author:
Lyle Brown, Justice.
      John A. Fogleman, Justice,

text:
    Martha U. HEISS, Ex’x et al v. AETNA CASUALTY AND SURETY CO.
    5-5533
    465 S. W. 2d 699
    Opinion delivered April 19, 1971

      Richard H. Mays and Mahony ir Yocum, for appellants.

      Shackleford ér Shackleford, for appellee.
   Lyle Brown, Justice.

Appellants are Martha U. Heiss, executrix of the estate of Henry A. Heiss, and Dorthea T. Hall, individually and as executrix of the estate of T. M. Hall. Appellee is the carrier of an automobile insurance policy containing uninsured motorist provisions and issued to T. M. Hall. The latter, accompanied by Henry A. Heiss and Dorthea T. Hall, collided with an uninsured motorist. Mr. Hall and Mr. Heiss received fatal injuries and Dorthea T. Hall was seriously injured. Another passenger in the Hall car, W. J. Robertson, received minor injuries for which he was satisfactorily compensated and he is not a party to the appeal. The two estates and Mrs. Hall were paid $2,000 each for medical which was the maximum under the medical coverage. Robertson was paid $565.20. Appellee then filed this suit in chancery court impleading the sum of $13,434.80. Appellee contended that it was entitled to deduct the medical payments from the $20,000 maximum contained in the uninsured motorist section of the policy. Whether that deduction, which was upheld by the chancery court, was proper is the issue on appeal.

Part II, Coverage C—Medical Payments—insured T. M. Hall and all occupants of his vehicle for medical expenses in a maximum amount of $2,000 for each person. For that coverage the insurer charged nine dollars. Part IV, Coverage G—Family Protection (Damages for Bodily Injury [uninsured motorist provisions]) carried a separate premium of $5.00 and contained this provision:

To pay all sums which the insured or his legal representative shall be legally entitled to recover as damages from the owner or operator of an uninsured automobile because of bodily injury, sickness or disease, including death, resulting therefrom, hereinafter called “bodily injury,” sustained by the insured, caused by accident and arising out of the ownership, maintenance or use of such uninsured automobile;...

It is undisputed (I) that all occupants of the Hall vehicle were insureds, (2) that the limits of the policy were $10,000 for each insured and $20,000 total for each accident, and (3) that all occupants of the Hall vehicle, except Robertson, suffered total damages far in excess of tíre máximums payable under the policy.

The uninsured motorist clause contained this limitation of liability:

The Company shall not be obligated to pay under this coverage that part of the damages which the insured may be entitled to recover from the owner or operator of an uninsured automobile which represents expenses for medical services paid or payable under Part II.

Our uninsured motorist law is found in Ark. Stat. Ann. § 66-4003 (Repl. 1966):

No automobile liability insurance, covering liability arising out of the ownership, maintenance, or use of any motor vehicle shall be delivered or issued for delivery in this State with respect to any motor vehicle registered or principally garaged in this State unless coverage is provided therein or supplemental thereto, in not less than limits described in section 27 of Act 347 of 1953 [§ 75-1427], as amended, under provisions filed with and approved by the Insurance Commissioner, for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles because of bodily injury, sickness or disease, including death, resulting therefrom; provided, however, that the coverage required under this section shall not be applicable where any insured named in the policy shall reject the coverage.

Ark. Stat. Ann. § 75-1427 (Supp. 1969), provides:

No policy or bond shall be effective under Section 26 [§ 75-1426] unless issued by an insurance company or surety company authorized to do business in this State, except as provided in subdivision b of this section, nor unless such policy or bond is subject, if the accident has resulted in bodily injury or death, to a limit, exclusive of interest and costs, of not less than $10,000 because of bodily injury to or death of one (1) person in any one (1) accident and subject to said limit for one (1) person, to a limit of not less than $20,000 because of bodily injury to or death of two (2) or more persons in any one (1) accident, and if the accident has resulted in injury to, or destruction of property, to a limit of not less than $5,000 because of injury to or destruction of property of others in any one (1) accident.

We take the position that the deduction for medical expenses recited in the uninsured motorist section is in derogation of the explicit requirement of our uninsured motorist statute and financial responsibility law set forth in § 66-4003 and § 75-1427, supra, which require limits of “not less than” $10,000 for injury to or death of one person and $20,000 for injury to or death of two or more persons. Although our court has not had occasion to pass on the question, it has been met squarely in other jurisdictions, as we shall now point out.

Bacchus v. Farmers Insurance Group Exchange, 475 Pac. 2d 264 (Ariz. 1970). The Arkansas and Arizona statutes on uninsured motorists are almost identical. In Bacchus the insurer reduced the amount paid under the uninsured motorist provision by the amount it had already paid under the medical payments clause. In condemning the procedure the court said:

Permitting offsets of any type would allow insurers, by contract, to alter the provisions of the statute and to escape all or part of the liability, which the Legislature intended they should provide. The medical payment coverage part of the policy is independent of the uninsured motorist coverage and should be treated the same as if it were carried with a different company.
* # *
By our statute against financially irresponsible drivers a minimum coverage must be made available to insureds, not as a convenience but rather as a Legislative mandate and in amounts of dollars and cents which leave nothing to the imagination of drafters of the insurance policies—$10,000 per person and $20,000 per occurrence. The fact that the motorist sees fit to clothe himself with other insurance protection and pays a premium therefor—such as medical payments—cannot alter the mandatory safeguards that the Legislature considers necessary for the well being of the citizen-drivers of our state. More particularly, a policy provision which the insured considers to be additional protection and for which he pays a premium with such extra protection in mind cannot be transposed by the insurer into a reduction of the mandatory minimum coverage.

Stephens v. Allied Mutual Insurance Co., 156 N. W. 2d 183 (Nebr. 1968). Again the Nebraska statutes on uninsured motorists and financial responsibility are substantially the same as ours. In Stephens the court faced the same problem which is before us. In rejecting the insurer’s attempt to use the medical payments as a set-off the court said:

The complex, if not devious, ramifications of the application of the language of this clause can be quite simply illustrated. If the plaintiff in this case had contracted for medical expense coverage in the sum of $10,000 and had suffered medical expenses in excess of this amount, the effect of the setoff clause herein involved would be to completely eliminate the uninsured motorist coverage. By its terms this provision is not in the nature of subrogation but a limitation of liability. It can be contended that not only would the insurer pay nothing under the statutory coverage, but under its policy subrogation rights it would be entitled, to the extent of its medical expense payments, to any proceeds recovered from the uninsured tort-feasor motorist.
We therefore hold that a provision in an automobile liability policy that an insurer shall not be obligated to pay under the uninsured motorist coverage for that part of the damages which the insured may be entitled to recover from the owner or operator of an uninsured automobile which represents expenses for medical services paid or payable under the medical payments coverage of the policy is void and against public policy in that it reduces the minimum coverage of uninsured motorist protection prescribed and required by the law.

Tuggle v. Government Employees Ins. Co., 207 So. 2d 674 (Fla. 1968). Again we have the same statutes as ours. Referring to the setoff clause in the uninsured motorist section, the court said: “The clause on its face is one to decrease uninsured motorist coverage beneath the statutory minimum, and one which means that under certain conditions (medical benefits in excess of $10,000) there will be no uninsured motorist coverage whatever.”

Robey v. Northwestern Security Ins. Co., 270 F. Supp. 466 (Ark. 1967), and Boehler v. Insurance Company of North America, 290 F. Supp. 867 (Ark. 1968), dealt with the setoff provision at hand. Those cases, decided without benefit of precedent from our court, held the setoff to be proper. Of course those decisions are persuasive but not binding on us. We think the more rational conclusion is that which we have reached and that it is in line with the trend of authorities and particularly in harmony with a number of decisions which have been announced since those two cases. With the exception of the two cited district court cases we have been cited to no precedent contrary to our holding, keeping in mind the particular facts, statutes, and contractual provisions in the case at bar. Appellee cites MFA Mutual Ins. Co. v. Wallace, 245 Ark. 230, 431 S. W. 2d 742 (1968), and MFA Mutual Ins. Co. v. McKinley, 245 Ark. 326, 432 S. W. 2d 484 (1968). The facts in those cases lend no precedent to the case at hand.

