{ "id": 1691646, "name": "Ford Motor Co. v. Fish", "name_abbreviation": "Ford Motor Co. v. Fish", "decision_date": "1961-05-22", "docket_number": "5-2416", "first_page": "634", "last_page": "638", "citations": [ { "type": "official", "cite": "233 Ark. 634" }, { "type": "parallel", "cite": "346 S.W.2d 469" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "218 Ark. 663", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1612092 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ark/218/0663-01" ] }, { "cite": "113 F. 2d 827", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1023592 ], "opinion_index": 0, "case_paths": [ "/f2d/113/0827-01" ] }, { "cite": "137 F. 2d 320", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 3675864 ], "opinion_index": 0, "case_paths": [ "/f2d/137/0320-01" ] }, { "cite": "190 F. 2d 910", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 481367 ], "opinion_index": 0, "case_paths": [ "/f2d/190/0910-01" ] }, { "cite": "33 S. W. (2d) 383", "category": "reporters:state_regional", "reporter": "S.W.2d", "opinion_index": 0 }, { "cite": "182 Ark. 763", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1389717 ], "opinion_index": 0, "case_paths": [ "/ark/182/0763-01" ] }, { "cite": "159 S. W. 214", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "109 Ark. 206", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1341196 ], "opinion_index": 0, "case_paths": [ "/ark/109/0206-01" ] }, { "cite": "145 S. W. 879", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "103 Ark. 61", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1351991 ], "opinion_index": 0, "case_paths": [ "/ark/103/0061-01" ] }, { "cite": "156 S. W. 171", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "107 Ark. 476", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1344033 ], "opinion_index": 0, "case_paths": [ "/ark/107/0476-01" ] }, { "cite": "46 S. W. 2d 798", "category": "reporters:state_regional", "reporter": "S.W.2d", "opinion_index": 0 }, { "cite": "185 Ark. 166", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1435163 ], "opinion_index": 0, "case_paths": [ "/ark/185/0166-01" ] }, { "cite": "204 Ark. 386", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1444193 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ark/204/0386-01" ] }, { "cite": "112 S. W. 164", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "86 Ark. 600", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1521472 ], "opinion_index": 0, "case_paths": [ "/ark/86/0600-01" ] }, { "cite": "119 S. W. 2d 747", "category": "reporters:state_regional", "reporter": "S.W.2d", "opinion_index": 0 }, { "cite": "196 Ark. 636", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1462394 ], "opinion_index": 0, "case_paths": [ "/ark/196/0636-01" ] }, { "cite": "202 Ark. 544", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1449879 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ark/202/0544-01" ] }, { "cite": "232 Ark. 270", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1694099 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ark/232/0270-01" ] } ], "analysis": { "cardinality": 535, "char_count": 9821, "ocr_confidence": 0.516, "pagerank": { "raw": 1.6799668719012898e-07, "percentile": 0.6974250236210683 }, "sha256": "f2eb2e24dc3a1c91bc425d7a546670fa59086b4e9bc2a09d56791344a1555192", "simhash": "1:9045fc16180ed64a", "word_count": 1729 }, "last_updated": "2023-07-14T17:50:46.694457+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Ward, J., dissents." ], "parties": [ "Ford Motor Co. v. Fish." ], "opinions": [ { "text": "Ed. F. McFaddin, Associate Justice.\nThis is the second time this case has been to this Court. In the opinion on the first appeal (Ford Motor Co. v. Fish, 232 Ark. 270, 335 S. W. 2d 713), we recited the facts in considerable detail, and reference is hereby made to that opinion for factual recitations. On the first appeal we reversed the judgment for the reasons therein stated, and the cause was remanded. On retrial, there was a jury verdict and judgment in favor of Fish against the Ford Motor Company; and the case is now before us on this second appeal in which the Ford Motor Company urges the two points now to be discussed.\nI. The appellant says: \u201cThe evidence'was not sufficient to sustain a verdict against appellant, and the trial court should have directed a verdict for appellant.