author: J. SeabobN Holt, Associate Justice.

text:
    Vogler v. O’Neal.
    5-1078
    295 S. W. 2d 629
    Opinion delivered November 26, 1956.

      Barber, Henry & Thurman, for appellant.

      Talley & Owen and Dale, Price, for appellee.
   J. SeabobN Holt, Associate Justice.

Appellee, Earl O’Neal, brought this action against Ted Yogler, appellant, to recover compensatory and also punitive damages alleged to have resulted from the collision of an automobile driven by Vogler and one driven by O’Neal, on March 4, 1955. Specific acts of negligence on the part of Yogler were alleged in the complaint and in addition it was alleged that such acts were willful, wanton and malicious and entitled O’Neal also to punitive or exemplary damages. Appellee sought $50,000 as compensatory damages and $10,000 as punitive damages.

At the trial appellant (Yogler) admitted liability for compensatory damages and denied any liability for punitive damages. The jury returned a verdict for O’Neal for $10,739.45 compensatory damages and $12,-000 as punitive damages. Thereafter the court, on its own motion, reduced the $12,000 verdict to $10,000 to conform to the prayer of appellee’s complaint and judgment was rendered accordingly. This appeal followed.

Appellant for reversal relied upon the following points: “I. The lower court erred in giving plaintiff’s instructions Numbered 1 and 3. II. The lower court erred in permitting witnesses Brown, Laird and Singleton to testify as to statements made to them by Vogler, and as to Vogler’s physical condition hours subsequent to the time of the accident. III. The verdict as to compensatory damages is excessive and the result of passion and prejudice. IV. The verdict as to punitive damages is excessive and was the result of passion and prejudice.”

We consider them in the order presented.

I

Instruction No. 1 provided: “You are instructed that the parties, both the plaintiff and the defendant, have agreed that Earl O’Neal is entitled to recover actual damages suffered by him from the defendant, Ted Vogler. You will find for Earl O’Neal in such sum as you find from a preponderance of the evidence, will reasonably compensate him for the injuries he sustained, if any; the pain and suffering he has suffered to date, if any, the pain and suffering he will suffer in the future, if any, the medical expenses he has incurred to date, if any, the medical expenses he will incur in the future, if any; permanent partial disability which he has suffered, if any. Upon these elements of damages, you will fix such sum as in your judgment you find from a preponderance of the evidence will reasonably compensate him for the injuries and damages he sustained, if any.”

Appellant objected specifically, at the trial, to that part of the above instruction “which submits to the jury the recovery by plaintiff of future medical expense and future pain and suffering, if any,” and he argues here that the instruction was “inherently erroneous in that it permitted the jury to assess damages for permanent disability and injury when there was no testimony in the record, nor was there any prayer in the complaint which would have justified this element of damages. ’ ’ The record reflects that there was a prayer for permanent disability and injury in the complaint. The complaint states: “Thereby causing serious, grievous, painful and permanent injuries to the plaintiff.” We do not agree that this instruction was inherently erroneous and hold that it was a correct statement of the law with regard to the measure of damages. We said in Coca-Cola Bottling Co. of Arkansas v. Adcox, 189 Ark. 610, 74 S. W. 2d 771 that: “The measure of damages for a physical injury to the person may be broadly stated to be such sum, so far as it is susceptible of estimate in money, as will compensate plaintiff for all losses, subject to the limitations imposed by the doctrines of natural and proximate consequences, and of certainty, which he has sustained by reason of the injury, including compensation for his pain and suffering, for his loss of time, for medical attendance, and support during the period of his disablement, and for such permanent injury and continuing disability as he has sustained. Plaintiff is not limited in his recovery to specific pecuniary losses as to which there is direct proof, and it is obvious that certain of the results of a personal injury are unsuscepti-ble of pecuniary admeasurement, from which it follows that in this class of cases the amount of the award rests largely within the discretion of the jury, the exercise of which must be governed by the circumstances and be based on the evidence adduced, the controlling principle being that of securing to plaintiff a reasonable compensation for the injury which he has sustained.” After a review of all the evidence, we hold that there was some substantial evidence that appellee has suffered permanent partial disability and will continue in the future to suffer pain and would incur future medical expenses. There was medical testimony supporting this view. Dr. Jones testified that when he reexamined O’Neal on March 28, 1956 he was complaining of injury to his left leg: “Q. And what does this injury to the left leg consist of? A. ... At that time he was complaining of pain just above the outer aspect of the left knee . . . Q. You found it to be constant? A. Yes, sir. Q. Did you find any disability as a result of this knee? A. The disability would be the result of pain and complaint of pain he had. Mechanically there is no disability. From the standpoint of discomfort he experienced, yes. There was some degree of disability . . . Q. Would you estimate the disability? A. Five per cent as related to the leg or that would be the reasonable estimation.” Dr. Hundley testified that be treated O’Neal beginning March 27, 1955, that be bad a fracture of tbe 3rd, 4th, 5th and 6th, 9th, 10th and 11th ribs, a fracture of the left scapula, or shoulder blade, that he was suffering great pain. Quoting from appellant’s brief, Dr. Hundley testified: “. . . that his examination revealed some tenderness of the left para-cervical area with extension of the cervical spine or neck being 75% normal, flexion 75% of normal; that side bending to the left was 50% of normal, to the right 75% of normal; that side bending of the cervical spine was accompanied by pain in the left side of the neck and left collar bone area; that rotation to the left was 50% of normal, to the right normal; . . . that flexion of the trunk was normal but bending backward was 75% of normal accompanied by pain in the chest . . . He again examined Mr. O’Neal on May 21, July 11, October 8, 1955, and on March 27, 1956, giving him medication for relief of pain as well as physical therapy. The last date he saw him was March 27, 1956. At that time he stated there had been no locking in the fingers, but he had had pain in his left ring finger and left thumb and the entire left arm was sore. He stated he had dizzy spells and was extremely nervous and had had headaches since returning to work. He also complained of a pulling sensation in his left leg . . . July 11, 1955, he returned to the office, stating that the left knee felt like something was cutting it and he could hardly walk at times . . . He continued to complain of neck and back pain and headaches . . . On October 8,1955, examination revealed muscle spasm to the lower spine and tenderness . . . He returned to the office on March 27, 1956, stating that sometimes when he sits down, he can hardly get up because of pain in his low back . . . The physical examination revealed tenderness in the lumbar areas . . . As of March 27 he still found tenderness in the lumbosacral area. Flexion was normal but the extension or backward bending was limited about 50% of what it should be. As of the date of his last examination he continued to complain of pain . . . The last date he sáw him was March 27,1956.

Under onr well established rule we must affirm when we find any substantial evidence to support the jury’s verdict and in determining whether the evidence is substantial we must give it the strongest probative force that it will bear, in favor of appellee here. As indicated, we hold that it was sufficient on the evidence presented.

Appellant next complains that plaintiff’s Instruction No. 3, to which he made only a general objection, is erroneous. That instruction was as follows: “If you find from a preponderance of this evidence that the defendant’s negligent acts, if any, were committed wantonly or willfully, then you are told, if you find for the plaintiff in compensatory damages, you would then be justified to assess punitive damages in such amount as you may deem sufficient under the evidence, if any; to punish him for his misconduct, if any; and to serve as a proper warning to others.” Appellant says “that this instruction was erroneous, in that it did not limit the amount of the recovery for punitive damages.” Appellant, as indicated according to the record, was content to make a general objection only to this instruction, which cannot be sustained unless the instruction was inherently wrong, and we hold that it was not inherently erroneous. The record reflects that just before the instructions were given by the court, appellant’s only reference to an instruction on punitive damages was in this language: “We feel the issues should be confined (1) to the measure of damage and, (2) as to whether or not there is sufficient evidence to justify an award of punitive damages in addition to the compensatory damages.” As indicated, appellant made no specific objection to this instruction. No other instruction on the measure of damages was requested. In the circumstances the rule announced by this court in Kirchoff v. Wilcox, 183 Ark. 460, 36 S. W. 2d 667, is applicable. We there said: “An instruction was given on the court’s own motion which reads as follows: ‘If you find for the plaintiff your verdict should be: “We, the jury, find for the plaintiff,” and assess whatever damages you think he is entitled to under the proof.’ No other instructions on the measure of damages was asked or given, and only a general objection was made to tbe instruction as given . . . Tbe instruction does not contain any erroneous declaration of law and does not announce an improper rule by wbicb to measure tbe damages. Its defect is that it does not furnish a correct guide to tbe jury as to tbe measure of damages, etc. . . . Here our attention is called to tbe fact that no specific objection was made to tbe instruction in tbe court below, and such is tbe state of tbe record . . . It is tbe settled practice in this State that a party cannot avail himself of an omission wbicb be made no effort to have supplied in tbe trial court . . . Here, as in tbe preceding case, tbe remedy of tbe party is to ask additional instructions before tbe jury retires. So where tbe judge has laid down a proposition, wbicb, in tbe abstract is clearly right, but there is something peculiar in tbe situation of tbe parties, or their relations to each other, wbicb would require a modification of it, and wbicb bad escaped tbe attention of tbe judge, it is tbe duty of counsel to call bis attention thereto.”

II

We bold that no error was committed by tbe trial court in permitting witnesses Brown, Laird and Singleton to testify as to certain statements made to them by Vogler (defendant) — many hours after tbe mishap — as to Vogler’s physical condition at tbe time tbe collision occurred. Witness Allison Brown was permitted to testify on behalf of appellee, that on tbe morning following tbe collision be was at appellant’s home and appellant told him be did not remember any of tbe details of tbe mishap because be was intoxicated. Two other witnesses, Officers Singleton and Laird, over appellant’s objection, were permitted to testify not only that appellant was intoxicated when they arrived at tbe scene of tbe collision but both witnesses were permitted to detail to tbe court appellant’s condition after be bad been confined in tbe Little Rock Municipal Jail and as to statements by tbe defendant made to them at that time. Officer Singleton further testified that appellant, Vogler, told him that as he was leaving Walnut Ridge on his way to Little Rock he purchased two half-pints of whiskey and that he consumed these two half-pints. The testimony of these two witnesses was clearly admissible, we hold, since the statements were made to them by the defendant and, in effect, were against his own interest. “The acts and declarations of a party to a suit, when they afford any presumption against him may be proven by the opposing party. It is a well recognized rule of evidence that any statements which may have been made by a party to a suit against his interest, touching material facts, are competent as original testimony,” Collins v. Mack, 31 Ark. 684. Also see Covington v. Little Fay Oil Co., 178 Ark. 1046, 13 S. W. 2d 306.

