text:
    Carter v. Reamey.
    5-1970
    335 S. W. 2d 298
    Opinion delivered May 16, 1960.

      Ike Murry and W. P. Switzer, for appellant.

      Arnold & Hamilton; A. James Linder, for appellee.
   Ed. F. McFaddin, Associate Justice.

This is a mandamus action brought by appellant, Carter, against appellees, Beamey et al. Prom a judgment of the Circuit Court denying the prayed relief, there is this appeal, which necessitates a decision as to the validity of Act No. 359 of the General Assembly of 1957, captioned:

“An Act Granting and Empowering Counties and Municipalities to Hold Certain Types of Elections Under Amendment Number Seven to the Constitution of the State of Arkansas and the Enabling Acts Pertaining Thereto; and for Other Purposes.”

Ashley County is a “dry” County — the sale of intoxicating liquor therein having been prohibited several years ago. In 1958 West Crossett was an incorporated Town in Ashley County; and appellant, Carter, as a citizen and taxpayer of West Crossett, sought to have an election held in the Town under the provisions of said Act No. 359 of 1957. A petition was filed, praying for said election on the issue: “An Act to Legalize the Sale of Beer for Off-premise Consumption Only Within the Corporate Limits of West Crossett, Arkansas”. At first, the County Board of Election Commissioners (appellees here) voted to put the issue on the ballot at the General Election in November, 1958; later, two of the three Commissioners attempted to rescind the action; but the third Commissioner claimed the rescinding action was illegal and had a typewritten sticker prepared and used at the General Election in November, 1958. After the said election, the County Board of Election Commissioners, by a majority vote, refused to recognize the validity of the election or the typewritten ballot, and also refused to certify the result of the election regarding the liquor issue. Thereupon, appellant, as a citizen and taxpayer in West Crossett, filed this mandamus action, and the Circuit Court denied the prayed relief after an extended hearing. This appeal resulted.

The election on the beer issue in West Crossett- was attempted under the provisions of said Act No. 359, so the first essential of the appellant is to sustain the validity of the said Act. It would be an idle thing to mandamus the Election Commissioners to certify the vote on the beer issue in West Crossett if the Act No. 359 be invalid: there conld have been no valid election under the Act unless the Act itself be valid. Our research discloses that the said Act No. 359 is invalid, because it did not receive enough votes to amend or repeal any part of the Initiated Act No. 1 of 1942, which was the controlling Act regarding elections for the sale of intoxicating liquor.

Initiated Act No. 1 of 1942 (hereinafter called “Initiated Act No. 1”) was adopted by the People of Arkansas at the General Election of 1942. It may be found at Pages 998 et seq. of the printed Acts of 1943, and may also be found in § 48-801 et seq. Ark. Stats. The Initiated Act is captioned:

“An Act to Amend The Liquor Laws of the State of Arkansas So As To Provide for Better Local Option Laws, for Prohibiting the Manufacture or Sale, or the Bartering, Loaning or Giving Away of Intoxicating Liquors, for Defining Intoxicating Liquors, for Fixing Penalties for the Violation of the Law in Territory Made Dry Under the Provisions of This Act, and for Other Purposes”.

The Initiated Act applies to all types of intoxicating liquor: the last sentence of Section 2 being: “Intoxicating liquor is hereby defined to include any beverage containing more than one-half of one percent of alcohol by weight.” The Arkansas Legislature had previously defined beer: “The term ‘beer’ means any fermented liquor made from malt or any substitute therefor and having an alcoholic content of not in excess of 3.2 percent by weight ”. (Section 1 of Act No. 7 of the Extraordinary Session of the Legislature of 1933, as now found in § 48-503 Ark. Stats.) In the case of Denniston v. Riddle, 210 Ark. 1039, 199 S. W. 2d 308, which was followed in Tabor v. O’Dell, 212 Ark. 902, 208 S. W. 2d 430, it was held that after a county as a whole votes dry no subdivision within the county may thereafter hold a separate wet-dry election. Our holding was based upon the fact that the Thorn Liquor Law was a borrowed Kentucky statute which had already been so construed in Kentucky when it was adopted by our legislature. In the Denniston case we quoted from a Kentucky decision that adopted the following rule: “When a statute provides that after the lapse of a Specified time the question of revoking an order declaring prohibition to. be in force by virtue of a prior adoption may be submitted, the resubmission must be to the voters of the entire territory embraced in the former election.”

We pointed out in the Denniston opinion that nothing in Initiated Act No. 1 had repealed the pertinent parts of the Thorn Liquor Law, but it was not then necessary to say whether those sections of the Thorn Law had been substantially re-enacted by the Initiated Act. That is the question now posed. We aré of the opinion that there was such a re-enactment. The sentence that we have quoted above from the Kentucky court’s decision is applicable not only to the Thorn Law but also to this provision in the Initiated Act: “If a majority of said electors voting at said election vote ‘AGAINST the Manufacture or sale of Intoxicating Liquors’,, then it shall be unlawful for the Commissioner of Revenues of the State or Arkansas, or any County or Municipal official to issue any license, or permit, for the manufacture, sale, barter, loan, or giving away of any intoxicating liquor as. defined in this act, for at least two years, and thereafter, unless' the prohibition shall be repealed by a majority vote as provided for in Section 1 of this Act.” Ark. Stats. 1947, § 48-802. It is therefore our conclusion that the Initiated Act in substance re-enacts that portion of the Thorn Law which was construed in the Denniston case as preventing any subdivision of a dry county from having a separate vote upon the liquor question.

It is the claim of the appellant in this case that the Act No. 359 of 1957 allows the municipality of West Crossett to have a separate election for the sale of beer in West Crossett, even though Ashley County is “dry”. It is clear, in the light of our decisions, that if said Act No. 359 could accomplish any such purpose, then it would be an amendment of-the Initiated Act No. 1, as heretofore mentioned. Section 8 of Amendment No. 7 of the Arkansas Constitution says:

“No measure approved by a vote of the people shall be amended or repealed by the General Assembly or by any City Council, except upon a yea and nay vote on roll call of two-thirds of all the numbers elected to each house of the General Assembly, or of the City Council, as the case may be. ’ ’

The records of the General Assembly, of which we take judicial notice, disclose that the Act No. 359 of 1957 was IT. B. No. 459, and that the measure passed the House of Representatives by a vote of 52 to 30, and passed the Senate by a vote of 18 to 11. To validly amend the Initiated Act No. 1, the Legislative Act No. 359 would have been required to receive 67 votes in the House and 24 votes in the Senate — being two-thirds of all elected members of each House: Section 8 of Constitutional Amendment No. 7 so prescribes. The Act No. 359 did not receive the required number of votes to amend Initiated Act No. 1 of 1942 so as to allow a municipality in a “dry” County to have a separate vote on the sale of beer in such municipality.

We, therefore, conclude that the Act No. 359 of 1957 was ineffectual to accomplish the election here sought by the appellant, and that it would be an idle thing for the Election Commissioners to be required to certify the result of the election when such result could have no possible effect looking toward the sale of beer in West Crossett.

Affirmed.

Harris, C. J., concurs.

Robinson, J., dissents.

       The records in the 'Office of the Secretary of State show that West Crossett became an incorporated Town on June 18, 1937; but a Certificate of Revocation was filed in the office of the Secretary of State on February 11,1959, which was after the Circuit Court proceedings in this case and is mentioned only for information.

       The record of this case in this Court deserves explanation. The appeal was submitted on November 16, 1959; the Court then asked for additional briefs; and counsel for both sides graciously complied with such request. Then the Court invited all counsel to appear for further discussion; and that invitation was likewise accepted.

        Fulkerson v. Refunding Board, 201 Ark. 957, 147 S. W. 2d 980; Connor v. Ricks, 212 Ark. 838, 208 S. W. 2d 10; and other cases collected in West’s Arkansas Digest “Evidence” § 33.


source: Caselaw Access Project

author: Ed. F. McFaddin, Associate Justice.

license: Public Domain

text:
    Aluminum Co. of America v. Williams.
    5-2099
    335 S. W. 2d 315
    Opinion delivered May 16, 1960.
    [Rehearing denied June 6, 1960]

      Bose, MeeJc, House, Barron <& Nash by Phillip Carroll, for appellant.

      McMath, Leatherman, Woods and Youngdahl, for appellee.
   Ed. F. McFaddin, Associate Justice.

Tbe appellee, Williams, was employed by appellant, Aluminum Company of America; and we will identify the parties as Williams and Alcoa. This appeal requires a decision on two points: (a) whether there is substantial competent evidence to support the finding of the Workmen’s Compensation Commission; and (b) the liability of the employer to compensate an employee for a second injury which arose because of the first injury and without any intervening independent cause.

Chronologically, here are the salient dates:

(a) On April 24, 1957 Thurman S. Williams received a low back injury while employed by Alcoa at its refining plant in Bauxite.

(b) On May 4,1957 a myelogram was done on Williams, which revealed “a herniated nucleus pulposus at the 4th interspace on the right”. Dr. Murphy performed surgery for the alleviation of this condition on May 7, 1957. This was the first operation; and as so identified will be mentioned later.

(e) On June 20, 1957 Williams returned for light work; and Alcoa, after first resisting Williams’ claim, finally, under orders of the Circuit Court, paid the expenses of the operation and compensation of 10% permanent partial disability as a whole. A lump sum settlement was made.

(d) On October 4, 1957 Williams again complained of his back and received some treatment, but later returned to work on November 18, 1957.

(e) On January 18, 1958 Williams was laid off from work by Alcoa because of reduction in the number of employees; and Williams drew unemployment benefits for some time.

(f) On November 2, 1958 Williams commenced working as a carpenter for his brother, John Williams, at Dermott, Arkansas, and was engaged in the repair of a filling station and diner which had been damaged by fire. As a part of his duties he nailed light boards (like plywood) on the walls and ceiling of the rooms. He worked at this for several weeks; and several times in November and December 1958 complained of his back hurting him.

(g) Williams testified that on the night of December 19, 1958, while he was off work and seated in a chair, he tried to arise from the chair and got a “catch” in his back which caused him to give up his work.

(h) On December 20, 1958 Williams signed up for supplemental unemployment benefits at the Alcoa plant.

