text:
    Miller v. Best.
    5-2829
    361 S. W. 2d 737
    Opinion delivered November 19, 1962.

      W. H. Botts and George E. Pike, for appellant.

      Chris Carpenter, for appellee.
   George Rose Smith, J.

This is essentially an action in ejectment. The 30-acre tract in question was apparently owned by Mertice Best Miller at her death intestate in 1935. If so, title then passed to her brother and sister, the appellees; but Mertice’s surviving husband, Tom Miller, remained in possession under his curtesy right. In 1952 Tom Miller executed a deed by which, after reserving a life estate in himself, he purportedly conveyed the fee title to his three brothers, the defendants below.

Tom Miller died in 1953, and his brothers took possession of the tract. The appellees, contending that they acquired a possessory right upon Tom’s death, brought this action in 1955 to recover the land and the 1954 and 1955 rents. The Miller brothers defended the suit not so much upon a claim of title in themselves as upon the ground that the plaintiffs were unable to prove their own title and therefore could not prevail in ejectment. Beloate v. Hathcoat, 208 Ark. 1100, 188 S. W. 2d 619. At the close of the proof the trial court directed a verdict for the plaintiffs on the issue of title and submitted the claim for rents to the jury, who found for the defendants upon that issue.

The appellants are right in their contention that the court erred in directing a verdict for the plaintiffs on the issue of title. The proof is demonstrably defective in that it does not supply a legally sufficient description of the 30 acres in controversy. In the absence of such a description it would be manifestly impossible for the trial court to frame a judgment directing that the plaintiffs be put in possession of the land.

In their pleadings and proof the plaintiffs sought to trace their chain of title back to their father, A. N. Best, as a common source of title. The deeds to Best, however, were patently invalid for want of an exact description of the property being conveyed. Here are the descriptions from three of the deeds:

1. “Thirty acres in the Northern part of Spanish Grant No. 2425 and West and adjoining the ten acre tract known as the Will Lemons tract.”
2. “Forty (40) acres in the Northern part of Spanish Grant No. 2425, adjoining the ten (10) acre tract known as the Will Lemons tract.”
3. “North Western part of Spanish Grant No. 2425 containing (20) acres twenty acres, more or less, same being all the land owned by us in said Grant No. 2425, having previously sold [by the other two deeds] balance owned by us to A. N. Best.”

It is settled that “part” descriptions such as these are void for indefiniteness. Ketchum v. Cook, 220 Ark. 320, 247 S. W. 2d 1002. Although a surveyor testified that he was able to locate the tracts from the descriptions that we have quoted, he must have relied upoi? physical evidence such as fences, for the language of the deeds supplies no clue that could lead to an identification of the property. The rule is that the conveyance itself must furnish that clue. Turrentine v. Thompson, 193 Ark. 253, 99 S. W. 2d 585.

This surveyor also' produced a plat that purportedly portrays a 70-acre tract (of which the land now in controversy is a part) that lies in the northwest corner of Spanish Grant No. 2425. The plat is incomplete, however, in that it shows a rectangular tract that does not lie square with the compass, but the extent of the deviation is not specified. It would thus be impossible to use this plat as a means of locating the land in controversy.

Both the amended complaint and the trial court’s judgment identify the parcel in dispute as the south 30 acres of a 70-acre tract that is described by metes and bounds. Tbe trouble is that the accuracy of this description is not established by the proof. Indeed, if the rectangular 70-acre tract lies at almost a 45-degree variation from the points of the compass, as the surveyor’s plat indicates, it may be doubted whether a reference to the south 30 acres of a tract so situated is a definite description.

The trial court, in directing a verdict for the plaintiffs, apparently took the view that Tom Miller’s possession was not adverse to the plaintiffs’ title and may even have inured to their benefit. Even so, the plaintiffs had the burden of proving their right to the possession of a specific tract of land, and in the absence of an exact identification of the property that burden was not met. The case must therefore be remanded for a new trial upon the issue of title — in part, at least, a question of fact.

There is a second issue. One of the defendants, Byron Miller, died on February 24, 1960, and the cause was not revived in the names of his administrator and his heirs until August 8, 1961. The appellants contend that after the death of a defendant in an action for the recovery of real property only, the cause must be revived against the heirs within a year. Ark. Stats. 1947, §§ 27-1013 and 27-1014. It is therefore insisted that in the case at bar the order of revivor came too late.

A sufficient answer to this argument is that the present action is not one for the recovery of real property only. The complaint asked judgment for the rents that had been collected by Byron Miller and his brothers. Byron’s heirs would not be personally liable upon this claim for rents, Cavender v. Smith, 8 Iowa 360; so it was properly a demand against Byron’s estate. Hence it became necessary to revive the cause in the name of Byron’s administrator as well as in the names of his heirs (who had inherited his claim to the land).

The statute provides that an order to revive against the personal representative and the heirs cannot be made until after six months from the qualification of the personal representative. Ark. Stats., § 27-1015. Since a period of a year is then allowed for the entry of the order, § 27-1016, it is apparent that the revivor in the case at bar, having been made within eighteen months after the death of Byron Miller, was timely. See Peay v. Pulaski County, 103 Ark. 601, 148 S. W. 491.

Reversed and remanded for a new trial.


source: Caselaw Access Project

author: Paul Ward, Associate Justice.

license: Public Domain

text:
    Shroeder v. Johnson.
    5-2812
    361 S. W. 2d 739
    Opinion delivered November 19, 1962.

      A. A. McCormick, for appellant.

      Sexton & Morgan and Charles R. Garner, for appellee.
   Paul Ward, Associate Justice.

This is the second appeal involving the same parties and the same intersection collision between two automobiles. For the decision on the first appeal see: George Shroeder v. Billy Wayne Johnson, Mary Imogene Johnson, T. J. Johnson, and Arlene Johnson, 234 Ark. 443, 352 S. W. 2d 570.

Since the first opinion contains a full statement relative to the physical features leading up to and surrounding the collision we deem it unnecessary to repeat many of them here. Appellant’s car while proceeding east on a secondary road collided with the car driven by Arlene Johnson while it was going north on Highway 45 which is a principal artery of traffic. There was a stop sign on the secondary road where it intersected the principal highway. The collision occurred near the middle of the intersection. With this brief statement we will now discuss the four grounds relied on by appellant for a reversal.

1. We are unable to agree with appellant’s contention that the trial court erred in refusing to direct a verdict in his favor at the close of the plaintiffs’ testimony. Mrs. Arlene Johnson, who was driving her car, testified that as she approached the intersection and slowed down she saw appellant’s car approaching from the west as it was some distance from the intersection; it was moving from behind the big church sign or stop sign; she naturally thought he would stop before pulling out on the highway; when she saw he was not going to stop she honked the horn and immediately applied the brakes, but was unable to avoid the accident. Mrs. Imogene Johnson, who was in the car with Arlene, stated she saw appellant approaching the intersection slowly — just barely moving ■— and he didn’t stop. There was other corroborating testimony, but what we have set out is sufficient to constitute substantial evidence of appellant’s negligence under the circumstances of this case. See our quotation from Ness v. Males, 201 Md. 235, 93 A 2d 541, set out in the first Shroeder opinion.

2. It is next insisted that the trial court erred “in refusing to permit Mr. Lile Johnson to testify”. During the trial appellant’s attorney announced he would like to call Lile Johnson to testify relative to an experiment he made the previous day by driving a car (similar to the one driven by Mrs. Arlene Johnson at the time of the collision) to determine the distance it took to stop at certain speeds —■ on Highway 45 approaching the intersection. After a conference in chambers the trial judge refused to admit the testimony. This ruling was not reversible error for many reasons. In the first place, it was a matter within the discretion of the court. See: Little Rock Gas & Fuel Co. v. Coppedge, 116 Ark. 334, 172 S. W. 885. In addition, the trial court pointed out several instances of different conditions and circumstances obtaining when Mrs. Johnson was driying and when the experiment was performed.

3. Appellant contends the judgments are excessive. The jury awarded $2,009.17 to Mrs. Arlene Johnson which is the only amount challenged. The challenge is based solely on the following incident. Mrs. Johnson, after being knocked unconscious with lacerations about the head, spent five days in the hospital. One day after she returned home she was feeding her baby when it caused the plastic nursing bottle to strike her (Mrs. Johnson’s) head and broke the stitches on a laceration. As a result Mrs. Johnson had to return to the hospital to have the stitches reset and stayed seven days. It is appellant’s contention that “the proximate cause of this last injury was plaintiff’s own negligence and that the verdict is excessive.” One answer to this contention is that there is nothing in the record to show the jury allowed anything for the “last injury.” We have carefully reviewed the other testimony (unchallenged here by appellant) relative to Mrs. Johnson’s injuries, and cannot say the jury’s judgment in the stated amount is not supported by substantial evidence.

4. Under the last allegation of error appellant states: “The jury’s verdict is contrary to the law and the evidence.” Appellant has argued no exceptions to any instructions given by the court. It would serve no useful purpose to reiterate the testimony relative to the negligence or lack of negligence on behalf of the parties involved, since we have already noted sufficient evidence to support the jury’s verdict.

Finding no error the judgment of the trial court is affirmed.


author: Jim Johnson, Associate Justice.

text:
    Woodard v. Holliday.
    5-2803
    361 S. W. 2d 744
    Opinion delivered November 19, 1962.

      Cockrill, Laser, McGeJiee & Sharp, for appellant.

      Lightle & Tedder, for appellee.
   Jim Johnson, Associate Justice.

