text:
    Horn v. Horn.
    5-2183
    339 S. W. 2d 852
    Opinion delivered November 14, 1960.

      Richard W. Hobbs, for appellant.

      J. Harrod Berry, for appellee.
   Ed. F. McFaddin, Associate Justice.

This appeal questions the decree of the Chancery Court made to obtain the dower previously awarded to the wife in a divorce decree. On July 25, 1958 the Pulaski Chancery Court rendered a decree awarding Mrs. Mary Horn (appellee here) a divorce from J. W. Horn (one of the appellants here), and the decree contained this language as to dower and retained jurisdiction:

“The Court further finds that Plaintiff is entitled to the sum of $11,666.66 as a statutory dower settlement of and from the monies of defendant, said sum being one-third of the monies of defendant, and which said sum is hereby decreed to said plaintiff against defendant as a property settlement. It is therefore considered, ordered and decreed by this Court that defendant J. W. Horn shall pay immediately to plaintiff the said sum of $11,666.66, for which execution, garnishment, and citation for contempt may issue as upon a judgment at law. . . . The Court doth retain control of this cause for such further orders and proceedings as may be necessary to enforce the rights of the parties herein. . . . ”

It had been shown in the divorce case that Mr. Horn had recently received the sum of $35,000 cash in a settlement with the Rock Island Railroad Company; and the Court awarded Mrs. Horn $11,666.66 from said amount. Later, Mr. Horn sought to have the decree of July 25th modified, and claimed that he had no money at the time the decree was rendered; but such effort at modification was unsuccessful and the decree of July 25, 1958 has long since become final and is not an issue on this appeal.

Mr. Horn did not pay the dower awarded to Mrs. Horn, and in September, 1958 she filed in the Pulaski Chancery Court her petition and amended petitions alleging, inter alia, that Mr. Horn was attempting to conceal his assets by having his property placed in the name of W. C. Irwin and Mary Irwin, husband and wife; and certain definitely described property in G-arland County, Arkansas was listed in the petitions. The Arkansas Trust Company of Hot Springs was also named as a garnishee. The status of the Irwins when brought into the case and their objections to such procedure will be discussed in Topic I, infra. Trial in the Pulaski Chancery Court resulted in a voluminous record. On November 2, 1959 a decree was rendered in which the Pulaski Chancery Court found that Horn had concealed his assets by putting them in the name of the Irwins and that the Irwins were trustees of the Horn assets. The decree directed execution issue against specific property to satisfy the dower award of Mrs. Horn; and it is from the said decree of November 2, 1959 that this appeal is prosecuted both by Mr. Horn and by the Irwins.

I. Jurisdiction And Venue. As aforesaid, Mrs. Horn filed her petition in the Pulaski Chancery Court in September, 1958 and for the first time named the Irwins. They filed a demurrer to the petition and amended petitions, stating that, “. . . the Court has no jurisdiction of the persons or subject of the action, and that the complaint did not state facts sufficient to constitute a cause of action.” When the demurrer was overruled, the Irwins filed answer and proceeded to trial, which resulted in the decree of November 2, 1959, as aforesaid. On appeal the Irwins now say: “ (a) Appellee’s petition was an action independent of the divorce; and (b) the venue of a subsequent suit would be in G-arland County. ’ ’ To sustain their contentions, the Irwins cite: Renn v. Renn, 207 Ark. 147, 179 S. W. 2d 657; Hardy v. Hardy, 228 Ark. 991, 311 S. W. 2d 761; Wilson v. Wilson, 163 Ark. 294, 259 S. W. 742; Fullerton v. Fullerton, 230 Ark. 539, 323 S. W. 2d 926; Harris v. Smith, 133 Ark. 250, 202 S. W. 244; Ark. Mineral Products Co. v. Creel, 181 Ark. 722, 27 S. W. 2d 1003; and also the following sections of Arkansas Statutes: 34-1214, 29-506, 29-508, 27-601, and 27-613.

The gist of the Irwin argument is that: (1) when the Pulaski Chancery Court rendered judgment for Mrs. Horn for $11,666.66 such judgment made her a creditor of Mr. Horn; and (2) as a creditor she should have proceeded in G-arland County to seek to set aside the alleged fraudulent conveyances involving the real estate in that County. We do not agree with the Irwins in these contentions. There are several possible answers, but we need give only one. In the divorce decree of July 25, 1958, the Court found that Mr. Horn had certain moneys and that $11,666.66 was one-third of the said moneys; and this amount was awarded Mrs. Horn as “statutory dower”; and the decree retained control of the cause “for such further orders and proceedings as may be necessary to enforce the rights of the parties herein.” When Mr. Horn did not pay the money in accordance with the decree, Mrs. Horn had a right to ask the Chancery Court to aid her in obtaining her dower. She had learned that Mr. Horn was transferring his property and assets to the Irwins, and she caused them to be cited into the Pulaski Chancery Court.

Mrs. Horn’s proceedings against the Irwins were in the nature of an equitable garnishment. In Riggin v. Hillard, 56 Ark. 476, 20 S. W. 402, Chief Justice Cockrill said: “Every equitable proceeding wherein a remedy is devised to apply the debt of a third person to the extinguishment of the plaintiff’s demand against his debtor is a suit for an equitable garnishment.” In So. Lbr. Co. v. Riley, 224 Ark. 298, 273 S. W. 2d 848, we held that garnishment in equity was available as a remedy to reach property fraudulently conveyed. And in Sneed v. Sneed, 172 Ark. 1135, 291 S. W. 999, we held that equitable garnishment was the proper remedy allowed a divorced wife, to whom the husband owed money, to impound a fund due the husband. Mrs. Horn wanted to ascertain and subject to her dower claim whatever funds or properties the Irwins had that belonged to Mr. Horn. Under § 31-513, Ark. Stats, the Pulaski Chancery Court had power to issue garnishment and/or execution on its decree of July 25, 1958. See The McGehee Bank v. Greeson, 223 Ark. 18, 263 S. W. 2d 901.

The Court found that the Irwins had in fact received money from Horn and held property for him, and execution was then issued by the Pulaski Chancery Court. Under § 30-202, Ark. Stats., an execution may be levied on property conveyed to defraud creditors. See Baldwin v. Williams, 74 Ark. 316, 86 S. W. 423. What the Pulaski Chancery Court did in the case at bar is very much like what the Perry Chancery Court did in Morgan Utilities v. Perry County, 183 Ark. 542, 37 S. W. 2d 74. See also Merchants & Farmers Bank v. Harris, 113 Ark. 100, 167 S. W. 706. The cases cited by the appellants, as previously listed, have factual situations far different from those existing in the case at bar; and we find no merit to the Irwins’ contentions as made under this point.

II. The Facts. The Irwins, as well as Mr. Horn, most vigorously contend that the evidence in the case at bar does not support the Chancellor’s finding that the Irwins had any money or property belonging to Mr. Horn at any time after July 25, 1958; and this contention necessitates a brief recital of the salient facts. As previously indicated, Mr. Horn obtained a settlement of $35,000 cash for injuries which he received while working for the Rock Island Railroad Company. On March 24, 1958 Mr. Horn (listing his residence as 518 Ringo, Little Rock, Arkansas) opened up three accounts in the Arkansas Trust Company in Hot Springs, Arkansas. The first was for $5,000; the second was for $5,000; and the third was for $24,500. On March 25, 1958 (just five days later) Mr. Horn closed out all three of these accounts.

The testimony is crystal clear — in fact, it is practically admitted — that on March 25, 1958 Mr. Horn delivered to W. C. Irwin a cheek for $24,500, and on the same day W. C. Irwin opened an account in the Arkansas Trust Company and deposited therein the $24,500 check that Mr. Horn gave him. The Irwin account was styled, “W. C. Irwin or W. C. Irwin, Jr., Agent.” From that account Irwin bought the real estate and the personal property here involved. The photostats of the cheeks and the bank records establish all these facts without a doubt. But to overcome the effect of the above proof, both Mr. Irwin and Mr. Horn testified to a most bizarre statement of facts. Mr. Horn said he transferred the $24,500 to Irwin so Irwin could let him have money when he wanted it, even when the banks were closed; that from time to time he obtained cash from Irwin for large sums of money; and that he gambled away this money at the races, and various other places, so that by July 25, 1958 Horn had no money, and in fact owed money to Irwin.

Irwin testified to practically the same statement of facts: that he paid Horn in cash from money that Irwin had in his safe at the Martin Recreation Center in Hot Springs; that at one time he gave Horn three $500 bills; and by July 25, 1958 Irwin had paid Horn back all of Horn’s $24,500. Irwin explained the record of checks from the Arkansas Trust Company by saying that he paid Horn in cash and then used the trustee account in lieu of opening up a personal account. This testimony was most bizarre and the Chancery Court did not believe the testimony. On appeal the attorneys for Irwin and Horn tell us that the testimony of their clients is uncontradicted by anyone and that the Chancery Court committed reversible error in failing to believe the stories of Irwin and Horn. That is the gist of this point.

We hold that the Chancery Court was not bound to give credence to the stories told by Irwin and Horn. All the testimony offered to prove a return of any part of the $24,500 by Irwin to Horn was the testimony of these parties; and each was an interested party in this proceeding by Mrs. Horn to recover her dower. The testimony of a litigant interested in the result is never considered uncontradicted in weighing such testimony. In Metcalf v. Jelks, 177 Ark. 1023, 8 S. W. 2d 462, we said: “Another rule established by this Court is that the testimony of a party to an action, who is interested in the result, will not be regarded as undisputed in determining the legal sufficiency of the evidence. K.C.S.R. Co. v. Cockrell, 169 Ark. 698, 277 S. W. 7; Gish v. Scantland, 151 Ark. 594, 237 S. W. 98.” One strong bit of testimony is that a part of the $24,500 was used by Irwin to purchase a house in Hot Springs and pay for the furnishings in the house; that Horn was living in the house at the time of the trial; and that he sought to claim the house as his homestead and the furnishings as his personal exemptions against Mrs. Horn’s dower claim. How, then, can Horn be heard to say that he is renting the house and furniture from his good friend Irwin! It would unduly prolong this opinion to detail other evidence.

The decree of the Pulaski Chancery Court is affirmed.

       The specific property (both real and personal) was sold and purchased by Mrs. Horn for the amount of her dower claim.

       The record before us fails to disclose that Mr. Horn ever filed any pleading or objection to the venue of the Pulaski Chancery Court, so this topic involves only the Irwins.

       We have a number of other cases on equitable garnishment. Some of them are cited in C. A. Rees & Co. v. Pace, 156 Ark. 473, 246 S. W. 491.

