The opinion
John I. Purtle, Justice, dissenting. The majority has marched full speed ahead into the Nineteenth Century with this opinion. In the first place I fail to see how a mother who takes a nap with her child at noontime is negligent when the four-year-old child awakens and strays outside and into the street. Compounding the error of finding a sleeping mother 75% at fault when a speeding truck struck and killed her daughter is to hold the father, who was away earning a living by the sweat of his brow, to be negligent through the action of his wife. If this is justice, then I am sure many people will hope to avoid it in the future or try to take their cases to the Court of Appeals.
The majority holds and cites Arkansas precedent to the rule that the negligence of a parent is not imputed to a child; the negligence of a parent is not imputed to the child’s estate; and that the negligence of one spouse is not imputed to the other in a situation involving automobile damages. Both parties have an interest in the family automobile. Each spouse benefits if a third party restores damages inflicted upon the vehicle while being operated by the other spouse. I submit that no reasonable rationale should impute the negligence of one parent to the other for injuries to their child or its estate. Is an automobile more valuable than a child’s life?
Since this is a case of first impression, we ought to follow the most just and reasonable theory in such cases rather than go to other jurisdictions and dig up old stale cases. We have been on the progressive and enlightened path in matters of imputing negligence in all other similar situations such as were mentioned above in this dissent. We are not using the same gauge if we refuse to impute negligence in a vehicle damage case and reject it in a personal injury or death case. The majority refers to Walton v. Tull, 234 Ark. 882 , 356 S.W. 2d 20 (1962), as an example of comparative negligence. If Tull stands for anything, it stands for the fact that a tort feasor who is no more negligent than the injured party must pay all the injured party’s damages if other joint tort feasors are unable to pay. Brigham and Tull were each 10% at fault. The other two parties, in this three vehicle accident, were guilty of negligence in the degree of 60% and 20% respectively. Tull, if it relates to this case at all, is supportive of the appellant’s position. Furthermore, Tull was a guest in his own vehicle at the time of the injury and admittedly his driver was not guilty of willful and wanton conduct. The majority states that Tull recognizes the view that an innocent beneficiary should be entitled to recover damages. That is not so. Tull was guilty of contributory negligence equal to that of Brigham from whom he was allowed to recover. In the present case the father of the child was not negligent in any manner whatsoever.
There is absolutely no evidence that the husband had any knowledge of his wife’s habit, if it was a habit, of taking a nap at noontime nor is there any evidence of any kind or nature to imply that the husband was negligent or knew or encouraged his wife’s negligence in taking a nap at noon. This is indeed a case of first impression in holding one to be negligent by merely taking a noontime nap in his own home.
The facts set out in the majority opinion clearly show it was error for the court to direct a verdict for appellee on matters of failure to yield; failure to keep a proper lookout; failure to change lanes; and failure to slow his vehicle to such a speed as would enable the vehicle to stop if necessary to avoid the occurrence. This has been basic tort law in Arkansas for many generations. In fact, the instructions are included in our Model Instructions. This holding is contrary to all reported cases and should not be brushed off by saying that appellant’s attorney was not too concerned with it.
The last error of the majority which I wish to point out is the fallacy of their statement that the court did not err in refusing to allow appellant to show the driving habits of the appellee. I think the most logical way to present this picture is to present the questions and answers as they occurred during the course of the trial. The court had just ruled that the appellee could show the habit of the child in playing on the road when the following colloquy occurred:
MR. DONOVAN: Your Honor, can I offer the testimony then of Mr. Ragsdale driving by this house?
THE COURT: For what purpose?
MR. DONOVAN: Habit.
MR. PHIL HICKY: You haven’t alleged it.
MR. DONOVAN: You haven’t alleged it here.
MR. PHIL HICKY: I have alleged that she didn’t properly supervise and care for her children.
MR. DONOVAN: Yes, but that’s on the day of the accident.
MR. PHIL HICKY: That’s general. I alleged that she did not supervise and keep a proper lookout of young chldren, what a mother has an obligation to do.
MR. DONOVAN: Your Honor, whether she supervised the children on the day before or the day after has nothing to do with the day of October the 19th. He was speaking of the day before.
THE COURT: Well, I’m not going to allow you to go into the man’s past driving record for reasons we have already got in the record. Anything else for me to do?
Appellant’s attorney objected to this ruling by the court. Thereafter the appellant agreed to withdraw his objections to the appellee’s testimony by certain witnesses about the habits of the child playing near the road in exchange for being allowed to question Mr. Ragsdale about his habit of speeding up and down the road. This was a shotgun deal and should not be approved by this court. Obviously, the trial court was trying to accommodate the parties and eliminate their objections. However good his intentions were it amounted to forcing the appellant to give up an argument which he should not have had to give up in exchange for the right to put on testimony which he already had the right to do. The majority acts erroneously in burying this objection under the statement that it was withdrawn.
I do not believe it is good law to impute the negligence of the wife, which in this case I think was nonexistent, to the husband in matters involving injury to their children or their children’s estates. He should be allowed to recover nothing at all or he should be allowed to recover his full damages. If her negligence is imputed to him and she was 75% negligent, then clearly he was 75% negligent. I cannot accept the logic of the majority opinion.