Appellant, Crown Coach Company, Inc., is a corporation domiciled in Missouri and engaged in operating passenger busses in several adjoining states.
Appellant, Tim Ackley, resides in Fort Smith, Arkansas, and was the driver of one of its passenger busses on July 22, when it ran into the car in which Mrs. Willis Palmer was riding.
Appellees, husband and wife, are residents of the state of Texas.
Appellees brought separate suits in the circuit court of Crawford county against appellants for carelessly and negligently driving the motor-bus owned by Crown Coach Company, Inc. into the back end of an automobile in which Mrs. Willis Palmer was riding with such force as to throw her in and about said automobile so as to seriously and permanently injure her.
Mrs. Palmer sued them for damages in the sum of $50,000 for personal injuries, loss of time and expenses for medical treatment.
Mr. Palmer sued them for damages in the sum of $10,000 for the loss of services of his wife and medical and surgical expenses incurred by him on account of the injury she received.
Appellants filed a motion and bond in proper form in each case for the removal of the causes to the United States court for the Western District of Arkansas on account of the diversity of citizenship of the parties, the amount involved, exclusive of interest and cost, being more than the sum of $3,000.
The trial court overruled the motions to transfer the causes to the federal court and appellants saved exceptions to the ruling.
In apt time separate answers were filed to the complaints denying the material allegations therein and *Page 742 pleading contributory negligence on the part of Mrs. Palmer as an additional defense to the suits.
The causes were consolidated for the purposes of trial and submitted to a jury upon the evidence adduced and instructions of the court resulting in verdicts and judgments against appellants in favor of Mrs. Palmer for $14,500 and in favor of Mr. Palmer for $500, from which verdicts and judgments is this appeal.
According to the complaints, appellees sued appellants as joint tort-feasors. The liability alleged is a joint tort liability. The construction of the Congressional Acts providing for transfers to the federal court of causes of action is that a suit brought by a nonresident against a resident cannot be removed to the federal court on motion of the resident defendant. Martin v. Snider, 148 U.S. 663, 13 S. Ct. 706, 37 L. Ed. 602. It follows, of course, from that holding if a suit be brought by a nonresident against a resident and a nonresident on a joint liability, not separable, the defendants cannot transfer the cause from the state to the federal courts. The courts seem unanimous in this holding except in the case of Stanbrough v. Cook, 38 F. 369, cited by learned counsel for appellants in support of their motions in the instant cases. The court in that case bottomed its opinion upon the fact that the cause of action against the defendants was separable and took occasion to say in the opinion that: "It is also well settled that if a plaintiff has a cause of action in tort or upon contract against several defendants, which is joint, or, being joint and several, is declared on jointly by the plaintiff, the defendants cannot, by tendering separate issues in their answers, create separable controversies, so as to authorize a removal of the cause. Louisville Nashville Railroad Co. v. Ide,144 U.S. 52, 5 S. Ct. 735, 29 L. Ed. 63; Pirie v. Tvedt,115 U.S. 41, 5 S. Ct. 1034, 29 L. Ed. 331; Sloan v. Anderson,117 U.S. 275, 6 S. Ct. 730, 29 L. Ed. 899; Fidelity Insurance Co. v. Huntington 117 U.S. 280,6 S. Ct. 733, 29 L. Ed. 898; Brooks v. Clark, 119 U.S. 502,7 S. Ct. 301, 30 L. Ed. 482. *Page 743
The court did not err in overruling appellants' motions to transfer the causes to the federal court as the causes of action were based on a joint tort liability not separable.
A reversal of the judgments is also sought upon the ground that the court erred in giving instruction No. 2 at the request of appellees, which is as follows:
"You are instructed that 12 of act No. 223 of the Acts of the General Assembly of the state of Arkansas for the year 1927 provides as follows: "The driver of any vehicle overtaking another vehicle proceeding in the same direction shall pass at a safe distance to the left thereof and shall not again drive to the right side of the highway until safely clear of such overtaken vehicle.