(i) On January 2, 1959 Williams went to Dr. Murphy, who had performed the first operation and removed the disk material as previously mentioned in Item (b) supra; and Williams told Dr. Murphy of persistent back pains. Dr. Murphy had Williams hospitalized; and on January 6,1959 Dr. Murphy performed the second operation, which was a removal of additional disk material at the fourth lumbar interspace and also a spinal fusion of the fourth and fifth lumbar vertebrae.

(j) On February 3, 1959 Alcoa learned of the second operation and Williams’ claim for additional compensation, and promptly resisted,- claiming, inter alia, that the first injury, operation, and award ended all of Alcoa’s responsibility; that the Dermott work was an independent intervening cause for the second operation; and that Alcoa was not liable for the second operation or any additional Workmen’s Compensation benefits.

So much for the chronological detail. The Referee and the Full Commission agreed with Alcoa and denied Williams’ 1959 claim. The Circuit Court reversed the Commission and directed that the compensation he allowed Williams; and Alcoa prosecutes this appeal, claiming that there is substantial evidence to support the finding of the Referee and the Full Commission, which was. that the second operation (that of January 6, 1959) was not necessitated by reason of the old injury of 1957 and the first operation, hut rather was because of an intervening and independent cause which was an injury received while Williams was working for his brother, John Williams, as a carpenter in Dermott.

We recognize the rule to he, that viewing the evidence in its strongest light to sustain the Commission’s findings, if there he sufficient evidence to support such factual findings, then the Circuit Court was in error in reversing the Commission. J. L. Williams & Sons v. Smith, 205 Ark. 604, 170 S. W. 2d 82; Sturgis Bros. v. Mays, 208 Ark. 1017, 188 S. W. 2d 629; and other cases cited in West’s Arkansas Digest “Workmen’s Compensation” § 1939. But a careful study of the record fails to reveal any evidence that Williams suffered any trauma or injury while working in Dermott in 1958 sufficient to constitute an independent intervening cause for the 1959 operation. Only four witnesses testified. They were Williams, Dr. Murphy, Doyle Green and Lowell White. Williams testified, as abstracted by appellant:

“I worked for my brother for a period of about five ■or six weeks down at Dermott, Arkansas. I done mostly painting. I did not do anything that would hurt my back. That’s why I worked with my brother, because he knew I had trouble with my back, and I didn’t do no heavy work. I sure didn’t injure my back in any way while working for my brother. I got up out of a chair when I first noticed it, started to get up out of the chair and that’s what started it off. The pain hit my back and it kept getting worse. It’s been leaving, you know, in two or three days the pain would leave but it didn’t leave that time. So that’s when I went on to see Dr. Murphy later and he taken a myelogram. I was in a tourist cabin in Dermott when I got up out of the chair . . .
“The incident that occurred when I arose from a chair was about two days before the job was finished. Prior to that time I had not been having any trouble
“. . . I was sitting in the chair and when I started to get up that’s when it caught me. ’’

Doyle Green was called by Alcoa. He was the owner of the filling station and diner at Dermott that was being repaired. He had contracted with John Williams to do the repair work, and John Williams had employed appellee, Thurman S. Williams, to help him. Doyle Green testified that the carpentry work done by Williams was very light work, such as taking down old paneling and putting up new; and taking down the old ceiling squares (16-inch plywood) and putting up new. Green testified (as abstracted by appellant):

“As far as I know Thurman didn’t hurt himself or injure himself on the job down there. He didn’t quit work because of having hurt his back . . .
“When he made mention about his back hurting him, I gathered that was just a general condition of his back from a previous injury . . .
“I am just sure he didn’t hurt himself while he was here. It was more of a recurrence from a previous ailment of some kind he had.”

It will be seen that Doyle Green’s testimony shows that no trauma or new injury occurred to Williams while he was working in December 1958. Alcoa called Lowell White, who was safety supervisor of Alcoa. He testified as to Williams’ complaints in October 1957, and that thereafter Williams refused to “co-operate”. None of White’s testimony indicated any trauma suffered by Williams or any undue exercise by him except the October 1957 incident.

We come then to the testimony of Dr. Horace R. Murphy, who was the doctor that performed both the operations on Williams; and we are tremendously impressed by Dr. Murphy’s absolute candor and frankness. His testimony shows that the second operation was necessitated because of the first operation, and not because of any new trauma or injury. Dr. Murphy testified that when he performed the first operation he removed all of the nucleus pulposus that could be removed with safety from the fourth and fifth interspace, and that he hoped that a fusion operation would not be subsequently required; that, as a usual thing, if all of the nucleus pulposus material was not removed, then within eighteen months or two years the patient frequently had to have another operation and fusion. Dr. Murphy testified that when Williams came back to him on January 2, 1959 and told him of continuous pains, the doctor knew that a fusion was indicated and that the second operation was the direct result of the first operation and not of any trauma or intervening independent cause between the two operations.

Having reviewed the entire record, we conclude that the Commission was in error in finding, as it did, that the second operation was necessitated by an intervening independent cause. All the evidence shows that the second operation was necessitated by reason of the first operation, and that no intervening independent cause was established.

Having concluded that no independent intervening cause was shown to require Williams’ second operation, we examine now to see if Williams is entitled under the law to recover the expenses of the second operation and compensation for additional disability, if any, resulting therefrom. In 99 C.J.S. p. 607, “Workmen’s Compensation” § 180, the holdings are summarized: “If the employee suffers a compensable injury and thereafter suffers further disability which is the proximate result of the original injury received, such further disability is compensable. Thus, where an employee suffers a compensable injury and thereafter returns to work and as a result thereof his injury is aggravated and accelerated so that he is further disabled than before, he is entitled to compensation for his entire disability”.

In Larson’s two-volume treatise on “Workmen’s Compensation Law”, that writer states the holdings in Vol. 1 § 13.00: “When the primary injury is shown to have arisen out of and in the course of employment, every natural consequence that flows from the injury likewise arises out of the employment, unless it is the result of an independent intervening cause attributable to claimant’s own negligence or misconduct”. In 58 Am. Jur. p. 775, “Workmen’s Compensation” § 278, cases from various jurisdictions are cited to sustain the text: “A subsequent incident, or injury, may be of such a character that its consequences are the natural result of the original injury and may thus warrant the granting of compensation therefor as a part of that injury”.

There is no evidence of any “independent intervening cause” in this case, so Williams’ second operation requiring a spinal fusion was the result of his original injury on April 24, 1957 and his first operation on May 7, 1957. We therefore hold that he is entitled to recover the expenses of the second operation and compensation for additional disability. The parties stipulated in the Circuit Court to these matters; and the Circuit Court judgment showing the stipulation reads as follows:

“It has been stipulated by and between the parties that the claimant’s period of temporary total disability ended August 4,1959, and he reached the maximum healing period from the second operation on this date: it is further stipulated that as a result of the spinal fusion performed in the second operation the claimant, Thurman S. Williams, has suffered an additional 10% disability to his body as a whole, for which he should be paid benefits at the rate of $35 per week for a period of 45 weeks, beginning August 4,1959, said benefits of 45 weeks consisting of the permanent partial disability benefits due the claimant.

In the light of the record and the said stipulation, we conclude that the Circuit Court was correct. The judgment is therefore affirmed, and the cause -remanded to the Circuit Court in order that the cause may be remanded to the Commission to see that the Circuit Court judgment is performed.

Holt, J., dissents.

George Rose Smith, J., not participating.

       Here is a portion of the opinion of the Circuit Court: “The Court sees no point in relating history of the injuries and the evidence, but reaches the following findings of fact and conclusions of law:
      “1. The record upon being viewed in the strongest probative light in favor of the findings of the Referee and the Commission does not, in the opinion of this Court, support the finding of the Referee and the Commission. The Court believes there is a complete absence of testimony upon which to base the findings of the Referee and the Commission in this respect.
      “2. It is noted, that in the Referee’s statement of the case which the Commission affirmed, the Referee makes the following statement of fact: ‘That the injury causing the need of claimant’s second operation resulted from his employment by John Williams.’ The Referee and the Commission went further and related that a second operation performed by Dr. Murphy was a result of this additional accident or trauma, basing their finding upon the doctor’s testifying that the operation was a success.
      “3. After examining the record with great care, the Court finds no evidence to support the statement that the injury occurred while in the employ of John Williams, or any statement by any medical witness that the claimant was cured by the operation. But, to the contrary, the doctor’s testimony was directed wholly to the removal of disc material which should have been removed at the first operation and was not done because of the technical difficulty in removing same.

       We copy a few questions and answers found in Dr. Murphy’s testimony:
      “Q. Well, at least, is it your opinion based on what you actually saw when you went in the second time that his pain was primarily caused by this additional piece of fragment pressing against the nerve root?
      “A. I believe so because it was a very definite finding and of course, the fact that he was relieved as far as his hip pain. I mention hip pain because it was quite significant. It’s one of the components of sciatica. In other words, the nerve root being pressed upon by the disc material can give you a complete radiation down the leg or it can merely give you hip pain and at that time he was having a rather excruciating hip pain. Following the surgery he actually has been relieved as far as leg symptoms are concerned . . .
      “Q. Just one question to more or less sum up. Then it is your testimony that Thurman Williams’ condition when you saw him in January, 1959, as a result of which you did the myelogram and subsequent operation, his condition was a result of the extrusion of some bits or particles of the same interspace that had been operated on in April, 1957, by an extrusion of those materials causing his trouble. Now, of course, in his history and in your examination that was not associated with any other particular strain or trauma that you know about?
      “A. May I answer it in parts?
      “Q. Yes.
      “A. The answer of part 1 of your question, it is true this represents a recurrence and the same interspace, the same disc material which unfortunately could not be gotten in the first. Part two of your question, from my history which is turned in the report, was there was no previous history of trauma and that a month before or thereabouts he stated that he started having trouble.”

       There is an annotation in 7 A.L.R. 1186 entitled: “Workmen’s Compensation: Compensation as affected by external infection from, or subsequent incident of, original injury”; and cases are there collected from various jurisdictions. See also annotation on related matters in 102 A.L.R. 790 and 39 A.L.R. 1276.

