author: CabuetoN Harris, Chief Justice. John A. Fogleman, Justice,

text:
    ARKANSAS STATE BOARD OF PHARMACY v. S. W. PATRICK
    5-4350
    423 S. W. 2d 265
    Opinion delivered January 29, 1968

      Warren & Bullion, for appellant.

      Brotun, Compton & Prewett, for appellee.
   CabuetoN Harris, Chief Justice.

This appeal relates to the revocation of the license of S. W. Patrick to practice pharmacy in the state of Arkansas by the Arkansas State Board of Pharmacy. Patrick was charged with, and found guilty on, two counts of violating the pharmacy laws of Arkansas. After a hearing before the board, wherein evidence was taken, that body found that Patrick bad violated the pharmacy laws, and that such violations were sufficient to justify the revocation of his license to practice pharmacy in this state. An order of revocation was thereupon entered on February 16, 1966. Patrick appealed to the Union County Circuit Court. That court, upon review of the record made before the board, found that the decision was unsupported by material and substantial evidence, and reversed same. From this judgment of the Circuit Court, the State Board of Pharmacy brings this appeal.

Administrative procedures were complied with, and no objection has been raised by appellee as to any irregularity.

Ark. Stat. Ann. § 72-1040 (Supp. 1967) sets out the grounds for revocation of a pharmacist’s license, Item 8 of that section being the basis of the first charge against Mr. Patrick. That item provides for revocation or suspension when it is found “that said person has willfully violated any of the provisions of the pharmacy laws of the state of Arkansas. ’ ’ The law which it is contended was violated is found in Ark. Stat. Ann. 82-1115 as Subsection (k), this provision having been adapted from the Federal Food, Drug and Cosmetic Act, and containing essentially the same language (21 U.S.C. 353 [b] [1] [B]). In Dugan Drug Stores, Inc. v. United States, 326 F. 2d 835, it was held that the dispensing of a potentially harmful drug without authorization by a prescribing physician constitutes misbranding.

The facts relied upon by the board in entering its order are as follows:

Paul A. Bush, a special investigator for the board, had been given a package by Mr. Woodrow T. Little, Chief Inspector of the State Board of Pharmacy, the package (container) bearing a label, this label showing the name of Mrs. Nancy Henry, such name being fictitious.- The label indicated thát Dr. R. L. Turnbow, who had given permission for his name to be used, had prescribed for Mrs. Henry, though, of course, this had not happened. This procedure was part of a general investigation, and Rush testified that he was to contact every store in the area.

On December 29, 1964, Rush walked into the Medic Pharmacy in El Dorado, where appellee was pharmacist, and handed to Patrick the container, which bore a "Walgreen label, the label indicating that it had contained tablets of Enovid, which had been dispensed (as set out in the preceding paragraph) to Mrs. Nancy Henry on the basis of a prescription by Dr. Turnbow. Enovid E is a legend drug, meaning that it requires a prescription. Rush told Patrick that he had been sent by a lady to get it refilled; appellee accepted the container from Rush, and sold him another container, containing 20 Enovid tablets, Patrick affixing a Medic Drug Store label No. 185622, indicating that the tablets had been dispensed on a prescription by Turnbow to Mrs. Henry. Someone in the drug department then wrote a prescription for Mrs. Henry for 20 tablets of Enovid E, signed Dr. Turnbow’s name to it, and appellee signed his name as dispensing pharmacist in compliance with the regulation of the board which requires a pharmacist who fills a prescription to attest that he has personally filled the prescription.

Appellee testified that he did not recall the transaction desiribed by Rush, though the prescription did bear his signature.

He said that Dr. Turnbow was a specialist in Obstetrics and Gynecology:

“* * * The date on this is September 14th. He came in in December then it was within his time limit. I don’t remember whether I actually filled it and if I did I probably tried to call Dr. Turnbow. If I don’t try to call them then on these situations we call them later and get their OK because Turnbow and Rainwater are particular about their prescriptions. They want to check them. I probably tried to call Turnbow and didn’t get him. As far as this incident concerning the prescription, I don’t recall. * *1 think a druggist is entitled to use his professional judgment to know that a pill of this sort or drug of this sort has to be taken regularly it wouldn’t be like making the patient run down to the doctor and get a proper prescription when it is explained to you what type of drug it is. There was no doubt as to what it was and knowing Dr. Turnbow and knowing that he gives them for a year at a time I wouldn’t hesitate to fill it.”

On February 2, 1965, Rush again went to the Medic Pharmacy, taking with him the container which had been given him in December by Patrick. This was presented to Mrs. Hughes, employed in the store at that time. According to Rush, Mrs. Hughes filled the prescription, typed the name on the label, placed the label on the package, and handed it to him. Appellee was in the drug store at the time, but there was no consultation between Mrs. Hughes and Patrick, and Rush stated that, as far as he knew, the act by Mrs. Hughes was performed without knowledge of appellee. However, the prescription was signed by Patrick, and was offered as an exhibit in the case. The aforementioned facts constitute basically the evidence upon which the board acted.

The Circuit Court found that “the evidence does not sustain the board’s finding that Mr. Patrick dispensed 20 tablets of Enovid E without a proper prescription therefor.

“However, the evidence also shows that he did this as a result of a ‘trap’ set by the very board which acted as judge at his hearing. The evidence shows that an employee of the Board was given a packet containing one Enovid tablet (which the evidence shows is primarily a ‘birth control’ pill) with another drugstore’s label on it and with a prescription number and a doctor’s name on it. This employee then took this packet to Mr. Patrick and asked for a refill. Of course, no prescription had been given for the pills in the first place and this was simply a ‘trap’ or ‘test’ to see if Mr. Patrick would refill what he was led to believe was a genuine prescription. ’ ’

The court was somewhat critical of this procedure, but it is, under the circumstances of this case, completely legal, and the practice is frequently followed in enforcing the law. In Sorrells v. United States, 287 U. S. 435, in an opinion by Chief Justice Hughes, the United States Supreme Court said:

“It is well settled that the fact that officers or employees of the Government merely afford opportunities or facilities for the commission of the offense does not defeat the prosecution. Artifice and stratagem may be employed to catch those engaged in criminal enterprises. [Citing cases.] The appropriate object of this permitted activity, frequently essential to the enforcement of the law, is to reveal the criminal design; to expose the illicit traffic, the prohibited publication, the fraudulent use of the mails, the illegal conspiracy, or other offenses, and thus to disclose the would-be violators of the law.”

Of course, evidence as to violations of the liquor and narcotic laws is frequently obtained by officers who are “undercover” men, and who employ deception in presenting an opportunity for those who may be engaging in illegal traffic. In Sherman v. United States, 356 U. S. 369, the court said:

“However, the fact that government agents ‘merely afford opportunities or facilities for the commission of the offense does not’ constitute entrapment. Entrapment occurs only when the criminal conduct was the ‘product of the creative activity’ of law enforcement officials. ’ ’
In Dugan Drug Stores, Inc. v. United States, supra. the United States Court of Appeals, Fifth Circuit, pointed out:
“The record shows that the agents did no more than present an opportunity for the violation of the Act by the sale of a prescribed drug without the necessary refill authorization. ’ ’

Here, Patrick was simply presented the opportunity to violate the law without the necessary refill authorization. Mr. Rush used no persuasion; not in any manner did he induce Patrick to violate the law. There is no reason to believe that the same result would not have occurred if Rush had been a bona fide purchaser for a real Mrs. Nancy Henry, who had originally obtained her tablets, by prescription, from a Walgreen drug store. Under those circumstances, appellee, in selling the tablets, would have as surely been guilty of a violation of the law, as under the actual circumstances. It may well be that persons over the country, who have never obtained authorization (prescription) from a physician, acquire these tablets in just such a manner.

As to the second charge, it is contended that Patrick violated Item 5 of § 72-1040, which provides that grounds for revocation or suspension exist if the pharmacist “has directly or indirectly aided or abetted the practice of pharmacy by a person not authorized to practice pharmacy by the Arkansas State Board of Pharmacy. ’ ’ Relative to this charge, the trial court said:

“However, aside from that, it also does not appear from the evidence that Mr. Patrick did anything that could approach aiding and abetting this lady, Mrs. Hughes, to practice pharmacy. In fact, the evidence does not even show that she practiced pharmacy. It is true that in response to leading questions there is assent at times by a witness to counsel’s statement that Mrs. Hughes filled the prescription being inquired about but a close reading of the testimony convinces the Court that no witness really testified that he saw her do anything but put an already printed label on a container■ and it is the Court’s opinion that putting such a label on a container does not constitute the practice of pharmacy.”

We disagree with this finding. Let it be remembered that without appellee’s assistance in signing the prescription, Mrs. Hughes could not have sold the container and its contents to Rush, i. e., the drug could not be dispensed without a prescription, because, on inventory, the drugs dispensed must tally with the prescriptions on file. Mr. Patrick signed the prescription. In other words, appellee, though not the direct perpetrator of the prohibited act, yet rendered an act which aided the actual perpetrator. We think there is good reason for such a prohibition, and though nothing more is done than to place a label on a container, it is quite evident that some knowledge is necessary in order to place the proper label on the package. There are hundreds of drugs on the market at this time, and an erroneous set of directions could well result in the impairment of a customer’s health. It is true that there is a difference between the act performed by Mrs. Hughes, and the compounding or mixing of a preparation called for by a prescription. Nonetheless, we think the public welfare demands that the dispensing of drugs, including the giving of directions, be performed only by an authorized pharmacist.

