author: John A. Fogleman, Jusice.

text:
    Abraham LOPEZ et al v. James B. WALDRUM Estate
    5-5373
    460 S. W. 2d 61
    Opinion delivered November 30, 1970

      James C. Cole and G. W. Lookadoo, for appellants.

      Tackett, Young, Patton ér Harrelson, for appellee.
   John A. Fogleman, Jusice.

This appeal comes from an order granting appellee’s motion to dismiss the complaint of appellant Abraham Lopez, individually, on his own behalf, as husband of Wilma Lopez on her behalf, and on behalf of Carmen Lopez, as her father and next friend. By the same order a complaint filed by Darlene Satterfield was dismissed upon the same motion. The two cases against appellee had been consolidated for trial. The motion to dismiss was based upon the statute of nonclaim. [Ark. Stat. Ann. § 62-2601. (Supp. 1969)]. The circuit court did not dismiss that portion of the Lopez complaint by which he sought recovery for damages to his own personal property.

On August 12, 1967, there was a collision between an automobile owned by Abraham Lopez and one driven by James B. Waldrum. The Lopez automobile was being driven by Wilma Lopez, and Carmen Lopez and Darlene Satterfield were passengers therein. Waldrum died as a result of injuries received in the collision. His widow was appointed administratrix of his estate. Her first notice to creditors was published on September 14, 1967.

At the time of the collision, appellant Abraham Lopez was in Vietnam in the military service of the United States. Although he returned and resumed his relationship with his family on April 4, 1968, it is alleged that he is still in the armed services. His complaint was filed on April 21, 1969. The separate complaint of appellant Satterfield was filed on May 6, 1969. A copy of the Lopez complaint was filed with the clerk of the probate court on April 21, 1969.

Appellants first contend that our statute of nonclaim only bars the right to subject the assets of an estate to the payment of a judgment, but not the right to prosecute an action against the estate to judgment. As a corollary, they argue that a statute of limitations, being procedural only, may bar a remedy, but not the right upon which it is based. They contend that insofar as the right of action is concerned, Ark. Stat. Ann. § 27-901 (Repl. 1962) provides the only statutory bar. We have held that the language of Ark. Stat. Ann. §§ 62-2601 and 2602 (Supp. 1969) requires that all claims, including those sounding in tort, must be asserted within six months after the first publication of notice to creditors. Wolfe v. Herndon, 234 Ark. 543, 353 S. W. 2d 540; Turner v. Meek, 225 Ark. 744, 284 S. W. 2d 848.

We are asked to overrule or disregard our previous holdings in this respect upon the basis of the concurring opinion of a single judge in Swan v. Estate of Monette, 400 F. 2d 274 (8th Cir. 1968). We do not find appellants’ argument in this regard sufficiently persuasive to change our evaluation of the legislative intent expressed in Wolfe. This concurrence actually verified the correctness of the very thorough opinion of Senior District Judge John E. Miller (265 F. Supp. 362). The concurring judge only observed a basic appeal to equitable justice in appellants’ arguments. It is clearly pointed out in that opinion that our approach in Wolfe and Turner, applying the statute of nonclaim as a statute of limitations superseding any other applicable statute, was not novel, since this rule had been Arkansas common law for more than a century. See Walker v. Byers, 14 Ark. 246.

Any appeal to natural equities here asserted by appellants or noted in the concurring opinion referred to addresses itself to the lawmaking body, not to the courts. The General Assembly has met in regular session 4 times since our decision in Wolfe, and 7 times since Turner. Even though several amendments to the Probate Code have been enacted during those intervening sessions, our judgment of the legislative intent with respect to these sections of the code has not been corrected. We must adhere to our previous holdings.

While the Satterfield appeal is thus disposed of, Lopez contends that he is entitled to maintain his action because of the Soldiers’ and Sailors’ Relief Act. See § 525, Title 50, App. USGA. The pertinent language provides that the period of military service shall not be included in computing any period limited by law for the bringing of any action in any court by one in military service. There is no doubt that the circuit court was correct in its application of this statute to that part of the complaint relating to damage to personal property belonging to Lopez. We also agree that the claims asserted on behalf of his wife and minor child are not actions to which the federal act applies.

The wife’s right of action was personal. See Texarkana & Ft. Smith Ry. Co. v. Adcock, 149 Ark. 110, 231 S. W. 866. No logical reason appears why she could not or did not bring timely suit in her own name. Whatever may have been her disability under Texas law, she was not barred as a married woman from bringing her action in Arkansas. Little Rock Gas & Fuel Co. v. Coppedge, 116 Ark. 334, 172 S. W. 885; Texarkana & Ft. Smith Ry. Co. v. Adcock, supra; Texas & Pacific Railway Co. v. Humble, 181 U. S. 57, 21 S. Ct. 526, 45 L. Ed. 747 (1901), aff’g 97 F. 837, 38 C. C. A. 502; Libaire v. Minneapolis i? St. L. R. Co., 113 Minn. 517, 130 N. W. 8 (1911).

Even if we should entertain the suggestion that the common law rule permitting a husband to sue upon his wife’s right of action was not abrogated by the Married Women’s Act [Ark. Stat. Ann. § 55-401, et seq. (1947)], we cannot conceive of such an action as one in which the statute of limitations is to be tolled under § 525, however liberally that act is construed. Where there were competent persons by whom an action was or could have been brought as easily as it could have been by the person in military service, it has been held that the section does not apply, particularly when the suit is brought in a representative capacity. McCoy v. Atlantic Coast Line, 229 N. C. 57, 47 S. E. 2d 532 (1948); Stutz v. Guardian Cab Corporation, 273 App. Div. 4, 74 N. Y. S. 2d 818 (1947); Smith v. Fitch, 25 Wash. 2d 619, 171 P. 2d 682 (1946). See also Thompson v. Anderson, 208 S. C. 208, 37 S. E. 2d 581 (1946); Irving Trust Co. v. Fifteen Park Row Corp., 182 Misc. 1044, 51 N. Y. S. 2d 724 (1944). It cannot be doubted that the wife is the real party in interest in an action on her behalf for damages for her personal injuries, as the recovery is her separate property and not that of her husband, at least after the passage of the Married Women’s Acts. Texas & Pacific Railway Co. v. Humble, supra; Libaire v. Minneapolis & St. L. R. Co., supra; Laskowski v. Peoples Ice Co., 203 Mich. 186, 168 N. W. 940, 2 A. L. R. 586 (1918); Berger v. Jacobs, 21 Mich. 215 (1870); Burrell Tp. v. Uncapher, 117 Pa. 353, 11 A. 619 (1887); Normile v. Wheeling Traction Co., 57 W. Va. 132, 49 S. E. 1030 (1905); Messervy v. Messervy, 82 S. C. 559, 64 S. E. 753 (1909); Coulter v. Hermitage Cotton Mills, 112 S. C. 93, 98 S. E. 846 (1919); Hamm v. Romine, 98 Ind. 77 (1884).

Even though a father may bring an action on behalf of his unemancipated minor child, the right of action is that of the child, not that of the father, at least for recovery of damages for pain and suffering, personal disfigurement, inability to attend school, future medical expenses reasonably certain to be required after his majority, and probable loss of earnings and earning capacity after majority. St. L. I. M. & S. R. Co. v. Waren, 65 Ark. 619, 48 S. W. 222; Wood & Henderson v. Claiborne, 82 Ark. 514, 102 S. W. 219, 11 L. R. A. (n. s.) 913; 118 A. S. R. 89; Dieter v. Byrd, 235 Ark. 435, 360 S. W. 2d 495; Irby v. Dowdy, 139 Ark. 299, 213 S. W. 739; Buckley v. Collins, 119 Ark. 231, 177 S. W. 920. There is no reason why the present action for these elements of damage could not have been brought by the minor’s mother, by any person as next friend or by a duly appointed guardian. See Ark. Stat. Ann. § 27-823 (Repl. 1962); Kibler v. Kibler, 180 Ark. 1152, 24 S. W. 2d 867. On the other hand, an unemancipated minor child’s earnings during minority are the property of the parents. St. L. I. M. & S. R. Co. v. Waren, supra; Jolly v. Smith, 188 Ark. 446, 65 S. W. 2d 908. A parent is also entitled to recover for the value of the minor’s services and loss of such a minor’s earning capacity during minority and for expenses incurred and to be incurred by the parent on account of an injury to the child. Arkansas Power & Light Co. v. Connelly, 185 Ark. 693, 49 S. W. 2d 387; Western Coal & Mining Co. v. Burns, 84 Ark. 74, 104 S. W. 535; Byrd v. Galbraith, 172 Ark. 219, 288 S. W. 717.

