{ "id": 1719943, "name": "Harvey L. ASHMORE et al v. George FORD, Special Personal Representative of the Estate of Grady T. LEE and ELECTROLUX CORP.", "name_abbreviation": "Ashmore v. Ford", "decision_date": "1979-12-05", "docket_number": "CA 79-161", "first_page": "854", "last_page": "861", "citations": [ { "type": "official", "cite": "267 Ark. 854" }, { "type": "parallel", "cite": "591 S.W.2d 666" } ], "court": { "name_abbreviation": "Ark. Ct. App.", "id": 13370, "name": "Arkansas Court of Appeals" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "263 Ark. 326", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1672651 ], "weight": 2, "year": 1978, "opinion_index": 0, "case_paths": [ "/ark/263/0326-01" ] }, { "cite": "237 Ark. 792", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1737876 ], "weight": 2, "year": 1964, "opinion_index": 0, "case_paths": [ "/ark/237/0792-01" ] }, { "cite": "254 Ark. 771", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1624097 ], "weight": 2, "year": 1973, "opinion_index": 0, "case_paths": [ "/ark/254/0771-01" ] }, { "cite": "41 S.W. 2d 760", "category": "reporters:state_regional", "reporter": "S.W.2d", "year": 1931, "opinion_index": 0 }, { "cite": "184 Ark. 82", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1438504 ], "year": 1931, "opinion_index": 0, "case_paths": [ "/ark/184/0082-01" ] }, { "cite": "369 S.W. 2d 331", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 10158156 ], "year": 1963, "opinion_index": 0, "case_paths": [ "/sw2d/369/0331-01" ] }, { "cite": "270 N.Y.S. 703", "category": "reporters:state", "reporter": "N.Y.S.", "year": 1966, "opinion_index": 0 }, { "cite": "50 Misc. 2d 478", "category": "reporters:state", "reporter": "Misc. 2d", "case_ids": [ 1170177 ], "year": 1966, "opinion_index": 0, "case_paths": [ "/misc2d/50/0478-01" ] }, { "cite": "264 Ark. 227", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1668813 ], "weight": 3, "year": 1978, "pin_cites": [ { "page": "237" } ], "opinion_index": 0, "case_paths": [ "/ark/264/0227-01" ] }, { "cite": "262 Ark. 818", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1675878 ], "weight": 2, "year": 1978, "opinion_index": 0, "case_paths": [ "/ark/262/0818-01" ] }, { "cite": "329 U.S. 495", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6158152 ], "weight": 2, "year": 1947, "opinion_index": 0, "case_paths": [ "/us/329/0495-01" ] }, { "cite": "253 Ark. 816", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1627474 ], "weight": 2, "year": 1973, "opinion_index": 0, "case_paths": [ "/ark/253/0816-01" ] }, { "cite": "235 Ark. 40", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1684838 ], "weight": 2, "year": 1962, "opinion_index": 0, "case_paths": [ "/ark/235/0040-01" ] } ], "analysis": { "cardinality": 659, "char_count": 12126, "ocr_confidence": 0.889, "pagerank": { "raw": 8.6094815292901e-08, "percentile": 0.4902478870389741 }, "sha256": "9dd924cf66e4daae2e51fc06bccb69e4f98065e5b1ce97263bf522bd27e527d9", "simhash": "1:47c9a0a7d1a6e80e", "word_count": 2068 }, "last_updated": "2023-07-14T22:44:49.696704+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge Penix did not participate." ], "parties": [ "Harvey L. ASHMORE et al v. George FORD, Special Personal Representative of the Estate of Grady T. LEE and ELECTROLUX CORP." ], "opinions": [ { "text": "David Newbern, Judge.\nThis tort action arose from an accident involving Harvey L. Ashmore, Jr., who was the rider of a motorcycle, and Grady T. Lee, who was the driver of an automobile. The two vehicles were approaching each other from opposite directions on a busy street when the Lee vehicle turned left in front of the motorcycle. Harvey turned his motorcycle to the left to avoid colliding with the car, and his leg struck, or was struck by, the rear panel and bumper of Mr. Lee\u2019s car, causing serious injury to Harvey\u2019s leg. This action was brought by Harvey L. Ashmore, Sr., and his wife, Clara Sue Ashmore, individually and as next friends of Harvey L. Ashmore, Jr. The defendants were the estate of Mr. Lee and Electrolux Corporation. The allegation of liability of Electrolux was based on the contention that Mr. Lee was an employee of Electrolux acting in the scope of his employment at the time the accident occurred. The issues presented here have mostly to do with proof of that relationship.\nA jury found the accident to have been caused by the negligence of Mr. Lee to the extent of 65% and of Harvey L. Ashmore, Jr., to the extent of 35%. Based on that finding and a finding of damages suffered by the plaintiffs, the judgment awarded $13,000.00 to the parents on their individual claims and $13,000.00 to them on their son\u2019s behalf. The jury found Mr. Lee to have been an independent contractor rather than an employee of Electrolux, and thus all of the damages were against Mr. Lee\u2019s estate only. The judgment was appealed by the Ashmores to the Arkansas Supreme Court, and the case was assigned to us pursuant to Rule 29(3).\nWe find three of the appellant\u2019s four points are sufficient bases for reversal. We will discuss all four, as they may arise again upon retrial.\nI.