text:
    Joseph A. FURROW Estate v. Julius H. JOLLY
    5-5119
    449 S. W. 2d 195
    Opinion delivered January 26, 1970

      Mann & McCulloch, for appellant.

      Harold Sharpe and Henry Wilkinson, for appellee.
   Lyle Brown, Justice.

Julius H. Jolly was awarded judgment for $9,500 in a personal injury suit against Joseph A. Furrow. The latter expired subsequent to the trial and his executor brought this appeal. The sole error asserted is excessiveness of the verdict.

For some five years appellee had been a route salesman for Independent Linen Company, servicing accounts in several cities in the Forrest City area. In January 1968 he was making a delivery to Tri-County Farmers Association in Brinkley. He had parked on TriCounty’s parking lot, opened the rear door of his panel truck, and was about to step up into the truck to obtain merchandise when Mr. Furrow’s car backed into appellee. The impact pinned appellee’s left leg between the back step of the truck and the bumper of the Furrow car. Appellee sustained a fracture of the larger bone and just above the ankle. Defendant below made no effort at the trial to establish any negligence on the part of plaintiff, Jolly. The evidence, summarized in the light most favorable to the jury award, is as follows:

1. Julius H. Jolly. He was twenty-eight years old and a high school graduate. At the time of the accident he was making $115 per week. He was hospitalized at Brinkley for fifteen days. It was five days before the swelling subsided; during that time a cast was applied to the back of the leg. Then a full cast was applied from the knee to the toes, that cast being worn for some twenty days. He was permitted to go to his home in Forrest City from the hospital at Brinkley and thereafter was treated by Dr. Collins in plaintiff’s home town for reasons of convenience. An orthopedic specialist, Dr. Mitchell of Memphis, examined the patient on three occasions in 1968. The total medical expenses were $789. For fifteen weeks he was wholly incapacitated, during which time his wages would have been $1,725.. Two months after the accident the knee-to-toe cast was replaced by a cast with a walking heel. After approximately one month that cast was removed and he was permitted to walk only with the aid of crutches. After three additional weeks he returned to work.

Jolly stated that the severe pain which he endured all during recuperation had subsided considerably but insisted at the time of trial, some fifteen months after the mishap, that it was routine for him to soak the foot in salt water after each day’s work to reduce soreness and swelling. He complained of some stiffness each morning which could be relieved only by limbering exercises. He also complained that he had had to restrict those playground activities which he formerly enjoyed with his children.

2. Dr. Morgan Collins, practicing physician in Forrest City. Appellee became his patient when the latter returned home from Brinkley. X-rays in March 1968 revealed a fracture of the distal tibia. The bone alignment was good and healing was normal. However, the calcium formation was insufficient to sustain normal weight-bearing. A walking heel was therefore fitted to the cast. One month later the cast was removed and the patient was advised to walk with crutches. Some fifteen weeks after the accident pain and swelling were present in the ankle and foot, not at the fracture site. The patient was advised he could return to work but to continue the use of crutches. As late as July 1968, appellee complained of continued swelling and pain, which were to be expected, because of calcium loss due to inactivity of the foot while in cast.

A final examination before the trial (fifteen months after the accident) revealed these findings: Patient continued to complain of some swelling and pain, particularly after a day’s work. The doctor found muscular atrophy of three-quarters of an inch at the calf of the left leg; patient did not have full flexion and extension of the left foot, lacking five degrees of normal; the abnormality in flexion and extension would be noticeable to appellee when he was in such positions as squatting and lifting to a high degree. Dr. Collins concluded that those three conditions resulted in ten percent permanent functional disability to the lower left leg. He could not predict when his patient could reasonably be expected to be free of intermittent pain.

3. Dr. B. G. Mitchell of Memphis examined appellee on three occasions. He found the muscular atrophy as described by Dr. Collins; he explained that the continued swelling.after a day’s work was normal; the calcium content of the bone appeared considerably depleted, from which pain was to be expected; and it was his opinion that the continued pain and stiffness indicated a more complicated post-traumatic atrophy than usually found in this type of injury. The doctor could not predict when the pain would completely subside, stating that injuries in weight bearing extremities could produce pain and discomfort over a period of several years. He agreed with Hr. Collins as to the percentage of functional disability.

The elements of damages submitted to the jury were the nature and duration of the injuries, medical expenses, loss of wages, and pain and suffering. When we consider those elements (all of which have been summarized) along with appellee’s substantial life expectancy and his vocation which required considerable physical activity, we cannot say the award evidences jury prejudice or that it shocks the conscience of the court. What we recently said in Hartford Acc. & Ind. Co. v. Warren, 246 Ark. 323, 438 S. W. 2d 31 (1969) is appropriate here:

We have no means for accurate measurement of pain and suffering. Nor do we have any means of determining the exact impact of a 10 percent disability upon the future earnings and earning capacity of one whose livelihood is earned through physical activities. In view of the evidences of pain exhibited by Warren, his hospitalization and his disability, we are unable to say that the judgment for $12,000 evidences passion or prejudice on the part of the jury or that it shocks the conscience of the court. Consequently, we cannot reverse the judgment on this basis.

Appellant compares the award in this case with the amount appellee would have received for the same injury under the provisions of our workmen’s compensation law and reasons that the verdict should, in light of the disparity, be reduced. The analogy is without merit. The concepts of tort recovery and compensation benefits are so distinctly different that they cannot be compared favorably. For example, the object of tort recovery for an injured person is to restore the claimant to what he has lost, including disfigurement, pain, and mental anguish; a compensation plan proposes principally to give the claimant a sum (in addition to medical) “which, added to his remaining earning ability, if any, will presumably enab1 e him to exist without being a burden to others.” Larson Workmen’s Comp. Y. 1, § 2.50. The same authority, in § 2.00, summarizes the basic differences thusly:

Workmen’s compensation is fundamentally different from strict tort liability in its basic test of liability — work connection rather than fault; in its underlying philosophy — social protection rather than righting a wrong; in the nature of the injuries compensated; in the elements of damages; in the defenses available; in the amount of compensation; in the ownership of the award; and in the significance of insurance.

Affirmed.


source: Caselaw Access Project

author: John A. Fogleman, Justice.

license: Public Domain

text:
    UNION LIFE INSURANCE COMPANY v. Mrs. Donald Lee DAVIS, Individually and as Adm’x
    5-5114
    449 S. W. 2d 192
    Opinion delivered January 26, 1970

      Moses, McClellan, Arnold, Owens & McDermott, for appellant.

      Macon, Moorhead & Green, for appellee.
   John A. Fogleman, Justice.

Appellant seeks reversal of a decree holding that appellee was entitled to specific performance of a certificate of credit life insurance under a master policy issued by appellant to The Peoples National Bank at Stuttgart. The insurance was taken to secure the payment of a note executed by appellee’s decedent to the bank on December 5, 1966. Application was made on December 7, 1966. Appellee, the wife of her decedent, went to the bank on the latter date to inquire about the availability of this insurance and obtained an application which she took to her husband, Donald L. Davis. Mr. Davis signed the application to •appellant and a certificate representing that on the date of issuance he was in “good and sound health.” Appellant defended appellee’s suit brought after the insured’s death on the ground that the certificate never became effective because the insured misrepresented the true condition of his health and that it issued the policy in reliance upon the truthfulness of his representation.

