author: HUGHES, Justice.

text:
    D. R. SEMMES, Appellant, v. Oscar OLIVAREZ et al., Appellees.
    No. 11085.
    Court of Civil Appeals of Texas. Austin.
    May 8, 1963.
    Pope & Pope, Rio Grande City, for appellant.
    A. J. Vale, Emilio F. Gutierrez, Rio Grande City, for appellee.
   HUGHES, Justice.

This is a suit in trespass to try title brought by D. R. Semmes, appellant, to recover the possession of and title to Lots 29, 31, 32, 39, 40, 41, 42, 49, 50, 54, and 60, of Unit No. 2, of the Valle Rico del Rio Grande Subdivision of Porcions numbered 75, 76 and 77, Camargo Jurisdiction, in Starr County, Texas, containing 130.56 acres of land.

Judgment in a non-jury trial was rendered that appellant, D. R. Semmes, take nothing by his suit and that appellees (defendants), Oscar Olivarez, Mrs. Hattie E. Atkinson, Henry W. and Henry G. Lehman recover the title to and possession of all the lots above described except Lot 60 which was not claimed by appellees in their answer filed in this cause, and as to which no question is presented by this appeal.

Appellant pleaded both the ten and twenty-five year statutes of limitations. Arts. 5510 and 5519, Vernon’s Ann.Civ.St., respectively. Appellees pleaded the five year statute of limitations, Art. 5509, V.A.C.S., and the ten and twenty-five year statutes.

Appellant offered no proof of a record title. He did offer proof in support of his plea of ten years adverse possession. It is our .opinion that this evidence, at most, presented a question of fact which has been determined against him.

In 1946 and 1947 appellant purchased other lands which are adjacent to the lands in suit. All of these lands, totaling 2000 acres, were enclosed by a fence. Mostly, they were grazing lands, and there is evidence that all of such lands, including the lands in suit, were used for grazing purposes by tenants of appellant following the year 1946. These tenants were Manuel Munoz and Guadalupe Munoz, brothers, both of whom were deceased at the time of trial.

Appellant never lived on the lands- which he purchased in 1946 and 1947, nor did he ever live on the lands in suit. He made no improvements on the lots sued for except perhaps to repair the outside fence which enclosed the large pasture. He did not separately enclose these tracts, and he paid no taxes on them. Appellant testified that one reason for purchasing the lands that he bought was that he was aware of the opportunity to claim by adverse possession the lots in suit which were enclosed in the large pasture. He testified that he claimed such lots adversely from the time of his purchase of the other lands, but that he told no one, except his lawyer, that he was making such claim. Since appellant was not in personal possession of the property, he attempted to establish possession through the possession of Manuel or M. S. Munoz and his brother Guadalupe Munoz as his tenants.

Appellant testified that he “leased” the property to Manuel Lopez in 1946. He also testified that he had a “lease contract” with Guadalupe Munoz. Appellant placed in evidence written leases between himself and Guadalupe Munoz for the year 1954 and several subsequent years, the land being described as 2000 acres “more or less, comprising all of the La Guna pasture, north of Highway No. 83, located in por-cion No. 75, Camargo Jurisdiction, Starr County, Texas.”

Appellant testified that the land in suit was located in the eastern part of porcion 76 and the western part of porcion 77. These leases, then, did not cover the lots in suit.

There is in evidence a written lease from Reverend J. E. Atkinson, under whom ap-pellees claim title, to M. S. Munoz covering Lots 49, 50 and 54, dated November, 1948, and being for one year. There is also shown a written one year lease from Reverend Atkinson to Guadalupe Munoz dated July, 1954, covering the same lots.

Felipe B. Barrera, nephew of Guadalupe Munoz, testified that Uncle Guadalupe rented the land in suit from appellant.

Guadalupe H. Munoz, Jr., testified that both his father and uncle, Manuel, rented this land from appellant, stating that each paid an annual rental of $800.00. This is the amount called for in the written lease between appellant and Guadalupe Munoz which lease, as shown, did not cover the land in suit.

On February 16, 1949, appellant wrote the following letter to an attorney in San Antonio, Texast

“Referring to yours of 15th regarding the Cates 30 acres, Tracts 29, 31, 32, Valle Rico, Starr County, I own the adjoining land but I acquired this land 3 years ago and paid only a nominal price — $10.00 to $12.00 an acre.
“When I was in Houston in December I talked to Mr. J. E. Atkinson who owns nearby land and he informed me that W. W. Cates bought this land from a land promoter and paid $65 an acre so I told him I would not be interested.
“I expect to make a trip to Rio Grande City this weekend and will look into this matter and then advise you what I would be willing to offer and I will inquire around and find out who else might be interested in purchasing it.”

There is in evidence a deed from L. B. Caruthers et al. to Reverend J. E. Atkinson, dated April 11, 1927, conveying Lots 49, 50 and 54 above described. These lots were conveyed by the estate of Reverend Atkinson by deed dated August 26, 1961, to- ap-pellee Oscar Olivarez.

The record shows that L. B. Caruthers et al. conveyed by deed dated March 26, 1928, Lots 29, 31 and 32, above described, to W. W. Cates and Clara Bell Cates. By mesne conveyances these lots were conveyed to appellee Oscar Olivarez by C. H. Burt and wife, Loretta Cates Burt and William Robert Cates by deed dated September 8, 1960.

There also is in the record a deed dated November 14, 1926, from E. H. Banta and wife to Henry and Eva Clyde Lehman conveying Lots 39, 40, 41 and 42, above described. Mr. Lehman and his son, Henry G. Lehman are appellees herein. Mrs. Eva Clyde Lehman is deceased. Mr. Lehman, the son, testified that the four lots which his father bought were fenced in 1928, when he and his mother went to Rio Grande City for that purpose. The fence gradually deteriorated over the ensuing years. In 1956, the ten lots in suit were fenced by the joint undertaking of the Cates, the Atkinsons and the Lehmans.

The Trial Court has made numerous findings of fact and appellant has attacked many of these as being without evidentiary support. We do not consider it necessary that we detail each of these findings and the evidence pertinent thereto because we have set forth the substance of the evidence introduced upon the trial and we are satisfied that it supports the legal conclusion of the Trial Court that appellant did not sustain the burden of establishing title to the lands sued for under the ten year statute of limitations.

In order for appellant to prevail it was necessary that he establish that the Munoz brothers were his tenants of the land in suit. Their possession had to be his possession, or he had no possession. This question was certainly an issuable fact question. The tenants were deceased. The only written lease which either was shown to have executed did not cover these lands. Appellant testified that he rented these lands to the Munoz brothers. He was a highly interested witness, and the Court had the privilege of not believing him. That he did just this, is obvious from his findings and judgment. The other evidence on this point came from the son and nephew of Guadalupe Munoz. Their testimony is of a most inconclusive nature. They testified to the use of the land. Since the lands involved were in a larger pasture and not separately fenced, it would be most difficult not to graze them along with the other lands in the pasture. They did testify that these lands were rented from appellant, but the only rental referred to was the rent prescribed in the written lease covering other lands.

Furthermore, we are of the opinion that appellant by his letter of February 16, 1949, acknowledged the true ownership of the Cates’ three lots and the Atkinson’s three lots. See Allison v. Groppenbacher, 142 S.W.2d 528, El Paso Civ.App., writ ref., where it was held that a letter from the limitation claimant during the limitation period which stated, “Of course, I would like to own these lands for the reason if I should ever sell I could sell them with the other lands. * * * justified, if it does not compel, the finding that on that date defendant was not asserting claim to the land involved adverse to the title of plaintiffs.”

While this admission does not specifically apply to the Lehman lots, it forms a basis from which a legitimate inference could be drawn that the only lands which appellant at such time claimed to own in this vicinity were the lands he had acquired by payment of a monetary consideration, which would not include the Lehman lots.

We need not elaborate upon appellant’s contention that he was entitled to recover because of proof of prior possession. Appellant had no possession unless the Munoz brothers were his tenants as to this land. The finding of the Trial Court that they were not tenants as to these lots is fully supported by evidence. It follows that appellant has not proved prior possession.

Appellant objected to the admission in evidence of the deeds to which we have referred because appellant, as authorized by Rule 791, Texas Rules of Civil Procedure, demanded that an abstract of title be filed by appellees, and such demand was not met.

Appellees, as authorized by Art. 3726, V.A.C.S., did file a list of instruments, including such deeds, which were duly filed of record in the county of suit and where the lands were situated, among the papers in this cause and thereby gave notice that such records would be read upon the trial of this case. Such instruments were, therefore, properly admitted in evidence. Whether they could be used for the purpose of establishing title in appellees to the lands in suit, we need not determine because it is not necessary that they be considered for such purpose.

The judgment of the Trial Court is affirmed.

Affirmed.


source: Caselaw Access Project

author: DAVIS, Justice.

license: Public Domain

text:
    Monroe Carl McCAULEY, Appellant, v. Marie A. LASHER et vir, Appellees.
    No. 7469.
    Court of Civil Appeals of Texas. Texarkana.
    April 30, 1963.
    Rehearing Denied May 28, 1963.
    Jones, Brian & Jones, Marshall, for appellant.
    Smith, Hall & Huffman, Marshall, for appellee.
   DAVIS, Justice.

A highway intersectional collision case. Appellant, Monroe Carl McCauley, was struck by a car being driven by appellee, Marie A. Lasher. The collision occurred at an intersection of U. S. Highway 80 and U. S. Highway 59, in Marshall, Texas. Appellee was driving south on 59 and stopped her car in obedience to a stop sign where highway 59 intersects highway 80. There was no stop sign on highway 80 at the intersection, and appellant had the right-of-way. After the appellee had stopped at the intersection, she then proceeded forward without ascertaining that she could do so safely.

Trial was to a jury, which convicted Mrs. Lasher of negligence in failing to keep a proper lookout, and that such failure was a proximate cause of the collision. It also convicted her of proceeding into the intersection without first ascertaining that she could do so safely, and that such negligence was a proximate cause of the collision. The jury also convicted the appellant of failing to keep a proper lookout, and that such failure was a proximate cause of the collision. Judgment was entered that the appellant take nothing. He has perfected his appeal and brings forward two points of error.

