{ "id": 1889861, "name": "Russell Gene JERNIGAN v. Hubert Lynn CASH and James H. Wilson", "name_abbreviation": "Jernigan v. Cash", "decision_date": "1989-04-10", "docket_number": "89-29", "first_page": "347", "last_page": "353", "citations": [ { "type": "official", "cite": "298 Ark. 347" }, { "type": "parallel", "cite": "767 S.W.2d 517" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "193 Ark. 426", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1411142 ], "year": 1946, "opinion_index": 0, "case_paths": [ "/ark/193/0426-01" ] }, { "cite": "291 Ark. 448", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1872614 ], "weight": 2, "year": 1987, "opinion_index": 0, "case_paths": [ "/ark/291/0448-01" ] }, { "cite": "243 Ark. 698", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8723326 ], "weight": 2, "year": 1967, "opinion_index": 0, "case_paths": [ "/ark/243/0698-01" ] }, { "cite": "173 F. 903", "category": "reporters:federal", "reporter": "F.", "case_ids": [ 29010 ], "year": 1909, "opinion_index": 0, "case_paths": [ "/f/173/0903-01" ] }, { "cite": "741 S.W. 255", "category": "reporters:state_regional", "reporter": "S.W.", "year": 1987, "opinion_index": 0 }, { "cite": "294 Ark. 156", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1895766 ], "year": 1987, "opinion_index": 0, "case_paths": [ "/ark/294/0156-01" ] }, { "cite": "89 S.E. 753", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1916, "opinion_index": 0 }, { "cite": "145 Ga. 696", "category": "reporters:state", "reporter": "Ga.", "case_ids": [ 1071234 ], "year": 1916, "opinion_index": 0, "case_paths": [ "/ga/145/0696-01" ] }, { "cite": "204 Ark. 734", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1444250 ], "weight": 2, "year": 1942, "opinion_index": 0, "case_paths": [ "/ark/204/0734-01" ] }, { "cite": "449 N.Y.S.2d 162", "category": "reporters:state", "reporter": "N.Y.S.2d", "year": 1982, "opinion_index": 0 }, { "cite": "434 N.E.2d 231", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1982, "opinion_index": 0 }, { "cite": "55 N.Y.2d 285", "category": "reporters:state", "reporter": "N.Y.2d", "case_ids": [ 4382968 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/ny-2d/55/0285-01" ] }, { "cite": "137 S.W.2d 242", "category": "reporters:state_regional", "reporter": "S.W.2d", "year": 1940, "opinion_index": 0 }, { "cite": "199 Ark. 1045", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1456507 ], "year": 1940, "opinion_index": 0, "case_paths": [ "/ark/199/1045-01" ] }, { "cite": "205 Ark. 717", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1488299 ], "weight": 2, "year": 1943, "opinion_index": 0, "case_paths": [ "/ark/205/0717-01" ] }, { "cite": "145 F. Supp. 641", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 4274746 ], "year": 1956, "opinion_index": 0, "case_paths": [ "/f-supp/145/0641-01" ] }, { "cite": "160 F. Supp. 288", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 342544 ], "year": 1958, "opinion_index": 0, "case_paths": [ "/f-supp/160/0288-01" ] }, { "cite": "261 Ark. 133", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1678983 ], "weight": 2, "year": 1977, "opinion_index": 0, "case_paths": [ "/ark/261/0133-01" ] }, { "cite": "295 Ark. 90", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1893750 ], "weight": 2, "year": 1988, "opinion_index": 0, "case_paths": [ "/ark/295/0090-01" ] }, { "cite": "756 S.W.2d 907", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 1892782, 1892783 ], "year": 1988, "opinion_index": 0, "case_paths": [ "/ark/296/0344-01", "/ark/296/0345-01" ] }, { "cite": "296 Ark. 344", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1892782 ], "year": 1988, "opinion_index": 0, "case_paths": [ "/ark/296/0344-01" ] }, { "cite": "270 Ark. 471", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1709186 ], "weight": 2, "year": 1980, "opinion_index": 0, "case_paths": [ "/ark/270/0471-01" ] }, { "cite": "292 Ark. 592", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1871311 ], "weight": 2, "year": 1987, "opinion_index": 0, "case_paths": [ "/ark/292/0592-01" ] }, { "cite": "100 S.W.2d 