       Also in tiie last paragraph of the judgment of the Circuit Court it was adjudged that Alcoa should pay all hospital, doctors, medical, and drug bills incurred by the said Thurman S. Williams, as a result of the recurrence of the injury to his back; and that Alcoa should pay attorney’s fees and costs.


text:
    Sutton v. Nowlin & Sons Company.
    5-2116
    335 S. W. 2d 292
    Opinion delivered May 16, 1960.
    [Rehearing denied June 6, 1960]

      James G. Cole and Joe W. McCoy, for appellant.

      Lookadoo, Gooch and Lookadoo and B. S. Clark and Robert S. Lindsey, for appellees.
   Ed. F. McFaddin, Associate Justice.

This case results from injuries received by appellant, Lewis Sutton, while unloading, in Arkadelphia, a crated piano which had been shipped by motor carrier from Gulbransen Company in Melrose Park, Illinois, to Nowlin Furniture Company in Arkadelphia. Campbell 66 Express, Inc. (hereinafter called “Campbell”) was the motor carrier which picked up the crated piano at point of origin in Illinois, transported it to Little Bock, and transferred it to Superior Forwarding Company (hereinafter called “Superior”), another carrier, for final delivery in Arkadelphia. Appellant, Lewis Sutton, was the truck driver for Superior, and had made delivery of other freight to Nowlin, whose unloading zone was on the sidewalk in front of the store. From the bed of the Superior truck down to the street level was approximately 56 inches. Sutton requested two of Nowlin’s employees (Calloway and Davis) to assist him in unloading the crated piano from the truck to the street; and it was while this unloading was in process that Sutton received the back injuries which led to this litigation.

The mishap occurred in September 1956. In October 1958 Sutton filed suit against Nowlin; and later, joined Campbell as a defendant. Sntton claimed that Nowlin was responsible for his injuries because Sutton alleged that Nowlin was negligent, inter alia, in these respects: that Nowlin had no unloading platform; that Nowlin failed and refused to furnish a lower bodied truck into which the crated piano could be placed from the Superior truck; that Nowlin failed to furnish enough helpers in the unloading; and that the helpers supplied by Nowlin were negligent. Sutton also claimed that Campbell was negligent because the bill of lading under which the crated piano moved showed the weight to be 400 pounds, whereas, in truth and in fact, the crated piano weighed as much as 486 pounds; and that Sutton relied on the weight shown on the bill of lading in trying to unload the piano, and his injuries came about because the weight was greater than stated on the bill of lading.

At the trial Sutton testified that no one directed the unloading, but each person acted on his own initiative. Calloway testified that he and Davis merely acted as an accommodation to Sutton, and that Sutton directed the method of unloading. The evidence showed that the three men undertook the task of unloading; they edged the crated piano to the rear end of the Superior truck; and then began to lower one end of the crated piano to the street. Davis was in the truck, and Calloway and Sutton were on the street level. "While one end of the piano was being thus lowered to the street, Sutton claimed that Calloway let an excessive weight rest on Sutton, so that Sutton’s back gave way and he fell to the street. Calloway denied putting an excessive weight on Sutton, and testified that Calloway and Davis completed unloading the piano without Sutton’s help. The case was tried to a jury, which answered two interrogatories, as follows:

1. “Do you find from a preponderance of the evidence in this case that the defendants, Nowlin & Sons Company, and. Nowlin’s Incorporated, by its servants, agents and employees, were guilty of negligence and that such negligence, if any, was a proximate cause of the accident and injuries complained of, if any? ANSWER: No.”

2. “Do you find from a preponderance of the evidence in this case that the defendant, Campbell 66 Express, Inc., by its servants, agents and employees, was guilty of negligence and that such negligence, if any was a proximate cause of the accident and resulting injuries complained of, if any? ANSWER: No.”

Based on the said interrogatories, the Court rendered judgment against Sutton; and he has prosecuted this appeal, claiming (1) that improper testimony was admitted, and (2) that erroneous instructions were given.

I. Objection Regarding Testimony. Both of the two officers and owners of Nowlin’s Furniture Store testified that Sutton never made any request of either of them for Nowlin’s employees to assist in unloading the piano. This occurred:

Q. Mr. Nowlin, is it the duty of either of these employees of Nowlin Furniture Store to ever assist in unloading any freight?
MR. COLE: To which we object, may it please the Court.
A. No, sir.
THE COURT: What is the basis of your objection?
MR. COLE: The basis of the objection is, first, it’s just his opinion as to whether it’s his duty or not; second, that is a question of law whether there is any duty imposed upon them; third, it’s a question for the jury to determine whether or not they failed in that duty.
THE COURT: Overruled.”

Certainly Mr. Nowlin would have a right to testify what were the duties of his employees. He testified that he never instructed his employees either to assist or not to assist in unloading any freight from a motor truck; that the employees, Calloway and Davis, were paid at a standard rate of pay per week; and that this unloading occurred at about 11:00 o ’clock A.M. on a regular work day. Calloway was asked: “Now, I want to ask you about being paid. Why were yon helping Mr. Sutton at this particular time? ” Calloway answered that he was helping Sutton as a favor to him.

The point that the appellant urges is that, since Calloway and Davis were on Nowlin’s payroll at the time they were helping Sutton, they thereby were Nowlin’s employees and it was improper to allow Calloway to say that he was merely helping Sutton, and it was likewise improper to allow Nowlin to say that it was not a part of the duty of Calloway and Davis to help unload the truck. It is claimed that the admission by Nowlin that Calloway and Davis were being paid by Nowlin on the day in question constitutes an “informal judicial admission” that they were working for Nowlin and that, therefore, Nowlin is liable for any negligence by them. The jury’s answer to Interrogatory No. 1 renders this argument moot. It does not make any difference for whom Calloway and Davis were working, or whether Nowlin owed any obligation to assist Sutton in unloading the piano, because the jury has found that Nowlin, “by its servants, agents and employees”, was not guilty of any negligence that proximately caused Sutton’s injuries. The interrogatory has heretofore been copied; and when the jury answered that interrogatory as it did, such answer rendered moot all questions of who employed whom.

II. Instructions. The appellant questions six instructions that were given: two of these were on the request of Nowlin; and four on the request of Campbell. These instructions related to such matters as: common carriers and their duties; weights of shipments; negligence and proximate cause; lending of employees; contributory negligence; and assumption of risk. To copy them in extenso would unduly prolong this opinion. We have carefully considered each questioned instruction; and we conclude that appellant’s objections to them are without merit to all of the instructions except Campbell’s Instruction No. 18. It is true that the Court submitted the wrong Comparative Negligence Statute. The Court framed its instruction under Act No. 296 of 1957; whereas, on the date of Sutton’s injuries, the applicable statute was Act No. 191 of 1955; and the Court should have used the Comparative Negligence Buie as stated in the 1955 Act. See St. L. S. W. v. Robinson, 228 Ark. 418, 308 S. W. 2d 282; and Mo. Pac. Rr. Co. v. Yarbrough, 229 Ark. 308, 315 S. W. 2d 897. But when the jury answered Interrogatory No. 2 as it did and found that Campbell 66 Express, Inc., “by its servants, agents and employees ’ ’, was not guilty of any negligence, then the verdict cancelled any error in the matter of the Comparative Negligence Instruction and rendered harmless the giving of the wrong Comparative Negligence Instruction.

Finding no error, the judgment is affirmed.

       Nowlin Furniture Company is the trade name of either Nowlin & Sons Company, or Nowlin, Inc. Both companies are parties defendant, and we will refer to them, jointly and severally, by the name, “Nowlin”.

       Sutton received Workmen’s Compensation payments from Superior and its insurance carrier; and when Sutton filed the present suit against Nowlin and Campbell, Superior and its insurance carrier intervened and asked that Superior’s insurance carrier be subrogated, as provided by Workmen’s Compensation Statute — § 81-1340, Ark. Stats.

       Here is the exact statement of appellant’s points: “POINT NO. 1. IMPROPER TESTIMONY WAS ADMITTED.
      A. Nowlin’s testimony that its employees owed no duty to unload freight.
      B. Nowlin’s testimony to falsify and contradict its informal judicial admission.
      “POINT NO. 2. ERRONEOUS INSTRUCTIONS WERE GIVEN.
      A. Nowlin’s requested No. 1-A on duty not owed, defining common carriers, etc.
      B. Nowlin’s requested No. 8 on lending employees.
      C. Campbell’s requested No. 8 substituting custom and usage for ordinary care and prudence.
      D. Campbell’s requested No. 16 on assumed risk.
      E. Campbell’s requested No. 18 submitting wrong comparative negligence law.
      F. Campbell’s requested No. 19 excusing negligence of defendant’s employees.”


author: George Rose Smith, J.

text:
    Odom v. Odom.
    5-2149
    335 S. W. 2d 301
    Opinion delivered May 16, 1960.

      Gentry, Gentry & Mott, for appellant.

      George F. Hartje Jr. and Opie Rogers, for appellee.
   George Rose Smith, J.

The appellee's husband, Walter Odom, owned eighty acres of land at the time of his death, intestate and without issue, in 1957. Odom was survived by his widow and by four brothers, six sisters, and the five children of a deceased sister. The widow, who received a half interest in the land as her dower, at first attempted to obtain deeds from her husband’s heirs to the other one half interest. Most of the heirs signed such a conveyance, but there is a question whether those deeds were ever delivered to the grantee.

This proceeding was originally a partition suit filed by the appellee against those of her husband’s heirs who refused to sign a deed to her. By an amendment to her complaint the appellee asserted as an alternative ground for relief that in about 1955 her husband had conveyed the land to himself and the appellee as tenants by the entirety, that the deed had been destroyed under the mistaken belief that it was of no validity, and that the title to the land should be quieted in the appellee as the surviving tenant by the entirety. The original defendants, joined by other heirs who intervened in the case, filed a motion to strike the alternative prayer for relief on the ground that the widow had elected her remedy by initially basing her complaint upon the conveyances assertedly signed by part of her husband’s heirs. The chancellor denied this motion and eventually upheld the appellee’s title under her claim to be the surviving tenant by the entirety.

The chancellor was right in refusing to strike the alternative count in the amended complaint, for the case does not fall within the doctrine of election of remedies. In the typical situation involving that doctrine a single transaction presents the plaintiff with a choice of inconsistent remedies. For example, in the leading case of Belding v. Whittington, 154 Ark. 561, 243 S. W. 808, 26 A. L. R. 107, cited by the appellants, the vendors in a contract for the sale of land had refused to execute a deed to the property. This breach of contract afforded the vendees a' choice between suing at law for damages or suing in equity for specific performance. We held that the purchasers had elected their remedy by filing an action at law for breach of contract, which precluded them from dismissing that case and bringing a suit in equity for specific performance.