This case arises out of an automobile collision. On April 13, 1959, appellant F. M. Woodard was riding as an occupant in a car owned and driven by B. A. Yount, driving north on U. S. Highway 64-67, when Yount struck head-on a vehicle owned by appellee Lois Holliday, driven by appellee Donald L. Holliday and in which Priscilla Holliday was a passenger. This occurred south of North Judsonia Junction in White County. Appellees filed suit in White County Circuit Court on July 31, 1959, against B. A. Yount and appellant, alleging the occurrence of the collision, that Donald and Priscilla Holliday sustained injuries in the collision and that the automobile of Lois Holliday was damaged. They further alleged that the collision was caused by Yount’s negligence and that Yount’s negligence was imputable to appellant. The complaint sought damages in favor of each of the appellees and against Yount and appellant, jointly and severally. The complaint was amended on December 3, 1959, to add West Bend Aluminum Company as a defendant, alleging that Yount and appellant were acting in furtherance of West Bend’s business when the collision occurred, that the negligence of Yount was imputable to West Bend, and renewing all other allegations. West Bend appeared specially and moved to quash service on the grounds that it was a nonresident corporation not doing business in Arkansas, which motion was overruled. The cause came on for trial on October 2, 1961, and before the jury was impanelled appellee advised the court that a separate settlement had been made with West Bend, and that a dismissal would be taken as to West Bend and a covenant not to sue executed. This dismissal order was filed October 13,1961. The case proceeded to trial. Appellant moved for a directed verdict at the appropriate times, contending that there was no substantial evidence upon which to base a finding that the negligence of Yount was imputable to appellant and the complaint not containing any other allegation of fault on appellant’s part should be dismissed as to him. At the conclusion of the proof the trial court ruled that the evidence was insufficient to justify submission to the jury of the question of whether there was a principal-agent relationship between appellant and Yount, but did submit to the jury the question of whether appellant and Yount were engaged in a joint enterprise at the time of the collision. The jury found for the appellees, and on interrogatories specifically found that appellant and Yount were engaged in a joint enterprise. Judgment was granted against Yount and appellant, jointly and severally. Prom the judgment comes this appeal and a cross-appeal.

I. Direct appeal.

Appellant urges for reversal that the trial court erred in refusing to direct a verdict for appellant because there was no substantial evidence to base a finding that the negligence of B. A. Yount was imputable to appellant.

This court has consistently held that in order for a joint enterprise to arise two fundamental and primary requisites must concurrently exist, to-wit: A community of interest in the object and purpose of the undertaking in which the automobile is being driven and an equal right to direct and govern the movements and conduct of each other in respect thereto. If either or both of these elements is absent, there is no joint enterprise. Stockton v. Baker, 213 Ark. 918, 213 S. W. 2d 896.

In the case of Wymer v. Dedman, 233 Ark. 854, 350 S. W. 2d 169, we quoted with approval the following excerpt from 4 Blashfield, Ch. 65, § 2373, pp. 500-501:

“The doctrine of joint adventure, in connection with the operation of motor vehicles, should be restricted to those cases where the common right to control its operation and the correlative common responsibility for negligence in its operation either are clearly apparent from the agreement of the parties or result as a logical and necessary conclusion from the facts as found.” [Emphasis ours.]

The record reveals that B. A. Yount, a defendant below and the driver of the car which struck appellees was called as a witness by appellees. In addition to admitting negligence in the operation of his vehicle, he testified at length as to his relationship with appellant.

At the time of the collision, Yount was employed as a salesman for the West Bend Aluminum Company. When the collision occurred, he had been working for more than a year with appellant, who was his area manager. He had been employed through appellant, who furnished him with his employment contract. He had been trained by appellant, regularly attended sales meetings at appellant’s home, delivered his orders to appellant, and received his commission checks through appellant. He and appellant traveled together two or three times a week, going from town to town looking for prospects, working together. Yonnt would go where appellant suggested, and visa versa. Appellant had an overriding commission on Yount’s sales. On the day of the accident, appellant suggested delivering a coffee maker to a customer of Yount’s in Bald Knob and indicated that he, appellant, had one or two people in Bald Knob that he could call on while on the trip. Part of Yount’s testimony is as follows:

“Q. Now then, did you know any of the customers Mr. Woodard was going to call on in Bald Knob?
“A. No sir.
‘ ‘ Q. Would you have known how to get to them?
“A. No sir.
‘ ‘ Q. In what way would you have found out how to get there?
“A. I would have asked him how to get to their house and when he told me that is the way I would have gone.
‘ ‘ Q. How would you get to customers Mr. Woodard wanted to get to ?
“A. If we were in my car, I would go the way he wanted me to, and if we was in his car I would suggest sometimes stopping here and let me see these people here.
“Q. In this instance did you know where you were going except that you were going to deliver the coffee maker?
“A. No sir.
“Q. Who would you have relied on to tell you where to go?
“A. F. M., after I got the coffee maker delivered.”

Prosser on Torts (2d Ed.), § 65, discussing the law of joint enterprise, states that:

“The prevailing view is that a joint enterprise requires something beyond the mere association of the parties for a common end, to show a mutual ‘ right of control’ over the operation of the vehicle — or in other words, an equal right in the passenger to be heard as to the manner in which it is driven. It is not the fact that he does or does not give directions which is important in itself, but rather the understanding between the parties that he has the right to have his wishes respected, to the same extent as the driver. In the absence of circumstances indicating such an understanding, it has been held that . . . fellow servants in the course of their employment, although they may have a common purpose in the ride, are not engaged in a joint enterprise.”

Many cases have denied the existence of a joint enterprise where nothing was shown except that two fellow employees had been riding together upon a common mission in the course of their employment. Gilmore v. Grass, 10th Cir., 68 F. 2d 150; Dameron v. Yellowstone Trail Garage, 54 Ida. 646, 34 P. 2d 417; Stoker v. Tri-City Ry. Co., 182 Iowa 1090, 165 N. W. 30; Slowik v. Union St. Ry. Co., 282 Mass. 249, 184 N. E. 469; Loomis v. Abelson, 101 Vt. 459, 144 Atl. 378.

In the case at hand the testimony does tend to establish the first requirement, a common purpose. But they do not show that Yount agreed that Woodard was entitled to an equal voice in the control of the car or that, if the two had been riding in Woodard’s automobile, Yount would have had such an equal voice in its control. (The latter situation is important, because any control that Woodard might have exercised as a superior employee would not satisfy the requirement of equality of control.) Joint control and joint responsibility should go hand in hand; neither should exist without the other. If the passenger shares the responsibility for the physical control of the vehicle then it is proper for him to share the liability for the driver’s negligence. But if the responsibility of control is not shared then the liability ought not to be shared. In the case at bar the trial court’s error lies in permitting the jury to infer the existence of the second requirement from proof of the first, which in effect amounted to doing away with the second requirement altogether.

In reviewing the denial of a motion for a directed verdict, we must view the evidence, with reasonable inferences arising therefrom, in the light most favorable to the party against whom the motion was directed. Missouri Pacific Rd. Co. v. McKamey, 205 Ark. 907, 171 S. W. 2d 932. After applying this rule, we still must hold that the trial court erred in refusing to direct a verdict for appellant and in submitting the question of joint enterprise to the jury.

II. Cross-appeal.

The point relied upon by appellees on their cross-appeal is that the trial court erred in ordering the sums alleged to have been paid by West Bend Aluminum Company on a covenant not to sue should be credited upon the amount of the verdict of the jury.

The complaint originally filed by appellees sought a recovery against B. A. Yount and appellant, jointly and severally, for personal injuries and property damage sustained in the collision. Thereafter appellees amended their complaint to add West Bend as a party defendant, increased the prayer for damages and sought judgment against Yount, appellant and West Bend, jointly and severally, on the allegation that Yount’s negligence proximately caused their injuries and damages and was imputable to appellant on a theory, inter alia, of joint enterprise and to West Bend on a theory of master-servant. In due course West Bend filed an answer and prior to trial entered into a settlement with appellees, under the terms of which West Bend paid appellees $5,000, and appellees dismissed their complaint as to West Bend with prejudice and executed a covenant not to sue in favor of West Bend. Appellant moved the court for permission to introduce evidence of the payment from West Bend at the appropriate stage of trial, which motion was denied. 'When the verdicts were announced, appellant, in chambers, moved the court to credit the $5,000 payment on the amount set forth in the jury verdict. The trial court allowed the sum received as a credit to the damages. Appellees allege this was error and that the judgment should be reformed and entered for the full amount found by the jury.

Section 4 of the Uniform Contribution Among Tortfeasors Act, Ark. Stat. § 34-1004, reads as follows:

“Release of one tortfeasor — Effect on injured person’s claim. A release by the injured person of one joint tortfeasor, whether before or after judgment, does not discharge the other tortfeasors unless the release so provides; but reduces the claim against the other tortfeasors in the amount of the consideration paid for the release, or in any amount or proportion by which the release provides that the total claim shall be reduced, if greater than the consideration paid. ’ ’

This statute was approved by this court in Giem v. Williams, 215 Ark. 705, 222 S. W. 2d 800. In that case evidence as to the amount paid by one of the joint tortfeasors was introduced into evidence at the trial of the other tortfeasor. After the verdict, the court correctly refused to reduce the amount of the verdict by the amount paid by the other tortfeasor prior to trial, since the jury was advised of the settlement and the amount prior to reaching its verdict. As the court said in that opinion:

“At all events, as between appellants and appellee, appellants in the trial of the case before the jury obtained the full benefit of the above-quoted section by introducing into evidence, proof as to the amount of money that appellee received from Tune. Certainly, in such circumstances, appellants were not entitled to have the court ■— after the verdict — make the allowance again.” [Emphasis ours.]

In the instant case, the trial court refused appellant permission to introduce evidence of West Bend’s settlement payment to appellees, but after verdict the trial court, under the theory that the law of joint tortfeasors applied, correctly credited the judgment with the $5,000 payment, since the jury had no knowledge of the West Bend settlement and therefore assessed the total damages of appellees. Therefore, the principal question presented for onr consideration is whether the law of joint tortfeasor relating to releases and covenants not to sne is applicable to this case.

This appears to be a case of first impression in Arkansas.