Davis died on February 25, 1967. The death certificate signed by Dr. W. Sexton Lewis reflected that death was caused by basilar artery thrombosis due to cerebral atherosclerosis, due to postoperative left carotid endarterectomy with patch graft angioplasty and arteriosclerotic heart disease. It also reflected that the heart disease first manifested itself in November, 1966. An autopsy report revealed that the decedent suffered from generalized arteriosclerosis, marked coronary atherosclerosis with occlusion, left anterior descending branch, old and recent myocardial infarction, cardiac hypertrophy and dilatation, and cerebral arteriosclerosis.

Davis was a patient of Dr. E. A. McCracken of Stuttgart beginning in 1964. Dr. McCracken and his associate Dr. Holten thought that Davis might have had heart trouble in August, 1966, because of pains in his chest. Dr. McCracken prescribed nitrate pills to dilate Davis’ blood vessels and improve circulation to his heart. This physician said he had administered nitroglycerin to Davis on one occasion. When the pain persisted until sometime in October, 1966, Dr. McCracken sent him to the Little Rock Diagnostic Clinic.

Davis was seen by Dr. W. Sexton Lewis in the Little Rock Diagnostic Clinic on November 1,1966. Dr. Lewis reported by letter dated November 3, 1966, to Dr. Mc-Cracken. It revealed the following: Davis told this doctor that about 10 years ago he began to have chest pains with exertion, but about six weeks before coming to the clinic had commenced having dull anterior chest pain and dyspnea after walking only 500 feet or after a big-meal. More recently there had been occasions when he was awakened by the pain, which lasted only five to ten minutes and disappeared when he got out of bed. Dr. Lewis indicated Davis ’ general health to be good, but reported the following- impression, among others:

Arteriosclerotic heart disease, negular sinus rhythm, compensated, angina pectoris; obesity, exogenous; hypertensive vascular disease, labile, not evaluated; atherosclerosis of left carotid, asymptomatic.

Dr. Lewis recommended a 50-pound weight reduction, nitroglycerin grains, continuation of hypertensive medication, a high protein, low carbohydrate, low fat diet, and a return for an office visit in six weeks. He stated that Davis had classical angina pectoris of increasing-severity, and that selective coronary arteriography might be considered for surgery if progressive disability occurred. He added that Davis should be observed closely for signs of left carotid insufficiency. Appellee testified that Dr. Lewis discussed his findings with Davis but said that he did not discuss heart trouble or surgery, but concentrated on the necessity for diet and weight loss.

Dr. McCracken said that Davis came by to see him when he came back from the clinic and that he must have discussed this report with him, hut that he had no recollection or record of the visit or discussion. He received another letter from Dr. Lewis dated December 14, 1966, in which a weight loss of 10 pounds was reported and essentially the same treatment prescribed.

On February 5, 1967, Davis noted a transient burning sensation around both eyes. The next day he experienced transient blindness in both eyes and slight dizziness lasting for several minutes. Until his admission to Arkansas Baptist Hospital on February 13, he experienced transient episodes of dizziness with blurred vision almost daily, and on several occasions noted numbness of his tongue and the fingers of his left hand. An endarterectomy and angioplasty on the left carotid artery were performed on February 16, 1967, nine days before his death.

The master policy provided that no certificate should be effective if the certificate holder was not in good and sound health on the date of issuance.

'The chancellor found that Davis had not misrepresented his condition of health, because he had no knowledge which would cause him to believe that he was not in good health. For reversal, appellant argues that Davis misrepresented his condition of health and that his false statement was material to, and increased, the risk. It also contends^ that it, in good faith, would not have issued the policy if the true facts had been made known to it as required by the application.

Arkansas Statutes Annotated § 66-3208 (Repl. 1966) provides that statements in applications for insurance are to be considered as representations and not warranties. It also provides that misrepresentations and incorrect statements shall not prevent recovery on a policy unless either: (a) fraudulent; or (b) material either to the acceptance of the risk, or to the hazard assumed by the insurer; or (c) the insurer in good faith would either not have issued a policy or contract in as large an amount or at the same premium rate, or would not have provided coverage with respect to the hazard resulting in the loss, if the true facts had been made known to the insurer, as required either by the application for the policy or contract or otherwise.

We have held that under this statute an insurance contract is tainted when a statement by an applicant which forms the basis for the issuance of the policy is untrue and material to the risk, regardless of whether it is actually fraudulent. Life & Casualty Co. v. Smith, 245 Ark. 934, 436 S. W. 2d 97. The question involved here then turns upon whether Donald Davis’ statement as .to the condition of his health can be considered to be an “incorrect statement” or an untrue one, and not upon a question of his fraudulent intent, of which there is little evidence.

We feel that there is a clear preponderance of the evidence to show that Davis made an incorrect statement as to the condition of his health which was obviously material to the acceptance of the risk and to the hazard assumed by the insurer. We have defined “good health” in an application for life insurance to mean the insured is in apparent good health and free from such diseases as would seriously affect the risk. Lincoln Reserve Life Ins. Co. v. Smith, 134 Ark. 245, 203 S. W. 698. See also Aetna Life Ins. Co. v. McAdoo, 115 F. 2d 369 (8th Cir. 1940). There is really no material difference in the terms “good health” and “sound health.” The term “good and sound health” does not imply physical perfection or freedom from temporary or trivial ailments. It has been held that in order to be in good or sound health, as the terms are here employed, one must enjoy such health as to justify the reasonable belief that he is not only free from derangement of organic functions but free from symptoms calculated to cause reasonable apprehension of such derangement. Liberty National Life Ins. Co. v. Hopkins, 106 Ga. App. 829, 128 S. E. 2d 339 (1962); Chambers v. Metropolitan Life Ins. Co., 235 Mo. App. 884, 138 S. W. 2d 29 (1940). In -some jurisdictions, it is said that if one is in good health it means in apparent good health and without ostensible, known or felt symptoms of disorder. See Sovereign Camp, W. O. W. v. Brown, 94 Okla. 277, 221 P. 1017 (1923). We take our definition of good health above recited to be subject to the qualification that, insofar as a statement by an insured in an application for insurance is concerned, one must be justified in the belief that he is free of symptoms which should cause reasonable apprehension of disease which would materially affect the risk.

While the diagnosis made by Dr. Lewis may not have been made known to Davis prior to his application for credit life insurance, the conclusion that his statement as to his health was incorrect seems to us to be inescapable. His persistent chest pains, the prescription of nitrates, his examination by Dr. Lewis, the prescription of a diet and a program of weight loss, are certainly inconsistent with apparent “good and sound health,” and constitute indications of an organic disorder. A diagnosis of arteriosclerotic heart disease, atherosclerosis of left carotid, and classical angina pectoris of increasing severity must certainly be considered to have shown that Davis was not free from such disease as would materially affect the hazard assumed by the insurer. We feel that the preponderance of the evidence shows that Davis made an incorrect statement as to his condition of health material to the hazard assumed which precludes recovery on the certificate.