While we are of the view that there was substantial evidence to support the findings of the board that Patrick had violated the law relating to the practice of pharmacy, we think the punishment administered was too severe. Act 103 of 1963 provides uniform administrative procedures for occupational and professional licensing boards and commissions, including Arkansas State Board of Pharmacy, and prescribes a uniform procedure for taking appeals. Section 19 of that act provides that the court may modify the decision of the board, inter alia, if it finds same to be “arbitrary or capricious. ’

We have concluded that the board, in fixing the punishment herein, acted arbitrarily in the sense that the judgment was extremely harsh, and unreasonable, under all of the facts. Though the evidence reflects that Patrick has been a practicing pharmacist for 28 years, the transcript does not reveal any blemish ‘(except the present charge) on his record. While he certainly did wrong in pursuing the course of action complained of, it may well be true that he had every intention of calling Turn-bow, but when other matters intervened, overlooked it. He apparently was familiar with the practice of that doctor in prescribing the particular type of tablet involved. At any rate, we think that, to permanently bar an individual from the profession that he studied and prepared himself for, and has practiced for many years, apparently in a law-abiding manner, requires proof that makes it clearly evident that that individual had embarked on a calculated course of willfully violating the law. That has not been established in this case. We think also that it must be recognized that there is a difference ’ in dispensing Enovid, and in dispensing barbiturates and narcotics. It is onr view that, under the evidence cited, Patrick should he suspended from practicing pharmacy for the period of one year. Certainly, this should he sufficient to impress upon the mind of this appellee, and others who may have been careless in dispensing drugs, that the laws relating to the practice of this profession must he observed.

Accordingly, it is the order of this court that the judgment of the Union County Circuit Court be, and hereby is, reversed, and the cause is remanded to that court with directions that it enter its judgment requiring the State Board of Pharmacy to enter an order in conformity with this opinion.

Fogleman, J., dissents in part.

John A. Fogleman, Justice,

dissenting. I concur in the opinion of the majority that, in view of the nature of the offense, the absence of any showing that the violations by appellee constituted a pattern of conduct and the apparent unblemished record of appellee, the punishment imposed by appellant seems unduly harsh and severe. It seems so much so, that I feel we are justified in saying that the penalty imposed shocks the conscience of the court, and, thus, constitutes arbitrary action on the part of the board. The Wisconsin court reached such a conclusion in reviewing the revocation of the licenses of real estate brokers by the Real Estate Board. Lewis Realty, Inc. v. Wisconsin Real Estate Brokers’ Board, 6 Wis. 2d 99, 94 N. W. 2d 238 (1959). The action there was taken under the Administrative Procedure Act of Wisconsin, Chapter 227, Title XVIII, Wisconsin Statutes (1963). The provisions of that act on the scope of the circuit court review and appeal to the supreme court are strikingly similar to the act applicable here. §§ 227.20 and 227.21, Wisconsin Statutes (1963). In that case, the court reversed and remanded one license revocation to the trial court with directions to remand the case to the board for proceedings to determine the length of time for which the license was to be suspended and approved a previous remand of another by the trial court. I feel that we should remand this cause to the circuit court with directions to remand to the board for reconsideration of the penalty to be imposed.

I humbly submit that the action of the majority in fixing the penalty has extended the power and jurisdiction of this court beyond the limits prescribed for review of actions of administrative agencies. I further submit that the boundaries set are particularly appropriate when the agency in question is charged with the responsibility of regulating a particular business, occupation or profession. The scope of our review is governed by Act 103 of 1963. Section 22 of that act provides that a party may appeal from the circuit court under rules applicable in other civil cases. This does not give us the power to hear the matter de novo■ upon the record, as is the case when appeals are taken from a circuit court review of the Arkansas Commerce Commission. See Fisher v. Branscum, 243 Ark. 516, 420 S. W. 2d 882. The statute governing those appeals, unlike Act 103, requires that we review all the evidence and make such findings of fact and law as we deem just, proper and equitable. Ark. Stat. Ann. § 73-134. In Arkansas State Board of Pharmacy v. Gibson Products Co., 239 Ark. 584, 390 S. W. 2d 628, the holding that we would review decisions of this board de novo was based upon a statute that required the circuit court to review the case de novo. Ark. Stat. Ann. § 72-1029 (B-epl. 1957). This part of that section was superseded by Act 103 of 1963, in which the scope of circuit court review is much more limited.

If we treat this matter as we would any other appeal in a civil case, it seems obvious to me that we would remand the case to the trial court, unless our decision only left one course of action to be taken, in which event we would render judgment here or direct a specific judgment. See Longer v. Carter, 102 Ark. 72, 143 S. W. 575 (on rehearing); Combs v. Bunn W. Robertson, Inc., 205 Ark. 20, 166 S. W. 2d 665.

I think it far more desirable that the State Board of Pharmacy decide on the penalty to he imposed in this case in the light of the conrt’s action in reversing. That board is composed of five experienced pharmacists. Ark. Stat. Ann. § 72-1002 (Repl. 1957). It is more likely to know the effectiveness of penalties than any court. It is my feeling that a one year suspension prescribed by this court is virtually a slap on the wrist for one who has falsely certified the issuance and filling of a prescription. It would be no more difficult to do the same if the “prescription” were for narcotics or any other drug. The record clearly shows that appellee has left the state and is plying his trade in Louisiana. I have been unable to find any Louisiana statute that even authorizes, much less requires, suspension there on reciprocity. We cannot assume that his suspension here will have any effect in that state, so appellee might possibly sit out this suspension there and later return to Arkansas without any interruption in his practice of pharmacy at all.

I would either remand the case to the circuit court for further proceedings under Act 103 of 1963, or with directions to remand to the board for appropriate action, preferably the latter.

      The container, in fact, still contained one Enovid tablet.

      Donald W. Steeks, Secretary of the Board of Pharmacy, testified that “a legend drug is controlled by the Food and Drug Act and bears the statement to be dispensed only on a physician’s prescription or a doctor’s or a dentist or a veterinarian.” Mr. Patrick himself agreed that it was a drug requiring a prescription.

      The board asserts that the prescription was written by Mrs. Sue Hughes, unlicensed to practice pharmacy, an employee of the drug store. This assumption is apparently based on the fact that Mr. Gene Porter, owner of the drug store, denied that he wrote the- prescription, appellee stated that he did not know who wrote it, and it subsequently developed that Mrs. Hughes had written a similar prescription, which will be hereafter discussed.

      The packages and labels in both instances were introduced into the record as exhibits.

      The “not” in the transcript has been scratched through in ink, and a question mark placed behind the word, and this finding of the judge is accordingly not clear. The abstract also includes the “not,” but the second sentence indicates that it has been stricken.

      Act 434 of the General Assembly of 1967, which deals with the same subject matter, expressly repeals Act 103 of 1963, and in the section entitled “Judicial Review of Adjudication” Subsection (h) provides that the court may modify the decision if it finds that same was “arbitrary, capricious, or characterized by abuse of discretion.” This indicates that the General Assembly considered that these terms have quite similar meaning. The present case, of course, was subject to the provisions of Act 103 of 1963.

      While this act was repealed by Act 434 of 1967, § 16 of that act provides that the repeal should not apply to pending proceedings.


source: Caselaw Access Project

author: Lyle Brown, Justice.

license: Public Domain

text:
    Jeri ANDERSON v. FIRST JACKSONVILLE BANK
    5-4402
    423 S. W. 2d 273
    Opinion delivered January 29, 1968

      Kenneth Coffelt, for appellant.

      Ben E. Rice, for appellee.
   Lyle Brown, Justice.

This is a replevin action brought by First Jacksonville Bank against Jeri Anderson. It is undisputed that appellant, Anderson, was in default under the mortgage held by the Bank, and possession of the mortgaged automobile was awarded ap-pellee Bank.

The facts were stipulated by the parties. The appellant executed a promissory note and chattel mortgage to the Bank to secure the purchase price of a 1966 Ford automobile. The certificate of title was never assigned to the appellee; that is, a notation evidencing an encumbrance or lien was never recorded on the title. Jeri Anderson defaulted on the note after making three payments. The sole question to be resolved is whether the Bank is entitled to sustain its action in replevin on the basis of the default and under the facts just recited.

The appeal is founded on two premises. First, appellant asserts that under the Commercial Code a chattel mortgage avails the mortgagee nothing. In support of this proposition we are cited to Ark. Stat. Ann. §§ 85-9-301-2-3-4 (Add. 1961). Appellant claims those provisions provide that a chattel mortgage holder against an automobile is not a lien creditor. The second premise is that Ark. Stat. Ann. § 75-160 (Supp. 1967) (Motor Vehicle Act) states that a valid lien giving right to possession must be noted on the certificate of title. She then points to the stipulation which concedes that the Bank’s interest is not noted on the certificate of title. Arguendo, appellant would conclude that the Bank is nothing more than an open account creditor.

We hold the lower court was correct in awarding possession of the automobile to the Bank. A chattel mortgage, as between the parties, is a secured transaction within the meaning of the code. Ark. Stat. Ann. § 85-9-102 (2) (Add. 1961). Lonoke Prod. Credit Assn. v. Bohannon, 238 Ark. 206, 379 S. W. 2d 17 (1963).

Sections 85-9-301-2-3-4 are not here applicable. Those sections concern priorities of perfected and un-perfected security interests as against third persons. This being a suit between the parties, Ark. Stat. Ann. §§ 85-9-201-2-3-4 (Add. 1961) control. Section 85-9-201 reads: “Except as otherwise provided by this act a security agreement is effective according to its terms between the parties. . .” See also Ward Industries Corp. v. Bizzy Bee Cleaners, Inc., 6 Adams County Legal Journal 191 (Pa. 1965). Section 85-9-203 provides that the only requirements for an enforcible security interest against a debtor are: (a) a written agreement; (h) the debtor’s signature; and (c) a description of the collateral. In the case before us all the requirements are met. So, according to Section 85-9-204, the security interest here attaches immediately because no explicit agreement postponed the time of attaching.

Since a valid security interest as between th.e parties exists under the U. C. C., the final point to be considered is the failure to comply with Ark. Stat. Aun. § 75-160. That statute requires that all liens and encumbrances be noted on the certificate of -title. A reading of the statute indicates that it does not apply as between the parties. “No '. . . chattel mortgage ... is valid as against the creditors of an owner or subsequent purchaser . . . until the requirements of this article (§§ 75-160, 75-161) have been complied, with.” In Benton County Motors v. Felder, 236 Ark. 356, 366 S. W. 2d 721 (1963), we held that the legislative purpose of the statute was for the benefit of bona fide purchasers.

