author: John A. Fogleman, Justice.

text:
    Mark's Sheet Metal, Inc. v. Republic Mtg. Co., Inc.
    5-4187
    414 S. W. 2d 106
    Opinion delivered May 1, 1967

      Lofton, Herrod & Cole; By: E, H. Herrod, for appellant.

      Wright, Lindsey & Jennings; By: Isaac A. Scott Jr., for appellee.
   John A. Fogleman, Justice.

This appeal presents the question of the priority of the lien of a construction money mortgage to a mechanic’s and materialman’s lien. Appellant, a heating and air conditioning contractor, contends that its lien for labor and materials' furnished for the heating and air conditioning systém of a dwelling Jiouse has priority over, the lien of a recorded construction money mortgage containing the language requisite to its purpose under'which appellee adyanced money to a developer, Pouneey Construction Company, for the construction of the house. Appellant claims priority under Ark. Stat. Ann. §§ 51-601, 51-604, 51-605, and 51-607 (1947), all being sections of Aet 146 of 1895. The mortgage was recorded on February 5, 1965. The only work done on the premises by appellant prior to this date was an inspection of the premises on January 24th by Mark, Partin, its President and General Manager, and the preparation of the plans for heating and air conditioning and a “Manual J worksheet” delivered to the owner on January 25th. Appellant testified that his “on-site” inspection on January 24th consisted of the determination of the direction the house would face by a compass reading and the location of the center of the house on the lot. This latter was in order to determine the proper location of the unit by use of a tape measure and a wooden peg. The peg was driven into the ground to aid in the use of the tape. The whole inspection and measurement took about thirty minutes. Partin admitted that he probably could have determined the direction the house would face from a set of plans given him by Pouneey. He made mental notes of his inspection and later prepared the documents for delivery to Pouneey with an estimate of cost. He says that he and Pouneey entered into a verbal contract at the time of the delivery of these documents. He claims that there was an agreement that appellant would be paid for what Partin had done if FHA approval was not obtained. Partin testified that appellant did not order the equipment to be. used but. started making the necessary fittings. The time work was started on these fittings is not definitely stated. There is no evidence that anything* else was done by appellant or the builder before the date the mortgage was recorded, which, of course, was after.FHA approval.

An employee of appellee made a physical examination of the lot on the date the mortgage was recorded. He found no visible construction materials, no stakes or string along the ground on'the lot, nor any other evidence of anything done to prepare the lot for construction. He did not walk to the back side of the lot.. He took a photograph to record the appearance of the lot as to improvement or preparation therefor. He admitted that there could have been a one-inch stake in the ground in the grass on the lot which he would not have seen. We find that the trial court correctly held that the construction money mortgage had priority.

The statutory lien relates only to work done or materials or machinery , furnished under or by virtue of any contract with the owner. (Ark. Stat. Ann. § 51-601) Even under appellant’s contention there was ho contract with Pouncey until after the estimate of cost, plans and worksheet were submitted one day after the lot measurement and inspection on which he relies. Even though a lien perfected in the statutory way might relate back to the time the lienholder began to furnish his services or materials, the services and materials must have been furnished under the contract. The lien is effective only when the contract is made with the owner. Hawkins v. Faubel, 182 Ark. 304, 31 S. W. 2d 401. Since all work done after the. contract was entered into with Pouncey was subsequent to the recording of the construction money mortgage, the lien would not be effective until after the recording. Thus, the construction money mortgage would be a prior incumbrance and entitled to priority under the plain language of Ark. Stat. Ann. § 51-605. Cases cited by appellant in support of its contention that its lien antedates that of appellee are based on actual furnishing of supplies under contract with the owner or the doing of substantial visible construction work on the premises to he improved before the mortgage in question was recorded. See, e.g., Cook v. Moore, 152 Ark. 590, 239 S. W. 750 ; Georgia State Savings Asso. v. Marrs, 178 Ark. 18, 9 S. W. 2d 785 ; Ferguson Lbr. Co. v. Scriber, 162 Ark. 349, 258 S. W. 353.

But appellant contends that it has priority under § 51-607. According to the construction given that section by this court, appellant’s lien would relate hack to the commencement of the building so that it would be prior to a construction money mortgage recorded after any work had been done or materials furnished on the lot to be improved under contract with the owner by anyone entitled to such a lien. Planters Lumber Company v. Jack Collier East Co., 234 Ark. 1091, 356 S. W. 2d 631. But this does not improve the position of appellant for we are unable to find any evidence of such a commencement of the building prior to the recording of appellee’s mortgage.

Appellant earnestly contends' that “commencement of the building” can be at some time earlier than the placing of materials on the land to be improved and that this preliminary work by appellant was such a commencement. We hold that the work done by appellant' was not the type of work which would qualify as. “commencement of the building.” We find no decision of our court on this point, nor has appellant cited any, but in all of the Arkansas decisions that we have found under which the materialman or mechanic was found to have priority, some material had been placed on or near the property or some work had been done thereon which would be readily visible so as to make it obvious that improvements on the property were being commenced or were underway. The preliminary inspection and planning of appellant could not constitute work upon the building on material furnished therefor. The fabrication of fittings could not have constituted commencement of the building, as we construe § 51-607, and were not “furnished” at that time. The very purpose of that section is to fix priorities in cases such as this. Consequently, there must be some means for a prospective lender to determine whether there are prior liens. Since there is no requirement that mechanic’s and materialman’s liens be' recorded, the only possible way to make this determination is by visual .inspection of the premises. The “commencement of such buildings and improvements” as used in the section in question, then, means some visible or manifest action on the premises to be improved, making it apparent that the building is going up. or other improvement is to be made. 36 Am. Jur. 112, Mechanic’s Liens, § 167 ; 57 C. J. S. 732, Mechanic’s Liens, § 179. This must be done with the intention and purpose then formed to continue the building to completion. Almost without exception the courts of other states have adopted this meaning of these words in similar statutes. See Rupp v. Earl H. Cline & Sons, 230 Md. 573, 188 A. 2d 146, 1 ALR 3d 815, reviewing decisions of the Maryland court and referring to cases in accord from other jurisdictions. See, also, annotation following on page 822 at pages 825 to 828.

The decree of the lower court, is affirmed.

       Apparently this worksheet was for submission to the FHA as a necessary requisite for a commitment to insure a permanent loan on the house.

      There is testimony that would tend to show that there was no contract until FHA approval had been given somewhat later, but, in view of our holding, the difference in dates is of no significance.


source: Caselaw Access Project

author: J. Feed JoNbs, Justice.

license: Public Domain

text:
    James Battle Oldham v. State
    5263
    414 S. W. 2d 610
    Opinion delivered May 1, 1967
    [Rehearing denied June 5, 1907.]

      James n. Van Dover and F. N. Burke Jr., for appellant.

      Joe'Purcell, Attorney General; Don Langston, Asst. Atty. General, for appellee.
   J. Feed JoNbs, Justice.

On October 22, 1965, appellant entered pleas of guilty to two counts of grand larceny and two counts of burglary in the Lee County Circuit Court and was sentenced to five years, in the penitentiary on each count of burglary and four years on each count of grand larceny. One of the larceny counts and one of the burglary counts grew out of the theft of a saddle, and the other two counts grew out of the theft of a pistol. Each of these items, was taken from a different place in Lee County. The sentences were cumula^ tive and concurrent and actually amounted to one sentence of nine years on all counts.

Appellant was committed to the penitentiary and on April 4, 1966, he filed a petition in the Lee County Circuit Court for a writ of habeas corpus alleging that his constitutional rights had been violated by failure of the trial court to provide him with counsel. Hearing was had by the trial court on appellant’s, petition and the writ was denied. Appellant has appealed to this, court and relies. on the following*, point for reversal:

“Point 1. The Court erred in failing to grant the appellant a new trial for the reason there is no proof in the record that appellant was advised of his. constitutional right to counsel and that he knowingly waived his right.”

Appellant was first arrested in Memphis, Tennessee, arid charged with'drunkenness when he was found asleep in his automobile. The arresting officers found a saddle, and a,pistol in the, trunk of appellant’s automobile, and apparently the saddle and pistol were identified as objects taken from burglarized buildings iri Lee County, Arkarisas^ and the appellant was charged with burglary and grand larceny as above set out,. Appellant waived extradition from Tennessee to Arkansas, entered pleas of guilty on arraignment in Municipal Court, as well as. in Circuit Court where his sentences to the penitentiary were imposed. He now contends in. support of his petition for habeas corpus, that the saddle and pistol were found in his possession through an unlawful search and seizure conducted by the police officers in Memphis. Having entered pleas of guilty, the record remains silent as to the evidence upon which the state based its information and upon which the state would have relied at the trial of the cases. Appellant testified at the hearing on his petition as follows:

# # #
“Q. That is. the gun and saddle you were charged with stealing in Lee County?
A. Yes, sir.
Q. Do you know where you were accused of stealing them from?
A. Yes sir, from R. K. Monroe and Freeland Nash.
Q. Were they stolen from the same place?
A. No, sir.
Q. One, charge referred to the taking of the gun and the other.the taking of the saddle?
A. Yes, sir. ”

Appellant argues, however, that his constitutional rights were violated in that there is. no proof in the record that he was advised of his constitutional right to counsel and that he knowingly waived that right.

There is considerable conflict in the testimony as to whether the appellant,was advised that he had a right to the assistance of counsel in his. defense. Appellant testified that he knew the nature of the charges against him and.the penalty involved. He testified that he did not request the assistance of counsel and that to the best of his knowledge, he was not offered counsel or asked by the court if he desired counsel at the time he entered his plea of guilty.