       An interesting case from a sister jurisdiction and involving the wife’s effort to recover dower in property fraudulently conveyed is Newton v. Falligant, 166 Ga. 450, 143 S. E. 391.


source: Caselaw Access Project

author: George Rose Smith, J. George Rose Smith, J.,

license: Public Domain

text:
    Carrick v. Gorman.
    5-2240
    340 S. W. 2d 377
    Opinion delivered November 14, 1960.
    [Rehearing denied December 19, 1960.]

      Holland A. Bradley, for appellant.

      Clark, Clark & Clark, for appellee.
   George Rose Smith, J.

In the summer of 1959 the appellants, a retired school teacher and his wife, came to Arkansas with the thought of buying a farm or business with their savings. On July 25 they executed a contract by which they agreed to buy the Bachelor Hotel in Conway from the appellee Gorman for $85,000, with $8,500 being paid in cash and the remainder being payable one month later. The contract required Gorman to furnish good title to the premises.

After signing the contract the Carricks went back to Colorado to arrange for the sale of their home. They returned to Conway about the middle of August and assumed the possession and control of the hotel. The sale was not consummated on August 25, as expected, because the Car-ricks were still trying to raise the rest of the purchase money. In the latter part of September, with the sale still awaiting completion, the Carricks made up their minds that they had been defrauded. They abandoned the hotel and went back to Colorado.

This suit was brought by Gorman, to enforce a demand note assertedly given by the Carricks for the unpaid purchase price. (The Carricks say the note was merely tentative, being dependent upon the due completion of the sale.) The defendants filed an answer and cross complaint seeking a rescission of the contract and a recovery of their down payment and of certain expenditures for the improvement of the hotel. Gorman’s real estate agent, who had received the down payment, was brought in as a third party defendant.

At the trial Gorman introduced the demand note and rested his case. The Carricks assumed the burden of going forward with the evidence and introduced proof in support of their answer and cross complaint. When the Carricks reached the close of their case Gorman undertook to file a demurrer to their evidence. This demurrer was sustained by the chancellor, upon the theory that the Carricks had offered no substantial competent evidence to sustain their position. Werbe v. Holt, 217 Ark. 198, 229 S. W. 2d 225. This appeal is from a decree dismissing the cross complaint and foreclosing Gorman’s lien.

The appellants are right in contending that Gorman was not entitled to file a demurrer to the evidence. In the absence of a statute our practice does not recognize that particular pleading. Kelley v. Northern Ohio Co., 210 Ark. 355, 196 S. W. 2d 235. Our only statute upon the subject provides: “Upon the closing of plaintiff’s or moving party’s proof and an announcement by plaintiff or moving party to that effect,... the defendant, or defendants, may file a written motion challenging the sufficiency of the evidence ...” Ark. Stats. 1947, § 27-1729.

The statute refers only to the situation at the close of the plaintiff’s or moving party’s proof. We need not speculate whether the defendant might be regarded as the moving party if lie filed a pleading confessing the plaintiff’s whole canse of action and thereby assumed the true burden of proof rather than the mere burden of going forward with the evidence. Here the Carricks denied the validity of the note sued upon. The plaintiff Gorman was therefore compelled to offer proof of his cause of action, which he did by introducing the note. In response to that proof the defendants presented testimony to show that the note was given merely for accommodation, as well as evidence supporting their cross complaint for rescission. Neither the restricted language of the statute nor its basic intent can be regarded as allowing the plaintiff to test the defendant’s proof when both parties have offered substantive evidence to support their contentions. We must conclude that Gorman’s attempted demurrer to the evidence was not a permissible pleading. In the Kelley case, supra, we held that one who files an unauthorized demurrer to his adversary’s evidence thereby waives the right to adduce additional proof. It follows that Gorman waived his right to offer further evidence, and the case comes to us for final trial de novo upon the record made below.

On the merits the merchantability of Gorman’s title emerges as the decisive issue. A purchaser, until he accepts a deed to the land, is entitled to rescission upon a showing that the vendor’s title is not marketable. Sutton v. Ford, 215 Ark. 269, 220 S. W. 2d 125. Here it appears that the Carricks neither accepted a deed nor approved the deposit of a deed in escrow. Indeed, Dr. Carrick testified without contradiction that he had not even reached the point of employing a lawyer to examine the title.

The undisputed evidence shows that Gorman’s title is not merchantable. Two surveyors testified that the brick wall of the hotel building encroaches upon the adjoining land, some of which is owned by the United States. It goes almost without saying that in this situation the seller’s title is not merchantable. Thompson on Real Property (Perm. Ed.), § 4586. In fact, Gorman does not in his brief deny that his title is defective. Instead, he advances two reasons for a rejection of the appellants’ request for rescission.

First, it is contended that the chancellor was right in excluding all testimony about the encroachment, as this defect was not specifically pleaded in the cross complaint. It appears, however, that the cross complaint did allege that ‘ the title to said hotel real property ... is not marketable.” This assertion was a mere conclusion of law, but Gorman nevertheless filed a responsive pleading in which he expressly denied that his title was not merchantable. It was not until the surveyors ’ evidence was offered at the trial that Gorman interposed the objection now before us.

We hold that the objection came too late. A motion to make more definite and certain is the proper way to pinpoint an adversary’s error in pleading a conclusion of law. When a litigant elects to join issue with such a defective allegation he waives the defect and cannot raise his point for the first time by an objection to the evidence. Choctaw, O. & G. R. R. Co. v. Doughty, 77 Ark. 1, 91 S. W. 768; Jonesboro, L. C. & E.R.R. Co. v. Roard of Directors, 80 Ark. 316, 97 S. W. 281; Wassell v. Sprick, 208 Ark. 243, 185 S. W. 2d 939.

Secondly, the appellee insists that a vendee cannot avail himself of defects in the vendor’s title without first giving the vendor notice and a reasonable opportunity to cure the flaw. This is true, and the rule would be applicable if the Carricks had taken the initiative in seeking to obtain a cancellation of the contract without affording Gorman a chance to remedy defects found in the title. Mays v. Blair, 120 Ark. 69, 179 S. W. 331. But when, as here, it is the seller who brings the matter to a head by filing suit to enforce the contract, and the purchaser pleads a defect in the title, it would be manifestly impractical to permit the seller to ask in the middle of the trial that the hearing be adjourned to afford him an opportunity to remedy the defect. Hence the rule is that a vendor must have good title when he sues for specific performance. Thompson, supra, § 4641; Powell on Real Property, § 928.

It follows from what we have said that the appellants are entitled to the entry of a decree canceling the note and the contract of sale and restoring to them their down payment, with interest. They are not, however, entitled to recover the sum sought for their improvements, as their proof is deficient in failing to show the extent, if any, to which the asserted improvements enhanced the value of the hotel property. Abraham v. Hatchett, 128 Ark. 15, 193 S. W. 72, 6 A. L. R. 88.

Reversed.

George Rose Smith, J.,

on rehearing. In a petition for rehearing the appellee Gorman earnestly contends that we have abrogated the settled rule which requires a vendee-defendant to plead and prove the specific defect of title that he relies upon to defeat the vendor’s suit for specific performance. To support his position Gorman cites Bolton v. Branch, 22 Ark. 435; Walker v. Towns, 23 Ark. 147; Anderson v. Mills, 28 Ark. 175; Benjamin v. Hobbs, 31 Ark. 151; McGowan v. Smith, 68 Ark. 215, 57 S. W. 256; and Lone Rock Bank v. Pipkin, 169 Ark. 491, 276 S. W. 588.

We adhere to the cited decisions, but we do not consider any of them to be in point. In two of the cases, Bolton v. Branch and Anderson v. Mills, the vendeedefendant attempted to cast upon the plaintiff the burden of showing his ability to convey good title. We held that the defendant had the burden of pleading and proving specific defects. In two more of the cases, Benjamin v. Hobbs and McGowan v. Smith, the vendee-defendant pleaded as a conclusion of law that the plaintiff had no title, and we affirmed the trial court’s action in sustaining a demurrer to that plea. In the other two cases, Walker v. Towns and Lone Rock Bank v. Pipkin, the vendeedefendant failed to prove that the plaintiff’s title was defective.

The case at bar differs sharply from all six of the foregoing decisions in that here the vendee-defendants actually proved that the plaintiff’s title is not merchantable. Thus they discharged their burden of proof. The only remaining question is the effect of their pleading a conclusion of law instead of the specific defect relied upon. It is true that the defect should have been pleaded, and under the eases now cited the plaintiff might have challenged the faulty pleading by filing a demurrer or a motion to make more definite. In that event the defendants would presumably have pleaded the defect which they ultimately proved. But Gorman elected to join issue with the defendants’ imperfect cross complaint, by filing a responsive pleading in which Gorman denied that his title was not merchantable. We are still of the opinion that Gorman’s action amounted to a waiver of the flaw in his adversary’s pleading.

Rehearing denied.


author: Paul Ward, Associate Justice.

text:
    United Insurance Co. of America v. Woodard.
    5-2242
    339 S. W. 2d 862
    Opinion delivered November 14, 1960.

      Charles E. Plunkett and J. Bruce Streett, for appellant.

      Paul K. Roberts, for appellee.
   Paul Ward, Associate Justice.

This appeal involves the interpretation of the provisions of an insurance policy executed by appellant in favor of appellee on November 20, 1956. The provisions of the policy in dispute provide for payment of $200 per month for loss of time due to an accident. Appellee sued appellant for the sum of $400, being the amount claimed for time lost from August 28,1958 to October 28,1958. The trial court, sitting as a jury, found in favor of appellee and appellant now prosecutes this appeal for a reversal.

Most of the essential facts were stipulated or are undisputed. Appellee, who was engaged as a contractor to supply pulp wood, suffered an injury to his back while so engaged on January 11,1958, he was disabled and unable to work from that date until March 7,1958, and he was paid by appellant the sum of $376.66 for the loss of time. On the latter date appellee tried to resume his regular duties and worked intermittently until August 28, 1958, when, as he says, he had to quit work entirely because of the aforementioned injury to his back, and he was unable to work or at least did not work any more until October 28, 1958. It is for the loss of this two months time that he seeks to recover $400 under the insurance policy.

In seeking a reversal appellant relies on three designated points, viz: The court erred in refusing to dismiss appellee’s complaint; the court erred in refusing to direct a verdict in its favor at the conclusion of appellee’s testimony, and; the court erred in finding in favor of appellee. On all of these points, all discussed together by appellant, and from this discussion it appears that it relies on two principal contentions: ONE; Two “Riders” attached to the policy on June 1, 1958, preclude recovery. TWO: In the alternative, the disability (causing the loss of time) was not continuous as required by the policy.