We have no hesitancy in holding that the statute of limitations was not tolled as to recovery of damages to which the wife and child were entitled, each in her own right. On the other hand, we are just as certain that it was the intention of the Soldiers’ and Sailors’ Civil Relief Act that the statute be tolled during the period of mili-itary service as to those elements of damage for which appellant Lopez, as husband and father, was entitled to recover in his own right.

His recovery on account of his wife’s injuries is limited, of course, to loss of services, society, companionship and marriage relationship, and medical expenses incurred and for which he is, or may become, liable, attributable to negligence on the part of James B. Wal-drum. Little Rock Gas & Fuel Co. v. Coppedge, 116 Ark. 334, 172 S. W. 885; Shipley v. Northwestern Mutual Ins. Co., 244 Ark. 1159, 428 S. W. 2d 268. Neither the wife nor any person other than Abraham Lopez could have sued for these elements of damage which are personal to him. Butler County Rd. Co. v. Lawrence, 158 Ark. 271, 250 S. W. 340; Little Rock Gas & Fuel Co. v. Coppedge, supra.

We do not agree with appellee, or the trial court, that the bar of the wife’s claim by the statute of non-claim prevented the tolling of the statute as to her husband’s damages. It is true that we have held that his cause of action is derivative and subject to the defense of comparative negligence. Nelson v. Busby, 246 Ark. 247, 437 S. W. 2d 799. It is also true that we have held that a judgment adverse to the wife is a bar to the husband’s action. Sizemore v. Neal, 236 Ark. 574, 367 S. W. 2d 417. Appellee relies upon Tollett v. Mashburn, 291 F. 2d 89, 183 F. Supp. 120, and dictum in Sisemore quoting from the opinion in the district court, in asserting that Lopez’s claim is barred. We agree with the result reached in Tollett, but the court was concerned there only with determining the statute of limitations applicable to the husband’s cause of action. The husband and wife in that case were joined as plaintiffs, and no question was presented as to the tolling of the statute of limitations as to one but not the other. The mere fact that the husband’s cause of action is derivative does not mean that the actions cannot be independently prosecuted. Little Rock Gas & Fuel Co. v. Coppedge, supra; Texas & P. Ry. Co. v. Humble, 181 U. S. 57, 21 S. Ct. 526, 45 L. Ed. 747 (1901), aff’g 97 F. 837, 38 C. C. A. 502.

The right of the parties to pursue separate actions was not in anywise affected by our decision in Sizemore. Had there not been separate actions there would never have been any occasion for the application of res judicata to the derivative liability to the husband.

The judgment is affirmed, except as to the right of Abraham Lopez to recover those damages which are personal to him. The cause is remanded for further proceedings consistent with this opinion.

       This question was left unanswered in Mt. Nebo Anthracite Coal Co. v. Martin, 86 Ark. 608, 111 S. W. 1002.

       This decision seems to have overruled Arkansas Power & Light Co. v. Marsh, 195 Ark. 1135, 115 S. W. 2d 825, without mentioning it.

       We are not unmindful of the decision in Hatridge v. Aetna Casualty & Surety Co., 415 F. 2d 809 (1969). There the Court of Appeals for the 8th Circuit found the claims of the husband and wife were so interdependent and intertwined that federal jurisdiction of the primary claim of an injured spouse prevented separation of the other spouse's claim for consortium (which would ordinarily be tried together, as they were in the action out of which the case removed to the federal court arose) so that the wife's suit for consortium was not subject to remand, even though her claim was only for $9,999.99.


source: Caselaw Access Project

author: Conley Byrd, Justice.

license: Public Domain

text:
    KENNETH BURROUGHS v. Don FORD, d/b/a Ironwood Stables et al
    5-5383
    460 S. W. 2d 776
    Opinion delivered November 30, 1970
    [Rehearing denied January 11, 1971.]

      William W. Green, for appellant.

      Wootton, Land & Matthews, for appellees.
   Conley Byrd, Justice.

The sole issue before the Workmen’s Compensation Commission and the Circuit Court on appeal was the extent of the permanent partial disability to appellant Kenneth Burroughs’s left foot. The Commission allowed a 50% permanent partial disability. The circuit court reversed the Commission and held that there was no evidence to sustain a permanent partial disability in excess of the 10% functional disability assigned by Dr. Thomas M. Durham. The matter is here upon the same issue.

At the hearing before the referee, appellee Don Ford doing business as Ironwood Stables and Liberty Mutual Insurance Company, his carrier, took the position that appellant had only sustained a 10% partial disability to his left foot. The appellant took the position that his wage earning ability had been imparied and that his disability exceeded the functional disability assigned by Dr. Durham.

Following his injury on February 9, 1968, appellant was seen by Dr. Jack Wright on February 12, 1968. Dr. Wright recognized a tendency toward eversion of the left foot. He last saw Mr. Burroughs on May 1, 1968, and stated that Mr. Burroughs still complained of some weakness of his left ankle. Since he was unable to objectively find any abnormality he certified that Burroughs was able to return to work as of April 29, 1968.

In March or April 1968, Mr. Burroughs worked two weeks for Turf Catering Company at the Hot Springs race track as a bartender. During July 1968 through December 1968, he worked at the University of Florida as a lab machinist. When that job played out he returned to Hot Springs. From February through April 1969, he again worked for Turf Catering Company at the Hot Springs race track. He worked for the same company at the Kingsland race track for 14 days terminating his employment there on April 17, 1969. The hearing was in May of 1969. Following Dr. Wright’s treatment, Mr. Burroughs was treated by Dr. Thomas M. Durham, an orthopedic surgeon in Hot Springs and while at the University of Florida he was treated by Dr. Edward B. Kissam. Upon his return to Hot Springs he was again seen by Dr. Durham.

Dr. Durham’s report of September 23, 1968, is as follows:

“The above-named patient was followed in our oh fice from May 31, through July 6, in regard to further treatment for the injury to his left ankle, sustained February 9, 1968. We were provided with Doctor Jack Wright’s reports and the patient confirmed details of the history. Mr. Burroughs told us he had been released by Doctor Wright approximately three weeks prior to our examination.
Our examination revealed a large heavily muscular man. Examination was negative except for the left ankle, which showed enlargement of approximately 3/4 inch as compared with the right ankle. Most of the tenderness elicited, was over the course of the anterior and posterior tibial tendon. There was no limitation of motion in the ankle and no bony deformity.
X-rays were negative for evidences of bony injury, and previous X-ray were reported to be of the same character. My recommendations at this time were: (1) Toe walking and inversion exercises to help strengthen the posterior tibial muscles (2) Hot soaks several times daily (3) Aspirin, grs. 15, four times a day.
Mr. Burroughs was again seen September 30, 1968, and it was felt at this time that he was a little more stable, particularly when going up on his toes. He was continued on the aspirin, hot soaks and exercises, and at his last visit on December 17, 1968, the patient felt that his foot and ankle were stronger. However, he continued to have some pain mostly at night and had a little swelling. He mentioned that he had lost forty pounds in the last few months.
Examination at this time revealed that he still pro-nated considerably with the left foot but he could correct this actively, and also this corrected when he went on tip toe. The patient had tried using some shoes without the heel wedge and arch support and these had seriously run over medially.
Mr. Burroughs was advised to continue his exercise and also the shoe corrections on his left shoe. For a prognosis I feel that he will have some permanent residual weakness in his left foot from the stretching injury to the posterior tibial tendon. It is still causing some pain after much activity and also it requires support with a built up shoe. It is possible that progressive exercise of the muscle will help compensate for this stretching of the tendon, but if the patient continues to have this difficulty, and particularly if it gets worse, I feel that he might benefit from distal transplantation of the posterior tibial tendon.
Mr. Burroughs is now moving back to Hot Springs, Arkansas, and he will contact Dr. Durham for further follow up there.”

Dr. Durham’s final report under date of April 7, 1969, is as follows:

“The patient returned to our office on January 29, and was seen that date and March 11, 1969.
The patient has lost approximately 50 pounds in weight and examination and comparison of the lower extremities is somewhat more significant now that he has lost this amount of weight.
There remains a definite increase in pronation of the left foot as compared with the right, as well as some tenderness under the medial end of the navicu-lar bone. There is slight fullness and definite tenderness along the course of the posterior tibial tendon.
I would agree with Doctor Kissam’s evaluation of January 11, 1969, in that I feel that this patient has a chronic posterior tibial tendon tenosynovitis and I would feel that there is some permanent injury to the left foot as a result of this.
We changed his shoe support, gave him medication to reduce the inflammatory reaction to the posterior and anterior tibial tendon and put him on a moderate activity program. By June 14, there was no longer any swelling present, though the patient still had slight discomfort in the course of his posterior tibial tendon. It was felt that the appearance of the left foot and ankle had returned to normal as of that time. Further slight change was made in his shoe correction and on July 6, we saw this patient for the last time, indicating that on the basis of examination we could find no significant residual present and felt that the healing period had ended.
If we can be of further service in this matter, please advise us. We are forwarding a copy of this report to Liberty Mutual together with a copy of our statement.”