The trial judge examined the appellant at some length on this, point, and then the trial judge stated, in response to an inquiry by appellant’s counsel, as follows:

# # #
“I don’t remember every word this court said to him, but I do know that for the past year or eighteen months we ask every defendant if he has an attorney or if he wants an attorney and if he is going to plead guilty we appoint somebody to confer with him before he enters his plea.”

The trial court is to be commended for adopting this procedure and if a record could be made of such proceedings., it would be of considerable value to the trial court in properly disposing of petitions of this nature and would be of considerable value to this court on appeal. Such record would avoid the necessity of a trial judge matching his memory with that of a defendant as. to events that transpired in a trial over which he presided.

"Whether the appellant in this case was or was not advised that he was. entitled to the assistance of counsel, we conclude from a study of the entire record before us, that the appellant had full knowledge of his right to counsel and thát he intelligently waived it.

Appellant testified at the hearings on his petition that he prepared the petition and had no assistance in the preparation of his petition and the other pleadings filed by him in this case. From a very cursory examination of the pleadings prepared by . the appellant in this case, including the citations of authority in support of his petition for the writ of habeas corpus, we . are convinced that appellant certainly must have known that he was entitled to the assistance of counsel whether- he was so advised by the trial court at his arraignment or not.

The record reveals that after counsel was appointed by the trial' court to assist appellant in this ease, the appellant on November 20, 1966, wrote to the attorney as follows:

* # #
‘‘If possible I. would like for you to visit me here as there [are] some points to this case which I feel. should be gone over with you. I do request a copy of all legal papers to be filed in this appeal. I would like a copy of the transcript, Bill of informations, "Warrants, and Commitments on this casé. I also want a copy of the appeal brief, before it is. filed with the Supreme Court. I do not want any unnecessary delays in this appeal.-1 would like very much for you to work with me on this matter, which I’m sure you are capable of doing. So that this appeal may be filed with the Supreme Court just as soon as possible. Thanking in advance for any. consideration you may give me on this.”

And on December 3, 1966, he wrote to his attorney as follows.:

“I am writing you in regards to a letter I wrote you on the 19th day of November, as you have not seen fit to answer this letter which was asking you to let me know what action you had. taken on my appeal. As you have not taken time to answer this, letter. I know you must feel this ease to be a burden upon you. As I feel sure that you know and I know you did not want this case when you were appointed for the writ of habeas, corpus hearing on May 31, 1966. As you made known at that time. I have no choice but tó ask you to ask the Court to release you from this case. For I do not feel that you can or will properly represent me in this appeal. If you do not see fit to do this. Then I will ask the court to do so myself. ’ ’

In the case of Swagger v. State, 227 Ark. 45, 296 S. W. 2d 204, where a nineteen year old uneducated boy who had never appeared in court before was involved, this court.said:

“The determination of whether there has been an intelligent waiver of the right to counsel must depend, in each case, upon the particular facts and circumstances surrounding that case, including the background,- experience, and conduct of the accused.”

At the hearing before the trial court on the petition, appellant testified in answer to questions, as fol- ' lows:

* * #
“Q. Will you tell the Court why you entered a plea of guilty?
A. Well, it all breaks down to one thing, or things, which I won’t bring out now.
Q. I want you to bring out everything. You are accusing this Court of mistreating you and I want you to bring out everything.
A. I think I done what anybody would do under the circumstances. It was more or less' my understanding that if I would plead guilty I would receive my sentence and could serve it and be on my way, as to where if I did not enter a plea of guilty I could receive a longer sentence. Another thing I was in a strange State without help, therefore I did enter a plea of guilty.
Q. Do you mean you were willing to enter a plea of guilty and go down there and serve a sentence when you were not guilty?
A. Under the circumstances.
Q. Under what circumstances?
A. That I do not want to bring in.”

The appellant in the case at bar is 41 years of age. He admitted he had served at least three prior sentences on pleas of guilty. Appellant’s record with the United States Department of Justice, appearing as a part of. the record on this appeal reveals considerable experience as a defendant in criminal law cases. This record reveals that appellant was sentenced in Indiana on a fraud count; that he was sentenced in Kentucky, as well as Indiana, for violation of the Dyer Act; that he was sentenced in Indiana and in Georgia for transporting a stolen automobile; that he was sentenced in Mississippi under the Dyer Act; that he was sentenced in Indiana for transporting a stolen automobile; that he was sentenced on a similar charge in Georgia; that he was also sentenced in Georgia for theft; that he was sentenced in Tennessee on felonious use of an automobile; that he was sentenced to five years in Florida for armed robbery, and on August 17, 1965, he was fined $26.00 in Memphis, Tennessee for being drunk in an automobile.

From our examination of the entire record in this case, we are convinced that appellant knew of his constitutional rights to have the assistance of counsel, and that he intelligently waived his right to counsel, when he entered his pleas of guilty in this case. We are of the opinion that appellant’s constitutional rights were not violated by. the failure of the trial court to appoint counsel for the appellant when no request for counsel was made by appellant, and that the trial court was correct in delxyihg the petition for á writ of habeas corpus.

The judgmént of! the trial court is affirmed.

Affirmed.


text:
    Ruthie Mae Brooks v. Robert E. Wage et al
    5-4179
    414 S. W. 2d 100
    Opinion delivered May 1, 1967

      Howell, Price, & Worsham, for appellant.

      McMillen, Teague, Bramhall & Davis; By: Thomas M. Bramhall, for appellee.
   J. Fred Jones, Justice.

This is a workmen’s compensation case involving' the question of whether or not the injury and resulting death of an employee grew out of and occurred within the scope of his employment. The Workmen’s Compensation Commission held that it did. The Circuit Court on appeal reversed the Commission and we agree with the Circuit Court.

The claim was filed by Ruthie Mae Brooks, the widow of a deceased employee, Fred W. Brooks. The Commission rendered a thorough and comprehensive opinion in this case, but we do not agree with the legal conclusion reached by the Commission on the facts of this case. We conclude that there was no substantial competent evidence to support the findings and award of the Commission.

At the time of his injury and death, Fred W. Brooks had been employed for a number of years by Robert E. Wage in the general contracting business. He had worked on jobs all over Little Rock, including two or three jobs in the Broadmoor Addition. The decedent drove to and from work in his own pickup truck. He worked by the hour and his regular work day started at 8:00 a.m. and stopped at 4:30 p.m. The decedent lived in the Tie Plant area on the east side of North Little Rock, and for two days prior to February 15, 1965, he worked on his job in the Brookwood Addition to Little Rock, located off the new Benton Highway near the city limits in the extreme southwest section of Little Rock.

Early on Monday morning, February 15, the respondent employer called decedent at home by telephone and requested Mm to stop by Long-Bell Lumber Company, 4501 Asher Avenue,, and pick up some reinforcing rods and bring them on out to the job. On tMs point the employer testified as follows:

“Q. What were your instructions to him at that time?
A. I told him to come by Long-Bell Lumber Company and pick up some reinforcing rods and to go to No. 8 Rosewood, which is in the Brookwood Addition out behind Meadowcliff.”

and at page ten of the transcript. Mr. Wage testified as follows:

“Q. Mr. Wage, what hours did Mr. Brooks normally work?
A. From eight to four-thirty.
Q Now, would you have had any reason to expect him to reach Long-Bell Lumber Company prior to eight o’clock?
A. No.
Q. Would you have wanted him to be on the job out there in — was it Brookfield?
A. Um-hum (nods affirmatively). No. Brook-wood.
Q. By eight o ’clock, or would it have been satisfactory to you if he had reached Long-Bell by eight o’clock?
A. No, his work time started at eight o’clock and I had no call on Mm before eight o’clock or after four-thirty.
Q. I see.
A. Unless we agreed to it.”

On the morning of February 15, the decedent left home about 7:00 a.m.; picked up twó óf his neighbor women who worked in Little Rock, drove south across the bridge from North Little Rock to Little Rock, then drove west out No. 10 Highway through the extreme north and northwest side of Little Rock, turned south onto Monroe Street from Highway 10 and delivered the neighbor women to the place of their employment at 1701 North Monroe Street. He then drove north on'Monroe Street toward No. 10 Highway.

Decedent was killed in a collision at the- intersection of Broadmoor and Berkshire Drives in the Broádmoor Addition lying west of University Avenue in the extreme west or southwest section of Little Rock, and several blocks northwest of Long-Bell Lumber Company, and several more blocks north of No. 8 Rosewood in the Brookwóod Addition. The collision occurred about 7:30 or 7:35 a.m. while the deceased was. driving in a northwesterly direction on Broadmoor Drive. He was. traveling in a course that would have led him into Boyle Park or the. intersection with west 12th Street. He had already crossed 12th Street in coining from North Monroe and was traveling in the opposite direction from Long-Beli Lumber Company, where he was not expected to be for another twenty-five or thirty minutes, when the collision' occurred

There seems to be no question but that an employee is not within the course of his employmeiit under the Arkansas Workmen’s Compensation Act while traveliiig to or from his job before or after regular work hours unless he falls within one of several generally recognized exceptions to the “going and coming” rule.

This court has recognized various exceptions to the going and coming rule, such as where an emplpyee has reached a place so close to the employer’s premises as to be considered on a part of the employer’s premises.

Bales v. Service Club, 208 Ark. 692, 187 S. W. 2d 321 ; where the employer furnishes transportation to and from the place of employment. Hunter v. Summerville, 205 Ark. 463, 169 S. W. 2d 579, in the case of traveling salesmen, where traveling is an integral part of the employment. Frank Lyon Co. v. Oates, 225 Ark. 682, 284 S. W. 2d 637, also where the employer agrees to furnish transportation, Hunter v. Summerville, 205 Ark. 463, 169 S. W. 2d. 579.

Another exception, and the one argued in this case, is where the employee is on a special mission for the employer before or after regular working hours. Arkansas, as well as most states, recognizes, this exception, but the gray area in this exception is broadened when the employee deviates from his route in performing the special service for his employer in order to perform special service for himself or for a third party.