ONE: It was stipulated by the parties that the insurance policy was in force, subject to all provisions, up to September 1, 1958. On June 1, 1958, an “Impairment Rider” was attached to the policy which provides, in effect, that “the policy shall not cover disability or loss resulting from or caused by any injury to or disease of the spine.” Also, on June 1,1958, another “Rider” was likewise attached to the policy which reduced payments for the loss of an eye, arm or limb and certain combinations thereof. Both of these ‘ ‘ Riders ’ ’ were signed by appellant and appellee.

We are unable to agree with appellant’s contention that these “Riders” precluded appellee from recovering for loss of time resulting from the original injury. The trial court, sitting as a jury, had the right to construe the provisions of these “Riders” strictly against appellant. See Washington Fire & Marine Insurance Company v. Hodge, 230 Ark. 42, 320 S. W. 2d 926, and Metropolitan Life Insurance Company v. Hawley, 210 Ark. 855, 198 S. W. 2d 171. Applying this rule of construction to the language in the “Riders” it is fairly deducible that they are effective prospectively and not retroactively. Appellant of course was aware that appellee had suffered a back injury on January 11,1958 at a time when the policy was in full force and effect; that it had paid appellee for his loss of time following that injury, and; it was aware that appellee had not fully recovered from said injury since he had not been working re'gularly up to the time that the “Riders” were attached. If appellant had wanted to make it cleat to appellee that it would not be obligated to pay him for any more loss of time resulting from thé original injury it could have easily so stated. This it did not do.

TWO: Part I of the policy provides for payments of stated amounts for the loss of an eye, arm or limb and certain combinations thereof caused by an accident referred to throughout the policy as ‘ ‘ such injury. ’ ’ Part TV of the policy reads as follows:

“If ‘such injury’ does not result in ány of the specific losses named in Part One but causes continuous total disability and total loss of time within twenty days from the date of the accident and requires regular and personal attendance by a licensed physician, surgeon, osteopath or chiropractor, other than the Insured, the Company will pay at the rate of the Monthly Benefit stated in the Policy Schedule for one day or more from the first medical treatment so long as the Insured lives and is so disabled.” (Emphasis Supplied)

The Policy Schedule provides for a monthly benefit of $200.

. It was under Part IV of the policy that appellant paid appellee for his loss of time from January 11th to March 7th, 1958: It is not seriously contended by appellant that appellee’s loss of time from August 28th to October 28th, 1958 was not due to the original injury. Nor is it contended that appellee was not totally disabled and suffered a complete loss of time during that period.. The record shows that appellee received medical treatment at a. doctor’s office-on July 28th and 30th; on August 2nd, September 23rd and 25th; and October 10th, 20th and 23rd. Thus it appears that there was a compliance with all the provisions of the. policy.

It appears to be appellant’s contention, with which we can not agree, that appellee’s disability was not continuous because he was able to work intermittently for a périod of time previous to August 28,1958. Such an interpretation is clearly not in accord with the rule of this court as previously pointed out. The answer to appellants contention is found in the fact that appellee is not seeking to be paid for the time that he was partially disabled and is only asking for that period of time during which he was totally disabled, unable to work and was regularly attended by a physician. In view of the above, we think the trial court dearly interpreted the policy in favor of appellee. The findings of the court, sitting as a jury, has the same force and éfféct as the findings of a jury. Casteel v. K. Lee Williams Theatres, Inc., 221 Ark. 935, 256 S. W. 2d 732 and Stewart v. Hedrick, 205 Ark. 1063, 172 S. W. 2d 416.

Affirmed.


author: Sam Robinson, Associate Justice. Ed. F. McFaddin, Associate Justice,

text:
    Perkins v. City of Little Rock.
    4995
    339 S. W. 2d 859
    Opinion delivered November 14, 1960.

      Harold L. Hall, for appellant.

      Joseph C. Kemp and Perry V. Whitmore, for appellee.
   Sam Robinson, Associate Justice.

Appellant was convicted in the Pulaski Circuit Court on the charges of driving while under the influence of intoxicating liquor and leaving the scene of an accident. On appeal he argues two points: First, he says that the evidence is not sufficient to sustain the conviction. There is no merit at all in this contention. A car involved in the collision was driven away from the scene of the accident. By various means, including a trail of water caused by a damaged radiator, the car was traced to where it was parked in the street. Officers located appellant in a house nearby. He admitted he was driving the car involved in the collision and that he drove away from the scene of the accident. He was under the influence of liquor, but at the time of his arrest he said it had been two hours since he had taken a drink. This was about 45 minutes after the accident occurred. All of the evidence considered together constitutes substantial evidence of the appellant’s guilt on both charges.

Appellant next contends that the charges against him should be dismissed because he was arrested without a warrant on alleged misdemeanors and that such alleged offenses were not committed in the presence of the arresting officers. True, the charges against appellant were only misdemeanors and the officers had no authority to make the arrest in the circumstances. Ark. Stats. § 43-403. The officers acted at their peril in making the arrest. Edgin v. Talley, 169 Ark. 662, 276 S. W. 591, 42 A.L.R. 1194; Watkins v. State, 179 Ark. 776, 18 S. W. 2d 343. But the fact that the officers had no warrant does not call for a dismissal of the charges. Certainly, one guilty of murder would not have to be released and turned scot-free because the arrest happened to be illegal in the first instance. If as a result of the arrest the officers had obtained incriminating evidence, perhaps such evidence could be suppressed. Clubb v. State, 230 Ark. 688, 326 S. W. 2d 816. But no evidence of that kind was discovered by virtue of the arrest. True, appellant made voluntary statements to the officers that were used against him, but appellant was in no way coerced into making such statements. A voluntary statement made by the accused at the time of an unlawful arrest is not considered as evidence obtained in an unlawful manner. Quan v. State, 185 Miss. 513, 188 So. 566.

Affirmed.

Ed. F. McFaddin, Associate Justice,

concurring.

I concur in this case for the purpose of preserving my views as stated in my concurring opinion in Clubb v. State, 230 Ark. 688, 326 S. W. 2d 816.


author: Jim Johnson, Associate Justice. Ed F. McFaddin, Associate Justice,

text:
    Vernon v. McEntire.
    5-2211
    339 S. W. 2d 855
    Opinion delivered November 14, 1960.
    [Rehearing denied December 12, 1960.]

      Wiley A. Branton, for appellant.

      Jay W. Dickey, for appellee.
   Jim Johnson, Associate Justice.

This suit arises out of a contract for the sale of land. The appellants, Luchers Vernon and Annie Vernon, a Negro couple, on December 19, 1948, entered into a contract to purchase 80 acres of farm land in Jefferson County from Mr. Ed Bost. The agreed purchase price was $6,000. Appellants paid $1,500 as a down payment and agreed to pay the balance off at $400 per year with interest at six per cent. Appellants went into possession of the lands on February 4,1949, and have remained in possession ever since and have raised a crop each year. The appellants were threatened with a foreclosure by Ed Bost in 1950 and they employed appellee, Hendrix Bowell, as their lawyer to represent them in preventing a forfeiture of their purchase contract.

In February 1955 appellee Rowell, with the approval of appellants, paid off the balance due Ed Bost from the appellants in the amount of $2,500 and took over the contract himself. In addition to the purchase money paid Ed Bost by appellee Rowell, appellants owed Rowell money previously advanced them for crop furnish, etc. This money added to the amount paid Bost totalled $3,570.71. After the purchase by appellee Rowell of the property here in question, the following letter was written by him to appellants on February 25,1955:

“Dear Luchers and Annie:
“This is to advise that with your consent I took over Ed Bost’s account this date and that you owe me a total of Thirty-five Hundred and Seventy and 71/100 ($3,570.71) Dollars with interest at 6% per annum from this date until paid.
‘ ‘ When you have paid this obligation plus all taxes and the taxes that I have to pay will carry interest at the same rate as the note. I will deed the . . . (described property) . . . in Jefferson County, Arkansas, to you and your wife, but I want it distinctly understood that the relationship between us is simply that of landlord and tenant and if you do not pay me or if you pay me one year and do not pay the next and I am forced to dispossess you, that whatever you pay will only be considered as rent.
“While the note you are giving me is a demand note and I can call it at any time, I will be reasonable with you and work with you, but I want you to thoroughly understand that you are occupying the premises at my sufferance.
“If this meets with your approval, I want you and your wife to so indicate by signing hereon below.
Tours very truly, /s/Hendrix Rowell
HR:JN
“Approved: /s/ Luchers Vernon /s/ Annie Vernon”

The above letter from appellee Rowell to appellants, which was approved by appellants, is the only written sales contract appearing in the record. There is nothing contained in this contract regarding time as being of essence. Appellee Rowell, true to his word, was reasonable with appellants and did work with them in every lenient way. In fact, he was so reasonable with them that as late as December 31, 1957, appellants had only reduced the indebtedness down to $3,100. On that date appellee Rowell wrote appellants the following letter:

“Dear Luchers:
“As requested, I hand you herewith statement of your account, showing interest figured at 6% up to January 1, 1958, at which timé you will owe me a total of $3,100 with interest at 6% from January 1,1958, until paid.
‘ ‘ This is to further notify you that if this debt has not been paid on or before December 31, 1959,1 will have to have possession of the property.
Very truly yours,
/s/ Hendrix Rowell”

Six days later appellee Rowell wrote appellants the following letter:

“Dear Luchers:
“A friend of mine and I want to talk with you about your debt and what can be done in order to get you out of debt to the Government and to me.
“Accordingly, I would like to see you in my office at 11:30 A. M. Wednesday, January 8,1958.
“Before you come to my office, go by the FHA and get the exact amount of money you owe them, so we will know what we are talking about.
Very truly yours,
/s/ Hendrix Rowell”

Appellant went by appellee Rowell’s office as requested. Appellee Rowell testified relative to the discussion which occurred at the meeting as follows:

