases cited by the Majority so state. In the case at bar, the Highway Commission’s witness said that it might be necessary to drill on the lands of other landowners, and yet no effort had been made to accomplish that drilling. If similar clay and gravel deposits existed elsewhere than on the lands of these appellees, then the abundance of such deposits could easily have been shown without damaging the lands of these appellees. Furthermore, until the landowners alleged and proved that there were no other similar deposits except under the right-of-way taken, the landowners had made no case of scarcity. It is interesting to note that the landowners did not allege or undertake to show any such case of scarcity as regards the clay and gravel deposits. So when we look at the entire record, we see that there was no need for the Highway Commission to show abundance until the landowners had alleged and undertaken to show scarcity. This the landowners never claimed nor sought to show. So the Highway Commission’s “good cause” for trespassing on the lands of appellees and drilling exploratory holes was never shown.

(b) Abuse Of Discretion. After hearing the Highway Commission’s proffered testimony (i. e., the witness McElwaine) the Trial Court concluded that the drilling of holes on the appellees’ adjacent lands was not essential to the Highway Commission’s case. The Majority, in reversing the Trial Court, is necessarily saying that the Trial Court abused its discretion in refusing to grant the Highway Commission’s motion. I can see no abuse of discretion; and I use the words of Chief Judge Crie L. Phillips in his dissenting opinion in Williams v. Continental Oil Co., supra:

“It is my opinion that in determining whether good cause has been shown, the district court is necessarily vested with a wide discretion, and that its determination of such question should not be disturbed, in the absence of a showing of a clear abuse of discretion.”

(c) The Constitutional Issue. The Constitution of Arkansas says in Article II, Section 22:

“The right of property is before and higher than any constitutional sanction; and private property shall not be taken, appropriated, or damaged for public use without just compensation therefor.”

The concluding sentence of the Majority Opinion in the present case reads:

“We are therefore of the opinion that the Highway Commission is entitled, at a reasonable time in advance of a retrial, to an order permitting it to enter upon the land for the purpose of ascertaining the extent of mineral deposits therein.”

There is no safeguard to protect rights of the landowners. Drilling holes on the land will certainly be damaging. In the cases cited by the Majority, there were safeguards made by the Court to protect the landowner against damage. For instance, in Williams v. Continental Oil Co., supra, it was affirmatively shown that the making of the survey would not damage the well and that the plaintiff would file a reasonable bond to protect the defendant against any damage which might be done in connection with the survey. But, even then, there was to be no drilling, but merely the ascertainment of the direction of a well already drilled. I find no case anywhere — and the Majority Opinion cites none — wherein the drilling of holes has been permitted under the discovery statute. Yet, the Majority is allowing such trespass and damage to be done in this case in the teeth of our constitutional provision which says that private property shall not be damaged for public use without just compensation. Our discovery statute says nothing about drilling holes on lands. The statute merely says that entry may be made on the land “. . . for the purpose of inspecting, measuring, surveying, or photographing . . .”, and those words are far less than drilling a hole on the land. The Majority says that the discovery statute should be liberally construed, but I insist that liberality should not be carried to the extreme of unconstitutionality. I regard the Majority Opinion on this discovery statute as an invasion and damage to the rights of private property.

To overcome this point, the Majority Opinion says: “Of course, the Commission may be required to give a bond if the landowners undertake to show, as they have not. yet done, that the drilling may damage the land.” This quoted sentence I regard as further reason why this Court should not disturb the discretion exercised by the Trial Court in denying the motion of the Highway Commission to drill holes on private property. The burden was not on the landowners to show that the drilling would damage the land: the burden was on the Highway Commission to show that the drilling would not damage the land. And I find nothing in the record that shows that the Highway Commission met such burden. How does the landowner know what kind of holes the Highway Department intends to drill? It was incumbent on the Highway Department to show that these holes for core drilling would not be traps into which an animal or person could step and receive a broken leg. The Majority is reversing the Trial Court on a point wherein the Highway Department failed to meet its burden of proof.

For each of the reasons hereinbefore stated, I respectfully dissent on this second issue.

Johnson, J., dissents.

Jim Johnson, Associate Justice,

dissenting. Viewing this case in the light most favorable to appellee, as under our rule we must, I am not wholly convinced of the correctness of the majority’s conclusion that the case of City of Little Rock v. Moreland, 231 Ark. 996, 334 S. W. 2d 229, is distinguishable in legal principle from the case at bar. Since, in my view, a serious doubt does exist, I would resolve such doubt in favor of appellee. Therefore, I respectfully dissent.

       See in general 18 Am. Jur. 878, “Eminent Domain” § 242; and compare also 2 Lewis, “Eminent Domain”, 3d ed. p. 1267, § 724; 1 Nichols, “Eminent Domain” 2d ed. p. 692, § 226; Orgel, “Valuation under the Law of Eminent Domain,” 1936 ed. p. 541, § 164; Sehmutz, “Condemnation Appraisers Handbook,” 1938 ed. 65. There is a more recent — i.e., second-edition of Orgel on “Valuation Under Eminent Domain”; and the citation in that edition is Vol. 1, p. 672, § 165. Also, there is an annotation in Vol. 100 Law Edition of U. S. Sup. Ct. Reports, p. 256, entitled, “Measure of damages payable on condemnation of real property by federal government — Supreme Court Cases.”

       For instance, in Williams v. Continental Oil Co., 215 F. (2d) 4, the Court said: “The making of the survey and the use of the report thereof as evidence was not only a convenient means of proving or disproving the crucial fact essential to the right of plaintiff’s to recover, it was the only way to prove or disprove such fact with sufficient certainty to remove it from the field of inference and probabilities. This was not an instance in which plaintiffs by means of other evidence could have established with the required measure of certainty the fact that the well was bottomed underneath their land. Neither was it an instance of the desired survey being cumulative of other available procedure to establish such fact. Without the making of such a survey, plaintiffs can never secure an adjudication of the critical issue in the case, based upon a foundation which is certain and sure.”

       In 8 Ark. Law Review 125, there is a case note entitled: “Trial Practice — Federal rule 34 — Showing ‘Good Cause’ for Discovery.”