\u201d On the first appeal, the Ford Motor Company urged that it was entitled to a directed verdict; and, in denying that contention, we said: \u201cThere was evidence of specific negligence, though not of the strongest nature. For instance, the witness Mayer testified that the brake was binding, which occasioned his taking it to Cook\u2019s Machine Shop to see if the drum was out of round; there was the evidence of the skid mark, and the evidence of Fish himself as to the pull to the right; the testimony that the mechanism had not been disturbed and had remained sealed, and that the drum was an eighth of an inch out of round.\u201d We then concluded, \u201c. . . the judgment is reversed, and the cause remanded.\u201d\nOn the second trial, the evidence for the plaintiff Fish was practically the same as that in the first trial except: (a) the hypothetical question asked the witness Bearden in the first trial- \u2014 -and held by us to he error\u2014 was not repropounded; and (b) the witness Mayer added some details to his testimony in the second trial and also admitted that he did not know how to use a certain gauge discussed by appellant\u2019s witnesses. But, with the exception of these items, we cannot discover \u2014 and appellant has not shown us \u2014 any material difference between the evidence to support the plaintiff\u2019s case in the first trial and the evidence to support the plaintiff\u2019s case in the second trial. Since we held on the first appeal that the evidence for the plaintiff made a case for the jury, and since we now find \u2014 as we do \u2014 that the evidence for the plaintiff in the second trial was equal to that in the first trial, it must necessarily follow that the appellant was not entitled to an instructed verdict on the second trial.\nIn Hallum v. Blackford, 202 Ark. 544, 151 S. W. 2d 82, it was insisted that the Court should have directed a verdict. But we pointed out that we had denied that contention on the first appeal and that the plaintiffs\u2019 evidence on the second trial was the same as on the first trial; and we said: \u201cUnder the rule many times announced by this Court, the decision on the former appeal becomes the law of the case on this appeal unless we can say that the testimony on this second appeal is substantially different from that on the first appeal. We think it unnecessary to attempt to set out or abstract the testimony presented in this record. Suffice it to say, that after carefully reviewing it and comparing it with the testimony on the first trial, we find no substantial or material difference.\u201d In Missouri Pacific R. R. Co. v. Foreman, 196 Ark. 636, 119 S. W. 2d 747, Mr. Justice Donham cited scores of cases on the rule of \u201claw of the case\u201d, and concluded Avith this language: \u201cWe hold that, since the question as to whether or not the evidence Avas sufficient to go to the jury in the instant case Avas settled by this court on the former appeal, there was no error committed by the loAver court in submitting the case to the jury on the second trial.\u201d\nIn McDonough v. Williams, 86 Ark. 600, 112 S. W. 164, Mr. Justice McCulloch used this language: \u201cLearned counsel for appellant argue with much zeal and plausibility that the plaintiff did not make out a case to go to the jury, and that the findings of the jury as to the various essential elements of the alleged cause of action are not supported by evidence. The same question was argued Avith equal force and confidence when the case was before us on former appeal, but we decided that there Avas enough evidence to go to the jury. There is little difference in the evidence in the present record and in that presented on the former appeal, and Ave must treat the former decision as conclusive of the question. \u2019 \u2019\nIt is true that in the second trial in the case at bar the Ford Motor Company offered additional witnesses; but the additional evidence AAras only an effort to contradict and AAreaken the plaintiff\u2019s case, and all such additional evidence did not destroy the fact that the plaintiff had made a case to go to the jury. The decision as to the weight of the evidence was for the jury. The fact remains that we held on the first appeal that the evidence offered by the plaintiff Fish made a case for the jury; and that holding is the law of the case on this appeal since the evidence of the plaintiff was practically the same at each of the trials.\nII. The appellant says: \u201c The Court erred in giving, over the general and specific objections of the appellant, plaintiff\u2019s instructions numbered 4 and 5.