{
  "id": 8723608,
  "name": "Tucker, Administrator v. Ford",
  "name_abbreviation": "Tucker v. Ford",
  "decision_date": "1941-01-13",
  "docket_number": "4-6148",
  "first_page": "680",
  "last_page": "684",
  "citations": [
    {
      "type": "official",
      "cite": "201 Ark. 680"
    },
    {
      "type": "parallel",
      "cite": "146 S.W. 542"
    }
  ],
  "court": {
    "name_abbreviation": "Ark.",
    "id": 8808,
    "name": "Arkansas Supreme Court"
  },
  "jurisdiction": {
    "id": 34,
    "name_long": "Arkansas",
    "name": "Ark."
  },
  "cites_to": [],
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  "last_updated": "2023-07-14T22:44:11.265597+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "Tucker, Administrator v. Ford."
    ],
    "opinions": [
      {
        "text": "GIrieeiN Smith, C. J.\nOtis G-ould was fatally injured by the gross negligence of an automobile driver. The administrator\u2019s suit to compensate the estate resulted in an instructed verdict in favor of Clifford Ford, the defendant. This appeal questions correctness of the court\u2019s actions.\nThe tragedy occurred on St. Louis street in Bates-ville February 4, 1937. Chester Brown testified that while he was driving, a car operated at a high rate of speed passed and nearly struck him. It was a dark-colored car and \u201czig-zagged\u201d back and forth on the street and finally left the pavement and struck a man who was walking an adjacent path.\nBill Walker, police officer assigned to traffic duty, arrived with 'Ben Kent at the scene of injury fifteen or twenty, minutes after Gould was struck. Kent was City Marshal Hugh Gennings \u2019 deputy. When Walker and Kent began their investigations Gould had been taken to the hospital. The officers talked with persons who were supposed to have seen the death car, and checked tire patterns on the paving and those leading to the point where Gould was struck. Walker testified that when he and Kent \u201cleft the corner\u201d they \u201cknew whom they were going after because of information received.\u201d An objection to this statement was sustained.\nWalker then testified that he and Kent proceeded to \u201cJobe\u2019s Place\u201d where they found a parked Chevrolet car. An examination disclosed that the car was dirty and dusty except for the right front fender and the right, lower part of the cowl. The fender was dented, as was also the cowl near the windshield. These places were clean \u201capparently where something had been hit.\u201d The defendant\u2019s objection to the last statement was sustained. The officers found Clifford Ford and Berry Lockart in Jobe\u2019s Place in an intoxicated condition. After talking with them, the two were detained. On the way to the city hall the tires on Ford\u2019s Chevrolet were compared with markings found near where Gould was struck, and they matched.\nC. E. Purcelley was near his service station. He did not know anything about a car striking Gould \u201cuntil the boys came running there and told me, and I noticed a car passing by going south. I couldn\u2019t swear who was in it. It was a Chevrolet, but I don\u2019t know wbat color it was. I wouldn\u2019t have noticed it if it hadn\u2019t been driving so fast. I judge it was making sixty miles. It wasn\u2019t five minutes until somebody was telling me about the fellow getting run over.\u201d\nErnest Wycough, who worked for Purcelley, saw a car pass Purcelley\u2019s place of business at a high rate of speed, -but he did not recognize the car. No other car passed until after the injury occurred. The car was light blue, or light gray. Just before this car passed, two other cars raced down the street and turned in front of Purcelley\u2019s place. The car described as light blue or light gray was not a dark colored car.\nLeonard Wolford testified to having gone to the scene of tragedy and to having given Bill Walker what information he was able to gather. Walker and Kent returned from Jobe\u2019s Place with Ford and Lockart. Ford was then driving a Chevrolet car. The witness was asked: \u201cDid you tell Bill Walker and Bill Kent and Hugh Gennings that Berry Lockard and Clifford Ford had passed you in an automobile a few minutes before the wreck?\u201d The defendant\u2019s objection was sustained.\nIn directing a verdict for the defendant, the court said: \u201cIn order for the administrator to recover he would have to show that Ford was the driver of the car, and that he struck and killed Otis Gould. It is an unfortunate incident. It has been investigated here for a longtime by the state authorities, who have been trying to determine who killed this man.