Edwards v. T. H. Epperson & Son House Moving Co.

Citations: 246 Ark. 194; 437 S.W.2d 480; 1969 Ark. LEXIS 1228Docket: 5-4759

Court: Supreme Court of Arkansas; February 24, 1969; Arkansas; State Supreme Court

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Janie Lorean Edwards, as the widow and administratrix of Charlie Howard Edwards' estate, filed a wrongful death suit against T. H. Epperson, Son House Moving Company, and Arkansas Power Light Company. Before the trial, the case against Arkansas Power Light Company was dismissed. Following the trial against Epperson Company, the jury awarded Edwards $96,250. However, the court later granted Epperson's motion for judgment non obstante veredicto, dismissing Edwards' complaint with prejudice. The case stemmed from an incident where Edwards was killed while riding on a house being moved on U.S. Highway 67, allegedly struck by a guy wire placed across the highway by the power company. It was claimed that the truck driver, Ed Epperson, acted negligently by speeding, failing to maintain proper lookout, losing control, and ignoring a stop warning. The court found sufficient evidence of negligence but concluded there was insufficient evidence to show that Epperson was acting on behalf of Epperson Company. Edwards argued that the court lacked authority to enter a judgment notwithstanding the verdict, but the court referenced prior cases affirming its jurisdiction to determine the appropriateness of a judgment before it is entered. The court indicated that if errors were believed to have occurred, they should be addressed through a bill of exceptions for review on appeal.

In Bockman v. World Ins. Co., the court addressed a request for judgment notwithstanding the verdict, focusing on whether there was sufficient evidence to establish that Ed Epperson, the truck driver, was an agent or employee of the appellee company at the time of the accident. Key evidence included:

1. Ed Epperson, a vice-president of T. H. Epperson, Son House Moving Company, Inc., was involved in the incident.
2. Two regular employees of Epperson, Charlie Edwards and Obie Horn, were present on the job.
3. Raymond Edwards testified to having worked intermittently for Epperson for two years before the accident, indicating that while Arey owned the tractor, Epperson owned the trailer, which he and his father had modified. He identified the trailer by a specific welding mark.
4. Both Epperson and Arey obtained permits from the Highway Commission to move houses from Malvern to a location 14 miles north, to be executed during the same time frame.

The testimony revealed that Epperson was contacted by Arey to assist in moving the building due to Arey's wife's hospitalization, and Arey paid Epperson directly, not the Epperson corporation. Arey also hired Edwards and Horn for the job, paying them directly. However, a cross-examination of Raymond Edwards indicated uncertainty about the trailer's ownership, and Epperson claimed the trailer was purchased long before. The court noted that the simultaneous issuance of permits for similar jobs was a notable circumstantial factor, although the appellee's evidence was more compelling overall.

Different vehicles were involved in the incident, as indicated by the distinct truck and trailer license numbers on the Epperson and Arey applications and permits. Epperson's permit lists a truck with license D402 and a trailer ST6673, while Arey’s shows a truck C838 and a trailer ST6455. The loads' widths differ, with Epperson’s being 20 feet and Arey’s 22 feet. Epperson was moving a construction shack for an asphalt plant, and Arey was contracted to relocate a house for Mrs. Moody. The trial court found insufficient evidence to warrant a jury question, noting that Epperson and Edwards were working for Arey on the occasion in question. Although Edwards was an employee of the appellee, his testimony was deemed unreliable regarding the trailer's ownership, as he did not know who owned it at the time of the accident.

The permits were issued five days before the accident, suggesting no motive existed for creating confusion about the job assignment. A photograph of the truck and trailer involved, taken after the accident, clearly displayed Arey's license numbers. While it’s theoretically possible for Epperson to own both sets of vehicles, no evidence supported this, nor did the appellant pursue this argument. 

The court also upheld the decision to exclude sheriff testimony about a card presented by Epperson at the accident scene, which would have identified his role in the appellee corporation. The court found no error in this exclusion since the card itself was not submitted as evidence, and there was no proof of its unavailability. Furthermore, a lack of offer of proof about what the sheriff would have stated if allowed to testify contributed to the court's ruling. The judgment in favor of the appellee was affirmed, indicating that even if the card identified Epperson as a vice-president, it likely would not have significantly bolstered the appellant's case.