We have held that materiality to the risk is a question of fact so long as the matter is debatable, but a question of law when so obvious that a contrary inference is not permissible. Old Republic Ins. Co. v. Alexander, 245 Ark. 1029, 436 S. W. 2d 829. The circumstances of this case are such that we do not feel that an inference that Davis’ condition was not material to the risk could properly be drawn.

The conclusion we have reached renders discussion of other arguments made by both parties unnecessary. The decree is reversed and the cause dismissed.

George Rose Smith, J., concurs.

      This might not be the case if issuance of a policy was based upon a physical examination by a physician selected or designated by the insurance company.


text:
    Robert Lee DEASON v. CITY OF ROGERS, Arkansas
    5-5125
    449 S. W. 2d 410
    Opinion delivered January 26, 1970
    [Rehearing denied February 23, 1970.]

      Davis Duty, for appellant.
    J. Wesley Sampler, for appellee.
   John A. Fogleman, Justice.

Appellant, a former member of the Rogers police department, appealed the judgment dismissing appellant’s complaint for recovery of “equalization pay” under Act 133 of the General Assembly of 1955 [Ark. Stat. Ann. §§ 19-1713’ and 1714 (Repl. 1968)] for 13 annual legal holidays which occurred each year during the period of his employment. The dismissal was entered upon the sustaining of appellee’s special demurrer. The court’s action was premised upon its conclusions that appellant could not sue the city upon a statutory liability, and that his action was precluded, in any event, by Amendment No. 10 to our Constitution. Incidentally, the circuit court construed §§ 19-1713 and 1714 to mean that appellant, and others similarly situated, ■ were to he given additional pay only for those holidays upon which they worked.

Appellant’s first point for reversal is an assertion that the act in question entitled policemen to additional pay for all legal holidays recognized by the state rather than just for those holidays on which they actually worked. We disagree with the circuit judge on this point. We take the language of the statute to be clear and unambiguous in the statement of a legislative intention that all policemen be paid additional compensation for all legal state holidays regardless of whether they actually worked on each of those holidays. The pertinent part reads:

“From and after the passage of this act all policemen shall be paid for the thirteen (13) Arkansas legal holidays as set forth in Section 69-101 and 69-104 of the Arkansas Statutes.”

This declaration was a statement of public policy by the legislative branch of our state government and a directive to the municipalities of our state.

Appellant’s second point is directed to the circuit judge’s holding that appellant is limited to remedies such as mandamus to city authorities, at least until the General Assembly implements the statute by granting the right to individual policemen to bring suits against the city. We agree with appellant that he is not so limited. Suits have been brought against municipalities on various contractual liabilities in numberless cases which have reached this court without the question of a city’s immunity from suit having been raised. The only immunity from suit that has actually been recognized in this state was in cases wherein tort liability was asserted. See discussion in opinions in Parish v. Pitts, 244 Ark. 1239, 429 S. W. 2d 45. Where a city is acting in a proprietary, rather than in a governmental capacity, there has never been any immunity from any liability. Arkansas Valley Compress & Warehouse Co. v. Morgan, 217 Ark. 161, 229 S. W. 2d 133; Collie v. City of Fort Smith, 73 Ark. 447, 84 S. W. 480. We held in Wayland v. Snapp, 232 Ark. 57, 334 S. W. 2d 633, that a city authorized to mortgage its property is subject to foreclosure on breach of the condition, overruling the contention that such an action woiild be in violation of Article 5, Section 20 of our Constitution making the state immune from suit. Suits against counties, the agencies of our state government most comparable to cities, are limited only by Act 16 of 1879. Prior to this enactment statutes provided for suits against counties in our circuit courts. See Nevada County v. Hicks, 48 Ark. 515, 3 S. W. 524. No statute governing claims against municipalities is in effect. Yet, we have gone no farther than to say that an action will not lie against a municipal corporation as an agent of the state for governmental purposes in the absence of a statute making it liable. Jones v. Sewer Imp. Hist. No. 3, 119 Ark. 166, 177 S. W. 888; Gregg v. Hatcher, 94 Ark. 54, 125 S. W. 1007. Arkansas Statutes Annotated § 19-2301 (Repl. 1968) provides that cities may sue and be sued. Since there is a statute fixing the liability asserted by appellant, and no statute providing any other procedure for the assertion of claims against a municipal corporation, we find no greater impediment to a suit against a city upon a statutory liability than to one upon a contractual liability. We hold that the fixing by statute of a specific liability of a municipal corporation which may sue and be sued is sufficient authorization for a suit to enforce that liability in the absence of any statute providing some other procedure for doing so. The existence of the statutory right implies the existence of an appropriate remedy. Sullivan v. Little Hunting Park, Inc., 396 U. S. 806, 90 S. Ct. 400, 24 L. Ed. 2d 386 (December 15, 1969). In Wayland v. Snapp, supra, we held that the mere legislative authorization to mortgage city property also authorized a suit against the city to foreclose. We clearly said that the General Assembly might authorize suits against municipalities.

Appellee asserts that the trial court correctly held that Amendment No. 10 is a bar to appellant’s action. This constitutional provision prohibits a city from entering into any contract or making any allowance in excess of the revenue for such city for the current fiscal year. It cannot be ascertained from the face of appellant’s complaint that the allowance of appellant’s claim would necessarily cause the revenues of appellee for any year or years to be exceeded. This is a matter which may be asserted as a defense and must be supported by evidence showing the revenues of the city for the year or years involved and the allowances properly chargeable against those revenues. The burden of showing that payment of an obligation would constitute a violation of this amendment is upon the party making that assertion if a question of fact is involved. See Chestnutt v. Yates, 177 Ark. 894, 9 S. W. 2d 37; Eureka Fire Hose Mfg. Co. v. City of Ozark, 203 Ark. 709, 158 S. W. 2d 679. There is no way that this court or the circuit court could possibly ascertain, on the record, what the revenues or expenditures of the city amounted to in the year or years involved, what disposition may have been made of any surplus in any such year, or what other claims against any surplus might be outstanding. These are all factual questions to be determined whenever it is ascertained into which year or years appellant’s claim falls. See Manhattan Rubber Mfg. Division v. Bird, 208 Ark. 167, 185 S. W. 2d 268, 159 A. L. R. 1257, and cases cited therein; also, Democrat Printing & Lithographing Co. v. Crawford County, 191 Ark. 409, 86 S. W. 2d 552, and cases cited therein.

The judgment is reversed and the cause remanded for further proceedings not inconsistent with this opinion.


author: J. Fred Jones, Justice.

text:
    Jack Ralph HESLEP et ux v. FORREST AND COTTON, INC. and GARVER AND GARVER, INC.
    5-5046
    449 S. W. 2d 181
    Opinion delivered January 26, 1970

      McMath, Leatherman, Woods & Youngdahl, for appellants.

      Wright, Lindsey & Jennings, for appellees.
   J. Fred Jones, Justice.

Jack R. Heslep was employed as an oiler, driver and hookup man on a mobile crane belonging to his employer, Paul N. Howard Co. A fellow employee, Eddy Faulkner, was the crane operator. As Heslep started to attach a steel cable line from the crane boom to a joint of sewer pipe under an electric power line, the crane line became energized from the overhead power line and Heslep was injured. He filed suit for personal injuries against Forrest and Cotton, Inc. and Garver and Garver, Inc., the consulting and resident engineers. A jury trial resulted in a verdict in favor of Heslep for $7,500. The trial court granted a motion by the engineers for judgment notwithstanding the verdict and Heslep has appealed. He relies on tlie following point for reversal:

“The trial court erred in directing a judgment for defendants notwithstanding the jury verdict.”