Appellant argues that the unencumbered title remained in her possession and that the Bank’s security interest was unperfected. As earlier stated, it is not determinative as between the parties whether the interest is perfected, only that it has attached. As for the “retention of title” argument, the U. C. C. provides for integration of the Motor Vehicle Act into the Code, but they must be read together in order to result in consistency. A primary purpose in the adoption of the U. C. C. was a simplification of the earlier law. One of the more difficult problems resulted in the quest for the title holder. As a result, title is no longer a determining factor under the Code. “Each provision of this Article [chapter] with regard to rights, obligations and remedies applies whether title to collateral is in the secured party or the debtor.” Ark. 'Stat. Ann. § 85-9-202 (Add. 1967).

Since a valid security interest was created by the chattel mortgage and it attached, and nothing in the Motor Vehicle Act changes this as between the parties, the lower court was correct in awarding possession of the automobile to appellee.

Affirmed.


author: JohN A. FoglemaN, Justice.

text:
    B. E. MILLER v. William R. DYER
    5-4425
    423 S. W. 2d 275
    Opinion delivered January 29, 1968

      Henry & Boyett, for appellant.

      Troy Wiley, for appellee.
   JohN A. FoglemaN, Justice.

This appeal involves the question whether a lessee in possession of a motor vehicle is liable for damages thereto by reason of a collision not due to fault or carelessness on his part. The trial court rendered judgment in favor of the lessor in the sum of $650.00 for such damages.

Appellee leased a 1957 GrMC truck to appellant by written lease. The lease contains the following’ pertinent sentences:

“Lessee agrees to keep in full force and effect the liability, collision and comprehensive insurance which is now in effect, on said vehicles. Lessee agrees to take good care of the property above described, and to surrender the same at the expiration of the term of this lease in good condition.”

Both parties were engaged in the business of operating riding devices at out-of-doors shows over several states. The truck was returned to appellee at the termination of the lease in its damaged condition. He instituted this action to recover the difference between the value of the truck at the time of the lease and its value when returned.

Appellee had carried comprehensive insurance covering his trucks, but it was automatically terminated when the vehicles were parked for the off season, as this one was when the lease was executed. Appellee admits that there was no insurance on the truck at that time, unless appellant had taken it out. Appellee stated that he was sure that appellant had comprehensive insurance on the truck in force at the time of the collision and claimed to have seen the policy. He did not read the policy, however, and could only say that “it must have been the right kind of policy.”

The trial judge cut off further evidence along this line, stating that he construed the contract to mean that appellant was required by tbe terms of the contract to carry comprehensive insurance of the type appellee had carried in the past, and that the fact that the insurance was not effective during the time the vehicle was stored on the lot during the off season was immaterial.

The court’s ultimate findings were incorporated in its judgment and included the following:

“The defendant breached the terms of the written lease between the parties by his failure to return the 1957 Chevrolet tractor in a good condition and by his failure to carry collision and comprehensive insurance; the plaintiff has suffered damages in the amount of $650.00.”

Appellant relies on three points for reversal. They are:

“I. The court erred as a matter of law in construing the contract to require appellant unequivocably to carry collision and comprehensive insurance on the leased vehicle.

II. Defendant was a bailee for hire and only liable to the plaintiff if his negligence proximately caused the damage to the leased property.

III. Assuming ambiguity in the lease there is no substantial evidence to support the judgment of the court. ’ ’

We treat two of these grounds jointly, after which we will discuss the other.

I. and III.

We agree with appellant that the court’s construction of the contract is erroneous. The contract called on appellant to “keep in full force and effect the liability, collision and comprehensive insurance” which was then “in effect” [Emphasis ours.] We find no evidence that any collision insurance was ever carried on the vehicle. Appellant testified that neither he nor Dyer ever carried any collision insurance. This was the only testimony about collision insurance. Comprehensive insurance affords coverage of all property damage to motor vehicles, exclusive of collision losses. 5 Appleman, Insurance Law & Practice, § 3222, p. 375. This distinction is recognized in the lease contract by the specific reference to both collision and comprehensive insurance. This court has said many times that words in a contract must be given their obvious meaning. Ramsay v. Roberts, 240 Ark. 943, 403 S. W. 2d 57. It has also been said that where parties make a contract in clear and unambiguous language, it is the duty of the courts to construe it according to the plain meaning of the language employed. Roth v. Prewitt, 225 Ark. 466, 283 S. W. 2d 155. When we give the words in the contract their plain and obvious meaning, this clause only required appellant to carry such liability, collision and comprehensive insurance as was then in effect. Appellee argues that the clause is thus deprived of any meaning. The lease covered 18 trucks and 11 trailers, and we do not know what type of insurance covering the other vehicles was in effect at the time of the lease. Appellant testified, however, that fleet liability insurance protecting both parties was in effect at the time of the lease. Consequently, the clause would not necessarily be nullified by our construction. If we should say that these words required appellant to carry collision insurance, regardless of whether such insurance was in effect on the date the lease was executed, then we would necessarily read the words “which is now in effect” out of the contract. In view of the fact that there is no evidence that collision insurance was carried on this vehicle, the trial court was in error on this point.

II.

As a bailee of the truck, appellant was not an insurer, but was held only to ordinary care and diligence in the absence of any contractual liability. Bigger v. Acree, 87 Ark. 318, 112 S. W. 879; Bertig Bros. v. Norman, 101 Ark. 75, 141 S. W. 201; Turner v. Weitzel, 136 Ark. 503, 207 S. W. 39. The court found, however, that defendant breached the contract requirement that appellant surrender the truck at the expiration of the term of the lease in good condition. While appellee does not make any argument or cite any authority supporting the court’s judgment on this basis, we cannot reverse the trial court if its judgment is correct for any reason. Southern Farm Bureau Casualty Ins. Co. v. Reed, 231 Ark. 759, 332 S. W. 2d 615; Reamey v. Watt, 240 Ark. 893, 403 S. W. 2d 102.

There is no doubt that a bailee’s responsibility may be increased and his liability enlarged by the terms of the contract with the bailor. Scott-Mayer Comm. Co. v. Merchants’ Grocer Co., 147 Ark. 58, 226 S. W. 1060.

Nor can there be any doubt that the majority rule is that an express agreement by bailee to return the bailed property imposes no greater liability upon the bailee than is implied in every bailment. See 8 Am. Jur. 2d 1034, Bailments. § 139; Annot., 150 ALR 271 and cases cited therein. Yet, this court has held that one who hired a slave upon a written contract that, in addition to providing for payment for the slave’s service, required his return at the end of the year, was liable for failure to return him because of the slave’s escape without fault of the hirer. Alston v. Balls, 12 Ark. 664. In that case it was held that the words in the contract constituted an unqualified covenant to return the slave and that it was to be presumed that the parties would have made no covenant on the subject if there had not been an intention to bind the hirer beyond his mere legal liability. Alston v. Balls, supra.

Although there are holdings to the contrary, the great weight of authority supports the rule that an express obligation to return hailed property in good condition does not enlarge the common law liability of a bailee, in the absence of specific terms requiring the bailee to pay for the property in case of non-delivery or imposing some additional obligation relating to the care and maintenance of the property. See 8 Am. Jur. 2d 1034, Bailments, § 139; Annot., 150 ALB 278, et seq.; Perreault v. Circle Club, Inc., 326 Mass. 458, 95 N. E. 2d 204 (1950); First National City Bank v. Frederics-Helton Trav. Serv., 209 NYS 2d 704 (1961), 29 Misc. 2d 1041; Edward Hines Lumber Co. v. Purvine Logging Co., 240 Ore. 60, 399 P. 2d 893 (1965). Yet, we cannot consistently apply one rule to a clause simply stating a requirement for return of the property and another to a clause stating a requirement for its return in good condition. It is a general rule of construction of a contract that we must not regard any language therein as surplusage, unless the clear intention of the parties requires us to do so, if any reasonable purpose thereof can be gathered from the entire instrument. Fowler v. Unionaid Life Ins. Co., 180 Ark. 140, 20 S. W. 2d 611; Bailey v. Whorton, 207 Ark. 849, 183 S. W. 2d 52. A construction which entirely neutralizes one provision should not be adopted if the contract is susceptible of another which gives effect to all of its provisions. American Ins. Union v. Rowland, 177 Ark. 875, 8 S. W. 2d 452; Fowler v. Unionaid Life Ins. Co., supra.

If we did not apply the rationale of the opinion in the Alston case, we would have to treat the words in the lease requiring the surrender of the truck at the termination of the lease in good condition as surplusage. In so doing, we would disregard our own. well established rules governing construction of contracts set out in that ease and in others cited above. Being unwilling to do so, we hold that this clause in the contract created a liability on the part of appellant for failure to return the truck in good condition.

The judgment is affirmed.

      See 150 ALR 280, et seq.; Industron Corp. v. Waltham Door & Window Co., Inc. 346 Mass. 18, 190 N. E. 2d 211 (1963), as well as the Perreault ease later cited in this opinion.


author: J. Fred Jokes, Justice.

text:
    EVANS LABORATORIES, INC. and Elmer Pearson v. Russell C. ROBERTS, Circuit Judge
    5-4380
    423 S. W. 2d 271
    Opinion delivered January 29, 1968

      John B. Thurman, for petitioners.

      Jones & Stratton, for respondent.
   J. Fred Jokes, Justice.

The petitioners seek a writ of prohibition directed to the Faulkner County Circuit Court prohibiting the judge of that court from proceeding further in the trial of a law suit for lack of jurisdiction.

Sue Bradford, a resident of Van Burén County, Arkansas, filed a suit as plaintiff in the Faulkner County Circuit Court, alleging that the defendant, Elmer Pearson, is a resident of Faulkner County and is an employee and agent of the defendant, Evans Laboratories, Inc., an Arkansas corporation; that on or about October 6, 1966, the defendants sold to plaintiff’s employer, Climatic of Clinton, Inc., insect eradication service including the actual pesticide to be used in and about the plant where Sue Bradford worked in Clinton, Van Burén County, Arkansas.

The complaint alleges that the defendants sold the pesticide services, including the pesticide itself, for the purpose of eradicating pests and insects and there was an implied warranty in favor of Sue Bradford, as an employee of Climatic, that such pesticide was reasonably fit for the use for which it was intended and would not be harmful or injurious when used and sprayed in close proximity to human beings; that the pesticide was so used in the plant in Van Burén County and that plaintiff came in contact with the pesticide in the plant Avliere she worked, and because of having done so she became violently ill.