By his points of error the appellant says the verdict of the jury convicted him of failure to keep a proper lookout, and finding that such negligence was a “proximate cause” of the collision is contrary to the overwhelming weight and preponderance of the evidence; the court erred in overruling his motion for a new trial; and, there is no evidence of his failure to keep a proper lookout and such negligence was a “proximate cause” of the collision. The appellant was going west on highway 80. As he approached the intersection of highway 59, with which he was very familiar, he was looking straight ahead and was watching some cars that were coming off of highway 59 at another intersection of highway 80 at a point where there is a sign that says “Yield the Right-of-way”. He did not see the appellee’s car at the first intersection. The appellant could see a distance of about 1,000 feet north on highway 59 as he approached the intersection. His failure to see the appellee’s car tends to establish an absence of proper lookout. Lynch v. Ricketts et al., 158 Tex. 487, 314 S.W.2d 273. The appellee did not see the appellant’s car before she started into the intersection. Even if the appellant had been keeping a proper lookout, could he have so conducted himself and his car in such a way as to prevent the collision that did occur? Viewing the evidence in the light most favorable to the jury’s verdict, the evidence is insufficient to support the jury’s findings that such negligence was a proximate cause of the collision.

“Proximate cause” was defined by the trial court in his charge to the jury. Baumler v. Hazelwood, 162 Tex. 361, 347 S.W.2d 560. In this case the Court said:

“The definition embraces at least two distinct concepts, both of which must be present: (1) there must be cause in fact, — a cause which produces an event and without which the events would not have occurred; and (2) foreseeability. Even assuming, without deciding, that there is some evidence of foreseeability from speed itself under the circumstances, we find no evidence that Baumler’s velocity in fact caused the accident.” (Emphasis added).

If there must be a cause in fact, the cause must produce an event, without which event the collision would not have occurred. There is no evidence that the failure to keep a proper lookout produced an event that caused the collision. Taking into consideration all of the facts and circumstances established by the evidence and the inferences which can reasonably be drawn therefrom fails to support any foreseeability on appellant’s behalf to show the collision might occur in ample time to prevent it. Biggers v. Continental Bus System, 157 Tex. 351, 303 S.W.2d 359, and 157 Tex. 351, 298 S.W.2d 79.

Assuming that the appellant was keeping a proper lookout under the facts and circumstances as prevailed in this case, could he have foreseen the event that caused the collision in time to prevent it? The appel-lee, by her own testimony, testified that she stopped at the intersection, could see 2000 feet to her left, then started up again and did not see the appellant. There was only a matter of some two or three seconds that intervened between the time that she started into the intersection and the time that she struck the appellant’s car near the right fender and right rear wheel. There was not time enough for any event to occur on the part of the appellant to cause the collision,, or prevent it. As to keeping a proper lookout, the appellant’s points of error are overruled. As to the contributory negligence on the part of the appellant being a proximate cause of the collision, the points of error are sustained as being contrary to the overwhelming weight and preponderance of the evidence in each respect. The judgment of the trial court is reversed and the cause is remanded. Lynch v. Ricketts et al., supra.


author: GRISSOM, Chief Justice.

text:
    Arlene Ann LICKMAN, Appellant, v. George L. LICKMAN, Appellee.
    No. 3792.
    Court of Civil Appeals of Texas. Eastland.
    May 3, 1963.
    Rehearing Denied May 24, 1963.

      Robert R. Sanford, Sherman, for appellant.
    Slagle & Kennedy, Sherman, for appel-lee.
   GRISSOM, Chief Justice.

On May 3, 1962, George L. Lickman sued his wife, Arlene Ann Lickman for divorce in Grayson County, Texas. Mrs. Lickman was served with notice thereof on the 18th day of June, 1962, in Pennsylvania. Said notice showed that the petition for divorce was filed on May 3, 1962. It commanded her to appear by filing a written answer at or before 10:00 o’clock A.M. of the Monday next after expiration of 20 days after the date of service of said notice. She was served at the same time with a copy of the plaintiff’s petition, which was attached to said notice. Mrs. Lickman was required to file an answer by 10:00 A.M. on Monday July 9, 1962. At that time, no answer having been filed, the court heard evidence and granted Mr. Lickman a divorce. Three days after rendition of the judgment Mrs. Lickman filed a motion for a new trial. It was overruled and she has appealed.

Appellant’s points are that the court erred in refusing to set aside the judgment and grant appellant a new trial; that appellant, through no lack of diligence, has been deprived of a full and complete statement of facts; that the court erred in granting appellee a divorce in the absence of full and satisfactory evidence of grounds therefor and that the court erred in trying the case in the absence of appellant, without placing said cause on the trial calendar and notifying appellant and calling the case for trial in its regular order on the docket. Texas Rules of Civil Procedure, rule 239 provides that at any time after a defendant is required to answer, the plaintiff may take judgment by default if the defendant has not filed an answer. As we understand the applicable decisions, four things are required to be shown before a default judgment must be set aside, towit: that (1) failure of defendant to answer was not intentional or the result of conscious indifference; (2) failure to answer was due to a mistake or accident; (3) the motion for a new trial set up a meritorious defense, and that (4) the motion was filed at a time when granting thereof would not'have occasioned delay or otherwise worked an injury to the plaintiff. Craddock v. Sunshine Bus Lines, 134 Tex. 388, 133 S.W.2d 124, 126; Grammar v. Hobby, Tex.Civ.App., 276 S.W.2d 311, 312, (Ref. N.R.E.); Brothers Department Store, Inc. v. Berenzweig, Tex. Civ.App., 333 S.W.2d 445, (Ref. N.R.E.); Burnett v. Meletio, Tex.Civ.App., 351 S. W.2d 912, (Ref. N.R.E.); Sneed v. Sneed, Tex.Civ.App., 296 S.W. 643.

Appellee, a member of the armed service, was stationed at Perrin Air Force Base, . Sherman, Texas. After appellant was served with notice she contacted an attorney in Pennsylvania. 'He corresponded with a Texas attorney. Two or three days after June 21st the Texas lawyer received a letter from appellant’s Pennsylvania attorney stating that he represented Mrs. Lickman, who was served with an enclosed copy of the divorce petition on June 18th; that she desired to contest the -suit; inquired whether the Texas lawyer was available to represent Mrs. Lickman, and, if so, whether he would enter an appearance for her. The Texas attorney replied that he would not file an answer until satisfactory arrangements for his fee were made. He told the Pennsylvania lawyer that the requirement in the notice that Mrs. Lickman answer by Monday after expiration of 20 days from service had no legal significance “inasmuch as the case cannot be disposed of on the merits until it has been on file for sixty days.” This letter was written to the Pennsylvania attorney on June 25th. The Texas attorney heard nothing further about the matter until July 12th. On July 12th he received a letter from appellant’s Pennsylvania attorney enclosing a retainer fee and instructing him to file the necessary answer. The Texas attorney was not employed until July 12th. On July 12th he telephoned appellee’s attorney and advised him that he had been employed to represent Mrs. Lick-man. Appellee’s attorney then told him the divorce had been granted on July 9th and called his attention to the fact that it had on July 9th, been on file for sixty days. On July 9th, after the divorce was granted, appellee telephoned appellant and asked her to send him his books. He then informed her that a divorce had been granted to him. She appeared to be rather unconcerned about the matter, but she did say that she had been thinking it over and, that week end, had decided to contest his suit for divorce.

Appellee takes the position that the record shows that appellant was indifferent to the granting of a divorce; that she took no action to employ counsel until after she received a telephone call from appellee on July 9th, after the divorce had been granted. She was served with citation on June 18th. This notice plainly stated that the petition had been filed on May 3rd, and that an answer had to be filed on Monday following the 20th day after she was served, which was July 9th. It must have been evident to the Pennsylvania attorney that an answer had to be filed by July 9th, at 10:00 o’clock A.M. or that a default judgment could be rendered against appellant. Nevertheless, the Pennsylvania lawyer merely wrote to the Texas lawyer as heretofore shown. The Texas attorney was not employed until July 12th. By letter of June 25th, 1962, the Texas lawyer declined to file an answer until satisfactory arrangements were made. This was not done until July 12th. Appellant did not have an answer filed by her Pennsylvania lawyer. She did not engage the services of a Texas lawyer to file an answer until July 12th. A period of more than 15 days elapsed apparently, without any effort being made by appellant to employ counsel to file an answer. No excuse is offered for this delay unless it be the statement of the unemployed Texas attorney that a divorce case could not be tried in Texas until it had been on file for 60 days. The notice served on Mrs. Lickman showed the case had been filed on May 3rd. Neither the Texas nor Pennsylvania lawyer swore that they did not know that the suit had been filed on May 3rd. Therefore, there is no evidence that failure to timely answer was due to accident or mistake. On the contrary appellant and her Pennsylvania attorney were informed that the suit was filed on May 3rd, and of the necessity of answering by 10:00 o’clock on July 9th. They were fully informed in time to prepare and file an answer. None was filed and no good reason is shown for the failure to timely file one. Nothing appears to have been done by appellant from June 24th until after she was informed by appellee, on July 9th, that the divorce had been granted. Three days after the judgment was rendered and after the telephone call in which appellant was informed that appellee had obtained a divorce the Texas lawyer was employed to file an answer. We are forced to agree with appellee’s contention that the trial court properly concluded that the failure of the appellant to answer before judgment was rendered was the result of conscious indifference.

To show reversible error appellant has the burden to also establish that the granting of her motion would not have worked an injury to appellee. When appellant’s motion for a new trial was filed, appellee had orders transferring him from Texas to Colorado at some time between July 31st and August 9th; thereafter, he would not be in Texas; on this assignment he will be gone for two years. He agreed to a new trial, provided his wife would attend the hearing of the case on its merits on the 25th, 26th or 27th of July. This offer was rejected by appellant. We think it is apparent that the trial judge had a right to conclude that appellant’s failure to timely answer was the result of conscious indifference on her part and, further, that granting the motion would work an injury to appellee.

Appellant’s contention that she is entitled to a reversal because she could not obtain a complete narrative statement of facts is without merit. As is the custom in uncontested divorce cases no court reporter was present to record the testimony. The court did the best it could. But, could not recall all the testimony. Lack of diligence on the part of appellant was the reason for the absence of a court reporter. Certainly, absence of the court reporter was not caused by any act of the appellee. It is undisputed that it is not customary, nor required, that uncontested divorce cases be set for trial on a certain date. It is customary in such cases to try them when the plaintiff appears and the court is able to hear them. It is not customary, nor required, that a court reporter record the testimony in uncontested divorce cases.

