author: Carleton Harris, Chief Justice.

text:
    Rogers v. Crisp, Ex’x.
    5-3958
    406 S. W. 2d 329
    Opinion delivered September 26, 1966

      Chambers & Chambers, for appellant.

      McKay, Anderson & Crumpler, for appellee.
   Carleton Harris, Chief Justice.

Joe B. Lewis, a resident of Columbia County, died testate on December 26, 1964. An instrument, purporting to be his last will and testament, dated June 22, 1964, was offered for probate. The will designated Jean Welch Crisp, a friend and neighbor, as sole beneficiary. Appellants objected to the probate of the will, asserting that Joe B. Lewis was not mentally competent to execute the will on June 22, 1964, and further, that he was acting under undue influence at the time of its execution. On trial, the court found that Lewis was mentally capable of executing the will; that he did execute it without undue influence, and the instrument was admitted to probate. Prom the .judgment so entered, appellants bring this appeal.

Ten witnesses, including three of the heirs, and a daughter of one of the heirs, testified on behalf of appellants, and eight witnesses testified on behalf of appellee. As is usual in this type of case, the testimony was “poles apart,” appellants’ witnesses maintaining that Lewis was mentally incompetent to execute the instrument, and appellee’s witnesses just as emphatically testifying to the contrary.

Donald Shocldee, a neighbor, 18 years of age, testified that Lewis could not dial telephone numbers, because he could not remember while dialing... he would take a bath, and sometimes walk out of the bathroom unclothed before company. . . while his wife was ill, milk, which had been purchased for her by the witness, was poured down the sink by Lewis ... he left his wife alone during storms ... he carried large sums of money in his billfold, but would misplace the billfold, and couldn’t find it... he would take three or four pills of the same prescription, and forget he had taken them... he would subscribe for the paper, have it stopped, and subscribe again.

Mrs. Nina Martin, daughter of Mrs. Peterson, testified that she stayed with Lewis for a period of time after his wife’s death; she would leave the house, telling him where she was going, but upon returning, he would ask where she had been; after his wife died, he asked several times if there were any flowers or cards, and when she called off the names and called her own name, he inquired, “Who is that1?”

Mrs. Edwards, a sister, testified that her brother would frequently get lost, and would run red lights in the automobile; he had knocked the bumper off her car, but could not remember it.

Missouri Johnson, who was employed as a housekeeper by Lewis and his wife, testified that Lewis liked “to talk about women and, you know, doing things”... she also said that he would take his medicine, and soon thereafter “take it again.” The witness testified that, after she had quit working for him, Lewis would come to her house, and ask her to go to the home of Jean Crisp, and get Jean “to start back to talking to him;” that he made this request about twenty-five times, and finally stated that he would get his gun and shoot her unless she complied with the request.

Lucy Peterson testified that he took one of his sisters’ dental plates to Waldo, and left it at a grocery store instead of with the dentist. . . that he had several car wrecks.

Leslie Dendy, a nephew, stated that Lewis could not carry on a normal conversation, would ask a question, and while it was being answered, change to another subject.

O. A. Phillips testified that Lewis’ mind “would kind of go and come.”

Sam Capps testified that for the last several years of his life, Lewis could not answer questions clearly, and Julia Turk testified that, at his wife’s funeral, Lewis talked out loud during the service. The testimony of Dr. Joe Rushton, physician of Magnolia will be subsequently discussed.

Wendell Utley, an attorney, who had known Lewis for approximately twenty years, and who prepared the will in question, stated that the testator came into his (Utley’s) office by himself, and said that he wanted to leave his property to Mrs. Hamilton Crisp. Utley testified that the will was typed up at that time, read to Lewis, and was signed in the presence of the witness and Dr. William A. Carter, an optometrist, whose office was near that of Utley. The attorney stated that he had previously prepared two wills for Lewis, the first naming a brother in El Dorado as beneficiary; after that brother’s death, a second will was prepared, naming a sister as beneficiary. The witness said that there was no question in his mind but that Lewis knew what he was doing, and that the will was executed voluntarily. Dr. Carter testified that he noticed nothing abnormal about the testator, and that he knew him, having previously fixed glasses for him.

Harry Cobb stated that he sold Lewis an automobile in October of 1964, and the latter thoroughly understood the transaction, and acted no differently from some years before, when Cobb had also sold an automobile to Lewis.

Mrs. Estes McIntyre testified that Lewis would take her to shop for groceries; had taken a few meals at her home, and he knew his brothers, sisters, and his property. Lewis had told her that he had made a will in favor of Jean Crisp:

“A. Well, he just said she had been real good to him and that when he was down, when he didn’t have anybody else to turn to, she come to him and told him that he could live with them or just however he wanted to do it, as long as he wanted to.”

Four other witnesses, Richard Walters, W. M. Beasley, William Robert Kelly, and Bob Sanders, all of whom had known Lewis from twelve to thirty years, testified that they noticed nothing unusual about his condition in 1964. Sanders stated that he was the “same old Joe,” except that he was nervous.

Let us hear in mind that, as to mental competency, the question is whether Joe Lewis was competent to make a will on June 22, 1964. His condition, either before, or after, that time, is not the test, and such evidence is only relevant insofar as possibly indicating his condition on the date in question.

The strongest testimony offered by appellants was the testimony of Dr. Rushton. The doctor stated that he sent Lewis to the Veterans’ Hospital in Shreveport in December, 1963, because “his mind got so bad,” and it was his opinion that Joe Lewis was never normal after that time; however, it is not clear whether Dr. Rushton saw Lewis in June of 1964, or if so, the time of, and circumstances connected with, such a visit. When asked specifically if Lewis would have been able to comprehend the property he had, and his heirs at the time he executed the instrument, the doctor replied “I might say this, I think he could be talked into anything, easily influenced. I don’t think his mind was clear enough that he could reason out as to what he would want to do with his property.” This, of course, is not an explicit answer to the question interrogated. The doctor also stated that at times “he would seem fairly well,” but it was obvious that Dr. Rushton just did not consider Lewis normal. Of course, it is of some significance that the hospital released Lewis, after treating him for a while. In Thiel, Special Admr. v. Mobley, 223 Ark. 167, 265 S. W. 2d 507, we said:

“The burden was on appellee, the contestant, to prove the lack of mental capacity at the time the will was executed. This court has held many times that the burden of proving mental incapacity to make a will rests on the one alleging it. ’ ’

In that case, several witnesses stated that Mrs. Mobley was not normal, did not recognize the witnesses at times, and appeared, on occasion, to be in a stupor. Other witnesses contradicted this testimony. We held, however, that the testatrix was competent to execute the instrument. Of course, people frequently commit acts that other persons do not consider normal, but this does not establish incompetency to make a testamentary disposition. It certainly appears from the evidence that Lewis was aware of the fact that he had relatives; that he knew those relatives; that he was aware of the property he owned, and that he was aware of the fact that he had left the property to Mrs. Crisp. Peculiarities and eccentricities, as distinguished from insanity, are thoroughly discussed in Harwell v. Garrett, 239 Ark. 551, 393 S. W. 2d 256. Quoting from Volume 1, Page on Wills, Section 12.37, the court said:

■ “The fact that the testator was filthy, forgetful and eccentric, or that he was miserly and filthy, or that he was blasphemous, filthy, believed in witchcraft, and had dogs eat at the same table with him or that he was filthy, frequently refused to eat, and would lie in bed with his clothes on for two weeks at a time, or that he would leave his home only at night, and would count or recount his money, or that he was high tempered and violent, or was irritable and profane, or that testator thought that others were plotting against him and was afraid to go out in the dark, or that he was inattentive when spoken to and mumbled when trying to talk, does not establish lack of capacity.”

It might be added that “running red lights” and being involved in automobile wrecks, misplacing one’s billfold, mistreating members of the family and being unable to use a dial telephone are acts that are many times committed by perfectly normal people.

It is not unusual for some member of a family to feel that he has been mistreated by other members of the family, and, whether right or wrong, it is apparent that Lewis had “fallen out” with his sister. Nor can it "be said to be abnormal or unnatural for a testator, without wife or children, to leave property to a good friend rather than to a collateral relative.

The proof as to undue influence was extremely meager, and, in fact, only two instances are mentioned by appellant. It is asserted that the testimony of Missouri Johnson establishes that “Jean must have been putting some pressure on him or he would not have gone to Missouri’s so many times to get her to talk to Jean.” Of course, the quoted portion (from the brief) itself makes evident that speculation would have to be utilized to the utmost to consider this fact as any proof of undue Influence. The only other act mentioned is that Mrs. Crisp called the attorney some time after the will was made to inquire if Lewis had made a will. Even if it were established that Mrs. Crisp had begged Lewis to execute a will in her favor, this fact would not establish undue influence. In Langford v. Gates, 238 Ark. 167, 381 S. W. 2d 456, this court, quoting C.J.S., stated:

“Every influence exerted on a testator is not undue influence, and it is well settled that' influence, consisting of appeals, requests, entreaties, árguments, flattery, cajolery, persuasion, solicitations, or even importunity is legitimate and becomes ‘undue,’ so as to invalidate the will, only when it is extended to such a degree as to override the discretion and destroy the free agency of the testator.”