“. . . in looking through my file I saw that letter telling him (appellant) he had two years to pay my debt, and I immediately wrote him to come in. Luehers came in . . . and I told him I wrote the letter (December 31, 1957) in error, and although ‘I want my money, you cannot be disturbed in possession until 1959, regardless of what I do, you will have two years’ free rent, two years to pay the Government, and two years to get another home.’ He said ‘I have been trying.’ I told him ‘I’m not as big as the Simmons National Bank or as big as the Government and I just can’t carry you any longer.’ I said ‘If I can get you $6,-500.00 you won’t get but $900.00. I have even answered blind ads but nobody wants your land. You have $35 or $40 acre stuff, and you have no improvements on the place, and it is cut up by two canals, and having a crop about once every five years. ’ I told him that Mr. McEntire or Judge Robinson could take him over two years free of rent, and ‘I hope during that time you will pay the Government off and get enough to move. ’ I told him the non-disturbance agreement was outstanding, and ‘if I can get somebody to pay me what I have in it, I am going to sell it. ’ He owes me $3,100.00, Uncle Sam $2,100.00, the Cousart taxes and State and County taxes. I was trying to explain if I could get $6,500.00, he would possibly have $900.00 and I said ‘I am not out for you to beat the Government, they don’t have a lien on the land, it is my land, ’ but I told him I would have to ‘ unload him ’ — I used that expression ‘ and if you can’t pay Uncle Sam, you can walk off.’ I said ‘I would rather you have it than give it to India in Foreign Aid’.”
‘ ‘ Q. When he left your office before you sold to Mr. McEntire, did you state to him you were going to sell the land?
“A. I said, ‘You are riding me.’ I told him without any question ... I gave him an hour telling him what sufferance meant. I told him ‘I am not going to have any foreclosure, I have the deed, and you are not going to get it unless you pay me; I have got to have my money ’. ”

Following this meeting in Rowell’s office, appellee Rowell conveyed the 80 acres to appellee McEntire on Jan-nary 24,1958, for the consideration of $3,350. On the same date, appellee Rowell wrote the appellants and informed them of his conveyance to Mr. McEntire and stated that ‘ ‘ the result of which is that you have forfeited all of your right of redemption, unless you can prevail upon Mr. McEntire to permit you to do so . . .” Appellants contacted the appellees about redeeming the lands to no avail and, through another lawyer, appellants tendered the balance due on the purchase price, plus interest, to the McEntires and the latter refused to accept the money or execute a deed to appellants.

The appellants filed suit on January 30,1959, for specific performance, or damages in the alternative, against J. L. McEntire and wife and also Hendrix Rowell. The cause was heard on November 10,1959, and the appellants’ complaint was dismissed with prejudice. This appeal followed :

For reversal, appellants contend that “The right of Forfeiture had been waived and specific performance should have been ordered. ’ ’

As has been stated above, the contract here in question contained nothing regarding time as being of essence. The rule relative to the inclusion of such express language in a contract is set out in White v. Page, 216 Ark. 632, 226 S. W. 2d 973, as follows: ‘ ‘ The contract in the case at bar did not state in express words ‘time is of the essence’; but our cases hold that evidence may establish such fact in the absence of a specific statement in the contract.” Even so, we think there are facts and circumstances in the present case which clearly show that time was not of the essence. One of the facts to which we refer is that on December 31, 1957, appellee Rowell wrote Luchers Vernon that he had until December 31,1959, to pay the outstanding indebtedness. This letter was followed by a conference between Vernon and Rowell and according to Rowell’s own version of what occurred in that conference, he did not by inference or otherwise indicate that he meant to declare a forfeiture immediately. According to our view, the rule applicable to the facts in the case at bar was stated by Mr. Justice Frauenthal, speaking for the Court in Friar v. Baldridge, 91 Ark. 133, 120 S. W. 989, as follows:

‘ ‘ Parties may enter into a valid contract relative to the sale of land whereby they may provide that time of payment shall be of the essence of the contract, so that the failure to promptly pay will work a forfeiture. Ish v. Morgan, 48 Ark. 413; Quertermous v. Hatfield, 54 Ark. 16; Block v. Smith, 61 Ark. 266. But the final effect of such an agreement will depend on the actual intention of the parties, as evidenced by their acts and conduct; and such a breach of the contract as would work a forfeiture may be waived or acquiesced in. The law will strictly enforce the agreement of the parties as they have made it; but, in order to find out the scope and true effect of such agreement, it will not only look into the written contract which is evidence of their agreement, but it will also look into their acts and conduct in the carrying out of the agreement, in order to fully determine their true intent. It is a well settled principle that equity abhors a forfeiture, and that it will relieve against a forfeiture when the same has either expressly or by conduct been waived. The following equitable principle formulated by Mr. Pomeroy has been repeatedly approved by this court: ‘If there has been a breach of the agreement sufficient to cause a forfeiture, and the party entitled thereto either expressly or by his conduct waives it or acquiesces in it, he will be precluded from enforcing the forfeiture, and equity will aid the defaulting party by relieving against it, if necessary.’ 1 Pomeroy Eq. Jur. 452; Little Rock Granite Co. v. Shall, 59 Ark. 405; Morris v. Green, 75 Ark. 410; Banks v. Bowman, 83 Ark. 524; Braddock v. England, 87 Ark. 393.”

Applying these principles to the case at bar, we find nothing in the record which would cause us to doubt in the least the veracity of appellee Rowell. In fact, appellant candidly concedes that there was no wrong doing. As stated by appellant: “Appellants wish to make it clear that there is no allegation being made of any ‘fraud or intentional imposition’ in the transaction. ’ ’ However, to the contrary we find the record relative to the indebtedness owed by appellant to be replete with acts and unmistakable indications of leniency and benevolence. Even so, based on onr prior decisions, we have no choice but to find that herein lies appellee’s as well as the trial court’s error. As is true in many cases of waiver, appellee Rowell’s own goodness to appellants was his own undoing under the law since such acts and indications constituted waiver.

Having thus concluded, it necessarily follows that the decree is reversed and the cause is remanded for further proceedings consistent with this opinion.

Reversed and remanded.

Harris, C. J., and McPaddin, J., dissent.

Ed F. McFaddin, Associate Justice,

dissenting.

The majority is reversing the finding of the Chancery Court on a fact question; and it is my view that the Chancellor, seeing the witnesses, had a better opportunity to evaluate the evidence than does this Court. So I would affirm the Chancellor.

I view the letter of February 25,1955, that Honorable Hendrix Rowell wrote the appellants, and which they approved, as being a mere executory contract affecting real estate; and I believe he had a perfect right to declare a forfeiture, as he did. The letter and all the surrounding circumstances show that time was of the essence. The Chancery Court so found; and I cannot say that the preponderance of the evidence is against the Chancery finding. Therefore, I would affirm the Chancery decree.

The Chief Justice joins in this dissent.


author: PER CURIAM

text:
    Edwards v. State.
    5004
    339 S. W. 2d 947
    Opinion delivered November 14, 1960.
   PER CURIAM

Tbe appellant, E. W. Edwards, was convicted of a felony in the Garland Circuit Court and on October 11, 1960, was sentenced to one year in the penitentiary. On October 12,1960, a partial record was filed in the Supreme Court and an appeal granted, and certiorari was issued to bring up the entire record.

The appellant has filed in this Court a motion that he be allowed to proceed in forma pauperis. The motion is duly verified and appellant’s counsel certify that they are serving without compensation. The appellant has complied with the requirements of the law so as to be allowed to proceed in forma pauperis. See Thornsberry v. State, 192 Ark. 435, 92 S. W. 2d 203; and McCulloch v. Ballentine, 199 Ark. 654, 135 S. W. 2d 673; and see also Sec. 22-357 Ark. Stats., and Act No. 148 of 1953.

The Clerk of this Court is hereby ordered to forthwith direct a writ to the Clerk of the Garland Circuit Court and to the Court Reporter of the Garland Circuit Court who took down the testimony. The Reporter is directed to without delay transcribe and file the testimony with the Clerk of the Garland Circuit Court; and the Clerk of the Garland Circuit Court to complete without delay the entire transcript under the writ of certiorari issued to him in this case. The transcribing and filing of the testimony by the Court Reporter and the preparation of the transcript by the Clerk of the Court are to be furnished without expense; but this Court retains the right to hear resistance that may be made by any persons or governmental units desiring to resist the pauper affidavit of the appellant.


author: Carleton Harris, Chief Justice.

text:
    U. S. Fidelity & Guaranty Co. v. Dorman.
    5-2152
    340 S. W. 2d 266
    Opinion delivered November 21, 1960.

      Dickson, Putman & Millwee, for appellant.

      Bex W. Perkins and Charles Bass Trumbo, for appellee.
   Carleton Harris, Chief Justice.

This appeal relates to an award made by the Workmen’s Compensation Commission for the benefit of Mrs. Doris Dorman, widow of Oscar L. Dorman, and four minor children. Following the award, appellants appealed to the Washington County Circuit Court. The court confirmed the award, and from such order of the court, appellants bring this appeal. Appellants rely upon only one point for reversal, viz, “It is medically unsound to permit the finding of a causal relationship between effort and myocardial infarction unless the attack follows an episode of severe and unusual exertion.”

Dorman, age 35, a carpenter by trade, suffered a heart attack that was described as a myocardial infarction on September 9, 1958, while engaged in carpentry work for his employer, Box Construction Company, during the construction of a residence at Fayetteville. The evidence reflected that Dorman first suffered a heart attack in the middle of July, 1957, and was hospitalized in the Veterans Administration Hospital from that time until August 13th, at which time he was released. During October and November of the same year, he worked as a night watchman during the construction of a factory in Fayetteville, and had no other employment until May 7,1958, when he returned to work for Box Construction Company at his usual occupation of carpentry. During the period between May 7th and September 9th, Dorman suffered intermittent chest pains, which were relieved by rest or the taking of nitroglycerin tablets. According to Mrs. Dorman, her husband complained of pain anytime he exerted himself, and, after returning to work for the construction company, would make complaints of chest pains following his engaging in lifting or heavy work. She stated that the pains were worse the last day or two before the attack on September 9th. Following this last attack, which occurred about 3:30 in the afternoon, Dorman went to Dr. Joe Hall, of Fayetteville, and obtained an examination; he then went home, ate very little supper, and retired. Around midnight, the pains became more severe, and Mrs. Dorman took him in their car to the Veterans Hospital. According to her testimony, he lost consciousness before they arrived, and vomited after entering the hospital; death occurred less than 48 hours later.

Lloyd Box, employer of Dorman, testified that Dorman worked a forty hour week from May 7, 1958, until September 9th, and was doing general carpentry work. Since he (Box) had knowledge of the previous heart attacks, an effort was made to see that Dorman obtained lighter duties, and he heard no complaints from Dorman concerning chest pains during this four months of employment. Box was working with Dorman on the morning of the 9th, being engaged in constructing the ceiling on the porch. The witness stated that this first required sawing, and that construction of the ceiling required Dorman to stand with his arms overhead. About 10:30 in the morning, Dorman complained that he was having a dizzy spell, “had pain up kinda high in his chest”, but they continued to work on the ceiling since but little complaint was made. Thirty minutes was taken off for lunch, and at 12:30 the two men resumed work. Some complaint was made during the early part of the afternoon, but about 3:30, while Dorman was nailing the ceiling, the pain became more severe, and Box advised Dorman to go to the doctor. The witness stated that he did not consider the work on that day as particularly strenuous, though he stated that nailing a ceiling is as hard work as a carpenter is required to perform, with the possible exception of lifting or building a scaffold.

