Walton v. Tull

Carleton Harris, Chief Justice. I respectfully dissent to the reversal on cross-appeal, because I feel that no recovery should be allowed a plaintiff against a defendant whose negligence is less, or no more, than that of the plaintiff.

I recognize that there is some merit in the position taken by the Majority, but I do not believe that the General Assembly intended for a plaintiff to recover from any defendant whose negligence was no greater than his own. Our statute, in full, provides:

“Contributory negligence shall not bar recovery of damages for any injury, property damages or death where the negligence of the person injured or killed is of less degree than the negligence of any person, firm, or corporation causing such damage.”

The Majority say this statute is open to two interpretations. I do not agree, for I interpret the language clearly to have reference to separate persons. The Act says “any person, firm or corporation causing such damage,” —not “any persons, firms, or corporations causing such damage,” In other words, if the Legislature intended the interpretation given the Act by the Majority, it was only necessary that it use the plural instead of the singular. The language of this statute has the same meaning to me as the language of the Wisconsin Statute, which provides that-contributory negligence is not a bar to recovery “if such negligence was not as great as the negligence of the person against whom recovery is sought. ”. As pointed out in the Majority opinion, the Wisconsin Supreme Court, in the case of Walker v. Kroger Grocery and Bakery Company, 214 Wis. 519 , 252 N. W. 721 ,92 A. L. R. 680, construed the Act to mean that a plaintiff cannot recover from any tortfeasor whose negligence did not exceed that of the plaintiff, even though the plaintiff’s negligence was less than that of all the tortfeasors combined. 1 I agree thoroughly with the position taken by Mr. Dobbs in his Legislative Note found in 11 Ark. L. Rev. 391 , to the effect that the Legislature did not intend a recovery against any defendant whose negligence was not greater than that of the plaintiff. In fact, I have found no case to the contrary. It appears to me that the position taken by the Majority may well work an undue hardship on a defendant who may have had but little to do with injuries sustained by a plaintiff. For example, let us say “A” sues “B” and "C” as joint tortfeasors, and the jury finds defendant "B” guilty of 74% negligence, defendant "C” guilty of 1% negligence, and plaintiff ‘ ‘ A” guilty of 25% negligence. ' ‘ A’s ” damages are fixed at $40,000. "B” is insolvent. Under the Majority holding, plaintiff "A”, though 24% more negligent than defendant “C”, can collect 75% of his damages from “C” (his own 25% negligence being deducted). This results in ££C” having to satisfy ££A’s” judgment to the extent of $30,000, though his own negligence was at the very minimum. Again, using another illustration, plaintiff ££A” sues ££B” and ££C” as joint tortfeasors. The jury finds defendant ££B” guilty of 98% negligence, defendant ££C” guilty of 1% negligence, and plaintiff ££A” guilty of 1% negligence. ££B” is insolvent. Under the holding of the Majority, ££A” can collect his entire judgment, less his own 1% of negligence, from ££C”, i.e., ££C” is financially responsible for 99% of the damage suffered by ££A”, though he was only responsible for 1% of the actual damage.

I cannot believe the Legislature intended such a result. I would affirm on the cross-appeal, and therefore respectfully dissent.

The Supreme Court of Georgia has taken the same position, though the Georgia Act is not similar to our own.