Ill

We have concluded that the verdict for $10,739.45 — as compensatory damages — was not excessive in the circumstance. The evidence shows that appellee was in the hospital for 4 days, and was confined to his home over 2 months and had to sleep in a chair 31 nights. His doctor’s bills amounted to $634.50, hospital $101.95 and ambulance $10 — a total of.$746.45. He suffered great pain and will continue to suffer some pain and partial permanent disability. We cannot say that the jury’s allowance of $10,739.45 as compensatory damages, while liberal, is excessive.

IV

We hold, however, that $10,000 allowed by the jury for exemplary damages was excessive and that this amount should be reduced to $5,000. From the testimony presented, the jury had this situation before it: Vogler bought two half-pints of whiskey in Walnut Ridge, drank them before he got to Little Rock, was traveling 60 miles per hour across the Main Street Bridge from North Little Rock to Little Rock; drove his car from the extreme west of the bridge across to the extreme east of the bridge and struck appellee; was so drunk he didn’t recall any of the details of the accident; was so indifferent to O’Neal’s injuries that he didn’t bother to see Mr. O’Neal after the accident until the day of the trial. In these circumstances, the jury was warranted in assessing in effect, Yogler’s conduct as willful, and that he was exhibiting a wanton disregard for other people’s rights.

In approving punitive damages, in a similar situation to that here presented, we announced the following principal of law in Miller v. Blanton, 213 Ark. 246, 210 S. W. 2d 293, 3 A. L. R. 2d 203, in which is cited with approval, the case of Ross v. Clark, 35 Ariz. 60, 274 P. 639, wherein the court said: “ ‘Punitive damages’ are not intended to remunerate the injured party for the damages he may have sustained. They are not to compensate ; they are the penalty the law inflicts for gross, wanton, and culpable negligence, and are allowed as a warning or as an example to defendants and others. Because they are an example as to what the law will do for such conduct when it results in injury to the person or property of others, they are sometimes called exemplary damages.” “There is no fixed standard for the measurement of exemplary or punitive damages; the amount of the award is largely within the discretion of the jury or of the Court sitting without a jury, on the consideration of the attendant circumstance.” 20 C. J. S. 126.

We can well understand that the jury here was justifiably outraged at the reckless and wanton conduct of this drunken appellant, and that it felt warranted in fixing his penalty high, as a warning to intoxicated operators of automobiles, however we have concluded, as indicated, that such penalty should not be greater than $5,000.

Accordingly the judgment for $10,739.45 compensatory damages is affirmed. The judgment for $10,000 punitive damages will be reduced to $5,000 and affirmed for this amount ($5,000) provided appellee, shall within 15 days from the date of this opinion enter a remittitur in the amount of $5,000 as indicated. Otherwise this judgment as to punitive damages will he reversed and remanded.

Justice Millwee not participating.


source: Caselaw Access Project

author: J. SeaborN Holt, Associate Justice.

license: Public Domain

text:
    Merrell v. Smith, Special Admr.
    5-1007
    295 S. W. 2d 624
    Opinion delivered November 26, 1956.

      J. G. Sain, Tom Kidd, for appellant.

      Shaver, Tackett, J ones & Lowe, for appellee.
   J. SeaborN Holt, Associate Justice.

Appellants bring this appeal from a decree, upholding and admitting to probate, the will of Maymie E. Whitmore who died testate August 31, 1954. Appellants contested the will on several grounds, one, — and the only one now considered, — being that the testatrix had made an oral agreement with appellants to leave her property to them. At the trial in Probate Court appellants sought specific performance of this alleged agreement. This appellants could not do in a court of Probate, their remedy for specific performance is in a court of equity. ‘ ‘ The Probate Court has no jurisdiction to grant equitable relief,” Carter v. Younger, 112 Ark. 483, 166 S. W. 547. See also 57 Am. Jur. 158, § 180; Annot., 69 A. L. R. 88. While it properly admitted the will to probate, the Probate Court lacked jurisdiction to decide the issue of specific performance of the alleged oral contract. The case must be and is remanded with directions that it be transferred to equity for further proceedings.


author: Bd. F. MoFaddiN, Associate Justice. Ed. F. McFaddxN,. Associate Justice.

text:
    Aetna Casualty & Surety Co. of Hartford, Conn. v. Brashears.
    5-1059
    297 S. W. 2d 662
    Opinion delivered November 26, 1956.
    [Supplemental Opinion on rehearing delivered January 28, 1957.]

      Lookadoo, Gooch & Lookadoo, for appellant.

      McMillan & McMillan and Otis H. Turner, for appellee.
   Bd. F. MoFaddiN, Associate Justice.

This action — by appellee against appellant — to recover damages for personal injuries brings to us: (a) a study of Act 46 of 1947 (now found in § 66-517 et seq. Ark. Stats.); and also (b) certain rulings of the Trial Court.

The Clark County Library (hereinafter called “Library”) is owned and operated by Clark County, Arkansas ; and during the times here involved the Library was insured by appellant, Aetna Casualty and Surety Company (hereinafter called “Aetna”) against liability for damages arising from the operation of a bookmobile. The appellee, Miss Melrose Brashears, was employed by the Library in distributing and collecting the books transported by the bookmobile. In September, 1953, while James Sherwood was engaged in driving the bookmobile on a public highway in Clark County, and while Miss Brashears was riding in the bookmobile in connection with her duties, the bookmobile left the highway and overturned, and Miss Brashears suffered serious injuries, the nature of which is not questioned on this appeal.

Miss Brashears filed this as a direct action against Aetna, claiming that her injuries had been caused by the negligence of the Library in (a) permitting an unsafe vehicle (bookmobile) to be operated on the highways; and (b) in permitting the vehicle to be driven by an incompetent driver. Aetna, as the only defendant, filed a general denial, and also claimed (a) that the action could not be maintained; and (b) that the said Act 46 was unconstitutional. Trial resulted in a verdict and judgment for Miss Brashears for $6,000; and Aetna has appealed, presenting here thirteen points which we will group and discuss under suitable topic headings.

I. Act 46 Of 1947. Appellant says: (a) “The court erred in refusing to hold, as a matter of law, that § 66-517 was unconstitutional as far as applying to the case at bar . . and (b) “The exclusions set forth in the policy show conclusively that appellee was not entitled to recover under the policy.” Appellant argues that the Library, as a part of Clark County, could not be held liable for damages, and the appellant should not be required to pay anything to the appellee, since the policy only insured the County against being required to pay out money. Appellant also says that the Act is unconstitutional because it undertakes to make the appellant liable to pay out money on a contract different from the contract that the appellant issued to Clark County.

We see no merit whatever in the appellant’s contentions under this topic. It is unquestioned that Aetna issued to the Library an automobile liability policy; and it is unquestioned that the Library is owned and operated by Clark County. Here are portions of the said Act 46, germane to this case:

“Section 1. When liability insurance is carried by any . . . subdivision ... of the State . . . not subject to suit for tort, and any person . . . suffers injury or damage ... on account of the negligence or wrongful conduct of any such . . . subdivision, its servants, agents or employees, acting within the scope of their employment or agency, then such person ... so injured or damaged shall have a direct cause of action against the insurance company . . . with which said liability insurance is carried to the extent of the amount . . . provided for in said policy of insurance . . . and such insurer shall he directly liable to such injured person . . . for such damages to the extent of such coverage . . . and the plaintiff . . . may proceed directly against said insurer regardless of the fact that the actual tort-feasor may not be sued under the laws of this State.”

Section 2 provides that the injured person is entitled to be informed of the name of the insurance company and the terms of the policy.

Section 3 provides:

“. . . the terms and provisions of this Act shall become a part of any insurance policy so carried, regardless of the terms of the policy itself, and any limitation in any such policy restricting the right to recover to a judgment first being obtained against a tort-feasor not subject to suit shall be absolutely void and of no effect.”

In 1 Arkansas Law Review, at page 215, there is a comment by Honorable Robert A. Leflar on said Act No. 46, from which we copy:

“Act 46 is intended to give some relief against the non-liability in tort of units and agencies of the State government and similar tort-exempt groups. The old English maxim that ‘the King can do no wrong,’ meaning that he could not be sued however much wrong he did, has been carried forward not only into the common law but into the Arkansas Constitution (Art. V, Sec. 20) which reads ‘ The State of Arkansas shall never be made defendant in any of her courts.’ This governmental non-liability extends as well to the lesser units of government, such as school districts, counties, cities and the like, and improvement districts. It has even been extended to organizations other than agencies of government, such as non-profit co-operative corporations. The beneficiaries of this rule are not legally liable for injuries inflicted by the negligent operation of their fire wagons, school busses and garbage trucks, though the Standard Oil Company or any other employer would be liable for injuries inflicted under similar circumstances. The injured person’s only remedy against the State is to petition for an act of grace from the State Claims Commission, and even that remedy is unavailable in the case of local units and agencies . . .
“Section 3 of the Act, however, operates prospectively, by providing that the terms of the Act shall become a part of all liability policies written for such tort-exempt agencies. This poses an interesting problem of third party beneficiary contracts. It has generally been agreed that the State can by statute permit its lesser agencies to be sued either in tort or contract, though such permission has not generally been given in Arkansas. Act 46 may be deemed a sort of indirect permission, whereby the agency is allowed to contract for such suits to be brought, not against itself, but against its contractual representative who is indemnified by premiums paid to the representative by the agency. As to contracts hereinafter made, it is possible that this device may be held to be effectual to give a cause of action to injured persons.”