It is also noticeable that Lewis, unaccompanied, went to Ms lawyer’s office, and directed the disposition of the property. A similar circumstance is commented upon in Langford v. Gates, Supra. The will was not executed during a last illness, but rather several months before his death, and Mr. Lewis had every opportunity to reyolce it had he desired to do so. To the contrary, he mentioned to friends some time after signing the instrument that Mrs. ■ Crisp had been kind to him, and that he had left her his property.

Of course, whether one is found mentally competent to execute a will depends upon the particular facts and circumstances in each case. In this type of litigation, where the testimony is generally so much at variance, the findings of the Probate Judge, who heard the evidence and saw the witnesses, carry considerable weight.

As stated in Thiel, Special Admr. v. Mobley, supra:

While we try the case de novo, we must affirm unless we can say that such findings are against the preponderance of the testimony, and in this particular kind of a case we have frequently said that the findings of the Chancellor have persuasive authority and are entitled to weight and consideration.”

We are unable to say that the court’s findings are against the preponderance of the evidence.

Affirmed.

       Appellants are Mildred Rogers, Lucy Peterson, Florence Edwards, all sisters of the deceased, and the following nieces and nephews: Glen Lewis, Willie Elliott, Gussie Barron, Vera Hendricks, Leslie Dendy, Louise George, Marie Vent, Gertrude Thornton, Emma Sprick, Fred Lewis, Ray Lewis and Fannie (Jo) Demarco; also Dewey Booth, only heir of Phronia McDonald, a sister of Joe R. Lewis.

       Mrs. Lewis died in November, 1963.

       From the testimony: “Q. Did he know he had already made another will out to his sister? A. Yes, he knew that, he decided to destroy it and make out another will to Mrs. Crisp, seemed like he had fallen out with his sister for some reason, I don’t remember just what.”

       Emphasis supplied.


source: Caselaw Access Project

author: Ed. F. McFaddin, Justice.

license: Public Domain

text:
    Gardner v. Bullard
    5-3903
    406 S. W. 2d 368
    Opinion delivered September 26, 1966

      James Daugherty and Cooper Jacoway, for appellant.

      John D. Eldridge and George P. Eldridge, for appellee.
   Ed. F. McFaddin, Justice.

This appeal necessitates a study of Ark. Stat. Ann. § 21-914 (Eepl. 1956) in regard to proceedings in a drainage district case.

In 1959 the Woodruff-Prairie Drainage District was duly organized by the Chancery Court of Woodruff County, pursuant to statute (See Ark. Stat. Ann. § 21-901 et seq. [Eepl. 1956].) In January 1962 the District filed with the Woodruff Chancery Court a petition seeking, inter alia, authority to borrow money from a federal agency under Ark. Stat. Ann. § 21-914. In accordance ■with the said statute the Chancery Court set March 12, 1962, as the date for the hearing* on the said petition, and due notice was given by publication. On March 12, 1962, the Court adjourned to March 20, 1962; and on that date there was presented to the Court the petition of the District for the desired order, and also the petitions of numerous objectors to the granting of the desired order. The Court heard the witnesses for the District (hereinafter called “proponents”), and appointed a Master to hear the testimony offered by the objectors.

The Master proceeded to hear the evidence, and it is voluminous. Then on January 20, 1965 the Master filed his report, which shows great study. He answered the questions posed hy the appointing order:

1. The objectors’ petitions filed on March 20, 1962 were filed too late, and such fact ivas, in itself, fatal to the objectors.
2. But if the objectors’ petitions had been filed in time, they nevertheless would not constitute a majority in number of the owners of the lands located in the District.
3. The said objectors did constitute a majority of the real estate in assessed valuation.

On July 3, 1965 the Chancery Court approved the Master’s report and granted the petition of the proponents; and from that decree there is this appeal by the opponents, in which they list three points:

“I. The court erred in holding that the landowners, who objected to the improvements and tax, could not object by petition.
“II. The court erred in refusing to accept petitions and testimony from opponents of the improvements after March 12, 1962.
“III. The court erred in refusing to admit testimony of husbands (who were tenants by the .entirety with, their wives of land in the district) that their wives opposed the improvements and tax levy.”

We find merit in Points I and II urged by the appellants in their brief. However, there is no need to discuss these points because we find no merit in Point III urged by the appellants, and such conclusion necessitates an affirmance of the decree of the Chancery Court. We proceed, therefore, to a discussion of Point III, as listed by appellants.

“The germane portion of the statute here involved (Ark. Stat. Ann. § 21-914) reads:

“The Board is hereby authorized to cooperate -with the United States or any agency . . . thereof . . . and the Board shall have authority to negotiate a contract with the United States .... After the terms of the contract... have been negotiated with the United States, the Board shall petition the Chancery Court for the ratification and approval of the contract---The Chancery Clerk shall give notice by publication calling upon all persons owning property within said District to appear before the Chancery Court upon some date ... to be fixed by the Court, to show cause in favor of or against the ratification of the contract .... If upon final hearing the Court deems it to the best interest of the owners of real property within said District, the Court shall enter an order ratifying and approving the contract . . . provided, however, if it is determined by the Court that a majority in number of the holders of title to the lands within the District and the owners of a majority in value of the lands therem . . . oppose the ratification of the contract . . . the Chancery Court shall enter an order disapproving the contract . . .” (Italics our own.)

.. It must be borne in mind that before the objectors cap.; .-prevail against the. finding of the Chancery Court in favor of the contract recommended by the Board, the objectors have to establish (1) that they constitute a majority in number of the holders of title to the lands within the District, and also (2) that they constitute a majority in value of the lands in the District. And this heavy burden we find the opponents have failed to discharge insofar as concerns the 'majority in number of the holders of title to the lands within the District.

The appellants have conceded that there are twenty tracts in each of which the title is held by husband and wife as an entirety estate; and that in each instance the petition in opposition to the proposal was signed only by the husband. For illustration: the petition was signed as “John Smith,” whereas the title was in “John Smith and Mary Smith, his wife.” The appellants have also impliedly conceded that they do not have a majority of the holders of the title to the lands in the district unless either (a) land held by entirety be counted as one ownership, with John Smith (following the illustration above) having the right to sign for the entire title; or (b) John Smith, having signed as shown in the illustration, could be allowed to testify at the trial that his wife, Mary Smith, agreed with him in opposition to the project.

We consider each of these matters.

(a) As regards ownership: in an estate by the entirety, the wife is certainly a part owner of the title. In Branch v. Polk, 61 Ark. 388, 33 S. W. 424, we had occasion to consider the matter of an estate by the entirety, and we there said: “The right of the wife to control and convey her interest, we think, is now equal to the right of the husband over his interest. They each are entitled to one-half of the rents and profits during coverture, with power to each dispose of or to charge his or her interest, subject to the right of survivorship existing in the other.” This holding has been reaffirmed in many cases, some of which are: Western Assurance Co. v. White, 171 Ark. 733, 286 S. W. 804; and Pope v. McBride, 207 Ark. 940, 184 S. W. 2d 259. Thus we consider it as thoroughly established in this State that in an estate by the entirety the wife is a holder of a portion of the title which the husband, acting alone, cannot convey.

We have several cases involving improvement districts in which the owner of a portion of a title signed the petition. Some of these are: Ahern v. Board, 69 Ark. 68, 61 S. W. 575; Earl v. Board, 70 Ark. 211, 67 S. W. 312; Board v. Offenhauser, 84 Ark. 257, 105 S. W. 265; Colquitt v. Stevens, 111 Ark. 314, 163 S. W. 1141; City of Malvern v. Nunn, 127 Ark. 418, 192 S. W. 909; and Johnson v. Norsworthy, 239 Ark. 545, 390 S. W. 2d 439. In Ahern v. Board, supra, we held that when lands were owned by two tenants in common and a petition was signed by only one of them, then such signing person was the sole owner of only one-half interest in the property, in Earl v. Board, supra, we held that where property was owned by a partnership (Orrel Bros.), and the petition was signed by only one partner (W. T. Orrel), then only one-half of the ownership had signed the petition. Under these cases, and under the case of Branch v. Polh, supra, we think that when John Smith alone signed the petition (as in the illustration), he was only the holder of a part of the title to the property, and the interest of his wife, Mary Smith (as in the illustration), could not be counted as joining in the petition.

The appellants claim that the cited cases are not governing because appellants claim that an estate by the entirety is different from a co-tenancy or a partnership. It is true that there is a difference between the estates; but the governing principle is the same. In an estate by the entirety the wife has an interest even during the lifetime of the husband which he cannot convey away from her; and we think her signature is just as essential to becoming a valid objector to the district as if she had been a co-tenant or a partner.

If in the illustration John Smith had signed the petition “John Smith and Mary Smith, his wife,” or even “John Smith and wife,” then oral testimony could have been heard to show that he was authorized to sign the petition on behalf of his wife. Such is the holding in Board v. Offenhauser, supra, and City of Malvern v. Nunn, supra. But in the case at bar there was an entire failure on the part of John Smith (as in the illustration) to show in any way by signature that his wife owned any interest in the title or had joined with him.