Doctor Kissam’s report under date of January 11, 1969, is as follows:

“Mr. Burroughs was examined in my office on August 26, 1968, at which time he stated that he had injured his left ankle when he turned it while walking a race horse in Hot Springs, Arkansas, on February 12, 1968. As you are aware, he was treated first by Dr. Jack Wright and later by Dr. Thomas M. Durham, and according to a copy of report from Dr. Durham to you, dated September 23, 1968, it was felt that Mr. Burroughs had healed without any residual except some complaint of pain. However, Mr. Burroughs still complained of some pain in his ankle and a tendency for it to turn in.
Physical examination directed primarily to the left foot, revealed that in the weight bearing position, Mr. Burroughs had a rather marked pronation of his left foot compared to the right. There was tenderness at the insertion of the posterior tibial tendon and also along the course of the tendon to the medial malleolus and slightly posteriorly. There was slight tenderness also anteriorly to the medial malleolus. Ankle motion, passively and actively, was within normal limits. There was no swelling present and the general contour of the foot appeared normal. When the patient attempted to stand on tip toe there appeared to be some weakness and tendency for his ankle to evert. It was noted that the patient had a 1/8 inch medical heel wedge in his left shoe and also an arch support.
My clinical impression was that this patient had had an eversion strain of the left foot and ankle with stretching injury of the posterior tibial tendon and probably a moderate sprain of the anterior talofibular ligament. I feel that his residual pronation is the result of this stretching injury to the posterior tibial tendon.
We pointed out to the patient that if symptoms are not well-controlled with shoe corrections, it may be necessary to surgically explore the posterior tibial tendon. It is my opinion that there is a permanent partial disability of 10% of the left foot.”

The testimony shows that Mr. Burroughs is 46 years of age and at the time of the hearing weighed in excess of 240 pounds. Prior to World War II, he was a farmer. During World War II he served in the U. S. Navy and thereafter worked as a rigger during the year 1947. In 1948, he returned to Hot Springs and bought a dump truck and hauled dirt. From 1948 until 1963, he served as a first sergeant in the Air Force. From 1963 to 1964, he owned a tavern for one year. In 1964, he worked in a cabinet shop for a couple of weeks and as a maintenance man for Kings Foods Host Restaurant. While working for the latter employer he injured his back and was awarded a 23% permanent partial disability. In 1965, he worked 3 or 4 weeks as a house painter, worked for Joe Teague, installing air-conditioning and later worked for the University of Florida as a lab machinist. The latter job was building nuclear shields for experiments and was so-called “outside work”.

Appellant testified that he would be unable to perform any of the jobs he had formerly held because if he was on his left leg and foot excessively, walked a lot, tried to climb or happened to overdo anything, his foot would swell up and be sore around the bone on the inside of his left foot. He described the bartender or meat cutter and sandwich man job that he did for Turf Catering Company as light work where he could sit or otherwise take the weight off of his foot during the actual running of the horse races. His job as lab machinist at the University of Florida from July to December 1968 was with persons he knew and was described by him as inside work with all heavy lifting being done by others.

Mr. Burroughs’s wife testified that every time he has tried to work since his ankle was hurt, his ankle is always swollen every night and he spends a lot of time with it propped up. She observed swelling during the time he worked as a beer drawer or a sandwich meat slicer. In fact she said that it would be swollen every night. If he wasn’t careful while just walking along and happened to turn his ankle or something, his foot would be sore and swollen again and would have to be kept propped up for a couple of days.

The appellees to affirm the decision of the trial court rely upon Ray v. Shelnutt Nursing Home, 246 Ark. 575, 439 S. W. 2d 41, wherein we pointed out that there was no evidence to sustain the commission’s finding that the claimant’s disability exceeded her functional disability. Therein lies the difference between this case and the Ray case. As we view the testimony of appellant and his wife relative to the swelling and pain that he endured in attempting to work, coupled with the doctors’ recognition that it might become necessary to surgically explore the “posterior tibial tendon”, it is sufficient to substantiate the commission’s finding that the claimant had suffered a 50% permanent partial disability to his foot.

Reversed and remanded.

Carleton Harris, C. J., dissents.


author: Carleton Harris, Chief Justice. Affirmed.

text:
    SECURITY LIFE & TRUST CO. v. FIRST NATL. BANK IN LITTLE ROCK, Adm’r
    5-5370
    460 S. W. 2d 94
    Opinion delivered December 7, 1970

      Wright, Lindsey ir Jennings; By: Winslow Drum-mond, for appellant.

      Cooper Jacoway, for appellee.
   Carleton Harris, Chief Justice.

Claude Lee De-Loach, a resident of North Little Rock, died as a result of a gunshot wound. At the time there was in force a policy of insurance on the life of DeLoach issued by Security Life and Trust Company, appellant herein. First National Bank in Little Rock, Administrator of the Estate of DeLoach, and appellee herein, instituted suit against appellant in the Pulaski County Circuit Court, asserting that DeLoach died an accidental death and that the administrator was entitled to recover on the policy in the amount of $8,200.00 plus statutory penalty and an attorney’s fee. Appellant denied the allegation that the death was accidental, and affirmatively pleaded that DeLoach’s death was suicide. The policy provided for a refund of premium in the event of self-destruction, and appellant tendered $125.02 into the registry of the court. On trial, the sole issue was whether the death of DeLoach was the result of an accident or whether it was a suicide. Instructions including three which are involved in this appeal, were given. Plaintiff’s instruction number two and instructions number three and eight, given by the court, are as follows:

“The term ‘self destruction’ as it is used in the insurance policy, means the same thing as ‘suicide’. In order for the insurance company to establish that Claude DeLoach died as a result of his self destruction, the company must prove to you that Claude DeLoach committed suicide.
Al,
You are instructed that suicide is more than the taking of one’s own life, it is the intentional taking of one’s own life. For a death to be suicide, the law requires that the decedent possess the intention of taking his own life at the moment of the action that resulted in his death.
In this case, the insurance company claims that the death of Claude DeLoach resulted from his suicide. In order to establish this claim, the insurance company is required to prove by a preponderance of the evidence that Claude DeLoach had the intention to kill himself at the moment that the gun fired the bullet that killed him.
If the insurance company fails to prove to you, by a preponderance of the evidence, that Claude DeLoach possessed that intention at the moment that the gun fired, then, in such event, your verdict will be for the plaintiff in the sum of $8,200.00.
-if- -V-w w
A party who has the burden of proof on a proposition must establish it by a preponderance of the evidence, unless the proposition is so established by other proof in the case. ‘Preponderance of the evidence’ means the greater weight of evidence. The greater weight of evidence is not necessarily established by the greater number of witnesses testifying to any fact or state of facts. It is the evidence which, when weighed with that opposed to it, has more convincing force and is more probably true and accurate. If, upon any issue in the case, the evidence appears to be equally balanced, or if you cannot say upon which side it weighs heavier, you must resolve that question against the party who has the burden of proving it.”

Appellee then offered four instructions relating to the presumption against suicide. Plaintiff’s requested instruction number five, probably more comprehensive than the others, reads as follows:

“There is a presumption against suicide, or death by any other unlawful act, and this presumption arises even where it is shown by proof that death was self-inflicted — the death is presumed to have been accidental until the contrary is made to appear. This rule is founded upon the natural human instinct or inclination of self-preservation, which renders self-destruction an improbability with a rational being.”

All four of these requested instructions were refused. The jury returned a verdict for appellant, and a few days later, appellee filed its motion for a new trial, the motion being based upon the contention that the court erred because of failure to give the instructions relating to the presumption against suicide. On hearing, the court set aside the verdict of the jury and the judgment based thereon, and reinstated the case for another trial. From this judgment of the court, appellant brings this appeal. For reversal, it is simply asserted that the trial court erred in granting the motion for a new trial.