All reasonable presumptions are indulged in favor of the correctness of the judgment, including the presumption that the evidence was sufficient to sustain it. To obtain a reversal of the judgment, the burden is upon appellant to show that the court erred and that such error probably caused the rendition of an improper judgment.

All of appellant’s points have been considered. They are deemed to be without merit. The judgment is affirmed


author: HIGHTOWER, Chief Justice.

text:
    The TRAVELERS INSURANCE COMPANY, Appellant, v. John O. BOOKER, Appellee.
    No. 6535.
    Court of Civil Appeals of Texas. Beaumont.
    April 4 1963.
    Rehearing Denied May 23, 1963.

      Strong, Pipkin, Strong & Nelson, Beaumont, for appellant.
    Joe H. Tonahill, Jasper, for appellee.
   HIGHTOWER, Chief Justice.

This is a Workmen’s Compensation case in which appellee recovered judgment for total and permanent incapacity.

The petition upon which appellee went to trial sought recovery upon the theory of heat stroke and other grounds collectively and alternatively.

The substance of the pertinent jury findings is that appellee received an accidental injury to his body while in the course of his employment, which injury resulted in total and permanent incapacity; that ap-pellee sustained total and permanent loss of the use of his right eye as a natural result of said injury; that the incapacity of the appellee is not limited to the right eye. Additionally, after having given the usual definition of accidental injury, the court gave the instruction that it does not include an injury caused by the act of God unless the employee is at the time engaged in the performance of duties that subject him to a greater hazard from the act of God responsible for the injury than ordinarily applies to the general public.

By its first four points, appellant contends that the judgment for total and permanent incapacity is without support in the verdict by reason of the fact that appellee had based his entire claim on a heat stroke and a series of events set in motion by a heat stroke, and it, therefore, became incumbent upon him to prove and to obtain a specific finding by the jury that he was exposed to a greater hazard from the heat than that to which the public is generally exposed, and that, as a result, he sustained a heat stroke. Observe that there were no such jury findings.

On the other hand, appellee contends that the judgment should be affirmed on the basis of such cases as Garcia v. Texas Indemnity Ins. Co., 146 Tex. 413, 209 S.W. 2d 333; General Ins. Corp. v. Wickersham, 235 S.W.2d 215 (Civ.App.); American General Ins. Co. v. Barrett, 300 S.W.2d 358 (Civ.App.). These were largely “fall” cases wherein the claimants received injuries as a result of falling to the ground, although the cause of the fall was not occasioned by reason of the nature of the work, but was solely occasioned by a heart attack, a blackout spell or some pre-exist-ing idiopathic condition.

The law is well established that where a compensation claimant rests his recovery upon the effects of an alleged heat stroke, he has the burden of submitting and securing a jury finding to the effect that at the time of injury therefrom he was engaged in the performance of duties which subjected him to a greater hazard than ordinarily applies to the general public. Traders & General Ins. Co. v. Ross, Tex. Civ.App., 263 S.W.2d 673.

If appellant be correct, which we do not concede, that appellee tried his case solely on the basis of incapacity resulting by reason of injury from heat stroke we must nevertheless, inasmuch as we believe there is sufficient evidence in the record in this connection, sustain the judgment of the 'trial court. This by reason of the fact that appellant only urged these contentions in his motion for new trial in the court below. It made no objections there, prior to the submission of the court’s charge to the jury, that the charge did not contain the omitted issues here complained of. The jury, having answered the primary issues of accidental injury in the course of employment favorably to appellee, we hold that by its failure to timely object to the trial court’s failure to include the omitted issues in its charge jury findings on the same were waived. Rule 279, Texas Rules of Civil Procedure; Ormsby v. Ratcliffe, 117 Tex. 242, 1 S.W.2d 1084; Wichita Falls & Oklahoma R. R. Co. v. Pepper, 134 Tex. 360, 135 S.W.2d 79. These omitted issues concerning heat stroke and extra hazardous conditions were not the “very gist and basis of the right to recover”, as stated in Colbert v. Dallas Joint Stock Land Bank, 129 Tex. 235, 102 S.W. 2d 1031. They were only issues which were incidental to and component parts of the jury findings on injury in the course of employment and are, therefore, deemed to have been found in support of the judgment by the trial court. Rule 279, supra.

In order that we not unduly extend this opinion, we shall only briefly refer to the substance of some of the evidence in the record which we hold support the issues of heat exhaustion and extra hazardous conditions which are deemed to have been found in support of the judgment, to-wit:

Appellant was seventy-four years of age on the day of the accident. He had gone to work that morning at 7 a. m. and had fallen out, or fainted, at 4:30 p. m., at which time he was taken home and given medical attention. His duties required him to keep ahead of a road grader on the highway picking up sticks and other trash. He stated that the stuff was so heavy and they worked him and a young boy so hard that they couldn’t keep ahead of the grader, but that they still “laid” to it until 3 o’clock.
It appears from appellant’s testimony that the young boy who was engaged in the work with him “burnt” out about 3 o’clock and had to quit. He stated that in doing this work, he had walked in the sun 15½ miles that day. Although he estimated that the temperature was 75° or 80° that day, he emphasized that he was very hot. By reason of his “falling out” he injured his right eye and that at the time of trial his head had ached, as well as his back, since his injury. That he had falling out spells since his injury. That he is shortwinded, couldn’t do any more work and that his condition is getting worse. That he had none of these complaints before his injury. His treating physician corroborated, without objection, appellant’s testimony regarding his injury and condition from his case history notes and gave his opinion that as a result of said injury appellant was permanently and totally disabled. The evidence further revealed through deposition testimony of another doctor that an accurate description of nature and extent of appellant’s injury was heat exhaustion and that he hurt his right eye when he fell. We quote this additional testimony:
“Q. Doctor, as far as any medical terms, what’s wrong with him? Can you tell us what that might he? What can explain this?
“A. I think there’s a series of events here. One is, this man got too hot, and I think no doubt put the blood pressure awful high, and he had what is called a mild heart attack, and doctors wouldn’t call it that, but basically that is what it amounts to, that is one thing. And, then the other thing is when he fell he possibly suffered a series of small hemorrhages or small strokes. These are the type of injuries that give paralysis to the arm or leg, that causes small minute imagies in the brain, and produces what is commonly referred to as a assompconcussion, is another name for it, but the damage is done by small hemorrhages to the brain cells.”

On the basis of the foregoing testimony, we overrule appellant’s contentions regarding the sufficiency of the evidence. However, under these same points, S thru 10, appellant urges one point to the effect that the finding of the jury on accidental injury is so against the great weight and preponderance of the evidence as to be unjust. Ordinarily, it would be sufficient to say that the evidence indisputedly shows that as a result of the fall appellant lost the vision in his right eye to the extent that he was no longer able to use the same in the performance of the ordinary duties of a workman. But, it appears that under such point, together with the others with which it is grouped, appellant contends that in proving accidental injury appellee had the burden of establishing heat exhaustion and extra hazardous conditions, etc. We have hereinabove stated the general rule to be that where the primary issues of accidental injury in the course of employment have been answered favorably and the failure to submit component parts of said issues is not objected to, said component issues are deemed to have been found in support of the judgment by the trial court if there is any evidence in the record to support such presumed findings. Rule 279 and authorities, supra. We do not believe, however, that this well established rule should ordinarily be applied so narrowly in circumstances where, as here, appellant urges that the finding of accidental injury is so against the great weight and preponderance of the evidence as to be manifestly unjust. We maintain this opinion even though it appears from appellant’s brief under these points that such contentions were not made with the thought in mind that this court might reach the conclusion which we have hereinabove reached in regard to the presumed findings on the omitted issues in support of the judgment. Therefore, in a proper case we would be inclined to weigh and compare the favorable and unfavorable evidence. However, after examination of appellant’s assignments of error in its motion for new trial, we find no assignment which properly urges that a finding of heat exhaustion and extra hazardous conditions would be against the great weight and preponderance of the evidence. The only assignment in this connection is the very general one, which we cannot consider, to the effect that the verdict of the jury is so against the great weight and preponderance of the evidence as to be manifestly unfair and unjust. This is too general to form the basis for the point of error urged; therefore, such point is also overruled.

By points of error 11 thru 13, appellant urges that the finding of the jury that a $40.00 per week average weekly wage would be fair and just to both parties is without support, or alternatively without sufficient support, in the evidence.

In answer to Special Issue No. 19, which inquired of the jury as to what would be an average weekly wage for the plaintiff which would be fair and just to both parties, the jury answered $40.00. Plaintiff testified that he retired in about the year 19SS; that he voluntarily quit his job and retired some four years prior to the date of injury; that, thereafter he drew Social Security and only had temporary jobs; and that, after retiring in 1955, he made no effort to find and did not want a steady, full time job. The record further shows that during the twelve months preceding the injury appellee’s total earnings were $300.00-$500.00, or an average of less than $10.00 per week; however, appellee’s testimony also shows that he was hired on the basis of $1.00 per hour, or ten hours per day and five days per week, or on the basis of $50.00 per week. That he entered into this contract of employment with Mr. Aycock, one of his employers. In view of the party’s stipulation that Subsections 1 and 2 of Section 1 of Article 8309, Vernon’s Ann.Tex.Civ.St, were not applicable in this case, it became the jury’s duty to arrive at a wage rate fair and just from the competent evidence before them. The jury found a wage rate of $40.00 per week as fair and just. Such a finding is reasonable in view of the undisputed contract of employment entered into between the plaintiff and his employer. The jury has a wide discretion in arriving at the average weekly wage rate of an employee under this Section of the Statute and absent an abuse of its discretion its finding will not be reversed. We think the decisions of Traders & General Ins. Co. v. Wilson, Tex.Civ.App., 147 S.W.2d 866, N. W.H., and Continental Fire & Casualty Ins. Corp. v. Drummond, Tex.Civ.App., 220 S. W.2d 922, N.R.E., are sufficiently analogous on the facts to support our views that these points of error are without merit.