Three carpenters, Orville Foster, Arthur Ledford, and Carl Lewis, testified on behalf of claimant. Foster testified that reaching up over one’s head and nailing is “most strenuous”, and is the most strenuous part of carpentry work. Ledford, a carpenter of fifteeen years, testified that because construction of the ceiling requires overhead work, and requires the body to be out of its normal position, it places a strain on the worker, and “hurts me worse” than other phases of carpentry. Lewis likewise testified that overhead nailing or plastering of ceilings was the most difficult type of work to him, and produced the most strain upon his body.

Dr. Joe B. Hall of Fayetteville, specializing in internal medicine, testified that he saw Dorman on September 9th around 5:30 in the afternoon; that this was past the regular office hours, but the nurses recognized that Dorman was ill, and asked the doctor to see him. The witness stated that he obtained a history from Dorman, in which the facts heretofore set out were related, and that Dorman was having pain in the chest at the time of the interview. Dr. Hall testified that after making; an examination and taking a cardiogram, he was of the opinion that Dorman was having a myocardial infarction. The doctor then staged, that based on the history, and his examination of the patient, “I think that the work he was doing was an aggravating factor which precipitated the heart attack.” On cross-examination, the witness reiterated that the effort in which Dorman was engaged contributed to his death. Dr. Hall had no opinion, as to the immediate mechanism which brought about the formation of the thrombus, and stated that some mechanisms that precipitate thrombi have no relation to effort. He also testified, on cross-examination, that the effort could have contributed to Dorman’s condition, even though there was no thrombus.

“The effort might have produced a subendomal hemorrhage. It might have produced a loosening of an arteriosclerotic plaque. It might have produced a narrowing of a coronary vessel which resulted in a myocardial infarction, without a thrombosis. ’ ’

The doctor admitted that an occlusion of the artery could occur simply by degeneration of the artery in the arteriosclerotic process, and in such event, effort would have nothing to do with the attack. Dr. Hall stated that in many instances, acute myocardial infarction occurs without relation to effort, but in this instance, he considered the work Dorman was doing to be an aggravating factor which precipitated the heart attack.

Dr. W. J. Butt, upon being interrogated with a hypothetical question embracing the facts of the case, stated, that in his opinion, there was a direct causal relationship between the work in which Dorman was engaged and his heart attack. Dr. Butt stated there was no way of determining the cause of occlusion of the artery without an autopsy being performed (which had not been done), and lie accordingly could not give the specific reason for the attack.

The doctor stated that it was normally his policy to order heart patients to bed for absolute rest, and that he had never recommended that a heart patient exercise when first suffering a coronary thrombosis.

Dr. Frank Biggall, in response to a hypothetical question, expressed the opinion that effort plays no part in the end result of the decay and degeneration of the coronary supply resulting in myocardial infarction, and was therefore of the opinion that there was no causal relationship between Dorman’s actions as a carpenter, nailing on the ceiling, and his death. Dr. Biggall explained that there are five mechanisms that occasion the blocking or closing of the arteries. One of the five, according to the doctor, is coronary thrombosis, which Dr. Biggall stated is the most common, and he explained,

“* * * due to a further lack of nourishment there is further decay and further degeneration and the surface of the plaque becomes roughened. It is dying but not dead. That allows the cells in the traveling blood to be arrested on that roughened surface — to pile up — slowly in some cases, moderately fast in another, rapid in another, so that a thrombus is formed at the site of the roughened plaque. We call that coronary thrombosis. It may pile up sufficiently there to block the artery or it may not block the artery but a piece of it breaks off, again as an embolus, and blocks the artery lower down so as to deprive the heart muscle of its nourishment and produce infarction.” Upon being asked whether effort plays any significant part in the two processes mentioned, he replied, “They are perfectly normal, natural processes of decay and degeneration in the particular plaque. ’ ’ The witness stated that he had made a survey of the cardiovascular cases in Elizabeth Hospital over the last twenty years. According to the doctor:

‘ ‘ Three of our cases were between 30 and 40. Two of them died in the acute attack, one of them died in a second attack. One of them was riding in a car in Fort Smith which was being driven by his wife down Garrison Avenne in the middle of a block when he had his attack. Another occurred while he was shopping in Fayetteville and the third one occurred while he was shaving in his own bathroom. On the other cases of 230 it works out roughly that one-half of them were at rest, one-fourth of them, roughly, were at their usual vocation, and one-fourth of them appeared to be doing something unusual for them at that particular time. In three-quarters of them we could find no relation to activity; one-quarter doubtful.”

He also testified relative to other surveys which had been made in various parts of the country, and stated that these surveys had,

“* * * changed all of our ideas, really, on treatment, although we are in a somewhat difficult position. I was taught, as I said, the classical view. I still with some fear and trembling hesitate to tell a man to resume activity * * *. Where we used to keep our heart patients in bed recumbent, flat, we get them up quicker, and we have them sit up because we know more about the effects of the circulation. When a man is sitting up in bed or is standing up, the heart only has to pump the blood to the arch of the aorta. From there on it falls by gravity. When he is lying in bed the heart has to pump it along the level. Those are some of the things that these newer ideas have given us in handling these cases.”

Dr. Eiggall testified that surveys in Utah, Washington, and California, indicated no relationship between effort and myocardial infarction; however, he admitted that there is a wide divergence of views on the subject.

Dr. Spencer Brown, in response to a hypothetical question embracing the facts of this case, was of the opinion that Dorman’s exertion had nothing to do with the heart attack. The doctor stated that exertion will not precipitate an acute coronary insufficiency in a person whose arteries are already diseased, because the insufficiency is already present, and the exertion only makes it manifest. He stated that any unusual exertion beyond the person’s limit could produce pain, but would not produce infarction. However, the doctor admitted that exertion would increase the demand of the heart for blood. Also, both Dr. Riggall and Dr. Brown agreed that the doctor who examines the patient is in a better position to render an opinion than a doctor who had no personal contact, but renders an opinion simply on the basis of a hypothetical question.

Dr. Charles T. Chamberlain, a physician of Fort Smith, stated that the mechanism that occluded a coronary artery could not be determined in the absence of a postmortem or autopsy; and though agreeing that work involving the use of the hands above the head is more strenuous than work at heart or chest level, he was of the opinion that no specific act can be held responsible for the production of a myocardial infarction through the mechanism of a thrombosis or occlusion, except in very rare instances.

As indicated by appellants’ sole point for reversal, this appeal is primarily an attempt to persuade this Court to re-examine and modify prior holdings in “heart attack” cases. In Bryant Stave and Heading Company v. White, 227 Ark. 147, 296 S. W. 2d 436, this Court held that it is unnecessary to make a showing of unusual strain or exertion in order to sustain an award under the compensation law. That rule has been applied to all workmen’s compensation cases, including those based on death or disability resulting from heart attacks. In their brief, counsel state:

“Appellants have no quarrel with the Bryant case, for it is clear that an individual’s ordinary work load may over a period of time by a process of attrition, produce injuries which are in every respect as disabling as those brought about by sudden or fortuitous events. But it is appellants’ purpose here to try to demonstrate to the Court that a rule established in a case concerned with a ruptured intervertebral disc is, in the light of recent medical developments, scientifically unsound when applied to a case involving the altogether distinct condition of myocardial infarction resulting from coronary occlusion. ######
The area of controversy among medical men centers around the question of whether effort or exercise can ever, under any circumstances, trigger an arterial spasm, a subintimal hemorrhage, or a coronary blood clot, so as to produce a coronary occlusion and consequent myocardial infarction. On this point, medical opinion is divided into three groups. Those who believe that effort sometimes can and does activate these mechanisms, those who believe that effort never is causally related to a coronary occlusion and those who believe that violent or extreme effort may, in rare instances, cause the rupture of an atheromatous plaque and the consequent formation of a subintimal hemorrhage or hematoma. The vast majority of leading internists and cardiologists in the United States believe either that effort never plays any part in this kind of heart attack or that it contributes to the attack rarely and only then when the episode of effort is violent or extreme.”

During examination of the medical witnesses, counsel for appellants brought out that certain eminent physicians hold the opinion that effort is not a significant factor leading to coronary thrombosis, and appellants rely to large extent upon the testimony of Dr. Riggall relative to the medical surveys heretofore set out. Of course, these particular surveys favor appellants’ contention, though some items appear irrelevant to this appeal; for instance, there is no contention here that work was the cause of Dorman’s heart disease, and it is admitted that he had suffered previous heart attacks. Appellants ’ own medical witnesses agreed that there is, over the country, a wide divergence of views concerning the part that effort plays in a myocardial infarction, and Dr. Riggall stated, “I still with some fear and trembling hesitate to tell a man to resume activity * * *” At any rate, we are unpersuaded that there is such unanimity of opinion among medical authorities that it can now be said, as a matter of law, that effort never, or at most, only when violent or extreme, plays any part in producing a coronary occlusion and consequent myocardial infarction. We are still of the opinion that this is a question of fact, to be decided on the basis of evidence developed at each particular hearing, and we take occasion to re-affirm our holdings in Safeway Stores v. Harrison, 231 Ark. 10, 328 S. W. 2d 131, Reynolds Metals Company v. Robbins, 231 Ark. 158, 328 S. W. 2d 489, and E. P. Bettendorf & Co., et al v. Kelly, 229 Ark. 672, 317 S. W. 2d 708.