To cite and attempt to distinguish the cases in this area of exception to the “going and coming” rule, would enlarge this opinion to text book chapter proportions, and there are already text book chapters on the subject; 8 Schneider, Workmen’s Compensation, chapter 33, § 1733, and volume 7, § 1680 ; 1 Larson’s Law on Workmen’s. Compensation, § 19.50.

The New York case of Mack’s Dependent v. Gray, 167 N. E. 181 (N. Y. 1929) cited by appellant contains facts somewhat different from the facts in the case at bar. It primarily involved the “dual purpose doctrine,” but the opinion in that case by Chief Justice Cardozo presents sound reasoning on the “going and coming” rule and its exceptions, as well as the “dual purpose” doctrine, and has been followed by this court.

The deceased employee, Marts, made his home and place of business in Clifton Springs, New' York. On the day in question, his wife was visiting in Shortsville, where Marks was to pick his wife up at the end of the day. The employer, learning of the planned trip, asked Marks to take his tools and fix some faucets in a house in Shortsville. The job was of a small nature. There would have been no need for a special trip as no profit could have been derived. Marks did not use company transportation, hut used his. own automobile. He would be paid the normal wage, however.

Marks was killed enroute to Shortsville. The journey was not made at the request of his employer or for employer’s work. The trip was made to fulfill his promise to pick up his wife.

In the Mark’s case, Chief Justice Cardozo states the issue as follows:

“Whether the injury was one ‘arising out of and in the course of the employment’ is the question to be answered.”

In arriving at the decision in that case, Chief Judge Cardozo speaking for the New York Court of Appeals, says:

“Unquestionably injury through collision is a risk of travel on a highway. What concerns us here is whether the risks of travel are also risks of the employment; In that view, the decisive test must be whether it is the employment or something else that has sent the traveler forth upon the journey or brought exposure to its perils.
* # *
“In such circumstances we think the perils of the highway were unrelated to the service. We do not say that service to the employer must be the . sole cause of the journey, but at least it must be the concurrent cause. To establish liability, the inference must be permissible that the trip would have been made though the private errand had been cancelled. We cannot draw that inference from the record now before us. No, on the contrary, the evidence is that a special trip would have been refused since the pay would have been inadequate. The test in brief is this: If the work of the employee creates the necessity for travel, he is in the course of his employment, though he is serving at the same time some purpose of his own. If, however, the work has had no part in creating the necessity for travel, if the journey would, have gone forward though the business errand had been dropped and would have been can-celled- upon failure of the private purpose, though the business errand was undone, the travel is then personal, and personal the risk.”

Perhaps our own case of Martin v. Lavender Radio & Supply, Inc., 228 Ark. 85, 305 S. W. 2d 845 (1957), also cited by appellant, is more in point with the case now before us.

In that case, Martin, the employee, was employed as a purchasing ag'ent, and one of his duties consisted of obtaining the mail from the post office, by either stopping himself while on his way to work, or sending another employee, at Martin’s discretion. In going to work Martin drove on a certain street, he turned left from this street when going directly to work, but traveled further on and turned right when going by the post office. Unless he was tardy, Martin would usually collect the mail himself before going to work. On the morning in question, Martin had traveled some three-fifths of the distance to work when he was injured in an automobile collision. If going to work Martin would have turned left, if going to the post office he would have continued some distance further before turning right. The collision occurred before he reached the first turning point.

The Commission awarded compensation, the Circuit Court affirmed the award of the Commission. In reversing the Circuit Court judgment, this court recognized the exception to the “going and coming” rule, when the employee has a duty to perform for the employer while enroute home after regular working hours, and then this court said:

“There is no , reason, of course, why the converse would not he true, namely, if the employee has a duty to perform for the employer while enroute to the place of employment . .. this court apparently has not previously had the opportunity of applying this concept of laws to facts arising within our state.”

This court then cites with approval from Mark’s Dependents v. Gray, supra, and says:

“Let it he made clear that we are not saying that an employee, on his way to work, must deviate from the normal route to perform some errand before he would he acting in the course of his employment. For instance, suppose that the post office had been located at a point that appellant would reach before arriving at 7th and Ash — on the same street that Martin traveled each day in going to the office. In such case, Martin would be acting within the scope of his employment when he drove up and stopped at the post office — and not before. Stopping would be -a deviation from the normal procedure of simply traveling to work.
‘ ‘ The reasoning set forth by Justice Cardozo seems to us to be entirely logical and persuasive, and worthy of adoption. This, then, is the rule that governs this case. ‘The decisive test must be whether it is the employment or something else that has sent the traveler forth upon the journey or brought exposure to its perils. *** We do not say that service to the employer must be the sole cause of the journey, hut at least it must he a concurrent cause. *** ’ and sufficient within itself to occasion the journey.” (emphasis supplied).

Workmen’s compensation insurance is not life insurance. The burden rests on the claimant to prove that the accident grew out of and occurred within the course of employment, and while the Commission is obligated to resolve any doubt in favor of the injured employee, and the Circuit Court and this, court are obligated to affirm the Commission on appeal if there is any substantial evidence to sustain the finding of the Commission, Auto Salvage Co. v. Rogers, 232 Ark. 1013, 342 S. W. 2d 85 ; the doubt resolved by the Commission must be a reasonable doubt and substantial evidence must be competent evidence and it must be of a substantial nature and not based on surmise and conjecture.

In Martin v. Lavender, the employee had not reached a point where his additional duties would have taken him out of the usual “going and coming” rule and placed him within the exception .and within the course of his employment.

In the case at bar, even if we assumed that the decedent was placed within the course of his employment upon the receipt of the phone call to go by Long-Bell, there could be little doubt that he was outside the scope of his employment while traveling on ap entirely different route and mission, and in a different direction from his home in North Little Rock through the north side of Little Rock to discharge his passengers on North Monroe Street. There would have been no doubt at all that he would not have been within the scope of his employment had the employer not asked him to go by Long-Bell and he had been on the way from his home to his regular job site off the new Benton Highway when the accident occurred, or if his. employer had simply told him “I want you to work at the Long-Bell Lumber Company today.” Neither would there have been much question but that Brooks would’ have been within the course of his emplpyment under the facts of this, case had he gone directly from his home to Long-Bell,* and the accident had occurred after he turned off his regular course to work in order to go to Long-Bell, even though he was not expected to go to Long-Bell until the store opened at 8:00 a.m., Martin v. Lavender, supra.

So, the main question here is whether or not the employee was within the “going and coming” rule, or was within the exception at the time of his injury. If he was within the rule, that is, if he was simply going to work, when did the exception apply, if it did? If he was at any time within the exception to the general rule and departed from it, when did he re-enter the exception and what was his status at the time of his injury?

The deceased’s employer did not know he was taking women to work on North Monroe Street, however, that was none of the employer’s concern because the employer had “no call on him” before 8:00 a.m. From the record before us no one knows why the deceased was in the Broadmoor Addition on the west side of Little Bock, but that is where he was when the accident occurred and he was not traveling toward Long-Bell at 4501 Asher Avenue, nor was he traveling toward his regular work place off the new Benton Highway. He was traveling in the opposite direction from both places. Perhaps he had lost his way to Long-Bell, as well as to his regular job site. But perhaps he had thought of another errand he wished to perform. Perhaps he had forgotten to tell or ask his passengers something and was returning to North Monroe Street. Perhaps he had even decided not to work that day, all of these “perhapses” are pure conjecture, but one of them is as logical as any other and neither constitutes evidence of any degree whatsoever.

A mere request or order from an employer that a service be' performed by the employee while going to the regalar place of employment before the work day begins., does not automatically and per se, place the employee within the course of bis employment. The employee must , at least engage in the course of carrying out the assignment’, or returning from having done so, before he can he said to be within the course of his employment; To hold otherwise would make it too easy to carry compensation coverage to the scene of an accident, and would convert the “going and comingrule into the exception and unduly shift the burden of proof in compensation cases.

In the case of Johnson v. Clark, 230 Ark. 275, 322 S. W. 2d 72, at page 279 of the state report, this court said:

“The coming and going rulé is an affirmative one in the sense that the employee-has the burden of showing that it does not apply, for otherwise any injury occurring between his departure from his home and his return would presumptively arise out of and in the course of his employment.”

Had the deceased been injured on his way to North Monroe Street, in the case at bar, the evidence would not be substantial that he was on his way to Long-Bell, and'to have assumed he was lost would not have supplied substantial evidence.' There is no question but that the deceased was on a -mission of his own in going to North Monroe Street rather than to Long-Bell on Asher Avenue, and it is just as logical- to assume that he was not lost.and was still on a- mission of his own, as it would be to assume that he was lost and trying to go to Long-Bell when he was injured while traveling northwest in Broadmoor.

A more specific question here, is whether or not the duties of the decedent’s employment exposed him to the hazards he encountered at the place where he was injured, and we conclude that there is no substantial evidence that it did. We have not overlooked the “dual purpose” doctrine in arriving at our conclusion in this case. We conclude that if the deceased had a dual purpose in traveling northwest in Broadmoor at the time of the accident, going by Long-Bell Lumber Company was not one of them. The only evidence in the record that the decedent was on his way to Long-Bell when the accident occurred, was the evidence that his employer told Mm to go there and his own statement that he was. going to do so.

The judgment of the trial court is affirmed.

Affirmed.

George Rose Smith, J., dissents.


author: Lyle .BrowN, Justice.

text:
    Marvin Clark, Guardian of the Estate of Thomas Harvey Cage, a minor v. Arkansas Democrat Company
    5-1440
    413 S. W. 2d 629
    [Rehearing denied May 1,. 1967.]
    [Original opinion delivered March 13, 1967; page 133.]