By Special Issue No. 20, the jury found that appellee’s incapacity was not solely caused by diseases, prior existing physical defects, his advanced age, the natural process of aging, or some combination thereof, wholly unconnected with his employment. By points of error 14 thru 16, appellant alleges no evidence and insufficient evidence to support such finding. Appellee, being seventy-four years of age, appellant says that as a practical matter, he would normally and usually be disabled in obtaining and retaining employment involving heavy manual labor. It also refers to the fact that at the time of trial appellee had been voluntarily retired for some six years. Reference is then made to the testimony of appellee’s physician, the substance of which being that said physician would not say it is probable but that it was possible that appellee’s disabilities were due to his advanced age. The record far from establishes these contentions of appellant’s and we cannot say that the finding of the jury is against the overwhelming preponderance of the evidence. Under the circumstances, we would not be justified disregarding the jury’s findings. These points of error are overruled.

By its last points of error, 17 thru 24, appellant complains of the failure of the trial court to submit a series of its defensive issues to the jury. These issues embraced all of the defensive theories contained in Special Issue No. 20 hereinabove alluded to in determining appellant’s points 14 thru 16, said Issue No. 20 having inquired where the appellee’s incapacity was not solely caused by diseases, prior existing physical defects, his advanced age, the natural process of aging, or some combination thereof. The issues which appellant now complains of the court’s refusal to submit went a step further and inquired whether any period of appellee’s total incapacity was due solely to the conditions or factors inquired of in Issue No. 20.

These issues would have perhaps been' proper had there been any probative evidence to warrant their submission. The only evidence in its connection was that of appellee’s physician to the effect that ap-pellee’s disabilities could possibly, but not probably, have been the result of his advanced age. We are of the opinion that such speculation and conjecture did not warrant the submission of the issues requested.

Judgment is affirmed.


author: WALTER, Justice.

text:
    The TRAVELERS INSURANCE COMPANY, Appellant, v. Robert Lee BAILEY, Appellee.
    No. 3797.
    Court of Civil Appeals of Texas. Eastland.
    May 3, 1963.
    Rehearing Denied May 24, 1963.
    Thompson, Knight, Wright & Simmons, Dallas, for appellant.
    Fulmer, Fairchild & Badders, Nacogdo-ches, for appellee.
   WALTER, Justice.

Robert Lee Bailey recovered a judgment against The Travelers Insurance Company for total and permanent disability benefits under the Workmen’s Compensation Law. Travelers has appealed.

It does not contend that there is no evidence to support the verdict. It does contend, however, that the verdict is so against the great weight and preponderance of the evidence as to be manifestly unjust and clearly wrong. It also contends that the court erred in overruling its objection to a question propounded to one of Bailey’s employers, R. L. Washburn. Washburn was permitted to testify that Bailey was his employee on a commission basis. Travelers objected to this because the answer invaded the province of the jury. On this point Travelers says that “Any contention that this error would be harmless error within Rule 434 would be an untenable notion, for in such a situation it is presumed that reversible error was committed.”

Bailey testified substantially as follows: He was employed by Washburn-Bedell Service Station. Mr. Washburn hired him to work strictly on a commission basis. Washburn and Bedell furnished some of the equipment and all materials and he performed the labor. After the price for the materials was taken off of the gross charges for a job, the balance would be divided SO percent to Washburn and Bedell and SO percent to him. He was employed primarily to do body work and paint work but sometimes did mechanical work. From time to time, Washburn gave him orders to do things that he wanted done. From time to time, Wash-burn brought jobs to him and told him that he had made estimates on them and instructed him to do the work. The customer paid his bill at the office which was supervised by Mr. Washburn. Social security and withholding taxes were withheld from his pay check by Washburn. He usually worked from 8:00 in the morning to 6:00 in the evening. At the time he was injured he was replacing a transmission on a ’55 Chevrolet. He was lying on his back on a creeper. The end of the transmission hit him on his thigh and the body of the transmission fell on his hip. On the mechanical work, Bedell and Washburn would make the estimates and set the price for the work. Washburn and Bedell exercised control over his activities in the shop on mechanical jobs. On the transmission job that he was performing at the time he was injured, Mr. Washburn had given him some orders and instructions about the work. On mechanical work they gave him suggestions and orders.

On cross-examination Mr. Washburn was asked the following question: “Mr. Wash-burn, at the time Mr. Bailey got hurt, I believe he was the employee of yours, on a commission basis, was he not?” Appellant objected to this question for the reason that Mr. Washburn’s answer thereto would be immaterial and irrelevant and would invade the province of the jury. The court overruled its objection. Thereafter the following took place:

“Q. Mr. Bailey, at the time of his injury, was an employee of yours on a commission basis, wasn’t he?

“A. He went to work there on a commission basis.

“Q. Well, he was an employee of yours on a commission basis, was he not, when he got hurt?

“A. Well, I don’t know whether he was an employee or not. He was strictly working on his own. He was furnishing his own body shop equipment, and he was employed in my place of business strictly on a commission basis.

“Q. What did you mean a few minutes ago when you said he was an employee of yours on a commission basis? That is in the record?

“A. Okey; then, if you count him as an employee on a commission basis, then he was an employee on a commission basis.”

Mr. Bedell was asked “Do you know upon whose recommendation he went to work as an employee for you and Mr. Washburn”, and he answered, “I would say he went to work on his own; we needed someone and we gave him a chance.” Bedell further testified that he and Washburn were both Bailey’s bosses.

Appellant relies on the case of Far-ris v. Interstate Circuit, Inc., 5 Cir., 116 F.2d 409 as authority for the proposition that reversible error is presumed. The court said: “The consideration given by the jury to the testimony thus improperly admitted may or may not have affected its verdict. Since this court cannot be certain that it did not, it must be presumed that reversible error was committed.” The rule of “presumed prejudice” has not prevailed in Texas since the adoption of Rule 434 of the Texas Rules of Civil Procedure. The Development of the Doctrine of Harmless Error in Texas, 31 Tex.Law Review, page 1, Walker v. Texas Employers’ Insurance Association, 155 Tex. 617, 291 S.W.2d 298. The burden is upon the appellant to show that the error complained of “was reasonably calculated to cause, and probably did cause, the rendition of an improper judgment”, before the appellate court is justified in reversing the judgment. City of Galveston v. Hill, 151 Tex. 139, 246 S.W.2d 860.

Considering the record as a whole, we are not convinced that Washburn’s testimony that Bailey was an employee on a commission basis was reasonably calculated to cause, and probably did cause, the rendition of an improper judgment. If there was any error committed in admitting the testimony of Washburn, it was harmless because Bedell, one of Bailey’s bosses was permitted to testify to substantially the same facts without objection. Rule 434 T.R.C.P.

We have examined and considered all of the evidence and find that the verdict is not against the great weight and preponderance of the evidence. In Re King’s Estate, 150 Tex. 662, 244 S.W.2d 660.

We have considered all of appellant’s points and find no merit in them. They are overruled.

The judgment is affirmed.


author: McNEILL, Justice.

text:
    Richard M. FINDER, Appellant, v. E. L. CHEENEY COMPANY et al., Appellees.
    No. 6612.
    Court of Civil Appeals of Texas. Beaumont.
    April 18, 1963.
    James S. Robertson, Jr., Dallas, for appellant.
    Robert S. Tucker and Clarence D. Cain, Liberty, for appellee.
   McNEILL, Justice.

Appellant, owner of an oil and gas léase 'in Liberty County, employed E. L. Cheeney Company, appellee, to conduct certain- reworking operations on Hooks No. 9 well thereon. During the reworking and while tubing, consisting of 94 joints and 5 tail joints, was being run into the well bore, the 4th and 5th joints from the top of such tubing separated and all of the tubing below such point of separation fell to the bottom of the well. Seventy-five joints of the tubing were recovered but the remaining joints could not be recovered, which caused the well to be plugged and abandoned. Appellant filed suit against appellee for damages in excess of $40,000.00, alleging that Hooks No. 9 well had to be abandoned because of the negligence of appellee in allowing said tubing to be dropped, thus causing a new well to be drilled at a cost in excess of $40,000.00, and prayed for recovery of such sum and also for $1,567.82, the value of the tubing lost in the former well.

Appellee filed a cross-action against appellant upon an itemized, verified account for labor, material and equipment furnished by it to appellant in the amount of $6,-618.22, the principal part of which was for work done on the Hooks No. 9 well, and for attorneys fees in the amount of $3,000.-00 under Article 2226, V.A.C.S.

This cause was submitted to a jury on special issues, the first twenty-three of which had to do with whether, in the reworking operations for appellant, appellee was an independant contractor, whether it was guilty of negligence in allowing the tubing to separate and whether this was the proximate cause of appellant’s damage. The other three issues (Nos. 14, 15 and 16) had to do with appellee’s cause of action on its account and amount of attorneys fees. The sum of $2,006.07 was found as reasonable attorneys fees for appellee’s attorneys and another issue found that the amount of indebtedness due E. L. Cheeney Company by appellant was $6,618.22.

The jury was unable to answer most of the issues pertaining to appellant’s cause of action, but the court accepted the incomplete verdict. Appellee thereupon filed motion for severance and for judgment on its cross-action, and subject thereto, filed a motion to enter judgment in favor of ap-pellee notwithstanding the verdict of the jury. The latter motion was based upon the proposition that as a matter of law appellee was not an independent contractor in connection with the work done on Hooks No. 9 well and, therefore appellee was not responsible therefor, that accordingly the court should enter judgment that appellant take nothing by his suit and that the court enter judgment for appellee on the itemized account with attorneys fees. The court overruled this motion for judgment, n. o. v., but granted appellee’s motion for severance upon the ground that appellant’s cause of action and that of appellee against appellant were separate and distinct causes of action, and thereafter rendered judgment for appellee based upon the jury’s answers to special issues 14, 15 and 16 in favor of appellee against appellant in the total of $11,037.71. At the same time the court granted a mistrial as to the first twenty-three issues, most of which had been unanswered, and ordered a new trial as to appellant’s cause of action. Appellant gave notice of appeal from the order granting appellee’s motion for severance in original cause, No. 16403, and from the judgment in appellee’s favor on its sworn account in the severed cross-action, No. 16403-A.