Appellants also contend, that even though we disagree with this primary contention and hold that exertion can contribute to a coronary occlusion, the evidence in the present case is insufficient since appellees’ medical witnesses were unable to pinpoint the specific mechanism precipitating Dorman’s attack. We find no merit in this contention. Appellants state, “There is no way to determine which of the several mechanisms have occluded a coronary artery in the absence of a post mortem.” Were we to agree with this contention, it would simply mean that recovery could never be made in a heart attack case unless an autopsy had been performed. Though helpful as pertinent evidence, we do not agree that such a requirement is absolute. Doctors frequently reach their conclusions on the basis of physical examinations, together with case histories. It might be mentioned that one can, of course, suffer a heart attack without dying, and can draw disability payments if the attack was occasioned or contributed to by work on the job; it goes without saying that proof establishing such disability could not include an autopsy. The same contention was made in the case of American Life Insurance Company v. Moore, 216 Ark. 44, 223 S. W. 2d 1019. While this was not a compensation case, the same logic applies. In that case, the doctor who testified for appellee stated that after examining the body and learning the history of the case, he attributed death to a pulmonary embolism resulting from a fracture. Quoting:

“On cross-examination Dr. Monroe admitted that there are cases known to the medical profession in which pulmonary embolism has been caused other than by accidental injury or surgery. In this case an autopsy would have been required to determine the cause of death with certainty. Nevertheless, Dr. Monroe reiterated his opinion that Looney’s death resulted from pulmonary embolism caused by the accidental injury. On the other hand, appellant’s medical witness — who stated that he was as familiar with the subject as the average physician —testified that an embolism never occurs more than three weeks after the injury. In his opinion, based on his own experience and the textbooks he had examined a few days before the trial, it was not possible for an injury sustained on May 31 to produce pulmonary embolism on July 12— an interval of forty-two days.
“Appellant insists that Dr. Monroe’s testimony is speculative, since he admitted the possibility that death was due to some other cause. But medicine, like the law, is not an exact science. If mathematical certainty were required, a surgeon would act at his peril in advising his patient to undergo an operation. The law does not compel adherence to a standard so precise. The effect of Dr. Monroe’s testimony is that in his opinion the most probable cause of death was a pulmonary embolism attributable to the fractured leg.”

In Herron Lumber Company v. Neal, 205 Ark. 1093, 172 S. W. 2d 252, we held that circumstantial evidence is sufficient to support an award of the Workmen’s Compensation Commission, and it may be based upon the reasonable inference arising from the reasonable probabilities flowing from the evidence, and absolute certainty is not required. ......., . ,, ,

Witnesses classed as experts aré permitted to give their opinion for the very reason they are considered experts, and their opinions are frequently based, and expressed, purely in answer to a hypothetical question — without ever seeing the patient — as is the case with appellants’ expert witnesses in this litigation. Dr. Hall was designated as an outstanding heart doctor by appellants’ medical witnesses, and in addition, he, as already stated, was the only one of the doctors to actually personally examine deceased.

In Bettendorf v. Kelly, supra, Kelly was engaged in driving nails into boards when he suffered his heart attack. Repeating our language in the Bryant Stave and Heading Company v. White, supra, we held:

“ * * * ail accidental injury arises out of the employment when the required exertion producing the injury is too great for the person undertaking the work, whatever the degree of exertion or the condition of his health, provided the exertion is either the sole or a contributing cause of the injury. In short, an injury is accidental when either the cause or result is unexpected or accidental, although the work being done is usual or ordinary.”

Dorman was engaged in driving nails into the ceiling (which incidentally, though not the controlling or determinative factor in this case, is considered rather strenuous carpentry work), and we hold, under the authority of the cases cited herein, that there was substantial evidence to justify the Commission’s finding “that the exertion put forth by the deceased on September 9, 1958, was either the sole or contributing cause of the injury.”

Affirmed.

       Dr. Hall explained a myocardial infarction as follows: “Well, that implies that there has been a coronary thrombosis in the vast majority of cases; that there is disease of the coronary arteries in the form of arteriosclerosis which produces a narrowing of these arteries, and that this, combined with spasm or the rupture from the surface of one of these vessels or one of the sclerotic plaques precipitates a blood clot which shuts off the blood supply to a portion of the heart muscle, resulting in the death of this muscle and the death of this muscle is called a myocardial infarction.”

       According to Dr. Eiggall, a survey conducted by medical authorities in New York revealed that of 398 internists and cardiologists, 93.9% agreed that work did not produce heart disease; 93.4% agreed that atherosclerosis of the coronary arteries must exist before there can be an infarction of heart tissue; 88.5% were of the view that ordinary or moderately heavy work does not produce coronary effects, and 88.9% thought that later heart attacks were due to the natural progression of coronary arteriosclerosis, and not related to previous attacks.

       Among others, Dr. Samuel A. Levine, Dr. Herman L. Blumgart, and Dr. Meyer Texon. In the textbook of medicine, “Cecil and Loeb”, in which the section on cardiovascular disease is written by Dr. Blumgart, he states: “In most instances, acute myocardial infarction occurs without relation to effort or other discernible clinical event.”


author: J. Seaborn Holt, Associate Justice.

text:
    Wyatt v. Wycough.
    5-2245
    341 S. W. 2d 18
    Opinion delivered November 21, 1960.
    [Rehearing denied January 9, 1961.]

      Chas. F. Cole, for appellant.

      Murphy & Arnold, for appellee.
   J. Seaborn Holt, Associate Justice.

This is a suit in ejectment for possession of land. Paul Wycough and his wife filed a complaint in the Circuit Court of Independence County sounding in ejectment, stating that they were the owners of a certain parcel of land described as the Northeast Fraction Northwest Quarter of Section 26, Township 12 North, Range 5 West, and that they were rightfully entitled to possession of the land, but that the defendant, D. A. Wyatt, had refused to allow them to take possession, and prayed they be awarded immediate possession. At the trial of the cause, the Wycoughs produced deeds tracing their chain of title back to the original government patent to the lands. Exhibits, photos, plats, maps, and testimony relating thereto, were introduced to show the location, character, and change in the lands through the course of the years. The testimony and

exhibits show that the land in question was, during early official government surveys date 1826 and 1854, located on the east side of White River. Immediately north of the land at the time was an island known locally as Crow Island. Sometime around 1900 (the witnesses could not pinpoint the exact year), the river changed its course, cutting around the Wycough lands. Subsequently, the river has since changed its course twice. As a result of these chánges, the land of the Wycoughs is now on the west side of White River and .lies adjacent to Crow Island. D. A.. Wyatt, who owns part of Crow Island, claims that the Wycough land is an accretion to his property, and further, that he had acquired title by adverse possession. The preceding drawing shows the present location of the land here involved after river changes.

The trial court entered judgment for the plaintiffs and Wyatt has appealed. For reversal the appellant first contends that the lower court erred in declaring in its judgment that the appellees were the owners of the lands. Although it is true that ejectment is in its nature a possessory action, it is equally well settled in this state that title to real property may be settled as between the parties in an action of ejectment. Brasher v. Taylor, 109 Ark. 281, 159 S. W. 1120. And we have many times held that a plaintiff must recover on the strength of his own title and not on the weakness of the defendant’s. Chavis v. Henry, 205 Ark. 163, 168 S. W. 2d 610; Jadkson v. Gregory, 208 Ark. 768, 187 S. W. 2d 547. Some contention is also made as to whether the judgment can bind R. K. Wyatt, who secured' title to some of the lands from D. A. Wyatt, after filing of the suit but before judgment was rendered. In Ritchie v. Johnson, 50 Ark. 551, 8 S. W. 942, under a somewhat similar factual situation, this Court held that a presumption exists that one who secures title in such a situation holds in privity with the defendant in the ejectment suit, and that if such a person holds by an independent title, it is incumbent upon him to then show it. Here there was no showing that R. K. Wyatt secured title independent of D. A. Wyatt. In Hobbs v. Lenon, 191 Ark. 509, 87 S. W. 2d 6, we laid out the general rule in the following language:

“It follows from the general rule that a person who acquires the property pendente lite takes subject to the court’s adjudication of the rights in the property which is the subject-matter of litigation; such persons will be bound whether a party to the litigation or not. Parties, their privies, and purchasers pendente lite are all grouped together as bound by the court’s decision, 17 R. C. L., § 28, p. 1031. Also to the same effect, 2 Pomeroy’s Equity Jurisprudence, 3d ed., pp. 632-635. The rule as above stated has been recognized and followed by this court from its early days to the present time . . .”

Since it is not shown in the present case that R. K. Wyatt holds a title independent of D. A. Wyatt, it follows that the fact that R. K. Wyatt is not a party to this case is not a ground for its dismissal.

The appellant also argues that the deeds under which the appellee claimed title were void because the description was vague and indefinite, and there is a discrepancy in the amount of acreage shown in the parcel. Without an extended discussion, suffice it to say that three surveys were run on the property, and they all agreed within approximately four feet of each other. No contention was made at the trial that the surveys were inaccurate. In order to locate the parcel, it is only necessary to locate the NW corner of the NE % of Section 26, and from there, by surveying west and south on the proper variation. The old river bed locates the other boundaries and all witnesses stated this bed is clearly visible. As to the excess acreage, we have held the fact that the acreage is stated incorrectly does not lessen the certainty of the description. Rucker v. Arkansas Land & Timber Company, 128 Ark. 180, 194 S. W. 21. See also Doe v. Porter, 3 Ark. 18; Jones, Arkansas Titles, Sec. 233. • Further, the discrepancy in acreage seems adequately explained by the United States Survey of 1826, a certified copy of which is attached and made a part of the appellees ’ brief, and which we will take judicial notice of, Pope v. Shannon Bros., Inc., 195 Ark. 770, 114 S. W. 2d 1, shows that the surveyor listed the parcel as containing 8.80 acres, but later surveys indicate that it contained only 6.87. The draftsman of the title instruments apparently copied the acreage listed in the early survey.

Two additional grounds urged upon us for reversal are that the trial court erred in failing to find that the land was an accretion to Crow Island, and that the appellant had acquired title by adverse possession of the land. Both of these questions present issues of fact, which we will not disturb here if supported by substantial evidence. Lewis v. Houchins, 220 Ark. 610, 249 S. W. 2d 1. In St. Louis, I.M. & S. R. Co. v. Ramsey, 53 Ark. 314, 13 S. W. 931, 8 L.R.A. 559, we defined accretion as:

“Accretion is the increase of real estate, by the addition of portions of soil by gradual deposition, through the operation of natural causes, to that already in the possession of the owner. The term ‘alluvion’ is applied to the deposit itself, while accretion rather denotes the act.”

When land is formed by such gradual deposits, it belongs to the owner of contiguous land to which the addition is made. Nix v. Pfeifer, 73 Ark. 199, 83 S. W. 951. Avulsion is a sudden and perceptible gain or loss of riparian land and may arise from the sudden abandonment by a stream of its old channel and the creation of a new one, or the sudden washing from one of its banks a considerable body of land and the depositing of it on the opposite bank. Thompson, Real Property § 2561. When a stream shifts suddenly by avulsion the boundaries of the riparian owners do not change with the course of the stream. Wallace v. Driver, 61 Ark. 429, 33 S. W. 641, 31 L.R.A. 317. In the present case three eye-witnesses testified that the river changed its course not gradually, as contended by appellant, but by a sudden and perceptible change, in fact, cutting a new channel. We think the evidence is substantial and sufficient to show that an avulsion occurred and title to the land did not change.