In the case at bar the widow’s choice is not between two remedies stemming from the same transaction; it is between two entirely separate causes of action. In substance her amended complaint says that she is entitled to have her title quieted pursuant to the unrecorded destroyed deed that created a tenancy by the entirety during her husband’s lifetime. If, however, she is unable to prove that cause of action then she seeks alternative relief pursuant to the deeds executed after her husband’s death.

We see no real distinction between this case and our holding in Allen v. First Nat. Bank of Batesville, 231 Ark. 201, 321 S. W. 2d 750. There the plaintiffs, as the heirs of C. M. Edwards, sought to recover property upon either of two alternative inconsistent theories: (a) Edwards was incompetent to make a will, or (b) if he should be found to have been competent then the other claimants to the property had chosen to accept only a small portion of the estate. The trial court required the plaintiffs to elect between these contradictory theories, but we held the alternative prayers to be permissible, saying:

“The court placed too great a burden on the plaintiffs. It was impossible, or at least exceedingly difficult, for the plaintiffs to know at that time whether C. M. Edwards was competent or incompetent to make the wills in question. In fact they would never know for a certainty until the issue was decided in court. The two causes of action were pleaded, we think, alternatively as shown by the complaint and the prayer . . .
“In reaching the conclusion that appellants (the plaintiffs) should not have been required to elect, we are not overlooking the authorities presented by the appellees, and we recognize that the dividing line between when an election should be required and when it should not be required is not always clear and distinct, as is the case here. However, we feel that in equity matters any doubt should be resolved in favor of the pleader to the end that there may be a decision on the merits rather than on the pleadings and thereby avoid a possible miscarriage of justice.”

In the case at hand the appellee was faced with the necessity of proving by clear and convincing evidence that her husband had executed a deed creating a tenancy by the entirety. She, like the plaintiffs in the Allen case, could not foretell with certainty that she would be able to sustain her burden of proof. We perceive no injustice to the appellants in a rule that permits an alternative precautionary pleading, so that both possible causes of action may ultimately be decided upon the merits.

As a second ground for reversal the appellants insist that the existence of the missing deed was not establisted by tbe required quantum of proof. Tbis question is not free from doubt, but after studying tbe record we are unable to say that the chancellor was in error in finding tbe plaintiff’s proof to be sufficiently clear and convincing.

Tbe appellee testified that her husband, in order to assure her tbe ownership of tbe property in case of bis death, executed a deed to himself and her. (Tbis would create a tenancy by tbe entirety. Ebrite v. Brookhyser, 219 Ark. 676, 244 S. W. 2d 625, 44 A. L. R. 2d 587.) She describes tbe deed as being just like tbe one they already bad except that her name was added. She kept tbe deed until her husband took it to tbe county seat with tbe intention of recording it, but upon his return be told her that be bad not recorded tbe instrument, as someone in tbe courthouse bad informed him that tbe conveyance was not needed for bis wife’s protection. Tbe unrecorded deed was burned up with some trash.

There is no sound reason to doubt tbe veracity of tbe appellee’s testimony. She and her husband bad been married for about thirty-five years; it was quite natural for him to safeguard her interest in tbe property. Tbe fact that tbe deed was executed is confirmed by the testimony of tbe notary who prepared it, an apparently disinterested witness. There is no testimony whatever to tbe contrary. In view of all tbe circumstances we are of tbe opinion that tbe appellee sustained her burden of proof.

Affirmed.


author: Paul Ward, Associate Justice.

text:
    Wood v. Setliff.
    5-2119
    335 S. W. 2d 305
    Opinion delivered May 16, 1960.

      Brown & Compton, for appellant.

      Shackleford and Shackleford, for appellee.
   Paul Ward, Associate Justice.

This is the second appeal by appellant to this Court in connection with the same subject matter. For a full understanding of the background issues and subject matter, reference is made to the opinion of this Court in the case of Wood v. Setliff, 229 Ark. 1007, 320 S. W. 2d 655.

Summarily stated, the essential facts leading up to this appeal are those presently set forth. In 1951 appellant, for consideration of $14,000.00, executed a General Warranty Deed to Setliff and his wife (appellees herein) purporting to convey a parcel of land in the City of El Dorado 80 feet by 220 feet. Later appellees filed suit in the Chancery Court against appellant for breach of warranty, alleging that a substantial portion of the' above parcel of land had been dedicated to the City of El Dorado; that appellant had no title and appellees received no title to that portion of the land; and that appellees were entitled to damages in a substantial amount. The trial court agreed with appellees’ contentions and entered a decree awarding damages for the value of that portion of the land to which title had failed. The court also awarded to appellees attorneys’ fees and damages for removal of a building. On appeal by appellant this Court affirmed the decree of the trial court in all respects except as to the last two mentioned items, and remanded the cause for further proceedings.

Upon remand appellant filed a Petition in which he asked the trial court to require appellees, upon payment of the judgment, “to convey, without warranty of title” all of their right, title, and interest in and to that parcel of the land to which title had failed. This Petition was denied, and appellant prosecutes this appeal.

There are no disputed questions of fact and it is agreed by both parties that the sole question for decision is one of law. The essence of appellant’s contention is set forth in his brief in this statement: “When the appellant paid this money to appellees, it would be grossly inequitable to allow the appellees to keep the money and the land too. They have the money to make them whole — if they keep the land, too, they are more than whole — they have both land and money. ’ ’

The strongest legal support which we find for this contention is the statement in 91 C.J.S. p. 1131, Section 170 c., under the subject of Reconveyance. There we find this statement: “Where title has vested in the purchaser he must, as a general rule, reconvey or offer to reconvey the property by a conveyance which will put the vendor in status quo.” Following the above quoted headnote we find this: “Ordinarily where title has vested in the purchaser, a reconveyance of the property or offer to reconvey is necessary; . . . ” However there is an exception to the above rule announced in the same paragraph where it is stated: “A tender of reconveyance is not necessary, however, where the purchaser has never acquired legal title or where the right acquired by the purchaser under his deed is absolutely worthless.” Authority for the above statement is found in the case of Bailey v. Gilman Bank, 99 Mo. App. 571, 74 S. W. 874. See also McCracken v. San Francisco, 16 Cal. 591; Upton v. Archer, 41 Cal. 85, 10 Am. R. 266; and Lewis v. Mote, 140 Iowa 698, 119 N. W. 152.

As is more clearly set forth in our former opinion, appellant apparently had no title to subject land because it had been dedicated to the City of El Dorado, and for the same reason appellees received no title.

It occurs to us, moreover, that appellant is now in the same position as he would be if appellees executed a quitclaim deed to him. In the case of Mackintosh et al v. Stewart, 181 Ala. 328, 61 So. 956, where a similar issue was under consideration, the Court said: “A recovery in an action on a covenant for title works a rescission pro tanto by revesting in the convenantor the title, such as it is, which he has conveyed.” Apparently appellees concede the above announced principle because in their brief and in the oral argument here, they disclaim all right, title and interest in the subject property, and they further agree that a court order to that effect may be entered.

Since appellant expresses the belief that he can someday perfect his title to the subject parcel of land against any claim of the City of El Dorado and since he wants to be in the best possible position to do so, and since all records affecting title to real estate should, when possible, be entered in the County where it is situated, we are remanding the cause to the trial court with instructions to enter an order reinvesting in appellant the title to the subject land, such as it is, which he conveyed to appellees.

As so modified the cause is remanded for the purpose above stated.

Modified and remanded with directions.


author: Sam Robinson, Associate Justice.

text:
    Phillips Cooperative Gin Co. v. Toll.
    5-2098
    335 S. W. 2d 303
    Opinion delivered May 16, 1960.

      Griffin Smith, for appellant.

      Thorp Thomas and Tom Gentry, for appellee.
   Sam Robinson, Associate Justice.

On the 27th day -of September, 1955, a car occupied by Richard P. Toll, Sr. collided with a large truck pulling a trailer, driven by W. T. Jackson. Mr. Toll received injuries from which he died. The administratrix of his estate sued W. T. Jackson and the Phillips Cooperative Gin Company, alleging that the collision was due to the negligence of Jackson and that he was the agent, servant and employee of the Gin Company at the time of the collision. There was a judgment for the administratrix. Jackson did not appeal. The Gin Company did appeal and the judgment was reversed because of the giving of an erroneous instruction. But this Court held that the evidence was sufficient to sustain the verdict. Phillips Cooperative Gin Company v. Toll, 228 Ark. 891, 311 S. W. 2d 171.

"When the ease was tried anew, the only issue submitted to the jury was whether at the time of the collisioH W. T. Jackson, the driver of the truck which collided with the car occupied by Mr. Toll, was the agent of the appellant Gin Company. The jury found by its verdict that Jackson was an agent of the appellant. As above mentioned, in the first case this Court held that the evidence was sufficient to take the case to the jury on the question of the sufficiency of the evidence to establish the relationship of master and servant between the Gin Company and W. T. Jackson. There is no substantial variance between the evidence in the case at bar and the evidence in the first case on the point of agency. There is a slight difference in the evidence regarding the registration of the trailer attached to the truck involved in the collision. In the first case it was shown that the trailer was registered in the name of C. T. Jackson, who is the president of the Gin Company and father of W. T. Jackson. In the case at bar no evidence was introduced showing in whose name the trailer was registered, but C. T. Jackson did testify that at one time he owned the trailer. We do not think this slight deviation is material. Moreover, additional evidence of agency was introduced.

Kay Matthews, a witness for appellee, testified that he is an attorney and acting chairman of the Arkansas Commerce Commission; that the Commission has to do with matters relating to transportation by common carriers, participating carriers and other carriers; that carriers of cotton seed are not required to obtain certificates of convenience and necessity, but they are required under the law to file securities in the form of a policy of public liability insurance; that he had searched the records of the Arkansas Commerce Commission back to 1950 and there was no record whatever of W. T. Jackson having filed anything. Matthews further testified that a company that hauls its own products is not required to file anything with the Commission.