Appellant’s complaint here is that the trial court erred in severing the original action from the cross-action of appellee. Appellant filed no motion for new trial. Appellee urges its motion to dismiss this appeal for lack of jurisdiction on account of appellant’s failure to file motion for new trial. Rule 324, T.R.C.P., as amended, effective September 1, 1962, provides that motion for new trial is a prerequisite to-urge an error upon appeal in jury cases except in the following instances:

(a) Where a pre-emptory instruction was given (or cause withdrawn from jury and judgment rendered);
(b) In rendering or refusing to render judgment, n. o. v., or notwithstanding the finding of the jury on one or more special issues;
(c) Where a motion for judgment in behalf of appellant was overruled;
(d) Where the appeal is based on some error of the trial court arising after its action on motion for new trial;
(e) Complaints mentioned in Rule 325.

Appellee says that since none of these exceptions apply and appellant made no such motion for new trial, this court has no jurisdiction of the cause and the appeal should be dismissed.

Appellant answers this argument by asserting that the “obvious effect of the order of severance and the judgment on the cross-action was the rendition of a judgment notwithstanding the findings of the jury on one or more special issues and as such it was not necessary for the plaintiff (appellant) to file a motion for a new trial in order to perfect his appeals from such order of severance and judgment”. In support of this proposition, he cites Rule 324 and the cases of City of Lamesa v. Hutchinson, Tex.Civ.App., 336 S.W.2d 861, and Great American Indemnity Co. v. Meyer, Tex.Civ.App., 285 S.W.2d 276. These cases do not support his proposition. In the former, appellant filed a motion for judgment, n. o. v. (p. 865). In the latter, the court entered a judgment upon motion to disregard a finding of the jury. The case of Rowney v. Rauch, Tex.Civ.App., 258 S.W.2d 371, (W.R.), controls the question before us. In the opinion on rehearing, 258 S.W.2d p. 374, the court holds that. action of a trial court which constructively operated as an instructed verdict is not sufficient upon which to base an appeal within the meaning of Rule 324, T.R.C.P.

Appellant’s point not having support in a motion for new trial and not based upon any exception listed above, cannot be considered. We have considered the proper order or orders to be made under the circumstances herein. Appellant, though failing to properly raise the issue of severance, has brought the whole controversy to this court — both the final appealable judgment on appellee’s severed cross-action (Pierce v. Reynolds, 160 Tex. 198, 329 S. W.2d 76) and the interlocutory order of severance in the original cause. 4 McDonald, Tex.Civ.Prac., Sec. 17.03, pp. 1306-1314. The judgment granting appellee recovery upon its cross-claim will be affirmed. Miller v. Miller, Tex.Civ.App., 274 S.W.2d 762, (W.R.); Sterley Com. Sch. Dist. v. County Board of Trustees, Tex.Civ.App., 200 S.W.2d 717. Since the order of severance is not an appealable one, the appeal therefrom will be dismissed.

Notice should be taken of appel-lee’s cross-point. This point states that the trial court erred in overruling appellee’s motion for judgment, n. o. v., because the evidence showed conclusively that appellee did not conduct the reworking operations on Hooks No. 9 in the capacity of independent contractor. At least two reasons require us to overrule this point. The first is that since the appeal in this cause was not properly before us, we may not consider the point. Secondly, inasmuch as the trial court, after granting the severance, declared a mistrial and ordered a new trial on appellant’s cause of action, appellee’s point necessarily attacks the granting of the new trial upon this section of the original case. To recognize the cross-point would be, in effect, to allow an appeal from the order granting a new trial. This may not be done. Equitable Life Assurance Society v. Murdock, Tex.Civ.App., 219 S.W.2d 159; 3 Tex.Jur.2d 375. The appeal from the order of severance is accordingly dismissed for want of jurisdiction. The judgment of the trial court in the severed cause allowing recovery to appellee on its counterclaim is affirmed.


author: HARRIS, Chief Justice.

text:
    W. O. WALTHALL et ux., Appellants, v. Harold Henry HIME, Appellee.
    No. 5-3019.
    Supreme Court of Arkansas.
    May 27, 1963.
    McKay, Anderson & Crumpler, Magnolia, for appellants.
    Harry B. Colay, Magnolia, for appellee.
   HARRIS, Chief Justice.

This is an adoption proceeding. Harold Henry Hime, a Baptist minister, was the husband of Billie Jo Walthall Hime, and Billie Jo died on September 25, 1957, eight days after the birth of the couple’s third child, Sarah Margaret Hime. W. O. Wal-thall and Lula Walthall, his wife, parents of Billie Jo, and appellants herein, took the baby home from the hospital, along with the two older minor sons. Mr. Hime also lived in the Walthall home while teaching at Bradley; after about six weeks, he became pastor at Bradley, and moved from appellants’ home. Hime, according to the testimony, at first, returned to the Walthall home on Friday nights, and subsequently on Saturdays, at which times he would see the children and get clean clothes. In September, 1958, appellee remarried, and took the boys with him to the parsonage at Bradley. Sarah Margaret remained with her grandparents. Mr. Hime, his wife, and sons, remained in the parsonage until January, 1960. During that period, the grandparents visited in his home on several occasions, at which time they took Sarah Margaret with them, and on several occasions returned the boys back to their home for a visit. Mrs. Walthall testified that appellee never did ask for Sarah to spend the night at his home, nor did he take Sarah out when visiting appellants, or ask to do so. A girl baby was born to Mr. Hime and his second wife in September, 1959. Thereafter, appellee and family left Bradley and moved to Fort Worth. Sarah Margaret remained in the home of the grandparents. According to Mrs. Walthall, the Himes, at first, came back for a visit during the summer, and the two families always had Christmas dinner together. She testified that Sarah never did visit with her father, and that no request was made for such a visit. Early in 1961, appellee commenced sending $30.00 per month to the Walthalls for the benefit of the child, the money being a portion of Social Security money (or some fund from the Government) which Hime received in behalf of the children. In May, 1962, the Walthalls received a letter from appellee to the effect that he desired to take his daughter home with him to live. Mr. Walthall directed a letter to Hime, stating that appellants intended to keep Sarah Margaret. In June, appellee filed an action in Habeas Corpus to obtain custody of the child. On the day that this matter was to be heard, appellants filed a petition in Probate Court, seeking to adopt Sarah Margaret, alleging that Hime had abandoned the child for more than six months immediately prior to the filing of their petition for adoption. A motion was also filed by them to continue the Habeas Corpus hearing until after the adoption petition was heard. The motion was granted, and subsequently the petition for adoption was heard by the Probate Court. At the conclusion of the hearing, the judge of that court entered a lengthy and studious opinion, wherein he found that the petition for adoption should be denied. In accordance with this finding, an order was entered dismissing appellant’s petition, and denying the adoption. From such order, comes this appeal.

Section 56-106, Ark.Stats., dealing with adoption, provides as follows:

“(a) The adoption of a child shall not be permitted without the written consent verified by affidavit, of its parents or parent, if living, except as follows:
“(b) The consent of a parent or parents may be dispensed with if the court, upon competent evidence, makes one of the following findings:
“(I) The parent has abandoned the child for more than six (6) months next preceding the filing of the petition.
“(II) The parent cannot be found.
“(Ill) The parent is insane or otherwise incapacitated from giving consent.
“(IV) A guardian of the child has been appointed by an order of the Probate or Juvenile Court giving the guardian authority to consent to adoption without notice to or consent of the child’s natural parents. In this case, the written verified consent of the guardian shall be sufficient.
“(V) For five (5) years next preceding the filing of the petition for' adoption, the child has resided in this State in the sole custody of one of its parents and the other parent has not, during that period contributed to its support, care or maintenance, then the appearance and consent of such other parent, whether or not his or her residence is known, shall not be necessary, and the court may order the adoption upon the consent of the parent who has had the custody, support, care and maintenance of the child.
“(c) In case of illegitimacy, the consent of the mother shall suffice except where paternity has been established by judgment or order of a court of competent jurisdiction.
“(d) The minority of a parent shall not bar or in any way vitiate his consent to an adoption.”

Appellants rely upon Provision (I), and in proceeding under this theory, endeavored to establish that appellee had “given” the child to its grandparents. Four ladies testified that during the first Mrs. Hime’s last illness, appellee had told them that if his wife died, he would give the child to Mrs. Wal-thall; however, on cross-examination, one of the witnesses (Mrs. Fritch) stated that he was “letting them keep Sarah.” Two of the other ladies, who testified that Hime “gave” the child to appellants, added that he did not indicate he was abandoning Sarah Margaret, and the fourth testified that he seemed rather perturbed at the time over the critical condition of his wife. Mrs. Walthall stated that after her daughter’s death, appellee told her, “Mrs. Walthall, Sarah is yours and Mr. Walthall’s.” She testified that she didn’t want the children separated, and stated that subsequently (when Hime was preparing to take the boys to live with him in Bradley) told him, “Bozo, if you don’t take Sarah now, don’t ever come back for her.” The testimony reflected that on one occasion, Hime attended a homecoming celebration at Southern State College, but did not go by the Wal-thall home to visit with Sarah. Mrs. Wal-thall testified that Hime always sent Christmas and birthday presents to his daughter, and had, for seventeen months prior to the filing of the adoption petition, sent the $30.-00 heretofore referred to. When asked if he had ever given any indication of deserting and abandoning the child, she replied, “Why, no, I don’t suppose you would call it that. He did walk away and leave her when I asked him if he didn’t take her then to not ever come back for her. That is the nearest I would call abandon. I don’t suppose he called it that and I didn’t.”

Mr. Hime is a social case worker for Buckner Baptist Benevolences, connected with Buckner Baptist Children’s Home, near Fort Worth. He testified that he did not recall ever telling anyone that he was renouncing all rights to Sarah, and he readily admitted that he felt a serious mistake had been made by leaving the child with the grandparents for so long a period of time. He stated that one reason for leaving Sarah Margaret was to help his mother-in-law, who was extremely upset over the death of her daughter, and he testified that he had not often visited in the Walthall home for two reasons — because of his schooling, pastorates, and work at the orphanage, and further, because he felt that such visits caused emotional disturbances in the family. Appellee stated that he felt his visits had become progressively less welcome but he had left the child with appellants because he did not want to hurt Mrs. Walthall; that finally, however, he felt that the step must be taken, and he directed the letter to appellants, expressing his desire to rear his daughter with the other members of his family. He testified that he received Social Security for the three children (around $60.00 per month for Sarah); that he had been sending $30.00 to the Walthalls, had purchased a participating life insurance policy for Sarah which would mature on her eighteenth birthday, and had established a small bank account for her.