As to adverse possession, the record reflects that the first acts which could have even amounted to acts of adverse possession were the cutting of timber and the clearing of a small parcel of land in 1949. However, at that time the title to the land was in the State of Arkansas and adverse possession cannot run against the state. Bengel, Executor v. City of Cotton Plant, 219 Ark. 510, 243 S. W. 2d 370. The first time that adverse possession could have begun to run was in 1954 when title was acquired by the appellees from the State. Simple arithmetic shows that seven years from 1954 would be 1961, a date still in the future, hence the appellant could not have acquired title by adverse possession from the appellee.

Finding no error, the judgment is affirmed.


author: Ed. F. McFaddin, Associate Justice.

text:
    Gilliam v. Gilliam.
    5-2234
    340 S. W. 2d 272
    Opinion delivered November 21, 1960.

      Willis V. Lewis, for appellant.

      Holt, Park é Holt, for appellee.
   Ed. F. McFaddin, Associate Justice.

From a decree granting her petition for separate maintenance and awarding Mrs. Gilliam $250 per month, Mr. Gilliam prosecutes this appeal and presents only two points:

“(I) The evidence of the plaintiff was insufficient to sustain a decree of separate maintenance upon her complaint.
(II) The evidence on behalf of the defendant and cross-complainant was sufficient and should sustain a decree of divorce for him upon his cross-complaint. ’ ’

I. Is The Evidence Sufficient To Sustain The Decree Awarding Mrs. Gilliam Separate Maintenance? Mr. and Mrs. Gilliam were married in December 1948 and lived together as husband and wife until they separated on September 6, 1959. This suit for separate maintenance was filed shortly thereafter; and no property rights are here involved. We have a long line of cases which recognize that under what is now § 34-1202, Ark. Stats, the Chancery Court has the power to decree separate maintenance to the wife. Some of these cases are: Wood v. Wood, 54 Ark. 172, 15 S. W. 459; Shirey v. Hill, 81 Ark. 137, 98 S. W. 731; Kientz v. Kientz, 104 Ark. 381, 149 S. W. 86; Savage v. Savage, 143 Ark. 388, 220 S. W. 459; and Harmon v. Harmon, 152 Ark. 129, 237 S. W. 1096.

Mrs. Gilliam testified that just prior to the separation Mr. Gilliam jerked her out of bed and inflicted physical injuries on her, such as a bruised bronchial tube and a broken tooth; and that Mr. Gilliam’s violence continued up to the separation. Mr. Gilliam admitted hitting his wife. In addition to the evidence as to physical injuries inflicted by Mr. Gilliam, there was also evidence designed to show marital infidelity on the part of Mr. Gilliam; but we see no occasion to recite any of this evidence because the testimony as to physical injuries is amply sufficient to support a decree for separate maintenance. A wife is not required to live with her husband when, without provocation, he inflicts physical injuries on her. Shirey v. Shirey, 87 Ark. 175, 112 S. W. 369; and Crabtree v. Crabtree, 154 Ark. 401, 242 S. W. 804, 24 A.L.R. 912. Mr. Gilliam’s defense was, that his wife was a jealous nagging woman and goaded him into violent conduct at times when he was drinking intoxicánts. But, even so, such explanation is no defense for the physical injuries that he admitted having inflicted on his wife.

Mrs. Gilliam was corroborated to a limited extent as to her physical injuries: her mother, Mrs. DePriest, testified that she observed a bruised place on Mrs. Gilliam’s face. But we have recognized that in suits for separate maintenance there is no requirement for corroboration as in cases for absolute divorce. Welch v. Welch, 225 Ark. 372, 282 S. W. 2d 600, and cases there cited. There is certainly no evidence of collusion in this case. The Chancellor accepted Mrs. Gilliam’s testimony and awarded her separate maintenance. "We cannot say that the decision of the Chancellor is against the preponderance of the evidence on this point.

II. Did Mr. Gilliam Introduce Sufficient Evidence On His Cross Complaint To Require That The Court Grant Him An Absolute Divorcef In his cross complaint Mr. Gilliam sought an absolute divorce from Mrs. Gilliam. His allegations were:

“That the plaintiff and cross-defendant has pursued a systematical and habitual course of personal indignities toward him which rendered his condition in life intolerable and unbearable. That such indignities consisted of fussing, nagging, quarreling and unmerited reproach. That all these acts on her part have made it impossible for him to longer live with her.”

Mr. Gilliam testified most strongly in support of his cross complaint; but the Chancery Court was not required to give full credence to such testimony in the face of equally strong denials by Mrs. Gilliam. Furthermore, we find no corroboration of Mr. Gilliam’s testimony on the material and substantial matters; and corroboration is required in a case for absolute divorce, as Mr. Gilliam was seeking. Fania v. Fania, 199 Ark. 368, 133 S. W. 2d 654; Allen v. Allen, 211 Ark. 335, 200 S. W. 2d 324; Stimmel v. Stimmel, 218 Ark. 293, 235 S. W. 2d 959. From a study of the evidence, we conclude that the Chancery Court was correct in refusing to grant Mr. Gilliam an absolute divorce.

Affirmed.

Johnson, J. dissents.

       There is a dissenting opinion in McClain v. McClain, 222 Ark. 729, 263 S. W. 2d 911, wherein these separate maintenance cases are listed. A later case is: Hill v. Rowles, 223 Ark. 115, 264 S. W. 2d 638.

       We quote portions of his testimony:
      “Q. Major, it has also been testified here that you have been very abusive, that you have beaten your wife, at one time she had a tooth knocked out or had a tooth broken. Is that true?
      A. Anything I did to her was in self defense.
      The Court: Answer the question, did you do it or not?
      A. I don't know about breaking her tooth but I did hit her.

        Q. When did you hit her.
      A. I can remember on one occasion. She was biting me on the arm and I slapped her to get her teeth loose out of my arm.
      Q. When was that?
      A. That was on the night she testified to where she went and stayed at the Albert Pike. I don’t remember the date of the incident____ I was trying to hold her and she kept biting me and I thought I would calm her down a little bit and slapped her on the face a couple of times.
      Q. Did you slap her with your fist or open hand?
      A. Open hand.
      Q. Did you break a tooth or bruise her up in any manner?
      A. I did not notice any bruises or a broken tooth ...”


author: George Rose Smith, J.

text:
    Roy v. McComb.
    5-2194
    340 S. W. 2d 381
    Opinion delivered November 21, 1960.
    [Rehearing denied December 19, 1960.]

      James M. Boy and Elsijane T. Boy, for appellant.

      Fred McDonald, for appellee.
   George Rose Smith, J.

The question here is whether the will of Sallie Bryan McComb created a tenancy in common in the property left to her two children or created instead a joint tenancy in that property, with a right of survivorship. (As to the latter estate see Ferrell v. Holland, 205 Ark. 523, 169 S. W. 2d 643.) The trial court took the first view, which opens the door to a claim of dower by the appellee, who is the surviving widow of the testatrix’s son. The appellants contend that the second view of the testatrix’s will is the right one.

Mrs. McComb, the testatrix, died in 1922, survived by two children, Joel Y. McComb and Pearl Moore Roy. The estate, apparently by common consent, was kept together and managed by the appellant Pearl Moore Roy, as administratrix, until after her brother’s death in 1957. Mrs. Roy then filed her present petition in the probate court, asserting that the entire estate had vested in her as the surviving child of the testatrix and asking for authority to convey all the property to herself. This petition was resisted by the appellee, Joel Y. McComb’s widow, who seeks to assert her right to dower in her husband’s share of his mother’s estate.

These are the pertinent provisions in the will of Sallie Bryan McComb:

“That all the property I own and money in banks and stocks be equally divided in half to my two children
“If my son Joel Y. McComb should die bearing no children of his own the said inherited property must come back to his sister, ‘Pearle [sic] Moore Roy.’
“If Pearle Moore Roy should die the said property goes to her children equally divided and in case she leaves no children property goes back to her brother, Joel Y. McComb.”

In our opinion the present issue was conclusively determined in a prior case involving this same will, Ollar v. Roy, 212 Ark. 682, 207 S. W. 2d 313. In that case the testatrix’s two children had contracted to sell lands constituting part of their mother’s estate. Pearl Moore Roy then had one child, the appellant James Roy, while her brother Joel was childless, as he continued to be until his death. In the earlier case Ollar, the purchaser, questioned the sellers ’ title, contending that they had received under their mother’s will some estate less than the fee simple and were therefore not able to convey a merchantable title. In the vendors’ suit for specific performance we rejected the purchaser’s construction of the will and announced two conclusions concerning the will of Sallie Bryan McComb:

First, we held that the first quoted paragraph in the will vested an estate in fee in the two children. “While the language used by the testatrix in the instant case is that of a layman, we hold that it was her intent to create an estate in fee to the appellees . . .”

Secondly, we held that the other two quoted paragraphs were to have been effective only if either child had predeceased the testatrix. “Applying this rule of construction to the will in the instant case, we hold the testatrix meant by the second paragraph above quoted that had Joel V. McComb died without children prior to his mother’s death, his share of the estate would have gone to his sister, Pearl Moore Roy. The same construction is applicable to the third paragraph. Since the appellees survived their mother they became vested with title to the lands in fee simple under the will and can convey such title to the appellant. ’ ’

From the foregoing language in the Ollar case it is plain that the second and third paragraphs of Mrs. McComb’s will never became effective, because both the testatrix’s children survived her. "We therefore concluded in that case that the son and daughter of the testatrix took the fee simple under the first paragraph of the will.

In the prior case Pearl Moore Roy and her brother successfully contended that they, having survived their mother, were vested with the fee simple, to the exclusion of any possible estate in their own children. Mrs. Roy does not ask us to overrule that decision; it is clear that she could not in good conscience make such a request. Instead she argues, with much ingenuity, that the effect of the previous opinion was merely to hold that she and her brother together could convey the fee simple. This holding, it is urged, does not necessarily defeat her present insistence that there was a right of survivorship upon her brother’s death in 1957.

This contention, when carefully analyzed, will be seen to attribute two alternative meanings to the second (and third) paragraph in the will. To uphold the appellants’ argument we should have to construe the second paragraph as if it read in substance as follows: “If my son Joel "V". McComb should pre-decease me bearing no children of his own, the said inherited property must come back to his sister Pearle Moore Roy; but if both my children survive me they will hold the property as joint tenants, with a right of survivorship, regardless of whether they die with or without issue.” The italicized clause, although not even remotely resembling any language actually appearing in the will, is nevertheless essential to the appellants ’ present argument; for if there was any possibility of a vested or contingent remainder in Joel’s surviving children, if any, we could not properly have held in the earlier case that the brother and sister were in a position to convey a merchantable title to Ollar in 1948. Without further discussing this contention of the appellants we think it sufficient to say that we do not see how the suggested interpretation can possibly be drawn from the language of this will.