The complaint alleges that the defendants breached an implied warranty for the reason that such pesticide was not in fact fit for its intended use and purpose, and when it was put to its intended use, the plaintiff sustained personal injuries and damages as the direct and proximate result of the defendants’ breach of warranty. Summons was served on the defendant, Elmer Pearson, in Faulkner County and on the defendant, Evans Laboratories, Inc., in Pulaski County.-

The defendants appeared specially on a motion to quash the summons and dismiss the complaint for lack of jurisdiction in the Faulkner County Circuit Court for the reason that the defendant, Evans Laboratories, Inc., had no place of business, or agent for service, in Faulkner County, Arkansas, and for the reason that the plaintiff was a resident of Van Burén County, Arkansas, and the incident causing the damages complained of, occurred in that county. The trial court overruled the motion.

Petitioner contends that plaintiff’s action was for damages for personal injury and must be brought in Van Burén County where the accident causing the injury occurred and where the plaintiff resided at the time of the injury.

Respondent contends that the action is a suit on contract and may he brought in any county in which the defendant, or one of several defendants, resides, or is summoned. The respondent urges us in this case to decide once and for all, whether a suit for breach of warranty is a suit on contract or a suit in tort. Whether a suit for breach of warranty sounds in contract or in tort depends upon the nature of the suit, the nature and extent of the warranty, and the effect or results of the breach. Regardless of whether a suit for a breach of warranty is on contract or in tort, venue for an action is not controlled by such classification, hut is controlled by venue statute.

Ark. Stat. Ann. § 27-610 (Repl. 1962) provides as follows:

“All actions for damages for personal injury or death by wrongful act shall he brought in the county where the accident occurred which caused the injury or death or in the county where the person injured or killed resided at the time of injury, and provided further that in all such actions service of summons may be had upon any party to such action, in addition to other methods now provided by law, by service of summons upon any agent who is a regular employee of such party, and on duty at the time of such service.”

All other actions not provided for by specific statute are provided for by Ark. Stat. Ann. § 27-613 (Repl. 1962), as follows:

“Every other action may be brought in any county in which the defendant, or one of several defendants, resides, or is summoned.”

In the case at bar, the complaint alleged personal injuries in breach of contract, but the plaintiff brought her action for damages for personal injury by wrongful act in Faulkner County where she did not reside, and where the accident which caused her injury did not occur.

The venue for this action is in Van Burén County and the circuit court of Faulkner County is without jurisdiction.

Writ of prohibition is granted.


author: CoNley Byrd, Justice. CarletoN Harris, Chief Justice, JohN A. FoglemaN, Justice,

text:
    Carl WIDMER v. Otis S. TOLE et al
    5-4411
    424 S. W. 2d 886
    Opinion delivered January 29, 1968
    [Rehearing denied March 25, 1968]

      Carl Widmer, pro se.

      Franklin Wilder, for appellees.
   CoNley Byrd, Justice.

This appeal by Carl Widmer is from an order dismissing his complaint against Otis S. Tole, Burl T. Ruth and Lewis Kremers, a partnership doing business as Otis Tole Equipment Company, for failure to comply witli an order of the court to make more definite and certain. At issue is the question whether appellant had complied with the court’s order.

The complaint contained two counts. The first count set forth the purchase of certain used and new farm machinery from appellees and alleged damages of $11,-270 for breach of certain expressed and implied warranties in the performance of the machinery and the failure of appellees to deliver some of the equipment at the time agreed upon. The second count alleged appellees’ removal and conversion of the machinery, actual damages including the rental value, and punitive damages. The complaint was filed by appellant, acting as his own attorney, on November 2, 1965.

On November 17, 1965, appellees filed a Motion to Make More Definite and Certain. This motion, which takes up four pages in the record, detailed the information sought by appellees. It requested appellant, among other things, to state the exact date that each item of equipment broke down, the repairs that were necessary, the expense he incurred for each item repaired and the exact damage claimed for each piece of equipment repaired. One of the many items requested to be made more definite and certain was the question of how appellant arrived at the figure of $5,500 for punitive damages.

On February 2, 1966, appellant filed a Request for Admission of Facts containing fifty-three separate statements. These fifty-three statements attempted to tell of the dealings had by appellant with appellees involving the farm machinery from the date of first contact to the time appellees repossessed the machinery. In proper time appellees filed responses to the Request for Admission of Facts.

Under filing date of March 13, 1967, the court entered an order reciting that on March 8, 1967, the matter of the Motion to Make More Definite and Certain came on for hearing and giving appellant twenty days to comply with the request for information contained in appellees’ motion.

On March 24, 1967, appellant filed an additional Request for Admission of Facts containing seven separate statements about the damages he sustained. Appellees properly responded to this Request for Admission of Facts.

On March 28, 1967, appellant filed the following:

“Comes now the plaintiff in response to Court’s Order, filed March 13, 1967, to make more definite and states, that plaintiff incorporates and makes a part of this Response as if set out word for word: all facts set out in the 53 statements contained in Request for Admission of Facts, dated and filed February 2, 1966; all facts now in the exclusive possession of defendants, that come into possession of the plaintiff when defendants respond to Interrogatories to Defendants, dated and filed January 25, 1967; and all facts set out in the 7 statements contained in Request for Admission of Facts, dated and filed March 24, 1967. And that all essential and pertinent ¡ questions raised by defendants are answered by the facts set out above.”

Thereafter, pursuant to a motion filed by appellees on April 6, 1967, the Court on April 11, 1967, dismissed appellant’s complaint because of his failure to comply with the order of March 8 to make more definite and certain.

We hold that the response of March 28, 1967, which incorporated the many statements contained in the Requests for Admission already filed, was a sufficient compliance with the order to make more definite and certain. The information was not only necessary to comply with appellees’ motion, but the court’s order of March 8 is subject to the construction that an answer was required to each of the various requests made in appellees’ motion. Actually, the statements of fact contained in the Bequests for Admission of Facts had set forth in chronological order the dealings appellant had had with appellees and the manner in which he had arrived at his damages. He could not have made a more literal compliance with appellees’ motion had he copied into his response the identical information set forth in the Requests for Admission of Facts.

Appellees contend that appellant’s Motion to Vacate, filed more than fifteen days after the April 11, 1967 order dismissing the complaint hut within the thirty days allowed by Act 123 of 1963, is a motion for new trial and that consequently the appeal was not filed in time. We so held in the first opinion in Widmer v. Wood, dated September 18, 1967, but upon rehearing decided the issue contrary to appellees’ contention, heard Widmer v. Wood, 243 Ark. 457, upon its merits and entered a substitute opinion.

It is unfortunate for the trial court and the members of the bar representing the many litigants involved that appellant has elected to represent himself. Any lawyer or judge who has ever participated in a proceeding in which a litigant elects to represent himself is aware of the many problems that arise.- This case is no exception, for appellant is in a position to make an occupation of the lawsuit whereas the people who hire counsel are burdened with the extra expense caused by appellant’s liberal use of the discovery procedures. The trial court’s order, the motions contained in the record, and appellees’ brief all carry overtones of an abuse of the discovery privilege by appellant. While the issue has not been squarely presented here and we need not rule on the matter at this time, for the benefit of the trial court and the many litigants we point out that the discovery procedures also contain restrictions upon abuse “from annoyance, embarrassments, or oppression.” See Ann. 70 A.L.B. 2d 685.

Reversed and remanded.

Dissenting Opinion delivered March 25, 1968

CarletoN Harris, Chief Justice,

dissenting. After giving this matter a great deal of thought, I have come to the conclusion that this court made a mistake in reversing the above styled case on the grounds set out in the opinion, and a rehearing should be granted. I cannot help but feel that we were somewhat influenced by the fact that appellant was acting as his own lawyer, and because of this fact, “bent over backward” in considering his pleadings. In no prior case that I know of (and the opinion cites none) have we held that an order to make a complaint more definite and certain has been complied with when a defendant simply makes reference to his own requests for admissions, and I gravely doubt that any lawyer would ever have contemplated this procedure as adequate.

Probably a greater mistake was made in considering appellant’s “Motion to Vacate,” which was not a part of the transcript sent up, but was only a purported copy of the motion that had been made, being attached to the transcript with the affidavit of the appellant. I realize that the original motion had been removed from the file in the Circuit Clerk’s office on the order of the trial court, and we permitted the copy to be filed here with the record, but the proper remedy for appellant would have been an application for a writ of certiorari to bring up the missing pleading. The case could not have been reversed without considering this motion to vacate, since without it, the time for appeal had expired. Here again, I feel that we went out of our way to approve a questionable procedure because of the fact that appellant was acting in his own behalf, was not an attorney, and could have no knowledge of the proper method to correct, or supply defects in, a record.

I am not really as concerned about this case as I am the precedent that is being set, and I am taking this occasion to say that I shall not in future cases approve this haphazard (to me) method of compliance with either an order to make more definite and certain, or to supply defects in a record.

JohN A. FoglemaN, Justice,

dissenting. I join in that part of the dissent on rehearing by the Chief Justice with reference to the impropriety of the method of bringing up the motion to vacate but not in the portion with reference to the amendment to the complaint.


author:
Paul Ward, Justice.
      CoNley Byrd, Justice,

text:
    Sidney A. KEGELES et al v. Ernie J. AMBORT
    5-4553
    423 S. W. 2d 875
    Opinion delivered January 31, 1968

      Lester & Shults, for appellants.

      H. B. Stubblefield, William J. Smith, Ted G. Boswell and Edward L. Wright, for appellee.

      Under Act 468 of 1967 the Director of the Purchasing Division of the State Administration Department has assumed the duties of “The State Purchasing Director.”

   Paul Ward, Justice.

This appeal calls for a decision on the constitutionality of Act 441 of 1967 which created a State Printing Specifications Review Committee (hereafter referred to as Committee), which has the duty to review and classify state printing contracts, etc. The Committee, consisting of three members, is composed as follows:

I. The Purchasing Agent of one of the state supported institutions of higher learning.
2. The Purchasing Director of the State Health Department.
3. The State Purchasing Director.