While the trial court gave no reason in its order (setting aside the verdict and judgment), the only ground urged by appellee in filing its motion was as previously stated and we treat the matter accordingly. First, let it be said that there is no dispute but that the instructions concerning the presumption against suicide offered by appellee, were a correct statement of the law. Appellant simply asserts that the instructions already given by the court, set forth earlier in this opinion, in effect, sufficiently covered the point sought to be covered by appellee in offering its instructions on the presumption against suicide. This is the principal argument advanced by appellant, viz, that the instructions were repetitive of those already given, although it is also mentioned that they were argumentative. It is suggested that the existence of legal presumptions is subject matter for law students, lawyers, and judges, but not for jurors. We do not agree with these contentions for reasons hereafter set out. Appellant relies principally upon one Arkansas case, Watkins v. Metropolitan Life Ins. Co., 158 Ark. 386, 250 S. W. 350 (1923), and argues that that case is dispositive of this appeal. There, this court held that the trial court did not commit error in refusing to give an instruction on the presumption against suicide, holding that the instruction was argumentative. We added that there could have been no prejudice since other instructions correctly covered the law embraced in the requested instruction. The other instructions mentioned were similar to the instructions given in the instant case. We agree that the instructions which the court refused to give, set out in footnote 2, is argumentative, in that it says “this makes a prima facie case for the plaintiff”, and should not have been given. That vice does not appear in the instructions offered by appellee in the case before us. However, entirely aside from that, appellant’s reliance upon Watkins is ill-founded for the reason that the original transcript establishes that the following instruction was given:

“1.
While the law presumes that a man will not intentionally kill himself, this presumption is only prima facie, and not conclusive, and may be overcome by evidence either direct or circumstantial introduced in proof in the case.

It might be added that presumption against suicide instructions have been approved in numerous cases subsequent to Watkins.

The law recognizes that there are two kinds of presumptions, statutory presumptions and presumptions based upon human experience. In Union Central Ins. Co. v. Sims, 208 Ark. 1069, 189 S. W. 2d 195, this court said:

“From these cases it is apparent that a distinction is drawn between the effect to be given presumptions founded upon the laws of nature, and those which would not ordinarily arise but for the interposition of a statutory declaration. Where the presumption is a matter of public policy promulgated by the Legislature, it disappears when substantial evidence of facts is introduced; but since the laws of nature and of self-preservation are instinctive, a presumption predicated upon them may not. be peremptorily brushed aside by mere contradiction. We think the effect of our decisions where accidental death or suicide were matters of controversy is that the presumption against suicide exists throughout trial, placing upon the insurer the burden of proving its affirmative defense.”

Of course, there are different presumptions, some of which are overcome with a minimum of proof, almost by simply offering some evidence contrary to the presumption. But the presumption against suicide is a strong one as pointed out in the case just cited. The principle is even more forcefully stated in Metropolitan Life Insurance Company and The National Life & Accident Insurance Company v. Graves, 201 Ark. 189, 145 S. W. 2d 1102, where Justice Mehaffy, speaking for the court, and quoting from 8 Couch on Insurance, 7242, said:

“Another apt statement of the rule is that where the cause of death is unexplained or undisclosed by evidence, or where evidence tending to prove self-destruction is contradicted, or impeached, or some evidence adduced is consistent with a reasonable hypothesis that the death was not self-caused, [Our emphasis] the presumption against suicide prevails. And if there be a doubt, the evidence being conflicting and nearly evenly balanced, whether the death was caused by suicide or accident, the presumption is in favor of accident. So, where the evidence points equally or indifferently to accident or suicide, the theory of accident is adopted. And the force of the presumption based upon the love of life must, it is decided, be given effect against the defense of suicide, unless the evidence discloses no other reasonable hypothesis. [Our emphasis]”

In addition to Arkansas cases, decisions are cited from several other states, along with federal cases including two from the United States Supreme Court. When we reflect upon human emotions and desires, it is little wonder that our cases use such strong language, for we have all heard from childhood that "self-preservation is the first law of nature”. Metropolitan Life Insurance Company and The National Life & Accident Insurance Company v. Graves, Supra, points out that the presumption against suicide must be given effect unless the evidence discloses no other reasonable hypothesis. The testimony in the present case is not abstracted but it is sufficient to say that evidence was offered on behalf of appellee which, if believed by the jury, would have supported the theory of accident.

It will be noted that in Union Central Ins. Co. v. Simms, Supra., it is pointed out that a presumption based upon the laws of nature and self-preservation are not to be "peremptorily brushed aside by mere contradiction”. Instructions that simply tell the jury that before it can find for the insurance company, it must find by a preponderance of the evidence that the deceased intentionally killed himself may not always be sufficient, unless such instructions are accompanied by a proper instruction on the presumption against suicide. For instance, let us say that a hunter is found dead in the woods, death being caused by a shotgun blast which tore off part of his head. The body is near a tree, with the fired gun lying between the tree and the body. No one can say whether the man committed suicide, or was accidentally killed, perhaps by the gun being accidentally discharged when falling to the ground from where it was propped against the tree. But there is a witness who testifies for the defendant insurance company that the deceased had told him the day before that his wife was “running around with another man and that if she didn’t quit, he was going to kill himself”. Certainly, that is a circumstance supporting the defense of suicide; in fact under the hypothetical facts just related, it would constitute the preponderance of the testimony for no evidence was offered as to the cause of death (accident, murder, or suicide) by the representative of the deceased. Thus, without an instruction on the presumption against suicide, the defendant would clearly have the preponderance of the testimony, but should it prevail?

It may well be that the circuit judge, who had heard all the testimony in the case, was somewhat surprised at the verdict, and concluded that his instructions had not sufficiently apprised the jury of the law, and that he had made a mistake in not giving an instruction upon presumption against suicide.

For that matter, we said many times that we will not disturb the trial court’s action in setting aside a verdict unless the court has clearly abused its discretion. This is of course, also applicable where a judge determines that he should have, in the original trial, given a requested instruction and grants a new trial for that reason. In Hardin v. Pennington, 240 Ark. 1000, 403 S. W. 2d 71, the trial judge decided that he should have given the appellee’s requested instruction No. 5, and he accordingly granted a new trial. This court, in affirming, made no finding that error had been originally committed and that the instruction should have been given; rather, we said:

“The trial judge, in granting a new trial, explained, in detail that he had refused to give the appellee’s requested Instruction No. 5 and he did not think that the giving of any other instruction properly presented the issues. It is sufficient to say that the court in its sound discretion exercised its inherent power to grant a new trial; and that it is not shown that he acted arbitrarily in this case.”

This language is apropos in the case now before us for the court exercised its sound discretion in its power to grant a new trial and it is not shown that he acted arbitrarily. We are not saying that the court should have given all of the instructions on presumption against suicide offered by appellee, nor are we saying that any of those specific instructions should have been given (though they seem to correctly state the law). We are saving that the trial court, exercising its discretion, was justified in granting a new trial by determining that appellee was entitled to have the jury told that there is a presumption against suicide.

Affirmed.

       Requested instruction number three was modified before being given as set out in this opinion.

       “5. If you find from the evidence that deceased was found with pistol-shot wound in his head, which caused his immediate death, this makes a prima facie case for the plaintiff, because the law presumes that one does not commit suicide, even where the wound is self-inflicted. Such presumption of evidence stands until overthrown by evidence that deceased intentionally shot himself.”

       While clearly stating to the jury the legal presumption against suicide, it is interesting to note that the instruction seems somewhat slanted toward the side of the defendant. The record reveals that the instruction was given at the request of the defendant.


author: Carleton Harris, Chief Justice.

text:
    Gaylon Doyle DORRIS v. Sandra Jean DORRIS
    5-5377
    460 S. W. 2d 98
    Opinion delivered December 7, 1970

      Rhine é Rhine, for appellant.

      Gus Camp, for appellees.
   Carleton Harris, Chief Justice.

On December 21, 1968, appellant, Gaylon Doyle Dorris, was granted an absolute divorce from appellee, Sandra Jean Dorris. Relative to the three minor children of the parties, the decree reflects:

“The court further finds that during said marital period, there were three children born, namely: Dena Lynn Dorris, a girl three years old; Tammy Kaye Dor-ris, a girl now 23 months old; and a boy named Darren Lane Dorris, now three months of age, and that the defendant has entered her consent for plaintiff to have custody of the two older children, and has waived all rights of alimony.”

In accordance with this finding, appellant was given custody of the two older children and appellee was given custody of Darren Lane Dorris, each custody provision granting the right to the other parent to visit the children at all reasonable times. On September 23, 1969, Mrs. Dorris filed a petition with the court asserting that she had been denied reasonable rights of visitation with the children whose custody had been given to appellant; that “due to a change of circumstances”, it would be to the best interest of the children that she be awarded custody, and she asked that the court’s decree be amended to the extent that she be given custody of these children and that appellant be ordered to pay a reasonable amount for their support. Appellant answered the petition, denying that he had prevented ap-pellee from exercising reasonable rights of visitation with the children and denying that there had been any change of circumstances; denied that it would be to the best interest of the children to change their home at that time, and he asked that the petition be dismissed. The sole issues presented to the court by the pleadings were whether visitation rights had been denied appellee, or whether there had been a change in circumstances which would justify the transfer of custody. On hearing, appellee testified that the older children, who were living in the home of appellant’s mother and father, were well fed and had proper clothing. She stated that there were some weeks that she didn’t see the children, but when asked if that was because that appellant had refused the right or because it was inconvenient to her, replied, “A lot of times it is inconvenient for me to go and there is several times I didn’t have any way to go up there”. Actually, she said that there had been- no serious trouble over visitation rights. The witness subsequently stated that she had been “going any time I want to, usually”. Quite a bit of appellee’s testimony related to her execution of the “Entry of Appearance and Stipulation”, which was signed on October 22, 1968, the day before the divorce complaint was filed. In that instrument, Mrs. Dorris entered her appearance to the cause of action for divorce, agreed that appellant should have absolute custody of said children subject to her rights of visitation, and waived all rights of alimony. Upon interrogation, she testified, over objections by appellant, that the reason she entered into the agreement was because of threats made by Mr. Dorris.