It is contended by the Gin Company, and Jackson also testified, that he had been hauling as an independent contractor for the Gin Company over a period of several years. If this was true, Jackson had failed to comply with the requirement that he deposit evidence of liability insurance. On the other hand, if Jackson was merely acting as agent for the Gin Company, there was no requirement that anything be filed with the Commerce Commission. In these circumstances the fact that nothing had been filed with the Commission ivas a fact from which a jury could draw the inference that the truck was being operated by the Gin Company. The jury had a right to consider this fact for whatever it was worth. They could draw such an inference from the proven facts, if they so interpreted the facts. There is no merit to appellant’s contention that the question of insurance was injected into the case in violation of the rule discussed in Derrick v. Rock, 218 Ark. 339, 236 S. W. 2d 726.

On cross-examination W. T. Jackson was asked if a short time after the collision occurred he did not state to Officer Cone that he was on his way back to the Phillips Gin Company at Wycamp. The witness replied that he did not remember. Appellee put Officer Cone on the stand and asked him if Jackson had not said that he had been to the Southern Oil Mill to haul a load of seed up there for Phillips Cooperative. Appellant objected and the objection was sustained. Cone gave additional testimony, but no further objection was made to it.

Appellant complains of certain instructions given by the court. We have examined all of the instructions carefully, but find no error.

Affirmed.


author: Jim Johnson, Associate Justice. Paul Ward, Associate Justice,

text:
    Simms v. Tingle.
    5-2050
    335 S. W. 2d 449
    Opinion delivered May 16, 1960.
    [Rehearing denied June 6, 1960]

      Binning é Binning by W. G. Binning, Jr., for appellant.

      Barber, Henry, Thurman Jo McCaskill, for appellee.
   Jim Johnson, Associate Justice.

This case arises out of an automobile collision. The sole question presented is whether appellant was a guest in appellee’s car as a matter of law. The complaint, insofar as pertinent, alleged:

“That the plaintiff’s (appellant’s) presence in the automobile driven by the defendant was necessary by reason of the joint undertaking of the plaintiff and the defendant in selling and distributing 'Go to Church Stamps’ for the Church of God of the City of West Helena, Phillips County, Arkansas, where the plaintiff’s husband is the regular pastor and the defendant is a member of the said church. That the plaintiff and the defendant were jointly engaged in the undertaking, for their joint benefits, under a plan adopted by them whereby the defendant’s husband’s car was used in the morning and the plaintiff’s husband’s car would be used in the afternoon for the joint purpose of selling and distributing the religious media.”

Prom a judgment of the trial court sustaining a demurrer and dismissing the complaint, the appellant, upon appeal, relies upon the following three points for reversal.

1. The appellant was engaged in a joint venture with the appellee for their mutual benefit and as such may maintain a suit for the recovery of damages based upon allegations of ordinary negligence;

2. The appellant was not a guest or invitee of the appellee but was a passenger in the automobile under a plan of sharing the expenses which constitutes a passenger for hire; and

3. The question of fact, presented by the allegations in the complaint as to whether the appellant was a guest of appellee, is one of fact and could be determined only by a jury.

Tbe general rule for determining tbe status of a passenger in an automobile is that if the transportation or carriage in its direct operation confers a benefit only on the person to whom the ride is given and no benefits other than such as are incidental to hospitality, companionship, or the like, upon the person extending the invitation, the passenger is a guest within the statutes (Ark. Stats. § 75-913 to 75-915), but if the carriage tends to the promotion of the mutual interests of both the passenger and the driver for their common benefit, or if the carriage is primarily for the attainment of some objective or purpose of the operator, the passenger is not a guest. Ward v. George, 195 Ark. 216, 112 S. W. 2d 30.

We have repeatedly held that when the status of an occupant of a ear is questioned and conclusions must be drawn from the evidence, then the issue is one for the jury. Corruthers v. Mason, 224 Ark. 929, 227 S. W. 2d 60; Whittecar v. Cheatham, 226 Ark. 31, 287 S. W. 2d 578; Rogers v. Lawrence, 227 Ark. 117, 296 S. W. 2d 899. Certainly in testing, on demurrer, the sufficiency of the allegations in the complaint as regards status, the analogy would be that evidence should be allowed to clarify the allegations. This is true because on a demurrer the complaint, together with all reasonable inferences deducible therefrom, is to be construed most strongly in favor of the plaintiff. (See cases collected in West’s Arkansas Digest, Pleadings, Sec. 214.) The complaint in this case alleged that the plaintiff and defendant were engaged in a joint undertaking. If it was a joint enterprise then the guest statute would not apply because in Am. Jur. Vol. 5A, p. 560, “Automobiles and Highway Traffic”, § 521, cases and annotations are cited to sustain this text:

‘ ‘ The automobile guest statutes, relieving the owner or operator of an automobile from consequences of ordinary negligence which result in injury to a passenger in the car do not apply if tbe owner or driver of a motor vehicle and a passenger therein are engaged in or embarking on a joint adventure or joint enterprise for their mutual advantage and the ride is an integral part of the venture or if the joint enterprise is a motivating influence in providing the transportation for the passenger ...”

When the complaint alleged that the ladies were on a joint undertaking, certainly the plaintiff had a right to introduce evidence to establish that fact and bring herself within the quoted rule above which is that on a joint enterprise the guest statute does not apply. There is an annotation in 59 A. L. R. 2d, p. 336 entitled: “Mutual Business or Commercial Objectives or Benefits as Affecting the Status of a Eider under the Automobile Guest Statute” and in that annotation cases from various jurisdictions are reviewed. It seems clear to us that the allegations in the case at bar were sufficient to allow the introduction of evidence.

The appellee, while recognizing the rule permitting recovery for ordinary negligence where the carriage or transportation of a passenger is for the mutual benefit of both the passenger and the driver, points to the case of Henry v. Henson, 1943, Tex. Civ. App., 174 S. W. 2d 270, and to our own case of Payne v. Fayetteville Merc. Co., 202 Ark. 264, 150 S. W. 2d 966, and argues that the benefit accruing to the driver must be a business or pecuniary benefit and that since any pecuniary benefit resulting from the fund-raising drive in this instance flowed directly to the church, the transportation of appellant in no way resulted in a business or pecuniary benefit to appellee.

In the case of Henry v. Henson, Tex. Civ. App., 174 S. W. 2d 270, which was appealed from a jury verdict finding that the passenger was not a guest on the basis that certain courtesies had been performed by the passenger to the driver, the Texas Court of Civil Appeals said:

“Mrs. Henry and Mrs. Henson, the record shows, were friends and co-workers in the Women’s Missionary Society of the Methodist Church. It is undisputed that each gave a great deal of her time and talents to that work. They were engaged in advancing missionary work, which is a necessary function of that great religious institution, the Methodist Church. These ladies were devoting much of their time to the spiritual uplift of their community through the channel of their society. Their work was for the church, and the benefit accruing to them was the advancement of the Christian religion through their joint efforts as delegates to this conference and the Christian education there received by each of them. But we are unable to say from the facts in this record that such mutual benefit accruing to each of them, or that the benefit to be derived from the trip by Mrs. Henry, the transporter, was of such nature ‘as to change the status of plaintiff (appellee) from that of a guest.’ As said in the recent case of Franzen v. Jason, Tex. Civ. App., 166 S. W. 2d 727, 728, writ refused:
‘In Blashfield’s Cyclopedia of Automobile Law and Practice (Perm. Ed.), in the 1942 pocket part of Vol. 4, § 2292, in construing said Article 6701 b, it is said that “the benefit accruing to or conferred upon the operator of one of the guest class must be a tangible one growing out of a definite relationship.” ’
“In support of that statement of the Law the author has cited the case of Voelkl v. Latin, 58 Ohio App. 245, 16 N. E. 2d 519, 523, wherein the Court of Appeals of Ohio said in part: ‘ The relationship which will give rise to the status of a “passenger” rather than a “guest” must confer a benefit upon the owner of a definite tangible nature.’
“The positive testimony of Mrs. Henson, appellee, part of which is set out above, negatives the contention that appellant furnished her transportation to and from College Station in exchange for certain courtesies to be performed by appellee ...”

Thus, this authority relied upon by appellee does not substantiate her contention that the benefit flowing to the driver which takes the passenger out of the guest statute must necessarily be a business or pecuniary benefit measured in dollars and cents. The complaint her« alleges that the plaintiff and defendant were engaged in a joint undertaking in selling and distributing the “Go to Church Stamps.” The appellee’s contention that no benefit flowed to the appellee in collecting money for the church we hold to be without merit for otherwise a great host of religious workers have wasted many valuable hours. Nor is the contention supported by the case of Payne v. Fayetteville Mer. Co., supra. There the liability of the Fayetteville Mercantile Company depended upon the doctrine of respondeat superior and it was readily apparent that if the driver, who was primarily responsible for the injury, was not liable in that he received no benefit from the transportation, then of course his employer was not.

The question of whether the arrangement for the sharing of car expenses by using appellee’s husband’s car in the morning and the appellant’s husband’s car in the afternoon constituted a payment for transportation is one of fact. See: Brand v. Rorke, 225 Ark. 309, 280 S. W. 2d 906, where we said: “. . . It is certainly true that when a trip is undertaken for social and recreational purposes, a passenger may be found to be a guest even though he buys a tankful of gasoline for his host or contributes in some other way to the expense of the journey. Ordinarily, however, the issue is one of fact . . .” The appellee’s argument that only the church benefited from the car pool agreement we do not consider to be logically sound for it nowhere appears that the coffers of the church were benefited nor charged with respect to any arrangement made by the parties for transportation.

Reversed.

Holt, George Rose Smith, and Ward, JJ., dissent.

Paul Ward, Associate Justice,

dissenting. A careful consideration of the wording of the Complaint in this case and review of the many authorities dealing with the question here under consideration leads me to a different conclusion than that reached by the majority.

First, attention is called to the well established rule that a Demurrer will be sustained to a Complaint which does not state a cause of action or to one that pleads only conclusions of the law. See: Civil Code Page 96, Section 109; Keith v. Freeman, et al, 43 Ark. 296; Southern Orchard Planting Company v. Gore, 83 Ark. 78, 102 S. W. 709; Pharr v. Knox, 145 Ark. 4, 223 S. W. 400; Driesbach v. Beckham, 178 Ark. 816, 12 S. W. 2d 408; Seubold v. Fort Smith Special School District, 218 Ark. 560, 237 S. W. 2d 884.