      Ben .D. Lindsey and Spencer & Spencer; By: Don Gillaspie, for appellant.

      Robert G. Compton and Austin McCasHll, for ap-pellee.
   Lyle .BrowN, Justice.

The original opinion contains this language: “Under the holding in Terry Dairy, and reiterated in Cox, this case should be reversed, with directions to the trial court to ascertain the damages.” This phraseology could well be interpreted to mean that on retrial the only question to. be submitted to the jury is damages. This interpretation does not comport with our case law. We have a long line of cases which hold that on remand for trial of a law case it is tried de novo.

In the early pase of Harrison v. Trader and wife 29 Ark. 85 (1874), this court said, quoting with approval from an Alabama case:

“When a judgment is reversed, the rights of the parties are immediately restored to the same condition in which they were before its rendition; and the judgment is said to be mere waste paper. ’ ’

This holding was approved in Holt v. Gregory, et al, 222 Ark. 610, 260 S. W. 2d 459 (1953). Also, see Manzo v. Boulet, 220 Ark. 106, 246 S. W. 2d 126 (1952) ; Martin v. Street Improvement District No. 349, 180 Ark. 298, 21 S. W. 2d 430 (1929) ; and Westinghouse Credit Corp. v. First National Bank of Green Forest, et al, 241 Ark. 287, 407 S. W. 2d 388 (1966).

Rehearing denied.


author: Carleton Harris, Chief Justice.

text:
    Wilma Wells Morgan v. Harold M. Wells, Oglee McDole, Lenora McDole & National Old Line Insurance Company
    4151
    415 S. W. 2d 323
    Opinion delivered May 8, 1967

      Douglas Bradley and Penioo & Perneo, for appellant.

      W. B. Howard and Jack Segars, for appellees.
   Carleton Harris, Chief Justice.

Appellant, Wilma Wells Morgan, was granted a divorce from appellee, Harold M. Wells, on October 12, 1962. During the marriage, these parties acquired approximately 2% acres of land in Craighead County, a half interest in a 120-acre farm in Greene County, and equity in a residence in Jonesboro, all of these properties being held as estates by the entirety. However, only the Greene County farm is involved in this appeal. The other half interest in the farm is owned by appellees, Oglee McDole and Lenora McDole, his wife, Lenora being a sister of appellee Wells. In March, 1962, appellee retained an attorney for the purpose of commencing a divorce action against appellant, and such a suit was filed. Mrs. Wells, in the office of her husband’s attorney, executed an entry of appearance and the parties entered into a written sepa-, ration agreement. However, Wells dismissed his suit, and they resumed the marital relationship. Thereafter, they purchased and made a down payment on the Jones-bpro property, mentioned above, and resided thereon until a subsequent separation in September, 1962, when Mrs. Wells instituted suit for divorce. This, suit was filed by Mr. John States, Mrs. Wells’ attorney. Asher attorney, Mr. States prepared a Waiver and Entry of Appearance, for Mr. Wells’ signature. As to property, the waiver provides:

“For and in consideration of this waiver it is agreed that the defendant Harold Wells is to pay to the plaintiff Wilma Wells child support in the sum of $80.00 each month and this is in lieu of any other property rights.
“It is agreed that the defendant is to set aside the home located at 1407 Cole Street in the City of Jonesboro as the sole property of the plaintiff herein and that she has agreed to meet monthly payments falling due hereafter. Plaintiff makes no claims against any other real estate other than the home and personal property necessary to maintain the home consisting of household goods located therein as the property of the plaintiff herein. ’ ’

Wells then took the waiver to his own attorney, Mr. Joe Boone. Boone called States, and inquired particularly as to which party would get the Greene County farm, and States advised that his client, Mrs. Wells, was not interested in the farm, and did not want any part of it. Wells then executed the waiver, and thereafter, on October 12, Mrs. Wells was granted a divorce. The decree recites that the divorce was rendered upon the complaint, the Waiver and Entry of Appearance executed by appellee, the oral testimony of appellant, and one Jean Harrison, a witness on her behalf. As to property, the decree recites as follows

“The court further finds that the parties have agreed on their property *** that the dwelling located at 1407 Cole Street in the City of Jonesboro, Arkansas be awarded to the plaintiff and that she assume, monthly payments due on said property.. With the final payment of the debt due on same the property is to become her property absolutely. Plaintiff is to receive as her own property the household goods located at the dwelling aforesaid.”

The decree contained no recitation as to the G-reene County property. No quitclaim deed was given to ap-pellee by appellant. The McDoles, who had already commenced farming the property, continued to occupy same, and paid rent to Mr. Wells, based on his interest.

In October, 1963, Wells and the McDoles applied to the National Old Line Insurance Company, the final ap-pellee in this litigation, for a loan. National Old Line applied to the Kansas City Title Insurance Company for title insurance, and this organization was. represented by- Mr. States. Since a part of the record title was still in Mrs. Wells, there was a requirement that she either convey her interest, or that she join in the note and mortgage. Appellant refused to execute a deed sent to her by States, but did subsequently sign the note and mortgage, and this, according to her testimony, was done at the request of the McDoles and her ex-husband. The instruments were signed in St. Louis, Missouri. The loan, in the. amount of $12,500.00, was closed. A portion of this money was used to pay an outstanding lien to Connecticut G-eneral Life Insurance Company, costs of the loan, and the balance, of approximately $4,800.00, was disbursed to appellees. Of this amount, approximately $1,500.00 was used to dig a well on the farm.

Admittedly, Mrs. Wells did not receive any part of the money. The record does not show whether the first annual payment due (December, 1964) to National Old Line was paid, but it does, reflect that taxes were paid on the property by appellees Wells and McDole. In other words, it does not appear that appellant has spent any money on the property since the divorce;

In January, 1965, Mrs. Wells instituted suit against all appellees, alleging that she had an interest in the property as a tenant by the .entirety; that the parties could not agree upon an equitable division of the. lands, and that said lands, (the Greene County farm) be partitioned and divided among them, if .susceptible of division, and, if not susceptible of division, the property be sold, and the proceeds divided according to the several interests of the parties. National Old Line Insurance Company answered, asserting that, if the property were ordered sold, it should be sold subject to the mortgage lien of the insurance company; the McDoles and Wells filed separate answers and counter-claims which in effect denied that appellant, held any interest in the property. After the filing of. several amendments to the pleadings by the parties, the cause proceeded to trial. At the conclusion of the evidence, the court entered its decree, finding, as. to the realty here involved:

“That the complaint of the plaintiff for the partition of the real property hereinafter described should be denied and dismissed for want of equity; * * * that the plaintiff is estopped to assert any interest in the real property hereinafter described; that the plaintiff is entitled to no relief as against the defendants McDole; that the plaintiff is. entitled to no relief as against the defendant, National Old Line Insurance Company; *** and that plaintiff is not entitled to an accounting for any matter asserted in her pleadings against the defendants, Harold M. Wells., Oglee McDole and Lenora Mc-Dole. ”

From the decree, appellant brings this appeal.

Only one point is. relied upon for reversal, vis., “It was error for the court to divest appellant of the record title in her lands, and to fail to grant her petition and an accounting.” However, several different grounds are advanced in support of this point.

Appellant argues that fraud was committed upon her, and that she was. overreached in executing the written separation agreement in March, 1962; also, that she signed because of fear of her husband. We do not agree that the testimony establishes these facts; to the contrary, we are of the' opinion that the evidence preponderates to the effect that Mrs. Wells read the instrument before signing, and fully understood its meaning and effect; further, that she executed same entirely voluntarily and free from any coercion by her husband. However, there is no necessity to discuss the evidence on this point since appellee concedes that the written separation agreement 'was abrogated by the reconciliation of the parties which occurred subsequent to the execution of the instrument.

Appellant, likewise, advances the argument that the divorce decree of October 12 was. res judicata as to property rights; that the phrase, “court further finds that the parties have agreed on their property,” is compatible only with the conclusion that the parties were leaving all record titles, as they then existed. We do .not agree with this argument. In Smith v. Smith, 190 Ark. 418, 79 S. W. 2d 265, the same contention was urged. Though the facts were somewhat different, the point here raised by appellant was mentioned. We said:

“Appellant also contends that the decree of foreclosure should be reversed, because the property settlement was not incorporated in the decree for absolute divorce, or because it was not adopted in rendering the final divorce decree, and that their property rights now must be treated in this case as adjudged in the divorce suit. It was not necessary for the property rights of the parties to be adjudged in the divorce proceeding, as they had been settled by contract. The parties had a right to settle their property rights out of court by contract, and their contract relative thereto might be thereafter enforced in a court of competent jurisdiction. ’ ’

Likewise, in Fisher v. Fisher, 237 Ark. 321, 372 S. W. 2d 612, a property settlement was effected between the parties preceding their divorce. This court stated the facts, as follows:

‘ ‘ The principal issue presented in this case is whether the appellee should have a reformation of the deed she received from the appellant This deed was part of a property settlement between them preceding their divorce. Following the divorce appellant instituted this suit alleging that he and the appellee owned twenty-six acres as tenants by the entirety. He asked for partition thereof and for his proper share of the rents collected by the appellee. In her answer appellee, denied his assertions. By cross-complaint she contends that she is the sole owner of the disputed property by the terms of their property agreement and that this tract of land was omitted through mutual mistake or fraud from appellant’s deed to her, therefore, the deed should be reformed to include this land. The appellant denied the allegations in the cross-compláiiit and then pleaded as a defense the statute of frauds and res judicata. Upon a trial of the issues the Chancellor decreed reformation of the deed so as to convey to appellee the disputed lands. From that decree appellant brings this appeal.”