“He told me he could bring up a case against me and one time when we were separated before I applied for a welfare check and we went back together and he told me if I ever tried to take the kids away from him again he would kill me or beat me so bad I would wish I were dead.”

She said that she was not represented by an attorney of her own choice and never did talk to a lawyer other than going with her husband to his lawyer’s office when the entry of appearance was signed. However, when asked if she understood the waiver, she replied “Yes. I was all mixed up and everything then, he had threatened me and I didn’t want anything to happen so I signed it”. Appellant denied that he had threatened appellee in any manner. Other testimony was offered by both sides which will be subsequently touched upon.

At the conclusion of the hearing, the chancellor rendered an oral opinion in which he stated that the custody should be changed, but it is apparent from his remarks that this order was not based upon any finding of a change of circumstances. In fact, the court stated that it was “treating this as an initial hearing today”. The order itself makes no mention of a change of circumstances; to the contrary, finding No. “2” sets out the reason for the change of custody, as follows:

“From the evidence as submitted herein both on oral testimony of witnesses by and on behalf of the petitioner, Sandra Jean Dorris, and the respondent, Gaylon Doyle Dorris, the court finds that at the time the entry of appearance and stipulation for custody was entered into that it was signed on October 22, 1968. That the original complaint was filed in the office of the Clerk of this Court and the divorce action was commenced on October 23, 1968, and that the entry of appearance and stipulation is not well founded. The court further finds that at the time the entry of appearance and stipulation was entered into that certain pressure was brought upon the said defendant herein, Sandra Jean Dorris.”

From the order changing custody, appellant brings this appeal seeking a reversal. Three errors are asserted, which we proceed to discuss, the first being that the trial court erred when, on its own motion, and without notice to either party and with disregard to the issues joined in the pleadings, treated the hearing as an initial hearing.

We agree that this was error. When the proof relating to the reason for appellee signing the entry of appearance was introduced, appellant objected on the basis that it had nothing to do with the issues that had been raised by the parties in the pleadings. This was true, for as previously pointed out, the sole questions raised were that appellee had not been given her visitation rights as permitted under the decree, and that there had been a change of circumstances. The evidence in question was entirely alien to these questions, and in fact, only related to events occurring prior to the granting of the original divorce. It is true that in a proper case it is within the sound discretion of the trial court to treat a complaint as amended to conform to the proof. In Nance v. Eiland, 213 Ark. 1019, 214 S. W. 2d 217, we said:

“It is always within the sound discretion of the court to permit a complaint to be amended to conform to the proof; and where the allegations in the complaint are insufficient, it is proper at the conclusion of the evidence to treat the complaint as amended to conform to the proof, where there are no objections to the introduction of the evidence and no claim of surprise is made.”

Still however, that holding does not diminish the basic right of a defendant to be apprised by a plaintiff’s pleadings of the nature of the complaints or accusations against him. As long ago as 1844, in Brodie et al v. Skelton, 11 Ark. 120, this court said:

“If their rights were sought to be thus vitally affected, there can be no doubt but that they were entitled to be apprized of it, so that they could be prepared to make their defense, and if possible prevent so great a calamity.”

In the case before us, the contested evidence was really in the nature of a new cause of action. In Price v. Price , 215 Ark. 425, 220 S. W. 2d 1021, Mr. Price filed suit for divorce against Mrs. Price on grounds of indignities. During the course of the trial, there were several references to the desire of the plaintiff that the court treat the claim as amended to allege three years separation. In discussing whether such an amendment should have been allowed, this court said:

“We have held that before a trial starts, the plaintiff may file an amendment alleging a cause of action which matured after the filing of the original complaint; but no such amendment was filed prior to the commencement of the trial in this case. We have also held that if a new cause of action be alleged in the course of the trial, then the defendant may waive the right to object to such new cause of action. There was no such waiver here. We have in this case a situation in which the plaintiff, after the commencement of the trial and over the objections of the defendant, sought to allege a new and different cause of action for divorce — i. e., the three years separation.

Even under our liberal rules for amendment of pleadings, we have held that, over the objection of the defendant, a new cause of action should not be permitted in the course of the trial. In Patrick v. Whitley, Mr. Justice Battle, after referring to section 6145, Kirby’s Digest, said: ‘Under statutes like this it has been uniformly held that no amendment can be allowed after the commencement of a trial which introduces into the case a new cause of action.’

We therefore hold that after the trial commenced, the court should not have permitted the plaintiff to file an amendment alleging three years separation as a ground for divorce, since the defendant objected to such amendment.”

It follows that the court erred in reaching its conclusions on the basis herein discussed.

The next point for reversal relates to the fact that there was no showing of a change of conditions which would justify moving the custody from appellant to appellee. We have already to some degree commented on this issue, and it might be added that only three “possible changes” had occurred since the rendition of the original decree. Mrs. Dorris testified that her husband was on the road more in his work than formerly, but this would not seem to be of any great importance since his mother had the actual physical custody of the children the greater part of the time irrespective of the job assignment of appellant. Kathleen Cupples, a witness for appellee, stated that she had observed the little girls in the street “darting in from in front and behind cars” and that she had to stop her vehicle to keep from hitting them. However, she admitted that her own children at times would go into the street, adding “not very much”. The only other possible change in circumstances is that appellee had applied for welfare payments. “I applied for a check for me and my son and they told me if I got the girls I could get money for them.” This application had been made two weeks before the trial. Though this decree is being reversed on the basis of point one, it is certainly questionable that sufficient circumstances were shown which were favorable enough to appellee’s position to justify a new custody order.

Finally, appellant, under his third point for reversal, asserts:

“The lower court was in error when it held in effect that a divorce decree entered more than a year prior to a 'hearing to modify for child custody only,’ the validity of the decree fully accepted by both parties, and without notice to either party, was void and announcing in open court, ‘I am not setting the divorce decree aside. I am saying I would not get married if I was either one of them on that divorce decree’ ”.

As heretofore pointed out when quoting the court’s order, in addition to finding that pressure was brought upon Mrs. Dorris to sign the entry of appearance, the court also found that the waiver was signed one day before the divorce action was commenced and it was held “that the entry of appearance and stipulation is not well founded”. From the remarks made from the bench, it is apparent that the court was of the opinion that since the waiver was signed before the suit was filed, and did not contain the words “I am filing this agreement and entry of appearance in a suit now pending” or “a suit to be later filed”, the waiver was invalid and appellee had not actually entered her appearance. Whether the fact mentioned by the chancellor had the effect of nullifying the entry of appearance is not a question presently before us; the original decree was not set aside, and certainly, the execution of the waiver had nothing to do with a change of circumstances since the rendition of the divorce decree.

Appellant’s point three is based upon a remark made by the chancellor at the close of the hearing. The record reveals the following:

“MR. RHINE: We are appealing it and I judge from your opinion here you are setting aside - the divorce decree.
THE COURT: No, sir, I am not setting the divorce decree aside. It has not been challenged.
MR. RHINE: You say there is no legal divorce decree.
THE COURT: I am saying I would not get married if I was either one of them on that divorce decree.
MR. RHINE: You are challenging the waiver, you are holding there was no service on her?
THE COURT: I am holding the document that is filed here is not proper and she was not properly in court at that time on that waiver.
MR. RHINE: You are holding the divorce decree invalid?
THE COURT: I am not saying one thing about the divorce. The only thing I am interested in today is the custody. If you want to challenge the divorce decree you may do it. I feel that since that waiver does not comply with our case law I am not bound by that waiver in order to change this custody.”

Of course, we can understand the concern of appellant since it might well be that any prospective spouse (for either party) would be reluctant to enter into marriage if aware of the content of the record which is quoted. From the testimony of the parties, it would seem doubtful that either would challenge the divorce decree, for it appears that they have no desire to live with each other. Nonetheless, since the decree was not set aside, we cannot pass upon this point.

In accordance with what has been said, the order of custody entered by the court on February 24, 1970, changing the custody of the two minor children, Dena Lynn Dorris and Tammy Kaye Dorris, from appellant to appellee, is hereby reversed and set aside.