By said Act No. 46 the Legislature recognized that in this age of school busses, bookmobiles and other services rendered by State sub-divisions, and not dreamed of at the time of the adoption of the Constitution in 1874, it should be made possible for a State subdivision to carry some form of insurance to compensate anyone who might suffer damages through the negligence of the said State subdivision, or its servants, acting in the scope of their employment. So the Legislature duly adopted Act No. 46 of 1947, and Clark County — that is the Library — in 1952 paid the appellant the premium on the policy here involved; and the Act No. 46 says that the Statute is made a part of the policy and prevails over any language or fine print in the policy. Such a statutory provision is valid and enforceable as regards policies written after the effective date of the Statute. Liverpool & London & Globe Ins. Co., Limited, of Liverpool, England, v. Payton, 128 Ark. 528, 194 S. W. 503; Barnett Bros. v. Western Assur. Co., 143 Ark. 358, 220 S. W. 465; Fire men’s Ins. Co. v. Little, 189 Ark. 640, 74 S. W. 2d 777; and Continental Casualty Co. v. Shankel, 88 Fed. 2d 819.

The appellant makes the contention that, since Clark County could not be sue.d by the plaintiff, therefore, the appellant should not be sued either. Yet the appellant accepted premium money from Clark County to afford some sort of protection to somebody. If what the appellant urges is true and Clark County could not be sued, then what did the appellant give Clark County in return for the premium money? The Act 46 answers that question. Notwithstanding the fact that the provision of the policy is to indemnify Clark County for money it may pay out, the Act No. 46 says that the purpose of the policy was to afford a recovery by the injured person against the insurance company, the same as if the injured person could have sued Clark County.

There are many cases which recognize the power of a State to authorize a State subdivision to purchase insurance protection, just as in the case at bar. See Michael v. St. Paul Mercury Indemnity Co. (Ark.), 92 Fed. Supp. 140, involving our Act No. 46; Baker v. Lagaly (10th Cir.), 144 Fed. 2d 344, involving the Oklahoma Statute; and Taylor v. Knox County, 292 Ky. 767, 167 S. W. 2d 700, 145 A. L. R. 1333, involving the Kentucky Statute. In 145 A. L. R. 1336 there is an Annotation on the point. In some States, the suit is first against the State subdivision to liquidate the claim and then payment is compelled against the insurance company in a separate suit. See Schulte v. Hartford Co., 102 Fed. Supp. 681, involving the Minnesota Statute. But in Arkansas, the Legislature authorized a direct proceeding against the. insurance company, just as here. The appellant issued the policy in the light of our Statute and is bound by it; so there is no merit to the appellant’s contentions under this topic.

II. Assumed Risk And Contributory Negligence. The appellant says: ‘ ‘ The Court should have instructed the jury to find for the defendant after the introduction of all of the evidence because (a) plaintiff assumed the risk, and (b) plaintiff was guilty of contributory negligence.”

Tbe law is well settled that whenever a fact question is made on assumption of risk or on contributory negligence, then such issue or issues should be submitted to the jury. On assumption of risk see St. L. I. M. & S. Ry. Co. v. Hawkins, 88 Ark. 548, 115 S. W. 175; and other cases collected in West’s Ark. Digest, “Master and Servant,” § 286 (1). On contributory negligence, see Oviatt v. Garretson, 205 Ark. 792, 171 S. W. 2d 287; and other cases collected in West’s Ark. Digest, “Negligence,” § 136 (26). There was substantial evidence that the bookmobile was top-heavy and that this fact was known to the Library. Likewise, there was substantial evidence that the brakes had not been working properly and that this fact was known to the Library. Again, there was substantial evidence that the Library failed to make a sufficient investigation of the driver who had charge of the vehicle at the time it overturned. In short, there was sufficient evidence of the charges of negligence to carry them to the jury.

The evidence showed that Miss Brashears was a student, working for the Library in order to attend Ouach-ita College; that at the time of the accident, was was 21 years of age and had been self-supporting since she was eight years old; that her work on the bookmobile was to check out and receive books at the various places in the County; that she had no driver’s license, never had one, had never driven a car, had never bought parts for a car, had never fixed a flat tire, and “. . . knew nothing on earth about automobiles except just riding in one.” In the light of this testimony, it could not be said as a matter of law that she assumed the risk of the unsafe vehicle, or that she was guilty of contributory negligence when she did nothing but ride — not drive — in the bookmobile, at the direction of her employer. Her testimony made a case for the jury on assumption of risk and contributory negligence.

III. Rulings In The Course Of The Trial. The appellant has (a) one assignment relating to the Court’s statement of the case, (b) one assignment on the admission of evidence, and (c) eight assignments on instructions given or refused.

(a) In stating the case to the Jury, the Court said:

“Miss Brashears bases her plea for recovery upon the following allegations of negligence:
1. She contends the Bookmobile was in a ‘rundown’ and generally unsafe condition.
2. She contends the braking system was defective and caused the vehicle to veer sharply to the right when applied.
3. She contends the truck was loaded ‘top-heavy’ with books, making it unsafe to operate.
4. She contends that Sherwood was an incompetent, inexperienced and reckless driver and that the library was negligent in employing him.
5. She contends that the library officials negligently failed to acquaint Sherwood with the unsafe condition of the truck.”

We find nothing wrong with the Court’s statement. It had been testified: that the bookmobile was a 1947 Ford panel truck converted into a bookmobile by installing shelves; that when the books were on the shelves the vehicle was top-heavy; that the brakes had been defective; that two tires had been replaced; and that no substantial inquiry had been made as to Sherwood’s ability to drive such a vehicle. In short, Miss Brashears and her witnesses had offered evidence on each of the numbered items; and the Court fairly listed her allegations.

(b) As regards the assignment on the evidence: when Miss Brashears was testifying, the following occurred :

“Q. When you got in the vehicle on September 9th, did you assume that the vehicle had been repaired?
A. I assumed the brakes were fixed.”

The appellant duly objected to the question and answer; but we find no merit to the objection. Miss Bra-shears had testified that on September 8th the bookmobile had a blow-out, that two casings were ruined, and that there had been trouble with the brakes. She testified that two new casings were purchased, and that the bookmobile was taken to a garage the afternoon of September 8th; and then she was asked the question quoted above. In the light of the evidence about taking the vehicle to the garage, the purchase of new tires, and Miss Brashears’ lack of knowledge about motor vehicles, certainly the ruling on the quoted question and answer was proper.

(e) As regards instructions: it would unduly prolong this opinion to discuss in detail each of the assignments regarding instructions given and refused. We have examined each and all of such assignments and find no ground for reversal.

IY. Appellee's Cross-Appeal. The appellee has cross-appealed because the Court refused to allow the jury to consider any claim the appellee might have that was based on the negligence of the driver of the vehicle. Since we are affirming the case on direct appeal, it is unnecessary for us to express any opinion concerning the cross-appeal.

Affirmed on direct appeal.

OPINION ON REHEARING

Ed. F. McFaddxN,. Associate Justice.

We are asked by appellant to clarify our opinion in regard to the insurance coverage. Appellant says that some language in the opinion leaves the impression that appellant was held liable under the policy here involved as though it were a Workmen’s Compensation policy. We did not intend for the opinion to leave any such impression. The policy involved in this ease was an automobile liability policy; and Miss Brashears recovered just as though she was a third person entirely unemployed by the library. The matter of any exclusion applying because Miss Bra,shears was an employee of the library, was not an issue and therefore was not determined by the opinion.

Re-hearing denied.

       In the addenda section to Webster’s New International Dictionary, printed in 1956, the word “bookmobile” is defined: “An autotruck with shelves of books serving as an itinerant library or bookstore.” Clark County used its bookmobile to distribute and collect books throughout the entire County.

       Miss Brashears also alleged that James Sherwood was guilty of gross negligence in the operation of the vehicle, but the negligence of Sherwood was ruled out by the Trial Court and is involved only in the cross-appeal.

       On page 213 of the transcript, the appellant’s attorney said: “. . . this suit was against Clark County, and one of the terms of the policy sued on specifically said that the defendant was only liable for the legal damages that Clark County would be required to pay. Since the County cannot be sued, this issue should not have been submitted by the Court at all.”

       In the comment in 1 Arkansas Law Review there are footnotes citing cases designed to support the various statements.


author: Minor W. Millwee, Associate Justice.

text:
    Camp v. Park, Admr.
    5-1067
    295 S. W. 2d 613
    Opinion delivered November 26, 1956.

      Ed E. Ash-bough, for appellant.

      John F. Park, Clatide F. Cooper, for appellee.
   Minor W. Millwee, Associate Justice.

This is a suit by an attorney to enforce a lien upon certain estate funds for the payment of his fee under a written contract with a principal beneficiary of the estate.

Bertrand W. "Willson died intestate in October, 1950, survived by his widow, Beatrice Willson, his mother, Janie Willson Gardner, a brother and a sister. The brother, PI. B. Willson, was appointed administrator of decedent’s estate which consisted of postal savings and other liquid assets worth $17,800. In November, 1950, H. B. Willson and Florene Willson, his sister, entered into an agreement with their mother, Mrs. Gardner, whereby the estate would be divided equally between them, or one-third each, after deductions of the widow’s dower and allowances. Shortly after execution of the written contract EL B. and Florene Willson instituted suit for specific performance which was resisted by the mother. Trial in chancery court resulted in a decree upholding the agreement and directing specific performance. Mrs. Gardner then employed appellant, Alonzo D. Camp, to represent her in an appeal of the case to this court under a written contract executed June 5, 1951, which provided: “I hereby agree to allow said attorney fifty per cent of whatever is recovered in said case. No fee will be charged unless a recovery is had.” On the appeal ably prosecuted by appellant we reversed and held the agreement invalid for fraud practiced upon Mrs. Gardner and directed dismissal of the suit for specific performance. Gardner v. Willson, 219 Ark. 787, 244 S. W. 2d 945. Under this decision rendered January 7, 1952, Mrs. Gardner became sole beneficiary of her deceased son’s estate subject to the widow’s dower right of one-half plus statutory allowances.

Shortly after we handed down our decision EL B. Willson offered for probate an alleged holographic will under which his deceased brother left all his property to him. In order to protect his client’s interest as well as his own, appellant represented Mrs. Gardner in resisting probation of the alleged will. After submission of briefs by counsel for both sides the probate court entered judgment on July 31, 1952, denying probate of the purported will and there was no appeal from said judgment.