"And you are further instructed that the same section of this act provides that: `The driver of any overtaking motor vehicle not within a business or residence district, as herein defined, shall give audible warning with his horn or other warning device before passing or attempting to pass a vehicle proceeding in the same direction.' It is argued that the instruction is abstract because there was no issue on the question of the bus trying, without giving a signal or a warning, to pass the automobile in which Mrs. Palmer was riding, and no evidence in the record tending to support such all issue. That was the main issue involved in the case. It was alleged in the complaints: `That said defendant, Tim Ackley, so acting as aforesaid, carelessly and negligently undertook to pass and go around the automobile in which plaintiff was riding without any signal or warning whatever, and carelessly and negligently so turned and operated said bus as to cause same to run into and strike the said automobile in which plaintiff was riding without giving any signal or warning whatever.'"
This allegation was supported by the testimony of a number of the witnesses. By way of illustration the following excerpt is taken from the testimony of D. O. Edwards: "Coming down the mountain the car was in front of us and there was another car coming up the hill pretty *Page 744 fast. The driver started around the car in front and saw he couldn't make it. He darted back in and hit this car."
On cross-examination, this witness testified:
Q. The bus turned out for the purpose of passing the car in front? A. It started to. Q. Are you sure that is what he started to do? A. That is what he aimed to do. Q. At the time he turned out this automobile was 200 yards away? A. Yes, sir. Q. He turned out and then whipped back in? A. Yes, sir."
Practically all the testimony was to the effect that Ackley gave no warning by blowing the horn or otherwise of his approach and attempt to pass around the car in which Mrs. Palmer was riding.
The instruction was responsive to the issue joined and the evidence introduced in support thereof.
A reversal of the judgments is also sought because the court refused to give appellants' requested instructions Nos. 22 and 23, which are as follows:
"A pure accident without negligence on the part of the defendants is not actionable, and if you should believe that the accident in this case was of such character it would come under the head of unavoidable accident, then the plaintiffs cannot recover, and your verdict must be for the defendants." and
"A bus company or an individual cannot be held liable under the law for any damages or injuries caused by or growing out of an unavoidable accident, and if you find from the evidence in this case that the accident was unavoidable or was not due to the negligence of the bus driver, if any, then under the law the plaintiffs cannot recover, and your verdict must be for the defendants." These instructions were properly refused because no evidence was introduced to show the injury resulted from an unavoidable accident. The evidence introduced by appellees tended to show that the bus driver carelessly and negligently ran into the car in which Mrs. Palmer was riding; and that introduced by appellants tended to show that the driver of the car in which Mrs. Palmer *Page 745 was riding slowed down suddenly and stopped without warning of any kind to the bus driver approaching from the rear.
A reversal of the judgments is also sought because the court refused to give appellants' requested instructions 5 and 17. These instructions are long and the court deems it unnecessary to set them out. They have been carefully read and considered with other instructions given in the case.
It is argued that these instructions present appellants' theory of the cases and that they had a right to have their theory of the cases presented to the jury. They are correct in this statement and had the court arbitrarily refused to submit their theory of the cases based on evidence introduced by them it would necessarily work a reversal of the judgments, but the court gave other instructions fully covering these requests and, hence, it was not error to refuse to give them.
A reversal of the judgments is also sought because the court refused to give appellants' requested instruction No. 25, which is as follows:
"You are instructed that the plaintiffs have failed to prove that Mrs. Palmer sustained permanent injuries, and your verdict must be for the defendants on that issue."
According to the testimony introduced by appellants, Mrs. Palmer sustained an injury to her back which necessitated the wearing of a brace continually in order to walk at all without assistance. Even with the use of a brace it is difficult for her to walk. There was evidence tending to show that the use of the brace might be dispensed with in case she would submit to a major operation as follows:
By taking a piece of bone from the shin bone and putting it up and down the vertebrae which needed fixing so as to make one operating joint out of them instead of several operating joints. Even if the operation should prove a success it would leave a permanent condition in the back which did not exist before the injury that would warrant a jury in finding that she sustained a permanent injury. If, without an operation, *Page 746 the injury was such that she had to wear a brace continually in order to walk at all this fact would warrant a jury in finding that she was permanently injured. In view of this evidence it would have been error to instruct the jury that appellees failed to prove that Mrs. Palmer sustained permanent injuries.