It is so ordered.

       Our emphasis.

       In C. R. I. & P. Ry. Co. v. Lockwood, 244 Ark. 122, 424 S. W. 2d 158, in referring to the Price case, this court said that the amendment would have added allegations supporting new and different issues not raised by the facts alleged in the original complaint, and that the defendant would necessarily have had to offer evidence of facts materially different from that which would have been admissible on the issues made by the original pleadings. That is also true in the litigation now before us.

       The actual wording of this portion of the “Entry of Appearance and Stipulation” is as follows:
      “I, Sandra Jean Dorris, above named defendant hereby enter my appearance to this cause of action for divorce and custody of two minor children to all intents and purposes as fully as if service of summons were issued and served in the manner and for the time required by law. * * * It is stipulated and agreed that depositions of witnesses to be read in evidence on behalf of plaintiff may be taken without notice to me and that all formalities in the taking, transcribing and signing are hereby waived.”

       The Chancellor also commented upon the fact that only two children were mentioned in the waiver (the two whose custody was given to the father), but the divorce decree mentioned three.' The record reflects that appellee admitted that appellant was not the father of the third child, and appellant testified that the chancellor who granted the divorce (not the same chancellor who heard the present petition) refused to approve the decree until it included the third child. Appellant’s counsel redrafted the decree.


author: George Rose Smith, Justice. J. Fred Jones. Tustice,

text:
    Thomas Newton BELEW et ux v. Madie GRIFFIS
    5-5331
    460 S. W. 2d 80
    Opinion delivered December 7, 1970
    F. C. Crow, for appellants.

      John L. Wilson, for appellee.
   George Rose Smith, Justice.

In 1956 the appellants, Thomas Newton Belew and his wife, sold a small, poorly constructed dwelling house to the appellee, Madie Griffis, for a recited consideration of $5,250.00, which the chancellor found to represent both the principal and the interest at 8% per annum. Mrs. Griffis made a down payment of $35.00 and executed a promissory note for the balance of $5,215.00, payable in monthly installments of $35.00 each. Mrs. Griffis also received a warranty deed in which the grantors recited the contractual terms and retained a vendor’s lien to secure the unpaid purchase price.

Mrs. Griffis faithfully made the monthly payments for 12 years and 8 months, those 152 payments totaling $5,220.00, or $105.00 more than the original debt. Mrs. Griffis then discontinued her payments, in the belief that the note had been fully paid. Some five months after the Belews received the last of the 152 payments they brought this suit to enforce the note and vendor’s lien. It is their contention that the face amount of the note, $5,215.00, represented only the principal of the debt, which bore interest at 8%. In that view Mrs. Griffis had managed to reduce the principal debt by only $61.73 in the course of 12 years and 8 months. The complaint accordingly sought judgment for a balance of $5,153.27 and foreclosure of the vendor’s lien.

In answer to the complaint Mrs. Griffis pleaded fraud, in that the sellers had led her to believe that the sum of $5,250.00 was the total amount due, upon the payment of which “her home would be free and clear to her.” After a trial the chancellor sustained Mrs. Griffis’s position and entered a decree canceling the vendor’s lien and dismissing the complaint. For reversal the Belews contend that the decree is contrary to the evidence and that the chancellor erred in admitting certain testimony.

At the outset we recognize the rule that where, as here, a charge of fraud involves the contradiction of a written instrument by oral testimony, the party asserting such fraud must prove his case by clear and convincing testimony. Clay v. Brand, 236 Ark. 236, 365 S. W. 2d 256 (1963). After studying the record we have no doubt that the appellee fully sustained her heavy burden of proof.

At the time of the trial Belew was 92 years old; his wife was 85. Both testified, with clarity. Mrs. Belew said that she had typed out the note and deed, following forms that had been prepared by an attorney in an earlier transaction. Both Mr. and Mrs. Belew denied having told Mrs. Griffis that the face amount of the note included both principal and interest. Significantly, however, neither Mr. Belew nor Mrs. Belew indicated in any way whatever by their testimony that their understanding of the transaction had been explained to Mrs. Griffis when the documents were signed. Hence the Belews’ case rests almost entirely upon the bare language of the note and warranty deed.

Mrs. Griffis testified that when the instruments were signed Mr. Belew pointed to the figure $5,250.00 and said, “This is how much you will pay. I want you to understand your interest is figured in. When you get this amount paid, your house will be paid. It will take you around twelve years to pay for it; then you and the boys [Mrs. Griffis was then a widow with four sons] will have your home.” Mrs. Griffis also stated that she did not read the note before signing it; “I didn’t think there was any need. I thought everybody should be honest like myself, and I just had a feeling he was just an honest old man.”

Counsel for the Belews objected to Mrs. Griffis’s testimony, as being in violation of the parol evidence rule. Where fraud is alleged, however, such testimony is competent. Although a person is ordinarily bound to know the contents of a contract which he signs, we have often recognized an exception to that principle when fraud or inequitable conduct is charged. As we said in Massachusetts Mut. Life Ins. Co. v. Brun, 187 Ark. 790, 62 S. W. 2d 961 (1933):. “There is a well-recognized exception to the rule that a party is bound to know the contents of a paper which he signs; and that is where one party procures another to sign a writing by fraudulently representing that it contains the stipulation agreed upon, when, in fact, it does not, and where the party signing relies on the faith of these representations, and is thereby induced to omit the reading of the writing which he signs. It is well settled that a written contract which one party induced another to execute by false representations as to its contents is not enforceable, and the party so defrauded is not precluded from contesting the validity of the contract by the fact that he failed to read it before attaching his signature.” Other cases to the same effect include Dodson v. Abercrombie, 212 Ark. 918, 208 S. W. 2d 453 (1948); Galloway v. Russ, 175 Ark. 659, 300 S. W. 390 (1927); and J. I. Case Threshing Machine Co. v. Southwestern Veneer Co., 135 Ark. 607, 205 S. W. 978 (1918).

Ordinarily, it is true, the Belews’ statement that the recited consideration included both principal and interest would not be admitted to contradict the contract, but we have noted an exception to that rule: “[W]hen one who has had superior means of information professes a knowledge of the law, and thereby obtains an unconscionable advantage of another, who is ignorant, and has not been in a situation to become informed, the injured party is entitled to relief as well as if the misrepresentation had been concerning matters of fact.” Cornish v. Johns, 74 Ark. 231, 85 S. W. 764 (1905).

Here there is no doubt either that the Belews were in a superior position to know the legal effect of the contract, which they prepared, or that they obtained an unconscionable advantage over Mrs. Griffis. Those two points must be examined with care.

First, the Belews were in a superior position to know the legal effect of the note and deed. Not only had they prepared the instruments in the light of at least one previous transaction of the same kind, but also the instruments themselves were by no means readily understandable to a person not skilled in the interpretation of legal language. Neither the note nor the deed sets out the number of payments that would be required if the recited consideration comprises the principal only. In fact, the deed, which is the only document of which Mrs. Griffis received a copy, contains this extremely ambiguous provision: “Interest payable monthly, and principle and interest payable in monthly installments of Thirty-five Dollars ($35.00) each, the first installment to be paid on or before July 6, 1956, and all other installments to be paid on or before the 6th day of each month thereafter until said note and all interest thereon shall have been paid in full.” It will be seen that the foregoing sentence can easily be taken to mean that the $5,215.00 total includes both principal and interest.

Secondly, the contract, literally construed, is perhaps more unconscionable than any other agreement considered by this court in the past hundred years or more. The original recited consideration was $5,250.00. At 8% the annual interest comes to $420.00, which is exactly $35.00 a month. Hence, had there been no down payment Mrs. Griffis might have paid $35.00 a month forever without reducing the principal debt by a penny.

There was, however, a down payment of $35.00, reducing the original debt to $5,215.00. Counsel for the plaintiffs attached to the complaint a computation showing that after Mrs. Griffis had made payments for more than twelve years she still owed $5,153.27. After the case was submitted to us we had an independent computation made which confirms the accuracy of the plaintiffs’ figures. (According to our computation the debt would have been $5,153.37 — a difference of only ten cents.)

When the same computation is carried forward until the debt is finally paid, it is found that 62 years and 9 months would be required to retire the note: a total of 753 monthly payments. Mrs. Griffis was 41 years old when she bought the house, with a life expectancy of 30 years. Ark. Stat. Ann. § 50-705 (Supp. 1969). At the expiration of those 30 years her 360 monthly payments would have reduced the principal by $361.63, leaving a balance of $4,863.37. If, however, Mrs. Griffis lived to be a hundred years old she would have the satisfaction of knowing that the obligation was down to $1,343.39, which would be completely paid in a little less than four more years.