The rule set forth in 42 ALR 2d 958 is as follows:

“A master and servant each are liable for injuries caused by the negligence of the servant in the course of his employment. The servant is liable because he committed the tort and the master is liable under the doctrine of respondeat superior. While they may not be joint tortfeasors in the sense that their joint acts caused an injury, a majority of the courts hold that their liability is joint and several and each is liable to the full extent of the injuries and they may be joined in an action in the same manner as joint tortfeasors. The law of joint tortfeasors relating to releases and covenants not to sue is applicable.” United States v. First Sec. Bank of Utah, 208 F. 2d 424, 42 ALR 2d 951.

We are constrained to approve and adopt this rule, for to hold otherwise will permit appellees to recover more than a fairminded jury determined their damages to be.

Affirmed on cross-appeal.

For the error in failing to direct a verdict for appellant and in submitting the question of joint enterprise to the jury, the judgment must be reversed, and, since the case appears to have been fully developed, the cause is hereby dismissed as to appellant. Shanks v. Clark, 175 Ark. 883, 300 S. W. 453.


author: Neill Bohlinger, Associate Justice.

text:
    Richard v. Smith.
    5-2834
    361 S. W. 2d 741
    Opinion delivered November 19, 1962.

      R. H. Peace, for appellant.

      William I. Prewett, for appellee.
   Neill Bohlinger, Associate Justice.

The appellant, Levi Richard, was the owner of forty (40) acres of land in Union County, Arkansas and on June 20,1960, he conveyed the forty (40) acres by warranty deed to the appellee, Walter J. Smith, for a consideration of $2,000.00 which was paid him.

The appellant had two sons, the elder, Roy J. Richard, lived in California and the younger, Elgie Lee Richard, resided at times with the appellant and at other times lived in Topeka, Kansas.

After the sale of the land by the appellant, he moved to the home of his sister who seems to have advised the older son in California of the sale and that son came to see his father and thereafter filed in the Union Chancery Court an action as next friend of Levi Richard in which he prayed the cancellation of the deed conveying the appellant’s land to the appellee on the ground that at the time of the signing and delivery of the deed the appellant was “infirm and wholly incapable of attending to business by virtue of Ms age and infirmities and being mentally incapable. ’ ’

The appellee duly answered and the issues being joined, proof was taken from which the chancellor found for the defendant, who is the appellee herein.

To sustain the issue for the appellant there was introduced the testimony of Dr. James H. Clark who stated that he had treated the appellant since January of 1953 and had treated him for a mental condition and had had the appellant in the hospital on June 9,1960; that he had noted a steady deterioration in the mental and physical health of the appellant since he began treating him and that on June 20, 1960, he regarded the appellant as senile and it was the doctor’s opinion that the appellant was incapable of knowing the value of anytMng or unable to transact business on the date of the deed. The doctor admitted that he was a urologist and not a neurologist but he did not regard the appellant as having a neurotic condition, but due to old age and long standing high blood pressure, he did not think the appellant’s brain got the proper supply of blood.

The appellant’s sister, Mollie Pearl Kilgore, testified that the appellant had lived with her from June of 1960 and that his mental condition was about the same as it had been for about a year prior to the sale of the land and his physical condition was not good; that he had trouble dressing himself and she had trouble getting him to talk; that one time he had gone to the woods and stayed out there all night; that sometimes his memory was poor and at other times not so poor; that the appellant had told her that he did not sell his place but had leased it for $1,600.00.

Appellant’s son, Roy J. Richard, testified that he came to El Dorado some few hours after his father had deeded the property to the appellee; that his father could not dress himself as he was ‘mindless’; that he would talk good for a while and then his mind would wander off; that he had been in that condition for about three years and was in that condition at the time he deeded the land to the appellee.

Witnesses for the defendant helow, appellee here, comprised people who had known the appellant for many years and, for the most part, resided in that community. They had had business dealings with him and he had at times worked for some of them and they had performed services for him and these witnesses testified that they had observed no change in appellant through the years except that he was growing older. It appears from the testimony that he was capable of buying his groceries and supplying his own needs and there is nothing in the testimony of his neighbors which would indicate that he was incompetent.

There was recently before us the case of Donaldson v. Johnson, 235 Ark. 348, 359 S. W. 2d 810, [September 10, 1962] which involved a woman of advanced age who suffered from diabetes and other disorders and would have intervals in which she was mentally unstable but at other times was perfectly competent. She deeded her home to her granddaughter and in that case we said:

‘ ‘ The test of mental competency to execute a deed is found in Petree v. Petree, 211 Ark. 654, 201 S. W. 2d 1009, where we quoted Pledger v. Birkhead, 156 Ark. 443, 246 S. W. 510, as the applicable rule in cases of this kind.
‘If the maker of a deed, will, or other instrument has sufficient mental capacity to retain in his memory, without prompting, the extent and condition of his property, and to comprehend how he is disposing of it, and to whom, and upon what consideration, then he possesses sufficient mental capacity to execute such instrument. Sufficient mental ability to exercise a reasonable judgment concerning these matters in protecting his oion interest in dealing with another is all the law requires. If a person has such mental capacity then, in the absence of fraud, duress, or undue influence, mental weakness, whether produced by old age or through physical infirmities, will not invalidate an instrument executed by him. McCulloch v. Campbell, 49 Ark. 367, 5 S. W. 590; Seawel v. Dirst, 70 Ark. 166, 66 S. W. 1058; Taylor v. McClintock, 87 Ark. 243, 112 S. W. 405; McEvoy v. Tucker, 115 Ark. 430, 171 S. W. 888.’ [Emphasis added]
The Pledger case was also quoted approvingly in Hunt v. Jones, 228 Ark. 544, 309 S. W. 2d 22.
Even the doctors who testified that Mrs. Donaldson was mentally incompetent agreed that she could have lucid intervals. Since it is shown that Mrs. Donaldson had periods in which she was normal, it becomes a question as to her mental condition at the time the deed was executed. It is not a question as to mental condition before or on the afternoon of the day on which she executed the deed, but in the morning at the time the deed was signed did she have the capacity that is demanded by the authority quoted above, ’ ’

The above case is especially applicable to the case at bar. It is not a question as to his mental condition before or after the signing, but at the time he alienated his land and as to that time there are two witnesses, the appellee and the municipal clerk and notary who prepared the deed. The appellee states that the son, Elgie Richard, and the appellant, Levi Richard, came to his house in regard to selling the land in controversy; that the appellant did the talking and said he wished to sell his property as his son was preparing to leave and he wanted to give him some money which he didn’t have and he wasn’t getting enough money to live on and pay his doctor bill. The other witness was Annie Lee who was a municipal clerk and notary public who testified that she made the deed at the request of the appellant who gave her a description of the land without prompting or reference to any memorandum; that she prepared a check for his payment and delivered it to him in her office and that she thought, according to the way most people act, that appellant was particularly competent and she commendably states that had she thought him incompetent, she would not have taken the acknowledgment.

The appellee further testified that he had endeavored to buy the land for less than the $2,000.00 re-. quested by appellant, but the appellant was adamant and the appellee finally paid the price asked.

We think this clause from the above cited decision is pertinent here:

“ ‘If the maker of a deed, will, or other instrument has sufficient mental capacity to retain in his memory, without prompting, the extent and condition of his property, and to comprehend how he is disposing of it, and to whom, and upon what consideration, then he possesses sufficient mental capacity to execute such instrument. * * * ’ ”

The appellant met all of these requirements.

The appellant’s son, Roy J. Richard, raised the question of inadequacy of price and stated that he valued the property at $4,000.00 plus the value of the buildings, although he does not give any facts on which he bases his idea of value. Nor does it appear that he owned, had bought or sold land in the vicinity of his father’s land. The only comparable sale that is presented is the purchase from another of a piece of land adjoining the land here involved for which the appellee paid only $35.00 an acre. Another witness, without giving comparable sales, valued the land at $75.00 an acre if the minerals were included. Part of the minerals had been disposed of and we are unable to gather from that testimony any firm basis of value. Another witness who lived about two (2) miles from the property testified that he had sought to buy land adjoining his own for $100.00 an acre but there is nothing in the record to indicate whether or not that land was comparable to the land here involved.

The chancellor therefore concluded that at the time the appellant sold his land he had the mental capacity to protect his interest and to know what he was selling and it seems to us from this record that some of the idiosyncrasies noted by the appellant’s witnesses are but concomitant of advancing years. The testimony of those who were with him at the time the transaction was consummated negates the basis of raising the red flag of fraud. The proof is conclusive that the appellant knew what he was selling and what he was to get. He gave part of his money to his younger son and put the rest in the bank to his own credit.

The chancellor refused' to void the transaction and in that he was correct and the decree is here and now affirmed.


author: Carleton Harris, Chief Justice.

text:
    New Empire Ins. Co. v. Taylor.
    5-2835
    362 S. W. 2d 4
    Opinion delivered November 26, 1962.

      Mann & McCulloch, for appellant.

      John N. Killough and Harold Sharpe, for appellee.
   Carleton Harris, Chief Justice.

Appellee, Holder D. Taylor, brought suit against appellant, on an accident insurance policy issued by appellant company, providing coverage for the loss of the sight of an eye through accidental means, when such loss resulted directly from an accident, and independent of other causes. The company denied liability, contending that appellee’s loss of vision in Ms eye was due to conditions other than an accident. The policy provided a benefit of $500.00 for the loss of one eye, but provided that the benefit should be decreased to $250.00, if claimant were over 65 years of age. Appellee, who was over 65, originally sued for $500.00, but amended his complaint during the trial, reducing his demand to $250.00. Following the completion of evidence, appellant refused to pay this latter amount. The jury returned a verdict in favor of Taylor in the sum of $250.00, and the court entered its judgment against appellant in the sum of $430.00, including the amount sued for, an attorney’s fee in the amount of $150.00, and 12% penalty, together with interest at the rate of 6% from February 12, 1962, until paid. From such judgment, appellant brings this appeal. For reversal, the company relies upon four points, which we proceed to discuss, though the first three are so interrelated that they will be discussed en masse.