Reversed.

Fogleman, J., concurring.

John A. Fogleman, Justice,

concurring. I do not disagree with the result reached on this particular policy in this particular case. The closing language of the majority opinion appears to so restrict it, but earlier language is so general that it would seem to me to apply to any such policy. Certainly the precedents relied upon are not so restricted.

We must constantly keep in mind the fact that uninsured motorist insurance is not liability coverage on the uninsured motorist, but is indemnity to the insured against the perils of injury by an uninsured motorist. MFA Mutual Ins. Co. v. Bradshaw, 245 Ark. 95, 431 S. W. 2d 252. See also Southern Farm Bur. Ins. v. Daniel, 246 Ark. 849, 440 S. W. 2d 582. We must also remember that the parties to the insurance contract are limited in the terms of the contract only by statute and public policy. We have said that acceptance by an insured of such a policy including uninsured motorist coverage is deemed to be approval of all reasonable conditions and limitations expressed therein which are not contrary to public policy. MFA Mutual Ins. Co. v. Bradshaw, supra. We must also remember that our statutes do not make the uninsured motorist coverage mandatory. They only require that the coverage be offered. They do not require that medical payments coverage be included or offered. Consequently, the freedom of the parties to contract with reference to medical payments is wholly unrestricted. Such payments can be limited in any way the parties see fit.

As pointed out by Drummond in “Uninsured Motorist Coverage—A Suggested Approach to Consistency,” 23 Ark. L. Rev. 167, 181, the clause used in this policy says absolutely nothing about reduction of uninsured motorist coverage. The reduction under the clause before us only relieves the insurer from payment of that part of the damages which the insured may be entitled to recover from the uninsured tort-feasor which represents an amount paid or payable under medical payments coverage. The example given by Drummond at page 182 of his article is so clearly expository of the application of the policy clause we are considering, I take the liberty of quoting his language, viz:

If, on the other hand, the language of the alternative policy form is utilized, the “damages which the insured may be entitled to recover from the owner or operator of an uninsured automobile” would be $30,000, and of that sum, $2,000 “represents expenses for medical services paid or payable” under the medical payments coverage. Thus, $30,000 less $2,000 is $28,000, but with an applicable uninsured motorist limit of only $10,000, A would be limited to a recovery of that amount.

Drummond’s summary of the effect of the clause seems so clearly a correct interpretation that I also set it out, as follows:

Thus, despite the interpretation announced by insurers and most courts, the clauses in the two uninsured motorist insuring agreement forms relative to the application of amounts paid under medical payments coverage are not parallel. The first form states clearly that the uninsured motorist insurance shall be reduced. The second states with equal clarity that legally recoverable damages shall be reduced, and the authors of this policy form presumably had the option of selecting the alternative form. Instead, they elected to say essentially this: (1) If the insured’s total damages are less than the limits of the uninsured motorist coverage, then that coverage is reduced by the amount paid under the medical payments coverage; (2) If the insured’s total damages exceed the sum of the uninsured motorist limits and the medical payments limits, there is no reduction of the former by the latter; (3) If the insured’s total damages exceed the uninsured motorist limits but are less than the combined uninsured motorist and medical payments limits, then you must determine the insured’s total damages, reduce them by the amount of medical expenses covered by the medical payments coverage, and pay the difference under the uninsured motorist coverage up to the limits of that coverage.

This case comes before us on appeal from a denial of a motion for summary judgment by appellants, and an order dismissing their counterclaims. It was stipulated that Heiss was conscious for some period prior to his death which occurred within 1 Vz hours after the collision; that he left a widow who suffered mental anguish and loss of consortium; that he also left three children; that he was an engineer employed at a salary of $40,000; and that he had a life expectancy of 16.81 years. It was stipulated that Hall received various injuries, that he left surviving a widow whose life expectancy was 27.81 years and one child, and that he had a life expectancy of 14.14 years. It seems highly unlikely that the damages to either appellant would be so small as to reduce recoverable damages below the policy limits, but the application of the requisite standard should be a matter for the trial court upon remand.

For various reasons, I do not consider the cases cited in the majority opinion applicable. For instance, in Stephens v. Allied Mutual Insurance Co., 182 Neb. 562, 156 N. W. 2d 133, 26 A. L. R. 3d 873 (1968), the clause was voided upon the premise that the coverage required by the statute of that state “is in the nature of a substitute liability policy,”—a premise that has been rejected by us. It is also based upon two separate and independent contractual provisions for which a separate premium is charged and collected. In the case before us the affidavit of appellee’s actuary is uncontradicted. He states that in computing the premium charged for uninsured motorist coverage under its policy the clause in question is taken into consideration, and that an increased premium rate for uninsured motorist coverage would result from payment of medical expense losses in addition to uninsured motorist coverage. This explanation is consistent with Drummond’s theory as to the effect of the clause. Furthermore, in that case the Nebraska court relied to some extent upon decisions that an insurer may not limit its liability under uninsured motorist coverage by setoffs or limitations through “other insurance” clauses, such as reduction claimed with respect to workman’s compensation or other insured motorist coverage., a position we have not taken. As a matter of fact, we have taken a contrary position as to “other insurance” coverage in MFA v. Wallace, 245 Ark. 230, 431 S. W. 2d 742, where we refused to follow decisions of federal district courts in Arkansas. We should have a consistency in the philosophy of our decisions on uninsured motorist coverage. While Wallace is certainly not controlling in this case before us, a result based upon Stephens certainly constitutes the adoption of an inconsistent philosophy.

Bacchus v. Farmers Insurance Group Exchange, 106 Ariz. 280, 475 P. 2d 264 (1970) follows Stephens as a precedent. Another factor entered into Bacchus, however, in that a different policy clause was under consideration. In that policy, the medical payments were classified as advancements to be repaid in the form of a set-off against other insurance available under another provision of the same policy. There again, it is clear that separate premiums were paid for the two coverages, with no indication that either premium rate was in any respect dependent upon or related to the other coverage.

In Tuggle v. Government Employees Ins. Co., 207 So. 2d 674, 24 A. L. R. 3d 1343 (Fla. 1968), decided by a 3-2 division, the Florida court emphasized the fact that the two classes of coverage “were contracted separately, with independent premiums.”

I would remand the case for further proceedings consistent with Drummond’s interpretation hereinabove set out and reverse questions as to other such clauses and as to other factual backgrounds until they are really necessarily in issue.


source: Caselaw Access Project

author: Lyle Brown, Justice.

license: Public Domain

text:
    ENERGY OIL CO. v. ROSE OIL CO. OF PINE BLUFF
    5-5553
    465 S. W. 2d 690
    Opinion delivered April 19, 1971

      W. F. Denman Jr., for appellant.

      Wootton, Lamb ir Matthews, for appellee.
   Lyle Brown, Justice.

Appellant instituted this suit under the Unfair Practices Act to prohibit appellee from retailing gasoline at less than cost. Ark. Stat. Ann. § 70-301 et seq. (Repl. 1957). The chancellor granted appellee’s motion for summary judgment. The case must be affirmed under Rule 9 (d).

The documents on file at the time the summary judgment was granted consisted of the complaint, the answer, motion for summary judgment, affidavit of W. F. McGhee for appellee, affidavit of Horace Jones for appellant, request for admissions and answers thereto, and two sets of interrogatories and answers. No- abstract in the first person was made of the contents of the affidavits; appellant merely states its conclusions respecting two items mentioned in the affidavits. Abstracting the affidavits in the first person would permit us to reach our own conclusions. Neither the request for admissions nor the request for interrogatories is mentioned in the abstract. The judgment of the court is referred to only scantily. The purported abridgement of the record is not such as enables us to fairly understand the issues and to rule equitably thereon.