Heslep states that the sole issue in this case is whether or not there was substantial evidence from which the jury could find that the engineers owed a duty to require the contractor to provide safety devices on the mobile crane in question while it was being operated in close proximity to 13,000 volt power lines. We are of the opinion that there was no substantial evidence from which the jury could find that the engineers owed such duty under the facts and circumstances of this case.

Heslep’s employer, Paul N. Howard Co., had a general contract with the City of Little Rock to install a new underground sewer system. The system was to be installed according to plans and specifications prepared by the out of state engineering firm, Forrest and Cotton, Inc. The local firm, Garver and Garver, Inc., was employed as resident engineers to see that the plans and specifications were complied with as the work progressed. One section of the sewer system was constructed of joints of pipe five feet long and three feet in diameter which were lowered into a ditch and cemented into place under the center of North Street. The joints of sewer pipe were shipped in from out of state and delivered to the job site by truck. The pipe joints were inspected for cracks and flaws upon delivery at the job site, and all rejected joints were returned to the manufacturer as the trucks made return trips for additional pipe.

On the day of Heslep’s injury, a truck had delivered a load of pipe and was ready to leave on the return trip about noon. There were two rejected joints of pipe to be returned on the truck, and by the use of a front end loader they had been moved out of the way and placed together near the intersection of North and Ringo Streets. They were placed on the ground between the sidewalk and street curb, which was also about 30 feet beneath an electric power line strung on light poles also set between the sidewalk and curb. The truck on which the joints of pipe were to be returned was too high for the pipe to be placed on the truck by the front end loader, so the front end loader was used to move the rejected pipe joints from under the power line and out into the street where they could then be picked up by the mobile crane and lifted onto the truck.

The operator of the crane was Eddy Faulkner, who was also an employee of Paul N. Howard Co. It was his duty to actually operate the crane boom and it was Heslep’s duty to drive the crane from place to place and spot it as directed by Faulkner. Heslep would then fasten the cable from the crane boom to the object to be moved, and would release the cable from the object after it had been moved. It was also Heslep’s duty to keep the crane oiled and greased. On the day of Heslep’s injury he and Faulkner had been ordered by their foreman, R. L. Webb, to move the crane to the intersection of Ringo and North Streets and hoist the rejected joints of pipe onto the truck to be hauled away. The crane was moved into position for this purpose about 12:30. The crane was equipped with either a 50 foot boom, as testified by Webb, or a 70 foot boom, as testified by Faulkner, and the joints of pipe were lifted by means of a swing cable attached to the joints of pipe and also to the lift cable on the crane.

One joint of the rejected pipe had been moved from under the power line into the street by the front end loader when the operator of the front end loader went to lunch, leaving one rejected joint of pipe in the street to be hoisted onto the truck and leaving the other joint still under the power line and still to be removed by the front end loader. When Heslep and Faulkner arrived with the crane, they loaded the joint of pipe from the street onto the truck. The truck was ready to leave as soon as the other rejected joint of pipe was loaded, so Heslep and Faulkner did not wait for the operator of the front end loader to return from lunch and remove the additional joint of pipe from under the power line, but instead, after loading the first joint onto the truck, Heslep pulled or carried the swing cable, which was still attached to the lift cable on the crane boom, over to the remaining joint of reject pipe under the power line. As he was attempting to fasten the sling cable to the joint of pipe, the lift cable, or boom, came in contact with the overhead power line and Heslep was injured.

The contractual arrangements between the parties are lengthy and will not be set out here. Some of the provisions on which Mr. Heslep seems to rely, and as read into the record by Engineer Van Meter, are as follows:

“Paragraph SC. 15, entitled ‘Public Utilities and Other Property to be Changed. In case it is necessary to change or move the property of any owner or of a public utility, such property shall not be moved or interfered with until ordered to do so by the Engineer. The right is reserved to the owner of public utilities to enter upon the limits of the project for the purpose of making such changes or repairs of their property that may be made necessary by performance of this Contract.’
This is General Conditions, Paragraph 2.11, ‘Defects and Their Remedies. It is further agreed that if the work or any part thereof, or any material brought on the site of the work for use in the work or selected for the same, shall he deemed by the Engineer as unsuitable or not in conformity with the specifications, the Contractor shall, after receipt of written notice thereof from the Engineer, forthwith remove such material and rebuild or otherwise remedy such work so that it shall be in full accordance with this contract. ’
# # *
Paragraph 2.04, ‘Contractor’s Duty and Superintendence. The Contractor shall give personal attention to the faithful proscecution and completion of this contract and shall keep on the work, during its progress, a competent superintendent and any necessary assistants, all satisfactory to the Engineer. The superintendent shall represent the Contractor in his absence and all directions given to him shall he as binding as if given to the Contractor. Important directions shall be confirmed in writing to the Contractor. Other directions shall he so confirmed on written request in each case.’
# * *
‘Protection Against Accident to Employees and the Public. The Contractor shall take out and procure a policy or policies of workmen’s compensation insurance with an insurance company licensed to transact business in the State of Arkansas, which policy shall comply with the Workmen’s Compensation Law of the State of Arkansas. The Contractor shall at all times exercise reasonable precautions for the safety of employees and others on or near the work and shall comply with all applicable provisions of Federal, State, and Municipal safety laws and building and construction codes. All machinery and equipment and other physical hazards shall be guarded in accordance with the ‘Manual of Accident Prevention in Construction’ of the Associated General Contractors of America except where incompatible with Federal, State or Municipal laws or regulations. The Contractor shall provide such machinery guards, safe walkways, ladders, bridges, gangplanks and other safety devices as may be required by the Engineer as requisite to the prevention of accident. . ”

The appellant quotes Ark. Stat. Ann. § 81-1406 (Supp. 1967) as follows:

“The operation ... of any . . . machinery or equipment . . . capable of vertical, lateral, or swinging motion ... by or near overhead high voltage lines, shall be prohibited, if at any time during such operation ... it is possible to bring such equipment . . . within six feet (6 ft.) of such overhead voltage lines, except where such high voltage lines have been effectively guarded against danger from accidental contact, by either: (1) The erection of mechanical barriers to prevent physical contact with high voltage conductors; or (2) De-energizing the high voltage conductors and grounding where necessary. Only in the case of either of such exceptions may the six foot (6 ft.) clearance required be reduced ...”

The appellant then argues that there was a requirement under the conditions prevailing in this case that prior to the removal of the pipes in question the 13,000 volt power line under which they were located should have been de-energized; that the contractor’s Agreement with the Owner, which was prepared by the engineers, provided that in case it is necessary to change or move the property of any owner or of a public utility, such property shall not be moved or interfered with until ordered to do so by the engineer; that at no time did the engineers, Avith full knowledge of what Avas taking place direct that the 13,000 volt power line under which appellant Avas Avorking be de-energized. We are not impressed by this argument, and we are of the opinion that the trial court did not err in granting the motion for a judgment notwithstanding the verdict.