The present Mrs. Hime testified that she wanted Sarah in the home and would do all possible to make a good mother for her.

The evidence establishes that all parties are of good moral character, and from that standpoint, entirely proper persons to rear the little girl.

In reaching our conclusion, it is not necessary to discuss the question of whether a child can be “given away.” Suffice it to say that we think the proof falls far short of establishing that appellee abandoned Sarah Margaret. This court, in Woodson v. Lee, 221 Ark. 517, 254 S.W.2d 326, quoted a California case which approved Webster’s definition of “abandonment” as follows :

“To relinquish or give up with the intent of never again resuming or claiming one’s rights or interests in; to give up absolutely; to forsake entirely; to renounce utterly; to relinquish all connection with or concern in; to desert, as a person to whom one is bound by a special relation of allegiance or fidelity; to quit; to forsake.”

Certainly, the proof does not reflect that Hime deserted, forsook entirely, renounced utterly, or relinquished all connection with, or concern in, his daughter. Whether, at the beginning, he intended to relinquish any rights or interest in the person of his daughter, with the intent of never again resuming the relationship, is very much debatable under the evidence in this case, but the statute requires that he shall have “abandoned, the child for more than six (6)- months next preceding the filing of the petitionAs heretofore stated, money had been sent for the child’s benefit for seventeen months prior to the filing of the petition, gifts had consistently been given on commemorative days, and, in fact, Hime had already filed his petition for a Writ of Habeas Corpus with the intention of obtaining the custody and control of his daughter before appellants ever filed their petition for adoption.

Finding no abandonment of Sarah Margaret by her father, appellee herein, it follows that the order of the Probate Court should be, and hereby is, affirmed.

      . In bis opinion, the trial judge stated, “It was stipulated that in the event petitioners were unsuccessful in the adoption matter, they would not further contest the action in Chancery Court.”

      . This was appellee’s nick-name.

      . Mr. Hime is working on Ms Master of Divinity degree.

      . According to Ms testimony, every letter written by the Walthalls to Ms household since the death of Billie Jo had been addressed to the two boys, and he stated that he did not recall ever receiving a personal invitation for a visit to the Wal-thall home unless it was to bring the children.

      .In re Cordy, 169 Cal. 150, 146 P. 532.


author: JOHNSON, Justice.

text:
    James S. SCOTT, d/b/a Scott Lumber Company, Appellant, v. Cornelias VUURENS et al., Appellees.
    No. 5-3006.
    Supreme Court of Arkansas.
    May 27, 1963.
    Digby & Tanner, N. Little Rock, for appellant.
    James L. Sloan and Wright, Lindsey, Jennings, Lester & Shults, Little Rock, for appellees.
   JOHNSON, Justice.

This is a suit to foreclose a materialman’s lien. Appellant James S. Scott, doing business as Scott Lumber Company, filed suit in Pulaski Chancery Court on May 18, 1962, against appellees, Cornelias Vuurens and Violet K. Vuurens, his wife, Weston R. Coon and Ruth L. Coon, his wife, and Republic Investment Company of Arkansas, seeking judgment for $5,234.46 against Vuurens and in rem against real property now owned by the Coons and mortgaged to Republic Investment Company, for materials furnished between September 7, 1961 and May 7, 1962, for construction of a house at 3624 Central Street in Little Rock. When building was commenced, Vuurens owned the property and had obtained a construction money mortgage for $7500.00 from Republic on August 28, 1961. In March when the house was near completion, it was sold to the Coons who executed a mortgage to Republic for $12,100.00, who in turn released Vurrens’ construction money mortgage. Appellant sought to have his judgment (when obtained) be declared paramount to the Coons’ and Republic’s interests in the property, and prayed that the property be sold if the judgment be not satisfied within a fixed time. The Vuurens answered with a general denial and alleged affirmatively that the debt sued on had been fully paid and extinguished. The Coons filed a general denial, and Republic Investment Company admitted the two mortgages, and alleged that the release and satisfaction of the former mortgage was invalid because of failure of consideration and misrepresentations on the part of Vuurens and prayed that the release of the August 28, 1961 construction money mortgage be set aside and that mortgage be reinstated.

Vuurens then filed a counterclaim against appellant alleging that he (Vuurens) conveyed certain other property in which he owned an interest to appellant in full satisfaction of the debt, and that, if the court should sustain appellant’s complaint, then that conveyance should be cancelled.

On October 29, 1962, the Chancellor entered a decree finding that the debt of Vuurens had been fully paid and extinguished, dismissed the complaint with costs taxed against appellant, and dismissed the counterclaim as moot. From that decree comes this appeal.

The principal question involved is whether the parties (appellant and Vuurens) intended that the conveyance of the interest of Vuurens in the other property to appellant be in complete satisfaction of the debt here sued on.

Appellant and Vuurens had been doing business together for three or four years, Vuurens having built 12 houses and appellant furnishing much of the material. At the time Vuurens started to build the Central Street house, he owed appellant a considerable amount of money for materials furnished to other jobs on which the lien time had run. On November 9, 1961, Vuurens paid appellant $1,715.44, and on December 15, 1961, $750.00, which reduced Vuuren’s total indebtedness to appellant to approximately $10,000.00. The part of the total indebtedness sued for here for materials and advances furnished for the construction of the Central Street house is $5,234.46.

Vuurens had purchased ten acres of property in southwest Little Rock from Robert Lowe for the sum of $19,000.00, payable $60 a month, on which he still owed about $7,000.00. Since purchasing the Lowe property, Vuurens had improved and sold two front lots which faced on a highway, leaving about 8¼ acres in the tract. Vuur-ens became three months in arrears in his payments to Lowe, and Lowe elected to accelerate the debt and filed suit in Pulaski Circuit Court on February 27, 1962, for the balance owed. An answer was not filed on behalf of Vuurens, however Lowe’s attorney testified that he advised Vuurens’ attorney it would not be necessary to file an answer if the arrears were paid to date. Lowe’s attorney was later advised by Vuur-ens’ attorney that appellant might pay the arrearage and assume the obligation. On April 20, 1962, Lowe and his attorney went to appellant’s office where appellant exhibited a quitclaim deed from Vuurens and his wife and stated that he and Mr. Vuurens had worked out an arrangement whereby he (appellant) was to make an assumption of this obligation. Appellant thereafter paid the arrears, attorneys fee and court costs and assumed the obligation.

There is no dispute about the amount that Vuurens had purchased from appellant, or the amount he paid appellant, and that Vuurens and his wife conveyed the Lowe property to appellant. Virtually all other testimony appears to be disputed.

The value of Vuurens’ equity in the Lowe property is disputed — the testimony ranged from $1,000 (appellant’s testimony) to around $10,000 (Vurrens’ testimony). Expert witnesses for both appellant and appel-lee testified as to the value of the property in acreage. This 8⅛ acres was located adjacent to a new subdivision (Twin Lakes). One of appellant’s experts testified on cross-examination that there would be between 3 and 3½ lots per acre involved in this property and that he knew that two lots were sold on this property (out of the original 10 acres) where the F.H.A. permitted $1,500.00 per lot evaluation.

Vuurens testified that he conveyed the Lowe property to appellant in satisfaction of his entire account, including the account here sued on, and also testified that after the conveyance he received no further statements of account from appellant. Appellant testified that Vuurens told him he had lost the property because his attorney hadn’t answered the suit and that the only consideration for the quitclaim deed was his (appellant’s) paying the arrearage, court costs and attorneys fee and assuming the balance of the obligation. However, in appellant’s deposition taken prior to trial, it was shown that appellant testified in eight different places that he had paid Vuurens a $100.00 consideration mentioned in the deed. Appellant therein stated that he paid the $100.00 “by cash”; that the record “wouldn’t show up in my company books”; that he “just paid him” and “without receipt”; that the $100.00 was the only consideration; that he told Vuurens the $100.00 was all that he was to get; that he paid Vuurens the $100.00 when the deed was delivered to him at the appellant’s store; and that the phrase “$100.00 and other valuable considerations sounds like a legal term to me.” Yet at trial the testimony was that it “gradually came back to him that he had not paid Vuurens $100.00.” Appellees argue in effect, and we agree, that it would be inconsistent for appellant to maintain that he paid Vuurens $100.00 and at the same time contend that Vuurens owed him over $10,000.00 on several accounts.

Appellant testified that since Vuurens did not direct him where to apply the November and December payments, he applied them against Vuurens’ old accounts. The escrow agent for the National Abstract Company (handling disbursement of the construction money) testified that she called appellant just after each of the payments to be sure that the payments were credited against the account on the Central Street house. She also testified that prior to but while in the process of closing the Coon loan, she called appellant to be sure Vuurens was paid up, and that appellant advised her that his account was “closed in full.” Appellant while admitting the telephone conversation with the escrow agent vigorously disputed the contents thereof. The record reveals that approximately two months elapsed between this conversation and the filing of the present law suit. In the meantime, on April 20, 1962 the quitclaim deed to appellant was executed.

Testimony on other material points is similarly conflicting. This court stated in Dearien v. Lancaster, 221 Ark. 98, 252 S.W.2d 72, “With the testimony about evenly balanced we are not in a position to say that the chancellor’s conclusions [were] wrong. The vital issue was that of credibility, and his opportunity to decide that question was immeasurably better than ours.” We have examined the record and testimony closely, and on trial de novo we cannot say that the chancellor’s findings are against the preponderance of the evidence.

Affirmed.


author: HOLT, Justice.

text:
    Ernest J. CUMMINGS, Appellant, v. UNITED MOTOR EXCHANGE, INC., and Maryland Casualty Co., Insurance Carrier, Appellees.
    No. 5-3007.
    Supreme Court of Arkansas.
    May 27, 1963.

      J. Fred Jones, Little Rock, for appellant.
    S. Hubert Mayes and S. Hubert Mayes, Jr., Little Rock, for appellees.
   HOLT, Justice.

This is a workmen’s compensation case in which the claimant-appellant, Ernest J. Cummings, contends that the payment of compensation benefits to him by the appel-lee, Maryland Casualty Company, was terminated prematurely.