Mrs. Fisher testified that she did not know the twenty-six acres had been omitted -from the deed, but Mr. Fisher testified that he observed that the twenty-six acres were not included, and, if this acreage had been included, he would not have signed the instrument! After disposing of other arguments, this court, as to res judicata, said:

“In the case at bar the divorce decree specifically recites: ‘ There are no property rights to be determined herein.’ The appellant and the appellee.are in agreement that there was a property settlement between them before the divorce. They disagree only as to the inclusion of the twenty-six acres. The daughter and son-in-law corroborated the appellee’s version of this agreement which was perfected before the granting of the divorce as is indicated by the very terms of the decree. It cannot be said that upon the face of the record or by extrinsic evidence the property rights between appellant and ap-pellee were raised 'and determined in the divorce action.”

In the instant case, the wording of the divorce decree is somewhat stronger, since it specifically finds that “the parties have agreed on their property.” Likewise, they are in agreement that there was a property settlement between them — but, as in Fisherf they simply disagree as. to the provisions of the settlement. Here, too, appellees’ version is corroborated' by other- witnesses, while appellant furnished no corroboration for her version of the settlement. Mr. States, who represented appellant, testified that the parties entered into their oral agreement in his office, and in his presence. From his testimony:

“Well, the first thing discussed between the two of them in my presence was support money for the children. That was the first thing I directed their attention to because I was interested in seeing how the children were going to' be cared for under the decree and then a discussion was had in regard to two automobiles. She kept the automobile she was driving and he kept the automobile he was - driving. Then she wanted the household goods in the house there on Cole Street and he agreed to that. Then she wanted the dwelling on Cole Street to be hers and said that she would make the monthly payments and then, as I recall, Harold mentioned something about a farm in Greene County and Mrs. Wells said, ‘I’m not interested in the farm. I don’t want any part of it.’ When they got to that point then, I thought that was. all the property they had. Nothing else had been discussed. I turned then to Mrs. Wells and I said, ‘Now, I’m going to draw up an Entry of Appearance and I want to be sure that you understand. You get the property on Cole Street and you make the monthly payments,’ and she said, ‘That’s right,’ and, ‘You’re not interested in the farm property?’ and she said, ‘That’s, right.’ Then I left them and went in to my typewriter in the small room and drafted the Entry of Appearance--”

Appellant strenuously objected to this testimony, contending that it was a privileged, communication between attorney and client, and that States could only testify to the aforementioned facts, after first obtaining the consent of appellant. The trial court overruled the objection — and, we hold, properly so. The reason is stated in the case of Vittitow v. Burnett, 112 Ark. 277, 165 S. W. 625 :

“The object of the rule is to secure freedom in communication between attorney and client in order that the former may act with full understanding of the matters in which he is employed; but, as the rule tends to prevent a full disclosure of the truth, it should be strictly construed and limited to cases falling within the principle on which it is based. 40 Cyc. 2361, 2362. There is no privilege as to statements by a client to bis,' attorney for communication, to a third person. 40 Cyc. 2375. Vittitow' employed Carpenter to assist him in purchasing the land, from Burnett; and-directed, him to write to Burnett, making him.-an offer for. the land. It was intended-that the' matters'embraced in the letter written by Carpenter to Burnett should be communicated to the latter, and it was necessary that it should be communicated, to- Burnett in’ order to ' be acted upon. Therefore, the-letter, falls, within the rule that communications made to an attorney by a client and intended by the latter to be imparted to a'third party for the benefit of the-client do' not come within the rulé laid down in the • statute. ”

Here; according to two witnesses ('States and- ap-pellee), the discussion as to settlement was not simply between-'States and Mrs. Wells, but also included Mr. Wells. Of, course, since no settlement could be entered into without each party knowing;what the other party required in settlement, it was absolutely necessary, even though they.had not been in the. same- room together, that the views of each be communicated to the other. No privilege attached in this ease. ■

We think'the wording' of the'Waiver and Entry of Appearance establishes that a property settlement was entered into, and we likewise are of the opinion that the great weight of the evidence shows that. the provisions of that settlement were in accord with the testimony of appellee Wells and his witnesses.. While' the written settlement, .prepared by attorney Joe Boone of Jonesboro, and entered into - in. contemplation of the first divorce action, was abrogated^ and of no legal effect in this, controversy, it is interesting to note that the disposition of the-Greene County property was exactly the same as, in the alleged oral "agreement, i. e., Mr. Wells was to have the Greene County Farm. Appellant argues, that the meaning of the clause in the waiver providing that Mrs". Wells “makes, no claims against any other real estate other than the home and personal property,” is. simply that she makes no claim to any property belonging to her husband, and that the quoted language has no reference to property which the two of them own together as an estate by the entirety.

This brings us to the. question of estoppel which we consider to be applicable; and controlling in this litigation. Mrs. Wells certainly did not apply the above reasoning to the property held as an estate by the entirety which she was to receive, for she did take exclusive possession of the home on C'ole Street in Jonesboro. The fact that she later lost this property because of failure to meet payments is not material herein. Having acted upon the provisions of the agreement which were to her advantage, she cannot subsequently be heard to reject those portions of the same agreement which were not to her advantage. Appellant asserts that appellee is also estopped to question her title to the farm property because of the fact that she executed the note and mortgage to National Old Line Insurance Company, and this act inured to the benefit of appellee in that the company would not have loaned the money, except for the fact that she likewise became liable on the note. We do not agree with this, argument. It is true that Mrs. Wells executed these instruments; it also appears from her testimony that she was requested to sign same by the McDoles and her ex-husband. Let it first be remembered that this, request would never have been made if she had conveyed her interest in the farm, as we find she had agreed to do. In the next place, irrespective of how many times she might have been asked to execute the instruments., it is very clear from the testimony that, she was not caused to execute same by virtue of any representations made by appellee Wells. Of course, unless, she relied upon his statements, there can be no valid claim of estoppel. Storey v. Brewer, 232 Ark. 552, 339 S. W. 2d 112. That- she placed no reliance whatsoever on anything her ex-husband might have said is. abundantly clear. From her testimony, during cross-examination :

“Q. You have told us that you had a very close relationship with the McDoles, is that right?
A. Yes, sir.
Q. Well, just how would you characterize your relationship with Harold Wells at the time this conversation took place?
A. Just mutual.
Q. Just what?
A. Just mutual I guess you’d call it.
Q. Mutual, just what do you mean by that?
A. I don’t know how to express it.
Q. Just tell us, what was, your relationship with Harold. Was it pleasant or unpleasant?
A. It was unpleasant most of the time.
Q. Unpleasant most of the time, so you sure wouldn’t believe anything Harold told you about it, would you?
A. No, sir.
Q. You didn’t have any reason to trust Harold, did you?
A. No, sir.
Q. You knew he would skin you out of your eyeteeth if he got a chance, didn’t you?
A. Yes, sir.”

If Mrs. Wells signed these instruments because of the urging of any of the parties, it would appear such action was influenced by her relationship with the Mc-Doles, rather than because of any representations on the part of her ex-husband. She testified that she had a very close relationship with this couple, had visited them on several occasions, and that she and her present husband had even spent the night with them. The record also reflects correspondence with the McDoles.

The testimony in this case was very much in conflict, but we agree that the weight of the evidence supports the findings of the court. It follows that the principles of law here enunciated are controlling.

Affirmed.

      Appellant, after her divorce, married Clayton Howard Morgan, but for convenience, she' will be referred to in this opinion as Mrs. Wells, since most of the testimony deals with matters that occurred during her marriage to appellee Wells.

      Prior to the purchase of this property, Mr. and Mrs. Wells had lived on the Greene County farm.

      Boone testified that he specifically asked States if a quitclaim deed to this property would be executed by appellant in favor of appellee, and was informed that would he done. States agreed that he' had advised that his client wanted no part of the farm,' but said that he did not remember the particular statement about executing the deed.

      After her marriage to Morgan, appellant resided with her new husband in Wichita Falls, Texas. However, they separated, and she went to St. Louis, Missouri.


author: CarletoN Harris, Chief Justice.

text:
    Freddie Hayes Moore v. Georgia Tucker, Adm'x
    5-4206
    414 S. W. 2d 374
    Opinion delivered May 8, 1967

      James R. Howard, for appellant.

      Rose, Meek, House, Rarron, Nash & Williamson, for appellee.
   CarletoN Harris, Chief Justice.

These proceedings relate to the efforts of Freddie Hayes Moore to establish herself as the legitimate daughter of Herbert Hayes, deceased. Appellant was born on May 24, 1923, and her mother is Thelma Rivers Hayes Foston; she alleges that her father was Herbert Hayes, who died testate in Pulaski County on May 17, 1965. A holographic will, purportedly, executed by Hayes, was admitted to probate, tbe estate being devised to Elsie Montague,' a former wife, and Saxonia Shields a daughter. Mrs. Moore filed a petition in the Probate Court attacking the validity of the will, and seeking to have herself determined as the only heir of Herbert Hayes; in the alternative, she prayed that, if the will be held valid, she be- declared a pretermitted child. On- trial, appellant abandoned the contention that the will was invalid, and proceeded solely on the theory that she was a pretermitted child. At the conclusion of the hearing, the court denied the petition, and from the order so entered, appellant brings this appeal. For reversal, it is simply alleged that the court erred in holding that Mrs. Moore failed to prove she was the child of Herbert Hayes.