(b) In the second place, the appellants claim that the husband should have been allowed to testify at the trial that his wife, though not having signed the petition in any way, was in fact in agreement with him in opposition to the project. We find no merit in appellants’ position. If the husband had signed his wife’s name her ratification could have been shown; but in the entire absence of anything in the petition showing the wife either as an owner or as joining with the husband, then her ratification could not be shown. There was nothing to ratify. In Colquitt v. Stevens, supra, we said: “Here the owners of the property could not ratify the signing of their names because their names were not signed and there could be no ratification of a thing which had never been done.” This holding was followed and reaffirmed in our recent case of Johnson v. Norsworthy, supra. Certainly if the wife could not, by her own testimony, ratify her unsigned name, then clearly her husband could not by oral evidence attempt to show her agreement with him as regards objecting to the project.

The appellants impliedly concede that they do not have a majority of the holders of the title to the lands unless the whole title be counted in the twenty instances of entirety title, and since we have held that such cannot be allowed, it necessarily follows that the appellants have failed to show that they had a majority of the holders of the title in the petitions filed by them on March 20, 1962, the day the Court appointed the Master.

Appellants make one final argument for reversal as a portion of their Point III, and we now consider it. During the hearing before the Master, and after March 20, 1962, the opponents attempted to file an additional petition in opposition, which additional petition contained the signatures of four other landowners; and the Master refused to permit this new petition to be considered. "We hold that the Chancery Court was correct in affirming the Master’s ruling on this point, because such additional petition filed after March 20, 1962 was filed too late. What the Court had authorized the Master to decide related to the petitions of opponents filed on March 20, 1962. The Master had no authority to allow an additional petition to be filed. The four late signing landowners could not remain silent for days, months, or years, and then appear only when such appearance became crucial. The Master was limited to consideration of those who had signed the petitions that had been filed on March 20, 1962.

Since the evidence failed to establish that the opponents to the plan of the proponents constituted a majority in number of the holders of title to the lands in the District, the opponents failed to defeat the plan approved by the decree of the Chancery Court.

Affirmed.

      The Court order recited:
      “. . . and from the testimony of the witnesses for the proponents the court finds that the construction of the proposed drainage system would be to the best interest of the landowners of the area described in the petition.
      “The opponents to the petition on March 20th presented to the court various counter petitions which the court allowed to be filed over the objection of the petitioners.
      “It appears to the court that a determination should be made as to whether or not a majority of the landowners in the district in number and in assessed valuation oppose the granting of the petition as represented by the signers of the counter-petition filed March 20, 1962 and the court further finds that this determination is of such a nature that it would require the services of a Master to determine the following facts:
      “1. Whether the petitions were filed within the time and in the manner as provided by law.
      “2. Whether those appearing in the time and manner as provided by law constitute a majority in number of owners of lands located within the district.
      “3. Whether those appearing in the time and manner provided by law are owners of a majority of real estate located within the district in assessed valuation.”


author: G-eorge Rose Smith, Justice.

text:
    Lyman Lamb Co. v. Ark. Shell Homes
    5-3917
    406 S. W. 2d 708
    Opinion delivered September 26, 1966
    [Rehearing denied October 24, 1966.]

      Bruce T. Bullion and Wayne Foster and W. J. Walicer, for appellant.

      John F. Parle and Gerald T. Ridgeway and Givens, McHaney & McHaney, for appellee.
   G-eorge Rose Smith, Justice.

For about two years Arkansas Shell Homes, Inc., acting as a contractor, built shell houses for landowners in Pulaski county. The venture ended in Shell’s bankruptcy. The appellant, Lyman Lamb Company, was Shell’s principal source of material for some 150' houses. When the company became insolvent it owed a number of accounts to Lamb, five of which are now in issue. *

Lamb filed five suits to enforce materialman’s liens against five of the houses, joining Shell and the various landowners as defendants. The cases were consolidated in the court below. The chancellor dismissed Lamb’s complaints, finding that Lamb had perpetrated such a fraud upon Shell that all Lamb’s claims were unenforceable. That finding presents the principal issue on appeal.

The asserted fraud involved a boat — a $2,000 party barge — that Lamb bought in March, 1962. According to Lamb, two of Shell’s employees persuaded him to buy the boat and resell it to Shell for its employees’ recreation. Lyman Lamb, president of the appellant, testified that he was told to collect the purchase price by submitting, for each shell house, a fictitious invoice for $50.00, describing material not actually delivered. (The invoices were in fact made out for $50.02 each.) The Lamb company followed that course and had recouped its entire outlay before the present suits arose. Thereafter no further dummy invoices were submitted.

Lamb’s version of the transaction is contradicted by other testimony showing that the boat was originally a gift by Lamb to one or more of Shell’s key employees. According to this testimony Lamb secretly recovered the cost of the gift by means of the false invoices, without the knowledge of Shell’s top management. The chancellor credited this testimony, finding the transaction to be fraudulent. Upon that issue of credibility we cannot say that the trial court’s conclusion is against the weight of the evidence.

Counsel all agree that if a fraudulent charge was consciously included in any of the accounts that account would be invalidated and the lien would fail. It is Lamb’s contention that the boat deal was not involved in any of the five accounts now in issue and thus has no bearing upon this liitgation.

Lamb’s contention cannot be sustained with respect to one of the cases, that involving the Mitchell property. Early in the trial Lamb’s attorney announced that it was reducing its claim against the Mitchell house by $50.02. Later on Lamb attempted to retract that concession, maintaining that it had been a mistake, that no fraudulent charge had been made against the Mitchells.

We are not convinced by this argument. Shell built a house for the Mitchells in 1962. Lamb admittedly made one of the false $50.02 charges in the course of that construction. A few months later Shell built an addition to the Mitchell house, which gave rise to the present lien claim. It is apparent that Lamb was morally obligated to the Mitchells for the false charge that had been made earlier. Hence we take Lamb’s voluntary reduction of its claim to be a confession of wrongdoing having a foundation in fact. That asserted lien must fail.

A different situation exists with respect to the other four cases. Except for a few trivial errors that were made in good faith and so do not vitiate the lien claims, all the materials for which Lamb is now seeking payment went into the construction of those houses. In none of the four projects was a dummy invoice submitted, doubtless because Lamb had already recovered the cost of the boat.

Despite this fact counsel for the landowners insist that Lamb’s claims are tainted by the boat transaction and that its lien affidavits were' therefore consciously false. The argument is that Lamb, in asserting its liens, should have recognized that Shell had a cause of action against it for the recovery of the secret fictitious charges and that Lamb should somehow have given these four landowners some sort of pro rata credit for their derivative share of Shell’s unasserted cause of action against Lamb.

This argument is unsound. These four landowners were not affected in any way whatever by the fictitious invoices. They have no legal or equitable right to be subrogated to whatever cause of action Shell might have. If there was a fraud those who suffered from it were the landowners whose construction costs were padded by the false charges. Perhaps they or Shell or Shell’s trustee in bankruptcy has an enforceable grievance against Lamb, but in no event could the recovery redound to the benefit of the present lienees.

To sustain the appellees’ argument would be to establish a precedent that the courts could not live with in the future. Under the doctrine now being urged any materialman or laborer, before filing his lien affidavit, would have to search his conscience to see whether there Avas some extraneous cause of action that the principal contractor might bring into the case. If so, it would be the lienor’s duty to inject such a collateral matter into the litigation, even though it had nothing at all to do with the matter in controversy. We are convinced that the better course is to let the contractor assert his OAvn causes of action if he sees fit to do so.

One of the four claims, that against the Wawak property, presents two issues that we must consider upon trial de novo, though they were not reached by the chancellor.

First, it is contended that the Wawaks are entitled to credit for a payment of $1,627.17 that Shell tendered to Lamb on August 15, 1963. At Lamb’s suggestion the money Avas actually credited to other accounts, but counsel for the Wawaks insist that Shell and Lamb did not have the power to apply the payment as they did.

We do not agree Avith this contention. The Wawaks, like the other landowners, financed their construction by a mortgage to a lending institution. Shell received the proceeds of the mortgage on March 26,1963. The Wawak house was completed in May. Long before Shell’s check was tendered to Lamb the proceeds of the Wawak loan had been spent by Shell in- the payment of other debts, leaving Shell still indebted to Lamb for materials that went into the Wawak house.

Shell was already in financial difficulty. It was from sixty to ninety days behind in its payments to Lamb. To avoid the filing of materialman’s liens both Shell and Lamb wanted Shell’s payments to be applied to the oldest accounts. To that end Lamb furnished Shell information from time to time about the age of the various accounts, and from that information Shell made notations upon its checks to Lamb of the amount to be applied to each account.

On August 15, long after the Wawak money had been expended, Shell sent Lamb a check with a notation that $1,627.17 of the remittance was to be applied to the Wawak account. Lyman Lamb noted that there were other accounts older than that arising from the Wawak job. Lamb’s bookkeeper at once called Shell’s bookkeeper, and the two agreed that the proceeds of the check would be applied to older accounts. The Wawaks knew nothing about the matter until the original notation on the check was discovered by an accountant while the parties were preparing for trial.