Appellant first argues that the trial court should have directed a verdict for it; in other words, it contends there was no substantial evidence that appellee lost the sight of his eye by accidental means. The evidence reflected that Taylor had been afflicted for a long number of years with ptosis of the right upper eye lid, though appellee testified that the vision of that eye was as good as that of the other eye; that the eye had been “drooped a little for 50 years, but it never bothered me, it never hurt at all”. He stated that the “drooping” never covered over Vs of the eye until after he suffered an accident on July 12, 1960. According to the witness, on that date, he went to the L’Anguille River bottoms with Walter Nelson for the purpose of cutting timber. Taylor stated that a bug flew into his eye and ‘ ‘ it hurt so bad I had to sit down on a log for an hour or so trying to get it out”. He testified that he finally managed, by constant rubbing and the use of a handkerchief, to take from his eye a small, hard shell, black bug. Taylor stated that he worked the balance of the day and endeavored to work the next day, bnt, dne to pain from the eye, left the woods, and went to see Dr. Price. The fellow worker, Nelson, corroborated the occurrence, testifying that the bug did fly into appellee’s eye, ‘ ‘ and we stopped and worked a while there and finally got a little black bug out of his eye ’ ’. The physician prescribed medicine to be placed in the eye, but, according to Taylor, the swelling and pain grew worse, and in 4 or 5 weeks he realized that “the sight was gone”. Taylor testified that he wrote the company, advising of the accident, and the loss of sight of his eye; a statement by Nelson, confirming the accident, was also enclosed. Dr. Price filled out the medical blank, showing that he had treated Taylor on three occasions, the treatment consisting of hot packs, antibiotics and sedation. Dr. Price did not state that appellee had lost the sight of his eye. Taylor subsequently received a reply, wherein the company denied liability. From appellee’s testimony: “Well, I seen Dr. Myers in Memphis, and the best I recall, the company requested me to go to him to see if my eye was out; I did, and I went over there and he charged me $25.00 for the examination and he said it was completely out, my vision was gone.” Dr. Myers (Roland H.), likewise, did not state in his report that the accident was responsible for the loss of vision, and, in fact, his report indicated that he did not consider the bug’s flying into the eye to be the cause of the loss of vision. Appellant attempted to offer this report in evidence, but upon objection, the court refused to permit it, since the doctor was not present to testify, and his deposition had not been taken. This ruling was correct. See Shearman Concrete Pipe Company v. Wooldridge, 218 Ark. 16, 234 S. W. 2d 382. In that case, we said, “As to the injuries received by Earl Wooldridge and his wife and two daughters, there was offered the testimony of tlie parties, the testimony of Dr. Eberle, and also the written report of Dr. Krock, who was not called as a witness. It is in regard to this written report of Dr. Krock that an error occurred which necessitates a reversal and a remanding as to the appellant, Bridges.

‘ ‘ Prior to the trial, the plaintiffs ’ attorneys had an agreement with the attorneys for Shearman and Daniels that such written report, signed by Dr. Krock, might be admitted in evidence without requiring him to be present. However, no such agreement was made by the attorneys for Bridges; and of course the written report — upon Bridges’ objection — was inadmissible as to him, since it was ‘hearsay’.”

At the trial, Dr. Max Roy, a physician of Forrest City, who had examined Taylor a few days earlier, testified that Taylor had no vision in his eye, but that he could not say how, or when, appellee lost his sight. Counsel for Taylor then propounded the following hypothetical question:

“Assuming the plaintiff, Harold D. Taylor, had sight in his right eye on July 11, 1960 assuming further that on July 12, 1960, a hard shell bug flew into his eye while he was in the woods; assuming further that Mr. Taylor was unable to receive immediate medical attention and it took Mr. Taylor a half-hour to an hour, or more, to get the hard shell bug out of his eye, and assuming that during the process of getting the hard shell bug out of his eye, without any surgical instruments he was in severe pain; assuming infection resulted from the bug that got in his eye. Based upon your experience as a physician and your examination of Mr. Taylor, do you have an opinion, assuming all the facts I have related to be true, based on a reasonable medical certainty, whether Mr. Taylor’s loss of sight in the right eye could have been caused by the hard shell bug flying into his right eye?”

The question was objected to by appellant on the ground that the interrogatory did not include the fact that Taylor had previously had eye trouble. When the objection was overruled, Roy answered that he had an opinion; it was entirely possible that the loss of sight conld have been caused by the bug flying into Taylor’s right eye. There was no error in permitting the hypothetical question. In Missouri-Pacific v. Hampton, 195 Ark. 335, 112 S. W. 2d 428, we said:

“Appellants next contend that the court erred in permitting Dr. McGill to testify to the hypothetical question that in his opinion the death of deceased was caused by the injury. The appellants’ attorney objected to the question and the court asked him on what ground. He stated: ‘ On the ground that he hasn’t given the statement that the man never claimed to be injured or given any history of the injury to the doctors who treated him or made any complaint of that kind at all. ’ * * *, if appellants ’ counsel thought there were any facts omitted from the question which were essential to forming a conclusion, his remedy is to put those additional facts before the witness on cross-examination. ’ ’

See, also, Shaver v. Parsons Feed & Farm Supply, Inc., 230 Ark. 357, 322 S. W. 2d 690.

Summarizing, appellant asserts that appellee never did establish that the loss of vision was occasioned by the accident. It points out that the ‘ ‘ claim for benefits ’ ’ did not contain a statement to this effect by either physician who had examined Taylor; further, that Dr. Boy’s testimony was only to the effect that the accident could have caused appellee’s trouble. The foregoing evidence, says appellant, is not substantial. The company vigorously contends throughout its brief that appellee did not furnish proof of his claim, as contemplated by the contract, since he did not transmit to the company satisfactory medical proof that the accident caused the loss of sight. It may well be that the proof was not satisfactory to appellant, but Taylor complied with provisions of the contract by sending in his claim, together with the statement of Dr. Price. For that matter, there is no requirement in the policy that he must furnish medical proof, and certainly he was not required to continue sending statements from a doctor until appellant was satisfied. Such a procedure could have continued indefinitely. The filing of the claim for benefits put appellant on notice that appellee was making a claim under his policy, and the company was entitled to make whatever investigation it desired or petition the court for an order for medical examination after the suit was filed. § 28-357,1962 Replacement, Ark. Stats. See also Reed v. Marley, 230 Ark. 135, 321 S. W. 2d 193. If the law required that a claimant satisfy a company as to the validity of his claim before instituting suit, no lawsuits, of course, would ever be filed — and likely, many claims would remain unpaid.

The company strongly argues that the report of Dr. Myers should have been admitted, and from its brief, appellant evidently feels that the report constituted strong evidence in its behalf. We have previously cited authority that this report was inadmissible, but we should like to also point out that there was nothing to prevent appellant from either taking the deposition of Dr. Myers or having him present in the court room to testify. In such event, not only would the report have been admissible, but the jury would have had the benefit of his expert opinion.

Relative to Dr. Roy’s testimony, we agreed that he did not definitely state that the accident caused the loss of vision, but under our decisions, this was not necessary. In American Life Insurance Company v. Moore, 216 Ark. 44, 223 S. W. 2d 1019, this court said,

“Appellant insists that Dr. Monroe’s testimony is speculative, since he admitted the possibility that death was due to some other cause. But medicine, like the law, is not an exact science. If mathematical certainty were required, a surgeon would act at his peril in advising his patient to undergo an operation. The law does not compel adherence to a standard so precise.”

After all, we do not know how Dr. Roy, since he did not see the occurrence, could have definitely stated that a bug-flying into Taylor’s eye caused appellee’s loss of vision. Probably numerous other foreign objects lodging in the eye would have produced this same effect. We think his testimony, coupled with that of appellee and Nelson, made a jury question. Here again, appellant states that up until the time Dr. Roy testified, no physician had even stated that the injury could have caused the loss; that it had no knowledge that this witness would so testify, and it again reiterates that such proof (still maintaining that it was not sufficient) should have been submitted to the company prior to litigation. However, the record reflects, that after all the evidence had been heard, including that of Dr. Roy, appellee again offered to settle his claim for $250.00, but was refused. Quite some space in the brief is devoted to the argument that even if substantial evidence was offered to the effect that the sight of the eye was lost by the accident, no evidence was offered that the loss of sight was irrecoverable. The policy provides that loss with regard to eyes means ‘ ‘ entire and irrecoverable loss of sight”. We find no merit in this contention. In the first place, the record does contain some evidence relative to this point. As previously pointed out, Taylor testified that Myers said that his eye “was completely out, my vision was gone”. While, as also herein mentioned, this was hearsay evidence, it was not objected to, and, therefore, became competent evidence, and due to be considered by the jury. Counsel had some time earlier objected to appellee’s reference to a statement purportedly made by the doctor, but this was not a continuing objection, and did not include the quoted testimony. In McCormick on Evidence (1954), we find,

“A failure to make a sufficient objection to evidence which is incompetent waives as we have seen any ground of complaint of the admission of the evidence. But it has another effect, equally important. If the evidence is received without objection, it becomes part of the evidence in the case, and is usable as proof to the extent of whatever rational persuasive power it may have. The fact that it was inadmissible does not prevent its use as proof so far as it has probative value. Such incompetent evidence, unobjected to, may be relied on in argument, and alone or in part may support a verdict or finding. This principle is almost universally accepted, and it applies to any ground of incompetency under the exclusionary rules.”