Heslep’s argument actually comes down to a contention that he was injured as a proximate result of the engineers’ negligence in permitting the use of the crane without requiring the prime contractor to insulate the boom and cable against the transmission of electricity from overhead electric wires and in failing to deenergize the electric wires in this case before permitting Heslep to attempt the removal of the pipe from under the power line. This contention is not sustained by the terms of the contracts nor by the facts in this case.

The evidence of what happened is clear in this case. Heslep’s employer used a mobile crane in lifting heavy objects out in the street. A front end loader was used to move heaA^y objects under, or out from under, overhead power lines. When Heslep was injured, he and his fellow employee Faulkner, simply undertook to take a joint of a sewer pipe from under a power line by using a crane rather than waiting for the front end loader.

The engineers’ rights and powers are not to be confused with their obligations and duties under their contracts. Without attempting to set out the rights, powers, obligations and duties the engineers do have under their contract, we shorten this opinion by simply holding that they do not have the right, poAver, obHgation or the duty to supervise Heslep or his fellow employees in the performance of their duties. If Heslep’s employer was in violation of any of the safety code provisions as to the nature or use of equipment, he should account to the proper authorities under the provisions of the code. The engineers who designed and specified the materials to be used in the construction of the sewer and who assumed the responsibility of seeing that the sewer conformed to the plans and specifications, were not charged with the duty of enforcing the code and were not charged with negligence as a matter of law in the employer’s failure to comply with the code.

Heslep argues that the engineers in the case at bar had the same degree of control over the sewer project as the architects had in Erhart v. Hummonds, 232 Ark. 133, 334 S. W. 2d 869. We do not agree. The two cases are distinguishable on the contractual relationship as well as the facts. In Erhart we said:

“The contract provides that the general contractor ‘shall erect such protection as may be required, or as directed by the architect, maintain same, and maintain any existing protections, all in accordance with the governing laws, rules, regulations and ordinances.’ And, further, the ‘contractor shall do all shoring necessary to maintain the banks of excavations, to prevent sloughing or caving, and to protect workmen.’ The contract further provides: The architect ‘shall have general supervision and direction of the work — . He has authority to stop the work whenever such stoppage may be necessary to insure the proper execution of the contract.’ It was a question for the jury as to whether the architect was negligent in failing to stop all work until the shoring on the east wall was made safe for the workmen.”

In Erhart an excavation for a building caved in and killed some people. The excavation walls were vertical, required shoring up, and this was improperly done. The architects were charged with the responsibility of seeing that this was properly done and were charged with the responsibility of stopping the work until it was properly done.

In the case at bar the engineers were not charged with the responsibility of supervising the safe removal of sewer pipe from under power lines. As a matter of fact the contract did not provide for the placing of sewer pipe under power transmission lines or for the removal of pipe from under transmission lines at all. Mr. Heslep attempts to distinguish the case at bar from Walker v. Wittenberg, 241 Ark. 525, 412 S. W. 2d 621, by stating that in the case at bar the engineers were vested with authority to stop the work in order to insure compliance with the provisions of the contract— again the answer is that the contracts did not provide for, or require, the placing or removal of objects under power lines.

The judgment is affirmed.


text:
    Orville M. FINE et al v. Joseph O. BUCHA et al
    5-5138
    449 S. W. 2d 406
    Opinion delivered January 26, 1970

      N. D. Edwards and Robinson & Booth, for appellants.

      Batchelor & Batchelor, for appellees.
   J. Fred Jones, Justice.

Orville M. Fine and Mr. and Mrs. Carle Robbins owned land in Crawford County, Arkansas, and they filed a petition in the Crawford County Chancery Court to quiet title, and to cancel certain tax deeds as clouds on their title, to some of the land. Fine and Robbins bring this appeal from that portion of the chancellor’s decree denying the relief they prayed against Watson and McTavish as to the Fractional EY¿ of Section 20, T 8 N of R 30 W, being that part of Section 20 lying north of the Arkansas River and containing 5 to 7 acres. The chancellor dismissed the complaint for want of equity as to this land and Fine and Robbins rely on the following points for reversal:

“The court erred in finding the appellants were not in possession of disputed land.
Appellants proved all elements of their case by a preponderance of the evidence and the court erred in refusing to quiet their title.”

From the record before us, upon trial de novo, we are unable to agree with the chancellor’s decree. By state deed dated May 10, 1939, James Renfroe acquired title to an island in the Arkansas River. The appeTants in their brief refer us to “ (Tr. 107-108)” for copy of this deed. The photocopy of the deed at page 107 of the transcript is totally illegible. From page 108 of the transcript, however, we are able to glean what appears to be a land description as follows:

“Beginning at the Quarter Section corner of Sections 16 and 17 in Township 8 North of the Base Line, in Range 30 West of the Fifth Principal Meridian in Arkansas, and running thence South 27 chains and 10 links to the Fractional Section corner between Section 16 and 17, on the Southeasterly point of said Island; thence South 50%° West 20 chains and 39 links to the Fractional Section corner between Sections 17 and 20, on the South side of said Island; thence South 70° West 25 chains and 75 links; thence West 5 chains; thence North 36%° West 10 chains and 75 links to the Fractional Section corner between Sections 17 & 20 on the West end of said Island; thence North 35 & %° East 24 chains and 80 links; thence North 45° East 28 chains and 28 links; thence North 30%° East 36 chains and 36 links to the North end of said Island; thence South 3° East 31 chains and 45 links to the Quarter Section corner between Sections 16 & 17 to the point of beginning containing One hundred Eighty-Four and 42/100 (184.42) acres, according to the survey thereof, field notes and plat of which are now on file in this office.”

Under this same description Renfroe deeded this island to Fine and Robbins on January 6, 1956, and the deed contained the additional phrase “also all accretions thereto.” It is under this deed that Fine and Robbins claim record title to that part of Section 20 lying north of the Arkansas River and containing 5 to 7 acres.

The plat referred to in both deeds is dated September 19, 1939, and was offered in evidence as defendant Watson’s exhibit “A.” It shows two very well defined river channels running northwest and southeast around Renfroe Island, with the south edge of the island extending slightly from Section 17, south into what appears to be, the NW% of the NE% and the NE% of the NW% of Section 20. Defendant Watson’s exhibit “B,” a Lavaca quadrangle topographic map, 1951 edition, shows the north shore of the Arkansas River extending slightly into what appears to he the NWki of the NE^.of Section 20, hut no island is indicated on this exhibit. The aerial photograph made in 1954 and offered in evidence as plaintiffs’ exhibit 35, does not show an island at all and shows nothing on its face as to how much, if any, of the disputed part of Section 20 is on the north side of the river.

The tax deeds to McTavish and Watson, which Fine and Robbins seek to set aside, were dated in 1959 and 1962 respectively. They were for 1952 and 1958 taxes and purported to convey 10 acres in “Pt N% NE14 Sec. 20,” and “Pt E% Sec. 20” respectively. McTavish and Watson prayed no affirmative relief, but only denied that Fine and Robbins were entitled to the relief they sought. It is quite true that in this suit to quiet title the petitioners must rely on the' strength of their own title and not on the weakness of their adversaries’ title. Corn v. Ark. Warehouse, 243 Ark. 130, 419 S. W. 2d 316. It is also true that a deraignment of perfect title is not necessary to sufficiently support title for the purpose of setting aside and cancelling void tax deeds. Davis v. Stonecipher, 218 Ark. 962, 239 S. W. 2d 756.