It is contended, on the authority of Kelley Bros. Lbr. Co. v. Leming, 220 Ark. 418, 248 S. W. 2d 359 (1952), that Shell and Lamb could not change the application of the payment. That case, however, differs materially from this one. There the payment had actually been applied to the Leming account. Leming had been so informed. The transaction had become final. More than a month later the contractor and the materialman tried to change the application. We held that such a change could not be made, to Leming’s prejudice.

The present case differs from that one in essential respects. There was never any application of the payment to the Wawak account. Lamb in good faith suggested a different application from that proposed by Shell. That suggestion was accepted by Shell. The Wawaks knew nothing about the matter and of course did not rely upon the original notation on the check. In the circumstances there is no injustice in giving effect to the application agreed upon by Shell and Lamb. Stephenson v. Ketchikan Spruce Mills, 412 P. 2d 496 (Alaska 1966). Shell’s ready acquiescence in Lamb’s suggestion had the same effect as if the application had been made by Shell in the first place. Garey v. Rufus Lillard Co., 196 Okla. 421, 165 P. 2d 344 (1945).

Second, the Wawaks raised a question of fact about whether all the materials charged to them had really been used in the construction of their home. Their principal witness was Mrs. Wawak. It was her recollection that the last work on the house, the installation of certain iron work, took place on May 2, 1963. On that premise she questioned an invoice indicating that materials priced at $10.28 had been delivered to the job four days later, on May 6. We think the weight of the evidence shows that Mrs. Wawak was mistaken in her recollection. Especially convincing is the testimony of the iron company’s foreman, a disinterested witness. He testified that the company’s records showed that the order for the Wawak work was received on May 2 but that the work was actually done on May 29. Upon the record as a whole we find the weight of the testimony to be against the Wawaks’ contention that they were charged for materials not used in the construction of their house.

In the Mitchell case the decree is affirmed. In the other four cases the decree is reversed and the causes remanded for further proceedings in harmony with this opinion.


author: GIeorge Bose Smith, Justice.

text:
    Bell v. West d/b/a West’s Serv. Sta.
    5-3956
    406 S. W. 2d 316
    Opinion delivered September 26, 1966

      Terral, Rawlings, Matthews & Purtle, for appellant.
    No brief filed for appellee.
   GIeorge Bose Smith, Justice.

In this garnishment proceeding the trial court entered judgment against the appellee, as garnishee, for $30.00. The appellant, the judgment creditor, contends that the garnishee failed to file a true answer to the writ, as the statute requires, and that he thereby became liable for the full amount of the principal judgment. Ark. Stat. Ann. & 31-506 (Bepl. 1962).

In January, 1964, Bell obtained a judgment for $954.70 against Ernest Larkin, an employee of the appellee West. A writ of garnishment was served on West on Thursday, February 20, 1964. On the following Tuesday, February 25, West filed an answer stating’ that he had paid Larkin in advance through February 20 (the date of service) and that he was not indebted to Larkin either on the date that the writ was served or on the date that the answer was filed. Bell promptly countered with a denial of the correctness of the garnishee’s answer.

At the trial in November, 1964, Larkin was the only witness. He testified that throughout the year he had been working for West at weekly wages of $45.00, which were paid to him every Saturday night. The trial judge, in awarding the appellant a judgment for $30.00, concluded that West had been indebted to Larkin for two thirds of a week’s work (February 21 to February 25) when the answer was filed.

The court’s conclusion, under the law applicable to garnishments, was correct. A debt not yet payable but certain to become payable in the future is reached by a writ of garnishment. Cannaday v. First Nat. Bank, 238 Ark. 474, 382 S. W. 2d 589 (1964). Hence West’s answer to the writ was incorrect. The case is therefore controlled by our decision in Harris v. Harris, 201 Ark. 684, 146 S. W. 2d 539 (1941), where we held that a garnishee filing an untrue answer is liable for sums paid by him to the judgment debtor until a correct answer is filed. Inasmuch as West had paid Larkin more than the full amount of Bell’s judgment in the interval between the filing of his incorrect answer and the date of trial, Bell was entitled, under the Harris case, to a judgment against the garnishee for $954.70, with interest.

The judgment must be reversed and the cause remanded for the entry of a judgment in Bell’s favor.


author: Paul Ward, Justice.

text:
    Phillips v. Phillips
    5-3925
    406 S. W. 2d 325
    Opinion delivered September 26, 1966

      Gus R. Gamp, and E. L. Holloway, for appellant.

      Dudley & Burris, for appellee.
   Paul Ward, Justice.

This is an appeal from a decree changing the custody of a young child from the father to the mother. A summary of the material facts and circumstances leading to this appeal is set forth below.

Background Facts. The parties were married in July 1959. Some three years later a daughter, Lesa Loeta, was born to the union. It appears from the record that the parties were under twenty years of age when they married. When Lesa Loeta was about two years old the parties separated, and were divorced on April 24, 1964. In accord with a written agreement, entered into on April 10,1964 by the parties (approved by the court), the custody of Lesa Loeta was awarded to appellant— the father.

Petition for change of custody.

On March 29, 1965 appellee (the mother) filed a petition asking the chancery court to award to her the custody of the child. In support of the petition it was alleged that at the time of the divorce decree she had “no employment or income,” but that since that time she has completed a course in cosmetology and is licensed as a beautician from the State of Arkansas and from the State of Missouri; that she is steadily and gainfully employed, operating a beauty shop.

In reply to the above petition appellant alleged; (a) there had been no change in circumstances since the divorce decree, and; (b) it would be to the “best interest of the minor child for the custody order to remain as it is......''

For a reversal, appellant urges only two specific grounds: One, ‘ ‘ there has been no change in circumstances,” and; Two, “the change of custody was not for the best interest of the child.” After a careful study of the record and our applicable decisions we are unable to agree with appellant on either ground, and therefore conclude the trial court must be affirmed.

One. The undisputed testimony shows that there has been a material change in circumstances since the original decree. At that time appellee was not able to support the child and had no place to keep her. At this time appellee has completed a course in cosmetology and is now a licensed beautician in Arkansas and Missouri. Now she is steadily and gainfully employed, conducting her own shop in Williamsville, Ark. She has a place for her daughter to live with her. The case of Hamilton v. Anderson, 176 Ark. 76, 2 S. W. 2d 673 presents a situation similar to the one here presented. There, the court awarded part time custody of two girls (ages 6 & 8) to the father, but refused later to award custody to the mother who had employment and a home in which to keep the children. On appeal this Court reversed the trial court and gave custody to the mother. In doing so it was stated: “We think, however, that the testimony does show such conditions as warrant a change of custody.”

In the case before us the trial court found there was such a change in conditions as to support a change in custody, and we are unwilling to say any such finding was contrary to the weight of evidence.

Two. Likewise, we think the trial court must be sustained in finding the change of custody was in the best interest of Lesa Loeta. We have many times followed the well established rule, in cases of this nature, that the chancellor must keep in view primarily the welfare of the child. Kirby v. Kirby, 189 Ark. 937, 75 S. W. 2d 817. We have also many times recognized that this rule operates favorably to the mother as the custodian where the child is of tender years. See: Beene v. Beene, 64 Ark. 518, 43 S. W. 968; Wann v. Wann, 85 Ark. 471, 108 S. W. 1052; Meffert v. Meffert, 118 Ark. 582, 177 S. W. 1, and; Taylor v. Taylor, 163 Ark. 229, 259 S. W. 395. In the Beene case we said: .. bnt the younger of the boys, not yet five years old, it seems to us, is in special need of a mother’s control — that care and control which a father is ill suited by nature to exercise.” In the Wann case it was stated: “They have only one child, a little girl, named Virgie May. She is about six years old, of that age when she needs the care of a mother.” In the Meffert case there appears this statement: “Considering her tender age [8] and the fact that she needs a mother’s care, we do not think the chancellor erred in awarding her custody to the mother.” In the Taylor case there is the following statement: “The child’s age [girl 5] is such that a mother’s care is very necessary, and we think the custody should be awarded to the mother.” The rule set forth above has been many times reaffirmed in more recent cases.

Finding no reversible error the decree appealed from is accordingly affirmed.

Affirmed.


author: Osro Cobb, Justice.

text:
    Ark. State Hwy. Comm. v. Drennen
    5-3948
    406 S. W. 2d 327
    Opinion delivered September 26, 1966

      George 0. Green and Don Langston, for appellant.

      Floyd, G. Rogers, for appellee.
   Osro Cobb, Justice.

This appeal reaches us from a judgment in favor of appellees entered in the Crawford Circuit Court. It involves the taking by condemnation of 32.9 acres of land for use in construction of Interstate Highway No. 40. Appellees’ original land tract contained 170 acres.

We note at the outset of our review of this case that appellant does not contend that the judgment for appellees is excessive in amount, nor does appellant contend that the case was submitted to the jury without proper guidelines to the applicable law, no objections being made to the instructions to the jury as given by the trial court.

All four of appellant’s points on appeal relate to motions to strike certain portions of the testimony of appellees and of their three expert witnesses, all of the motions having been denied by the trial court.

Appellant’s Point No. 1.