Our own court has so held on numerous occasions. Mr. Braun, President of New Empire Insurance Company, while testifying, was asked hy the company’s counsel, “Have you received anything (referring to statements) that he suffered irrecoverable complete loss of sight other than what Dr. Roy said this morning?” Answer, “Yes, Sir, we have.” For that matter, on September 27, 1960, Mr. Braun, by letter directed to Mr. Taylor, in which the claim was rejected, stated, “Should you eventually lose the sight of your eye as a result of this accident, please let us know, and we shall be glad to reconsider your claim. ’ ’ It will be noted that the word “irrecoverable” is not used in the letter. Be that as it may, we hold there was sufficient evidence in the record for the jury to find that the loss of sight was irrecoverable and there is not one line of evidence to the contrary. In accordance with this discussion, we are of the view that evidence of a substantial nature was offered justifying the jury in reaching its verdict.

Appellant complains that the court erred in not giving certain instructions that it offered. Appellant’s Requested Instruction No. 1 provides as follows:

“You are instructed that the burden of proof in this case is on the plaintiff, Holder D. Taylor, to prove by a preponderance of the evidence the allegations in his complaint. And in this connection, plaintiff must prove that he suffered the complete and irrecoverable loss of sight in his eye due solely to bodily injury through accidental means. Said loss of sight must have resulted from said accidental means directly and independently of all other causes. If plaintiff’s loss of sight (if any) was due to any means other than purely accidental, then your verdict must be for the defendant, New Empire Insurance Company, and you will answer the interrogatories propounded by the Court accordingly. ’ ’

Appellant points out that the following provisions are not covered by any other instructions given by the court:

“ * * * plaintiff must prove that he suffered the complete and irrecoverable loss of sight in his eye due solely to bodily injury through accidental means. Said loss of sight must have resulted from said accidental means directly and independently of all other causes.”

Of course, appellant must offer a correct instruction, or else he cannot be heard to complain. The instruction offered is not correct, in that the italicized language did not properly state the law. In Fidelity Reserve Ins. Co. v. English, 226 Ark. 210, 288 S. W. 2d 951, this court said,

“It is contended that the appellee’s disability did not result solely from accidental means, within the language quoted above. The undisputed facts are that the appellee accidentally stepped on a roofing tack, gangrene developed despite medical attention, and the afflicted leg had to be amputated below the knee. The appellant’s argument is based on proof that the appellee, a woman past sixty, suffers from arteriosclerosis, without which the wound would not have become gangrenous. In construing language like that appearing in this policy we have uniformly held that the injury is covered if the accident precipitates the disability, even though the condition would not have occurred without the contributing effect of a preexisting disease. ’ ’

Several cases are cited in support of this holding.

Appellant’s Requested Instruction No. 2 defined the term, “accidental”. We think the court’s statement of the case and other instructions sufficiently covered this point. Appellant’s Requested Instruction No. 3 dealt with matters already covered in this opinion, wherein we have held contrary to appellant’s view.

Finding no reversible error, the judgment is affirmed.

Counsel for appellee has moved for an additional attorney’s fee because of services rendered on this appeal. We are of the opinion that the motion should be granted, and the fee is fixed at $100.00.

It is so ordered.

       According to Dr. Thomas G. Price, physician of Wynne, Arkansas, ptosis is a “drooping or falling down” and applies to different organs. In this instance, the right eye lid “drooped” over the eye. According to Dr. J. Max Roy, a practicing physician of Forrest City, ptosis “mav affect the vision in the eye if it is completely covered.”

       Dr. Price also made a later report on November 4, I960, in which he stated, “I am unable to state the amount of vision in the rt. eye before or after onset of his illness.”

       This last was, of course, hearsay, but was not objected to.

       His report stated, “Examination of right eye did not show any evidence of scarring of the lids, conjunctiva or cornea as result of getting a bug in his eye on July 12, as would be expected if getting the bug into the eye was the cause of loss of vision.” Neither this evidence, nor any other finding in the report of Dr. Myers, was viewed by the jury.

       While testifying', Mr. Marcus Braun, president of the company, admitted that Taylor had lost the sight of his eye, but he contended that no proof had been furnished that he lost it as a result of the accident.

       Emphasis supplied.

       The policy provided benefits for loss “resulting solely from bodily injuries effected directly and independently of all other causes through accidental means.”


author: Ed. F. McFaddin, Associate Justice.

text:
    Ward, Trustee v. City Drug Co., Inc.
    5-2800
    362 S. W. 2d 27
    Opinion delivered November 26, 1962.

      Ward & Lady and Penix & Penix, for appellant.

      Kirsch, Cathey & Brown, for appellee.
   Ed. F. McFaddin, Associate Justice.

The real issue to be decided on this appeal is whether certain of the appellees are entitled to acquire eighty shares of stock in the City Drug Company for $21,703.31. The Lower Court so found; and appellant challenges that finding. The appellees are City Drug Company, Inc., A. H. Maddox, Rex N. Moore, Solon McGaughey, Omer E. Bradsher, and Jimmy C. Dodd. The real appellant is Lee Ward, Trustee in Bankruptcy of Dr. E. D. McKelvey, Bankrupt.

Dr. McKelvey, along with the appellees, Jimmy C. Dodd and Drs. Maddox, Moore, and McGaughey, were the only stockholders in the corporation styled City Drug Company, Inc. in Paragould, Arkansas, which, as its name implies, was engaged in the retail drug business. Dr. Mc-Kelvey owned eighty of the 240 shares of stock in the corporation; and his stock was pledged to the First National Bank of Paragould to secure a note of $9,500.00. Prior to January 1, 1961, Dr. McKelvey was a partner with Drs. Maddox, Moore, McG-aughey, and Bradsher in the general practice of medicine; but Dr. McKelvey became financially involved and the partnership was dissolved by signed agreement on January 9, 1961. Thereafter, Dr. McKelvey continued to practice as an employee of the other named doctors at a salary of $1,000 a month, and they were also to pay him $396.94 per month for twenty months for his interest in the previous partnership.

In 1961 several creditors, who had obtained judgments against Dr. McKelvey for sizable amounts, had writs of garnishment served, not only on Drs. Maddox, Moore, McGaughey, and Bradsher, but also on the City Drug Company; and because of these garnishments the said garnishees (present appellees) on May 29, 1961, filed Case No. 8574 as a complaint in equity and bill of inter-pleader, naming the said judgment creditors and Dr. Mc-Kelvey as defendants, and praying court instructions as to the payment of the garnished funds. The First National Bank, because of the pledge to it by Dr. McKelvey of his eighty shares of stock in the City Drug Company, was brought into the case as third party defendant by one of the judgment creditors.

While the aforementioned suit No. 8574 was pending, the City Drug Company and the other appellees who were stockholders in the corporation, attempted to pay Dr. McKelvey’s $9,500.00 note to the First National Bank and obtain from the bank Dr. McKelvey’s stock certificate for eighty shares of stock in the Drug Company. This effort was because of Bylaw No. 1 of the Drug Company, and an agreement signed by Dr. McKelvey, as hereinafter to be discussed. On June 22, 1961, the Bank declared Dr. Mc-Kelvey ’s $9,500 note due and made demand for payment. Dr. McKelvey then, on June 30, 1961, filed action in the Circuit Court to enjoin the Bank from transferring the stock certificate to the present appellees; Dr. McKelvey obtained a temporary injunction; and this law action was later transferred to the Chancery Court and became Case No. 8604 therein.

With cases Nos. 8574 and 8604 in the status mentioned, Dr. McKelvey was adjudicated a voluntary bankrupt on July 31, 1961. The present appellees filed an amendment to their pleadings on September 6, 1961, suggesting such bankruptcy and still claiming their right to acquire the McKelvey stock because of Bylaw No. 1 and the agreement signed by Dr. McKelvey. Hon. Lee Ward was duly appointed Trustee in bankruptcy of Dr. McKelvey, and was authorized to intervene in the pending suits, which he did by pleading on October 12, 1961. The two cases Nos. 8574 and 8604 were consolidated and tried; and from that trial, there is this appeal. The position of the Trustee in bankruptcy was, and is, that the McKelvey stock in the Drug store was worth $48,000.00, which was far more than the $21,703.31 which the appellees were offering to pay. The Trustee insisted that the 80 shares of stock should be sold at public auction, the Bank paid in full, and the balance paid into the Bankruptcy Court to go to the general creditors of Dr. McKelvey. The position of the appellees was, and is, that they are entitled to acquire the 80 shares of stock by paying a total of $21,703.31, being the value, as determined by the bylaw of the Corporation and the agreement signed by Dr. McKelvey; that from such an amount the Bank should be paid in full and the balance should go to the Bankruptcy Court. The Trial Court upheld the contention of the appellees, and the Trustee in bankruptcy has appealed. The question is whether the Trial Court was correct in sustaining the contentions of the appellees.

I. The Maturity Of The Bank’s Note.

The appellant vigorously urges: (a) that the McKelvey note was not due on June 22,1961; (b) that the Bank could not accelerate the maturity as it attempted to do; and (c) that there was no legally sufficient tender to the Bank by the appellees on June 22,1961, or any other time. To support these contentions, the appellant quotes from the note, and the germane portion reads:

“Paragould, Ark. 4-1-61. On demand, after date, and if no demand is made, then on the 1st day of Oct., 1961, for value received, I, We or Either of us promise to pay to the order of First National Bank of Paragould, Ark. Ninety five Hundred and no/100 Dollars $9500, for value received, with interest at the rate of 6 per cent per annum from date until paid. This note is secured by pledge of the securities mentioned on the reverse hereof, with the right to call for additional securities should the same decline, and on failure to respond, this obligation shall be deemed to be due and payable on demand, with full power and authority to sell and assign and deliver without notice, the whole of said property or any part thereof, or any substitutes therefor, or any additions thereto, at public or private sale, at the option of the payee herein . . .”