II. B. Willson failed to render any accounting in the estate and defaulted on his administrator’s bond of $10,-000 in which Maryland Casualty Company was surety. In the latter part of 1952 appellant instituted proceedings in probate court for Mrs. Gardner and obtained a judgment against the administrator and surety. H. B. Willson was discharged and Hogan Oliver was appointed administrator in succession. Counsel for Oliver continued the demand for payment on the surety bond and after further investigation and negotiations the probate court ordered the surety to pay $10,000 into the registry of the court under its bond and this was done.

In the Spring of 1955 Mrs. Gardner discharged appellant and employed her present counsel. On May 5, 1955, she executed and filed in probate court a waiver and disclaimer of all her rights and interests as an heir and distributee in the estate of her deceased son. Appellant. filed the instant suit in Chancery on May 24, 1955 to enforce either a statutory or equitable lien in his favor on the estate funds to the extent of $8,900 which he claimed as fees for his services under his contract with Mrs. Gardner. The separate answers of appellees, John F. Park, present administrator of the estate of Bertrand W. Willson, deceased, and Mrs. Gardner, denied generally the allegations of the complaint and asserted that assets of the estate were not subject to appellant’s claim by reason of the disclaimer filed by Mrs. Gardner. The chancellor took the case under advisement following a trial on December 14, 1955.

On February 17, 1956, an order was issued in probate court on appellant’s motion allowing him a fee of $750 for “legal services rendered the estate” and a check for that amount was issued by the clerk to, and cashed by, appellant. This order was made without notice to appellees and the surety who appeared by their respective counsel in the instant suit and insisted that the probate order should have been made and entered as a final decree in the chancery suit, while appellant contended that the fee allowed was for his services in probate court only. After a hearing on March 9, 1956, the chancellor entered a decree denying appellant’s prayer for a lien and stating that the $750 allowance was made on a quantum meruit basis and was for all his services rendered in both the probate court and the instant proceedings in chancery. This appeal is from that decree and there is no cross appeal by appellees.

We think the chancellor erred in holding that appellant was not entitled to a lien on the estate funds for the payment of his fee under the contract of employment executed by Mrs. Gardner. In our opinion it makes little difference whether the lien be enforced under our statute or as an equitable lien under the decisions. The statute (Ark. Stats., Sec. 29-132) in express terms gives the attorney a lien and interest in any judgment recovered for his client to the extent and in the amount to which he is entitled by contract, or, if no amount is fixed, a reasonable compensation for his services rendered. In Osborne v. Waters, 92 Ark. 388, 123 S. W. 374, the court held that when an attorney recovers a judgment for his client of the nature prescribed in the statute and takes steps to perfect his lien, he acquires an interest in the judgment of which he cannot be deprived after the judgment becomes final. While a client may dispose of his cause of action as he sees fit, if there are any proceeds from the litigation derived by settlement or final judgment the attorney has a lien thereon under the statute of which he cannot be deprived by the parties. St. Louis I. M. & S. Ry. Co. v. Blaylock, 117 Ark. 504, 175 S. W. 1170.

The equitable or charging lien of an attorney is based on the natural equity that a plaintiff should not be allowed to appropriate the whole of a judgment in his favor without .paying therefrom for the services of his attorney in obtaining such judgment. 7 C. J. S., Attorney and Client,. Sec. 211. The following statement by the court in Martin v. Schichtl, 60 Ark. 595, 31 S. W. 458, has been quoted with approval in many subsequent cases: ‘‘Equity requires no particular words to be used in creating a lien. It looks through the form to the substance of an agreement; and if, from the instrument evidencing the agreement, ‘the intent appear to give, or to charge, or to pledge, property, real or personal, as a security for an obligation, and the property is so described that the principal things intended to be given or charged can be sufficiently identified, the lien follows.’ ” See also, Walker v. Brown, 165 U. S. 654, 17 S. Ct. 453, 41 Fed. 865; Pomeroy, Eq. Jur., Sec. 1235.

. The authorities in general agree that the question whether an attorney’s contingent-fee contract will give rise to an equitable lien in his favor on the fund recovered through his efforts is one of construction of the particular contract. The basic issue, in the absence of an express provision for a lien, is whether an intent that the fund recovered shall stand as security for payment of the fee sufficiently appears by implication. See cases cited in 143 A. L. R. 206 where there is an annotation to the leading case of Button v. Anderson, 112 Vt. 531, 28 A 2d 404. That case involved a contingent-fee contract similar to the one involved here, and the court said: “Where the parties have contracted that the attorney shall receive a specified amount of the recovered fund, such agreement will create an equitable lien on the fund in favor of the attorney to the extent of the amount stipulated. 5 Am. Jur. 394, Sec. 221; 6 C. J. 769, Sec. 366; 7 C. J. S., Attorney and Client, § 211.” On the question of implication the court also stated: ‘ ‘ Our first task is to determine whether the contract in question did create an equitable lien on the fund when received. It may be stated at the outset that such liens do not arise merely by virtue of a contract for a contingent fee. The test is whether the party contracting for the services sufficiently indicates an intention to make the fund described in- the contract security for the debt. Such intention need not be express, bnt may be implied from the terms of the agreement construed with reference to the situation of the parties at the time of the contract and by the attendant circumstances. If such intention appears, a lien is created, otherwise hot. Or, to put it differently, it must appear that the other contracting party looked to the fund itself for payment and did not rely on the personal responsibility of the owner of the claim of which the fund was the result.” Another similar case is Winslow v. Becker, 154 Or. 336, 58 P 2d 620, where there was an attempt to defeat the attorney ’s lien by the son of the Avidow-client inducing his mother to breach her contingent-fee agreement Avith her attorney.

Irrespective of statute, it has also been held that a lien may extend to attorney fees in suits arising from, and incidental to, the main cause, and that it is not essential that all the services for Avhich a lien is claimed shall have been rendered before the same court. 7 C. J. S. Attorney and Client, Sec. 213b.

We cannot agree with appellees’ assertion that appellant recovered nothing for his client and that his services were merely in defense of an existing right. Nor do we agree Avith appellant’s contention that he is entitled to recoATer a fee of $8,900 which is fifty percent of the total gross assets of the estate. Under the trial court’s decision in the first case upholding the agreement between Mrs. Gardner and the two surviving children, Mrs. Gardner Avould have been entitled to one-third of the estate after deduction of the -widow’s dower and allowances and the costs of administration. By reason of the successful appeal and resistance to other devices calculated to defeat her rights, Mrs. Gardner became entitled to the entire estate remaining after deduction of the widow’s dower and alloAvances and the expenses of. administration. While she had a right to discharge appellant and disclaim her interests in the estate she could not thereby defeat his right to his fee under the contract.

• We therefore conclude that appellant had a lien for his fee under the employment contract to the extent of fifty percent of two-thirds of the estate, assets remain-mg after deduction of administration expenses and the widow’s dower and allowances. In this connection it is noted that the widow is entitled to dower without deductions for any debts, claims or expenses of administration. Dolton, Guardian v. Allen, 205 Ark. 189, 167 S. W. 2d 893.

Appellees argue that the allowance of $750 by the chancellor, plus $135 additional which the evidence shows appellant received on his fee, amounts to more than he is entitled to receive under his contract with Mrs. Gardner. We are unable to determine the accuracy of this contention from this record. There is no proof as to the amount of the expenses of administration or the net value of the estate remaining after payment of such expenses and the widow’s dower and allowances. While the only funds accounted for at the time of trial consisted of the $10,000 paid by the surety there was evidence that H. B. Willson had made several substantial payments to the widow before the payment by the surety. It was also indicated in the oral argument that H. B. Willson had rendered an accounting of some kind since the trial.

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


author: George Rose Smith, J.

text:
    Superior Iron Works & Supply Co. v. Saulsberry.
    5-1073
    295 S. W. 2d 626
    Opinion delivered November 26, 1956.

      Keith, Clegg & Eckert, for appellant.

      T. 0. Abbott and Spencer & Spencer, for appellee.
   George Rose Smith, J.

This suit was brought by the appellant to enforce a materialman’s lien under what is sometimes called the Miners’ Lien Law. Ark. Stats. 1947, §§ 51-701 to 51-710. By an amendment to the complaint the two appellees, Saulsberry and Beebe, were joined as defendants. Their demurrer to the amended complaint ivas sustained by the court below, upon the dual ground that no cause of action is stated and that in any event the claim against these appellees is barred by limitations.' Since we have concluded that the chancellor’s decision upon the question of limitations is correct it will not be necessary to pass upon the other issue.

Superior alleges that between November 21, 1951, and April 15, 1952, it furnished to Roberts Petroleum, Inc., some 31,000 feet of steel pipe, which we assume from the pleadings to have been intended for use in the drilling of an oil well. The purchase price for the pipe was not paid, and on May 6, 1952, Superior filed with the circuit clerk its verified claim for a lien upon the pipe. Ark. Stats., %% 51-708 and 51-613. Ten days later the vendee filed a petition for an arrangement under the federal Bankruptcy Act; the debtor was adjudi-eated' a bankrupt on July 31, 1952. In the bankruptcy proceedings Superior attempted to assert a secured claim upon the basis of its materialman’s lien; but it was ultimately decided, on January 26, 1954, that the bankruptcy court had no jurisdiction over the pipe. Superior was held to be an unsecured creditor, and such creditors received nothing in the bankruptcy proceedings.

In the meantime Superior had already filed, on April 3, 1953, the present suit in the chancery court of Union county. The original complaint named two corporate defendants, who were alleged to have removed part of the pipe from the premises on which it was to have been used. By an amendment filed on May 13, 1954, the appellees were made parties to the case. It was asserted that on February 7, 1952, Saulsberry had converted to his own use 3,312 feet of the pipe, without Superior’s written consent, and that on April 30, 1952, Beebe had similarly converted 3,604.25 feet. The prayer was that the defendants be required to surrender possession of the pipe, together with the land or leasehold to which it might have been attached, and that the property so surrendered be sold for the payment of Superior’s debt.