This point relates to appellant’s motion to strike all of the value testimony of appellee because he gave no fair and reasonable basis for his opinion.

Most owners of rural lands, like this appellee, are farmers, and also like appellee they are not qualified as land appraisal experts. This does not mean that such owners who have such a close personal relationship to the lands involved have no sense of proper land values in their respective areas. Appellee testified that the actual value of his land had doubled in the last five years, and, when asked on cross examination as to his basis for such testimony, stated that he primarily based the increased valuation on the action of the Federal Land Bank of St. Louis, Missouri, in doubling all of its land values in Western Arkansas in June of the preceding year. No testimony was offered to contradict this evidence. Furthermore, appellee testified that local lands similar to his land would be difficult to acquire at a price of $400.00 per acre. He admitted that this testimony was based largely on what owners were asking for their lands, no recent sales having come to his attention.

We have never held that the value testimony of owners of land being condemned is inadmissible because of limitations of the landowner in experience and background in land transactions. If such restrictions were imposed, few landowners would be permitted to testify as to their own values and as to their own claims for damages. We have therefore repeatedly held that a landowner may testify as to his own opinions concerning values before and after the taking of his land.

In Arkansas State Highway Commission v. Fowler, 240 Ark. 595, 401 S. W. 2d 1 (1966), we cited with approval from 20 Am. Jur., Evidence % 892:

“It is generally recognized that the opinion testimony of the owner of property, because of his relationship as owner, is competent and admissible on the question of the value of such property, regardless of his knowledge of property values. It is not necessary to show that he was acquainted with the market value of such property or that he is an expert on values. He is deemed qualified by reason of his relationship as owner to give estimates of value of what he owns. The weight of such testimony is, of course, affected by his knowledge of the value. ’ ’

See also State Highway Commission v. Covert, 232 Ark. 463, 338 S. W. 2d 196 (1960).

We find no merit in the contention of appellant as to his Point No. 1.

Appellant’s Point No. 2.

This point involves motion of appellant to strike the testimony of Jay Neal, professional land appraiser, because he gave no fair and reasonable basis for his opinions as to values. The witness, Mr. Jay Neal, testified that he had been upon the land involved in this case on many occasions during the past fifty or more years; that he had been a land appraiser for many years and that he had been employed in the past in the capacity of a land appraiser by appellant; that he owned land and lived thereon within some Wo miles of subject lands, and that he specifically examined appellees’ property for appraisal purposes and for purposes of giving his testimony as to values and damages, including severance damages, shortly before the trial of this case. He further testified that he was familiar Avith land transactions and values in that locality. Appellant did not interpose a single objection to any of the testimony of this Avitness as it was being given. We find from a review of the testimony of this witness that he provided the court and jury a fair and reasonable basis for the opinions that he expressed. Such testimony was therefore admissible. See Bridgman v. Baxter County, 202 Ark. 15, 148 S. W. 2d 673 (1941); Fort Smith & Van Buren Bridge District v. Scott, 103 Ark. 405, 145 S. W. 440 (1912).

We therefore find no merit in appellant’s contentions under its Point No. 2.

Appellant’s Points Nos. 3 & 4.

Both of these points involve the contention that expert appraisers Mack Bolding and Bob Geliy, who testified for appellees, based certain portions of their opinion testimony as to appellees’ damages upon the inconvenience to appellees by reason of having to travel further from their property in o?der to reach U. S. Highway 64-71 after the construction of Interstate 40, a controlled access highway.

Appellant has not called to our attention any testimony of either witness wherein they did in fact bottom their opinions as to appellees’ damages upon any such inconvenience, or other inconvenience in access to highways not suffered by the public generally. We have examined the transcript of all of the evidence of these witnesses and while they were subject to vigorous cross examination seeking an admission from them that such inconvenience was considered as an element of appellees’ damages, they stood steadfast and refused to admit that such was the case, and that, on the contrary, their opinions were based upon the market value of appellees’ property before the taking and after the taking.

We have therefore concluded that no proper basis existed for the motions to strike the testimony of these two expert witnesses, and that the trial court committed no error in overruling the motions of appellant.

Having found no merit in any of the contentions of appellant which have been presented to us for review, the judgment of the trial court is affirmed.


author: Cuy Amsler, Justice.

text:
    Tyler v. Tyler
    5-3950
    406 S. W. 2d 333
    Opinion delivered September 26, 1966

      Ward & Mooney, for appellant.

      Kirsch, Cathey & Brown, for appellee.
   Cuy Amsler, Justice.

This litigation involves the custody of a six year old boy, (Craig) who is now attending public school in Paragould, Arkansas, where the hoy’s father resides with his fourth wife and the child.

The learned chancery judge decreed that custody of the child should remain in the father, appellee Leroy J. Tyler. Appellant (Mabel), the mother and former wife of appellee pursues this appeal.

Attorneys for appellant correctly state that the cardinal question is where does a preponderance of the evidence lie or as they say “from another point of view, the decision of the Chancellor is not compatible with the best interests of the minor child.” A brief resume of the proof in the case will readily demonstrate the soundness of the Chancellor’s conclusions.

Appellant testified that her married life with appellee, from 1957 until their divorce in 1963, was a stormy one; that when she became pregnant in 19'59 she was unhappy about it and when she suggested having an abortion (which she did not do), appellee did not object; that appellee changed jobs frequently and they moved constantly; that she also worked throughout the marriage, because appellee did not consistently contribute to household expenses; that when she decided to take further training to increase her earning capacity, appellee reluctantly agreed to keep Craig during her 1% years of schooling and agreed that there would be no decision made about Craig’s custody until that time. A doctor’s wife, who had gone through nurse’s training with appellant, testified that appellant was a good mother, affectionate with her son, and that during appellant’s advanced schooling in Michigan, appellant drove or flew down to see Craig every three months regardless of the weather. Two women, themselves mothers, who had baby-sat for appellant in the past, testified by deposition that appellant had maintained a nice home, was a good mother, affectionate, and a proper person to have Craig’s custody. Appellant’s former landlord testified that she had a suitable (rented) home (in Illinois) for a child, near schools.

Appellee’s witnesses, besides himself and his present wife Dorothy, testified: their minister, “delightful family relationship, a lovely home with a proper spiritual atmosphere”; two neighbors, “nice home, fondness and affection not only between Craig and appellee but also between Craig and Dorothy Tyler”; Craig’s kindergarten teacher, ‘ ‘ neat, clean, healthy, happy and normal boy”; the wife of a co-worker of appellee, “wholesome atmosphere and relationship in appellee’s home; happy, normal well-adjusted child”; a former co-worker, “a home that just seems orderly, and there’s harmony there, there’s love, and it’s just a beautiful home in which to raise a young lad”; appellee’s former employer and his wife who came from Independence, Missouri, to testify (the only witnesses for appellee who know appellant), “appellant inclined to be rather aloof and retiring, except when she was working; appellant seemed detached and withdrawn”; and the minister of Dorothy’s mother, with whom Craig frequently stayed for a few hours after kindergarten, “good clean home, healthy woman and well able to look after Craig, nothing about her home that would have an adverse effect on Craig.”

The only real demerit against appellee is his numerous unsuccessful marriages and yet the one with his present wife appears to have been most fortunate. According to Mr. Heath, the funeral director by whom Leroy has been employed as an embalmer and director for over two years, “Leroy is one of the best in his line of work. . . there is nothing about appellee or his home that would be harmful to Craig . . . his marriage to Dorothy Tyler had seemed to have a stabilizing influence on him” (appellee), and he felt that their marriage was very fortunate for both of them.

The chancellor having heard the witnesses first hand with an opportunity to observe their demeanor, sincerity and their means of obtaining* information which they imparted to the court was in a much better position than are we to evaluate their testimony. We think the evidence clearly supports appellee’s position and that the trial court has correctly determined that the child’s welfare will best be served by remaining with his father. Kirby v. Kirby, 189 Ark. 937, 75 S. W. 2d 817; Blake v. Smith, 209 Ark. 304, 190 S. W. 2d 455; Stephenson v. Stephenson, 237 Ark. 724, 375 S. W. 2d 659.

Under the final decree in this ease appellant is to have custody of the little boy sixty days each summer and one weekend during the remaining months. Appellee does not contest this arrangement. Accordingly the decree is in all respects affirmed.


author: Hugh M. Bland, Justice.

text:
    Pyramid Life Ins. Co. v. Garrison
    5-3963
    406 S. W. 2d 334
    Opinion delivered September 26, 1966

      Shaw, J ones & Shaw, for appellant.

      Davicl 0. Partain, for appellee.
   Hugh M. Bland, Justice.

On December 12th, 1963, the appellant issued its hospital, surgical and medical policy to the appellee. Among other benefits, the policy provided that in the event of sickness or illness requiring appellee to be treated by a licensed physician the appellant would pay the amount of expense incurred for such treatments not to exceed the sum of $3.00 for each treatment at a clinic or physician’s office or $5.00 for each treatment at the home of the policyholder. On or about October 30th, 1964, appellee became ill suffering from granular urethritis and from then through May 4th, 1965, was treated at the office of Dr. M. C. Wilson or Dr. J. N. Thicksten a total of 29 times. Under the terms of said policy the first call was excluded.