The appellant says that the clause in the note, about demanding additional security, limits the opening words in the note (i.e., “on demand”) to a demand only when the security is deemed insufficient; and that the security was never deemed insufficient because the Drug Company admits the pledged stock to be worth in excess of $21,000 and the note was only for $9,500 and interest. On these and other matters the appellant urges that the demand on June 22,1961, and the Bank’s attempt to mature the note, were abortive and insufficient. These are all interesting questions which we find it unnecessary to decide. The question of the right of the Bank to mature the note and make demand on June 22, 1961 (or at any other date before October 1,1961) becomes of no importance and is not decided because, when the Trustee in bankruptcy intervened in the pending litigation on October 12, 1961, and claimed the right to have the McKelvey certificate of stock in the Drug Company sold, the note was then past dne at all events, and such intervention by the Trustee was the assertion of a claim by a “creditor armed with process”; and the determining issue became whether the Drug Company could exercise its prerogatives as claimed under the Bylaw No. 1 and/or the agreement signed by Dr. McKelvey, as hereinafter discussed. The McKelvey injunction case had temporarily prevented the appellees from acquiring the McKelvey stock from the Bank, so the question of the maturity of the note by demand prior to October 1, 1961 became moot, when the Trustee in bankruptcy pleaded on October 12,1961 and the case was tried on November 8, 1961. We therefore hold that the appellant’s contention about the maturity of the Bank’s note is beside the point on this appeal.

II. The Bylaw No. 1. As aforesaid, on October 12, 1961 the appellant, as Trustee in bankruptcy of Dr. Mc-Kelvey, intervened in the two Chancery suits. On that date the McKelvey note to the Bank was past due at all events, and the appellees were claiming the right to acquire the McKelvey stock for the book value of the stock. The Trustee in bankruptcy resisted such contention; and that is the issue — and the only issue — to be decided.

It was shown that in 1958 the Drug Company had filed with the Secretary of State an amendment to its charter, which provided, inter alia, that the corporation might “adopt by-laws placing limitations upon the sale, transfer, or pledge of the stock of the corporation to the extent not prohibited by law . . . and the individual stockholder shall have accepted such by-law with the fact of its acceptance to be endorsed upon his stock certificate then, thereafter the restrictions, limitations and options as herein referred to shall bind the individual shareholder of the corporation whose certificate is so endorsed, his assigns, mortgagees, pledgees, heirs, administrators, and personal representatives.” It was also shown that on April 18,1960 the City Drug Company duly adopted Bylaw No. 1, effective the same day, which stated, inter alia:

“The corporation, or its appointee, shall be entitled to acquire and purchase from a shareholder, or his estate, any and all shares of stock in the City Drug Company, in accordance with the terms of this By-Law . . . Should any shareholder pledge his stock for any personal debt of the shareholder without having redeemed said pledge prior to the maturity of the debt or any extension thereof. ’ ’

The Bylaw further provided that the price to be paid for the said stock should be “the book value of the stock as of the close of the last fiscal year of the corporation, plus interest at six per cent per annum from the close of said fiscal year to the date on which said purchase option shall be exercised, and the consideration shall be paid less any intervening dividends paid. ’ ’

The stock of Dr. McKelvey was at that time pledged to the First National Bank to secure a note, of which the $9,500 note herein represents a renewal. The secretary of the Drug Company delivered a typewritten copy of the Bylaw No. 1 to the Bank, with the request that the copy be attached to the McKelvey stock certificate, in compliance with § 64-315 Ark. Stats.,- but the Bank refused to receive the Bylaw and attach it to the stock certificate because Dr. McKelvey objected. The appellant urges most strenuously that this Bylaw No. 1 was never endorsed on the stock certificate, as required by § 64-315 Ark. Stats., and therefore the Bylaw lacks validity. Appellee urges, with equal tenacity, that the secretary of the corporation delivered a copy of the Bylaw to the Bank to be attached to the certificate; that Dr. McKelvey prevented such accomplishment; that both the Bank and Dr. McKelvey knew of the Bylaw; and that equity regards that as done which ought to have been done. There is respectable authority to sustain the position of each side ; but we find it unnecessary to rest our holding on the validity, vel non, of the Bylaw because, at all events, Dr. McKelvey and the Trustee in bankruptcy of his estate are bound in law and in equity by the agreement which Dr. McKelvey signed with the other stockholders, as now to be discussed.

III. The Agreement Signed By All The Stockholders. At the time Bylaw No. 1 was adopted by the corporation on April 18,1960, all of the stockholders of the corporation (and this included Dr. McKelvey) signed this instrument: “Approval of By-Law. The undersigned, being all of the shareholders in City Drug Company, together with the wives of the married shareholders, do approve the foregoing By-Law and agree that their stock, as now or hereafter owned by them in City Drug Company, shall be held subject to the terms thereof. This agreement shall bind the undersigned, their heirs, executors, administrators, and assigns. Dated this 18th day of April, 1960. ” Stockholders may make such agreements between themselves, regardless of the validity of a bylaw of the corporation. In 13 Am. Jur. 412, ‘ ‘ Corporations ’ ’ § 336, the text summarizes the holdings:

“The right to transfer shares of stock may be restricted by agreement of the stockholders so long as such restriction is not contrary to public policy as being in restraint of trade. Tbe tendency of tbe courts is to sustain a restriction imposed by a corporation upon the alien-ability of stock, if reasonable and the stock has been accepted following its adoption and with knowledge of its provisions, whether such restriction is valid as a bylaw or not, on the ground that it constitutes a valid agreement between the stockholders and the corporation, especially if it goes no further than to give an option on the stock for a limited period. These principles are particularly applicable as against stockholders who assent to, or participate in, the adoption of the bylaw. ’ ’

And in 13 Am. Jur. 413, “Corporations” § 338, in discussing the validity of a bylaw restraining a stockholder from selling his stock in the open market without giving the other stockholders a prior opportunity to purchase the same, the holdings are summarized:

“According to the weight of authority, such a bylaw is valid and binding upon the stockholder, either as a regulation within the powers of the corporation or as a contract obligation voluntarily undertaken by the stockholder. ’ ’

In Krauss v. Kuechler (Mass.), 15 N. E. 2d 207, 117 A.L.R. 1355, there was involved a corporation of four stockholders; and in 1933 the corporation had attempted to adopt a bylaw which gave the surviving stockholders the right to acquire the certificates of any stockholder that might die. All four stockholders signed the instrument agreeing to such bylaw. In 1935 one stockholder died and when the survivors sought to acquire his stock they were met with the claim that the bylaw had not been filed in the office of the Secretary of State, as required by law. The Supreme Judicial Court of Massachusetts upheld the right of the surviving stockholders to acquire the stock of the deceased stockholder, basing the holding on the agreement signed by all the stockholders and entirely disregarding the validity, vel non, of the bylaw. Justice Qua, speaking for the Court, said:

“Even if the purported new by-law of March 3,1933, never took effect as a valid by-law, either because it amounted to an amendment to the agreement of association and was never ‘filed in the office of the state secretary’ as required by Gr. L. (Ter. Ed.) c. 156 § 43, or for other causes, we see no reason why all the stockholders of a corporation cannot bind themselves to such a regulation by mutual agreement and estop themselves and their representatives thereafter to deny its validity. Brown v. Little, Brown & Co., Inc., 269 Mass. 102, 106 et seq., 168 N. E. 521, 66 A.L.R. 1284. See Longyear v. Hardman, 219 Mass. 405, 106 N. E. 1012, Ann. Cas. 1916D, 1200; Cunningham v. Commissioner of Banks, 249 Mass. 401, 420, 144 N. E. 447; Mitchell v. Mitchell, Woodbury Co., 263 Mass. 160, 164, 160 N. E. 539. ‘It is settled that one may agree to sell his property at a price to be determined by another, and that he will be bound by the price so fixed, even though the party establishing it was interested; provided the interest was known, and no objection was made by the parties, and no fraud or bad faith is shown. ’ New England Trust Co. v. Abbott, 162 Mass. 148, 153, 38 N. E. 432, 434, 27 L.R.A. 271; Doherty v. Phoenix Assur. Co., 224 Mass. 310, 315, 112 N.E. 940.”

In the case at bar, Dr. McKelvey and all the other stockholders entered into a mutual agreement on April 18, 1960 — more than one year before McKelvey’s bankruptcy —whereby each stockholder gave the corporation and the other stockholders the right to acquire any pledged stock at a determinable value, if the pledge should not be redeemed at maturity. There was no fraud or unfairness of any kind in the agreement. Some of the other stockholders had their stock pledged at the time the agreement was signed. The agreement was fair: it was an option to purchase at an ascertainable price — upon the happening of a contingency. The evidence shows that the amount tendered to the Bank in this case for the McKelvey stock was carefully ascertained and determined by an accountant in strict compliance with the method agreed upon by Dr. McKelvey and all the stockholders on April 18,1960. The appellant, as Trustee in bankruptcy of Dr. McKelvey, elected to intervene in the pending litigation and is bound by the agreement relied on by appellees.

Affirmed.

       Dr. E. D. McKelvey appears by his attorney to support the position of the appellant. The First National Bank of Paragould appears by its attorneys to protect the undisputed claim of the Bank; but we style Lee Ward, Trustee in Bankruptcy, as the appellant.

       Dr. Maddox owned eighty shares; Jimmy Dodd owned forty shares and managed the drug company; Dr. Moore owned twenty shares; and Dr. McGaughey owned twenty shares.

       The two Missouri cases of Brown v. McGuire (Mo. App.), 101 S. W. 2d 41, and (Mo. Sup. Ct.) 121 S. W. 2d 754, involved a note which stated, “On demand, and if no demand be made then on the 1st day of Feb. 1933, . . .” We are not here concerned with negotiability of such a “demand note,” in the light of our holding in Murrell v. Exchange Bank, 168 Ark. 645, 271 S. W. 21.

       See § 47 of the Bankruptcy Act (11 U.S.C.A. § 75), and Imperial Assur. Co. v. Livingston (8th Cir.), 49 F. 2d 745, 74 A.L.R. 1336; and see also 6 Am. Jur. p. 914, “Bankruptcy” § 637.

       This amendment to the Articles of Incorporation was duly filed with the Secretary of State on July 7,1958 and was duly recorded with the County Clerk of Greene County on July 8, 1958.