With respect to the period of limitations the Miners’ Lien Law adopts the provisions of the mechanics’ lien statute, which requires that suit be brought within fifteen months after the filing of the lien. Ark. Stats., §§ 51-708 and 51-616. Here the lien was filed on May 6, 1952, but the appellees were not sued until May 13, 1954. It is evident that the suit is barred unless there is some special reason for holding the fifteen-month limitation to be inapplicable.

Superior advances two theories to support its contention that the suit was filed in time. It is first pointed out that this complaint is based upon § 5 of the Miners’ Lien Law (Ark. Stats., § 51-705), which provides that one holding property subject to the lien may not dispose of it without the written consent of the lienor, and that upon a violation of this provision the lienholder shall be entitled to the possession of the property wherever found. It is shown that this authority for an action in conversion against third persons is peculiar to the Miners’ Lien Law, there being no similar provision in the mechanics’ lien statutes. Hence, says the appellant, “the statute of limitations governing the time for enforcement of the lien, which commences to run when the lien is filed, could have no application to an action for conversion, which runs from the act of conversion, and for the simple reason that the conversion might occur after the 15 months had expired.”

This argument, although plausible, is not quite sound. The Miners’ Lien Law specifically states that, “except as herein expressly provided,” the lien must be enforced within the time allowed by the mechanics’ lien statute. Ark. Stats., § 51-708. The act does not expressly provide a separate period of limitations for a suit for conversion under § 5; so by its literal language the statute requires that such an action be brought within fifteen months from the filing of the lien. Superior cannot be permitted to take advantage of a statutory cause of action without at the same time being subject to the restrictions imposed by the statute.

We do not agree with Superior’s suggestion that this holding carries with it the possibility of an injustice to the lienholder. Certainly that is not true in the case at bar, for Superior alleges that both the conversions complained of occurred before its notice of lien was lodged with the circuit clerk. Hence Superior actually let the full fifteen months go by without, filing its suit. On the other hand, if no conversion has yet occurred when the lienholder files his suit against the principal debtor, the lienor may protect himself by filing a notice of lis penclens. See Ark. Stats., § 27-501, which applies to suits involving either real or personal property. If the property should thereafter be converted by a stranger to the case, he would take subject to the outcome of the litigation. Mitchell v. Federal Land Bk. of St. Louis, 206 Ark. 253, 174 S. W. 2d 671. In those circumstances the lienholder would not have to resort to the special cause of action that is conferred by § 5 of the Miners * Lien Law.

Superior’s second contention is that the running of the fifteen-month statute of limitations was suspended by the bankruptcy proceedings instituted by its vendee, Roberts Petroleum, Inc. Section 11 of the Bankruptcy Act provides that the operation of any statute of limitations “affecting the debts of a bankrupt provable under this title” shall be suspended as therein stated. 11 U. S. C. A. § 29 (f). Section 391 of the act, applying specifically to debtor’s arrangements, provides that ail statutes of limitations “affecting claims provable under this chapter” shall be suspended during the pendency of the proceedings. 11 U. S. C. A. § 791.

It is evident that the present case does not come within the exact language of the federal law, for Superior’s cause of action for the torts of Saulsberry and Beebe did not constitute a debt of Roberts Petroleum. Inc., or a claim provable in the arrangement proceedings. It is argued, however, that Superior was required to prove its claim against Roberts as a condition precedent to the maintenance of an action against Sauls-berry and Beebe. In this connection Superior relies upon the decision in Cruce v. Mitchell, 122 Ark. 141, 182 S. W. 530, where it was held that the original contractor is an indispensable party in a suit to fasten a mechanics’ lien upon the landowner’s property.

The reasoning followed in the Cruce ease does not apply to the situation now presented. There the contractor was held to be an indispensable party because the mechanics’ lien law makes it his duty to defend the action at his own expense. Ark. Stats., § 51-610. There is no similar requirement with respect to the cause of action conferred by § 5 of the Miners’ Lien Law. Quite the contrary, that section provides that the lienholder is entitled to the possession of the property “and to have the same then sold for the payment of his debt, whether said debt has become due or not.” Ark. Stats., § 51-705. Since the lienor is permitted to assert an independent cause of action against the converter before the principal debt has even become due, there is no reason to say that the principal debtor is invariably a necessary party to the action. As far as the record before us shows, the pendency of the Roberts bankruptcy case did not prevent Superior from bringing its suit within fifteen months after the lien was filed.

Affirmed.


author: Paul WaRd, Associate Justice.

text:
    Housing Authority of Little Rock, Arkansas v. Winston.
    5-1083
    295 S. W. 2d 621
    Opinion delivered November 26, 1956.

      R. Ben Allen and William L. Terry, for appellant.

      Gordon H. Sullivan and Marry C. Robinson, for ap-pellee.
   Paul WaRd, Associate Justice.

The only question presented by this appeal is: Is there sufficient, competent testimony to support the chancellor’s finding that appellees’ property was worth $2,0001

On August 25, 1955 appellant, Housing Authority of the City of Little Bock, Arkansas, (authorized and existing under authority of Act 298 of 1937 and amenda-tory acts) filed a suit in the circuit court against Bordie Winston and his wife (together with many other property owners), asking that said appellees’ property (Lot 1 Block 44, Granite Park Addition to Little Rock) be condemned and that the money damages for the taking of said property be ascertained.

Because of certain issues arising in the circuit court relative to title to said property and also a written agreement as to damages the cause was transferred to the chancery court. Upon hearing before the chancellor the two issues mentioned above were discarded and the chancellor heard testimony as to the value of the property in question, and thereupon found that said property was of the value of $2,000.

For a reversal, the two-fold contention of appellant is that appellees’ witnesses were not qualified to testify as to the market value of the land, and also that the chancellor’s finding as to damages is not supported by the weight of the evidence. We are unable to agre" with appellant.

The court was correct in allowing appellees’ witnesses to testify regarding the value of the property. Lester Lowery who owned the property in question previously stated that he was acquainted with the general market value of property in the Granite Mountain Addition and that he bought and sold property. Worthy Springer stated that he was well acquainted with appel-lees’ property, that he had bought and sold property in that neighborhood several times, and that he had discussed the price of such property during the last few years with people who were buying and selling homes. This court has held that it rests largely within the discretion of the trial court to decide the competency of a witness to express an opinion as to the value of land. See Bridgeman v. Baxter County, 202 Ark. 15, 148 S. W. 2d 673, and Fort Smith & Van Buren District v. Scott, 103 Ark. 405, 147 S. W. 440. Also, in the last mentioned opinion the court approved this statement: “ ‘Intelligent, men, who have resided a long time in the place and who are acquainted with the land in question and say they know its value are competent, although they are merchants or farmers, and have never bought and sold land.in the place.’ ” Where witnesses had given testimony relative to the value of real property, in Ball v. Independence County, 214 Ark. 694, 217 S. W. 2d 913, we said: ‘ ‘ In the circumstances, we think, the court properly admitted testimony as to values to be established by the opinions of witnesses familiar with the property in question,” and then we approved this statement: “The weight to be given the testimony of any one of the witnesses who expressed opinions would depend, of course, on the candor, intelligence, experience and knowledge of values on the part of the witness.” We cannot therefore say that the trial court abused its discretion in admitting the testimony of appellees and their witnesses.

Nor are we able to say that the finding of the chancellor as to the value of appellees’ property is against the weight of the evidence, although the testimony was conflicting. Appellee, Pearl Winston, stated that she gave approximately $700 for the property in March of 1953 and that since that date she had made numerous repairs to the house totalling an expenditure of around $500, that the property rented for $15 a month, that she had lived in the neighborhood 11 years and had bought and sold property in that community over the years and knew what her neighbors had sold property for, and that she thought the fair market value of her property was $2,500. In Mr. Lowery’s opinion the lot alone was worth $600 and the house and lot was worth $2,000. Mr. Springer thought that $2,500 would be the fair market value. On the other hand one of appellant’s witnesses placed the market value of the property at $1,000 and the only other witness agr'eed with him.

The chancellor who saw and observed the witnesses was in a better position than we are here to evaluate the testimony and reconcile the discrepancies, and we cannot say that his finding is not supported by the weight of the evidence.

Affirmed.


author: Sam RobiNSON, Associate Justice.

text:
    Fuller v. Terrill.
    5-1094
    295 S. W. 2d 625
    Opinion delivered November 26, 1956.

      J. B. Milham, for appellant.

      F. 0. Butt, for appellee.
   Sam RobiNSON, Associate Justice.

This suit was filed by Billy and Marian Terrill to confirm their title to Lot 8, Block 168, Riley and Armstrong Survey, in the City of Eureka Springs, Arkansas. The appellant, C. A. Fuller, filed an intervention, claiming to be the owner. The issue is whether the Terrills have acquired title to the property by a deed from the State, coupled with the payment of taxes for more than seven consecutive years. The land is unimproved and uninelosed. Ark. Stats. § 37-102 provides: “Uninproved (unimproved) and uninclosed land shall be deemed and held to be in possession of the person who pays the taxes thereon if he have color of title thereto, but no person shall be entitled to invoke the benefit of this act (section) unless he and those under whom he claims shall have paid such taxes for at least seven (7) years in succession, and not less than three (3) of such payments must be made subsequent to the passage of this act.”

The problem is whether the deed from the State to the Terrills constitutes color of title. If the deed does carry color of title, then the Terrills must prevail, there being no dispute about their having paid the taxes for more than the seven year period.