676", "category": "reporters:state_regional", "reporter": "S.W.2d", "year": 1946, "opinion_index": 0 }, { "cite": "252 Ark. 1009", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1630099 ], "weight": 2, "year": 1972, "opinion_index": 1, "case_paths": [ "/ark/252/1009-01" ] } ], "analysis": { "cardinality": 698, "char_count": 10797, "ocr_confidence": 0.871, "pagerank": { "raw": 3.4981188099231294e-07, "percentile": 0.8826273269213765 }, "sha256": "8b6bde4d8aae27ae332a20d18229bde7f5d6826747b045ba2ba52ee2738656a1", "simhash": "1:6570de36ea0ce062", "word_count": 1857 }, "last_updated": "2023-07-14T20:49:53.094543+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Glaze, J., not participating.", "Hays, J., dissents." ], "parties": [ "Russell Gene JERNIGAN v. Hubert Lynn CASH and James H. Wilson" ], "opinions": [ { "text": "Jack Holt, Jr., Chief Justice.\nAppellee Hubert Lynn Cash filed suit against appellant Russell Gene Jernigan alleging that Jernigan damaged Cash\u2019s automobile by negligently driving his own automobile into Cash\u2019s. Jernigan denied this allegation and moved to join appellee James H. Wilson, whose vehicle was also damaged in the incident, as a plaintiff pursuant to Ark. R. Civ. P. 19(a). The trial court granted his motion. After trial without jury, the trial court found that Jernigan was negligent and entered judgment for Cash in the amount of $7,500.00 and for Wilson in the amount of $1,143.16. From this order, Jernigan appeals. We find that the trial court erred in allowing an amendment to Cash\u2019s complaint and reverse and remand.\nOn June 7,1986, Jernigan and a friend, Hayden Booth, went to the \u201cParty Tyme\u201d bar in Morgan, Arkansas. Jernigan had several drinks and then started playing pool. A stranger, hereinafter referred to as John Doe, approached Jernigan and began harassing him. John Doe was asked to leave \u201cParty Tyme\u201d but returned a short time later and renewed the harassment. Eventually, both Jernigan and Booth were asked to leave \u201cParty Tyme\u201d because they were arguing loudly. While Jernigan and Booth were sitting in Jernigan\u2019s car with the motor running in a parking lot adjacent to \u201cParty Tyme,\u201d Jernigan was approached by John Doe, who began to hit him through the open window. John Doe then told Jernigan to get out of the car; Jernigan refused. Thereafter, John Doe informed Jernigan that if he would not get out of the car, he would shoot him. According to Jernigan, Doe drew a gun from his waist. Booth testified that he heard the threat but did not see a gun. Jernigan put his vehicle in gear, backed up, and drove off in an erratic manner, running into several vehicles, two of which were owned by appellees. Jernigan exited his car immediately and ran from the scene.\nJernigan first contends that there was no substantial evidence for the trial court to find him negligent in that he acted reasonably in an emergency situation.\nWhen a case is tried by a circuit court sitting without a jury, our inquiry on appeal is not whether there is substantial evidence to support the factual findings of the court, but whether the findings are clearly erroneous (clearly against the preponderance of the evidence). Bassett v. Hobart Corp., 292 Ark. 592, 732 S.W.2d 133 (1987). See also Superior Improvement Co. v. Mastic Corp., 270 Ark. 471, 604 S.W.2d 950 (1980). In reviewing a finding of fact by a trial court, we consider the evidence and all reasonable inferences therefrom in a light most favorable to the appellee. McCartney v. McLaughlin, 296 Ark. 344, 756 S.W.2d 907 (1988).\nThe test for negligence is whether the defendant, in light of all the circumstances, acted as a person of ordinary prudence would have acted under the same or similar circumstances. Earnest v. Joe Works Chevrolet, Inc., 295 Ark. 90, 746 S.W.2d 554 (1988). Verson Allsteel Press Co. v. Garner, 261 Ark. 133, 547 S.W.2d 411 (1977).