\u2019 There is no proof whatever to connect this defendant with the driving of this car. There are only circumstances from which you would have to draw your own conclusions to even connect him with the driving of the car. The mere fact that he was at Jobe\u2019s Place when Mr. Walker went out there would certainly be no evidence, because others could have been there, and Walker might just as well have picked up somebody else. The one who did this must have come out from town, and must have hit Gould. There is no proof even that Ford drove by this place. The only circumstance is that Ford\u2019s car was dented on the fender and cowl. You can go down the street and find dozens of dented cars. Another circumstance is that [tire patterns found near Gould] were similar to treads on Ford\u2019s car. There are hundreds of cars that have similar treads. I think even if the jury returned a verdict on that kind of evidence the.court would not uphold it, because you must have some substantial evidence upon which to base a verdict of that kind.\u201d\nOther Facts \u2014 AND OPINION\nIt is our view that the trial court correctly instructed a verdict for the defendant. The test is: If the cause had been submitted without further testimony, and the jury had returned a verdict for the plaintiff, and judgment had been rendered on such verdict, would this court say it was predicated upon substantial evidence? The inevitable answer is \u201cno.\u201d\nThe only eye-witness to the tragedy who testified said the car that struck Gould was dark in color. An unidentified ear seen by Wycough was light blue or light gray.\nThe tires on Ford\u2019s car were of a make corresponding with a pattern made by the collision ear, but there was no evidence that the markings were measured, or that the designs were compared with sufficient accuracy to create more than an inference that they might have been identical.\nThe same reasoning applies to the dents found on Ford\u2019s car. They may have been made in any one of a hundred different ways, but the evidence here is wholly conjectural.\nExceptions were not saved to the evidence excluded on objections by the defendant. Hence, these assignments cannot be considered. [See Appeal and Error, West Publishing Company\u2019s Arkansas Digest, \u00a7\u00a7 260 (1) and 260 (2), p. 397, and cases there cited.]\nIt is insisted that error was committed when the court permitted the deputy prosecuting attorney to sit with defendant\u2019s counsel during trial, the point urged being that Ford was under indictment on a charge of involuntary manslaughter for the killing of Gould. No objection seems to have been made during trial. \u00a5e must therefore assume there was no abuse of discretion. Appellant\u2019s abstract does not point to any proof of facts alleged as a basis for this exception.\nAnother objection is that comments by the court to the effect that the prosecuting attorney\u2019s office had been making an investigation and had been unable to determine who was responsible for Gould\u2019s death were highly improper. When it is considered that under the court\u2019s instructions there was nothing for the jury to consider, it readily appears that the remarks were harmless unless disqualification of the judge had been suggested. This was not done. Nor was he disqualified.\nFinally, it is argued that the judgment should be reversed and the cause remanded for a new trial because the court, of its own motion, g\u2019ave the instructed verdict without affording plaintiff an opportunity to take a non-suit. When the judge began addressing* the jury preliminary to directing a verdict counsel for appellant was not in the court room, but returned before completion of the direction. The record, as abstracted, does not disclose an objection. But, even though there had been an exception, we would not, in the circumstances here reflected, say the court abused its discretion.\nAffirmed.\nChester further testified: \u201cWhen the car struck the man I heard an impact which sounded like two box ears bumping together. The body rolled off the hack end of the car on the right side and went end over end about three times and fell into the ditch. The car speeded on. . . . The automobile which struck Gould didn\u2019t stop, but . . . [went] on down toward the bridge. I didn\u2019t recognize the driver and am unable to give a- description, except that it was a dark-colored car.\u201d",
        "type": "majority",
        "author": "GIrieeiN Smith, C. J."
      }
    ],
    "attorneys": [
      "W. T. Thompson and R. W. Tuclcer, for appellant.",
      "Dene H. Coleman, for appellee."
    ],
    "corrections": "",
    "head_matter": "Tucker, Administrator v. Ford.\n4-6148\n146 S. W. 542\nOpinion delivered January 13, 1941.\nW. T. Thompson and R. W. Tuclcer, for appellant.\nDene H. Coleman, for appellee."
  },
  "file_name": "0680-01",
  "first_page_order": 698,
  "last_page_order": 702
}