Appellant, in its reply brief, inserted nine pages of abstracting in an effort to cure the dilemma. That procedure has been disapproved. Young v. Farmers Bank & Trust Co., 248 Ark. 613, 453 S. W. 2d 47 (1970); Tenbrook v. Daisy Mfg. Co., 238 Ark. 532, 383 S. W. 2d 101 (1964); and Reeves, v. Miles, 236 Ark. 261, 365 S. W. 2d 460 (1963). In Reeves we said “we do not intimate that an appellant would be penalized for a mere deficiency such as may result from inadvertence or from a failure to anticipate the appellee’s arguments.” The void in the abstract at hand does not fall within the categories mentioned.

Affirmed.


author: John A. Fogleman, Justice.

text:
    C. R. BURGESS, County Judge, Miller County, Ark. et al v. FOUR STATES MEMORIAL HOSPITAL
    5-5521
    465 S. W. 2d 693
    Opinion delivered April 19, 1971

      Norman M. Smith, for appellants.

      Smith, Stroud, McClerkin ir Conway, for appellee.
   John A. Fogleman, Justice.

Appellants, who are the County Judge and Tax Assessor of Miller County, assert that the chancery court erred in refusing to dismiss appellee’s suit to require them to remove all of its property from the county tax rolls, claiming exemption from taxation under Article XVI, Section 5, of the Arkansas Constitution. Appellants raised no jurisdictional questions, and the matter proceeded to trial on the merits. The chancellor, after hearing all the evidence, found that one building once used as a nursing home and another built on the premises by appellee, together with the lands upon which they are located, were not exempt from taxes because appellee received rental income from this property and did not use it exclusively for public charity. He found that all other property of appellee qualified for the exemption, but held that he had no jurisdiction to relieve appellee from 1969 taxes.

Appellee, Four States Memorial Hospital, is a nonprofit Arkansas corporation. Its articles of incorporation prohibit the payment of any net earnings, dividends or other distributions to any officer, director, member or private individual, except as compensation for services rendered or reimbursement of expenses incurred in connection with the corporation’s affairs. Its stated general purpose is scientific, educational and charitable, particularly for ownership and operation of hospitals and other facilities for the care and treatment of sick, injured and disabled persons and incidentally for the education and training of medical students, interns, physicians, nurses, technicians, pathologists and other hospital personnel and for carrying on scientific research for alleviation of human suffering. The corporation has no shares or capital stock, but is composed of one class of members with voting rights. On dissolution or liquidation, all its net assets are to be distributed to one or more scientific, religious, charitable or educational organizations exempt from Federal Income Tax under Section 501(c)(3) of the Internal Revenue Code of 1954 (or the corresponding section of future law). Any such assets not disposed of by the corporation may be distributed for such purposes or to such organizations as may be directed by the circuit court of the county in which the principal office of the corporation is then located.

While appellants refer to their motion as one for a directed verdict, we take it to be a motion challenging the sufficiency of the evidence to warrant the granting of the relief sought pursuant to Ark. Stat. Ann. § 27-1729 (Repl. 1962). In order for the court to have granted such a motion, there must have been no substantial evidence which, when given its strongest probative force in favor of appellee, would have made a prima facie case for appellee. Nowlin v. Spakes, 250 Ark. 26, 463 S. W. 2d 650. We find ample evidence to justify the denial of the motion. As a matter of fact, we could not say that the chancellor’s findings on the merits were not supported by a preponderance of the evidence.

Appellants’ argument is that appellee failed to meet its burden of showing that its buildings, grounds and materials were used exclusively for public charity as required by the pertinent constitutional provision. Its basic premises are:

1. Appellee accepted the property as a gift from St. Louis Southwestern Railroad Company, commonly called the Cotton Belt.
2. The administrator employed by appellee was, at the time his services were engaged, Inspector of Flospital Services in the employment of the railroad.
3. Appellee accepted from the Cotton Belt Employees Hospital Trust Association an unsecured, interest-free loan of $127,000 of which $7,000 was used to improve income-producing property not used by appellee for hospital purposes, but rented to a maintenance employee for $45 per month.
4. Living quarters in a building which had been a nursing home were rented by appellee to a doctor who was not on its medical staff, but was an employee of the Employees Trust.
5. All except two of the members of the board of directors of appellee are the same as the directors of the Employees Trust.
6. Only three charity patients have been treated at the hospital.

It is undisputed that the hospital operated by appellee was formerly owned by the St. Louis Southwestern Railroad Lines Hospital Trust and commonly called the Cotton Belt Hospital. It was used exclusively by employees of the railroad or its subsidiaries who were members of the trust. All of the buildings, equipment and lands which were used in connection with the hospital were donated by the railroad company and the hospital trust to appellee about September 1, 1967. The buildings, in addition to the hospital itself, consisted of a dwelling house, and the former nursing home building.

Sam Raney, appellee’s administrator, was in charge of the operation of the hospital. He testified that the loan from the Employees Trust was to be repaid when and if appellee could do so. The only writing evidencing the loan was in the minutes of the board of directors of the lender. Raney stated that there were 28 doctors from the local community on the actual medical staff and 9 doctors on a courtesy staff. Any number of patients of a member of the actual staff could be admitted to the hospital, according to the skills or ability of the member physician to treat them. Only four patients of a member of the courtesy staff can be admitted in any one calendar year. Raney exercises discretion as to admission of a patient referred by a physician on the staff, but none is refused treatment and service which the hospital and its staff can adequately render. He said that, even though 50% to 53% of the hospital patients were Employees Trust members, 700 to 1,000 patients who were not members had been cared for by appellee at the hospital. In addition, the hospital admitted approximately 2,000 patients under the Medicare program administered by the United States Department of Health, Education and Welfare. The hospital also provided services under the state Medicaid program, whose payments are limited, however, to 20 days of inpatient services and 12 outpatient visits, after which one becomes a charity patient unless he is transferred to a Little Rock hospital. One of these patients had six admissions and four outpatient visits.

Raney said that a new surgical suite, a new recovery room, a clinic, a new conference room, a nurse’s station, an emergency power unit and an x-ray film developer had been added to the hospital by appellee to enable it to adequately serve “public” patients. He also testified that two surgical suites and the second floor of the west entrance had been remodeled and a waiting room converted to a semiprivate visitors’ room for this purpose. He added that new desks, chairs and beds had been purchased. He estimated that appellee had spent a couple of hundred dollars for bulldozer work. He totalled expenditures for such purposes from the loan at $123,000.

The hospital has neither emergency room nor maternity ward. The reason given for not having an emergency room was inability of appellee to find doctors to adequately staff it. Raney admitted that a pregnant woman had been denied admission by him, but explained that the hospital wasn’t equipped to treat her.

A resolution requiring that the hospital be operated in such a manner as to satisfy criteria of the Federal Internal Revenue Service necessary for an institution for “charitable” patients and directing officers and employees of the hospital not to refuse to accept patients in need of hospital care solely on the basis of their inability to pay was adopted by appellee’s board of directors. All patients admitted are charged the same rate. Bills are paid by the patient, insurance companies, federal or state welfare programs, employee associations or not at all. The payment for Medicare patients is based upon a per diem rate adjusted annually with the HEW Department, based upon actual cost of operation plus 2%. The difference between the amount billed to the patient at the regular rate and the Medicare rate is written off by the hospital at the end of the month after the patient’s discharge. Raney testified that this difference must be made up by paying patients. Over a three-year period the hospital had written off $46,-227.28 in this manner. It had also written off $2,700 to the Arkansas Public Welfare Department and $2,500 for Arkansas Public Welfare and Medicaid. In its second 'year of operation the hospital showed a gain of $45,-152, most of which went to offset a deficit of $38,208 in the succeeding year, and the balance into service and improvements. It appears that there would have been a great many more purely charity cases, had it not been for Medicare payments.