On September 8,1967, Ernie J. Ambort (a taxpayer and appellee herein) filed a Complaint in Chancery against the Committee and others, alleging that the Secretary of State, pursuant to regulations promulgated by the Committee, is about to take bids on printing contracts in compliance with Act 441; that said Act is unconstitutional, and; that, if the contracts are awarded, plaintiff and other citizens and taxpayers will be irrevocably damaged. The prayer was that said Act be declared unconstitutional and void, and that the Secretary of State and the Commission be enjoined from proceeding further.

The Secretary of State answered that he neither admits nor denies the allegations in the complaint. The Committee, by answer, stated said Act 441 was a valid statute, and asked that the complaint be dismissed. The Attorney General, being permitted to intervene, also asked to have the complaint dismissed.

The matter being presented on a stipulation of facts, the trial court held Act 441 was unconstitutional and void, and enjoined further proceeding under same.

For reversal appellants rely upon one point, stated as follows:

“Act 441 is a valid enactment of our legislature which does not in any way violate Article 19, § 15 of the Arkansas Constitution.”

To clarify the pivotal issue here involved we first quote the portion of the Constitution referred to and abstract briefly Act 441.

Article 19, § 15 reads:
“15. Contracts for Stationery, printing and other supplies — Personal interest in contracts prohibited. —All stationery, printing, binding and distributing of the General Assembly and other departments of government, shall be furnished and the printing, binding and distributing of the laws, journals, department reports and all other printing and binding, and the repairing and furnishing the halls and rooms used for meetings of the General Assembly and its committees, shall be performed under contract to be given to the lowest responsible bidder, below such maximum price and under such regulations as shall be prescribed by law. No member or officer of any department of the government shall in any way be interested in such contracts, and all such contracts shall be subject to the approval of the Governor, Auditor and Treasurer.” (Emphasis ours.)

Act 441 of 1967, in substance and in parts deemed pertinent here, provides.

§ 1. The Secretary of State, with the advice of the Committee, shall prepare specifications of all state printing contracts, etc.
§ 2. Creates the Committee.
§ 3. Relates to when the Committee meets and payment of expenses.
§ 4. The Committee has the following powers: (a) study and review existing contracts contemplated by said Section 15 of Article 19; (b) To evaluate the requirements of various departments relative to costs and services; (c) To assist in developing necessary specifications, rules and regulations.
§ 5. (1) Similar to (c) above — and approve such specifications. (2) Classify and specify the duration of contracts — whether one or two years. (3) Study requirements of state agencies.
$ 6. Secretary of State to supervise the opening and tabulation of bids contemplated under Art. 19, § 15, and specify the time and manner of advertising for bids.
Relates to manner of opening bids.
§ 8. Similar to § 7, and requests contracts to be let to lowest responsible bidder.
§ 9. The Secretary of State, with the Auditor and Treasurer, shall determine sufficiency of bond given by bidder, etc.
§ 10. Secretary of State may investigate sufficiency of bidder to carry out contract.
§ 11. The Secretary of State, with approval of the Committee, has discretion to determine when a contractor is in default, etc.
§ 12. All contracts awarded shall be approved by the Governor, Auditor and Treasurer.
§ 13. Repeals all laws in conflict.
§ 14. If any provision is invalid it shall not affect other provisions.
§ 15. Emergency Clause. Since it is found: that state agencies spend thousands of dollars each year for printing and stationery; that most laws governing such contracts are obsolete, and; there is a need to establish a procedure io. review the contracts now bemg let and in order that new specifications and procedures may be established to promote efficiency and economy in the letting of such contracts, an emergency is declared. (Our Emph.)

A careful examination of that portion of the Constitution copied above and the provisions of Act 441, leads us- to the conclusion that there is nothing in Act 441 which conflicts with the Constitution. We feel it is unnecessary to further belabor this conclusion, because appellee has failed — after being challenged by appellants — to point out any specific conflict or any reasons for an. affirmance of the trial court except those hereafter examined.

One. It is contended by appellee that the case of Ellison v. Oliver, 147 Ark. 252, 227 S. W. 586, is in point and calls for an affirmance here. We do not agree.

In the Ellison case we construed Act 107 of 1889 which selected the Governor, Secretary of 'State, and Auditor as a Board to award the printing contracts, and held said Act 107 invalid because Art. 19, § 15 necessarily meant someone other them the Governor must let or award the contracts. This was based on the fact that the Constitution required the governor to approve the contracts, not to let them. That conflict of interest does not arise under Act 441.

Also, appellee likewise relies on Muncrief v. Hall, 225 Ark. 570, 262 S. W. 2d 92, but that case is distinguished from the case here under consideration on the same principle announced in the Ellison case. This is fully explained at page 575 of the Arkansas Reports.

Two. Attention has been called to certain language used in § 4 (a) of Act 441 which shows the Act is unconstitutional. It states that the Committee shall have the power and duty “To study and review all existing contracts ...” There is no merit in this contention. A casual reading of the Act, and especially the emergency clause, indicates clearly there was no intent of the legislature to change any existing contract but only to procure information helpful in negotiating contracts in the future. Also it is pointed out that if such language violates the Constitution it can be eliminated under § 14 of the Act, and would not render the rest of the Act inoperable.

It is therefore our opinion that Act 441 of 1967 is valid and not unconstitutional, and that the decree of the trial court must be, and is hereby, reversed.

Byrd, J., dissents.

CoNley Byrd, Justice,

dissenting. My disagreement goes to the majority opinion’s construction of Act 441 of 1967 and their undue emphasis on the use of the words “let” or “letting of contracts” as the same are used in Ellison v. Oliver, 147 Ark. 252, 227 S. W. 586 (1921). To understand the constitutional issue presented it is necessary to understand not only the provisions of Act 441 but also article 19, § 15 of the Arkansas Constitution as it has been interpreted by our decisions in Ellison v. Oliver, supra, and Muncrief v. Hall, Secretary of State, 222 Ark. 570, 262 S. W. 2d 92 (1953).

Act 441, § 1 provides:

“The Secretary of State with the advice and approval' of the State Printing Specifications Review Committee -shall prepare specifications for all State Printing Contracts to insure finished products of the quality required for the best use of the various departments ...” Section 2 provides that the “State Printing Specifications Review Committee” shall consist of three members as follows:

(1) One member shall be the Purchasing Agent of one of the State supported institutions of higher learning, to be named by the Commission on Coordination of Higher Educational Finance.
(2) The Purchasing Director of the State Health Department.
(3) The State Purchasing Director.

Section 2 further provides:

“The Committee shall choose one of its members as Chairman, provided that the Secretary of State, charged with the letting of State Printing Contracts, shall be the ex officio Secretary of the Committee and shall keep all records of its proceedings.”

Section 4 authorizes the “Committee” to regroup, reclassify, or divide existing contracts into new contracts and to develop the necessary specifications. Section 5 authorizes the “Committee” to determine which contracts shall be let biannually and which shall be let annually. In addition section 5 provides:

“The number of printing items to be included in each contract or the nature or amount of printing services, stationery, or other items, to be included in each such contract to be let by the Purchasing Official under the provisions of this Act shall be as determined and certified by the State Printing Specification Review Committee.”

According to my understanding of the provisions of Act 441, the State Purchasing Director is an appointee of the Governor — i. e., he is appointed by the Director of Administration by and with the consent of the Governor and serves at the pleasure of the Governor. He, together with the other two members of the “State Printing Specifications Review Committee,” does whatever negotiating is done in connection with State Printing Contracts — i. e., they determine the specifications for each item, the number of items to be grouped into each contract and whether the contract is for one year or two years.

Article 19, § 15 of our Constitution provides:
“Contracts for stationery, printing cmd other supplies — Personal interest in contracts prohibited. — All stationery, printing, paper, fuel, for the use of the General Assembly and other departments of government, shall be furnished and the printing, binding and distributing of the laws, journals, department reports and all other printing and binding, and the repairing and furnishing the halls and rooms used for the meetings of the General Assembly and its committees, shall be performed under contract to be given to the lowest responsible bidder, below such maximum price and under such regulations as shall be prescribed by law. No member or officer of any department of the government shall in any way be interested in such contracts, and all such contracts shall be subject to the approval of the Governor, Auditor and Treasurer.”

While construing Article 19, § 15 in Ellison v. Oliver, supra, as applied to an act which made the Governor, Auditor and Secretary of State ex officio commissioners to superintend the letting of all public contracts, we said:

“We believe that the language used by the framers of the Constitution contains an implied prohibition against giving these officers the power to let contracts for the public printing. The authority conferred is that all such contracts shall be subject to the approval of the Governor, Auditor and Treasurer. This necessarily implies that the letting of the contracts shall be performed by another officer or officers. All of us are of the opinion that the present statute, conferring the power upon the Governor, Auditor and Secretary of ¡State to let the contracts for the public,printing, is unconstitutional. A majority of the court is of that opinion, as above stated, because there is an implied prohibition against placing the Governor, Auditor or Treasurer upon a board to superintend the letting of the contracts which the Constitution requires shall be made subject to their approval. Thus successive steps are directed to be taken in the execution of such contracts, and nowhere does the Constitution provide that either of the steps required to be taken shall be conclusive. Each step is intended as a distinct and successive safeguard to protect the State against collusion and extortion. In this way the interest of the public is better safeguarded, and there is a double check against imposition and extravagance. ’ ’
* # #
“The framers of the Constitution, however, intended that contracts for the public printing should be let by another officer or officers, but that they should be subject to the approval of the Governor, Auditor and Treasurer. The word ‘approval’ means that the contracts should receive the official sanction of the officers named, and that this should be given separately. Because their approval is necessary under the Constitution, we must reach the conclusion that their action is designed to be a check upon the action of the board. Each of the officers named is fitted by reason of the duties of his office to pass judgment upon the action of the board. The contract when made can be passed from one to the other for his approval in order that he may give the public the benefit of his judgment and official sanction. It is in the nature of a veto power, and each of the officers can withhold his approval and thus veto the contract.”