No one who testified in this case seemed to know where the land lines were. Mr. Fine only knew that he purchased Renfroe Island; that he cleared it up and had been farming all of it. It appears that what may have once been the south side of Renfroe Island is now a part of the north bank of the Arkansas River, and that Mr. Fine still farms all of what was originally Renfroe Island and that his farming operation may extend south to the Arkansas River.

Fine and Robbins did not have their land surveyed when they purchased it, nor did they have it surveyed in preparation for this lawsuit. They alleged that the appellees have void tax deeds which are clouds on their title. They proved their purchase and possession of Renfroe Island, and we conclude that they are entitled to have their .title under the description of their deed from Renfroe quieted as against McTavish and Watson; and that they are entitled to have the tax deeds to McTavish and Watson cancelled as clouds on their title insofar as the tax deeds may relate to any of the land purchased or possessed by them as part of what was originally Renfroe Island, .together with any accretions thereto as described in their deed from Renfroe. The chancellor’s decree is reversed and this cause remanded for further proceedings not inconsistent with this decision.

Reversed and remanded.


author: Conley Byrd, Associate Justice.

text:
    S & S NEWS AGENCY, INC. v. Jack FREEZE, Mayor et al
    5-5140
    449 S. W. 2d 404
    Opinion delivered January 26, 1970

      Harper, Young & Smith and Franklin Wilder, for appellant.

      Daily & Woods, for appellees.
   Conley Byrd, Associate Justice.

Appellant S & S News Agency, Inc., a wholesale magazine distributor and operator of one retail establishment known as the Point Newsstand, brought this action in equity to prevent appellees, Jack Freeze, Mayor; Clifford Y. Keheley, City Administrator; J. Sam Wood, City Attorney, and the City of Fort Smith, Arkansas, from prosecuting appellant’s agent under Ark. Stat. Ann. § 41-2704 (Repl. 1964), and from harassing or threatening appellant with further prosecution for the sale of the magazines involved in Gent v. Arkansas, 239 Ark. 474, 393 S. W. 2d 219 (1965), and Redup v. New York, 386 U.S. 767 18 L. ed. 2d 515, 87 S. Ct. 1414 (1967). Appellees filed a joint motion to dismiss upon the basis that the petition shows on its face that it is a proceeding to enjoin a criminal prosecution, in which case equity would be without jurisdiction because an adequate remedy exists at law. When the motion was first presented the trial court entered the following order:

“The Court concludes on July 3, 1969, that the motion should be treated as a demurrer and the Court is of the opinion that equity has no jurisdiction of the allegations of this complaint, that the complaint fails to state a cause of action upon which relief can be granted and that a complete and adequate remedy exists at law in the adjudication of any prosecutions that may be instituted in the law courts but in order to give full opportunity to plaintiff to sustain equity jurisdiction, the Court reserves its ruling upon such demurrer at this time and does grant to plaintiff a hearing on July 14, 1969, at which time plaintiff will be given an opportunity to present proof.”

After the hearing, the court entered the following order:

“And now on this July 14, 1969, the parties appearing . . . and the Court finds that plaintiff has failed to make a prima facie showing of ‘continual threats and studied harassment’ as alleged in the complaint and has failed to make a prima facie showing of irreparable injury and has failed to make a prima facie showing that the plaintiff has no adequate remedy at law and the Court is of the opinion that no jurisdiction exists in Chancery over the allegations of the complaint, that no grounds exist for transfer of this case to the law court because all constitutional questions sought to be raised can be litigated in any prosecutions, if any are commenced, and the Court finds that the demurrer should be sustained, and the complaint dismissed

For reversal appellant argues: that the burden was on defendants to sustain their motion; that the trial court had jurisdiction; that the defendants had violated appellant’s constitutional rights; that the trial court should declare the statute invalid; and that the question of obscenity was not involved.

Upon a trial held pursuant to the July 3rd order, it was shown that appellant was only interested in an injunction regarding subsequent issues of the magazines named in the United States Supreme Court mandate in Gent v. Arkansas, supra. The proof shows that two Fort Smith Police officers went to the Point Newsstand and purchased two magazines, neither of which is involved in this litigation. The officers took the two magazines to the prosecuting attorney and then to the municipal judge who issued a warrant for the sale of obscene literature. When the officers returned with the warrant to arrest the newsstand operator, appellant’s manager had arrived. At that time he voluntarily turned over to the officers copies of the magazines here involved so that they might take them to the prosecuting attorney for a determination of whether they violated the obscenity law. The proof shows that the newsstand operator was convicted in the municiapal court and that an appeal from that conviction is now pending in the Sebastian Circuit Court. Subsequent to the operator’s arrest and the ensuing publicity therefrom, other newsstands in the city told appellant to pick up the magazines that are here involved. Eventually appellant’s only retail outlet, the Point Newsstand, was forced to close down from lack of revenues from the sale of its magazines.

The rule consistently adhered to by this court is set forth in Rider v. Leatherman, 85 Ark. 230, 107 S. W. 996 (1908). We there held that equity will not entertain a contest over the validity of a statute nor restrain prosecutions pending the determination of the validity thereof where an adequate remedy at law exists. When we consider the complaint as amended to conform to the proof, Ark. Stat. Ann. § 27-116 (Repl. 1962), we agree with the trial court that equity had no jurisdiction to restrain the acts of which appellant complains.

While appellant loudly proclaims that its constitutional rights have been violated, the real gravaman of its complaint seems to be that neither the City Administrator nor the City Attorney will say whether appellant will be allowed to sell subsequent issues of the magazines involved in Gent v. Arkansas, without being-arrested under the obscenity law. We know of no law, and appellant has cited us none, which would permit a blanket injunction against a municipality with respect to all subsequent issues of the magazines involved irrespective of content or subject matter.

Affirmed.

Carretón Harris, Chief Justice, concurs.


author: Frank Holt, Justice.

text:
    AMERICAN UNDERWRITERS INSURANCE CO. v. W. G. SHOOK
    5-5115
    449 S. W. 2d 402
    Opinion delivered January 26, 1970

      Gordon, Gordon & Eddy, for appellant.

      Jones, Stratton & Jones, for appellee.
   Frank Holt, Justice.

The appellant issued to the appellee a policy of liability insurance coverage. Subsequently appellee was involved in an accident which resulted in a verdict and judgment against him. On appeal we affirmed. W. G. Shook et al v. Mrs. Jack Kellar et al, 241 Ark. 616, 408 S. W. 2d 880 (1966). Thereupon the appellant paid the judgment to the extent of the policy limits and refused to pay the amount in excess. The appellee paid said excess and brought this action against the appellant to recover that payment. The appellee alleged in his complaint that an offer of settlement within the policy limits was made to the appellant insurance company, that the appellee made a demand upon the appellent to accept the offer of settlement; that the appellant refused to accept the offer; and that upon proceeding to trial a verdict and judgment were rendered in an amount of $1,300 in excess of the policy limits which appellee had to pay. The appellee alleged “ [T]hat defendant assumed all liability incurred on the trial of said cause, No. 5501, when plaintiff made demand on the defendant within policy limits, • * * The trial court overruled appellant’s demurrer and when the appellant refused to plead further, a judgment was rendered for appellee against the appellant for the excess of the policy limits plus interest, statutory penalty and attorney’s fees.