It has been held that a benevolent and charitable organization’s property used as a hospital may be constitutionally exempt from taxation if it is open to the general public, if no one may be refused services on account of inability to pay and if all profits from paying patients go toward maintaining the hospital and extending and enlarging its charity. Hot Springs School Dist. v. Sisters of Mercy, 84 Ark. 497, 106 S. W. 954. We do not agree with appellant that appellee’s operation is so oriented toward service of the Employees Trust Association that, as a matter of law, it is outside the scope of the constitutional exemption. There is really no evidence to indicate that appellee has not conformed its practice to its stated corporate purpose. Raney testified that all money received by the hospital is expended for its maintenance and improvement and none diverted from the institution in any manner. Nor is there any evidence that the gift of the property was not outright and without any obligation of appellee to the railroad or its Employees Trust Association.

We do not understand how the failure of the hospital to provide emergency and maternity service could be taken to disqualify it from the tax exemption. There was evidence that it has dietary, maintenance, administration, pharmacy, nursing, surgical, x-ray, laboratory and physical therapy departments and limited outpatient services. We are not aware of any requirement that a hospital provide all services which can possibly be provided by any hospital in order to make its use exclusively for public charity. There is no reason why a hospital whose services are limited, e.g., to surgery or to maternity, should not be entitled to the tax exemption.

It does not appear that the hospital administrator is answerable, in any way, to the railroad or its hospital trust or that the common directors of the hospital and the trust have acted, in any way, to prefer members of the trust over any member of the general public. The mere fact that the members of the trust use the hospital along with other members of the general public, and on the same basis, would not necessarily change its charitable purposes so long as its receipts from any source are held in trust for the furtherance of these purposes. Fordyce v. Women’s Christian National Library Association, 79 Ark. 550, 96 S. W. 155, 7 L. R. A. (n.s.) 485.

The chancellor found that the part of appellee’s property for which rents were collected was not being used directly and exclusively for public charity and directed that this part be identified and subjected to taxation. This distinction is proper as the exemption is based upon the actual use of the property, rather than the use of its revenues. Hot Springs School Dist. v. Sisters of Mercy, 84 Ark. 497, 106 S. W. 954; Brodie v. Fitzgerald, 57 Ark. 445, 22 S. W. 29; Robinson v. Indiana & Ark. Lbr. & Mfg. Co., 128 Ark. 550, 194 S. W. 870, 3 A. L. R. 1426. See also Ark. Stat. Ann. § 84-206 (Repl. 1960). The exemption of that property of appellee which is used exclusively for public charity is not affected because other parts are not exempt. See Hilger v. Harding College, 231 Ark. 686, 331 S. W. 2d 851.

Appellee cross-appealed from that part of the court’s decree which found that it had no jurisdiction of the 1969 tax assessment. The court’s decree must be affirmed on cross-appeal. The basic relief asked by appellee was a writ of mandamus to the county judge to remove its property from the tax rolls, and an injunction against the tax assessor restraining his placing the property on the tax rolls. In the first place, the chancery court had no jurisdiction to issue a writ of mandamus. Nethercutt v. Pulaski Co. Spl. Sch. District, 248 Ark. 143, 450 S. W. 2d 777; Harber v. Rhodes, 248 Ark. 1188, 455 S. W. 2d 926. Even the circuit court, which has superintending control and appellate jurisdiction over county courts under Article VII, Section 14, of our Constitution, could not direct the county court’s action by mandamus. Rolfe v. Spybuck Drainage District No. 1, 101 Ark. 29, 140 S. W. 988.

In the second place, exclusive original jurisdiction of all matters pertaining to county taxes is vested in the county court. Article VII, Section 28, Constitution of Arkansas; Turner, ex parte, 40 Ark. 548; Price v. Madison County Bank, 90 Ark. 195, 118 S. W. 706. Within the limits of its jurisdiction the county court is a court of superior jurisdiction. Strawn v. Campbell, 226 Ark. 449, 291 S. W. 2d 508. No other court may disregard or invade that jurisdiction. Curry v. Dawson, 238 Ark. 310, 379 S. W. 2d 287. See also Stumpff v. Louann Provision Co., 173 Ark. 192, 292 S. W. 106; Bragg v. Thompson, 177 Ark. 870, 9 S. W. 2d 24; State v. Wilson, 181 Ark. 683, 27 S. W. 2d 106. This jurisdiction is exercised by the county court, not the county judge. Needham v. Garner, 233 Ark. 1006, 350 S. W. 2d 194. There is no suggestion that the county judge has acted, attempted to act or proposed to act in this matter in any capacity other than as presiding judge of the county court, that any wrongful diversion of public funds or fraud is involved, or that a tax which is itself illegal is being levied. In these circumstances, the action of the county court cannot be dictated by mandamus, injunction or other process of either the chancery or circuit court. See Curry v. Dawson, supra; Turner, ex parte, supra; Ward v. Boone, 231 Ark. 655, 331 S. W. 2d 875.

It is true that appellee had a judicial remedy if the property was exempt from taxation for the year 1969, without resort to appeals from the tax assessment. Clay County v. Brown Lumber Co., 90 Ark. 413, 119 S. W. 251. There is no doubt that a court of equity may grant relief against a void or illegal tax assessment. W. P. Brown & Sons Lumber Co. v. Sims, 146 Ark. 253, 225 S. W. 322; State v. Mississippi A. & W. Ry. Co., 138 Ark. 483, 212 S. W. 317.

Even if appellee’s action against the tax assessor should be outside the exclusive original jurisdiction of the county court, the passage of time had taken the matter of 1969 tax assessments entirely out of his hands, so that it was not possible for him to effectuate any decree that the court might have rendered. The courts will not render judgments which have no practical effect in settling the rights of litigants. Kirk v. North Little Rock Special School District, 174 Ark. 943, 298 S. W. 212; Griffin v. Anderson-Tully Co., 91 Ark. 292, 121 S. W. 297, 134 Am. St. Rep. 73.

The assessor was required to make his real estate assessment prior to July 1, 1969. Ark. Stat. Ann. § 84-415 (Repl. 1960). He was required to certify his completed assessment record to the county board of equalization on or before August 1, 1969. Ark. Stat. Ann. § 84-465.1 (Repl. 1960). His report of assessment was to have been filed with the county clerk by the third Monday in August 1969. Ark. Stat. Ann. § 84-447 (Repl. 1960). Assessments were then subject to action by the equalization board until the third Monday in September 1969 [Ark. Stat. Ann. § 84-708 (Repl. I960)] unless conditions prevailed which extended the time until the third Monday in November 1969 [Ark. Stat. Ann. §§ 84-706, 84-477 and 84-717 (Repl. I960)], after which even it had no authority to change a tax assessment. Jones v. Crouch, 251 Ark. 720, 552 S. W. 2d 258. It was the duty of the county clerk to deliver the tax books to the tax collector on or before the third Monday in February 1970.

This suit was filed on September 17, 1969, at which time the assessor had no control over the assessment. The decree dated July 25, 1970 was filed on the 11th day of August, 1970, and resulted from a hearing on the 20th day of July, 1970. On these latter dates the 1969 tax books were in the hands of the tax collector. Neither the tax collector nor the county clerk was ever made party to the action. Insofar as both the county judge and tax assessor are concerned, the question of the validity of the 1969 tax assessment has become an academic one, so the chancellor properly declined to act. Catlett v. Republican Party of Arkansas, 242 Ark. 285, 415 S. W. 2d 651; Dermott Drainage District v. Cherry, 217 Ark. 829, 255 S. W. 2d 587. See also Connor v. Ricks, 212 Ark. 855, 208 S. W. 2d 10.

The decree is affirmed on appeal and cross-appeal.

       Apparently this house was torn down after the property was given to appellee and another built in its stead.


author: J. Fred Jones, Justice.

text:
    Jesse Willis Deceased Employee v CITY OF DUMAS and Hartford Accident and Indemnity Co.
    5-5546
    466 S. W. 2d 268
    Opinion delivered April 19, 1971
    [Rehearing denied May 24, 1971.]

      Paul K. Roberts, for appellant.

      Bridges, Young, Matthews ¿r Davis, for appellees.
   J. Fred Jones, Justice.