\nThe appellants\u2019 first point is that the court erred in refusing to compel Electrolux to produce a statement made by Mr. Lee to Electrolux or its insurer shortly after the accident. In its order, the court cited two cases, Dritt v. Morris, 235 Ark. 40, 357 S.W. 2d 13 (1962) and Curbo v. Harlan, 253 Ark. 816, 490 S.W. 2d 467 (1973).The Drift case involved responses to interrogatories allegedly within the \u201cwork product of the attorney\u201d privilege. There the Arkansas Supreme Court found it should compel answers to some of its interrogatories but not others, applying the well known \u201cnecessity\u201d test established in Hickman v. Taylor, 329 U.S. 495, 67 S. Ct. 385 (1947). In Curbo, the Supreme Court approved the trial court\u2019s order compelling production of a statement obtained by an insurance investigator and subsequently given to an attorney. The trial court had ruled the statement was not part of an attorney\u2019s work product.\nAfter citing those cases, and without discussion of them, the court said it would not compel production of the statement for three reasons: (1) the appellants had interviewed Mr. Lee after the accident, (2) agency or acting within the scope of employment cannot be proven by the admission of the alleged agent, and (3) the statement would not be admissible because of the \u201c Dead Man\u2019s Statute.\u201d We will discuss these reasons in reverse order.\nThe \u201c Dead Man\u2019s Statute,\u201d found in Section 2 of the Schedule of the Arkansas Constitution of 1874, was repealed with the adoption of the Uniform Rules of Evidence in 1974. Ark. Stat. Ann. \u00a7 28-1001 (Supp. 1977). In Davis v. Hare, 262 Ark. 818, 561 S.W. 2d 321 (1978), it was held that this was a rule of evidence or a \u201cprocedural\u201d change and thus the new rule was applicable because the trial, as opposed to the operative facts, occurred after the change in the law. That is the case here.\nThe second reason gives us equally little pause, as it went to admissibility rather than discoverability. Under the discovery statutes applicable at the time the order was entered, production of the statement could have been required regardless of its admissibility if the request appeared reasonably calculated to lead to the discovery of admissible evidence. Ark. Stat. Ann. \u00a7\u00a7 28-356 and 28-348 (b) (Repl. 1962).\nWe might interpret the court\u2019s first reason for denying production as being there was no \u201cgood cause\u201d for production of the statement. Even if that had been the court\u2019s reason in referring to the pretrial interview of Mr. Lee, it would have been invalid. Harvey T. Ashmore, Sr., said in testimony proffered at the trial that Mr. Lee had told him he was on his way to call on an Electrolux customer in the statement sought, that evidence would have been valuable to the appellants on the question of scope of employment, and possibly the general issue of employment. An excellent discussion on the need for liberal interpretation of discovery rules in the light of circumstances of the case at hand appears in Marrow v. State Farm Ins. Co., 264 Ark. 227, 570 S.W. 2d 607 (1978). There Judge Fogleman made it clear that when proof of a party\u2019s case depends largely on testimony of his adversary and documents kept by his adversary, \u201cthe scope of discovery permitted should be broader than otherwise and . . . [the seeking party]. . . should be allowed to inspect any writing in the files ... [of the adversary] . . . which might lead to admissible evidence.\u201d (264 Ark. at 237)\nThe appellees contend the error, if any, was harmless, as the jury found Mr. Lee was an independent contractor. That argument is specious, as the statement sought could have produced or led to evidence upon which the jury could have reached the conclusion Mr. Lee was an employee of Electrolux acting in the scope of his employment.\nII.\nThe appellants\u2019 second argument is that the trial court erred in not allowing Harvey L. Ashmore, Sr., to testify as to what Lea Vincent, an Electrolux office employee, told him about Mr. Lee\u2019s activities on the day of the accident. The court ruled the proffered testimony was hearsay. The appellants contend the testimony is excepted from the hearsay rule under Rule 801 (d) (2) of the Uniform Rules of Evidence. Ark. Stat. Ann. \u00a7 28-1001 (Repl. 1979).\nWe approve the trial court\u2019s action in excluding this testimony. The proffer was to the effect that Ms. Vincent, whose whereabouts at the time of the trial were unknown, told Mr. Ashmore that on the day of the trial Mr. Lee had been at the Electrolux office to \u201cpick up his calls,\u201d and that he had returned to the office shortly after the accident. This testimony was relevant on the question of the employment relationship between Mr. Lee and Electrolux, but to be admissible under Rule 801 (d) (2), supra, it must constitute an admission.\nWe find no Arkansas cases containing specific definition of \u201cadmission.\u201d It is generally defined, however, as a concession or a statement by a party or his agent amounting to a prior acknowledgment of a fact the party denies. In Re Brooklyn Bridge Southwest Urban Renewal Project, 50 Misc. 2d 478, 270 N.Y.S. 703 (1966), and Hartford Accident & Indemnity Co. v. McCardell, 369 S.W. 2d 331 (Tex. 1963). At no time did Electrolux deny the facts sought to be asserted in Ms. Vincent\u2019s statement to Mr. Ashmore. At one point in a deposition the Electrolux district manager denied Mr. Lee was working \u201cin the course of his employment\u201d at the time of the accident, but the abstract before us does not show that he or any other Electrolux representative denied that Mr. Lee was at their office on the day in question or that he had picked up his calls that day.