On appeal appellant contends for reversal that the appellee’s complaint does not state a cause of action and the appellant’s demurrer should have been sustained and the complaint dismissed. We agree with appellant that the complaint was subject to a demurrer.

The appellant and appellee appear to be in agreement that- under our cases a liability insurer may be liable to its insured for the amount of a judgment in excess of policy limits if the insurer, in refusing to settle a claim within the policy limits, was guilty of negligence or acted in bad faith. Southern Farm Bureau Cas. Ins. Co. v. Parker, 232 Ark. 841, 341 S. W. 2d 36 (1960); Southern Farm Bureau Cas. Ins. Co. v. Hardin, 233 Ark. 1011, 351 S. W. 2d 153 (1961). See, also, 44 Am. Jur. 2d, Insurance, § 1530, Appleman, Insurance Law & Practice, Vol. 7 A, § 4711, et seq.

In appellee’s complaint there is no allegation that the refusal to settle within the policy limits was based upon bad faith or negligence. It is appellant’s theory that in order to state a cause of action in the case at bar the complaint must allege that the insurer either acted in bad faith or was negligent, or both, when the insurer rejected the proffered settlement within the policy limits Appellee, however, submits that although neither the words “negligence” nor “bad faith” appear in the complaint, the allegations of the offer of settlement within the policy limits and the rejection by the appellant, resulting in appellee having to pay the excess, were sufficient allegations of fact from which negligence or bad faith, or both, could be reasonably inferred.

Appellee relies upon the well established rule that in testing the sufficiency of a complaint against a demurrer all well pleaded allegations and all inferences which can be reasonably drawn therefrom are admitted to be true and that every reasonable intendment and presumption are made in favor of the complaint and the demurrer should be overruled if the facts stated, together with every reasonable inference, constitute a cause of action. In other words, pleadings are liberally construed and every reasonable inference and intendment are indulged in favor of the pleader. James v. Lloyd, 196 Ark. 568, 118 S. W. 2d 284 (1938); Central Supply Co. v. Wren, 198 Ark. 1090, 133 S. W. 2d 632 (1939); Dillinger v. Pickens, 200 Ark. 218, 138 S. W. 2d 388 (1940); Shopfner v. Clark, 246 Ark. 70, 436 S. W. 2d 475 (1969).

In the case at bar we are of the view that an allegation that the settlement was rejected through negligence or bad faith is essential to the cause of action. In Purtle v. Wilcox, 239 Ark. 988, 395 S. W. 2d 758 (1965), the appellant alleged in his complaint that the appellee had conspired with another to defraud the appellant. However, no specific acts or details of the conspiracy were set forth. The trial court sustained a demurrer to the complaint. On appeal we held that the allegation of fraud is a mere legal conclusion and insufficient to support the complaint against a demurrer. There we quoted with approval:

“The complaint must be so framed as to allege the wrong complained of with sufficient certainty to clearly apprise the court and the defendant of the nature of the claim asserted. Mere legal conclusions are fatally defective unless substantiated by sufficient allegations of ultimate fact; and every fact essential to the cause of action must be pleaded distinctly, definitely, and clearly.”

See, also, Wilburn v. Moon, 202 Ark. 899, 154 S. W. 2d 7 (1941); L. A. Green Seed Company of Arkansas v. Williams, 246 Ark. 463, 438 S. W. 2d 717 (1969); 41 Am. Jur., Pleading, § 212, p. 442.

In the case at bar appellee’s complaint, when liberally construed, was subject to appellant’s demurrer inasmuch as the complaint did not include the essential elements of negligence or bad faith. However, we do not agree with appellant that appellee’s cause of action should be dismissed on appeal. The appellee should have the opportunity to amend his pleadings to contain the essential allegations of bad faith and/or negligence. Otherwise, the demurrer will be sustained.

We do not reach appellant’s other point urged for reversal. The judgment is reversed and the cause remanded for proceedings not inconsistent with this opinion.

Reversed and remanded.


author: Carleton Harris, Chief Justice.

text:
    Alan D. JOHNSON and Louise M. LOYD v. The STATE of Arkansas

    5453
    449 S. W. 2d 954
    Opinion delivered February 2, 1970
    [Rehearing denied March 9, 1970]

      Irwin, Streett & Braden, for appellants.

      Joe Purcell, Attorney General; Don Langston, Asst. Atty. Gen., for appellee.

      P-1076 Ark. Adv. Sheets

   Carleton Harris, Chief Justice.

Appellants, Alan D. Johnson and Louise M. Loyd were charged and convicted of the crime of Robbery, it being alleged that they did by force rob the Pottsville office of the Peoples Bank and Trust Company of $7,000.00. The jury fixed the punishment of each at confinement in the state penitentiary for a period of 15 years. From the judgment so entered, appellants bring this appeal. For reversal, two points are asserted, first, that the court should have granted appellants’ motion for continuance, and second, that the court should have granted appellants’ motion for severance of the cases. We proceed to a discussion of each point.

The record reflects that the Information charging appellants with the crime was filed on June 26, 1969, and Ike Allen Laws, Jr., was appointed to represent appellants at arraignment. Subsequently, Laws moved that he be relieved from representing appellants for the reason that he was a stockholder in the Peoples Bank and Trust Company of Russellville, and further, that his father was a member of the Board of Directors. On July 12, the court entered its order relieving Laws, and appointed another attorney, Jim Young, to represent the defendants. Thereafter, according to appellants’ “statement of the case,” Young was relieved from the representation, and the present attorneys, Irwin, Streett and Braden were appointed on July 23. The case had already been set for trial for July 26 at 9:00 A.M. On July 24, Mr. Braden filed a motion for continuance, asserting that defense counsel had not been notified of the appointment until 7:00 P.M. on the night before; that Johnson was presently incarcerated at Cummings Prison, and counsel had had no opportunity to talk with him. The motion was denied. The court directed that Johnson be returned from the penitentiary, and he was returned to Pope County on July 25. On the next morning, attorneys for appellants made the following motion:

“The defendants would move for a continuance due to inadequate time in which to prepare a defense, that Alan D. Johnson’s first opportunity to speak to his attorney was approximately 4:00 o’clock Friday afternoon; and at this time we would also move the Court to sever the two actions and give the defendants a separate trial, because their interests are adverse to each other, and the same lawyers do not represent each of them.”

We do not agree with appellants’ first contention. Of course, a motion for continuance is addressed to the sound judicial discretion of the trial court, and a reversal of the trial court is only ordered where there is an arbitrary abuse of that discretion. The motion for continuance simply sets out that there has been an insufficient time allowed for preparation of the defense. The motion does not contain the names of any purported witnesses, let alone a statement or statements of what such witnesses would testify to, or where they resided. It will be recalled that appellants were charged with the crime, and arrested on June 26, and the trial did not occur until a month later. During this period of time, attorneys had been appointed to represent appellants, and the record reflects that Mr. Laws had already moved to protect the rights of Johnson. There is no showing that the previously appointed attorneys had been contacted to determine if an investigation had been made, or to ascertain the results of any such investigation. There being no allegation that would show a need for more time, we are unable to say that the court arbitrarily abused its discretion.