Appellee filed claim for 28 treatments at $3.00 each or a total of $84.00. Appellant denied the claim, tendered a refund of all premiums paid and attempted a cancellation of the policy, contending that appellee had granular urethritis before applying for the insurance and had failed to disclose this information to appellant.

Appellee filed suit in the Crawford County Chancery Court to restrain and enjoin appellant from cancelling the policy and to recover $84.00 for the 28 office calls.

Appellant filed an answer by way of general denial and amendment to answer claiming the appellee failed to disclose in her application her true condition and did not reveal that she had granular urethritis prior to issuance of the policy. Appellant tendered into court all premiums paid by appellee and prayed cancellation of her policy.

By agreement of the parties, the cause was tried at Fort Smith, Arkansas before the Honorable Paul X. Williams, Chancellor, on exchange of circuits.

At the trial, on October 28, 1965, the court held appellant liable under the terms of the policy for $84.00, plus a 12% penalty and $100.00 attorney’s fee and further held that said policy was noncancellable. From this holding appellant has perfected its appeal to this court.

For reversal appellant relies upon three points:

“I. The Chancellor’s holding that the appellee made full disclosure of any and all information pertaining to her health and physical condition to the appellant is against the preponderance of the evidence.
II. The Chancellor erred in holding that the appellant’s insurance policy was ‘Noncancella- , ble’ under the circumstances in this case.
III. Even assuming that the appellee disclosed her condition to the agent, the Chancellor erred as a matter of law in holding that said disclosure to the agent was disclosure to the appellant. ’ ’

The facts are not in dispute and narrow down to the issue of disclosure of appellee as to her physical condition at the time of her application for the insurance. The application was obtained by Fred K. Miller, agent of the company, at appellee’s store. The record is silent as to whether he was a soliciting agent or a general agent. The application was filled out by the agent in response to answers given him by appellee. The application was made a part of the policy. Appellee was asked in Question No. 8 on the application whether or not she had ever had any disease of the heart, kidneys, stomach, intestines, urinary or gall bladder, rectum or respiratory system. Appellee’s answer was “yes No. 9”. Question No. 9 was: “Have you received medical or surgical advice or treatment within last five years?”. The answer was “No”. Then follows:

“Date 1949
Which Member? App.
Nature of Disease or Accident Left Kidney removed No complications
Doctor Dr. Palmer Phoenix, Ariz.”

There was introduced into evidence two letters from Dr. Carl L. Wilson, Urologist, with the Holt-Krock Clinic in Fort Smith, Arkansas. These letters disclose that appellee was first seen by Dr. Wilson on October 5, 1954. At that time she gave the history of having had her left kidney removed in Phoenix, Arizona but from that time to November 14, 1956 there was no finding of serious pathology. In October 1957 she was hospitalized for complete urologic studies. The remaining kidney was in good condition but a diagnosis of granular urethritis was made and she was treated for this condition from November 1, 1957 to December 29, 1958. During 1959 she received treatment to the urethra from February 2, 1959 to November 23, 1959. In 1960 she had urethral treatment from January 13, 1960 to September 19, 1960. She received two treatments in 1962. She received treatments from October 30, 1964 to July 23, 1965.

It is true that appellee did not give all of this information to appellant. But she did provide appellant with the information that she had urinary problems [answer to Question No. 8] and that she had a kidney removed in Phoenix, Arizona in 1949, giving the name of her doctor. Dr. Wilson lives in Port Smith and Dr. Thicksten in Alma. This information furnished by appellee put appellant on notice as to urinary problems and removal of her left kidney. The chancellor found that she had made a full disclosure of any and all information pertaining to her health and physical condition and we cannot say that this finding was against the .preponderance of the evidence.

A similar situation was presented to this court in a recent decision, Old American Life Ins. Co. v. McKenzie, 240 Ark. 984, 403 S. W. 2d 94 (1966) wherein this court held:

“It is true that appellee did not give a full and complete medical history to appellant in his applications. It is also true, however, that appellee did provide appellant with informtaion concerning* a disc operation upon his back in 1962, involving extended disability. Furthermore, appellee set forth the true name of the surgeon who had attended him at the time of said operation upon his back (Dr. Richard M. Logue). Moreover, Dr. Logue is a Little Rock surgeon with offices in close proximity to the offices of appellant and could have been reached by telephone or by call of a personal representative of the appellant at little or no inconvenience. Obviously the attending surgeon and not the patient (appellee) would be the best qualified to provide to appellant the accurate medical history of the case. Pew operations on the spine are more severe in character than the removal of an intervertebral disc. When appellee reported this operation he pnt appellant upon notice as to a serious back operation; and when appellee provided appellant with the name of his surgeon to whom appellant could turn for exact and precise information if so desired, he substantially met all burdens imposed upon him in his relations with appellant under his contracts of insurance and should not he denied the benefits as provided in appellant’s policies.”

See, also, Missouri State Life Ins. Co. v. Witt, 161 Ark. 148, 256 S. W. 46 (1923).

We find no merit in appellant’s contention number two as the provision in the policy of noncancellability is plain and certain and subject to hut one construction.

As to Point No. 3, it is contended by appellant that the chancellor erred as a matter of law in holding that said disclosure to the agent was disclosure to the appellant. We have searched the record and find no such holding by the chancellor. Whether the agent securing this application was a soliciting agent or a general agent was not developed in the testimony. The question is presented here for the first time. A question not raised in the trial court will not he considered on appeal. Stroud v. Crow, 209 Ark. 820, 192 S. W. 2d 548 (1946); Kuester v. Kuester, 237 Ark. 298, 372 S. W. 2d 606 (1963), and many other cases found in West’s Arkansas Digest under Key Number 169.

Finding no error, the judgment of the chancellor is affirmed.

Appellee’s attorney requests an allowance in this court of additional attorney’s fees. Under the circumstances of this case, we allow appellee’s attorney an additional $100.00 fee.

Affirmed.

MoFaddin, J., not participating.


author: Carleton Harris-, Chief Justice. Osro Cobb, Justice,

text:
    Elledge v. Aetna Life Ins. Co.
    5-3955
    406 S. W. 2d 374
    Opinion delivered October 3, 1966

      Terral, Rawlings, Matthews & Purtle, for appellant.

      W. Mi Lee, for appellee and cross-appellant.

      Owens, McHanej & McHaney, for appellee.
   Carleton Harris-, Chief Justice.

Aetna Life Insurance Company, on August 1,1929, issued Policy P648527, in the amount of $5,000.00, and on October 21, 1934, issued Policy P722610, in the amount of $6,000.00, upon -the life of William Gustavus Elledge, Helen N. Elledge, wife, being named as beneficiary. Some time in 1956 Mr. Elledge became disabled; under terms of the policy, premiums were waived, and these policies were in full force and effect on July 12, 1964, when Mr. Elledge died.

Pertinent facts in this litigation are as follows:

On May 30,1959, Mr. and Mrs. Elledge entered into a property settlement agreement in contemplation of divorce, in which these two policies, along with other policies, not here at issue, are referred to as follows:

“It is mutually agreed and understood that as to the insurance policies described in item No. 6 above, each of same is on the life of Husband and have as beneficiary Wife. It is further agreed and understood that Husband will not change the beneficiary on any of said policies and will not borrow on same nor surrender same for cash value, they being hereby considered and designated as the property of Wife.”

The parties were subsequently divorced in Monroe County, Arkansas, the decree incorporating the property settlement agreement, and reciting

“ * * * that the property settlement agreement hereinabove set out be, and hereby is, approved and ratified in all respects and is hereby declared by the court to be finally conclusive of any and all property rights between the parties hereto.”

Thereafter, in March, 1961, Elledge, who had previously obtained loans from the company on these two policies, made a request that Aetna grant to him the maximum loan on each policy. The company complied with this request, and increased the loan on P722610 by $2,258.91, and also increased the loan on P648527 by $2,048.27.

. ' On December 12, 1961, and January 8, 1962, Elledge directed letters to the insurance company, advising that he desired to change the beneficiary of these policies, and the company sent him Chance of Beneficiary forms. He also advised that his wife had the policies. Elledge completed the forms, naming Ruby E. Patton, one of the appellees herein, as the new beneficiary. Aetna declined to make the change until the policies were surrendered for endorsement. This was never done, and the endorsements, changing beneficiaries, were never made.

On December 18,1963, Mrs. Elledge wi’ote to Aetna, advising that the policies, here in litigation, had been assigned to her as of July 9, 1959, and Aetna promptly informed appellant that it was necessary that a certified ■copy of the property settlement be sent to it, if the company was to be governed by the terms of the agreement. On February 10, 1964, Mrs. Elledge mailed a certified copy of the settlement to the insurance company, and receipt was subsequently acknowledged.