Again in Muncrief v. Hall, Secretary of State, supra, we had involved Act 41 of 1953, which provided:

“All contracts negotiated under the provisions of Section 15 of Article 19 of the Constitution, shall be awarded by the Director, subject to the approval of the Governor, State Auditor and State Treasurer . . . .”
The Director therein referred to was the Director of the Department of Finance and Administration, who served at the pleasure of the Governor. In holding that section of the act unconsitutional we said at page 575: “Ellison v. Oliver clearly holds that the Governor cannot participate in the negotiation or letting of the contracts. His constitutional duty is to approve or reject the contracts after they are negotiated: he is not to negotiate.”
“III. ‘What One Cannot Do Himself, He Cannot Do Through Another.’ Ever since the early days of our Anglo American legal system, and continuously to the present, there has been the maxim: ‘What I cannot do myself, I cannot do through another.’ This maxim leads us to these inescapable conclusions in this litigation: (1) that no amount of judicial legerdemain can escape the fact that the Director of Finance and Administra-, tion acts at the direction of the Governor; and (2) since, under Ellison v. Oliver, the Governor could not serve in the negotiating or letting of the contracts, certainly the Director of Finance and Administration cannot serve in tiie negotiating and letting of the contracts. ’ ’

Does Act 441 permit the State Printing Specifications Review Committee to negotiate or let contracts contrary to our decisions in Ellison and Muncrief ? I say that it does. Since the “Committee” is authorized to control item specifications and the number of items to be grouped into each contract, the “Committee,” fby grouping a patented. item (such as a patented photo/ graphic paper sold through a franchised (dealer) together with other general printing supplies', can effectively select the lowest responsible bidder, because other suppliers, not being able to supply the patented or fran-phised item, “would be unable to comply with the contract specifications. It has been suggested that this is a matter addressed to the wisdom of the legislature rather than to its constitutional validity, but I only point out that it is. authorized and permitted by Act 441 and that the' “Committee” is thereby authorized by said act to negotiate or let a contract within the very strict construction placed by the majority upon the Ellison arid Muncrief cases.

It Is true that the conduct pointed out in the above paragraph can be checked through the approval separately required by the Governor, Auditor and Treasurer, as provided in Article 19, § 15 of the Constitution. However, this also existed in the Ellison and Muncrief cases and we there held that the Constitution contemplated distinct and successive steps in the negotiation and letting of printing contracts as a “ safeguard to protect the State against collusion and extortion.”

The distinct and successive step argument is as valid today as it was in 1921 or 1953. Therefore I would affirm the decree of the trial court holding Act 441 unconstitutional.


author: Carreton Harris, Chief Justice.

text:
    W. M. CREEKMORE v. Eunice GREGORY, Exc’x and Earnest Gregory
    5-4433
    423 S. W.2 d 548
    Opinion delivered February 5, 1968

      Harold G. Rains Jr., for appellant.

      Lonnie Batchelor, for appellees.
   Carreton Harris, Chief Justice.

W. H. Creekmore died testate in April, 1913, and his will was admitted to probate. Creekmore was survived by his widow, N. J. Creekmore, and four sons, W. M. Creekmore, John W. Creekmore, Fred G. Creekmore, and C. C. Creekmore. Included in the will were the following provisions:

“I give to my woman N. J. Creekmore the NW/4 of the SE/4 of Sec. 31, 11, 29 during her life, at her death to go to and be the property of W. M. Creekmore if he should die without any heirs then one of the other boys to take the land and pay the other 2/3 of its value. I don’t want it to go out of the family.”

N. J. Creekmore died many years ago (date not shown in record), and in 1937 John W. Creekmore, Fr.ed G. Creekmore and C. C. Creekmore, together with their wives, conveyed their interest in the land hy quitclaim deed to W. M. Creekmore.

W. M. Creekmore died testate on March 18, 1966, having been predeceased by C. 0. and Fred. John W. Creekmore, father of appellant, J. M. Creekmore, died approximately three weeks after W. M. Creekmore, and it is agreed that presently there are no closer relatives than nephews and nieces. In his will, W. M. Creekmore devised the above mentioned property to a nephew, Earnest Gregory; J. M. Creekmore contends that W. M. Creekmore was not the owner of the lands devised to Gregory, and accordingly had no right to include this devise in his will. The trial court disagreed, and the sole question on this appeal is the proper construction of the clause in the will of W. H. Creekmore, heretofore quoted.

The trial court ruled correctly. In Harrington v. Cooper, 126 Ark. 53, 189 S. W. 667, the court was called upon to construe the following provision of the testator, George Wood:

“I give to my beloved wife, Mary Jane Wood, during her natural life and to our daughter, Georgia Anna Wood, that portion of the tract of land on which we reside, lying north and east of Jacks Creek containing about five hundred acres, including the dwelling and gin house and other improvements as a joint support for my wife and at the death of my wife I desire and intend that my daughter, Georgia Anna Wood, shall take in her own right the entire interest should she survive her mother and shall my said daughter, Georgia Anna Wood, die childless then in that case the whole shall revert to my estate and be equally divided between my other children or their descendants of the same, the children of such as may he dead taking the interest that the parent would be entitled to if living.”

This court said:

“It seems clear that the defeasance relates to the. time of the death of the mother of appellants. That is the time fixed, for her remainder interest to take effect. The words ‘die childless’ mean without having had or without leaving a child. In this way and in no other can every clause of the will be harmonized and have force and effect. It is perfectly clear that the testator intended that his daughter, Georgia Anna, should take a fee simple when he used the words, ‘ shall take in her own right the entire interest, ’ and it is also clear that he intended the estate to vest when her mother died by using the words, ‘should she survive her mother.’ The last clause already quoted by using the words ‘die childless,’ etc., means that if Georgia Anna should die without haying a child or leaving a child before her mother’s death, that the whole shall revert to the testator’s estate and be equally divided among the testator’s other children. In short it meant that the remainder in fee should be vested in Georgia Anna at her mother’s death and in case Georgia Anna should die without leaving a child before her mother’s death the estate should revert to the testator’s estate and be divided among his other children. This is in application of a rule that where an estate is devised to one for life, with remainder to another, with the further provision that, if the remainderman should die without having a child, then to a third person, the words ‘die without having a child’ are restricted to the death of the remainderman before the termination of the particular, estate.’

When we apply that holding to the instant litigation, the words, “without any heirs” (instead of “die childless”), are restricted to the death of W. M. Creekmore, the remainderman, before the termination of the particular estate, i. e., the life estate of N. J. Creekmore. See Lewis v. Bowlin, 327 Ark. 947, 377 S. W. 2d 608, which explains the distinction between this rule and those cases that are governed by Ark. Stat. Ann. § 50-405 (1947).

Affirmed.

       It is apparent that this sentence should be interpreted as though a semi-colon appeared after the name, “W, M. Creekmore."

       There is no necessity to discuss the effect, if any, of the deeds.

       It is of interest to note the comment in Simes and Smith, The Law of Future Interests, § 540, pp. 629-31:
      “The disposition 'to A and his heirs, bnt if A die -without issue, then to B and his heirs’ has 'been, considered, and the two possible constructions have been indicated. Suppose, however, that a testator devises property ‘to X for life, remainder to A and his heirs, but if A die without issue (or children) remainder to B and his heirs.' Three constructions are now possible: First, that ‘die without issue’ means ‘die without issue before the death of the testator;’ second that ‘die without issue’ means ‘die without issue before the death of X, the life tenant;’ and third, that ‘die without issue’ means ‘die without issue at any time.’ The first two are fairly termed substitutional constructions; the third, obviously, is not. The Restatement, and the weight of authority adopt the second view where this situation is presented.
      “In a. jurisdiction which prefers the substitutional construction when there is no preceding life estate, it would seem likely that the same preference would be adopted in construing the limitation here under consideration. All of the reasons for preferring the substitutional construction are still applicable. The only question is whether the substitutional date is the death of the testator or the death of the life tenant. Some courts continue to apply the substitutional rule at the death of the testator. A greater number of courts, however, apply the substitutional rule at the death of the life tenant. The latter construction seems preferable, since it gives full weight to the preference for making interests absolute as early as possible and still reflects the normal wishes of a testator.”
      This jurisdiction, of course, follows the second view. Harrington v. Cooper, supra, is cited as an example of the substitutional rule at the death of the life tenant.


author: George Rose Smith, Justice. Conley Byrd, Justice,

text:
    Jerry G. PALMER v. Pam MYKLEBUST
    5-4438
    424 S. W. 2d 169
    Opinion delivered February 5, 1968
    [Rehearing denied March 11, 1968.]

      Garmcmay & Harrow, for appellant.

      Howell, Price & Worsham, for appellee.
   George Rose Smith, Justice.

This is a guest statute case. On the night of May 26, 1966, the appellee Pam Myklebust, age 21, the appellant Jerry G. Palmer, and another yonng couple were riding in North Little Rock in a car being driven, by Jerry. Pam was admittedly a guest. She was injured when Jerry turned sharply into a filling station and struck a vending machine with such force that Pam was thrown against the windshield, shattering the glass and cutting her face. In this action brought by Pam the jury awarded her $2,500. For reversal the appellant contends that there was no proof of willful misconduct on his part and that Pam assumed the risk of his hazardous driving.

The- court properly submitted to the jury the issue of willful misconduct. Jerry admitted that he had been drinking and had had about nine beers. Even though neither Pam nor Jerry testified that he was intoxicated, the jury were entitled to take into the jury box their common sense and experience in the ordinary affairs of life. Rogers v. Stillman, 233 Ark. 779, 268 S. W. 2d 614 (1954). They might fairly have concluded that the consumption of so much beer had affected Jerry’s ability to drive. One who drives while intoxicated may be found to be chargeable with willful and wanton misconduct. Bridges v. Stephens, 238 Ark. 801, 384 S. W. 2d 490 (1964).

Furthermore, Pam testified that Jerry seemed not to be familiar with the car, which belonged to the other young man’s grandmother, and that his driving so frightened her that she asked to be taken home. That request angered Jerry, who at once tried to turn back and comply with Pam’s request. In his attempt to make a U-turn Jerry drove into the filling station at an excessive speed and hit the vending machine without even attempting to apply his brakes. He later pleaded guilty to reckless driving, which involves a wanton disregard for the safety of others. Ark. Stat. Ann. § 75-1003 (Repl. 1957); Miller v. Blanton, 213 Ark. 246, 210 S. W. 2d 293, 3. A. L. R. 2d 203 (1948). On the whole, there was ample testimony to support a finding of willful misconduct.