\nWhen a person is confronted with a sudden emergency created by the conduct of another, his course of conduct must be measured by what a man of ordinary prudence would do in an emergency, rather than what he might do on more mature deliberation. James v. South Central Stages, Inc., 160 F. Supp. 288 (W.D. Ark. 1958); Keene v. George Enterprises, 145 F. Supp. 641 (W.D. Ark. 1956). See Lambert v. Saunders, 205 Ark. 717, 170 S.W.2d 375 (1943); Missouri Pacific Transportation Co. v. Mitchell, 199 Ark. 1045, 137 S.W.2d 242 (1940). See also Restatement (Second) of Torts \u00a7 296 (1965). The existence of an emergency does not automatically absolve one from liability for his conduct; the standard still remains that of a reasonable man under the circumstance. Ferrer v. Harris, 55 N.Y.2d 285, 434 N.E.2d 231, 449 N.Y.S.2d 162 (1982).\nThe fact that a person was voluntarily intoxicated at the time of the occurrence can be considered by the trier of fact in determining whether he was negligent. See Mills v. Silbernagel & Co., 204 Ark. 734, 164 S.W.2d 893 (1942); Powell v. Berry, 145 Ga. 696, 89 S.E. 753 (1916). See also Inderrieden v. Phillips, 294 Ark. 156, 741 S.W. 255 (1987). Ordinary care is measured by what a prudent sober man, not a prudent intoxicated man, would do under like circumstances. Little Rock Ry. & Elec. Co. v. Billings, 173 F. 903 (8th Cir. 1909); Powell, supra.\nWhen viewed in a light most favorable to appellees, the evidence shows that Jernigan drank several bourbon and Cokes before the accident; he was threatened by John Doe; John Doe did not employ a gun; and in response to these threats, Jernigan took a path of retreat that caused extensive damage to appellees\u2019 vehicles. After considering this evidence, the trial court determined that Jernigan was negligent in that a reasonable person would not have created a \u201cdemolition derby\u201d in response to the circumstances with which Jernigan was confronted.\nWe cannot say that the trial court\u2019s finding that Jernigan was negligent is clearly erroneous. Whether Jernigan acted reasonably under the circumstances is a matter for the trier of fact to determine. See Jones v. Ferguson, 243 Ark. 698, 421 S.W.2d 607 (1967). See also Elk Corp. of Arkansas v. Jackson, 291 Ark. 448, 725 S.W.2d 829 (1987). Simply stated, we decline to substitute our judgment for that of the trial court.\nJernigan also argues that the trial court erred in allowing an amendment to appellee Cash\u2019s complaint after he had rested his case.\nIn his complaint, Cash asked for $4,314.04 (cost of repair) in damages to his new 1986 Honda Accord. Testimony was introduced at trial that he paid $13,500.00 for the car; repair costs were $4,314.04; the car was worth five or six thousand dollars after the accident; and the car still has air leaks, and its doors rattle and will not shut. At the'close of trial, the following exchange took place:\nThe Court: I\u2019m awarding Mr. Wilson $1,143.16 and Mr. Cash $7,500.00. I know what Hondas are worth. I drive one. I feel sorry for him. I wouldn\u2019t trade mine for any other car. Maybe a Porsche 944 Turbo, but \u2014 -that\u2019s a good car and I feel for him.\nMr. Staten (Cash\u2019s counsel): Your Honor, for the record, in my complaint I believe that we only asked for damages in the amount of the repair bill and I\u2019m going to\u2014\nThe Court: Well, that\u2019s all you\u2019re entitled to.\nMr. Staten: Well, I was going to amend my complaint since there is still \u2014 this trial is bifurcated and open-end damages.\nThe Court: You should have done that before you came in here. What did you pray for?\nMr. Staten: The amount of the repair bill.\nThe Court: Forty-three fourteen.\nMr. Staten: Four Thousand three hundred fourteen dollars and four cents.\nThe Court: I think he\u2019s been damaged more than that. I really do.\nMr. Staten: I think he has too, your Honor, based upon the proof I found out about today. And since the trial is not over yet and judgment technically has not been entered\u2014\nThe Court: All right, I\u2019ll allow you to amend it. I think like I say, maybe I know too much about Hondas but I know a brand new Honda with a hundred miles on it and it gets wrecked like this and you say I\u2019ve only been damaged forty-three hundred dollars, that car has appreciated a lot more than that because I know what the value of a Honda is. It stays very high and his would have appreciated a lot more than that.