       This Bylaw No. 1 is quite lengthy, occupying five typewritten pages in the transcript. The topic headings in the Bylaw are:
      “A. Conditions upon which corporation or appointee shall be entitled to acquire stockholder’s stock.
      B. Effective date and terms of purchase.
      C. Cessation of option to purchase.
      D. Effective date of Bylaw.
      E. Endorsements upon stock certificates.”
      The portions of the Bylaw pertinent to this case are stated in this opinion.

       The 80 shares of Dr. McKelvey’s stock were evidenced by several stock certificates, but we have all the time referred to these certificates collectively as “stock certificate.”

       In 29 A.L.R. 2d 901 there is an annotation entitled, “Construction and effect of § 15 of Uniform Stock Transfer Act prohibiting restriction on transfer of shares unless such restriction is stated on the certificate”; and cases from various jurisdictions are there cited. There is another annotation in 61 A.L.R. 2d 1318 entitled, “Validity of restrictions on alienation or transfer of corporate stock.” See also 13 Am. Jur. 413, “Corporations” § 338; and 18 C.J.S. 923, “Corporations” § 391 (c). Among other cases, we mention Palmer v. Chamberlin (5th Cir.), 191 F. 2d 532; Hopwood v. Topsham (Vt.), 132 A. 2d 170; Baumohl v. Goldstein (N. J.), 124 A. 118; Doss v. Yingling (Ind.), 172 N. E. 801; and Tomoser v. Kamphausen (N. Y.), 121 N. E. 2d 622.

       In addition to the cases listed in the foregoing quotation, there are many cases sustaining the agreement signed by the stockholders, regardless of the validity of the bylaw. Some such cases so holding are: Doss v. Yingling (Ind.), 172 N. E. 801; Henry Simons v. Simons (Minn.), 44 N. W. 2d 726; Model Clothing v. Dickinson (Minn.), 178 N. W. 957; Federal Services Finance v. Bishop Natl. Bank (9th Cir.), 190 F. 2d 442; First National Bank of Canton v. Shanks (Ohio), 73 N. E. 2d 93; and the score of other cases therein cited. See also 19 C.J.S. 922, “Corporations” § 391(b); and Fletcher-Cyclopedia of Private Corporations, Permanent Edition, § 5455 et seq.


author: George Rose Smith, J.

text:
    Abercrombie v. Green.
    5-2807
    362 S. W. 2d 12
    Opinion delivered November 26, 1962.

      J. B. Milham, for appellant.

      Hall, Purcell & Boswell, for appellee.
   George Rose Smith, J.

This is an appeal from two orders entered by the Honorable John L. Hughes, Special Chancellor, in a child custody case. The only indication in the record of the special chancellor’s authority to act in the case is this stipulation: “It is stipulated and agreed by and between the parties, Joe E. Purcell, Attorney for the plaintiff, and J. B. Milham, Attorney for the defendant, that John L. Hughes serve as special Chancellor to hear the petition of the plaintiff on February 10, 1962.”

The constitution and statutes require that a special circuit judge or chancellor be elected by the attorneys in attendance on the court and that the proceedings be entered upon the record. Ark. Const., Art. 7, § 21; Ark. Stats. 1947, § 22-339. Where the parties attempt to select a special judge by agreement the proceedings are void, and the appeal must be dismissed. Dansby v. Beard, 39 Ark. 254; Gaither v. Wasson, 42 Ark. 126; Jenkins v. Incorporated Town of Caraway, 219 Ark. 236, 242 S. W. 2d 348.

Appeal dismissed.


text:
    Gaither, Ex’r v. Hobgood.
    5-2824
    362 S. W. 2d 18
    Opinion delivered November 26, 1962.

      J. E. Still, for appellant.

      McMillan & McMillan, for appellee.
   Paul Ward, Associate Justice.

John E. Gaither died testate on October 2,1961 at the age of 89, survived by his widow, Pearl F. Gaither. To understand the import of this litigation it is necessary first to summarize certain portions of Mr. Gaither’s will pertinent to the issue involved.

Among other provisions of the will there are the following :

(a) Deceased’s brother, Fred Madden Gaither, is named executor. Two others named did not qualify.

(b) Deceased’s niece, Nita Joyce Gaither Woods, her husband and her children were given a life estate in his 314% acre farm provided they paid his widow $600 annually. (The deceased had no children.)

(c) It created the “Gaither Family Trust”, with George G. Clark, James C. Hobgood and Jett Black as Trustees, and gave all deceased’s property both real and personal, to the Trust. The Trustees were not allowed to mortgage the property unless authorized by the congregation of the Arkadelphia Presbyterian Church. After the death of deceased’s widow the Trustees were to distribute annually the net income from the Trust equally to the Arkadelphia Presbyterian Church, to Arkansas College at Batesville, to the Austin Seminary at Austin, Texas, and to the Vera Lloyd Home at Monticello.

After the will was admitted to probate on November 22, 1961, the Executor filed a petition (on November 22, 1961) asking for authority to sell a certain interest in the real estate to pay claims against the estate in the amount of $3,917.28, stating there was only $108.81 in cash available to pay same. Attached to the petition was a ‘ ‘ Description of Property to be Sold”, which reads:

“The reversionary interest of the John E. Gaither farm, which includes Tax Parcels No. 4578, No. 4579, No. 7673, No. 7688, No. 7667, and No. 7670, all in Clark County, Arkansas, being 314% acres, more or less.
The city property known as the W.O.W. Lodge Building, Tax Parcel No. 12401, more particularly described as: 25 feet of the North end of Lot 7, and 25 feet of the North end of Lot 18, all in Block 47, Browning’s Survey of the City of Arkadelphia, Arkansas.”

It was further stated in the petition that the property would ‘ ‘ probably bring the sum of $5,000 ’ ’. A hearing on the above petition was set for January 9, 1962.

On January 8,1962 the Trustees filed an objection to the proposed sale, stating they do not believe it is necessary to sell the property, but instead they asked to be permitted to negotiate a loan for a sufficient amount to pay estate debts. In the alternative they asked that, if a sale is ordered, they be allowed to designate the property to be sold.

The issue was presented to the court upon the above pleadings without the introduction of any testimony. The court denied the Executor’s petition to sell, stating: (a) The Trustees have offered to raise the necessary money to pay the estate debts, and if this is done there will be no reason to sell the property; (b) The Trustees are given the six months period allowed for the filing of claims in which to raise the money and pay the debts of the estate. From this order comes this appeal.

For the reasons hereafter mentioned we affirm the trial court’s order,, conceding, for the purpose of this opinion only, that it is an appealable order.

(a) It was the duty of the Executor, the Trustees, and the court to preserve the Trust intact if reasonably possible. Therefore, the court properly gave the Trustees an opportunity to do this by raising the necessary money to pay debts. Appellant objects on the ground that the will prevents the Trustee from mortgaging the real estate without the approval of the Arkadelphia Presbyterian Church which approval they do not have. The answer to this objection is that the Trustees may not intend to place a mortgage on the real estate. They may be able to raise the necessary money in some other manner. It is possible that the Trustees might want to try to take advantage of the provisions of Ark. Stats. § 62-2705.

(b) If it does become necessary to sell real estate we think fhe trial court would have the right to allow the Trustees to select the property to be sold. The record discloses that only $2,408.41 in debts have been allowed and approximately $2,300 more claims filed. The inventory discloses there are five separate parcels of real estate valued at a total of $57,000. One piece is valued at $25,000 ; one at $5,000; one at $5,000; one at $10,000; and, one at $12,000. It seems reasonable to us that the necessary money might be raised by the sale of less Trust property than that proposed by appellant.

(c) We think it is incumbent on the trial court to avoid, if possible, the sale proposed by appellant. The value of the “reversionary interest” proposed for sale would depend on how long the life tenants lived. This unknown element would certainly not tend to produce offers favorable to the Trust.

Affirmed.


author: Sam Robinson, Associate Justice.

text:
    Utley v. Heckinger.
    5-2809
    362 S. W. 2d 13
    Opinion delivered November 26, 1962.

      J. H. Spears, Jake Brick, J. W. Kirkpatrick, Memphis, Tenn., for appellant.

      Hale & Fogleman, for appellee.
   Sam Robinson, Associate Justice.

This action grows out of a traffic mishap which occurred about 2:30 a.m., July 10, 1959, on Highway 55 north of James Mill Overpass in Crittenden County. Three vehicles were involved; a truck equipped as a wrecker, a heavily loaded Diamond T truck, and a 1954 Pontiac. The wrecker was owned by appellant, E. L. Heckinger, and operated by his employee, appellee, Yernon Odell Griggs. The truck was owned by appellant, M. T. Utley, and was being driven by his employee, Jimmy Marshall. The Pontiac was owned and being driven by appellee, Mary White. Burdie Mae Cross, J. D. Cross, and Betty Jean Cross, minors and relatives of Mary White, were also occupants of the Pontiac.

Griggs had driven the wrecker belonging to Heckinger to the above mentioned point on Highway 55 to pull a truck out of a ditch. After performing that task, the wrecker was stopped partly on the paved portion of the highway so that the equipment used in pulling the truck onto the pavement could be loaded onto the wrecker. The truck that had been in the ditch proceeded on its way and was not involved in the collision that followed.

While Griggs, the driver of the wrecker, was loading the chains, pulleys, etc., Mary White, driving her Pontiac with the Cross children as passengers or guests, approached from the north. There was a heavy fog, and a short distance behind the White car, travelling in the same direction, was the Utley truck.

There is evidence to sustain a finding that the Utley truck struck the rear end of the Mary White Pontiac and knocked it into the Heckinger wrecker. All three vehicles were damaged. Mary White received serious injuries, and the Cross children were injured to some extent.