Finally, the appellants offered parol evidence to show that when Mrs. McComb executed her will in 1922 she was suffering from an incurable disease which caused her death within three weeks and that therefore she must have known that both of her children would survive her. This proof is neither competent nor relevant. Extrinsic evidence is not admissible to show what the testatrix meant, as distinguished from what the words of the will express; such evidence is admitted only for the purpose of showing the meaning of the words selected by the testatrix. Piles v. Cline, 197 Ark. 857, 125 S. W. 2d 129. The appellants’ evidence has no tendency to assist the court in determining the particular sense in which Mrs. McComb employed the simple words in her will.

Affirmed.


text:
    Continental Casualty Co. v. Vardaman.

      5-2254

      340 S. W. 2d 277
    Opinion delivered November 21, 1960.

      Rose, Meek, House, Barron £ Nash, for appellant.

      McMath, Leatherman, Woods £ Youngdahl, for appellee.
   Paul Ward, Associate Justice.

Howard J. Vardaman (appellee), the holder of a policy issued by the Continental Casualty Company (appellant), filed a suit against the Company to collect accrued monthly payments due under the terms of the policy for alleged total disability. After the complaint had been twice amended, appellant confessed judgment for the amount then prayed. Thereupon the trial court rendered judgment in favor of appellee for the amount confessed. The trial court also, after hearing testimony, rendered judgment for the statutory penalty and attorney’s fee.

Appellant here urges a reversal on the ground that the court erred in allowing the penalty and attorney’s fee, and also on the ground, in the alternative, that the attorney’s fee is excessive.

The peculiar facts of this case call for a careful study of Arkansas Statutes, Section 66-514, together with the many interpretations of said statute by this court. The situation presents a close and interesting question as to whether the trial court was justified in awarding the penalty and attorney’s fee. The facts giving rise to the question are not in dispute, but it is necessary to a clear understanding of the issues to set them out in detail.

The insurance policy, which had been in effect for 18 years, provided for an indemnity of $100 per month as per its terms. If by reason of an accident, appellee was continuously disabled and prevented from performing all duties pertaining to his occupation (a locomotive engineer) appellant agreed to pay the monthly indemnity for a period not to exceed 12 consecutive months. In addition, the policy provided that after the first 12 months of total disability the Company would continue the payment of the monthly indemnity so long as Vardaman should live and be wholly and continuously disabled and prevented from engaging in each and every occupation or employment for wage or profit. The policy further provided that no indemnity would be paid for any period of disability during which Vardaman was not under the regular care and attendance of a qualified physician or surgeon.

Vardaman was seriously injured in an automobile wreck on March 8, 1958, following which the Company paid him the monthly indemnity at the rate of $100 per month through May 8, 1959. On Tune 28, 1959, the Company informed Vardaman by letter that in its opinion he had ceased to be totally disabled and that it was therefor terminating the payments and asked that the policy be returned. In this letter the Company enclosed a check for $116.66 which was in payment for one month and 5 days.

At all times since the accident Vardaman had been in the Missouri Pacific Hospital or under the continuous care of physicians who had determined that he could not return to his occupation as an engineer and that he could not engage in any occupation where manual labor was involved.

After appellee had received information from the Company that no further payments would be made he secured counsel and suit was filed on July 2, 1959 for accrued monthly payments of $116.66, and also sued for the present value of the policy based upon his life expectancy — determined to be 27 years. The policy was attached to and made a part of the complaint. The issue here presented (allowing of penalty and attorney’s fee) was brought to focus by the manner in which the litigation developed from this point.

On July 24,1959 appellant filed an Answer in which it admitted issuing the policy, but denied that since May 8, 1959, appellee had been disabled to such extent as to entitle him to the payment of benefits. On December 20, 1959, at a pre-trial conference, appellee amended his complaint to eliminate that part relating to anticipated damages. This left only the prayer for monthly payments of $116.66 from May 8, 1959 to date of judgment. The trial was then set for March 3, 1960. On February 26, 1960, appellee again amended his complaint to ask for monthly payments of $100 (instead of $116.66). In each instance appellee asked for the penalty and attorney’s fee. On the last mentioned date appellant amended its Answer stating that it had paid appellee $100 per month from March 8, 1958 to May 8, 1959; that it concluded appellee was no longer disabled so as to be entitled to further payments; it offered to confess judgment for $100 per month from May 8,1959 to date of judgment, exclusive of penalty and attorney’s fee. A few days later appellant offered, in addition to the above, to confess judgment for accrued interest on the said monthly payments.

A hearing was had before the trial judge at which the following transpired. It was stipulated that, assuming appellee lived out his expectancy and was entitled to receive monthly indemnity, then the present value of the policy would be $21,155.16. It was further stipulated that a report by Doctor W. I. Porter and a copy of the insurance policy be introduced in the record, and that appellant’s attorney on or about February 16, 1960, informed appellee’s attorney that if they could not agree on a lump sum settlement the case would not be tried. Also in this hearing appellee’s attorney made a statement to the court and introduced further medical statements, indicating to the court the time and effort spent in legal and medical research and in exploring voluminous hospital records. It is indicated by several medical statements that appellee was permanently unable to engage in any occupation. Also testimony by several witnesses indicated that an attorney’s fee in the amount of approximately $4,000 would be reasonable.

The trial court made extensive Findings and Conclusions among which were: All testimony supported the conclusion that appellee was totally disabled when appellant wrote the aforementioned letter on June 23, 1959 discontinuing monthly payments; appellant’s conduct forced appellee to employ counsel; the prayer in the first complaint asking for monthly payments of $116.66 resulted from a mistake on the part of appellee’s attorney, but that this mistake in no way misled appellant who knew the terms of the policy and knew that the monthly payments were $100. Based on these findings, the court rendered judgment against appellant for $922.50, for $111.06 penalty, and $1,250 for attorney’s fee.

Based on the above factual situation we have, after careful consideration, concluded that the trial court was correct in awarding the penalty and the attorney’s fee. Appellant, in its exhaustive and well prepared brief, cites and quotes from several decisions of this court to sustain the general rule that when the insured files suit for the amount due under the policy (for convenience called the “correct amount”) and the insurer confesses judgment for that amount, then the penalty and attorney’s fee are not allowable. That, says appellant, is the situation here because as soon as appellee reduced his claim to $100 per month it confessed judgment. The cases relied on by appellant are: Pacific Mutual Life Insurance Company v. Carter, 92 Ark. 378, 123 S. W. 764; Mississippi Life Insurance Company v. Meadows, 161 Ark. 71, 255 S. W. 293; Illinois Bankers’ Life Association v. Mann, 158 Ark. 425, 250 S. W. 887; Interstate Business Men’s Accident Association v. Sanderson, 148 Ark. 195, 229 S. W. 714; National Fire Insurance Company v. Kight, 185 Ark. 386, 47 S. W. 2d 576; Colorado Life Company v. Polk, 191 Ark. 151, 83 S. W. 2d 534; Broadway v. Home Insurance Company, 203 Ark. 126, 155 S. W. 2d 889; Life & Casualty Company v. Sanders, 173 Ark. 362, 292 S. W. 657.

It must be conceded that the above cases support the general rule. There is, however, at least one factor (present here, we think) which makes the rule inapplicable. That is, if the insurer has previously refused to pay the “correct amount” claimed, making it necessary for the insured to employ counsel and file suit (for the “correct amount”) then the penalty and fees are allowable even though the insurer confesses judgment for that amount. We have reviewed the cases cited by appellant and find that none of them are contrary to what we have just stated, but there are other decisions in support. In the case of Globe & Rutgers Fire Insurance Company v. Batton, 178 Ark. 378, 10 S. W. 2d 859, the Company denied all liability. Thereupon the insured brought suit and the Company admitted liability in the full amount of the policy. This court affirmed the judgment for the penalty and attorney’s fee on the ground that the Company had compelled the insured to incur the expense of employing an attorney. To the same effect is Commercial Union Assurance Company v. Leftwich, 191 Ark. 656, 87 S. W. 2d 55. See, also, Equitable Life Assurance Society of the U. S. v. Gordy, 228 Ark. 643, 309 S. W. 2d 330, where the facts are somewhat similar to the facts under consideration. In sustaining the penalty and attorney’s fee the court, among other things, said: “But the insurance company refused to accept the offer to settle for the five year period, and therefore the policyholder was compelled to file suit.” In the cited case, the insurer confessed judgment for the same amount finally demanded in the pleadings by the insurer.

It is true that in the case under consideration there was no specific demand, prior to filing suit, made by appellee and no corresponding specific denial thereof by appellant, but what did happen amounted to such demand and refusal. The court found, and it is not here denied, that appellee was, on and after May 8, 1959, entitled to the monthly payments, but shortly thereafter appellant by letter informed him in no uncertain terms that they would not make any more payments, and denied all liability. It was at this point, just as if there had been a specific demand and refusal, that appellee was forced to employ an attorney and commence litigation. This, we think, constituted a situation which falls within the spirit if not the letter of the previously mentioned Section 66-514. In material parts said Section reads:

“In all cases where loss occurs (on) and the . . . insurance company . . . liability therefor shall fail to pay the same within the time specified in the policy, after demand made therefor, such person, firm, corporation and/or association shall be liable to pay the holder of such policy, in addition to the amount of such loss, twelve (12) per cent damages . . . together with all reasonable attorneys’ fee for the prosecution and collection of said loss; . . .”

We have also concluded that the trial court was correct in allowing an attorney’s fee in the amount of $1,250. It is true that this amount appears to be out of proportion to the actual amount of recovery but the court was entitled to consider the fact that the services of appellee’s attorneys tended to establish appellant’s liability for future payments. See New York Insurance Company v. Dandridge, 204 Ark. 1078, 166 S. W. 2d 1030, and the Gordy case supra.

By stipulation it was established that appellant’s potential liability under the policy has a present value to appellee of more than $20,000. In addition to this three reputable attorneys estimated a fair attorney’s fee in this case to be approximately $5,000.

Appellee has requested the court to make an allowance for an additional attorney’s fee for the prosecution of this appeal, and we have decided that the same should be allowed in the amount of $250.

Affirmed.

George Rose Smith, J., not participating.