The judgments are also sought to be reversed be cause the court refused to give instruction No. 16 requested by appellants which is as follows:
"You are instructed that under the evidence, as a matter of law, the plaintiff, Mrs. Willis Palmer, was engaged at the time of the accident in what is known as a joint enterprise with the driver and other occupants of the car in which she was riding, and if you believe from the evidence that the driver of the car in which Mrs. Palmer was riding was guilty of any negligence directly contributing to the injuries of the plaintiff, Mrs. Palmer, then plaintiffs cannot recover, and your verdict must be for the defendants."
Mrs. Willis Palmer, Mrs. Collins, Mrs. J. W. Summerville, Mrs. Davidson and Mrs. Cooke went from Texas in Mrs. Cooke's car to Mt. Sequoyah near Fayetteville, Arkansas, to attend a convention of the Methodist Church, and on July 22, left the convention on their return trip to Texas, traveling in Mrs. Cooke's car on highway 71. Mrs. Summerville was driving and they were sharing the expenses on the return trip. Aside from sharing the expenses of the trip there is nothing in the record indicating that they were engaged in a joint enterprise. Mrs. Palmer was riding in the back seat as a guest of Mrs. Cooke and nothing is revealed in the record to show that she exercised or attempted to exercise any control over the driver. At the time she received her injury she was sitting in the back seat. We think under the state of the evidence the most appellants were entitled to was a submission of that issue to the jury under a proper instruction as to what would constitute a joint enterprise. In American Jurisprudence, vol. 5, p. 786, we find this language used: "It is not sufficient that the passenger indicates the route or that both parties have certain plans in common, such as a `joy *Page 747 ride'; the community of interest must be such that the passenger is entitled to be heard in the control and management of the vehicle — such as practically to amount to joint or common possession thereof. Nor does the fact that the guest agreed to pay the expenses of a trip necessarily establish a joint enterprise."
In vol. 4, Blashfield's Cyclopedia of Automobile Law and Practice, p. 171, 2372, the following language is used in dealing with the same subject:
"An essential, and perhaps the central, element which must be shown in order to establish a joint enterprise is the existence of joint control over the management and operation of the vehicle and the course and conduct of the trip. There must, as said in another connection, in order that two persons riding in an automobile, one of them driving, may be deemed engaged in a joint enterprise for the purpose of imputing the negligence of the driver to the other, exist concurrently two fundamental and primary requisites, to-wit, a community of interest in the object and purpose of the undertaking in which the automobile is being driven and an equal right to direct and govern the movements and conduct of each other in respect thereto. * * *
"It is commonly a question of fact, for the jury to say, whether a joint enterprise existed between the driver and another occupant of an automobile, except where the evidence as to the existence of such a relation is insufficient to go to the jury."
Appellants' requested instructions Nos. 14 and 15 which were given by the court relative to what constituted a joint enterprise plainly told the jury that if these ladies were engaged in a joint enterprise and the driver of the car, Mrs. Summerville, was guilty of contributory negligence, her negligence then would be attributed to Mrs. Palmer and that appellees could not recover.
Appellants also contended that the judgment in favor of Mrs. Palmer is excessive. Mrs. Palmer was 32 years of age and capable of earning from $125 to $150 per month as a school teacher. She had been teaching a number of years and had contracted to teach a school *Page 748 in Texas for $125 per month at the time she was injured. She had a long expectancy and according to the evidence introduced by her she will never be able to teach school again. We had occasion to refer in this opinion to the character and kind of injury she received and deem it unnecessary to describe the injury again. We simply add that after she received the injury and reached her home in Texas she suffered intense and excruciating pain. Immediately after being hurt she complained of her back being broken and after she reached Texas her physician required her to lay flat on her back four months on a hard cot; that she wears a cast to hold her back in position; that it is a brace with steel supports; that without it she is helpless, can only walk across the floor; that she cannot lift or move objects; that the brace was put on shortly after the first X-ray pictures were taken about August 20; that she has been compelled to wear the brace ever since in order to get about at all; that the least exertion causes her great pain and suffering. We think the character and permanency of the injury which has incapacitated her and destroyed her earning capacity together with the intense pain she has suffered and will continue to suffer fully justified the jury in rendering a verdict in her favor for $14,500. Certainly it cannot be said that the amount of the verdict indicates passion or prejudice on the part of the jury.
No error appearing, the judgments are affirmed.
SMITH, C.J., SMITH and McHANEY, JJ., dissent.