This action was commenced by Heckinger and Griggs filing suit against Utley. Heckinger seeking compensation for damages to his wrecker, and Griggs seeking compensation for alleged personal injuries. Utley filed an answer and cross-complaint denying liability and alleging negligence on the part of Heckinger and Griggs. Also, Utley made Mary White a third-party defendant and alleged that the accident was due to the negligence of Heckinger, Griggs, and Mary White, and asked that he he awarded judgment against all of them for damages to his truck and cargo.

Mary White answered Utley’s complaint and filed a cross-complaint and also made Heckinger and Griggs third-party defendants. The Court gave the parties 90 days additional time in which to plead. Heckinger filed his answer to Utley’s cross-complaint one or two days after the allotted time had expired. Later, Utley filed a motion to dismiss the Heckinger answer to the cross-complaint because it was not filed in statutory time. The answer to the cross-complaint was filed on August 16, 1960. The motion to dismiss was not filed by Utley until the 27th day of November, 1961, at which time depositions had been taken and the parties were in court ready for trial. Utley waived the right to have the answer to the cross-complaint dismissed by not mailing a motion to that effect in apt time. Burton v. Sanders, 230 Ark. 67, 321 S. W. 2d 209.

Lovie Allen, for herself and as mother and next friend of the Cross minors, filed suits against Utley, Heckinger and Griggs, alleging damages she had sustained by reason of medical expenses for the children and damages suffered by the children by reason of alleged personal injuries. The cases were consolidated for trial.

Griggs filed no answer to Utley’s cross-complaint. Utley filed a motion for a default judgment. Ark. Stats. 27-1135 provides: “A defendant to any complaint or cross-complaint must appear or plead either generally or specially the first day after expiration of the period of time set forth below, as the case may be: First: Where the summons has been served twenty (20) days in any county in the state.” Ark. Stats. 29-401 provides: “Judgment by default shall be rendered by the Court in any case where an appearance or pleading, either general or special, has not been filed within the time allowed by this Act; provided, that the Court may for good cause allow further time for filing an appearance or pleading, if application for granting further time is made before expiration of the period within which the appearance or pleading should have been filed; and that nothing in this Act shall impair the discretion of the Court to set aside any default judgment upon showing of excusable neglect, unavoidable casualty or other just cause.” No attempt was made to show excusable neglect, unavoidable casualty or other just cause for Griggs’ failure to answer Utley’s cross-complaint. Therefore, under the provisions of Ark. Stats. 29-401, Utley was entitled to a default judgment on his cross-complaint against Griggs, and since Utley’s judgment on the cross-complaint should have been rendered prior to the actual trial, Griggs could not recover on his complaint. “If more than one action between the same parties and with reference to the same subject-matter is pending, the first judgment rendered in either action bars the other action, regardless of priority in time of commencement.” Sims v. Miller, 151 Ark. 377, 236 S. W. 828, Adams and Rusher v. Henderson, 197 Ark. 907, 125 S. W. 2d 472. It follows that the judgment in favor of Griggs in the sum of $225.00 must be reversed and his complaint dismissed. It might be added that Griggs’ failure to answer Utley’s cross-complaint resulting in a default judgment, is in noway prejudicial to Heckinger or Utley.

We come now to the principal point in controversy between Heckinger, Utley, Mary White, and Lovie Allen in her own right, and as mother and next friend of the-Cross minors. In selecting the jury, the Court, over the objection of Utley, directed the Clerk to furnish the parties a list of 21 veniremen from which to select a jury of 12. The Court allowed Heckinger and Griggs to challenge three, allowed White and Allen to challenge three, and allowed Utley to challenge three. Ark. Stats. 39-229 provides: “Each party shall have three [3] peremptory challenges, which may be made orally — but if either party shall desire a panel, the court shall cause the names of twenty-four [24] competent jurors, written upon separate slips of paper, to he placed in a box to be kept for that purpose, from which the names of eighteen [18] shall he drawn and entered on a list in the order in which they were drawn, and numbered. Each party shall be furnished with a copy of said list, from which each may strike the names of three [3] jurors and return the list so struck to the judge, who shall strike from the original list the names so stricken from the copies, and the first twelve [12] names remaining on said original list shall constitute the jury.” Ark. Stats. 39-231 provides: “ ... Where there are several persons on the same side, the challenge of one [1] shall be the challenge of all under this subdivision. ’ ’

The statute does not provide for a total of more than 18 veniremen, drawn from a total of 24, from which to select a jury of 12. In Fidelity-Phenix Fire Ins. Co. v. Friedman, 117 Ark. 71, 174 S. W. 215, the Court said: “It is evident that if the contention now made by the defendants should be sustained by the court that one of the principal objects of the statute would be defeated. If the defendants were each entitled to three peremptory challenges then it follows as a matter of course that the plaintiffs would be entitled to three peremptory challenges against each of the defendants. The result would be an unnecessary consumption of time in the formation of the jury. New panels would have to be summoned because it is obvious that the regular panels would be exhausted before the jury could be obtained if the plaintiffs and defendants were allowed three peremptory challenges each, as contended for by counsel for the defendants. ’ ’ In Flowers v. Flowers, 74 Ark. 212, 85 S. W. 242, this Court affirmed a judgment in a will case where there were three parties antagonistic to each'other and each of the three was allowed three challenges, but that case was decided in 1905, and since that time has not been mentioned on the point involved here. On the other hand, this Court has held, in effect, that under our statutes, the parties must be arranged in two groups and each group given three challenges. Waters-Pierce Oil Co. v. Burrows, 77 Ark. 74, 96 S. W. 336, Ft. Smith Light & Traction Co. v. Bailey, 153 Ark. 574, 241 S. W. 42.

To affirm the case at bar we would have to overrule Hogan v. Hill, 229 Ark. 758, 318 S. W. 2d 580. There, we recognized that where there are several parties there might be difficulties in selecting a jury under our present statute, but we made it clear that if there was to be a change it must be by an act of the Legislature. In the Hogan case, Hill sued Hogan in tort. Hogan brought Moffatt and Melton into the case as third-party defendants. Melton and Moffatt contended that they were entitled to three challenges separate and apart from Hogan. We said: “Melton and Moffatt, the third party defendants, in seeking a reversal present an able argument on a very interesting question. They point out, and we must agree, that their interest was in conflict with the interest of the Hogan Co. On this basis they contended they were entitled to three peremptory challenges in the selection of the jury in addition to the three such challenges the court allowed the Hogan Co. We can readily understand the justice and fairness of this view, but we think it is one that addresses itself to the Legislature and not this court. Ark. Stats. § 39-229 which deals with peremptory challenges says ‘Each party shall have three (3) peremptory challenges.’ Section 39-231, in part, provides: ‘Where there are several persons on the same side, the challenge of one shall be the challenge of all under this subdivision.’ As was stated in the case of Crandall v. Puget Sound Traction, Light & Power Co., 77 Wash. 37, 137 P. 319, in dealing with this same question, ‘the right of peremptory challenge is wholly a creature of statute, and not of common law.’' Looking solely to our statutes, referred to above, the answer still is not clear. The first section refers to each party without defining party. Likewise, there is an element of uncertainty in the use of the words ‘ on the same side’ as used in the latter section. We have concluded, however, that the decisions of this court and other courts, have resolved this uncertainty against the contention of' Melton and Moffatt here.”

In the case at bar, the parties were found to have suffered damages in the following amounts:

Heckinger...........................................................................$ 2,500.00

Uriggs.................................................................................... 225.00

Utley ....................................................................................... 3,000.00

White (Prop. Damage).......................................... 950.00

White (Per. Injury)................................................ 47,500.00

Cross, J. D......................................................................... 750.00

Cross, Betty Jean......................................................... 200.00

Cross, Burdie Mae...................................................... 100.00

Allen ....................................................................................... 586.55

Damage was attributed to the negligence of Utley to the extent of 83%, and 17% to the negligence of Heckinger and Griggs. Judgments were rendered accordingly; such judgments must be reversed by reason of the error in allowing nine challenges.

Under the statutes, the Court must have some discretion in the grouping of the parties for the purpose of exercising challenges, and we believe that when all the pleadings in the case and the situation of the parties are considered, the fairest grouping in the circumstances would be to allow Utley alone three challenges, and allow Heckinger, Mary White, and Lovie Allen, in her own right and as mother of the Cross children, together, three challenges, as there appears to be an entente cordiale between those parties.

Fourteen points are argued on appeal. It is not necessary to mention most of them, as they are not likely to arise in another trial. But we do believe that we should mention that the evidence is not sufficient to prove the damages to Mary White’s automobile. There was no direct evidence on this point at all. One witness testified that he knew the value of automobiles, and that an ordinary 1954 Pontiac was worth $1,000.00 or $1,200.00 in 1959; and another witness testified that the Mary White Pontiac was in good condition prior to the wreck, but we do not think this evidence is substantial as to the value of this particular car.

Utley introduced moving pictures of Mary White walking with the aid of crutches and driving her automobile. These pictures were shown in this court and it appears from the record that the last few feet of the film show Mary White walking faster than she was actually moving. The trial court instructed the jury not to consider that part of the film. We believe it would be better not to show that part at all.

In his argument to the jury, counsel for Mary White told the jury “I have had experience in a case that had an injury just exactly like this, skull, cranial, facial injury of Mary White. We didn’t even put them to a trial and they paid them close to $50,000.00.” The argument was improper. Counsel is given considerable latitude in his argument to the jury, but he cannot argue facts that are not in evidence. Here, counsel was not giving his opinion on the weight of the evidence in the case on trial, but was telling the jury the facts about what happened in another case. Evidence of the amount of a settlement in another case would not have been admissible in the case at bar as a yardstick for damages, or any other purpose, and since it was not in evidence it could not be argued. Missouri Pacific Railroad Co. v. Emberton, 230 Ark. 865, 327 S. W. 2d 726.

Judgment in favor of Griggs is reversed, and his complaint against Utley is dismissed. The other judgments are reversed and the cause remanded for new trial.