This is a workmen’s compensation case involving injury and subsequent death of Jesse K. Willis as a result of an automobile collision. The single question presented is whether the injuries sustained by Mr. Willis grew out of, and occurred within the course of, his employment as Chief of Police of the City of Dumas in Desha County, Arkansas. The collision occurred in Jefferson County while Chief Willis and his wife were in route from Dumas to Pine Bluff. The Workmen’s Compensation Commission found that the accidental injuries did not arise out of and occur within the course of the employment, and the circuit court affirmed. On appeal from the judgment of the circuit court, the appellant relies upon the following points for reversal:

“There is no substantial evidence in the record sufficient to support the judgment of the court and the opinion of the full Commission and said judgment and opinion were based on surmise and conjecture.
The court erred as a matter of law in failing to award benefits to which he was entitled.”

The burden rests on the claimant to prove by a preponderance of the evidence before the Commission, that he is entitled to compensation benefits under the law. Pruitt v. Moon, 230 Ark. 986, 328 S. W. 2d 71. And, if there is any substantial evidence to support the decision of the Commission, the courts must affirm. This rule has been stated so often that citation of cases would add volume without value to this opinion.

The Arkansas Workmen’s Compensation Law only covers accidental injury and death arising out of and in the course of employment. Ark. Stat. Ann. § 81-1302 (d) (g) (Repl. 1960).

Ark. Stat. Ann. § 81-1305 (Repl. 1960) provides, in part, as follows:

“Every employer shall secure compensation to his employees and pay or provide compensation for their disability or death from injury arising out of and in the course of employment. . .”

The burden of proof is on a claimant to show that injury or death of an employee was the result of an accidental injury that not only arose in the course of employment, but in addition that it arose out of or from the employment. Duke v. Pekin Wood Products Co., 223 Ark. 182, 264 S. W. 2d 834.

In Martin v. Lavender Radio & Supply, Inc., 228 Ark. 85, 305 S. W. 2d 845, this court adopted the rule laid down in an opinion by Chief Justice Cardozo in the 1929 New York case of Mark’s Dependents v. Gray, 167 N. E. 181. This rule was quoted again with approval in Brooks v. Wage, 242 Ark. 486, 414 S. W. 2d 100, and as stated in Lavender, is as follows:

“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, but at least, it must be a concurrent cause. * * * and sufficient within itself to occasion the journey.”

Applying the above rules of law to the evidence in the record before us, we are of the opinion that there is no substantial evidence that Chief Willis’ death grew out of, or occurred within the course of, his employment as Police Chief of the City of Dumas. The style of this case, as carried in the transcript and briefs, is slightly confusing, but since the identity of the claimant is immaterial to the question presented, we also refer to the decedent as the claimant and the appellant.

The record reveals the following facts: In July, 1968, Jesse K. Willis was Chief of Police of the City of Dumas and was also a deputy sheriff of Desha County. His regular working hours as Chief of Police were from 8 a.m. to 5 p.m., but he was on call at all times! Chief Willis lived in a rented house in Dumas with his wife and his only child, a son Jesse D. Willis, who was serving in the Armed Forces at the time of Mr. Willis’ injuries. Before becoming Chief of Police at Dumas, Chief Willis had served on the Pine Bluff Police Force and he and Mrs. Willis still owned their home in Pine Bluff, and made frequent trips from Dumas to Pine Bluff at the end of his regular workday, and on weekends. Mr. and Mrs. Willis were on their way to Pine Bluff on July 22, 1968, when they were injured in an automobile collision and from which injuries they both died.

As specific background for the claim, the evidence of record is to the effect that on July 10, 1968, one Mose Martin, a resident of Pine Bluff, had been fined on a misdemeanor conviction in the municipal court presided over by the Mayor of Dumas, and had escaped from a prisoner work detail while working out his fine on the streets of Dumas. The Mayor of Dumas told Chief Willis to issue a warrant for the arrest and return of Martin. Chief Willis issued the warrant and placed it in or on his desk, and remarked to some of the other officers that he would bring Martin back to Dumas to work out his fine. After court was adjourned on July 22, 1968, Chief Willis announced that he was going to Pine Bluff. At approximately 6:45 p.m., while driving north on Highway 65, Chief Willis’ automobile was involved in a collision with another automobile during a rainstorm and both Chief Willis and his wife, who was riding with him, received the injuries from which they subsequently died.

The Honorable Billie Free, Mayor of Dumas, testified that Chief Willis had advised him that Martin had escaped and that “he thought the boy was in Pine Bluff.” He says that he instructed Chief Willis to issue a warrant and bring the defendant back to Dumas, but that he did not specify any time that this should be done. He testified that Chief Willis went to Pine Bluff, not on City of Dumas business, four or five times a week. He testified that although Chief Willis was on call duty 24 hours a day, to his knowledge Chief Willis had never gone out of town to return a prisoner who had escaped. He says that Highway 65 is the only route from Dumas to Pine Bluff.

On cross-examination Mayor Free testified that when city prisoners escape he usually issues a warrant and sends it, by the county sheriff or by a state trooper, to the sheriff of the county to which the prisoner has gone. He testified that Chief Willis’ regular work hours were from 8 o’clock in the morning to 5 p.m., but at 5 o’clock he would get into his private automobile and leave. He testified that Chief Willis rented a home in Dumas; that he understood he owned a home in Pine Bluff; that when around 5 o’clock came Chief Willis would “head for Pine Bluff.” Mayor Free testified that he ordinarily requested the Desha County sheriff to deliver warrants to other counties, but that on the afternoon of July 22 Chief Willis told him he was going to Pine Bluff and that he asked Chief Willis to issue a warrant and take it up there and give it to the sheriff. He testified that he wanted the warrant given to the sheriff of Jefferson County and the man brought back, but that he did not tell Chief Willis when to issue the warrant or when to take it to Pine Bluff. Mayor Free testified as follows:

“I sign these warrants, and when I instructed Mr. Willis, I said, ‘I want a warrant issued for this man and brought back to the City of Dumas to work out his fine or pay the fine that was due the City of Dumas.’ Now, I cannot swear that Mr. Willis fixed that warrant that afternoon, and I’m not going to swear to it.”

Mayor Free testified that Chief Willis was not prompt in coming to his office at 8 o’clock unless he was called and that “when the bell rung at 5 o’clock in the afternoon, he got in his car and took off just like that.”

“Q. Did you say that Chief Willis came to Pine Bluff as a matter of practice four or five times, four and five nights a week? I understood you to say that.
A. Well, when I wanted him and couldn’t find him at night, I knew where he was, because he was either in Pine Bluff or Little Rock. It wasn’t his desire. It goes back into'the other side of his family.
Q. But the fact was that he would be in Pine Bluff?
A. Yes, sir.
Q. At night more often than he would be in Dumas?
A. I would back that up a hundred percent.
Q. Would it also be fair to say that, as you put it, when the bell rang at five o’clock he got in his car and got out of there, that he was going to Pine Bluff?
A. I don’t say he was going to Pine Bluff, but his automobile would be headed towards Pine Bluff.
Q. He would at least be leaving Dumas?
A. Yes, sir.”

Mayor Free testified that the City of Dumas only owned one police car and that it did not leave the City of Dumas. He then testified as follows:

“Q. If you sent an officer out of the City of Dumas to transact some business, he would of necessity have to use his own private car, would he not?
A. Ask the question again, sir.
Q. If you were to send one of your officers outside of the City of Dumas to transact some business, then, that officer would have to use his own personal car?
A. I am not going to send him outside the City limits to perform a duty, but Mr. Willis told me that afternoon he was going to Pine Bluff, and I asked him to take this warrant up there. As I stated in the beginning, Mr. Willis was very lax in the collection of his fines.
Q. You had information Mr. Willis had told you he was going to Pine Bluff that afternoon?
A. That’s right.
Q. And you asked him to take this warrant?
A. I told him I wanted this warrant given to the Sheriff or Deputy Sheriff in Jefferson County and have this man brought back.”