. As is . usual in this type of case, testimony was considerably in conflict. Thelma Rivers Hayes Foston, mother of appellant, and a resident of New York, testified that, in 1922, as. a 16-year-old girl, and while a resident of Little Rock, she became acquainted with Herbert Hayes; that he was 35 years of age at the time. The witness said that she had sexual relations with Hayes, became pregnant, and her child, appellant herein, was subsequently bom. She stated that Hayes, not knowing she was pregnant, left Little Rock in 1922 and went to New Orleans, and that he wanted her to go with him, but she did not want to leave her mother. Mrs. Foston testified that he then went to Canada, where he operated concession stands at fairs and rodeos. There are two birth certificates for appellant. According to Mrs. Foston, her mother gave the information on the first birth certificate, which showed the name of the child as Mardilla Jones, the mother as Thelma Rivers, and the father as Paul Jones. The age of the father is given as 20 years. This birth certificate was filed on June 9, 1923. During the trial, evidence was offered that Herbert Hayes, during the time that he lived in Little Rock, was also known as Herbert Jones, his father .having assumed that name because of a homicide committed in Kentucky. Mrs. Foston testified that her father was very angry over the pregnancy, and insisted that she marry one of his friends, Fred Morris, Hayes having left the -city. However, Morris went to Chicago, and never returned. This last occurrence took place after the birth of the child, but since Morris had indicated that he would return and marry her, the witness testified that she had the certificate changed, and a second birth certificate was issued on August 2, 1923, showing Fred Morris as the father of the child. Thelma Foston, about ten months later, went to Massachusetts, and married Herbert on September 30, 1924. The next year, the two went to Philadelphia, and sent for the baby (appellant herein), which was being kept by Hayes’ father and mother. Mrs. Foston said that the three lived together; that Hayes recognized the baby as his. child, and represented her as his daughter to friends. A separation occurred in 1929, and the parties were divorced in March, 1932, in Little Eock. The witness lived in this city for about seven months, and then went to New York. Upon receiving information that Hayes had been injured and was in the hospital, she returned to Little Eock, and, with her daughter, visited him on several occasions before he died.

Appellant, a resident of Little Eock since about 1945, testified that she remembered her father from early days in Boston and New York, and that he always recognized her as his daughter. She lived with her mother in New York until March, 1944, at which time she married Edward Moore. After about a year the Moores moved to Little Eock, and have lived here since that time. Hayes had also returned to Little Eock to live, and appellant testified that he frequently visited in her home, and referred to her children as his grandchildren. She stated that he helped her financially a number of times, would visit her about once a month, and always gave the children Christmas and birthday presents.

Appellant’s husband testified that he had known his wife during childhood as a “Hayes;” that, after their marriage and return to Little Rock, Herbert Hayes visited in the home, and the children called him ‘ ‘ Grandpa” and “Grandaddy.” The marriage certificate. of appellant and her husband (1944) reflects her name as Freddie Hayes, and the birth certificates of her children, born in 1948 and 1952, reflect the mother’s name as Freddie Hayes.

Hazel B. Bright, 72 years of age,' testified that she had known Herbert Hayes all of his life, and that he was also known as Herbert Jones; that she lived close to him, and had frequently heard him talk about his beautiful daughter, Freddie; that he had stated that appellant was his daughter, and that he loved her.

Saxonia Shields, one of the beneficiaries under the will, and daughter of Hayes, testified that she met Thelma Rivers Hayes Foston and Freddie Moore at a nursing home (to which Hayes was taken after leaving the hospital), and Mrs. Foston told her that Mrs. Moore was her daughter, but not Herbert Hayes ’ daughter.

Lydia Talbert, a registered nurse at the University Medical Center, testified that a few days after Hayes was admitted to the emergency room, a lady appeared who gave her name as Thelma, claiming to be the ex-wife of Mr. Hayes. Mrs. Talbert asked about the relatives, and was informed, “She [Thelma Foston] was all he had and as soon as she found out about his illness she came to take care of him. *** We asked if he had any children and she said, no, said she was all he had.”

Nathaniel Wilson, who was employed by Router’s nursing home as manager during the time that Herbert was an occupant of the home, testified that he inquired from Mrs. Foston as to the relationship of Mrs. Moore: “Her response to that was that the daughter was her daughter, although Mr. Hayes did raise her.”

Further :

“I asked her what was the daughter’s relation, because the daughter 'wasn’t talking during the interview, she wasn’t very conversant. She only identified herself as Mrs. Moore.’ She was a Mrs. Moore to me. So I asked her what was the’relationship of the daughter to Mr. Hayes. This is when she stated this was her daughter although Mr. Hayes did raise her as a daughter.
Q. Did she say whether or not Hayes was her father, is what we are trying to get at.
A. No, she did not at any time say he was the father.
Q. Did she say he was not the father?
A. She did not say he wasn’t the father. She said he raised, her.” . . •

Georgia Tucker, employed by Hubble Funeral Home, testified that she was well acquainted with Herbert Hayes, and that he had discussed his family with her. According to this witness, he had stated that he had been married to Thelma Rivers Hayes Foston, but had no .children by this wife. Mrs. Tucker said she went to see him at the University Hospital soon after learning of his accident, aTnd that Mrs. Foston had told her that she was the ex-wife of Hayes, that she had a daughter, but the daughter was not'Herbert’s daughter.

This summarizes the pertinent testimony before the court.

Appellant’s evidence to the effect that Hayes was her father (outside of her own evidence) thus consisted of the testimony- of her .mother, Thelma Foston, and that of Hazel B. Bright, who stated .that Hayes had said that appellant. was his daughter. Of course, the mother can hardly be classed as a disinterested witness. On tlie other hand, two witnesses, who apparently have no interest in the result of the litigation, emphatically stated that Mrs. Foston told them that Mrs. Moore was not the child of Hayes, and a third witness, Nathaniel Wilson, testified that Mrs. Foston said that appellant was her daughter, “though Mr. Hayes did raise her as a daughter.”

In our view, the strongest evidence offered by appellant was her own marriage certificate, which showed her maiden name as Hayes, and the birth certificates of her children, which likewise reflected that maiden name. Though the information appearing on these certificates was evidently given by appellant herself, the strength of the evidence lies in the fact that it was given long before the estate became involved in litigation. However, having lived with Hayes for several years., and never having'known any other father, it is not especially unusual that she used this name. Be that as it may, we think the birth certificates of appellant are the most persuasive items of evidence in the record, and these completely belie appellant’s assertion that she is a daughter, although it is argued that the original birth certificate bolsters her case.

Appellant points out that there is evidence that Herbert Hayes was also known as Herbert Jones during his early years in Little Rock,, and that this “ties in” with the birth certificate, which gives the name of the father as Jones. Of course, Jones is .not an unusual name, and the information appearing on the birth certificate falls far short in identifying the. father as Herbert Hayes or “Jones.” In the first place, the name appearing on the certificate is “Pa/ul Jones”; in the next place, though Thelma Foston testified that Herbert Hayes was about 35 years of age at- the time she was going with him and became pregnant, the certificate reflects that “Paul Jones” was 20 years of age.

Summarizing, it was shown that Thelma Foston was married to Herbert Hayes, and there is testimony, though mainly from interested witnesses, that Hayes recognized appellant as his daughter. However, like the Chancellor, we think appellant failed to establish her contention that Hayes was her father; certainly, we are not able to say that his findings were against the preponderance of the evidence.

The decree is affirmed.

      The record reflects that he had previously lived in Canada for some period of time.

       The marriage certificate was offered in evidence.

      While appellant and her mother do not admit that this witness was a child of Herbert Hayes, the record contains the birth certificate of Saxonia, dated December 14, 1920, and reflecting that she was born in Toronto, Canada, her father being listed as Herbert Hayes, and her mother as Elsie Shadd Hayes (now Montague). According to the testimony, Elsie Shadd and Herbert Hayes were married in February, 1920, in Toronto.


author: George Rose Smith, Justice.

text:
    Devazier Gravel, Inc., v. James Lee Busby
    5-4183
    414 S. W. 2d 853
    Opinion delivered May 8, 1967
    [Rehearing denied June 5, 1967.]

      Phil Kicky and E. J. Butler, for appellant.

      James Robertson, for appellee.
   George Rose Smith, Justice.

The appellee owns a 236-acre farm in St. Francis county. The appellant mines and washes gravel upon a nearby 80-acre leasehold in the foothills of Crowley’s Ridge. Busby brought this suit to enjoin the gravel company from casting its waste products upon his farm and to recover damages for pecuniary injuries already suffered. After hearing the evidence the chancellor awarded Busby a judgment for $12,000 and permanently enjoined the defendant from permitting water from its gravel-washing operations to reach Busby’s land. For reversal the appellant contends that the decree is against the weight of the testimony.

In onr opinion the overwhelming preponderance of the evidence supports, the chancellor’s findings. Before Devazier began its operations in April, 1962, Busby’s farm was effectively drained by a man-made ditch sys.-tem more than a mile in length, some of the ditches being as much as ten feet wide and nine feet deep. Within a month after Devazier began to wash gravel Busby protested the damage that was being done to his land by the waste water flowing from Devazier’s. plant. What the chancellor described as “tremendous” quantities of sand and clay were deposited in the plaintiff’s ditches, causing them to overflow in wet weather. On two occasions during the three years preceding the trial in 1965, Devazier sent in heavy equipment to clean out Busby’s drainage system. Those measures were ineffective, because the resulting* spoil bank, composed- of clay and sand, could not be spread over the fields without permanent damage to their fertility.

That Busby was seriously injured is not open to question. The overflow of water and silt from the clogged ditches damaged both the land and the growing crops. More than 12,000 cubic yards of clay and sand were deposited upon his farm. The only complete remedy would be the removal of those substances at a cos.t estimated at eighty cents a' yard. A real estate dealer testified that the market value of the farm had been reduced by $23,600. Upon the proof as a whole the chancellor’s award of $12,000 is by no means excessive.