On March 4, 1960, while employed by the appellee, United Motor Exchange, Inc., the appellant suffered a back injury when his foot slipped in some oil as he attempted to turn an automobile motor on the floor. As a result of this injury the appellant was paid workmen’s compensation benefits for a period of twenty-five weeks or until September 1, 1960. Appellant contends that the payments for temporary total disability and reasonable medical expenses should have continued until March 6, 1961. The Referee disallowed his claim, the full Commission agreed with the Referee, and from the Circuit Court’s judgment affirming the Commission comes this appeal.

The appellant urges for reversal the sole point that there is no substantial evidence he had sufficiently recovered from his unquestioned compensable injury to enable him to return to work on September 1, 1960.

The appellant had previously sustained a back injury in 1956 for which he was being paid a 10% permanent partial disability at the time of the present injury. Following the present injury and until he was discharged by Dr. Richardson it appears that he was hospitalized three separate times for observation and treatments consisting of physiotherapy and traction because of his persistent complaint of being in pain. He was examined by various doctors, including two neurosurgeons, who reviewed spinal myelograms made of him in August, 1957, and in June, 1960. They found no evidence of a herniated or ruptured disc. It is undisputed that his pain and discomfort persisted.

Dr. Richardson, in his final narrative report on July 19, 1960, wrote that upon seeing the appellant on July 12th he “was still complaining of discomfort in his right hip with activity” and “I discussed the problem again with Mr. Cummings and advised him to attempt to return to normal activity in hopes that this discomfort would disappear. As stated before, I am unable to find any physical cause for this man’s symptoms and I do not believe that he has any permanent disability.” Later he submitted his Surgeon’s Final Report and Bill on a printed form according to which he had lást seen the appellant on August 17, 1960 in his office. He indicated on this form that he had discharged him as cured and ready to return to work as of September 1, 1960. He did not se'e the appellant on this date or thereafter. The appellant did not return to work. His undisputed testimony is that following his discharge the discomfort and pain continued and as a result of his “misery” he was so disabled he could not and did not work and was confined to his house until December 27, 1960. On that date the appellant was admitted to the Veterans Administration Hospital where another spinal myelogram was made which then did not disclose a protruding disc. However, because of appellant’s persistent complaint upon physical therapy activity, a re-evaluation of this myelogram did show “L-5, S-l right protruding disc, and on 2-3-61 patient was taken to the operating room where he had an extruding nucleus pulposus removed from the L-5, S-l interspace on the right.” This operation relieved appellant of his pain.

In August, 1961, one of the physicians who originally observed the appellant following his present injury reviewed the Veterans Administration Hospital records and confirmed that the VA spinal myelo-gram “did show a definite defect at the H-5, S-l interspace on the right side.” He reiterated that the spinal myelograms made in August, 1957 and June, I960 did not show such abnormality and, further, any disability in June, 1960 would have to be based on claimant’s subjective complaints. Dr. T. M. Fletcher, who performed the successful operation, reported:

“This man who has had symptoms of low back pain and sciatica for some time was operated on 2-3-61 with the removal of a herniated nucleus pul-posus on the 1^5, S-l interspace on the right. This was a fairly large lesion and was undoubtedly the cause of his severe symptology. His post operative course was quite good and he was free of pain. ■* * * At the time of the most recent back strain which occurred in March, 1960, while working, he probably sustained the extrusion of the disc, and from that time up until the time of this hospitalization was disabled with severe back and leg pain.”

We recognize the rule that a decision of the Workmen’s Compensation Commission will be affirmed if there is any substantial evidence to support it. Aluminum Company of America v. Williams, 232 Ark. 216, 335 S.W.2d 315; McBride v. Ark-La Industries, 235 Ark. 675, 361 S.W.2d 532. However, whether the evidence is substantial in nature is also a question of law. Boyd Excelsior Fuel Co., v. McKown, 226 Ark. 174, 288 S.W.2d 614. In the case at bar we think there is no substantial evidence to support the Commission’s finding that appellant’s healing period ended September 1, 1960. It is true that various examining physicians were of the opinion that the spinal myelograms made in August, 1957 and June, 1960 did not disclose a herniated disc. Neither did the spinal myelo-gram made in January, 1961, at the Veterans Administration Hospital upon first interpretation. The crux of this case, however, is the question as to when appellant was physically able to return to work. The existence or non-existence of a herniated disc is not the primary issue — it is only a part of the total picture. Upon reviewing the evidence in this case we consider it to be overwhelming, and in fact the medical evidence so reflects, that the appellant was suffering pain and discomfort from an admitted compensable injury during all the time he was hospitalized or under observation. There is no evidence in this record to refute his claim that he continued to suffer pain and discomfort after September 1, 1960. His claim of disability is abundantly corroborated by his admission into the Veterans Administration Hospital on December 27, 1960 where he was hospitalized and treated for several weeks before Dr. Fletcher operated and removed a large lesion on February 3, 1961. Following this the appellant described his condition as follows: “I feel like a new man altogether since the operation.”

It is the intent and purpose of our workmen’s compensation laws that they should be liberally construed and, futher, that doubtful cases are to be resolved in favor of the claimant. Boyd Excelsior Fuel Co., v. McKown, supra; McBride v. Ark-La Industries, supra.

The judgment of the Circuit Court is, therefore, reversed and remanded with directions that the Circuit Court remand the case to the Workmen’s Compensation Commission with directions to award the appellant temporary total disability from September 1, 1960 to March 6, 1961, together with reasonable medical expenses. Reversed.


author: WARD, Justice.

text:
    Y. R. CALDWELL et al., Appellants, v. BOARD OF ELECTION COMMISSIONERS OF GARLAND COUNTY, Appellee.
    No. 5-3014.
    Supreme Court of Arkansas.
    May 27, 1963.
    Richard W. Hobbs, Hot Springs, for appellant.
    R. Julian Glover, Hot Springs, for ap-pellee.
   WARD, Justice.

One phase of this litigation has already been before this Court. In the case of Garland County Board of Election Commissioner v. Ennis, 227 Ark. 880, 302 S.W. 2d 76, we held that the matter of abolishing certain townships (and combining them with other townships) was properly before the circuit court on appeal from the county court.

Upon remand the circuit court heard testimony from those opposing abolition of the townships, overruled their motion to dismiss, and then affirmed the order of the county court of December 5, 1956 which abolished certain designated townships and consolidated them with other townships.

The appellants, who are citizens and taxpayers of the abolished townships, seek, on appeal, to reverse the judgment of the circuit court on the grounds hereafter discussed.

One. The primary contention of appellants is that Ark.Stat.Ann. § 18-101 (Repl.1956) does not invest the county court with power to abolish townships. This section reads as follows:

'‘The county court of each county in this State, shall from time to time, as occasion may require, divide the county into convenient townships, subdivide those already established, and alter township lines.”

Although this section has apparently never been construed by this Court, we think its language, when read together with related sections, makes appellants’ contention untenable. It will be noted that under the quoted section the county court not only has the power to make the initial division, ■but it also has the power to make divisions “from time to time”. We can only conclude from the wording of the section that the legislature meant to give county courts full power over formation of townships in their respective counties—including the power to abolish townships already formed. Section 18-103 directs the county clerk to report to the Secretary of State the establishment of any “new township” which seems to confirm what we have just said. Actually the county court’s order “abolishes” nothing of substance, but merely assigns a name to a newly formed township.

Two. Appellants next challenge the sufficiency of the evidence to sustain the judgment of the circuit court. The petitioners, in asking the county court to-abolish certain townships and combine them with others, gave as justification the improved conditions of transportation and the financial savings that would result to the county. This was not questioned by appellants. However, they presented testimony by residents of the several townships to show certain inconveniences would result to the people affected. In Davis Township some people would have to travel eight to twelve miles further to vote; In Wheatley Township some would be forced to travel about six miles further; In other instances the extra distance for some to travel was said to be from one to seven miles. On the other hand there was no showing that, with improved roads and improved modes of transportation, these people would be seriously inconvenienced. In the face of the record, as above indicated, we cannot say there was no substantial evidence to support the judgment of the trial court. In the case of Brkker v. Wist, 163 Ark. 511, 260 S.W. 408, this Court considered an appeal from the circuit court on a matter which had been appealed to it from the county court. In that case we said:

“It is from the circuit court that the appeal comes to this court, and we do not try the case de novo, and * * * we do not on an appeal from the circuit court to this court consider the question of the preponderance of the testimony.”

Three. Appellants say the trial court failed to pass upon appellants’ motion to dismiss and upon Giles Evans’ intervention because the court was of the opinion those questions were foreclosed by our opinion in the Ennis case, supra. It is contended this was error on the part of the trial court. An examination of the written findings included in the judgment negates this contention. A portion of such findings reads: “ * * * the motion to dismiss filed herein on behalf of the respondents was considered by the court and the same was denied, and the motion to dismiss filed herein on behalf of the mtervenor was likewise considered by the court and the same was denied.”

The trial court’s judgment, in part, reads: “ * * * the order of the Garland County Court, dated December 5, 1956, is in all things afi&rmed and approved.” Finding no error, we affirm the judgment of the trial court.

Affirmed.


author: McFADDIN, Justice.

text:
    Mrs. Bette Sue WILLIAMS, et al., Appellants, v. CENTRAL FLYING SERVICE INC., et al., Appellees.
    No. 5-2993.
    Supreme Court of Arkansas.
    May 27, 1963.
    Patten & Brown, Little Rock, for appellant.
    Wright, Lindsey, Jennings, Lester & Shults, Little Rock, for appellee.
   McFADDIN, Justice.

This is a workmen’s compensation case in which Mrs. J. R. Williams and her children, as claimants, seek to recover from Central Flying Service compensation because of the death of Mr. J. R. Williams, who perished in an airplane crash. The Central Flying Service, as the alleged employer, denied liability, claiming that Mr. Williams’ death did not arise out of and in the course of his employment (§ 81-1305 Ark.Stats.).

Mr. J. R. Williams was a full-time police officer of the City of Little Rock, but was extremely interested in aviation; and sometimes when not on duty as a policeman, he was employed by the Central Flying Service (hereinafter called “Central”) on a part-time basis. Central paid him $5.00 per hour as an instructor; and when he served as a pilot on a charter plane he received 20% of the gross revenue for the trip, plus $1.50 per hour for layover time. He had conducted a ground school for student flyers, but no charge for such appears on the books of Central. He held a commercial pilot’s license, a private pilot’s rating, an instrument rating, and an instructor’s rating. He wanted to qualify for a multi-engine rating, but had never done so.