The Mayor then testified that he usually signed blank warrants and the Chief of Police filled them in. He testified that he saw the warrant and the carbon copy issued for Martin; that he does not remember the date on the warrant, but the warrant was still in Dumas when Chief Willis was injured.

“Q. You say the warrant had never been served?
A. The warrant was still in the desk when Mr. Willis had the wreck.
Q. Was still in the desk?
A. Yes, sir. If it is there now, I cannot answer that because a new Chief took over.
¶* w
Q. When did you find it?
A. I found it a week after the accident happened, when they brought Mr. Willis to Dumas. I was going through his personal drawer there. It wasn’t locked and the warrant was still right there in the drawer.”

Mr. A. L. Morgan succeeded Mr. Willis as Chief of Police and was on the Dumas Police Force at the time of Mr. Willis’ collision. He testified that he saw the warrant for the arrest of Martin on Chief Willis’ desk sometime between Martin’s escape and the date of the collision. He testified that Chief Willis told him that he would take the warrant to Pine Bluff and get one of the officers in Pine Bluff to pick Martin up. Chief Morgan says that he has looked for the warrant but hasn’t found it since Mr. Willis’ death.

State Trooper Green testified that he investigated the accident in which Mr. Willis was injured; that he talked to Mr. Willis in the hospital at which time Mr. Willis advised that he had started to Pine Bluff but did not say why. He testified that he saw some papers scattered on the floorboard of Mr. Willis’ automobile, as well as some on the front and back seats, but that he does not know what they were.

The testimony of other witnesses adds nothing' to the testimony above set out. There was testimony to the effect that Chief Willis returned to his office on at least one occasion in the two weeks’ interval between the date of his injury and the date of his death, but there is no evidence at all as to what happened to the warrant that had been issued for Martin; and there is no evidence at all that Chief Willis was on his way to Pine Bluff for the purpose of serving the warrant or delivering it to the law enforcement officers in Jefferson County when his injuries occurred.

We conclude, therefore, that there is substantial evidence in the record before us that Chief Willis’ injuries which resulted in his death, did not arise out of or occur within the course of his employment as Chief of Police of the City of Dumas.

The judgment is affirmed.


text:
    Cloys A. THOMAS v. STATE of Arkansas
    5562
    465 S. W. 2d 704
    Opinion delivered April 19, 1971

      Tackett, Young, Patton & Harrelson, for appellant.

      Ray Thornton, Attorney General; Mike Wilson, Asst. Atty. Gen., for appellee.
   J. Fred Jones, Justice.

The appellant, Cloys A. Thomas, was convicted of second degree murder in the Howard County Circuit Court and was sentenced to ten years in the penitentiary. On his appeal to this court he relies on the following points for reversal:

“The verdict and judgment are contrary to the law.
The verdict and judgment are contrary to the evidence.
The verdict and judgment are contrary to the law and to the evidence.
The Court erred in refusing to sustain Defendant’s motion at the conclusion of Plaintiff’s testimony for a directed verdict.”

Under Arkansas law, murder is the unlawful killing of a human being, in the peace of the state, with malice aforethought, either express or implied. Ark. Stat. Ann. § 41-2201 (Repl. 1964). All murder which is perpetrated by means of poison, or by lying in wait, or by any other kind of willful, deliberate, malicious and premeditated killing, or which is committed in the perpetration of or in the attempt to perpetrate, arson, rape, robbery, burglary or larceny, shall be deemed murder in the first degree. Ark. Stat. Ann. § 41-2205 (Repl. 1964). All other murder shall be deemed in the second degree. Ark. Stat. Ann. § 41-2206 (Repl. 1964).

The facts are not in dispute that about midnight on Friday, January 16, 1970, Billie June Thomas, the wife of the appellant, died from a .22 caliber rifle bullet fired at close range through her heart while in the bedroom of their trailer home. The appellant then carried his wife’s body from the trailer; placed it in the trunk of his automobile; drove to a secluded area about two and one-half miles from their trailer home, and there he secreted the body under brush and leaves. On Saturday morning he went to visit a girl friend in Hooks, Texas, and on Sunday evening he returned to Nashville and reported to his brother, who lived about 150 yards from the appellant’s trailer, that his wife was missing. On Monday following the death of his wife, the appellant told Eugene Ray about where he left his wife’s body and he solicited the assistance of Eugene in going to the spot for the purpose of burying the body. He and Eugene went out to the area on Monday night but were unable to find the body. On Wednesday he went with Eugene to Hot Springs to deliver a truckload of tomatoes and on this trip he continued in his effort to convince Eugene that his wife was dead and that he had secreted her body. Either on Wednesday or Thursday night, he again went to the scene with a shovel, and this time he found his wife’s body and buried it in a shallow grave. Eugene Ray refused to believe what the appellant had told him, but after learning that Mrs. Thomas was missing, Ray told the officers what the appellant had related to him, and the officers soon found the body buried in the shallow grave.

The record is replete with testimony of threats made by the appellant to kill his wife, but on such occasions appellant would be either drunk or drinking and there is ample evidence that he became belligerent when under the influence of alcohol. The evidence is also clear that on the night of Mrs. Thomas’ death, she and the appellant had both been drinking when they went to their trailer from his brother’s home about 11:30 at night.

The appellant made a statement to the officers which was accepted in evidence and he also testified in his own defense. The theory of his defense was that his wife accidentally shot herself while moving a .22 rifle and a shotgun from a corner of the bedroom where he had left them, to a closet in the bedroom of the trailer. The appellant testified that he and his wife had many quarrels, as well as separations, during the ten years they were married to each other. He testified that on the Friday night of his wife’s death, he and his wife visited in his brother’s home until about 11:30 when they returned to their house trailer. He says that he had been bird hunting and had his shotgun in the car when he and his wife returned to the trailer from his brother’s home; that after going into the trailer his wife went about putting some groceries up while he returned to his car, got his shotgun and put it in the corner of the bedroom where he usually kept his guns. He says he did not notice the .22 rifle that he usually kept in the corner but that it was probably there. He testified that after he put his gun and hunting shell vest in the corner, he turned on the TV and lay down on a couch in the living room to watch it. He says that in about three minutes he heard a muffled gunshot and a lot of racket. He says that he went into the master bedroom and that his wife was lying on the bed with one leg hanging off the bed, and that he saw her breathe one time. He says that both guns were laying on the bedroom floor with one or two coat hangers in between the guns; that the clothes closet door was off the track and that there were some coat hangers hanging inside the bedroom closet door. He says that he checked his wife’s pulse and felt for her heart beat. He says that he picked up the guns and placed them in the corner and,

“I thought I’d carry her to the hospital. Picked her up in this sheet that she was laying on, and I got down to the bottom of the steps and I got to thinking about all the trouble we’d had. I had been going with women, and she had been going out with these men. I got to thinking that people would think I was the cause of her death, had killed her, so I put her in the trunk of the car. I started driving this car, and I never could think where I was going to, but I went to this place where I used to hunt. I took her out of the car, put her in the leaves and went back home. I don’t remember driving the car back home, but I know I did because it was setting out in the yard next morning. Next morning my dog woke me up scratching at the door. I let him in and he went into the bedroom, and this all come back to me. First I thought I’d had a bad dream. I couldn’t find June and I got to looking around, and I found her shoes and her dress, and I knew it happened. I set down at this table and I got to thinking. I didn’t know what to do, so I told this friend that lives at Hooks. I told her about it.”