Lot 8 was conveyed to Fuller by the Crescent Hotel Company in 1925, and, in 1929, he got another deed to an interest in the property from A. G. Ingalls and his wife, Lelia Ingalls. In the year 1947 the County Clerk of Carroll County certified that Lot 8 had been omitted by mistake from the list of property certified to the State in 1935 for non-payment of the 1931 taxes. Subsequently, the State Land Commissioner deeded the lot to the Terrills. The record is convincing that the taxes were paid for the year 1931 and that the property should not have been certified to the State as being delinquent for that year. In the circumstances shown here, the deed from the State Land Commissioner to the Terrills is void. But, even though it is void the question is, does it carry color of title; and we have held repeatedly that a void deed from the State Land Commissioner constitutes color of title. Cayce v. Nordin, Trustee, 221 Ark. 383, 253 S. W. 2d 338, citing Culver v. Gillian, 160 Ark. 397, 254 S. W. 681; Bradbury v. Dumond, 80 Ark. 82, 96 S. W. 390; 11 L. R. A., N. S. 772; McKewen v. Allen, 80 Ark. 181, 96 S. W. 392; Brandon v. Parker, 124 Ark. 379, 187 S. W. 312; Terry v. Drainage District No. 6, Miller Co., 206 Ark. 940, 178 S. W. 2d 857; and Skelly Oil Co. v. Johnson, 209 Ark. 1107, 194 S. W. 2d 425.

The appellees have color of title even though their deed from the State is void, and, by the payment of taxes on wild and unimproved land for seven years under color of title, they acquired a valid title. Mr. Fuller has lost the lot by the law of adverse possession.

Affirmed.


author: J. Seaborn Holt, Associate Justice.

text:
    McCombs v. McCombs.
    5-1046
    295 S. W. 2d 774
    Opinion delivered December 3, 1956.

      Etheridge <3 Sawyer, DuVal L. Purloins, and D. A. Bradham, for appellant.

      William S. Arnold and Williamson S Williamson, for appellee.
   J. Seaborn Holt, Associate Justice.

This litigation involves the ownership of 2,470.99 acres of farm lands in Ashley County. Appellants, A. P. McCombs and Eugenia McCombs, are husband and wife and A. P. McCombs was the brother of R. B. McCombs who died February 13, 1932. Appellee, Cleone R. McCombs, was the wife of R. B. McCombs. R. B. McCombs left surviving his widow, appellee, and two children, who have now reached their majority. At the time of R. B. McCombs’ death he was heavily involved in debt and hopelessly insolvent, owing about $250,000. Appellee, as beneficiary, collected approximately $80,000 on life insurance of her husband. At the time of R. B. McCombs’ death, A. P. McCombs was also heavily in debt and insolvent, owing approximately $75,000, and owned the lands here involved. The First National Bank of El Dorado, Arkansas, however, held a first mortgage against these lands for $42,863.03 and the R. B. McCombs’ estate, held a second mortgage in the amount of $32,-899.07. The bank foreclosed its mortgage; was awarded a judgment for $42,863.03 and R. B. McCombs’ estate was given a judgment for $32,899.07 on its second mortgage subject to the first mortgage of the bank. A sale of these lands was ordered and had. Cleone McCombs, appellee, was the purchaser at this sale for $20,000. The sale to her was duly confirmed by the trial court, a commissioner’s deed (dated March 2, 1933) to her ordered, executed and approved, and appellee took possession of all these lands immediately thereafter in 1933 and has farmed, asserted and exercised ownership from 1933 to the present time, a period of some 23 years. Pier deed was duly recorded. She has paid the taxes on this property each and every year following her purchase. She paid for the upkeep and repairs on the houses and barns on these lands. Each year since she acquired this property, A. P. McCombs, under a written recorded rental contract with appellee, has farmed the property as her tenant and under the contract agreed to pay to her one-fourth of the cotton and one-third of the corn as rental.

The present suit was filed by A. P. McCombs and wife in which they sought specific performance of an alleged oral agreement or contract alleged to have been entered into between A. P. McCombs and appellee, Cleone ft. McCombs, just prior to the purchase of the property by appellee at the foreclosure sale above. By this alleged agreement appellant claims that appellee agreed to buy the property at the foreclosure sale and to reconvey the legal title back to A. P. McCombs upon his repayment to her of his indebtedness due under the foreclosure decree through which appellee acquired title to the lands in question. On a trial, after an extended and patient hearing, the court found all the issues against appellants and dismissed their complaint for want of equity. This appeal followed.

For reversal appellants, in effect, first contend that the trial court erred in denying their prayer for specific performance of the alleged oral agreement, and second, that the court erred in refusing to hold, on the evidence presented, that a constructive trust resulted or was created under which appellant would be the beneficiary and in this connection appellant says: . . in cases where general rules and principles do not furnish an exact measure of justice between the parties, the court governs itself as far as it may by general rules and principles; but at the same time withholds and grants relief, according to the circumstances of each particular case. That is, upon the principle of constructive trust created by law.” After a review of the record presented, we have concluded that the trial court was correct in denying both of appellants’ contentions and in dismissing their complaint for want of equity.

Before appellants’ contentions above could be sustained they have the very heavy burden imposed upon them of producing evidence to sustain these contentions that is clear, cogent and convincing and practically beyond a reasonable doubt. Our rule in a long line of cases is to the following effect: “. . . we have many times held that a court of equity may grant specific performance of a parol contract to convey land only where the evidence of the agreement is clear, satisfactory and convincing. McKie v. McClanahan, 190 Ark. 41, 76 S. W. 2d 971; Kranz v. Kranz, 203 Ark. 1147, 158 S. W. 2d 926. The same rule of evidence holds true as to the establishment and enforcement of a constructive trust . . . Sometimes it is expressed that the ‘evidence offered for this purpose must be of so positive a character as to leave no doubt of the fact,’ and sometimes it is expressed as requiring the evidence to be ‘full, clear and convincing’ and sometimes expressed as requiring it to be ‘clearly established’ . . . Titles to real estate cannot be overturned by a bare preponderance of oral testimony seeking to establish a trust in opposition to written instruments. The conservatism of the courts has prevented the tenure of realty being based on such shifting sands.” McNutt v. Carnes, 213 Ark. 346, 349 and 350, 210 S. W. 2d 290.

This court said in the case of Walk v. Barrett, 177 Ark. 265, 267, 6 S. W. (2d) 310, in the matter of a parol contract, “The rule of law applicable in such cases is that, before a court of equity may grant specific performance of a parol contract to convey lands, the evidence of such agreement must be clear, satisfactory and convincing. It must be so strong as to be substantially beyond reasonable doubt.” In Ripley v. Kelly, 207 Ark. 1011, 183 S. W. 2d 793, we said: “It is a well settled principle that, while trusts resulting by operation of law may be proved by parol evidence, yet the courts uniformly require that such evidence be received with great caution, and that it be full, free and convincing. ’ ’ Here, in addition to the above evidence, appellee stoutly denied that any agreement such as appellant claims was ever entered into between her and A. P. McCombs at any time. A. P. McCombs testified that the alleged agreement was entered into in December 1933 at appellee’s home in Little Rock, Arkansas. It appears that no witnesses were present. In each of the yeai’ly recorded rental contracts which A. P. McCombs entered into with appellee, lie admitted her ownership of the property and that he was occupying as her tenant, in other words, the relationship of landlord and tenant clearly existed. In his income tax returns it appears that A. P. McCombs credited himself under deductions with one-fourth cotton paid to Cleone McCombs on lands involved and continued to make similar deductible claims through the years of his tenancy. He showed no deductions for depreciation for farm houses and barns from 1936 through 1952. Without attempting to detail more of the testimony we have concluded that appellants have fallen far short of meeting the burden of proof imposed upon them to sustain either of their contentions. Appellants’ actions here speak much louder than their words.

Courts are reluctant when, as here, there is sought to be impressed upon the lands involved (which lands were conveyed to appellee by a solemn deed) a trust, especially after the intervention of more than twenty years. We said in Griffin v. Griffin, 200 Ark. 794, 141 S. W. 2d 16: “In the well considered case of Davidson v. Edwards, 168 Ark. 306, 270 S. W. 94, Justice Hart said that the misrepresentation which will create a trust must be made before or at the time the legal title is acquired by the promisor, so that if the deed of January 2, 1905, did not create a trust, the subsequent promise of Marvin to convey his sister 20 acres of the land did not create one. Courts are reluctant — and should be — to impress trusts upon lands conveyed by deeds absolute in form, especially, where, as in this case, many years have intervened before that attempt is made, and will not do so in such case, or, for that matter, in any case, unless the testimony tending to establish the trust is clear, satisfactory and convincing, as we said to be necessary in the Armstrong case, supra. (Armstrong v. Armstrong, 181 Ark. 597, 27 S. W. 2d 88). We have many cases to this effect, the latest being that of Maloch v. Pryor, 200 Ark. 380, 139 S. W. 2d 51.” A constructive trust (which appellant claims existed here and under which A. P. McCombs would be the beneficiary) can arise only by reason of a fraudulent misrepresentation or action, before or at tbe time tbe legal title is acquired by the alleged promisor (appellee here).

Finally, appellants say that they “. . . are entitled to relief because E. E. Wiley, who represented appellee and other adverse parties to appellants’ interests in the 1932-33 foreclosure suit, also, assumed to and did act as attorney for appellants in that suit and failed to legally and equitably protect their right of redemption. ’ ’ In effect, appellants charge that Mr. E. E. Wiley (now deceased) represented A. P. McCombs and appellee, Cleone E. McCombs, in the bank foreclosure suit above (1932-1933) and therefore represented conflicting interests. We find that the great preponderance of the evidence in this case is against this contention. Mr. Wiley, a highly respected attorney at the bar of this court, represented appellee in the foreclosure proceedings and appellant testified positively that in the foreclosure suit he was “advised and assisted” by Mr. G. C. Ledbetter, an attorney of Hamburg and that Mr. Ledbetter was his attorney in the foreclosure suit. Throughout A. P. McCombs’ testimony he refers to Mr. Wiley as “the attorney for Cleone and my brother’s estate (meaning E. B. McCombs’ estate).” It appears that he had only one conference with Mr. Wiley and as to it says: “I decided to go up to Little Eock and talk with Mr. Wiley because I knew he was my brother’s attorney and he was looking after my sister-in-law’s affairs and her children and I knew he was the one to go to talk to.” He learned from Mr. Wiley that appellee “was going to buy this debt of the First National Bank for forty thousand dollars. ’ ’ He says that Mr. Wiley, an attorney for Mrs. Cleone McCombs and the E. B. McCombs estate, said that he had talked with Mr. Loughborough as attorney for Mrs. Hardy (who was involved in the foreclosure suit and not a party here) and that “they” (Mr. Loughborough and Mr. Wiley) “would try to work out a plan together that would protect my lands and give me a chance to redeem my lands and if I would cooperate with them, that they felt like that they both would assure me with this cooperation that I would get protection and have a chance to redeem my three places, the Dean, Piles and Wimberly places.”