Since the Complaint (as is conceded in this case) does not allege willful and wanton negligence on the part of appellee (Tingle) appellant cannot recover under the wording of her Complaint because of Ark. Stats. § 75-913- § 75-915, the “guest statute” unless she was a “passenger” and not a “guest” in appellee’s car.

The decisive question, therefore, is: Does the Complaint show appellant to be a “passenger” or a “guest”? It is apparent that this is a question which calls for close distinctions — distinctions which this Court has not heretofore made clear.

The many authorities which I have reviewed, some of which are hereafter set out, are practically unanimous in approving the following principles which are applicable to the case under consideration.

[a] If both the passenger and the owner-driver derive a tangible and substantial benefit then the rider is a passenger and can recover on simple negligence.
[b] “Tangible and substantial benefit” means something more than that based on companionship.
[c] If the owner-driver derives any special benefit (possibly either tangible, substantial or otherwise) over and above that received by the rider, then the rider is a passenger and can recover.

In the case of Leete v. Griswold Post, No. 79, American Legion, 114 Conn. 400, 158 A. 919, it was held that the benefit must be tangible. Raub v. Rowe, Tex. Civ. App., 119 S. W. 2d 190, reiterates a principle that there must be “. . . the element of material benefit to the defendant driver in the form of possible profits, where the elements of friendship and hospitality were not involved, and where the ride was taken as an integral part of a business transaction. . . .”

In the case of Rogers v. Vreeland, 16 Cal. App. 2d 364, 60 P. 2d 585, the Court in construing the “guest” statute of that State among other things said:

“Doubtless the Legislature intended to change the rule heretofore adopted in this state, that an invited guest could recover for simple negligence, and to provide that such a person could not recover in the absence of a showing of intoxication or willful misconduct; and we are of the opinion that the section is applicable to a case such as the one now before us, where the riders, on a trip purely social, and without any commercial or business element, agreed to pay their share of the running expenses of the automobile and their share of any other expense on the trip. We do not consider such an arrangement between the rider and the driver as the giving by the former to the latter of such compensation as removes the riders from the status of ‘guest’ within the meaning of the act.”

Blashfield, in Ms Cyclopedia of Automobile Law and Practice, 1942 Pocket Part of Volume 4, Section 2292, in dealing with this same question says that: “. . . the benefit accruing to or conferred upon the operator of one of the guest class must be a tangible one growing out of a definite relationship.” The same author further states: ‘ ‘ One important element in determining whether a person is a guest within the meaning and limitations of such statutes is the identity of the person advantaged by the carriage. If, in its direct operation it confers ... no benefits, other than such as are incidental to hospitality, companionship or the like, upon the person extending the invitation, the passenger is a guest witMn the statutes . . .” The above quotation was approved in the case of Ward v. George, 195 Ark. 216, 112 S. W. 2d 30.

In the case of Iles v. Lamphere, 60 Ohio App. 4, 18 N. E. 2d 989, appellant sued appellees to recover damages for personal injuries sustained as a result of the negligent operation by appellee of an automobile in which they were riding. In material part the Complaint stated: “That Mrs. Lamphere was President and Mrs. lies was Treasurer of the Ladies Aid Society of the Seventh Day Adventist Church of West Clarksfield; that solely as officers and agents of this society and in pursuance of arrangements hy the officers and members thereof and of a ‘common purpose of purchasing of food supplies to be served by said society at a public sale to be held some days thereafter, proceeded to travel in Mrs. Lamphere’s automobile. . . ’” The trial court sustained a demurrer and Mrs. lies appealed. The Court stated in its opinion that : “The sole question in controversy is whether Mrs. lies was a guest passenger of Mrs. Lamphere within the meaning of Section 6308-6, General Code.” (Said statute contains the same terms with regards to willful and wanton misconduct of the drive that are found in our statute above referred to). The Court of Appeals, in sustaining the trial court, among other things, stated: “There must have been some beneficial consideration flowing from Mrs. lies to Mrs. Lamphere to exclude Mrs. lies from its operation (operation of the statute). Now, what benefit was bestowed by her upon Mrs. Lamphere? Neither of them was engaged in any personal business or undertaking. . . There is no allegation of fact from which may be inferred any benefit pecuniary or otherwise received by Mrs. Lamphere from Mrs. lies.”

A careful analysis of the facts and the holdings in the ease of Henry, et ux v. Henson, et ux, Tex. Civ. App., 174 S. W. 2d 270, which is relied on so heavily by the majority, convinces me that it supports the statements and principles above set forth. In that case appellee (Henson) recovered a judgment against appellant in the trial court which the Appellate Court reversed and dismissed. The facts which were proven in that case are, to my mind, stronger to show that appellee (Mrs. Henson) was a passenger than are the allegations in the Complaint under consideration to show that Mrs. Simms was a passenger. It would unduly lengthen this dissent to reiterate fully the testimony in the cited case but it does show, when construed in the light most favorable to an affirmance of the judgment, that Mrs. Henry received more benefits from the trip which they were making as delegates to the Conference of Missionary Societies than Mrs. Simms could possibly receive under the allegations of her Complaint. On this point it is revealing to compare the Henry case with the present case. The benefits accruing to Mrs. Henry were: [a] As the incoming president of the Missionary Society she would receive valuable advice and direction from Mrs. Henson who had just served in that capacity, and [b] she would get the benefit of shorthand notes which Mrs. Henson was going to make. All these were special benefits expected to accrue to Mrs. Henry. On the other hand, Mrs. Simms alleges no benefits, special or otherwise, that were to accrue to Mrs. Tingle. In fact all expected benefits from their undertaking would accrue to the Church and not to either of the parties. Moreover, the logical inference is that Mrs. Simms had more special interest in the undertaking because she was the wife of the pastor of the Church.

To be sure this Court does not want to unnecessarily discourage public spirited women from jointly engaging in church activities, but I submit that more discouragement would result from the decision of the majority. Hereafter, under that decision, any accommodating woman who extends a ride to a friend on a church mission must take into account the extra risk to which she will be subjected.

Justices Holt and Smith join in this dissent.


author: J. Seaborn Holt, Associate Justice.

text:
    Silas v. State.
    4978
    337 S. W. 2d 644
    Opinion delivered May 23, 1960.
    [Rehearing denied September 12, 1960]

      Hugh W. Trantham, Comrade Warrington Knauts, for appellant.

      Bruce Bennett, Atty. General by Clyde Calliotte, Asst. Atty. General, for appellee.
   J. Seaborn Holt, Associate Justice.

January 6, 1960, appellant, A. C. Silas, was tried and convicted on an information charging the crime of possessing stolen goods, under § 41-3938, Ark. Stats., 1947 (1959 Supp.). His punishment was fixed at ten year's in the penitentiary.

The original information, filed August 6, 1959, charged “the defendant, A. C. Silas, of the crime of Possession and disposal of stolen goods, committed as follows, to-wit: The said defendant in May and July, 1959, in the Eastern District of Clay County, Arkansas, did unlawfully, willfully, knowingly, and feloniously possess stolen goods which exceeded the aggregate value of thirty-five dollars ($35.00), knowing said goods to be stolen, with the intent to deprive the true owner thereof, and did dispose of same for a valuable consideration, and that said goods possessed are as follows: One 10 horsepower Evinrude outboard motor, Serial No. 10008-02643; One 10 horsepower Johnson outboard motor, Serial No. 1927540; One 10 horsepower Evinrude outboard motor, Serial No. 10014-09212; One 12 horsepower West Bend outboard motor, Serial 1652, Model 12902; One 2 horsepower West Bend outboard motor, Serial 1983 or 1980 Model 2901; and against the peace and dignity of the State of Arkansas.”

The information was later amended by striking out the words “and disposal” from the charge; by correcting and changing the serial number of one of the motors from 10008-02643 to 10018-02643; and by adding another outboard motor describing it as follows: £ ‘ One 18 horsepower Evinrude Outboard Motor, Serial No. 15024-14804.” A long list of the State’s witnesses was also attached to this information at appellant’s request.

From the judgment comes this appeal. For reversal appellant contends that the trial court erred in allowing the information to be amended, as indicated above, and in refusing to quash it; that the court erred “in allowing the trial to proceed after amending the original information by striking the words ‘and disposal’ without any notice to the Appellant or Appellants Counsel;” that the court erred in refusing to grant appellant a continuance; and “by proceeding to trial without the State having first filed a Bill of Particulars as requested by Appellant.” And finally Silas contends that on account of the above alleged errors, he has been deprived of due process of law. We do not agree to any of these contentions.

Appellant, although a barber by trade, dealt in buying and selling many things, among them being automobiles, firearms and outboard marine motors. The evidence appears to be overwhelming that appellant induced several teenage boys to steal outboard motors for him and pursuant to this arrangement, six outboard marine motors were stolen and possession delivered to Silas. Silas paid the boys $300.00 for four of these motors. The owners of the stolen motors testified as to the ownership and identified them. One of the youths instrumental in stealing them testified that he, along with companions, delivered the stolen goods to Silas during the late hours of night. Serial numbers of the motors stolen corresponded with those in Silas’ possession. Numerous advertisements appeared in the local newspaper offering the sale of motors by Silas with horsepower identical with those stolen.

At the outset appellant is confronted with the fact that he did not file a motion for a new trial incorporating his alleged errors. Therefore, under our long established rule, only such errors as may appear on the face of the record will be considered by this court on appeal. In Holliman v. State, 213 Ark. 876, 213 S. W. 2d 617, we said: “There is no motion for a new trial in this record, and * * * it is a well settled rule of this court that, where there is no motion for a new trial, only errors appearing on the face of the record will be considered on appeal. ’ ’ As to what constitutes ‘ ‘ the record”, we said in Baker v. Allen, 204 Ark. 818, 164 S. W. 2d 1004: “The record proper includes the pleadings, any exhibits thereto, statement showing service of summons, any material order of court preceding judgment, the judgment iself, motion for new trial, the order overruling same, and the grant of appeal.”