In discussing the second point, it is necessary that the evidence be reviewed. Harold Edward Williams testified that he was employed by the Peoples Bank and Trust Company of Russellville, and was working in the Pottsville branch on June 25, arriving at work about 8:30 A.M. He said that shortly after 1:00 P.M. the door opened, and a man, followed by a woman, came into the bank, and stopped in front of the teller’s window. The man said that they needed to see someone about a loan, and when asked as to the type loan, was told that money was needed to buy a farm. Williams explained that he was only working at Pottsville on a temporary basis, would not be able to make a loan of that type, and it would be necessary that they go to the bank at Bussellville, and contact one of the loan officers. The man asked for the names of persons to contact, and when Williams reached for a note pad, both the man and woman produced revolvers, and the man said, “This is it. Do you understand?” The robber pulled the hammer back on the revolver, handed Williams a blue and white striped pillow case, and told the banker to “fill this up.” While this was being done, the robber walked into the vault, looking for money. In placing the currency in the bag, Williams inserted $500.00 in marked bills, and having finished, turned to go into the vault. The woman cocked the hammer on her pistol, pointed it at him and said, “Hold it right there where you’re at.” The man returned from the vault, asked if there was an alarm system therein, and upon Williams’ replying in the negative, told the banker to go into the vault. The robber attempted to close the door without closing the fire doors, and Williams, in testifying, said that the door would not lock in such a manner. After waiting a few moments, and hearing a vehicle start up outside, Williams tried the door, could not get it open, but remembered there was an old church type bell above the vault with a rope that came down through the ceiling. A place in the cement ceiling had been chiseled out to take care of the wadded rope and a plain piece of paper had been attached to the ceiling, and painted so that it could not be distinguished from the ceiling itself. Williams pulled the paper loose and rang the bell some six or eight times until the bell turned upside down, and no longer would ring. Within a few minutes, Williams was discovered by a lady who operated the grocery store across from the bank. According to a subsequent audit, $7,214.25 was taken in the robbery. Appellants were apparently arrested within a short period of time, and were driven to the front of the bank. Williams went outside, saw the two persons in the car, and positively identified them as the robbers.

Billy Baker, Corporal with the Arkansas State Police, testified that, on June 25, he was on duty and received a communication about a pickup truck, and was told to watch out for it. He had also been advised that a bank robbery had occurred. Baker testified that he saw the truck at the west edge of Atkins, driving east on TI. S. Highway 6*4; that he was driving west, "but turned around and gave pursuit, finally stopping the truck after it had turned off onto Highway 105. The occupants of the vehicle, the appellants, were placed under arrest, and the officer made a search of the truck, and inter alia, found a large amount of money in a blue and white striped pillow case on the front seat. There was $6,694.00 in the sack.

Officer Andy McKay testified that he interviewed the two appellants and advised them of their constitutional rights; that Johnson indicated that he understood his rights and signed a waiver, and upon being asked if he had been involved in the commission of robbing the bank at Pottsville, answered, “You caught us with the goods. 'There is no sense in messing around, but before I give an answer I wish to talk to an attorney.” Subsequently, however, he gave a voluntary statement as to his participation, but the statement was interrupted for arraignment purposes, and after the arraignment, the attorney who had been appointed for appellants directed McKay not to talk with Johnson any further.

Joe W. Phillips, a special agent with the F. B. I., testified that he investigated the bank robbery, interviewed Johnson, advising the latter of his constitutional rights as set out on a printed form, which Johnson signed. The agent testified that each item was explained to Johnson; that he was asked if he understood these rights, and he answered affirmatively. Appellant then made a statement. In testifying before the jury, McKay stated that Johnson said, “You caught me with the goods,” instead of “us.”

As to Mrs. Loyd, McKay stated:

“She denied knowledge of the bank robbery, didn’t wish to make a statement, made several verbal comments she was nowhere around; and she stated it was true she and this fellow had come up to this area. She had got with a gentleman from Dardanelle, Arkansas; that they had anticipated going fishing; they got to drinking; and I believe her description was ‘he got a little too hairy’ for her in their consumption of alcohol, and she decided to hitchhike home; and it was just shortly before Trooper Baker had stopped them that Mr. Johnson had picked her up hitchhiking; and she knew nothing of the bank situation.”

Neither appellant testified:

The question of whether a severance should or should not be granted in felony trials less than capital is governed by the same rule that controlled appellants’ first point, i. e., the trial court will not be reversed unless there has been an abuse of discretion. Finley v. State, 233 Ark. 232, 343 S. W. 2d 787. We find no abuse of discretion under the facts of this case. It will be noted that the statement made by Johnson to the jury did not in any manner implicate appellant Loyd. Appellant Loyd’s statement to McKay was a denial of any participation in the crime; accordingly, there were no cross-implicating confessions as in Mosby and Williamson v. State, 246 Ark. 963, 440 S. W. 2d 230. This appellant obviously was primarily convicted upon the testimony of the banker, whose evidence definitely connected her as a principal. Mrs. Loyd, had she seen fit, could have maintained her position on the witness stand without fear of contradiction from Johnson, since the court had already excluded any reference to her participation.

We find no prejudice to either appellant, because of the court’s refusal to grant a severance.

Affirmed.

      The content of this last sentence does not appear in the record.

      It appears that the “do not” is a typographical error, as the record does not reflect that appellants were represented by separate counsel. Also, counsel, in arguing the point at Page 10 of appellants’ brief, state:

        “In the case at bar, appellants in addition to being antagonistic towards each other, and having testimony if offered that would conflict with the others were both represented by the same appointed counsel. The fact that the same counsel represented both appellants prevented any showing of the hostility. The only alternative was for both to decline to take the stand. This presented a situation where the appellants when tried together were effectively deprived of representation by counsel.”

      Lieutenant Andy Mc'Kay testified that Johnson was arraigned, and the court appointed an attorney, “and before he was returned from the courtroom we were instructed not to ask him any more questions by his court appointed attorney.”

      Testimony at the trial revealed that the marked bills were included.

      The statement was as follows: “I, Alan Douglas Johnson, make the following free and voluntary statement to Joe W. Phillips, who has identified himself as a special agent of the FBI and who has explained to me each of my rights as named in the above form, which I have signed.
      “Shortly after 1:00 P.M., on Wednesday, June 25, 1969, I robbed the bank in Pottsville, Arkansas. While I cased that bank on the morning of June 25, 1969, prior to the robbery, I realized it was a branch bank of the Peoples Bank and Trust Company of Russellville, Arkansas. After I robbed the bank, I tried to lock the teller in the bank vault. I locked the vault door partially, but I did not get it locked all the way. I actually planned the robbery Tuesday night 6/24/69 before I robbed the bank on 6/25/69.
      “I arrived in Pottsville, Arkansas, on the morning of ,6/25/69 and drove by the bank a couple of times and cased it before robbing it that afternoon.”

       Of course, had the cases been severed, and either appellant had been willing to testify against the other, there was nothing to prevent the Prosecuting Attorney from using that testimony.