The appellant testified that in the past few years he had not cared anything about his wife and he didn’t think she cared anything about him. He testified that when he checked his wife’s pulse and found that she was dead,

“I first started to the hospital and I started down these steps and I got to thinking about all the trouble we had had, things that she had said about everything, and I had been going with this woman from Texas. She had been going with about every man she could go with. I got scared. * * * When I started down those steps I got scared. I got to thinking about all the trouble we’d had, the things she had said, I got to thinking about the women I had went, with and the men she had went with, and I went berserk, and I put her in the trunk of the car.
Q. . . . You say that you and June came into the trailer the last time, and you lay down on the couch?
A. Yes, sir.
Q. And that two or three minutes later your heard this noise?
A. Yes, sir. I turned on television before I laid down on the couch.
Q. Didn’t you say she brought some groceries in with her?
A. Yes, sir.
Q. What did she do with those?
A. When I first opened the door, she had this steak, and I believe it was an apple pie, a frozen apple pie. I said, ‘I’ve forgot my shotgun.’ She went in the kitchen and put the groceries up, and I got my shotgun and put it in the corner. Then I turned on TV and laid down on the couch.
Q. And it must have been immediately then that you heard the shot.
A. Approximately two or three minutes.
Q. Possibly two or three minutes.
A. Approximately two or three minutes.
Q. And you relate that up to that second of time there had been nothing whatever unusual or out of the way happen?
A. She mumbled something in there. I had the TV on. Maybe she was trying to slide the door open or something. She mumbled something. I didn’t understand what she said. She might have cussed or something.”

In the statement that the appellant gave to the officers, the appellant stated, in part, as follows:

“A. We hadn’t been in the trailer but just a few minutes ’till—I was in the living room and she was in the bedroom, and I heard the gun shoot, and I went in there and she was—fell back on the bed.
Q. Now, for the time being, I wish you would go ahead and tell in your own words, Tom, what happened then. Just relate what you did.
A. She was trying to put the guns in a closet, the way I thought, and the guns was laying there, and one coat hanger was laying out in the middle of the floor. She had a bunch of* coat hangers she had brought back from Texarkana. And she didn’t live a minute. By the time I got in there she breathed once or twice. So I started to call an ambulance, and I didn’t want to run off and leave her. I got scared. I checked her pulse to see if she was still alive, and she didn’t have no pulse.
Q. All right, then what?
A. I went out—I first started to call an ambulance and Lewis Tollett, and when I got scared I got to thinking maybe somebody would think I had shot her. We’d had so many arguments during her lifetime. So I got, her and put her in the turtle hull. I didn’t know where I was going. I just took off driving, and I carried her to that place up there in them woods. I didn’t have anything to bury her with, so I checked her again to see if she was still alive. She had got stiff.
Q. What did you do at that time to hide the body?
A. I don’t think I hid her very good.
Q. Did you cover her with leaves?
A. I didn’t have anything to cover her with but my hand.
Q. How was the body dressed at that time when you covered her with leaves there?
A. She might have been trying to take a bath. I don’t know, or go to bed one. She had a brassiere and her britches on.
Q. When you say britches, you are referring to what a lot of people call panties?
A. Yes.
Q. All right. And then, Tom, what happened after you—What did you do after you left her there?
A. I burned that sheet. Or I might have burned it before, and I drove back to the house.
Q. Now, in talking about that sheet, I believe you told us that you had taken her from the house—
A. —in a sheet.
Q. In a sheet. Was this the sheet from the bed?
A. Yes.
Q. Was it the bottom sheet on the mattress on the bed, off the bed?
A. Yes.
Q. Was that the only sheet that you had out there with the body?
A. Yes.
Q. And you burned the sheet down at the gravel pit?
A. Yes.
Q. For the record, that’s the gravel pit just on down a few yards, maybe a half a quarter, past the point where the body was buried?
A. (witness nods affirmatively.)
Q. All right. Now, Tom, that was after midnight on Friday night, wasn’t it?
A. Yes, sir.”

In his statement to the officers the appellant stated that he had left the shotgun and the .22 rifle in the corner of the bedroom; that he left the chamber open on the pump shotgun and that there wasn’t supposed to be a bullet in the .22 rifle. He stated that he never did leave a live round of ammunition in the barrel of the rifle, but there must have been one left in the barrel on the night his wife was killed. He stated that he and his brother’s little boy had recently been squirrel hunting, “and I always left it with a hull in the chamber where he would have to reload to where it would fire, you know.” He stated that regardless of the fact that he never left a live shell in the barrel of .his .22 rifle, “I know there was bound to be a live shell in the barrel when it was stood up there.” He stated that he always kept his guns in the corner of the bedroom but when his wife was there she would put them in the closet. He says that when he heard the shot and went into the bedroom, his wife was lying on her back across the bed with her feet hanging off of it, and that the guns were lying in the middle of the floor.

He stated that he saw the wound just below- her breast. He stated that his wife had a brassiere and panties on, and that the .22 rifle was lying on the floor with the barrel pointed towards the bed; that the shotgun was also in the floor with the barrel pointed kind of towards the closet. He stated that there was a coat hanger or two lying with the guns and that the slide closet door was off the track. He explained in his statement as to why he did not call his brother who lived nearby:

“A. I got scared. I didn’t know what to do. And I got to thinking that we had had so many arguments in the past that everybody would think that I shot that gun.
Q. Did you have your hand on the gun before it was fired?
A. No, I had put my shotgun over there, but I never touched the twenty-two.
Q. You hadn’t touched the twenty-two that night before she was killed?
A. No. There was a hull in the twenty-two, but there wasn’t no other bullets.
Q. Since that time have you re-loaded that gun?
A. Yes, I have re-loaded it.
Q. Why did you do that?
A. My little dog got out, and somebody kicked it out there, or it run into a bush. It hollered out the side of the trailer. I heard it holler, and it come back in. He was—
Q. Let me ask you this. There was an empty shell found out there in your trailer. Is that the shell that killed her? Is that the casing from the shell that killed her?
A. No.
Q. What did you do with the shell that was in the gun?
A. I thro wed it out in front of the yard.
Q. Thro wed it out in front of the yard? You mean you threw it out the front door?
A. Yes.
Q. Straight out the front door, or the right, or to the left?
A. It hit my car fender out there. I heard it hit.
# # *
Q. When did you take that shell out?
A. Right that night.
Q. Right after it happened?
A. And throwed it out. And I checked and there wasn’t any shells in the gun for the next two or three days, and I reloaded it.
Q. Why did you re-load it? Because of the dog incident?
A. I heard the dog holler and I thought there was somebody out there. The hull, if there was one in the trailer, I shot that gun at a field lark out there several times, a long time ago.
Q. Now, Tom, why was the body found without anything on it other than brassiere around the neck?
A. Her britches was on her unless they hung on sdmething about the turtle hull. The britches are still out here—her pants is.
Q. You are saying, Tom, that her panties are definitely there in the grave?
A. Or between there at that place somewhere, because I hung them when I started—They hung when I started out with her.
Q. Why was her brassiere up around her neck?
A. I guess it’s when I moved her. It probably slipped up.
Q. You have told us before this afternoon that when you went out there and moved the body from where it was covered with leaves down to the shallow grave that you dug Monday night, that you may have pulled her by her brassiere.
A. I might have.
Q, You didn’t take the brassiere off of her body and put it around her neck?
A. No.
JL JL bU, TV W ÍT
Q. I believe you told us earlier that you did not take a piece of that sheet to this barrel just north of your trailer and burn it.
A. I don’t know whether I did or not. I was so scared.
Q. Did you tear the sheet?
A. I don’t remember that sheet.
Q. You don’t think you could remember if you took a piece of this bloody sheet and—
A. I don’t believe I carried any out, but I possibly could.
Q. You say you don’t believe you carried any back to the trailer?
A. I know I didn’t carry any back. I might have took it out before I left, but I don’t even remember it. I can’t—I was so scared I didn’t know what to do.
Q. Are you sure this body was stiff when you first—by the time you got there?
A. Yes. I checked it three or four times, and I checked it up there.
Q. I believe you told us earlier it was between 30 and 40 minutes after she died that you took her out there.
A. It took me a long time to lift her.
Q. And get her in your car?
A. Around 40 minutes. Or 30 minutes.
Q. Did you fire up your car then and turn the lights on and drive out toward Center Point when you took the body out there?
A. Yes.
Q. Tom have you changed the mattress on the bed since that happened?
A. No.
Q. Didn’t it have blood on it?
A. No.
Q. You must have taken the body off the bed right away.
A. I checked it 30 minutes, 30 or 40 minutes.
Q. You mean the body remained on the bed 30 or 40 minutes?
A. It sure did.
Q. You’re saying then that it stayed on the bed till you got ready to take it out, put it in your car and go on out to the woods?
A. That’s right. I didn’t know where I was going when I started out.”