\nThe Court: I\u2019m going to award him $7,500.00.1 think he was damaged that much.\nMr. Lippsmeyer (Jernigan\u2019s counsel): Your Honor, for the record, I\u2019d like to object to allowing Mr. Cash to amend the complaint\u2014\nThe Court: It\u2019s discretionary and I\u2019m going to do it.\nGranted, the proper measure of damages for damage to an automobile is the difference in the fair market value of the automobile before and after the occurrence. AMI 2210. Notwithstanding, by making biased comments concerning the value of Hondas, the trial judge induced or persuaded Cash to move to amend his complaint to pray for additional damages to his car. In effect, the judge made the motion to amend. This conduct was improper. A trial judge should refrain from actions that tend to favor one litigant over another. Western Coal & Mining Co. v. Kranc, 193 Ark. 426, 100 S.W.2d 676 (1946).\nUnder the circumstances, we conclude that the trial court abused its discretion in allowing the amendment. We reverse and remand.\nReversed and remanded.\nGlaze, J., not participating.\nHays, J., dissents.", "type": "majority", "author": "Jack Holt, Jr., Chief Justice." }, { "text": "Steele Hays, Justice,\ndissenting. This was a bifurcated trial before the court. Appellant Russell Gene Jernigan (defendant below), testified that he had been drinking at the Party Tyme bar from 10:00 p.m. to 12:30 a.m., when he was asked to leave due to an altercation with another patron, who then followed him to his car and struck him several times through the car window. He said this individual, identified only as \u201cJohn Doe,\u201d then pointed a pistol at him and ordered him out of the car, presumably to fight. Jernigan made a frenzied attempt to escape and crashed into several parked vehicles in what the trial judge aptly characterized as a \u201cDemolition Derby.\u201d One of the parked vehicles belonged to appellee Hubert Lynn Cash (plaintiff below). Cash testified that his vehicle, a new Honda, had been purchased the day of the collision at a price of $13,500, that it cost $4,314.04 to repair the damage and the value of the car had been reduced to only $5,000 or $6,000.\nAs with most bench trials, the dialogue between court and counsel at the close of the case was casual and the trial judge commented that the damage to the new Honda exceeded the amount of the repair bill \u2014 a fairly obvious fact in view of the testimony. Mr. Cash\u2019s counsel then remarked that he intended to amend the complaint, which, in the absence of prejudice, a party can now do \u201cat any time without leave of court.\u201d ARCP Rule 15(a). The trial judge permitted the amendment over appellant\u2019s general objection. The issue of prejudice was not argued then or now.\nThe majority concludes that the trial judge \u201cinduced\u201d or \u201cpersuaded\u201d the appellee\u2019s amendment to the complaint and by so doing abused his discretion. I respectfully disagree. The trial judge has broad discretion under Rule 15, and that discretion was not abused by the trial judge merely by observing what was obvious, that the damage to the Honda plainly exceeded the amount of the repair bill. Hogue v. Jennings, 252 Ark. 1009, 481 S.W.2d 752 (1972). I would affirm.", "type": "dissent", "author": "Steele Hays, Justice," } ], "attorneys": [ "Dale Lipsmeyer, for appellant.", "Laser, Sharp, Mayes, Wilson, Bujford & Watts, P.A., by: Walter A. Kendel, Jr., for appellee Hubert Lynn Cash.", "Lizabeth Lookadoo, for appellee James H. Wilson." ], "corrections": "", "head_matter": "Russell Gene JERNIGAN v. Hubert Lynn CASH and James H. Wilson\n89-29\n767 S.W.2d 517\nSupreme Court of Arkansas\nOpinion delivered April 10, 1989\nDale Lipsmeyer, for appellant.\nLaser, Sharp, Mayes, Wilson, Bujford & Watts, P.A., by: Walter A. Kendel, Jr., for appellee Hubert Lynn Cash.\nLizabeth Lookadoo, for appellee James H. Wilson." }, "file_name": "0347-01", "first_page_order": 375, "last_page_order": 381 }