\u201d The Instruction No. 5, of which plaintiff now complains, reads:\n\u201cIf you find from a preponderance of the evidence in the case that a defect existing during the manufacturing or assembly process by defendant, Ford Motor Company was the proximate cause of the upset of this vehicle and the resulting injuries and damages, if any, to the plaintiff, and if ypu further find that the exercise of reasonable care by defendant Ford Motor Company would have avoided the placing of this vehicle in the channels of trade with such a defect, if any, then you may find that the failure of defendant Ford Motor Company to discover and correct the defect, if any, constitutes negligence. \u2019 \u2019\nThis same instruction was plaintiff\u2019s Instruction No. 6 in the first trial and, in the opinion of the first appeal, we found the said instruction to be good as against the objections then offered. While the objections to the instruction were somewhat more lengthy in the second trial than in the first, we still adhere to our conclusion that the instruction is good; and this is true even against the objections offered in the second trial.\nThe Instruction No. 4 given at the second trial, and challenged by the appellant on this appeal, is an instruction relating to circumstantial evidence. The instruction reads:\n\u201cAny fact in controversy in this case can be proved by direct or circumstantial evidence. Circumstantial evidence is evidence which does not directly prove the existence of a fact but merely gives rise to a logical inference that it exists. Thus, a fact is established by direct evidence when proved by witnesses who testify with reference to what they saw, heard or perceived, and a fact is established by circumstantial evidence when its existence can be fairly and reasonably inferred from other facts proved in the case.\u201d\nAppellant contends that the above instruction is abstract and has no application to the evidence presented in this case, and that it permits the jury to engage in speculation and conjecture in the absence of proof. We find no merit to appellant\u2019s said objections. Certainly there were circumstances \u2014 as well as direct evidence \u2014 shown by the plaintiff to support his case; and when a litigant relies in whole or in part on circumstantial evidence, then it is proper for the court to define circumstantial evidence. In Kurry v. Frost, 204 Ark. 386, 162 S. W. 2d 48, we said: \u201cThe court gave, over the objection and exception of appellant, an instruction on circumstantial evidence, of which appellant says it \u2018might not be an erroneous abstract statement of law, but it is clearly abstract. It does not undertake to apply the evidence in this case.\u2019 The instruction was not abstract, as appellee\u2019s case depended upon proof of circumstances to support the -inference and finding that appellant was the driver of the car, and it was the function of the jury to weigh and apply the testimony.\u201d\nIn Pekin Wood Products Co. v. Mason, 185 Ark. 166, 46 S. W. 2d 798, we said: \u201cThe settled rule, which has been many times approved by this court, is that a well connected train of circumstances is as cogent of the existence of a fact as an array of direct evidence, and frequently outweighs opposing direct testimony, and that any issue of fact in controversy can be established by circumstantial evidence when the circumstances adduced are such that reasonable minds might draw different conclusions. St. Louis, I. M. & So. Ry. Co. v. Hempfling, 107 Ark. 476, 156 S. W. 171; St. Louis, I. M. & So. Ry. Co. v. Owens, 103 Ark. 61, 145 S. W. 879; Midland Valley Ry. Co. v. Ennis, 109 Ark. 206, 159 S. W. 214; St. Louis-San Francisco Ry. Co. v. Bishop, 182 Ark. 763, 33 S. W. (2d) 383.\u201d\nWe conclude that appellant\u2019s objections to the Court\u2019s instructions are without merit. Affirmed.\nWard, J., dissents.\nIn the briefs, both sides cite and discuss such cases as Pierce v. Ford Motor Co., 190 F. 2d 910, General Motors Corp. v. Johnson, 137 F. 2d 320; and Hupp Motor Car Corp. v. Wadsworth, 113 F. 2d 827. We find it unnecessary to discuss these cases because the rule 'of \u201claw of the case\u201d and the jury verdict settle the issue of liability.\nIn Hearnsberger v. McGaughey, 218 Ark. 663, 239 S. W. 2d 17, Chief Justice Griffin Smith quoted scholarly language on eii. umstantial evidence.", "type": "majority", "author": "Ed. F. McFaddin, Associate Justice." } ], "attorneys": [ "Wright, Lindsey, Jennings, Lester & Shults, for appellant.", "Talbot Feild, Jr., O. Wendell Rail, Jr., Mehaffy, Smith & Williams, Robert V. Light, for appellee." ], "corrections": "", "head_matter": "Ford Motor Co. v. Fish.\n5-2416\n346 S. W. 2d 469\nOpinion delivered May 22, 1961.\nWright, Lindsey, Jennings, Lester & Shults, for appellant.\nTalbot Feild, Jr., O. Wendell Rail, Jr., Mehaffy, Smith & Williams, Robert V. Light, for appellee." }, "file_name": "0634-01", "first_page_order": 656, "last_page_order": 660 }