We are similarly of the opinion that the issue of assumed risk was for the jury. Even though Jerry had been drinking, Pam testified that he didn’t appear to be under the influence of alcohol. When, however, it became apparent that he was driving very badly, Pam protested — asking first that she be permitted to take the wheel and later that she be taken home. Upon substantially the same testimony we held, when contributory negligence was a complete defense, that the passenger was not guilty of contributory negligence as a matter of law. Scott v. Shairrick, 225 Ark. 59, 279 S. W. 2d 39 (1955). We likewise hold in the case at bar that Pam did not, as a matter of law, assume the risk of Jerry’s hazardous driving. The verdict sets the issue at rest.

Affirmed.

Byrd, J., concurs.

Conley Byrd, Justice,

concurring. I concur , in the result reached here. I consider that a factual issue on willful and wanton negligence was made upon the showing that appellant made an enraged and erratic U-turn without slackening the speed of his automobile. I do not consider the amount of beer shown by the record to have been consumed to be sufficient in itself to submit to the jury the issue of willful and wanton negligence.


author: George Rose Smith, Justice.

text:
    Earnest BAILEY Jr. and Lawrence Davis v. Vickie Sue BRADFORD et al
    5-4446
    423 S. W. 2d 565
    Opinion delivered February 5, 1968

      Joe P. Melton and Charles A. Walls Jr., for appellants.

      Martin, Dodds & Kidd and Lowber Hendricks Jr., for appellees.
   George Rose Smith, Justice.

On a November afternoon in 1964, tbe plaintiff-appellees, Mr. and Mrs. Earnest Bradford and their seven-year-old daughter Vickie Sue, were passengers in a ear traveling north through the city of Cabot. While the car was waiting for a line of traffic to move forward it was struck from the rear by a truck owned by the appellant Bailey and being driven by his employee, the appellant Davis. There is no question about the appellants’ liability: Davis, 3ged 77, admitted that he did not even see the Bradford car before the collision. This appeal is from a verdict and judgment for $30,000 in favor of Vickie Sue.

The point that has given us the greatest concern is the appellants’ contention that the court erred in instructing the jury that they might consider whether Vickie Sue’s injuries were temporary or permanent and might consider any pain and suffering reasonably certain to be experienced by her in the future. AMI 2202 and 2205.

On the issue of permanency the testimony amply supports the giving of the instruction. Vickie Sue suffered a brain injury, evidenced by bleeding from her nose, mouth, and ears, and by a discharge of spinal fluid from both ears. She was at first in a very critical condition and did not regain consciousness for four or five days* Upon similar facts we held in Duckworth v. Stephens, 182 Ark. 161, 30 S. W. 2d 840 (1930), that the injury of itself indicated its permanency. Other facts confirming that conclusion will be mentioned in a moment.

The difficult question is that of future pain and suffering, because those elements of damage are to be submitted to the jury only if they are “reasonably certain” to be experienced in the future. AMI 2205; McCord v. Bailey, 195 Ark. 862, 114 S. W. 2d 840 (1938); St. Louis, I. M. & S. Ry. v. Bird, 106 Ark. 177, 153 S. W. 104 (1913). Here the medical testimony falls short of meeting that test of submissibility. Dr. Weber testified that there is a good possibility that the child had suffered permanent brain damage that might lead to epileptic seizures or convulsions in the future. A “good possibility,” however, does not meet the standard of reasonable certainty laid down in the Bird ease and other decisions to the same effect.

Nevertheless, there is testimony by lay witnesses that supports the trial court’s action in the matter. Vickie Sue’s mother testified that at the time of the trial, more than two years after the accident, Vickie Sue still had a fear of riding in an automobile, still had trouble with her speech, and still suffered headaches. The child’s father testified that Vickie Sue could not carry, on a conversation “without getting tangled up with her words and having to stop.”

We must conclude that the lay testimony, which the jury were at liberty to accept despite the absence of expert corroboration (Western Union Tel. Co. v. Byrd, 197 Ark. 152, 122 S. W. 2d 569 [1938]), made an issue for the jury. Even though headaches and speech difficulties are not equally as serious as other injuries from which Vickie Sue made what the doctors called a remarkable recovery, they are certainly not negligible elements of damage. To the contrary, the pain resulting from recurrent headaches has been recognized in scores of our opinions as a proper basis for compensatory damages. Decidedly similar to this ease is Arkansas Drilling Co. v. Cross, 179 Ark. 631, 17 S. W. 2d 889 (1929). Finally, if those consequences of the accident had continued for more than two years at the time of trial the jury could fairly conclude that they were reasonably certain to afflict Vickie Sue in the future.

The appellants ’ other contention is that the $30,000 award is excessive. We think not. It seems almost a miracle that Vickie 'Sue’s injuries were not fatal. As we have said, there was bleeding from her nose, mouth, and ears, and a drainage of spinal fluid from her ears. She was unconscious or nearly so for some thirteen or fourteen days, during which she did not regain her ability to talk. The use of her right hand was impaired for about three months. She had difficulty in remembering things at school for six months. At the time of the trial she still suffered speech difficulties, a “jumping” of her left eye, and headaches. She still faces the grim possibility of future epileptic seizures and convulsions. The size of the verdict is not so great as either to indicate passion and prejudice on the part of the jury or to shock the conscience of this court. In such circumstances it is our duty to uphold the award. Freeman v. Jones, 239 Ark. 1143, 396 S. W. 2d 931 (1965).

Affirmed.


author: Paul Ward, Justice.

text:
    THE AETNA CASUALTY & SURETY COMPANY v. Murl PILCHER et al
    5-4390
    424 S. W. 2d 181
    Opinion delivered February 5, 1968
    [Rehearing denied March 11, 1968.]

      W. A. Eldredge Jr., for appellant.

      Paul Rawlings and Fenton Stanley, for appellees.

      Thomas J. Bonner, Amicus Curiae, Arkansas Hospital Association.
   Paul Ward, Justice.

Very briefly stated, this litigation pertains to the question of liability for a germ infection incident to an operation on the leg of Gary Pilcher, a fourteen-year-old boy.

On September 20, 1962 Gary was admitted to St. Vincent Infirmary, and on the following day the operation was performed, necessitating an incision on his leg. He was discharged eight days later and returned to his home. About two months later Gary was admitted to a hospital in Malvern because of fever and a “reddened throat” where his condition was diagnosed as a Streptococcal Respiratory Infection, and was discharged on December 10,1962. Four days later Gary was examined in Little Rock by Dr. Christian, and no objective sign of infection in his leg was found. On January 25, 1963 Gary wa;s reexamined by Dr. Christian and for the first time it was discovered he had a bone infection.

It is stipulated that “St. Vincent Infirmary had in full force arid effect a policy of liability insurance with the Aetna Casualty & Surety Company”. St. Vincent is immune from liability but voluntarily carries insurance.

A complaint was filed by Gary (by his father as .Next Friend) and by his parents (appellees here) against Aetna (appellant here), containing, in substance, the material allegations set out below.

(a)- Gary has suffered injury as previously mentioned because of negligence on the part of St. Vincent’s employees in these ways:

1. They failed to keep those areas of the hospital where Gary was during and after the operation free of infecting organisms.
2. They failed to warn Gary of these organisms.
3. They failed to discover these organisms in the hospital
4. They failed to discover Gary had the infecting organisms.

(b) The acts of negligence set out above were the proximate cause of Gary’s infection and the resulting damage.

(c) As a result of the infection and Cary’s injury, his parents have incurred, and will incur, medical and hospital expenses and have been, and will be, deprived of his services — in the total sum of $15,000.

Appellant entered a general denial, and also moved .for a directed verdict when all evidence was introduced, which motion was denied. A jury trial resulted in a judgment of $18,000 for Cary and $2,000 for his parents.

On appeal appellant waives any reversible error that may have occurred during the trial, and seeks a reversal of the judgments and a dismissal of the complaint on the ground that there is no substantial evidence to support the jury verdicts.

The record in this case is voluminous, and the excellent briefs discuss at length several aspects of the case but, after careful consideration, we have concluded that there is only one pivotal issue. That issue is:

Is there substantial evidence to support a jury finding that Cary’s injury was the result of negligence on the part of the employees of St. Vincent Infirmary?

At the outset we should say that we consider it highly speculative as to when the germ entered Cary’s system. For example, from the proof offered, it is just as possible that he contracted the germ at Malvern two months after the operation as that the germ entered the body at th¿ time of the operation. However, for the purpose of this opinion only, it may be conceded that:

(a) At the time and in the process of the operation Cary was infected by a germ technically termed as '“Hemolytic Staphylococcus Aureus. Coagulase Negative, Penicillin 'Sensative.” (Hereafter we may refer to this germ as “staph .negative.”) There is also a similar germ often referred to in the record which may be referred to as “staph positive.”

(b) Both of these germs are prevalent in hospitals and were, and are very hard to control or eradicate in all hospitals. The record of control by St. Vincent is as good as the average in hospitals locally.and nationally.

(c) There is no direct or positive testimony that Gary’s infection by the germ was the result of negligence on the part of St. Vincent.

If, therefore, the jury verdict is to be affirmed we must find, based on the record hereafter examined, that the negligence of St. Vincent was the proximate cause of Gary’s infection. In this approach it may be conceded, for the purpose of this opinion, that the record reveals substantial evidence from which the jury could have found that St. Vincent was negligent in failing, in some respects not vital to the issue here, to provide better protection generally against germ infection.

Referring to appellees’ four allegations of negligence on the part of St. Vincent as being the proximate cause of Gary’s injury, we feel it sufficient to summarily dispose of the last three.

2. We cannot agree that St. Vincent’s failure to warn Gary of these organisms was the cause of his injury. If he had been warned it is not reasonable to suppose he would have refused the operation or that he could have done anything about it. Also, the doctor knew about them and if he did not use reasonable care to guard against them, then he and not St. Vincent was' negligent.