Nor can it be said that the plaintiff was not entitled to injunctive relief for the future. The testimony adduced by the defendant offered hardly a semblance of justification for its course of action, other than self-interest. Clarence Devazier valued his contracts for the sale of gravel at $90,000. It is a fair conclusion from the evidence that the grayel plant was such a profitable venture that Devazier was determined to continue it even at the cost of haying to pay Busby for the damage inflicted upon his property. At the trial, after Busby has suffered losses for three, years, Clarence Devazier merely stated that within the next ten days or two weeks, he planned to excavate additional settling ponds to relieve the situation. In the circumstances only a permanent injunction' can afford Bushy the protection that he is entitled to by law.

Affirmed.


author: George Rose Smith, Justice. JohN A. FoglemaN, Justice-,

text:
    Delores Wasson, Administratrix v. Frances Pyron
    5-4196
    414 S. W. 2d 391
    Opinion delivered May 8, 1967
    [Rehearing denied June 5, 1967.]

      Spencer & Spencer and Don Gillaspie, for appellant.

      Shackleford & Shackleford, for appellee.
   George Rose Smith, Justice.

Doris E. Beene died intestate on April 3, 1964. Mrs. Beene’s, niece, the ap-pellee Frances Pyron, was at first the administratrix of the estate. Several of Mrs.. Beene’s heirs asserted, in a petition filed in, the probate court, that Mrs. Pyron had kept for herself a diamond ring and $18,503.93 of insurance money that should have been inventoried, as as-; gets of the estate. The probate judge, without passing on the merits of the petition, brought the- matter to an issue by discharging Mrs. Pyron as administratrix, appointing the appellant as. her successor, and. suggesting that the appellant bring suit in equity for the recovery of the ring and insurance money.

In the chancery case the court held' that the' ring was an asset of the estate hut that Mrs..-'Pyron was entitled to the insurance money. An appeal and cross-appeal bring both issues to us for review. (There is also a precautionary appeal from the probate. court order,, but it is- unimportant.) .

We turn at once to the controversy over the insurance proceeds, which presents. á far-reaching question of the first magnitude — a question which, if resolved in favor of the appellant, might prove to he little short of calamitous for- hundreds upon hundreds of our citizens. That question is whether the insurance company’s agreement to'pay the insurance money to-Mrs.-Pyron as a contingent, beneficiary was'void-for want of compliance with the Statute of Wills. • ■ •.

The facts, are simple. Mrs. Beene was the sole'beneficiary of a $19,000 group insurance certificate issued by the Metropolitan Life Insurance Company upon the life of her husband, who died on July 17, 1963. Instead of taking the insurance money in cash Mrs. • Beene en tered into a contract with .the Metropolitan, by which it agreed to pay her $108.98 a month for twenty years. If Mrs. Beene died without having received the full amount the funds still held by the company, commuted, to present value, would be paid to Prances Pyron, the appellee. In the contract Mrs.. Beene reserved the power to change the contingent beneficiary at any time and to withdraw the funds herself if she chose to do so. Mrs. Pyron was still the contingent beneficiary when her aunt died a few months, later. The appellant now contends that the contract was a testamentary disposition that should fail for non-compliance with, the Statute of Wills. The argument is that even though Beene himself might have named a contingent beneficiary of the policy, his widow could not do so by contract when the money became payable to her alone.

We are aware, a.s a matter of common knowledge, that agreements like this one are widely used in the life insurance business. There is certainly no public policy against such contracts., upon which countless persons are dependent. In the few cases in which the validity of similar contracts has been considered, the weight of authority sustains the arrangement, either on the basis of a statute or on the theory of a third-party-beneficiary contract. Appleman, Insurance Law & Practice, § 889 (1966 and Supp. 1967) ; Mutual Ben. Life Ins. Co. v. Ellis, 125 F. 2d 127, 138 A. L. R. 1478 (2d Cir. 1942), cert. den. 316 U. S. 665 (1942) ; Hall v. Mutual Life Ins. Co. of N. Y., 122 N. Y. S. 2d 239, 282 App. Div. 203 (1953), aff'd 306 N. Y. 909, 119 N. E. 2d 598 (1954) ; Toulouse v. N. Y. Life Ins. Co., 40 Wash. 2d 538, 245 P. 2d 205 (1952).

In Arkansas we need not rely upon common-law authorities, for the point is explicitly covered by our Insurance Code. Section 334 of the Code reads in part: “Any life insurer shall have the power to hold under agreement the proceeds of any policy issued by it, upon such terms and restrictions as to revocation by the policyholder and control by beneficiaries, and with such exemptions from the claims of creditors of beneficiaries other than the policyholder as set forth in the policy or as agreed to in writing by the insurer and the policyholder. Upon maturity of a policy by death in the event the policyholder has made no such agreement, the insurer shall have the power to hold the proceeds of the policy under an agreement with the beneficiaries.” Ark. Stat. Ann. § 66-3325 (Repl. 1966).

It will be noted that the Code is liberal in allowing the insurer, by agreement with the policyholder himself, to hold the proceeds “upon such terms and restrictions as to revocation by the policyholder and control by beneficiaries” as may be agreed upon. There is no reason to suppose that the draftsmen of the Code— a comprehensive statute evidencing the greatest care in its preparation — meant to be less liberal- -with respect to subsequent agreements made between the insurer and the beneficiary. Quite the contrary, unless the second quoted sentence is so construed it is practically meaningless and practically useless, for surely statutory .authority was not deemed to be necessary to enable an insurer and a beneficiary to make a simple agreement by which the company would retain the proceeds of a policy as an investment by the beneficiary. Thus it. is an inescapable conclusion — and an altogether desirable one— that the legislature intended to validate just such agreements as the one now before us. Otherwise the statutory language is pointless.

With respect to the diamond ring Mrs. Pyron, laboring under the handicap of the Dead Man’s Statute, was unable to adduce much proof that it had been delivered to her as a gift during her. aunt’s lifetime. On this branch of the case it cannot be said that the trial court’s decision is against the weight of the evidence.

Affirmed on direct and cross appeal.

FoglemaN, J., dissents.

JohN A. FoglemaN, Justice-,

dissenting. I would reverse the lower court on that phase of the case having to do with the insurance proceeds.

The conclusion that this is an attempted testamentary disposition of the proceeds of life insurance on the life of an insured by his beneficiary seems inescapable to me. Doris E. Beene was entitled to this money at the time of her husband’s death. The fact.that there were optional modes of settlement did not change the fact that it was she, not her designee, who was entitléd to the entire proceeds. Even under the contract she entered into with the insurance company, she was entitled to withdraw the balance on hand at any time at her absolute election. Even though she designated appellee to receive whatever balance had not been paid to her under the installment settlement, she reserved the unrestricted right to change that designation at any time.

Clearly we would have to find that this was a gift in order to sustain the position of appellee, except for Ark. Stat. Ann. § 66-3325 (Repl. 1966) [which I will subsequently discuss]. This cannót be done because there must be both a delivery and the surrender of possession, dominion and control to validate any gift, either inter Vivos or causa mortis. Marshall Bank v. Turney, 105 Ark. 116, 150 S. W. 693 ; Fancher v. Kenner, 110 Ark. 117, 161 S. W. 166 ; Umberger v. Westmoreland, 218 Ark. 632, 238 S. W. 2d 495 ; Smith v. Clark, 219 Ark. 751, 244 S. W. 2d 776. Obviously the agreement is not in compliance with our statute of wills, not being in the handwriting of the testator as required by Ark. Stat. Ann. § 60-404 (Supp. 1965) or executed in the presence of witnesses as required by Ark. Stat. Ann. § 60-403. It goes without saying that it was contrary to the statute on descent and distribution.

There is no evidence that Carter R. Beene designated any contingent beneficiary or authorized his beneficiary to do so.

It seems to me that not only a donee or legatee but any third-party-donee beneficiary would be eliminated by the holding in Ragan v. Hill 72 Ark. 307, 80 S. W. 150, from which I quote:

“*** w. M. Rees was an old man, being 78 years of age; was feeble; afflicted with some disease; did not expect to live long; had $1,000; offered to and did loan it to John 0. Hill & Son; and they executed to him therefor the following instrument of writing: ‘Clarksville, Ark., July 14th, 1899. Received from W. M. Rees one thonsand dollars with interest at 4 per cent. It is agreed that in case of the death of W. M. Rees that B. C. Rees is to take charge of this money [Signed] John C. Hill & Son.’ At the time he loaned the money he stated that it was ‘to go to B. C. Rees at his death.’ He was a good friend of B. C. Rees. He died on the 18th of August, 1899. John C. Hill & Son advanced $191-85 to pay his funeral expenses. Was the $1,000 a gift to B. C. Rees?
# # #
In every case a delivery is necessary to constitute A gift. In this case W. M. Rees loaned the money to John C. Hill & Son. He never parted with dominion over it in his lifetime. It was not delivered to B. C. Rees, or to any one for him. In the language of witness John C. Hill, ‘it was to go’ to B. C. Rees at the death of W. M. Rees. The directions of the latter (W. M. Rees) in this respect were testamentary in character, and were not effective, because not made and proved as a will.”

This decision should certainly be controlling in Arkansas over any authorities from other states, in the absence of any statutory law to control. The majority claim to find this in Ark. Stat. Ann. § 66-3325 (Repl. 1966), a part of the Insurance Code. The section, except for the last sentence, is quoted in the majority opinion. The first sentence cannot have any application because there is no evidence of any agreement of the insured with the insurer which could be applicable here. The necessary statutory law, then, to permit avoidance of our rules governing gifts and wills must be found in the second sentence, which the majority purports to do, by reasoning I am unable to follow, and which seems illusionary to me. That section simply says that the insurer shall have the power to hold- the proceeds of the policy under an agreement with the beneficiaries. I have been unable to find any definition of the word hold that would even remotely indicate such a construction as given by the majority. In its context in the statute hold means: “To retain in one’s keeping, to maintain possession of, or authority over; not to give up or relinquish.” Webster’s New International Dictionary, Second Edition. “To keep; to retain; to maintain possession of or authority over.” Black’s Law Dictionary.