\nIII.\nThe appellants\u2019 third argument is that the trial court erred in refusing to permit Mr. Ashmore, Sr., to testify that Ms. Vincent asked him to fill out an accident report for Electrolux\u2019s insurer. The appellants proffered Mr. Ash-more\u2019s testimony and offered an instruction taken directly, and altered only insignificantly, from Delamar & Allison v. Ward, 184 Ark. 82, 41 S.W. 2d 760 (1931). The instruction, which was approved in the Delamar case, makes clear evidence of insurance coverage of a vehicle is admissible on the issue whether the vehicle was being driven for the purposes of or under the control of the party carrying the insurance.\nIn their response to the appellants\u2019 argument, the appellees cite only Hogan Co. v. Nichols et al, 254 Ark. 771, 496 S.W. 2d 404 (1973), in which the Arkansas Supreme Court found evidence of an insurance agreement should not have been admitted to prove an employer-employee relationship. In that case, however, there was evidence that the alleged employer could not have purchased insurance covering vehicles hired but not owned by it, and covering them only when driven by an employee of the alleged employer. The Delamar case was distinguished in Hogan on the basis of proof in the latter that existence of the particular policy and its coverage was consistent with either independent contractor or employee status of the driver.\nIn the case before us, we have no evidence what the policy provided, nor do we have any evidence that Electrolux could not have purchased insurance covering its employees, no matter whose cars they drove. While we can distinguish this case from Hogan, we cannot distinguish it from Delamar.\nThe trial judge apparently made no discretionary determination under Rule 403, Ark. Stat. Ann. \u00a7 28-1001, supra, that any prejudice resulting from introduction of evidence of insurance would outweigh the probative value of the evidence. At least, if he did so, it does not appear in the abstract. Thus, we find no justification for the court to have refused to permit the testimony or to have given the requested instruction, had the testimony been permitted.\nIV.\nThe final point made by the appellants is that the court erred in refusing to give A.M.I. 614, an instruction saying that a person confronted with a \u201csudden emergency\u201d is charged only with the duty of care reasonably expected under those circumstances. The instruction points out that it applies only to sudden emergencies which are not caused by the negligence of the party requesting the instruction.\nTwo lines of Arkansas Supreme Court cases have developed on the propriety of giving this instruction. Some say the language of the instruction pointing out that it applies only where the negligence of the party seeking the instruction did not cause the emergency is a sufficient safeguard, thus implying the instruction may be given even when there is some evidence of negligence on the part of the party seeking the instruction. See, e.g., Hooten v. DeJarnatt, 237 Ark. 792, 376 S.W. 2d 272 (1964). Others say a party is not entitled to the instruction where his own negligence has created the emergency. See, e.g., Williams v. Carr, et al, 263 Ark. 326, 565 S.W. 2d 400 (1978). These approaches are not inconsistent. When they are combined, the result is that the trial judge may give the instruction in cases where there is some negligence on the part of the party seeking the instruction, but the instruction should not be given where the evidence is very strong that the party requesting the instruction has \u201ccreated\u201d the emergency by his own negilgence.\nIn the case before us, we are not asked to say there was not substantial evidence to support the jury\u2019s finding of 35% negligence on the party of Harvey L. Ashmore, Jr., but we would have had difficulty finding that evidence had we been asked. At the very least, it is clear to us that there was no strong evidence that an emergency was created by negligence of Harvey. The instruction should have been given.\nReversed and remanded.\nJudge Penix did not participate.\nThe statute which required a showing of good cause for production of documents, Ark. Stat. Ann. 8 28-356 (Repl. 1962), was in effect at the time of this discovery request. The \"good cause\" requirement has been eliminated from the rule which has replaced the statute. See, A.R. Civ. P. 34.", "type": "majority", "author": "David Newbern, Judge." } ], "attorneys": [ "Ray & Donovan, for appellants.", "Penix, Penix & Mixon and Reid, Burge & Prevallet, by: Dan M. Burge, for appellees." ], "corrections": "", "head_matter": "Harvey L. ASHMORE et al v. George FORD, Special Personal Representative of the Estate of Grady T. LEE and ELECTROLUX CORP.\nCA 79-161\n591 S.W. 2d 666\nOpinion delivered December 5, 1979\nReleased for publication January 9, 1980\nRay & Donovan, for appellants.\nPenix, Penix & Mixon and Reid, Burge & Prevallet, by: Dan M. Burge, for appellees." }, "file_name": "0854-01", "first_page_order": 914, "last_page_order": 921 }