On July 6, 1964, appellant instituted suit against Mr. Elledge in the Monroe County Chancery Court, alleging that Elledge had violated the property agreement, inter alia by borrowing upon the policies, and by attempting to change the beneficiary. Mrs. Elledge asked that Mr. Elledge be held in contempt of court, because ■of his acts, and further, that all property owned by plaintiff and defendant be sold, and she be awarded $24,-'000.00 out of his portion of the proceeds from the sale to compensate her for her loss due to the acts complained of. -Six days after this suit was filed, Mr. Elledge ■died, and on August 19, appellant instituted an action against appellee, Atena Insurance Company, seeking recovery for the face amount of the policies herein (except for the first loans obtained by Elledge during the time •of the marriage), together with penalty, interest, and a reasonable attorneys’ fee. Aetna answered, setting out that Ruby Patton was claiming to be beneficiary under the policies, and the company. offered to pay into the registry of the court the difference between the face value of said policies and the amount of money due the company, because of the loans made to Elledge. It asked that Mrs. Patton be made a cross-defendant. Mrs. Patton then pleaded that Elledge had changed the beneficiary, and she prayed that the proceeds of both policies, less the amount of indebtedness to Aetna, on account of the loans, be paid to her; she also asserted that the purported property settlement between Elledge and appellant was not binding on either Aetna or herself, and the contract was ineffectual as an assignment of deceased’s rights. On trial, the court found that Mrs. Elledge was entitled to the proceeds of Policy P722610, less the amount of indebtedness due Aetna on the two loans made by her ex-husband, and further found that Mrs. Patton was due the proceeds from Policy P648527, likewise less the amount of indebtedness due Aetna because of the loans. Prom the judgment so entered, Mrs. Elledge appeals from that portion finding that Mrs. Patton was due the proceeds under Policy P648527, and also appeals from that portion of the judgment allowing her only $2,835.57 under Policy P722610, instead of the face value of the policy (less the first loan). Mrs. Patton cross-appeals from that portion of the judgment finding that Mrs. Elledge was due the proceeds (after deductions to Aetna) from Policy P722610.

We will first dispose of appellant’s contention that Aetna, in tendering the amount due under the policies, was not entitled to deduct the amounts of the second loans made to Mr. Elledge. This contention, of course, is based upon the argument of Mrs. Elledge that the policies had been assigned to her; that Elledge therefore had no right to borrow on these policies, and it is contended that the company made these loans at its own risk, since they were made without the policies being sent in to the company office.

In the “Policy Loan Agreement” executed by Mr. Elledge when applying for the second loans on the policies, the statement appears, “I hereby certify that I am not involved in any insolvency or bankruptcy proceedings. I further certify that this policy is not now assigned or transferred to any person or party except as followsA blank space is then provided. On these particular applications, no words are set out in the blank space. Mrs. Elledge contends that this omission should have raised the suspicion of the company to the extent that it should have made inquiry (as to whether any assignment had been made) before granting the loans.

It is difficult to see how the word, “none,” would have added anything to the applications. The blank was only required to be completed m case an assigmnent or transfer hacl been made (by setting out the assignment or transfer), and it might well be considered that the failure to answer at all had the same effect as to write in the Avord, “none.” It must be remembered that the validity of this argument depends on whether the company owed a duty to Mrs. Elledge. This will be subsequently discussed. It is also argued that the company should have required the policies to be sent in before making the loan. Since this could not have been done, such a requirement, says appellant, would have disclosed the fact (later disclosed when Elledge sought to change beneficiaries) that he did not have the policies, because they had been assigned. However, as earlier mentioned, Elledge had, during his marriage, borrowed on both policies, and as the policies had been endorsed at that time to show a loan indebtedness, there was no need to again require the endorsement. An endorsement, showing that a loan has been made, is solely for the company’s benefit, and its purpose is to make sure that the face amount of the policy will not be paid to a claimant who owes an indebtedness to the insurance company. The first endorsement Avas sufficient to call that fact to Aetna’s attention, and enable it to determine the total amount of the loans before settling the policy.

The principal reason why appellant’s argument must fail is that she did not comply with Section 15 of the policies until long after the loans were made. That section provides as follows:

“No assignment of this policy shall be binding upon the Company unless and until the original or a duplicate thereof is filed at its Home Office. The Company does not assume any responsibility for the validity of an assignment. ’ ’

Of course, there was no way for Aetna to know of the assignment unless it was notified, and the burden of notification was very clearly placed on appellant. Apparently, she eventually discovered this requirement, for she notified the company of the assignment on December 18, 1963, and sent a certified copy of the property settlement on February 10, 1964, but this was nearly two and one-half years after the loans had been made. In Patten v. Mutual Benefit Life Insurance Company, 6 S. E. 2d 26 (South Carolina), a similar situation arose. There, one William C. Brown, on December 10, 1910, assigned an insurance policy to J. H. Patten, and at the same time delivered possession of the policy to Patten. Notice of the assignment was first given to the company on May 19, 1925, and the loans advanced to the insured were all granted before that date. The court stated the question as follows:

“* * * Could the insurer under the terms of the policy make a valid loan to the insured on the security of the policy, after an assignment of the policy without-notice to the insurer and without ‘receipt of the policy,’ which loan would be binding on the assignee?”

In deciding this issue, the Supreme Court said:

“It is conceded that notice of the assignment was not given to the company until May, 1925. All of the loans made by the company were prior to this date. The validity of the loans is attacked upon the sole ground that the company did not require a production of the original policy at the time of making any of the loans, except the first. It therefore follows that if the loans were sanctioned by the contract provisions, construed in the light of the general law, the plaintiff is not entitled to recover. Independent of the provisions of the policy, the law of this State, as elsewhere, seems to be clear that the debtor has the right to deal with the creditor until he has actual notice of an assignment, * * *.

“ * * * And although such an assignment is good as between assignor and assignee, it has been held that it is necessary to give notice to the company in order to constitute an assignment valid as against a subsequent assignee, and free from acts of an assignor as to surrender of the policy to the office. And the policy itself may provide that notice must be given to the company and in such a case the provision should be complied with to render the assignment as a valid one.

“Thus under the general principles of law the company had the unquestionable right to make loans on the policy and to treat with the insured as the sole owner thereof until it received notice of the assignment.”

We are of the opinion that appellant’s argument in this respect is without merit.

We think the court erred in awarding the proceeds from Policy P648527 to Mrs. Patton, for there had been no change of beneficiary, and Mrs. Patton held no proper claim to the amounts due under this policy. Elledge attempted to change the beneficiary, but in this effort, was unsuccessful, for the company refused to comply with the request until the policies were sent in. Elledge was aware of the fact that the beneficiary had not been changed. However, this circumstance is not controlling. The controlling fact is that Elledge, at the time of making the request, held no interest in the policies, for they had been assigned to Mrs. Elledge just prior to the divorce decree. The Patton brief states:

“Here the decree of divorce merely approved the property settlement entered into between tbe Elledges-— it did not decree the ownership of the policies changed nor did it divest the ownership from William Gustavus Elledge and vest it in Mrs. Helen N. Elledge.”

This is to put form before substance. It is true that the agreement does not set out verbatim that Elledge is divested of any interest in the policies, but it is very evident that that is the intent of the language, the final clause, with reference to these policies, heretofore quoted, providing, “they being hereby considered and designated as the property of wife.” The Chancery Court also found, in approving and ratifying this agreement that it was “finally conclusive of all property rights.” Not only that, but the policies were delivered to Mrs. Elledge, which act was certainly in furtherance of the agreement. Thereafter, Elledge never again had his hands on the policies, and his letters to Aetna clearly show that he recognized that he could not obtain them. In Reilly v. Henry, 187 Ark. 420, 60 S. W. 2d 1023, this court, in quoting a California case, in which a similar instance was at issue, said:

“ * * * The court disagreed with both contentions, and as to the last, while holding that when the policy was first taken out the beneficiary named had no vested or equitable rights therein which the insured could not have ended at will by change of beneficiary, yet when he agreed for a consideration to keep the policy in being for the beneficiary as long as she remained single, and ‘when this offer was accepted by her, the quality of her interest as a beneficiary in said policies became changed from that of mere expectancy to a more fixed and permanent relation. She had thenceforth an equitable interest in said policies of which she could not be divested by the mere act of the insured in changing the name of the beneficiary.’ ”

We have reached the conclusion that Mrs. Patton had no beneficial interest in either policy, and this holding, of course, also disposes of her cross-appeal.

Appellee Mrs. Patton contends that Mrs. Elledge, by filing a petition in the Chancery Conrt on July 6, 1964, seeking to recover from Elledge the amounts lost by his violation of the property agreement, exercised an election of remedies. Appellee cannot prevail on this point for two reasons. For one, the complaint filed in the Chancery Court has not been abstracted, and we have said many times that it is not feasible for the justices of this court to be compelled to examine the transcript in order to acquaint themselves with pleadings, exhibits, or testimony. Vire v. Vire, 236 Ark. 740, 368 S. W. 2d 265. It is true that the appellant is due to abstract the record, but this particular exhibit was relied upon by appellee, and she was privileged, under our rules, to supply the deficiency, and ask that the cost of the additional abstracting be placed on appellant. In fact, one additional item is abstracted. Merely mentioning the exhibit in the statement of the case is insufficient to constitute compliance. Be that as it may, the argument is without merit. In 28 C. J.S., Section 1, Page 1057, “Election of Remedies,” we find:

“Election of remedies has been defined to be the right to choose, or the act of choosing between different actions or remedies, where plaintiff has suffered one species of wrong from the act complained of. Broadly speaking, an election of remedies is the choice by a party to an action of one or two or more coexisting remedial rights, where several such rights arise out of the same facts; but the term has been generally limited to a choice by a party between inconsistent remedial rights, the assertion of one being necessarily repugnant to, or a repudiation of, the other. Thus, in its technical and more restricted sense, election of remedies is the adoption of one of two or more coexisting remedies, with the effect of precluding a resort to the others.