The trial court did not err in allowing the State to amend the information by striking out the charge of “disposal” of stolen goods and thereby eliminating and reducing the charge to the one charge of “possession” of stolen goods. Obviously the nature and degree of the crime charged (§ 43-1024, Ark. Stats.) was not changed. The change made was clearly to appellant’s benefit and he cannot complain. “The only limitation on such amendment is that it relates to ‘matters of form,’ and not ‘change the nature or the degree of the crime charged,’ ” Ingle and Michael v. State, 211 Ark. 39, 198 S. W. 2d 996. In 42 C. J. S., Indictments and Informations, § 237, the author says: “No amendment of the information is necessary in order that the prosecuting attorney may abandon a greater charge and proceed against accused on a lesser one included therein; a simple motion, made verbally in open court, or an announcement of such intention, suffices if made before the trial begins,” and § 240, “Accused is not prejudiced by an amendment of an information to charge an offense included within that stated in the original information; and it has been held that an amendment which diminishes the accusation cannot injure accused.”

In 27 American Jurisprudence, Indictments and In-formations, § 118, we find this language: “Amendments in respect to the description of the offense or of the property involved, where they do not change the nature or degree of the offense are generally held to be proper under statutory authority permitting amendments as to form, ” and § 121, “ * * * it has been held proper, where no substantial change in the nature or degree of the offense is worked thereby * * * to permit an amendment * * * as to the property forming the subject matter thereof.”

Appellant contends that the amendment to the information “correcting the serial number of one of the outboard motors, which was otherwise properly described, by the changing of one number, was prejudicial error, and that the amendment of the information by the addition of an outboard motor also constituted error, alleging that these amendments were made without leave of the court.” The record reflects that these alleged errors were not made in appellants motion to quash the information, in his motion for bill of particulars, or in his motion for a continuance and were not made to the court prior to trial, and, as indicated, were not presented in a motion for a new trial; therefore, these contentions came too late and he is now estopped.

We find no merit in appellant’s contention that the trial court abused its discretion in refusing to grant his motion for a continuance. Since this alleged error, as indicated, was not preserved in a motion for a new trial, it comes too late. We also quickly dispose of it on its merit by holding that the court did not abuse its discretion in denying a continuance. The court pointed out in overruling this motion that Mr. Hugh Trantham, appellant’s attorney of record, contacted the court concerning the bond at the time of appellant’s arrest in August and that attorney Trantham had represented appellant since August, 1959. “The fundamental principle running throughout the subject of continuances is that the granting or refusal of a continuance rests in the discretion of the court to which the application is made. Its ruling in reference thereto will not be disturbed by an appellate tribunal unless an abuse of discretion is shown . . .”, 12 Am. Jur., Continuance, § 6.

We also hold that the trial court properly denied appellant’s request that the State be required to file a bill of particulars. This too was a matter within the sound discretion of the trial court. Our statute relating to Bill of Particulars, § 43-804 Ark. Stats., 1947, provides: “The bill of particulars now required by law in criminal cases shall state the act relied upon by the State in sufficient details, as formerly required by an indictment; that is, with sufficient certainty to appraise the defendant of the specific crime with which he is charged, in order to enable him to prepare his defense . . . ’ ’ The amended information here clearly charged appellant with the possession of stolen goods (Describing them) which is a felony. The information here itself was sufficient compliance with the law. In addition to the information, appellant, as indicated, was furnished with a copy of the State’s witnesses before the trial.

Finally, appellant’s contention that he was deprived of due process of law hy being pnt to trial without being informed of that with which he was charged and not furnished a bill of particulars, after a request for same, may also be disposed of against appellant’s contention since appellant made no objection on this ground at the trial and did not incorporate it in a motion for a new trial. We point out, however, that in 16-A, C. J. S., Constitutional Law, § 587, under Form and Contents of Indictments or Informations, the text writer has this to say on due process: “* * * a statement of the facts as to matters of detail is not essential. Due process is not denied by charging accused in an indictment containing several counts, each count alleging a different offense, by grouping several misdemeanor counts in one indictment, or by charging that both principals and accessories committed the crime in question . . .

“While it is not doubted that in a sufficiently extreme case, refusal of a bill of particulars would be a deprivation of due process, such refusal does not deny due process where accused has long understood the general nature of the charge and it is evident that, if given, a bill of particulars would be confined to the overt acts alleged.

“* * * So accused is not deprived of his liberty without due process of law by a verdict convicting him of a lesser offense than that charged in the indictment or information, but of the same generic class, or by a statute permitting accused to be charged as a principal and convicted as an accessory.”

On the whole ease finding no error, the judgment is affirmed.


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    Commissioner of Revenues v. Ark. State Highway Commission.
    5-2144
    337 S. W. 2d 665
    Opinion delivered May 23, 1960.
    [Rehearing denied September 12, 1960]

      Lyle Williams, for appellant.

      Neill Bollinger, II. Clay Robinson, for appellee.
   Ed. F. McFaddin, Associate Justice.

The question presented on this appeal is whether the Highway Commission is required to pay the TJse Tax on merchandise it purchased outside of the State and used inside the State. The facts have been stipulated. The Revenue Commissioner assessed a tax of $999.70 against the Highway Commission under the Use Tax Act. The amount was paid under protest; and the Highway Commission brought this suit to recover the amount paid — a procedure provided in the said Use Tax Act (% 84-3120, Ark. Stats.). The Chancery Court rendered a decree in favor of the Highway Commission; and the Commissioner of Revenues brings this appeal, presenting for decision the question first stated.

The Commissioner of Revenues urges: that by the Use Tax Act a tax was levied on the use of all merchandise purchased by any person outside the State and used in the State; that in defining the word “person” in § 4(h) of the Use Tax Act (§ 84-3104(h), Ark. Stats.) it is stated that the word “person” means “any . . . agency”; that the Highway Commission is an agency; that in the emergency clause of the Use Tax Act (§ 84-3128, Ark. Stats.) it is stated that the purpose of the Act is to remove discrimination; and that unless the Highway Commission is subject to the tax, its purchases outside of the State will mean discrimination against local merchants. The Commissioner of Revenues also urges most forcibly that, under § 6(c) of the Act (% 84-3106 (c), Ark. Stats.), a “governmental agency” may apply in certain instances for a refund of the tax paid; that a “governmental agency” could not apply for a refund if the governmental agency had not previously paid the tax; that the governmental agency would not have paid the tax in the first instance if not liable therefor; and that if a “governmental agency” is liable to pay the tax then the Highway Commission is liable in this case because the Highway Commission is a “governmental agency”.

These are very logical and forceful arguments by the Commissioner of Revenues; but we conclude that our holding in Scurlock v. City of Springdale, 224 Ark. 408, 273 S. W. 2d 551, points unalterably to our holding in the case at bar. In the Springdale case, the Commissioner of Revenues claimed that the City of Springdale was liable for the Use Tax on articles purchased outside of the State and used in the State. In holding that the Use Tax Act did not apply to a municipal corporation, such as the City of Springdale, we called attention to the definition of “person” as contained in § 4(h) of the Use Tax Act (§ 84-3104(h), Ark. Stats.) as compared with the definition of “person” as found in § 2(a) of the Sales Tax Act (% 84-1902(a), Ark. Stats.). In the said Sales Tax Act the Legislature had specifically said that “. . . ‘person’ includes . . . this State, any County, City, Municipality, School District, or any other political sub-division of the State . . .”; whereas, in the Use Tax Act the definition of “person” did not contain any such language. "We therefore concluded that the Legislature, by defining “person” in the Sales Tax Act to include the State and its subdivisions, and in failing to likewise define “person” in the Use Tax Act, thereby necessarily intended to exclude the State and its sub-divisions from the Use Tax Act.

In Scurlock v. Springdale, supra, we furthermore quoted from U-Drive-’Em Service Co. v. Hardin, 205 Ark. 501, 169 S. W. 2d 584:

“ ‘It is the general rule that a tax cannot be imposed except by express words indicating that purpose. The intention of the Legislature is to be gathered from a consideration of the entire act, and where there is ambiguity or doubt it must be resolved in favor of the taxpayer, and against the taxing power.’ ”

Then in Scurlock v. Springdale we concluded our opinion with this statement:

“The argument that cities should not be allowed to make out of state purchases tax free, when they are compelled (under Act 386 of 1941) to pay a tax on purchases made within the state, is a matter which addresses itself, not to the judiciary, but to the legislative branch of our government.”

The opinion in Scurlock v. Springdale was rendered on December 20, 1954. Since that time there have been three regular sessions of the Legislature and several extraordinary sessions, yet there has been no amendment of the definition of the word “person” in the Use Tax Act. We must, therefore, conclude that our holding in Scurlock v. Springdale was in accord with the legislative intentions and desires. That holding, as aforesaid, points unalterably to our conclusion here: that in the light of all the facts the definition of “person” in the Use Tax Act is not broad enough to apply to the Highway Commission.

The decree of the chancery court is affirmed.

       The full style of the appellant, as contained in the record of this case, is “Office of Commissioner of Revenues and Arkansas State Revenue Department, J. Orville Cheney, Commissioner, E. E. McLees, Assistant Commissioner”. The full style of the appellee, as contained in the record, is “Arkansas State Highway Commission”. For convenience we will refer to the appellant as, “Revenue Commissioner”, and to the appellee as, “Highway Commission”.

       The Use Tax is officially called “The Arkansas Compensating Tax Act of 1949”. It is Act No. 487 of 1949, and, as amended, may be found in § 84-3101 et seq., Ark. Stats. The Sales Tax Act is officially called “The Arkansas Gross Receipts Act of 1941”. It is Act No. 386 of 1941, and, as amended, may be found in § 84-1901 et seq., Ark. Stats.


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    Waller v. Yarbrough.
    5-2115
    337 S. W. 2d 641
    Opinion delivered May 23, 1960.
    [Rehearing denied September 12, 1960]

      Wright, Harrison, Lindsey <& Upton, for appellant.

      Parker & Mobley, for appellee.
   George Rose Smith, J.

On the night of November 22, 1958, Noble Waller, who was then almost nineteen years old, was driving his father’s car in the city of Dardanelle. Shortly before midnight the youth ran a stop sign at an excessive speed and struck the appellees’ ear, inflicting personal injuries and property damage. The appellees brought suit against Noble Waller, alleging carelessness in his operation of the automobile, and also against his father, the appellant Eugene Waller, alleging that the elder Waller was negligent in permitting his son to drive “after having prior knowledge that his son habitually drove in a fast, reckless, and wanton manner.” The jury imposed liability upon both the father and the son, fixing the plaintiffs’ total damages at $10,-300. Eugene Waller alone has appealed, contending that there is no substantial evidence to show that he was negligent in entrusting his ear to his son. We are of the opinion that this contention must be sustained.