The statute doubtless would permit the beneficiary to make an agreement by which all or a part of the proceeds would belong’ to or be contemporaneously paid to a third party or parties, perhaps in succession— a completed gift. It does contain language which in literal terms, might permit an insurance company to pay the balance to someone else as do our statutes pertaining to bank accounts (Ark. Stat. Ann. § 67-552) and savings and loan accounts (§ 67-1838). Even if this sentence did permit an insurance company to pay on death to another with impunity, still the statute does not purport to vest title in the payee on death, as does § 67-1838 (5) (a) in the case of savings and loan association accounts. Construction of the statute, as is suggested above, to permit such payments by the insurance company would make the second sentence of the section in question very meaningful. It is to be noted that no one has sought recovery from the insurance company here.

But, says the majority, there is no reason to suppose that the draftsmen of the Code meant to be less liberal with respect to subsequent agreements between the insurer and beneficiary than they were with agreements between insurer and insured. If they did not, why didn’t they say so? They say that the insurer may hold the proceeds “under on agreement with the beneficiary” not “under such cm agreement with the beneficiary.” [Emphasis mine] If they had meant to use the latter language, even that would not have accomplished the result reached by the majority because there could be no terms and restrictions “as to revocation by the policy-holder and control by beneficiaries, and with such exemptions from claims of creditors of beneficiaries other than the policy-holder * * I am unable to read into the statute language which does not appear there, as is necessary to reach the result attained in the majority opinion.

The proper rule of statutory construction applicable here was stated very early by this court in Reynolds v. Holland, 35 Ark. 56, as follows:

“The rule to be applied in this view, is: First— that the intention is to be sought in the whole of the act taken together, .and in other acts in pari materia. If the language be plain, unambiguous, and uncontrolled by other parts of the act, or other acts or laws upon the same subject, the courts can not give it a different meaning to subserve a public policy, or to maintain its constitutional validity. The question for the courts is not what would be wise, politic and just, but what did the legislature really mean to direct. This narrow circle embraces and circumscribes the whole ambit of the court, although within that it may move freely in catching the intention. It may disregard the literal meaning of words, when it is obvious from the act itself that the use of the word has been a clerical error, or that the legislature intended it in a sense different from its common meaning.”

This case was cited with approval and quotation from the opinion in Snowden v. Thompson, 106 Ark. 517, 153 S. W. 823.

In order to enable the court to insert words in a statute, or read into it different words from those found in it, the intent thus to have it read must be plainly de-ducidle from other parts of the statute. Graves v. Burns, 194 Ark. 177, 106 S. W. 2d 602.

I have been unable to find anything in the Insurance Code from which it may be deduced that the legislature intended any such construction as the majority have given it.

I contend that the section of the Act in question is plain and unambiguous and that there are no other sections of the Act which justify the construction given by the majority. I do think it 'is controlled by other Acts in pari materia — the laws of descent and distribution and the statute of wills. I agree that there is nothing so sacrosanct about these statutes as to exempt them from repeal or amendment, even by implication, but in order to bring this result the conflict must be irreconcilable— which is not the case.

In construing an Act, all statutes on the subject will be construed together. Doles v. Hilton, 48 Ark. 305, 3 S. W. 193 ; Graves v. Burns, 194 Ark. 177, 106 S. W. 2d 602. This court said in Boone County Board of Education v. Taylor, 185 Ark. 869, 50 S. W. 2d 241 :

“* * * a statute is not to be construed as though it stood alone on any particular subject. It is well settled that repeals by implication are not favored; and, in construing any statute, the court should place it beside other statutes relevant to the subject and give it a meaning and effect derived from, the combined whole.”

A statute should be construed with relation to other statutes so that all will stand. Davidson v. Rhea, 221 Ark. 885, 256 S. W. 2d 744. As this court, speaking through the late Justice Minor Millwee, said in Faver v. Cleveland Circuit Court, 216 Ark. 792, 227 S. W. 2d 453 :

“* * * It is also well settled that repeals by implication are not favored and that two statutes should be construed so as to give effect to both, if possible.”

The statute in question here ean be construed, as I have suggested, so that it does not conflict with either the statutes of descent and distribution or the statute of wills, and all should remain in full force and effect. The majority opinion does not rely upon but cites a textbook and authorities from other states as the weight of authority sustaining such contracts. A brief examination of them is in order, as I suggest that they contribute little, if any, weight in such a case as we have before us.

Statements from textbooks, of course, are no better than their supporting authorities. Appleman, Insurance Law and Practice, § 889, contains the following statements :

“* * * A settlement agreement may, therefore, name a contingent beneficiary without violating the statute of wills.”
“Thus a contract between the insurer and beneficiary under which the insurer is to retain the proceeds, pay the interest to the beneficiary during her life and the principal to others on her death is valid.” [Supp. 1967]

Hall v. Mutual Life Ins. Co. of New York, 122 N. Y. S. 2d 239, 282 App. Div. 203, affirmed 119 N. E. 2d 598, 306 N. Y. 909, is cited as authority for the first statement. Mutual Ben. Life Ins. Co. v. Ellis, C. C. A. N. Y. 1942, 125 F. 2d 127, 138 A. L. R. 1478, cert. denied, 62 S. Ct. 945, 316 U. S. 665, 86 L. Ed. 1741 and Vant v. Mutual Ben. Life Ins. Co., 262 F. 2d 803, cert. denied, 79 S. Ct., 1139, 359 U. S. 1002, 3 L. Ed. 2d 1030, rehearing denied, 79 S. Ct. 1432, 360 U. S. 923, 3 L. Ed. 2d 1538 are cited for the second.

The Hall case is not good authority for there the payee on death was named irrevocably. The court stated:

tt* * * There was no reservation of the right -to change the supplementary beneficiary.”

While the beneficiary of the policy had. the right thereunder to withdraw the principal, she never did, receiving only the interest. The court there stated very frankly that it was making a policy decision. In doing so, however, it referred to certain statutes. One of these was an earlier statute of 1906 [L. 1906, Ch. 326. § 101] providing for optional modes of settlement in life insurance policies and specifying that a policy beneficiary might stipulate for gift over on his death. A statute in effect at the time the case arose provided that when the proceeds of a life insurance policy are left with the company under a trust or other agreement, the benefits thereafter accruing should not be transí err able, nor subject to commutation or incumbrance. So, in that case there was neither right to commutation or revocation, as was the case here. The court then stated that the Legislature, after a contrary decision in the lower court, had made clear that the supplementary contract, with gift over in the event of death, required no protection from statutes regulating execution of testamentary dispositions. This was done upon the recommendation of the Law Revision Commission. A section of the Act and the note of the Commission, said the court, made it clear that, in so doing, there was no purpose to change the law.

In. the Ellis case the United States Court of Appeals for the Second Circuit disagreed with a previous New York decision, virtually identical with Ragan v. Hill, 72 Ark. 307, 80 S. W. 150, and decided the ease on what it took to be Coloradi law. It emphasized that the rights of the payees-on-death there could not be terminated by the policy beneficiary without three months notice in writing to the company, in which requirement they found adequate consideration for a contract. The court then answered the argument that the agreement violated the statute of wills by saying that this consideration made the rights of these payees a contractual obligation and. not an interest in. the property of the decedent. In applying Colorado law, the court relied.on certain cases rendered of doubtful value because of later Colorado decisions. It is noteworthy that Appleman did not cite this case as authority for the first proposition quoted above.

The Vmt case is proper authority for the second statement but relates purely and simply to an agreement between insured and insurer for payment of policy proceeds to his widow and son, who were trying to obtain immediate, rather than deferred payment.

The only other case cited by the majority as contributing to the weight of authority is Toulouse v. New York Life Ins. Co., 40 Wash. 2d 538, 245 P. 2d 205. Its value is considerably diluted by reason of the fact that one judge wrote the majority opinion, two judges concurred, two others concurred specially and four dissented. In that case, Sherlock, the insured, not the beneficiary, exercised an optional mode of settlement on an endowment policy. The payees-on-death were the beneficiaries of the policy. The majority opinion states that it proceeds on the assumption that, in making a supplementary contract, the insured proceeded under a right given him by the policy. The majority opinion contains the following statements clearly distinguishing that case from this:

“* * * In the present case, the rights of the four nieces and the nephew in the supplementary insurance contract are derived from the original insurance policy through the exercise of Option 1.
Mr. Sherlock might have defeated their rights by withdrawing all the money, but he had no right under the agreement to substitute someone else in their stead as the third-party donee-beneficiary;”.

The majority quoted a section of the Washington Insurance Code identical with Ark. Stat. Ann. § 66-3325, except that the second sentence does not include the words “by death” following the words “upon maturity of a policy.” I submit that the logic of the dissenting opinion is much sounder than that of the majority.

Actually the opinion of the majority here is based upon a policy determination. I do not profess to know, as they do, that a contrary holding would he calamitous to hundreds upon hundreds of our citizens. I would rather doubt that there are nearly so many of these contracts in existence and the absolute power of revocátion could be utilized to correct any that do exist. I suggest that appropriate trust agreements might well accomplish all the purposes one might seek to accomplish by this form of agreement. We may rest assured that insurance companies will be duly alert to any decision we render here. But even if the assumption of the majority were so, it is not for us but for the General Assembly to make such policy determinations. We should not sacrifice bur own rules of statutory construction and our statutes of descent and distribution and statutes of wills on the altar of. expediency.

While the record here does not disclose whether there áre creditors of this estate, I can well imagine that the device here furnished will be utilized to avoid application of assets such as these to payment of a decedent’s just debts in some instances.

I would reverse the lower court on this part of the decree and judgment.