Appellee testified positively that she had not authorized Mr. Wiley to make any such agreement, and we think the great preponderance of the testimony supports her, and further, that the evidence shows that Mr. Wiley made no such agreement with appellant. The law is well settled that an attorney, as here, employed to conduct litigation involving property, has no implied or apparent authority by reason of his employment, to bind his client in regard to the subject matter of the litigation except with respect to matters of procedure. In Cullin-McCurdy Const. Co. v. Vulcan Iron Works, 93 Ark. 342, 124 S. W. 1023, we said: “There was no testimony offered to show that (attorney) Denman had any authority to act for appellee, further than to prosecute the suit as an attorney, and it was not within the scope of his authority as attorney to compromise with appellant, or to release the latter from liability or to forfeit that liability by making a new contract with another to assume it.” “It is a general principal that an attorney cannot by virtue of his general authority as attorney, bind his client by any act which amounts to a surrender or waiver in whole or in part of any substantial right of the client, . . .” 5 Am. Jur., § 70, p. 300. “The implied authority of an attorney to make stipulations is ordinarily limited to matters of procedure in the management or prosecution of the action. He cannot without special authority dispose of or adjust the substantial rights of his client by compromise or otherwise,” 132 Am. State Reports, p. 156. “An attorney employed under a general retainer cannot waive any of the substantial rights of his client without the latter’s consent, nor make any executory contract in relation to his client’s rights, nor in general, compromise them by any voluntary act of his own,” Anno. 76 A. L. R. p. 1461.

On the whole case, finding no error, the decree is affirmed.


text:
    Commr. of Revenues v. Pacific Fruit Express Co.
    5-1072
    296 S. W. 2d 676
    Opinion delivered December 3, 1956.
    [Rehearing denied January 14, 1957.]

      Herrn Northcutt, for appellant.

      Barrett, Wheatley, Smith S Deacon, for appellee.
   J. Seaborn Holt, Associate Justice.

In this action appellant sought to collect from appellee an income tax in the amount of $2,842.75. From a decree holding, in effect, that appellee was not subject to the tax comes this appeal. The facts were stipulated and were not in dispute. Appellee was organized under the laws of Utah and is located, with its principal place of business, in California; it owns refrigerator cars which it leases to various railroads throughout the United States; and some of its leased cars, on which appellee paid acl valor-em tax, moved interstate coming through Arkansas on rail lines of carriers connecting with roads that operated cars leased from appellee. Appellee had no office in Arkansas, had no property in Arkansas with a permanent situs, had no agent or employee in Arkansas, and transacted no business in Arkansas. No shipments of merchandise in cars of appellee originated in this state. The income of appellee, on which Arkansas bases its right to tax, was derived solely from contracts made in other states for the hire or lease of appellee’s cars and used by the contractees in interstate transportation of perishable products. All cars of appellee were delivered to the contractees outside of Arkansas and appellee had no control as to where such cars would be used. There appears to be no question as to the amount of the income tax due Arkansas, if any is due to be paid. The amount of the tax here was based on the percentage of cars moving on carrier lines in Arkansas as applied to the various items of gross income and expenses realized by appellee from all sources applicable to its refrigerator cars, and, of the total cars belonging to appellee in operation in 1954, 0.5435 percent moved within the confines of Arkansas and such percentage was used by appellee in applying to the various items of gross income and expenses in its income tax report.

The issues presented, says appellee, are: “I. The Arkansas Income Tax Law does not impose an income tax on appellee. II. If any such tax is imposed by the law it is unconstitutional and deprives appellee of its property without due process of law, and is an improper burden upon Interstate Commerce.”

I.

Does the Arkansas Income Tax Law impose an income tax on appellee? We hold that it does. The Commissioner of Revenues of Arkansas bases the state’s right to recover the income tax here imposed on § 84-2003, Ark. Stats. 1947. Subsection (c) of this section provides: “(c) On income of Arkansas property of nonresidents. A like tax is hereby imposed and shall be assessed, levied, collected, and paid, annually, at the rates specified in this section upon and with respect to the entire net income as herein defined, except as hereinafter provided, from all property owned, and from every business, trade or occupation carried on in this State by individuals, corporations, partnerships, trusts or estates, not residents of the State of Arkansas; and each, such non-resident as defined herein shall file income tax returns with the State of Arkansas and pay the tax without distinction, or incident to the laws of such nonresident’s resident state; it being the specific intention of the General Assembly that the tax shall be collected from property owned and from the conduct of every business, trade or occupation, whether or not the individuals, corporations, partnerships, trusts or estates are qualified to do business in the State of Arkansas and whether or not such business, trade or occupation shall be conducted in interstate commerce; provided, however, that the payment of the tax shall be based upon net income properly allocated as net income arising from the ownership of property and the conduct of business, trade or occupation in the State of Arkansas . . . (Acts 1929, No. 118 § 3, p. 573; Pope’s Digest, § 14026; Acts 1947, No. 135, § 1, p. 319).” Our holding (in 1944) in the case of McLeod, Comm. of Revenues v. Memphis Natural Gas Company, 207 Ark. 879, 183 S. W. 2d 927, and the principles of law there announced are controlling here. In that case, on facts similar in effect to those presented here, wherein the appellee, a non-resident corporation, owned and operated property in Arkansas — a gas pipe line several miles in length running from Louisiana across the southeast corner of Arkansas into Mississippi at Greenville — we had occasion to construe and apply the above § 84-2003, sub-section (c) as it then existed prior to its amendment by our 1947 Legislature. In 1944 this sub-section (c) provided: “(e) A like tax is hereby imposed and shall be assessed, levied, collected, and paid, annually, at the rates specified in this section upon and with respect to the entire net income as herein defined, except as hereinafter provided, from all property owned, and from every business, trade or occupation carried on in this State by individuals, corporations, partnerships, trusts or estates, not residents of the State of Arkansas.” The remainder of this section was added in 1947 and is now in force.

In the McLeod Case above, prior to the amendment, we held: “1. Taxation — Income Taxes. — Appellee, a foreign corporation not authorized to do business in this state transporting gas through its pipeline from Louisiana fields across the southeast portion of this state selling gas to a distributor to be sold to consumers, is liable for the income tax imposed by the income tax law. Pope’s Digest § 14026 (c) (Now § 84-2003) 2. Interstate Commerce • — It was not the purpose of the commerce clause of the Constitution of the United States to relieve those engaged in interstate commerce of their just share of the tax burden, merely because the tax incidentally increased the cost of transacting the business. 3. Interstate Commerce • — ■ Taxation. — Even if the business of a foreign corporation were wholly interstate commerce, a non-discriminatoiy tax imposed by a state upon the net income derived from within the state is not prohibited by the commerce clause of Constitution of the United States, whether the corporation has a commercial domicile in that state or not. 4. Taxation • — - Income Taxes. — Appellee, owning a pipe line and transporting gas across this state which it sells to a distributor to be sold to consumers, is liable for the tax imposed by the statute (Pope’s Digest, § 14026) on the net income derived from the business transacted in this state, although it is not commercially domiciled here.” In the present case the entire net income tax, on which appellant bases its right to recover in this action, is derived from the non-resident appellee’s property, — its cars —, which it owned and which were operated on railroad lines in Arkansas and the tax assessed appears to be on net earnings justly attributable to Arkansas, and certainly we think the authority to impose and enforce such a tax, which we upheld in the McLeod Case, was made even stronger by the above amendment which the Legislature added in 1947 (subsequent to the McLeod opinion) and in which it expressed in no uncertain terms its intent to continue to impose and collect an income tax on non-resident corporations in a- situation such as we have here. This sub-section (c) as now constituted says that: . . each non-resident corporation . . . shall file income tax returns . . . and pay the tax,”' without regard to the laws of the state in which such non-resident resides, “. . . it being the specific intention of the General Assembly that the tax shall be collected from property owned . . . whether . . . the corporations are qualified to do business in the State of Arkansas, or whether such business . . . shall be conducted in interstate commerce; provided . . . that the payment of the tax shall be based upon net income property allocated as net income arising from the ownership of property and the conduct of business . . . in the State of Arkansas.” As indicated, we hold that appellee falls within the provisions of the statute and is subject to the tax.

II.

As pointed out above, the imposition and collection of this income tax was declared constitutional in the McLeod Case. We there said: “But appellee insists that its net income in Arkansas is derived wholly from Interstate Commerce, and that if the Arkansas Income Tax Act of 1929 is construed to apply to appellee’s income, it is unconstitutional and void as being in violation of the commerce, the due process and the equal protection clauses of the Constitution of the United States. We sustained the constitutionality of this act in Stanley v. Gates, 179 Ark. 886, 19 S. W. 2d 1000 . .

We conclude that the trial court erred in directing a refund of the money so paid by appellee to appellant and accordingly the decree is reversed and the cause dismissed.


author: Ed. F. McFaddin, Associate Justice.

text:
    Dr. Pepper Bottling Co. of Newport v. Whidden.
    5-1087
    296 S. W. 2d 432
    Opinion delivered December 3, 1956.
    [Rehearing denied January 7, 1957.]

      Williamson & Williamson, and Kaneaster Hodges, for appellant.

      Murphy & Arnold, for appellee.
   Ed. F. McFaddin, Associate Justice.

This case was tried before the Circuit Judge without a jury, and the plaintiff recovered a judgment for $3,000 for injuries claimed to have been received when a bottle of carbonated beverage exploded. The Trial Court stated:

“Since the Supreme Court of Arkansas positively and unequivocally stated that the res ipsa loquitur doctrine should be applied in the State of Arkansas in the Hicks case, and it is the recollection of the court it was again applied in the Mattice case, and there are no recent decisions altering the Supreme Court’s declaration to that effect, then the law as laid down in those two cases by the Supreme Court of Arkansas is the law in Arkansas as pertaining to this type of action.