Before this accident Noble had been driving for at least two years, and probably somewhat longer than that. During that time he was never arrested for any traffic violation. The city marshal, called as a witness by the appellees, testified that he had closely observed young Waller’s driving for 32 months preceding the trial, that he had never seen the youth driving in a fast or careless manner, and that he had never had occasion to caution the boy. There is no substantive proof (disregarding some testimony admitted for impeachment purposes only) that Noble had ever been involved in a traffic accident before this one.

The appellees produced fourteen witnesses whose testimony was intended to indicate that young Waller was an incompetent driver. Much of this testimony related to conduct not inherently dangerous to others, such as proof that Noble would start off so rapidly that his wheels would spin or spurt gravel, that his tires often squealed as he turned a corner, and that he was inclined to stop too suddenly. Several witnesses, however, also expressed their belief that Noble Waller drove ‘ ‘ too fast, ’ ’ “pretty fast,” “at what I thought was too fast a speed,” “a little too fast,” “too fast to be in town,” and “pretty recklessly.” One witness, a schoolmate of Noble’s, described an occasion upon a trip to Russellville when Noble was “doing somewhere around ninety,” but otherwise the criticism of Noble’s driving consisted of generalized statements of opinion like those that we have mentioned.

In order for the appellees to make a case for the jury it was incumbent upon them to show not only that Noble Waller was an incompetent driver but also that his father knew or should have known that fact. It is not necessary to decide whether the proof sufficiently established Noble’s incompetence as a driver, for even if that fact be conceded the appellees failed to show that Eugene Waller had notice of his son’s driving habits. Since the family purpose doctrine is not recognized in Arkansas, the appellees had the burden of showing that Eugene Waller was at fault in allowing his son to use the car. Norton v. Hall, 149 Ark. 428, 232 S. W. 934, 19 A. L. R. 384; Richardson v. Donaldson, 220 Ark. 173, 246 S. W. 2d 551.

On the issue of the appellant’s awareness of his son’s faulty driving the appellees offered only one witness, W. W. Warren, a former city marshal who went out of office on December 31, 1956 — about two years before this accident. Warren testified that during his tenure as marshal he talked to Noble two or three times about his driving. “I just talked to him like I would to anyone else about his driving. He needed to slow down. ” Warren also testified that he discussed the matter at different times with Noble’s father. He does not relate what was said in his discussions with the elder Waller, but the jury might fairly have inferred that Warren warned the appellant that his son“ needed to slow down. ’ ’ There is no basis for an assumption that anything more than this was said.

We are unwilling to hold that Warren’s testimony established a prima facie case for the plaintiffs. The one affirmative fact shown is that the city marshal, at some time before the end of 1956, told Mr. Waller that his boy needed to slow down. At most Noble was then barely seventeen years old. His father continued to let him use the car for two years or more, and in that time Noble was not arrested nor involved in any sort of traffic accident. Mr. Waller says, and there is no testimony to the contrary, that he had no reports of any kind about his son’s driving, that Noble “was always pretty careful -when I was with him,5 ’ and that he never had any occasion to inquire about how his son drove. It seems to us that we should really have to adopt the family purpose rule in order to fix liability upon the appellant on the basis of the marshal’s mild warning some two years before this accident happened.

In addition to the proof that we have mentioned the plaintiffs offered to show that Noble Waller had the reputation of being a reckless and incompetent driver. The defendants’ objection to this proof of reputation was sustained, but under our decisions the evidence was admissible. Ozan Lbr. Co. v. McNeely, 214 Ark. 657, 217 S. W. 2d 341, 8 A. L. R. 2d 261; Ark. La. Lbr. Co. v. Causey, 228 Ark. 1130, 312 S. W. 2d 909. Inasmuch as the plaintiffs may be able to show by such evidence that the appellant had notice or knowledge of his son’s incompetency as a driver, the case cannot be said to have been fully developed and will therefore be remanded for a new trial.

Reversed.

McFaddin, J., dissents.


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    Reid v. Karoley.
    5-2118
    337 S. W. 2d 648
    Opinion delivered May 23, 1960.
    [Rehearing denied September 12, 1960]

      XJ. A. Gentry, for appellant.

      Richard W. Hobbs and B. W. Thomas, for appellees.
   Sam Robinson, Associate Justice.

This is the fourth time the parties hereto have been before this Court as the result of a series of controversies arising out of a contract executed by them on November 13, 1951. At that time the parties were joint owners of certain real and personal property located in Little Rock. The agreement required appellee to relinquish her interest in this property to appellant in consideration for which appellant agreed to pay appellee $250 per month for the remainder of her life or until she married. The contract further required that should appellant predecease appellee, then a payment by his estate to appellee would be made in the sum of $10,000. Pursuant to the agreement appellee conveyed her interest in said property to appellant and the $250 monthly payments were commenced. Thereafter the validity of the contract was raised by appellant in a suit brought for arrearages and we held the contract was valid. Karoley v. Reid, 223 Ark. 737, 269 S. W. 2d 322. Subsequently appellee was awarded a judgment totaling $8,500, but the lower court refused to grant appellee specific performance under the contract. This latter point was appealed and we held that since the body of the complaint did not state a cause of action for specific performance, such relief could not be granted. Karoley v. Reid, 226 Ark. 959, 295 S. W. 2d 767.

In the meantime appellant had taken voluntary bankruptcy on September 14, 1955, and the above judgment and all future payments to become due under the contract were scheduled as a part of his liabilities. Appellee filed a claim in the bankruptcy proceeding for the amount of the judgment, but did not include in her claim any future payments to become due under the contract. Appellant was discharged in bankruptcy on November 13, 1956.

Appellee then filed the present suit in chancery court for further arrearages which had become due under the contract dating from appellant’s adjudication as a bankrupt, and the lower court rendered appellee a judgment on the pleadings. This decision was reversed and the cause remanded for further proceedings. Reid v. Karoley, 229 Ark. 90, 313 S. W. 2d 381. Appellee then filed an amended complaint. The case was tried on its merits and a judgment was rendered for appellee in the amount of $12,000. The present appeal is from that judgment.

Appellant contends that the chancery court did not have jurisdiction because appellee, has an adequate remedy at law. The record reflects that the first real objection to the jurisdiction of the court on this ground was made orally immediately preceding the taking of testimony on the merits when appellant’s counsel asked, that the cause be transferred to circuit court. Appellant argues that the question of jurisdiction was raised prior to this time by the filing of a demurrer, but we have held a number of times that the proper method of procedure in this type situation is by a motion to transfer and not by demurrer. The Church of God in Christ v. The Bank of Malvern, 212 Ark. 971, 208 S. W. 2d 770; Higginbotham v. Harper, 206 Ark. 210, 174 S. W. 2d 668.

Further, it is well established that where a defendant has answered and not reserved any objection to the jurisdiction of the court on the ground that there is an adequate remedy at law, he cannot insist on it at the hearing unless the court is wholly incompetent to grant the relief sought. Cockrell v. Warner, 14 Ark. 345; Trapnall, Ex’r., etc., v. Hill, et al, 31 Ark. 345.

The remainder of appellant’s arguments for reversal are discussed together. Under the provisions of the U. S. Code a discharge in bankruptcy releases a bankrupt from all his provable debts, with some exceptions not applicable here. 11 U. S. C. § 35. Appellant contends that appellee’s claim for future payments under the contract was provable; that it was scheduled by appellant in the bankruptcy action, and was therefore discharged.

Payments due under the contract can be terminated by either death of the appellee or her marriage; the first contingency can be calculated by reference to tables on life expectancy, yet it would be impossible to ascertain with any degree of certainty when the second or alternative contingency might occur. An analogous situation was presented in Dunbar v. Dunbar, 190 U. S. 340, 23 S. Ct. 757, 47 L. Ed. 1084, where the court said: “Even though it may be that an annuity dependent upon life is a contingent demand within the meaning of the bankruptcy act of 1898, . . . yet this contract, so far as regards the support of the wife, is not dependent upon life alone, but is to cease in case the wife remarries. Such a contingency is not one which, in our opinion, is within the purview of the act, because of the innate difficulty, if not impossibility, of estimating or valuing the particular contingency of widowhood. A simple annuity which is to terminate upon the death of a particular person may be valued by reference to the mortality tables. . . . But how can any calculation be made in regard to the continuance of widowhood when there are no tables and no statistics by which to calculate such contingency? How can a valuation of a probable continuance of widowhood be made? "Who can say what the probability of remarrying is in regard to any particular widow? We know what some of the factors might be in the question: inclination, age, health, property, attractiveness, children. These would, at least, enter into the question as to the probability of continuance of widowhood, and yet there are no statistics which can be gathered which would tend in the slightest degree to aid in the solving of the question.”

The appellant further urges that whether this claim was provable can only be decided by the court in the bankruptcy action and therefore the chancery court could not delve into the problem. Appellant contends that since appellee failed to file a claim for the future payments under the contract in the bankruptcy proceeding, and have that claim ruled on there, the question is now res judicata. We do not agree. In order to properly adjudicate the rights of the parties, the court in which the action is pending must look to the characteristics of the claim upon which suit is brought to determine whether the nature of the debt is such that would make it dischargeable in bankruptcy. Raia v. Goldberg, 33 Ala. App. 435, 34 So. 2d 620, and Dick v. Dick, 11 N. J. Super. 533, 78 A. 2d 580. As a matter of fact, a footnote to the order of discharge in the bankruptcy proceeding contains the following language: ‘ ‘ The Court is not obligated and therefore does not rule as to the question whether future payments (after date of adjudication) due on the contract signed October, 1951, between the bankrupt and Mary Karoley, comes within the discharge granted herein.” We hold that the chancery court was correct in taking up the question of whether the claim for future payments under the terms of the contract was the type of debt which could be proved in appellant’s proceeding in bankruptcy.

Under the authority of the Dunbar case cited above, we find the claim to be contingent and not provable within the requirements of the Bankruptcy Act, the debt was therefore not discharged, and the decree must be affirmed.