“ * * * It has been said that the doctrine is a harsh rule which is not to be extended, and that it is to be applied by the courts with a wide discretion in order that it may not be made an instrument of oppression. Each case involving a question of election of remedies must be governed by its facts.”

Our own cases of Eastburn v. Galyen, 229 Ark. 70, 313 S. W. 2d 794, and Bigger v. Glass, 226 Ark. 466, 290 S. W. 2d 641, point out that one of the essential conditions relating to election of remedies is that two or more remedies exist. That necessary element is not present in the instant litigation, for Mrs. Elledge had no cause of action against Aetna, i. e., she was not due to receive proceeds of the policies, as contemplated in the argument, until after Mr. Elledge’s death; in other words, at the time the suit was filed, Mrs. Elledge did not have the remedy she is now pursuing. It might be added that, as pointed out in C.J.S., the doctrine, here under discussion, should not be extended, and to apply such a doctrine here, under the circumstances heretofore set out, would indeed be harsh.

In accordance with what has been said, that portion of the judgment finding for appellee, Aetna Life Insurance Company, is, in all things, affirmed; that portion of the judgment finding that Mrs. Elledge is entitled to the proceeds of Policy P722610 is affirmed, and that portion of the judgment finding that Mrs. Euby Patton is entitled to the proceeds of Policy P648527 is reversed, with directions to enter judgment in favor of Mrs. Elledge to the proceeds due under this policy. Costs are adjudged two-thirds against Mrs. Patton, and one-third against Mrs. Elledge.

Cobb, J., dissents in part.

Osro Cobb, Justice,

dissenting in part. I fully agree with the decision of the majority awarding all available proceeds of the Aetna Life Insurance policies to appellant, the wife and designated beneficiary in such policies.

I respectfully dissent from that part of the majority opinion which permits Aetna to deduct from its settlement certain loans which had not been registered or endorsed upon subject policies, in accordance with the provisions of Section 7 of the policy contracts.

Section 7 contains the following language:

“A loan agreement satisfactory to the company shall be executed and sent with the policy to the Company at its Home Office. The Company will return the policy after proper endorsement.” (Emphasis supplied)

I take the view that when Aetna, in the face of the quoted provisions of Section 7, supra, made loans without requiring the surrender of the policies and proper endorsement thereon as to the loans, it breached the clearly stated provisions of its own policy contract and waived its right to assert such loans as a deductible indebtedness against the policies. This is not to say that Aetna also waived its right to proceed against the estate of the deceased insured as a general creditor. See Subd. 2 of % 335 of Act 148 of 1959.

The proceeds of the policy due the designated beneficiary could not be reached by creditors, same being exempted by statute. See § 66-3328, Arh. Stat. Aim. (.Repl. 1966).

Our decisions must necessarily apply equally to all insurance companies, great ethical companies like Aetna and also the nefarious companies who employ sharp practices to defeat legitimate policy claims. The provisions of Section 7 of the Aetna policies, when complied with, benefit all concerned and deviation therefrom may result in much injustice, as in this case.

Appellant knew from looking at the Aetna policies that same were encumbered by old .loans, the particular endorsement used by Aetna giving no date and no amount. Presumably, husbands and their wives work together in paying insurance premiums upon their separate or joint policies and appellant apparently ■ knew the principal amount of the prior loans against the policies. What she did not know was that additional loans were made while she was in complete possession of the policies. Herein lies the evil of the situation.

Under the rule announced in the majority opinion, widows may no longer rely upon what the policy reflects upon its face. Indeed, when asserting her claim for the sum the policy purports to represent as due her, she may be astonished to be advised by the insurance company, whether honestly or fraudulently, that the funds have been absorbed by unendorsed loans to the insured. With the husband dead and unavailable to give testimony to refute false claims of such loans, the stunned beneficiary may become an easy victim. Moreover, an insured, with an eye for a dishonest dollar, could exhibit his policy free of loan endorsements and dupe innocent persons into relying upon his having a substantial cash equity therein, when in fact the equity had been depleted by unendorsed loans.

The G-eneral Assembly might well consider amending Section 335 of Act 148 of 1959 so as to specifically limit policy loan deductions in settlement of policy obligations to those loans which have been duly and properly endorsed upon the policy itself, such endorsements setting forth the date and amount of such loans. This would obviate misunderstandings and possible fraudulent evasions in payment of just claims. It would keep all of the pertinent facts out in the open for the information and guidance of all concerned. It certainly would work no hardship upon the insurance companies.

For the reasons stated, I respectfully dissent.

       Elledge had borrowed $498.88 on Policy P722610, and $435.59 on Policy P648527.

      The property settlement included quite a bit of property not involved in this lawsuit.

       Emphasis supplied.

       Of course, when appellant learned of her ex-husband’s violation of the property agreement (by borrowing on the policies), it was too late to seek to prohibit the granting of the loans — because they had already been made.


author: Ed. P. MoPaddin, Justice.

text:
    Wood v. Burris
    5-3936
    406 S. W. 2d 381
    Opinion delivered October 3, 1966

      Wright, Lindsey & Jennings, for appellant.

      Williams & Gardner, for appellee.
   Ed. P. MoPaddin, Justice.

The only issue which the appellants urge relates to the ruling of the Trial Court in admitting into evidence a statement of account. The appellants state their point: “The lower Court committed prejudicial error in admitting in evidence the statement of Dr. A. C. Linton.”

Appellees, Mr. and Mrs. Burris, are an elderly couple. In January 1964 the car in which they were riding was struck by a gravel truck owned by the appellant, Dewey Prances, and being driven by his employee, the appellant, Harvey Lee Wood. Mrs. Burris received serious and painful injuries; this action for damages resulted; and the jury verdict and judgment were for Mrs. Burris for a substantial amount. Dr. Roy Millard testified in detail as to Mrs. Burris’ injuries and the treatment she had received from him. Without objection, the appellees introduced: (a) one hospital bill of $674.90; (b) another hospital bill for $133.35; (c) another hospital bill for $297.06; (d) bill paid Walker’s Drug Store of $13.96; (e) bill paid Hector Drug Store of $75.00; (f) rent on a hospital bed of $40.00; and (g) an ambulance bill of $31.80. Then the appellees offered in evidence the hill of Dr. A. C. Linton for $120.00; and the only question on this appeal concerns the ruling of the Court in admitting Dr. Linton’s hill into evidence. The hill was worded as follows:

“6/10/65 To Whom This May Concern: A true estimate of the visits to see Mrs. John Burris, the lady who was injured in a car wreck: 10 visits, $10.00 each; 10 office calls, $2.00 each. A. C. Linton, M. D.”

When Dr. Linton’s bill was first offered in evidence, appellants objected on the basis that there was nothing to show that Dr. Linton’s visits and office calls were because of the traffic mishap in which Mrs. Burris was injured; but this objection was answered by the testimony of Mr. Burris, who stated that all of the dealings with Dr. Linton were incurred because of the traffic mishap. The appellants also urged that Dr. Linton’s bill was a hearsay statement and could not be introduced in evidence without Dr. Linton being called to testify as a witness.

We find no merit in appellants’ contention. Mr. Burris testified that Dr. Linton made ten house calls at $10.00 each; and that on ten other occasions Mr. Burris went to Dr. Linton’s office to get prescriptions for Mrs. Burris to relieve her intense pain. Dr. Linton’s bill did not constitute hearsay evidence. There was no effort to show by Dr. Linton’s bill for $120.00 the nature and extent of Mrs. Burris ’ injuries. That testimony had been furnished by Dr. Roy Millard. The only purpose of introducing Dr. Linton’s bill was to show one of the items of expense incurred because of the injuries Mrs. Burris sustained in the traffic mishap; and the bill of Dr. Linton was just as admissible, supported by the testimony of Mr. Burris, as were the hospital bills and the ambulance bills and the others previously mentioned. Certainly the bill was admissible to show an expenditure by Mr. Burris. If the appellants had wanted the bill limited to that purpose, they should have requested such limitation. In Amos v. State, 209 Ark. 55, 189 S. W. 2d 611, we said:

“If the evidence is admissible for any purpose, then the objecting party must ask the court to limit the evidence to the one admissible purpose, or the objection is wholly unavailing. See Bodcaw Lbr. Co. v. Ford, 82 Ark. 555, 102 S. W. 896; and cases collected in West’s Ark. Digest, ‘Trial,’ §§ 85, 86.”

Finding no error, the judgment is affirmed.

       Appellants call particular attention to the annotation in 10 A.L.R. 2d 1035, entitled, “Written recitals or statements as within rule excluding hearsay.”