“The Court finds as a fact from the testimony of Von Dean Whidden that there was an explosion; that the injury of which she complains was the result of that explosion, or phrased differently, that the explosion was the proximate cause of that injury. The Court further finds as a fact there was no negligence on the part of the plaintiff. The Court further finds as a fact that there was no intervening cause by the plaintiff, nor does the record show there was an intervening cause set in motion by any other individual. And applying the res ipsa loquitur rule, the court finds for the plaintiff in the amount of $3,000.”

Appellant brings this appeal, presenting seven points for reversal. We group these points:

I. The appellant says: The physical facts demonstrate that the bottle did not break from internal pressure.” Viewing the evidence in the light most favorable to the appellee, the following facts appear: Von Dean Whidden was a little girl eleven years old in 1950. Her father, Luther Whidden, had a country grocery store and purchased carbonated beverages from the appellant, Dr. Pepper Bottling Company of Newport, Arkansas (hereinafter called “Dr. Pepper Company”). The bottles containing the carbonated beverages were filled, charged, capped and crated by the Dr. Pepper Company; and then delivered and stacked in Luther Whidden’s store by the Dr. Pepper Company. On July 11, 1950, Von Dean Whidden was standing near the stacked crates of bottles, and one of the bottles containing a carbonated beverage (“strawberry soda pop”) exploded, hurling a piece of glass that struck and cut Von Dean’s bare foot and inflicted painful injuries thereto. The theory of the plaintiff was that the Dr. Pepper Company had been negligent in the bottling of the carbonated beverage, that such negligence caused the explosion and resulting damages, and that under the rule of res ipsa loquitur she should recover, unless Dr. Pepper Company proved itself free from actionable negligence.

There were only two witnesses who attempted to tell how the injury occurred: they were the little girl, Von Dean; and her mother, Mrs. Whidden. Von Dean said that the bottle that broke was in the top case of the stack and that she was about four feet from the bottle when it exploded.

‘ ‘ Q. How did the bottle get from the case in which it was setting, over in your foot?

A. Well, it exploded. When it exploded it just flew over.

Q. It flew across there?

A. Well, it blowed up, flew over and hit my foot . . .

Q. What part of the bottle hit your foot?

A. Top part.

Q. Did you observe the top part; did you see it?

A. Yes . . .

Q. Did you hear a noise?

A. I don’t remember.

Q. You don’t remember hearing a noise?

A. No . . .

Q. Do you know and do you remember whether or not you and your brother or anybody else in your presence, touched that bottle in any way?

A. They had not.”

Mrs. Whidden testified:

“A. . . . I was in the back tending to the berries. She went to crying in the front part of the building. There is just a doorway in between and the curtains were pulled back. I ran in there and asked what was wrong and she told me, ‘A bottle blowed up.’ Half of it was still in the case and the other half with the top on it and was laying there by her.

Q. How far was it laying from her foot?

A. Eight by her. I would say that close to her (indicating).

Q. That close is three or four inches?

A. Yes, that would be about right.

Q. Was her foot bleeding?

A. It sure was . . .

Q. You didn’t hear a noise? . . .

A. I didn’t hear the bottle.”

The appellant says that Von Dean’s and Mrs. Whidden’s description of “. . . two whole parts of the broken bottle demonstrates that it had not exploded, but that, rather, it was broken by an external blow”; and the appellant says that the testimony of these witnesses should be disregarded as contrary to physical facts and the law of physics: citing Magnolia Petroleum Co. v. Saunders, 193 Ark. 1080, 104 S. W. 2d 1062; Platt v. Owens, 183 Ark. 261, 35 S. W. 2d 358; and St. L. S. W. Ry. Co. v. Ellenwood, 123 Ark. 428, 185 S. W. 768.

But in Alldread v. Mills, 211 Ark. 99, 199 S. W. 2d 571, we discussed in some detail this matter of physical facts and physical laws:

“ ‘So frequently do unlooked-for results attend the meeting of interacting forces that courts, in such cases, should not indulge in arbitrary deductions from physical law and fact, except Avhen they appear to be so clear and irrefutable that no room is left for the entertainment, by reasonable minds, of any other.’

• “Regarding the defendant’s first assignment, about incontrovertible physical facts in this case, it is not for us to substitute our conclusions for those of the jury, unless the physical facts demonstrate beyond a doubt that the verdict Avas erroneous. We cannot so declare in this case.”

We conclude that in the case at bar we cannot say as a matter of law that it Avould have been impossible for a bottle to explode and the top part of the bottle to be hurled four feet, just as the witnesses stated. The Court saAV these Avitnesses and believed what they said, and Ave cannot say that their testimony Avas physically impossible to be true.

II. Bes Ipsa Loquitur. Appellant says: “The evidence is insufficient to establish an explosion for application of res ipsa loquitur doctrine.” What we have said in disposing of appellant’s first point applies here also. It must be borne in mind that there Avas evidence (1) that there had been no moving or handling of the bottles or crates from the time and place where Dr. Pepper’s delivery man placed them a feAV days earlier; and (2) that the bottle Avas still in the same case Avhen it exploded and injured the plaintiff. The evidence offered by the plaintiff placed the burden on the defendant of proving itself free from negligence under the res ipsa loquitur doctrine.

The appellant says: “There was no finding by the Court that defendant was negligent.” We have previously copied two paragraphs from the judgment of the Trial Court. The answer to the appellant’s contention is found in the Court’s finding that there was an explosion and that no intervening cause had been set in motion by the plaintiff or anyone else. As stated in the Hicks case and the Mattice case, cited by the Trial Court, and as reiterated in our more recent case of Coca-Cola Bottling Co. v. Jones, 226 Ark. 953, 295 S. W. 2d 321 (Case No. 1027, decided Nov. 12, 1956), the burden shifted to the defendant, Dr. Pepper Company, to prove itself free of negligence in manufacturing the carbonated beverage and in the selection of the bottle. The Trial Court’s application of the facts in this case to the res ipsa loquitur rule was correct.

III. Alleged Errors In The Trial And The Amount Of The Judgment. There are three of these points:

A. In the trial some reference was made to a letter to an insurance company; and appellant says that the judgment should be reversed because of such reference. But it must be remembered that this case was tried before the Judge without a jury. Even if there had been a sufficient objection to this insurance reference, certainly the Judge had judicial ability and discretion to refuse to allow any such reference to influence him. In 56 A. L. R. 1418 there is an Annotation concerning the effect of statements that the defendant carried liability insurance; and in that Annotation, at page 1487, it is stated:

‘ ‘ However, the rule that the introduction of evidence to show that defendant in a personal-injury case is protected by indemnity insurance is a ground for new trial does not apply in a case tried by a judge without a jury, or at least, if in such case the affirmative answer of the witness is afterwards struck out as incompetent and irrelevant, it will be treated as error without prejudice.”

We have held that in some instances the instruction of the Trial Court to the jury will remove the effect of the error. (See Adams v. Summers, 222 Ark. 924, 263 S. W. 2d 711.) Certainly the Trial Court could remove the same effect of error from his own mind. So wc find no merit in appellant’s contention on this point.

B. In the trial, a witness stated that Mrs. Whidden had told him two days after the injury about how Von Dean was hurt; and appellant claims that this self-serving evidence was inadmissible and. necessitates reversal. A careful reading of the record convinces us that the witness was merely distinguishing between two conversations about five years apart; that-the effect of what the witness said was not of sufficient importance to justify a reversal; and that from the way the matter came about in the record, any error was invited by appellant.

C. The Trial Court gave judgment for the plaintiff for $3,000; 'and appellant claims that this amount is excessive. We find no merit in’this contention. The plaintiff suffered an injury to her foot and tendons. Besides the suffering, pain and injury in 1950, she was later compelled in 1955 to have an operation to correct the adhesion of the tendons; and medical and hospital expenses exceeded $209. The child suffered at intervals during the 5-year period and the attending physician testified that the operation did not completely relieve the pain. The child testified that' she was continuing to suffer at the time of the trial on' February 20, 1956. In view of all of the evidence, we do not regard the verdict as excessive. /

IV- Newly Discovered Evidence. Finally, appellant claims that it was entitled to a new trial on account of newly discovered evidence. This new evidence was in the form of a booklet, written and published in 1939 by F. W. Preston, entitled, “Bottle Breakage — Causes and Types of Fracture.” In the hearing on the motion for new trial, the officer of the Dr. Pepper Company testified that he had been in the bottling business some twenty or twenty-five years, and that the treatise by F. W. Preston is “. . . known as the bible. As I expressed it a while ago, the supreme court . . . This treatise is written by the man who heads the laboratory. ’ ’

This article was published in February, 1939; and yet appellant’s witness claimed that he did not know of this article until after the trial of February 20, 1956. The testimony certainly shows a lack of diligence: a booklet as important as a “bible” should have been familiar to one in the bottling business in far less than seventeen years from the date of publication. In the absence of a showing of diligence, the Trial Court did not abuse its discretion in refusing the motion for new trial. Sellers v. Harvey, 222 Ark. 804, 263 S. W. 2d 86; Stockton v. Baker, 213 Ark. 918, 213 S. W. 2d 896.

Affirmed.

Mr. Justice Ward not participating.

       The action was filed by Luther Whidden, as father and next friend of Von Dean Whidden, a minor, but we speak of the little girl as the “plaintiff” or the “appellee”.

       This is Coca-Cola Bottling Co. v. Hicks, 215 Ark. 803, 223 S. W. 2d 762.

       This is Coca-Cola Bottling Co. v. Mattice, 219 Ark. 428, 243 S. W. 2d 15.

         This is our rule in testing the sufficiency of the evidence to sustain the verdict or findings of fact from the Circuit Court. Harrison v. Rosensweig, 185 Ark. 281, 47 S. W. 2d 2; Potashnick v. Archer, 207 Ark. 220, 179 S. W. 2d 696; Albert v. Morris, 208 Ark. 808, 187 S. W. 2d 909.

       The injury was on July 11,1950, and this action was filed October 13,1955, and the cause was tried on February 20, 1956; but there is no suggestion of any plea of limitations in this record.