3. St. Vincent did discover the germs in the hospital and made efforts to guard against them.

4. It was not the duty of St. Vincent to discover Gary had received an infection germ as a result of the operation. Again, this was the duty of his doctor. Moreover, the undisputed testimony reveals that, the infection oannot be discovered until later when the result of the germ is manifested — in this instance it was not discovered for several weeks.

1. We now look, in more detail, at the contention of appellees that St. Vincent’s negligence in failing to keep the operation room and surgical instruments free from infecting germs was the proximate cause of G-ary’s injury. Set out below is a summary of the testimony relied on by appellees.

Dr. Orr. If you touch a contaminated piece of equipment the hands become contaminated, if the blade (or plate) inserted in the leg had this germ on them that could have caused the infection — they are sterilized by St. Vincent; frequently the infection comes from contact with hospital personnel. He concluded that the post-op infections were the result of a break in cleaning technique and had been corrected.
Dr. White testified that a chemical company claimed to have a disinfectant which will kill these germs; he thinks the infection here occurred during surgery because of germs on the plate, screws, or instruments, but is aware of other possibilities such as blood-borne organism.
Dr. Christian, who performed the operation, stated that “probably the infection, the germ was introduced probably at the time of surgery;” and that “if some instrument was unsterile it could have introduced it into the bone,” but that there were other ways it could have happened.
Dr. Burger stated that when a person was being operated on he was more likely to be infected, and that “we try to keep all infections to a minimum and we try to be a little more careful in surgery
Mr. Leslie, in charge of housekeeping for St. Vincent,* stated they tried to be more careful in combating the germs in the surgery area than in other areas of the hospital.
Dr. Lee corroborated the testimony of Dr. Burger and Mr. Leslie.

Notwithstanding the testimony above set out and conceding that St. Vincent might have done more than it did do to eradicate or contain the germ, we are unable to hold, in view of what we later point out, that a jury question has been made — as to proximate cause.

Dr. Burger testified that even a mask on the face of the operating doctor could not eliminate the bacteria danger. Dr. Christian, who performed the operation, testified that in spite of the finest surgical technique in the operating room and the hospital this germ cannot be eliminated; that this germ infection happens in approximately 5% of all operations; that it is impossible for medical science to guarantee against this infection; that it is impossible to keep bacteria out of the air; that it is possible Gary or any other person, including himself, could have brought this particular germ into the operating room.

In view of the undisputed testimony that this genu could have entered Gary in so many ways and from so many sources, and in view of the unchallenged difficulty in controlling' it, we must conclude that the jury verdict must have been based on speculation and not on substantial evidence. This conclusion is confirmed by the fact that there is no expert testimony showing St. Vincent was negligent. In many cases the courts have held, in a case of this kind, that expert testimony has great weight where there is no direct proof to the contrary.

In Durfee v. Dorr, 131 Ark. 369, 199 S. W. 376, we find this pertinent statement:

“We think this evidence was competent, as it related to a subject upon which the average juror would have no information or experience upon which he would be in position to formulate an intelligent conclusion unless Tie based his conclusion ■upon, the opinion of one qualified to speak as an expert.” (Emphasis added.)

In Gray v. McDermott, 188 Ark. 1, S. W. 2d 94, we said:

“(these) were questions requiring scientific knowledge to determine. It cannot and should not be left to a jury to speculate whether or not the experts in the practice of their profession have pursued the proper course of procedure.” (Emphasis added.)

In the case of Thompson v. Methodist Hospital, (Tenn.) 367 S. W. 2d 134, a similar issue was involved and the Court made this statement:

“As heretofore noted, the undisputed evidence is that these infections occur in and out of hospitals, and in the absence of negligence. If, under the evidence in this case the Methodist Hospital is to be held liable for the infection contracted by the Thompson baby and transmitted by him to his parents, then few hospitals could reasonably incur the financial risks of having born within its Avails a baby. ’ ’

It is therefore our conclusion that there is no substantial evidence here to support the jury verdict and the judgment based thereon. The judgment is reA’ersed and the cause of action is dismissed.

George Rose Smith and Jokes, JJ., dissent.


text:
    Ray DEAM et al v. O. L. PURYEAR & SONS, INC.
    5-4413
    423 S. W. 2d 554
    Opinion delivered February 5, 1968

      Odell C. Gorier and T. S. Lovett dr., for appellants.

      Marion C. Gill and Gannaway & Barrow, for ap-pellee.
   Lyle Brown, Justice.

The appellants here were plaintiffs below. Appellee was one of three defendants. The parties will be referred to as they appeared in the trial court. As the result of a fatal accident Ray Deam and others brought this suit against O. L. Puryear & Sons, Inc., and two individuals. Puryear successfully moved for summary judgment and plaintiffs appeal.

One of the defendants, V. I. Clark Sr., had heen engaged in the public hauling business in the Dumas-Grady-Dermott area for some fifteen years. He operated from two to three dump trucks and hauled sand and gravel. Another defendant, John Yanzandt, was operating one of Clark’s trucks at the time of the accident. The other defendant, O. L. Puryear & Sons, Inc., with headquarters at Dumas, was engaged in the construction business and was a substantial user of sand and gravel. Puryear frequently placed orders with Clark for the delivery of those materials to job sites. Clark’s truck, driven by Yanzandt, was involved in the fatal accident forming the basis of this suit. It is alleged that Yanzandt was then in the course of traveling to Pur-year’s job. site with a load of sand.

Plaintiffs’ theory of liability as against Puryear is based on the assertion that both Clark and Vanzandt were agents of Puryear and that they were acting within the scope of that agency at the time of the collision.

Puryear’s motion for summary judgment was supported by the discovery depositions of Clark and Yanzandt and by four affidavits. We summarize the pertinent assertions found in that evidence.

In his sand and gravel trucking business Clark had in operation three dump-bed trucks. Vanzandt was one of three employees regularly used in the business. Extra help was utilized at odd times. Clark hauled for anyone who needed his services in the trade area. He named some five substantial firms for which he hauled. “There isn’t many around there but what we haven’t hauled some for.” He charged by the cubic yard. He was not the exclusive hauler for any of the named firms, in-eluding Puryear, Inc. A person or firm needing ¡Clark’s services ordinarily called him, giving Mm the yardage of sand or gravel, and stating the point of delivery, usually a job site or a stockpile. Clark gave the information to Vanzandt. The driver would proceed to Pine Bluff Sand and Gravel Company to pick up the materials and they were there charged to the user. If the point of destination was a job site, Vanzandt proceeded there and dumped the load in a particular place shown him by the contractor. On occasions a building contractor would desire delivery of part of a load in one place and the balance at another location. Vanzandt conformed.

Vanzandt had been a regular employee of Clark for over two years. Vanzandt was directed exclusively by Clark as to all details of pickup and delivery excepting the information from the contractor as to the specific point of delivery on the job site. There is no evidence that any contractor supervised or directed the process of unloading.

Our summarization is taken from the depositions of Clark and Vanzandt, together with affidavits of four others, all introduced by Puryear in support of the motion for summary judgment. Plaintiffs responded with two affidavits; however, the content of those responses referred to the single contention that at the time of the accident the load of sand was destined for Puryear’s job site. There was evidence to the effect that the load was to be delivered to another party. We can place that contention at rest by assuming, for purposes of this opinion, that Vanzandt was on his way to defendant Pur-year’s job site at the time of the accident.

In considering a motion for summary judgment the trial court examines the pleadings, and any depositions, admissions, or affidavits, to determine if there is a genuine issue as to the material fact involved. Ark. Stat. Ann. § 29-211 (Repl. 1962). “. . .[T]he theory underlying a motion for summary judgment is the same as that underlying a motion for a directed verdict.” Hence the trial court views the evidence “in the light most favorable to the party resisting the motion, with all doubts and inferences being resolved against the moving party.” Russell v. City of Rogers, 236 Ark. 713, 368 S. W. 2d 89 (1963). The opposition to the motion cannot always successfully take his stand on the content of his pleading alone. If the movant makes a case for summary judgment the opponent must come from behind “the shielding cloak of formal allegations and demonstrate a genuine issue.” Mid-South Insurance Co. v. First National Bank of Fort Smith, 241 Ark. 935, 410 S. W. 2d 873 (1967).

The relationship between the tr'uck owner, Clark, and Puryear, Inc., the building, contractor, is so clear that it warrants little discussion. Clark was clearly an independent hauler of sand and gravel. He owned his own equipment and hauled for anyone desiring his services. He operated in the same manner as do hundreds of haulers in this State — local transfer companies, franchised independent haulers of numerous commodities both local and statewide. They all pick up commodities at the request of the owner and deliver those commodities to a location designated by the owner. They bill the owner according to a fixed tariff or by charges otherwise agreed upon. As does Clark, they serve the general public in their area.

In Fordyce Lumber Company v. Wardlaw, 206 Ark. 35, 176 S. W. 2d 241 (1943), we held that Fordyce was entitled to a directed verdict; that Wardlaw was an independent log hauler and not a servant of Fordyce Lumber Company. Wardlaw’s business relations with the lumber company were very similar to those existing between Clark and Puryear. Additionally, Puryear’s witnesses gave evidence to the effect that Clark was not in Puryear’s employment.

Finally, we conclude that reasonable minds would never reach the conclusion that a master-servant relationship 'existed between Puiyear, Inc., and Vanzandt The right to control the manner in which work is performed is vital in determining the relationship between the parties. Barr v. Matlock, 222 Ark. 260, 258 S. W. 2d 540 (1953). Vanzandt was in the general employment of Clark. It was Clark who hired and paid Vanzandt, furnished the hauling equipment, gave him instructions to pick up loads, gave him the delivery destination, and no person other than Clark could discharge him from that employment. The only contact between Vanzandt and Puryear, Inc., was at a job site when the contractor would point out the particular place or places to dump the sand. Vanzandt had not arrived at the job site when the collision occurred; he was enroute. To hold that a deliveryman whose general employer directs him to unload the material where the recipient desires it placed— to say that such placement, standing alone, creates a new employer-employee relationship — would toll the end to a service that is so essential to countless numbers of daily recipients of every type of commodity. We say countless because that would encompass deliveries to homes, businesses, and industries.

Affirmed.