On July 22, 1958 Mr. W. D. Hill, of the Civil Aeronautics Administration, was in Little Rock to examine James McClellan in a test flight with a multi-engine plane. The plane was owned by 'Central, but was loaned to Mr. McClellan for the test flight. Mr. Hill invited J. R. Williams and H. K. Gilbert to go on the test flight with him and James McClellan, since both Williams and Gilbert desired to eventually obtain a multi-engine rating. Mr. Hill requested Mr. Holbert, President of Central, for permission to take Williams and Gilbert on the flight, and such permission was granted. It was on this flight that the plane crashed, and all four of the occupants were killed. Mrs. Williams and her children claimed compensation from Central.

The Referee (Hon. J. R. Calhoun) held against the claimants; the Full Commission likewise held against the claimants; and the Circuit Court affirmed the Commission. At each stage of the proceedings there were briefs submitted, some of which are in the record before us. Also, the opinions of the Referee, the Commission, and the Circuit Court are in the record. Counsel for both sides have been diligent and thorough in researching the questions presented. On the appeal to this Court, appellants urge two points, which we will list, but treat together in our opinion:

“1. That the death of Jesse Ralph Williams arose out of and in the course of his employment, in that he was doing a thing which his contract of employment expressly or impliedly authorized him to do and that his presence upon the fatal flight was a concurrent or mutual benefit to the Ap-pellee.
“2. That facts, not being in dispute, create a question of law and the Court on appeal determines the legal question.”

The claimants insist: (a) that this particular flight was of substantial benefit to Central since by it Williams would gain information that could aid him in passing a test some time later for multi-engine rating; and (b) that because of this substantial benefit to it, Central is liable as an employer. Claimants cite our own cases of Fine Nest Trailer Colony v. Reep, 235 Ark. (Adv. Sheets) 411, 360 S.W.2d 189; Frank Lyon Co. v. Oates, 225 Ark. 682, 284 S.W.2d 637; and Robbins v. Jackson, 232 Ark. 658, 339 S.W.2d 417. Claimants also cite many cases from other jurisdictions, some of which are: Wamhoff v. Wagner Electric Corp., 354 Mo. 711, 190 S.W.2d 915, 161 A.L.R. 1454; Kimberly-Clark Co. v. Industrial Comm. et al., 187 Wis. 53, 203 N.W. 737; Tallent v. M. C. Lyle & Son, 187 Tenn. 482, 216 S.W.2d 7; Phoenix Indemnity Co. v. Industrial Accident Comm., 31 Cal.2d 856, 193 P.2d 745; Owens v. Bennett Air Service, 133 N.J.L. 540, 45 A.2d 320; Blair v. Shaw, 171 Kan. 524, 233 P.2d 731; Garris v. Peoples Service Drug Stores, Inc., 162 Va. 428, 174 S.E. 665; Younger v. Motor Cab Trans. Co., 260 N.Y. 396, 183 N.E. 863; and Chicago, W. & F. Coal Co. v. Industrial Comm., 303 Ill. 540, 135 N.E. 784.

On the other hand, Central claims that Williams went on the flight as an invitee of Hill; that Williams was not on duty for Central at the time; and that Central received nothing for the flight. Therefore, Central insists that the death of Williams did not arise out of and in the course of his employment, but arose only because Williams accepted Hill’s invitation to accompany them as a guest on the flight. Central cites our own case of Woodmansee v. Frank Lyon Co., 223 Ark. 222, 265 S.W.2d 521; and cases from other jurisdictions, some of which are: Young v. Dept. of Labor and Ind., 200 Wash. 138, 93 P.2d 337, 123 A.L.R. 1171; Carroll v. Western Union, 170 Wash. 600, 17 P.2d 49; Davlin v. Texas General Indemnity Co.. 254 F.2d 850 (C.A.5, 1958); Dr. Pepper Bottling Co. v. Chandler, 224 Miss. 256, 79

So.2d 825; Taylor v. Taylor Tire Co., Ky., 285 S.W.2d 173; McQuerry v. Smith St. John Mfg. Co., 240 Mo.App. 720, 216 S.W. 2d 534; Miller v. Greene Co., 171 Pa.Super. 494, 90 A.2d 262; Industrial Comm. v. Messinger, 116 Colo. 451, 181 P.2d 816; Stuhr v. State Ind. Accident Comm., 186 Or. 629, 208 P.2d 450; Texas Employers Ins. Assn. v. Stillwell, Tex.Civ.App., 307 S.W.2d 271; and Butler v. Nolde Bros., 189 Va. 932, 55 S.E.2d 36.

It would unduly extend this opinion to analyze the cases cited by each side, or to undertake to differentiate, on the facts, the various cited cases from the case at bar. After a thorough review of all of'the cases, and our own research, we hold that, from all of the evidence and circumstances developed in this case, it was for the trier of the facts to draw the inferences and reach the conclusion as to whether the death of Mr. Williams arose out of and in the course of his employment; and we cannot say that such conclusion is without evidence to support it. We like the statement by Professor Larson in his splendid treatise on “The Law of Workmen’s Compensation,” Vol. 1, § 27.31(a):

“When an employee, by undertaking educational or training programs, enhances his own proficiency in his work, he does in a sense benefit his employer. On the other hand, self-improvement is primarily the employee’s own concern. Obviously the ambitious clerk who is burning the midnight oil studying to become an accountant cannot expect workmen’s compensation if his lamp blows up.”

In the case at bar, Williams was a full-time paid employee of the Little Rock Police Department; and learning to fly an airplane might be of some advantage to the Little Rock Police Department; but it is not claimed that such outside activities of Williams could make the Little Rock Police Department liable under any theory of workmen’s compensation law. Likewise, if Williams obtained a license to fly a multi-engine plane, it might have benefitted Central, if Williams had remained with Central; but it seems to us that the connection between this particular flight and the benefit to Central is a question, the nearness or the remoteness of which rested with the trier of the facts, who found that the death of Williams did not arise out of and in the course of his employment.

Affirmed.

JOHNSON, J., dissents.

      . Attention is called to the general discussion in 58 Am.Jur. 716 et seq. “Workmen’s Compensation” § 209 et seq.; to the annotation in 123 AXi.R. 1176, “Injury to employee while engaged in an effort beyond the scope of his duties to increase his value to employer as one arising out of and in the course of his employment”; and to comment note in 161 A.L.R. 1461, entitled: “Accidental injury to employee while doing private work for his own benefit, following a continued practice in that regard, in employer’s plant.”


author: GEORGE ROSE SMITH, Justice.

text:
    C. Max RUSSELL, Appellant, v. CITY OF ROGERS, Appellee.
    No. 5-2971.
    Supreme Court of Arkansas.
    May 27, 1963.

      Jeff Duty, Rogers, for appellant.
    Scott & Davidson, by Bob Scott, Rogers, for appellee.
   GEORGE ROSE SMITH, Justice.

This is an action by the City of Rogers to recover judgment for $8,674.00 under an oral contract by which the appellant Russell agreed to pay the city at the rate of $2.00 a foot for 4,337 feet of sewer line to be laid by the city in an undeveloped subdivision owned by Russell. Russell admits that the line was laid by the city. His defense is that he was induced by misrepresentation to enter into the contract. The circuit judge, considering the matter upon the pleadings and upon Russell’s testimony in a deposition offered by the city, sustained the city’s motion for a summary judgment in the full amount sued for.

Our recent summary judgment statute, Act 123 of 1961, is a re-enactment of Rule 56 of the Federal Rules of Civil Procedure. Ark.Stat.Ann. § 29-211 (Repl. 1962). It provides that a summary judgment shall be rendered if the pleadings and proof on file show “that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” It has been pointed out, under the Federal Rule, that the theory underlying a motion for summary judgment is the same as that underlying a motion for a directed verdict. Moore’s Federal Practice (2d Ed.), § 56.02(10). Hence any testimony that' is submitted with the motion must be viewed in the light most favorable to the party resisting the motion, with all doubts and inferences being resolved against the moving party.

When Russell’s deposition is so considered we cannot say that the city was entitled to judgment as a matter of law. Russell testified that the city had planned to lay the sewer line in his subdivision whether he agreed to it or not. He was told by the city’s representatives that the cost would be $4.00 a foot and that the city would pay half the cost if he would agree to pay the other $2.00 a foot when the work was completed. If he did not accept that arrangement then he would be required to pay $4.00 a foot for that part of the line apportionable to each lot as the various lots were connected to the sewer mains. Russell said that he was told that all the property owners were being offered this same choice.

Russell testified that he accepted the first alternative in order to save $2.00 a foot. Before he paid for the completed work, however, he found that he was being discriminated against in that the city was offering to permit other property owners to hook onto the sewer line at any time in the future at a charge of only $2.00 a foot. After discovering this discrimination Russell refused to make the lump-sum payment that he had agreed to make when the work was completed.

The city argues that even if the misrepresentations were made — and at this stage of the case we must assume they were— they were not material and related only to future matters rather than to existing facts.

Neither point is well taken. A misrepresentation is considered to be material if it would be likely to influence a reasonable person in deciding whether to enter into the proposed contract. Rest., Contracts, § 470; Williston on Contracts (Rev.Ed.), § 1490. Russell would undoubtedly have been influenced by the statement that all the property owners were being offered the same choice. If he had known the true facts there was no reason whatever for him to agree to make a cash payment of $8,674.00 as soon as the line was laid, for he could have obtained exactly the same benefits by paying, during a period of years, small installments that could not total more than the amount of the lump-sum charge and would in all probability have been less than that charge.

It is equally clear that the misrepresentation was not merely an expression of opinion about what might happen in the future. It amounted to a positive statement of the method by which the city intended to finance the entire project. Hence the representation pertained to an existing state of fact upon which Russell was entitled to rely in reaching his decision about the proposed contract.

The appellant closes his brief by asking that the judgment be reversed and that a judgment be entered in his favor. It is quite apparent, however, that there are a number of disputed issues of fact in the case. Consequently, just as in cases where a verdict has been erroneously directed in the court below, the cause will be remanded for a trial on the merits.

Reversed.