As we have said, the note itself did not state the number of payments needed to retire the obligation if the note were considered to embody the principal debt only. That computation requires 753 monthly calculations, involving many hours of labor. It goes without saying that Mrs. Griffis could not possibly have had any idea of such an appalling future when she signed the note. In fact, we really do not believe that the Belews themselves ever made any such computation, for we are convinced by the proof that they intended for the note to include the interest and that they truthfully so stated when the transaction was entered into.

There are many circumstances pointing to that conclusion. To begin with, it is not reasonable to suppose that Mrs. Griffis obligated herself in a matter of such gravity without making any inquiry about the expected duration of her monthly payments. We know to a moral certainty that she was not told that the payments would continue for more than sixty years. Consequently the only reasonable alternative is to accept as true her testimony that the Belews represented the sum of $5,250.00 to be the entire consideration, principal and interest. No third possibility is suggested by the proof.

Next, according to the only evidence about the value of the house, $5,250.00 would have been an excessive price for the property. Dorsey McRae, an expert in real property values, testified without contradiction that in 1956 the house and lot were worth about $3,340.00. Our computation shows that if the original debt had been $3,305.00 (McRae’s estimate less the down payment) and the monthly payments had been $35.00, applied first to accrued interest and then to the principal, the debt would have been retired in 149 months. That is exactly the number of monthly payments that were due under the contract as it was represented to be. Hence it is clear that the parties entered into an equitable contract, based upon the property’s fair market value, rather than into an agreement so unconscionable as to have no parallel in our Reports.

Finally, the Belews are shown to have sold two other houses in the same neighborhood with similar notes and lien-retaining deeds. Those deeds are in evidence and are drawn in the same way as that received by Mrs. Griffis. One of the deeds was to Louise Jones and recited a consideration of $5,000.00, payable in monthly installments of $35.00, with interest at 8% annually. At that rate it would have taken Mrs. Jones 38 years and 2 months to pay off the debt, but she testified that the Belews told her that the $5,000 figure included both interest and principal. The other purchasers, Mr. and Mrs. McKamie, both testified that they had been told the same thing by the Belews with respect to a $4,000.00 purchase that would have taken 18 years and 1 month for retirement under the appellants’ theory.

The testimony of Mrs. Jones and of the McKamis was objected to, but proof of such similar transactions is admissible to show the parties’ intentions. We stated the rule in Myers v. Martin, 168 Ark. 1028, 272 S. W. 856 (1925): “The general rule is that testimony must be confined to the particular transaction under investigation, and that evidence of other conduct, statements or transactions is inadmissible. There are, however, exceptions to this rule, and they have been recognized in decisions of this court, both civil and criminal. [Citing cases.] Those exceptions relate to proof of motive and design or intention. Decisions of other courts cited in brief of counsel are to the same effect.” In a later case, Schwarzlose v. Kingrey, 231 Ark. 537, 330 S. W. 2d 947 (1960), we upheld the admissibility of testimony about negotiations for similar contracts as tending to prove the terms of the contract actually in issue.

In sum, the record abounds with established facts supporting the appellee’s contentions and the chancellor’s decree. In fact, except for the naked language of the note and lien-retaining deed, there is hardly any persuasive evidence to the contrary. We have not the slightest hesitancy in holding that the appellee’s proof satisfies the requirement that it be clear and convincing.

Affirmed.

Brown, J., not participating.

Jones and Byrd, JJ., dissent.

J. Fred Jones. Tustice,

dissenting. I do not agree with the majority opinion in this case. Mr. and Mrs. Belew, who were 92 and 85 years of age respectively at the time of trial, owned some lots in what is known as “Belew Addition’’ to the City of Hope, Arkansas. Mr. and Mrs. Belew had houses constructed on some of the lots and sold some of the houses so constructed. Mrs. Belew prepared the deeds and notes in connection with the sales and in doing so she followed the forms of similar instrufnents previously prepared by an attorney.

On June 6, 1956, Mrs. Griffis purchased a house and lot from the Belews, the purchase price being $5,250. Mrs. Griffis paid $35 cash on the purchase price and signed a note for the balance. The note bore interest at the rate of eight per cent per annum and was payable in equal monthly payments of $35. The Belews executed and delivered to Mrs. Griffis a warranty deed transferring the title in the property to Mrs. Griffis and a lien was retained in the deed to secure the payment of the note. Mrs. Griffis made the monthly payments on the note until December, 1968, at which time she had paid a total of $5,315 and quit making payments on the note.

The note and deed were in standard form and their terms are unambiguous, so the chancellor’s decree was obviously based on fraudulent representations made by Mr. Belew to Mrs. Griffis which induced her to purchase the property and sign the note. It is my opinion that Mrs. Griffis did not rely on the representations she says Mr. Belew made to her, and it is my opinion that the chancellor’s decree is against the preponderance of the evidence in the record before us.

The pertinent part of the deed reads as follows:

“KNOW ALL MEN BY THESE PRESENTS:
THAT WEl T. N. Belew and Kelpa D. Belew, his wife, for and in consideration of the sum of Five Thousand, Two Hundred and Fifty Dollars ($5,-250.00), paid and to be paid by Madie Griffis as follows: $35.00 cash in hand paid, the receipt of which is hereby acknowledged, and the balance of $5,215.00 being evidenced by one promissory note of even date herewith bearing interest at the rate of 8% per annum from date until paid.
Interest payable monthly, and principal and interest payable in monthly installments of Thirty-five Dollars ($35.00) each, the first installment to be paid on or before July 6, 1956, and all other installments to be paid on or before the 6th day of each month thereafter until said monthly installments and all other amounts paid on this note shall be applied first to the payment of the monthly interest and the balance shall be applied on principal. And default in the payment of any installments of principal or interest shall mature said note at the option of the holder. And Grantee agrees to pay all taxes assessed against said property and to keep buildings on property insured in some old line reserve insurance company for not less than the indebtedness.
do hereby grant, bargain, sell and convey unto the said Madie Griffis and unto her heirs and assigns forever, the following lands lying in Hempstead County, Arkansas...”

The note signed by Mrs. Griffis is as follows:

“$5,215.00 June 6, 1956
In monthly installments, at the times hereinafter mentioned I promise to pay to the order of T. N. Belew and Kelpa D. Belew Five Thousand Two Hundred and Fifteen Dollars ($5,215.00) for value received, negotiable and payable without defalcation or discount, at Hope, Arkansas, with interest from this date until paid at the rate of eight per cent per annum, interest payable monthly; and all signers and endorsers of this note waive demand and protest and notice of nonpayment and agree that the maturity thereof may be extended from time to time without notice to them.
This note shall be paid in monthly installments of Thirty-five dollars each. The first installment on this note to be paid on or before July 6, 1956, and all other installments to be paid on or before the 6th day of each month thereafter until said note and all interest thereon shall have been paid in full, and said monthly and all other amounts paid on this note shall be applied first to the payment of the monthly interest and the balance shall be applied on principal.
All or any part of this note, in addition to said monthly installments, with accrued interest, may be paid at any time prior to maturity, and default in the payment of any installment of interest or principal shall mature note at the option of the holder.
This note is given for balance purchase money for the following lots.
Lot 21 and the North 40 feet of Lot 22, Lot 28 and the North 40 feet of Lot 27 in Belew Addition to Hope, Arkansas, and is secured by vendor’s lien retained in deed of even date herewith.
Grantee agrees to pay all taxes assessed against said property and to keep buildings on said property insured in some old line insurance company for not less than the unpaid balance on this note.”

It is, of course, obvious that the principal amount of the note would never be paid in a normal lifetime, if paid in monthly payments of $35 and the payments included both principal and interest as provided in the note. It is clear, however, that the entire amount of the note, or any part of it, could be paid without penalty at any time, and from the preponderance of the evidence, it appears to me that Mrs. Griffis was well aware of that fact. Mrs. Griffis seems to recognize that interest was being paid, but she now contends that she was led to believe that the interest payments were included in the sale price of $5,250, rather than in the monthly payments. There is no evidence of what the sale price would have been without interest under Mrs. Griffis’ contention.

Mr. and Mrs. Belew testified concerning the execution of the deed and note and'the delinquency in payments. They were unable to remember some of the less important specific details concerning the transaction. For example, Mr. Belew could not remember whether he saw Mrs. Griffis sign the note. Mrs. Griffis testified that she dealt with Mr. Belew in the purchase of the property and that the house was under construction when she purchased it. Mrs. Griffis identified the deed and testified that Mr. Belew gave it to her when it was executed. She then testified on direct examination as follows:

“Q. Now, what did he tell you with reference to the payments and the price he was charging you?
A. Well, he had it doubled like this. He pointed to this $5,250.00, and he said, ‘This is how much you will pay,’ and he said, ‘I want you to understand your interest is figured in when you get this amount paid — your house will be paid. It will take you around twelve years to pay for it then you and the boys will have your home.’
j».
Q. What did you do with the deed?
A. I kept it, and finally I went and had it recorded when I knew I was going to stay and finish paying for my home.
Q. Did you read the deed?
A. Yes, sir, but this part of it I didn’t understand.”

On cross-examination Mrs. Griffis testified that she was fifty-four years of age at the time of trial; that she had finished the 10th grade in school and could read and write. She then testified as follows:

“Q. Now, you say you considered it and when you decided that you were going to really stay you took the deed and had it recorded?
A. Yes, sir.
Q. You mean for awhile, you just considered yourself paying rent? You mean you didn’t mean to abide by the contract you signed?
A. Yes, sir, I did, but I was told I couldn’t.
Q. Who told you that?
A. The neighbors around me, that I’d never pay for it.
Q. So you held it debating whether to stay or whether you considered it rent and abandon the contract, and then you decided not to abandon the contract and you decided you’d have it recorded?
A. Yes, sir, I knew I was going to stay, but when I moved there my neighbors told me—
# # #
Q. Did you ever read that note?
A. Yes, sir, I looked over it. I didn’t have the note. This is what I had.
Q. Did you ever read that?
A. Yes, sir, I read it.
Q. How many times did you ever read it?
A. I looked over it several different times.
#4/. -MTV *
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Q. Now, you kept that deed from the time it was delivered to you until — then you decided to record it on March 14, 1966. You kept it nearly ten years before you recorded it?
A. Yes, sir, he didn’t require me to record it.”

The note was dated June 6, 1956, and Mrs. Griffis testified that she was in Mr. Belew’s' dining room when she signed the note. She testified that she did not read the note because she didn’t think there was any need. “I thought everybody should be honest like myself, and I just had a feeling he was just an honest old man.” She testified that the deed was dated the same day of the note, but that she didn’t receive it until later when Mr. Belew brought it to her after she had moved into the house in July. The deed was acknowledged January 28, 1957, but Mrs. Griffis insisted that it was delivered to her in July, just a few days after she moved into the house.

Mrs. McKamie, a sister-in-law to Mrs. Griffis, testified that about ten years previously she was visiting Mrs. Griffis when Mr. Belew came by. She says that the three of them got to discussing house payments and when she remarked that she was paying $35 per month house payments, Mr. Belew remarked, “well, that’s the way Mrs. Griffis is paying for her’s, $35.00 a month, and when she has paid twelve years it will be completely paid for.”

On cross-examination this witness testified that she and her husband bought their place for $1,500 about 22 years ago, and that the monthly payments of $35 included interest in the amount of $3.00 and principal in the amount of $32. She did not remember when her place was finally paid for, but she testified that when her husband got laid off on the railroad, they sold some cows and finished paying for the place.

Mr. Dorsey McRae, a real estate appraiser, testified as an expert for Mrs. Griffis. He testified that the house was in poor repair and the floors were unlevel due to cracking of the foundation. Even so, because of the gradual increase in real estate values, he estimated the fair market value of the house at $4,000 and the value of the lot at $500. Mr. McRae gave an opinion that in 1956 the house had a market value of only $2,840, while the lot was then worth $500. Mr. McRae testified that $35 per month would not be out of line for the rental value of the house, but that if the house could be moved two blocks in any direction it would probably rent for more money.

As I view this case, we have standard unambiguous instruments consisting of a note and lien retaining deed as opposed to testimony of statements made thirteen years previously by a seller who is now 92 years of age, in direct contradiction to the terms set out in the note and deed. The contract, as expressed in the note and deed, may have been a harsh one for the purchaser if she paid the principal and interest at $35 per month and the market and rental value of the property decreased. The contract might have been considered a profitable investment under the provision for prepayment or if the market or rental values increased. In any event, the fair rental value of the property equaled the monthly payments and the $35 per month is only the minimum amount that may be paid each month toward the satisfaction of the indebtedness. The purchaser in the meantime as owner, could do as she pleased with the property so long as she met the monthly payments of $35. If rental values had gone up, her monthly payments could not have been increased against her will, and if rental values went down, she could have sold the house subject to the purchaser’s lien. Mrs. Griffis only paid $35 cash in the purchase of the property and has never paid over $35 per month during the 13 years she has occupied it as owner. When the note and deed are viewed in this light, the recited contract is not unconscionable.

From the evidence in the record I am unable to agree with the chancellor that such fraud was practiced by the Belews as would invalidate the terms of the note and deed, or that Mrs. Griffis was induced to enter into the contract she made by fraudulent statements made to her by Mr. Belew. Mrs. Griffis was bound to have known she was to pay interest on her indebtedness. She admits as much, but says that she was told by Mr. Belew that the interest was included in the purchase price. If this be true, Mrs. Griffis, nor her sister-in-law who heard the conversation, nor her brother or Mrs. Jones who purchased property under similar circumstances, ever asked or ever knew what the actual sale price of their properties were. The neighbors told Mrs. Griffis that she wuuld never pay for the property when she purchased it, and she frankly testified that she held the deed from record for ten years until she decided to stay on and keep the property. She strongly intimated on cross-examination that she considered herself as simply paying rent until she decided to keep the property and had her deed recorded.

According to Mrs. Griffis’ own testimony, she had purchased the property; had made her down payment of $35; had signed the note for the balance of the purchase price and had moved into the house before the deed was delivered to her. It was upon the delivery of the deed when she says that Mr. Belew pointed to the $5,250 on the deed and advised her that that was the total amount she would be required to pay.

Mrs. McKamie’s corroborating testimony has little probative Value. According to Mrs. McKamie’s testimony her property would have been paid out for a period of at least eight years even at $35 per month when she says that she engaged Mrs. Griffis and Mr. Belew in conversation as to how she and Mrs. Griffis were paying on their respective notes.

According to Mr. McRae’s testimony, the property in its rundown condition has a present market value of $4,500 and a rental value of from $35 to $40 per month. On the basis of the general increase in market values over the years Mr. McRae was of the opinion the house was only worth $2,800 when it was purchased in 1956, but the lot was still worth $500 then as now.

It is my opinion that the chancellor’s decree is against the preponderance of the evidence, so I would reverse and remand for further proceedings.

Byrd, J., joins in this dissent.


author: Lyle Brown, Justice.

text:
    NATIONWIDE WAREHOUSE MARKET v. Charles WHISENANT
    5-5467
    460 S. W. 2d 90
    Opinion delivered December 7, 1970

      R. H. Buddy Hixson, for appellant.
    No brief for appellee.
   Lyle Brown, Justice.

Nationwide Warehouse Market appeals from an award to appellee, Charles Whisenant, that award having been fixed by the Workmen’s Compensation Commission and affirmed on appeal to the circuit court. Appellant here contends that there is no substantial evidence to establish an accidental injury arising out of and in the course of appellee’s employment.

Appellee testified that on May 8, 1968, while employed by appellant, appellee lifted a sack of cabbage weighing approximately fifty pounds; and that he felt a severe pain in his back which bent him double. He related that he reported the incident to the warehouse manager and left work around 11:00 a.m. to go to a doctor. He insisted that he had never previously experienced any back trouble. Appellee’s father and brother testified that they saw appellee on the afternoon of May 8 and observed that he had injured his back. The brother said he took appellee to the hospital at Russell-ville the night of the injury. In a few weeks appellee was referred to Dr. Knight, an orthopedic surgeon at Ft. Smith. Dr. Knight testified that he first saw appellee on June 5; that he received the history of a back injury from lifting a sack of cabbage; and that appellee was suffering from a back ailment usually precipitated by bending and lifting with the knees straight. The doctor said he had no reason to suspect an injury to appellee’s back prior to May 8. The medical conclusion was that “his subjective complaints were honest and real and he had some objective findings to substantiate them.” Hospitalized treatment was recommended, to be followed by an operation if the response to treatment was not favorable.

Appellee produced no eyewitnesses to corroborate the occurrence; he testified that he was working alone in a back room of the warehouse. There was testimony adduced by appellant to sustain its contentions (1) that appellee had said he injured himself while playing with his children; (2) that appellee attempted to influence some witnesses to testify in his behalf; and (3) that the incident was not reported to the appellant at the time of occurrence. On those conflicting issues it is apparent that the commission accepted appellee’s evidence and rejected the evidence which was in conflict therewith. What we said in Kivett v. Redmond Company, 234 Ark. 855, 355 S. W. 2d 172 (1962), is equally applicable here: “The question is ultimately a simple one of credibility, a matter lying within the exclusive province of the commission. . . . We are bound by the commission’s findings upon the disputed question of fact.”

Affirmed.