We are of the opinion that the evidence in this case is amply sufficient to sustain the conviction of murder in the second degree. It is well settled that in testing the sufficiency of the evidence on appeal to sustain a jury verdict in a criminal case, the evidence must be viewed in the light most favorable to the state, and that circumstantial evidence has long been recognized by law as sufficient to sustain a conviction. Cook v. State, 248 Ark. 332, 451 S. W. 2d 473. We are also of the opinion that there was ample circumstantial evidence in this case from which the jury could have reasonably found that the appellant fired the gun that killed his wife.

The jury had a right to consider the circumstantial evidence of the appellant’s mistreatment and threats to kill his wife over the years, as well as his panic following her death, and his attempt to secrete her body first by covering it with leaves and then burying it in a shallow grave.

There is no question but that the gun was fired at close range as evidenced by powder burns around the hole in the brassiere the deceased was wearing, as well as powder stains on the skin around the wound. The appellant testified positively that it was only a very short period from the time they entered the trailer until he heard the gunshot. The deceased put groceries up while the appellant put his shotgun in the corner, yet his wife was completely undressed with the exception of her brassiere and panties according to his testimony. The appellant testified positively that when he went into the bedroom following the shot, his wife was lying on her back across the bed and with the .22 rifle also lying with the shotgun on the floor of the trailer with the rifle barrel pointed in the direction of the bed. The most damaging bit of circumstantial evidence is the course of the bullet through the deceased’s thoracic cavity. The state medical examiner, Dr. Rodney F. Carlton, testified as follows:

“Q. Did you in your autopsy determine the course that the bullet had taken through the body?
A. Yes, I did.
Q. What did you determine that to be?
A. The bullet went front to back, left to right, with a slightly downward deviation. The resting site of the bullet was approximately one to one and a half inches below the entrance site in the skin.
Q. Now, Dr. Carlton, when you say—Did you say a slightly downward?
A. Yes, sir.
Q. Can you tell the jury what you mean by slightly downward through the body?
A. Approximately one and one-half inches from the entrance wound to the resting site, down, toward the feet.
Q. Did you examine the internal organs between the place of the entrance wound and the place where the bullet rested?
A. Yes, I did.
Q. And did that confirm the course of the bullet through the body?
A. Yes, sir.
Q. Can you describe the track between the entrance wound and where the bullet lay, or rested?
A. Yes, sir. It entered the first cavity through the fourth intercostal space, that is, the space between the fourth and fifth ribs. It perforated the right and left side of the heart, went through the sac enclosing the heart and into the backbone, which was practically in the mid-line of the body.
Q. Then there wasn’t any substantial deviation in the course of the bullet after the bullet entered the body and where it wound up?
A. No, sir.”

The jury might well have concluded from this evidence that had the deceased accidentally shot herself, the bullet would have ranged upward through her body rather than downward, and that she would have fallen forward on the floor rather than backwards onto the bed. The jury might well have considered that the most logical explanation for the position of the body and the course of the bullet was that the appellant simply shot his wife while she was sitting on the side of the bed. Another bit of circumstantial evidence the jury might well have considered as pointing to the guilt of the appellant, was his admitted effort to burn the bedsheet bearing the blood stains from his wife’s fatal wound. He remembered attempting to burn the sheet in the gravel pit near where die body was found and in which a part of the burned sheet was found. He remembered nothing of attempting to burn the sheet in the barrel incinerator near the trailer, but admits that he may have attempted to do so.

Another very potent item of circumstantial evidence unfavorable to the appellant lay in his attempted explanation of the ejected .22 rifle ammunition casing found on the bedroom floor of the trailer. He testified that the rifle was a pump type repeating rifle and that when the rifle was last used, an empty casing was left in the barrel. He also testified that after the round was fired that killed his wife, he ejected the empty casing from the chamber of the rifle and disposed of the casing by throwing it into the yard. He does not attempt to explain how the empty casing got onto the floor of the trailer, except to state that he had shot at a field lark sometime previously. Of course, if there was an empty casing in the firing chamber of the rifle when he left it standing in the corner of the bedroom, it would have been necessary to eject this casing before a live round of ammunition was placed in the chamber for firing. The appellant testified that there must have been a live round of ammunition in the firing chamber rather than a spent casing, but the jury might well have concluded that if the empty casing found on the floor of the trailer did not originally contain the bullet that killed Mrs. Thomas; then it must have been the casing which was ejected, at the same time the live ammunition that did kill Mrs. Thomas, was injected into the firing chamber of the rifle. There was also uncontradicted evidence from the police officers who examined the rifle, that they could not cause it to fire accidentally by jarring it, and no fingerprints could be found on the rifle.

In the appellant’s statement admitted in evidence, he stated that he remained in the trailer from 30 to 45 minutes before attempting to remove the body of his wife and he makes no explanation of what he was doing during this time. In the testimony he gave before the jury, he testified that when he was carrying his wife’s body out of the trailer, and as he was going down the steps of the trailer, he panicked and decided to secrete the body. The jury might well have considered such delay as deliberate on the part of the appellant to make sure his wife was dead before he attempted to do anything for her, or to do anything with her dead body.

We conclude, therefore, that the evidence was substantial and that the jury was lenient in assessing the penalty at only ten years on the appellant’s conviction of murder in the second degree.

The judgment is affirmed.


author: Conley Byrd, Justice.

text:
    LASHLEE STEEL COMPANY et al v. Eugene F. DODRIDGE
    5-5564
    465 S. W. 2d 691
    Opinion delivered April 19, 1971

      Terral, Rawlings, Matthews ir Purtle, for appellants.

      Hardin ir Pickard, for appellee.
   Conley Byrd, Justice.

The Workmen’s Compensation Commission allowed the claim of appellee Eugene F. Dodridge for hernia. The circuit court on review affirmed and appellants Lashlee Steel Company and its carrier, The Travelers Insurance Company, appeal on the basis that the claim does not come within the purview of Ark. Stat. Ann. § 81-1313(e) (Repl. 1960) which provides:

“In all cases of claims for hernia it shall be shown to the satisfaction of the Commission:
(1) That the occurrence of the hernia immediately followed as the result of sudden effort, severe strain, or the application of force directly to the abdominal wall;
(2) That there was severe pain in the hernial region;
(3) That such pain caused the employee to cease work immediately;
(4) That notice of the occurrence was given to the employer within forty-eight (48) hours thereafter;
(5) That the physical distress following the occurrence of the hernia was such as to require the attendance of a licensed physician within forty-eight (48) hours after such occurrence.”

Claimant testified that he was injured on September 18, 1969, while lifting a beam that weighed from 250 to 300 pounds. Upon experiencing pain in his back and lower stomach or groin on the left side, he wás unable to continue work. He then, punched his time card and went home. The next day he did not work but when he went by to pick up his check, he reported to the bookkeeper, the man in charge when the boss was not there, that he had hurt his back and had pain in the area where the hernia was subsequently found. He first went to a doctor on Tuesday following the Thursday injury. His explanation for the - delay was that he had had back trouble in the past and that he thought the pain was a recurrence of his old back trouble.

We agree with appellants that there is no substantial evidence to show a compliance with the fifth requirement, above, and that the commission erroneously allowed the claim.

In Miller Milling Company v. Amyett, 240 Ark. 756, 402 S. W. 2d 659 (1966) and Harkleroad, v. Cotter, 248 Ark. 810, 454 S. W. 2d 76, we pointed out that the showing of severe pain in the hernial region required by subsection (2) of the statute, above, is a subjective test whereas the subsection (5) requirement that the physical distress must be such as to require attendance of a licensed physician within 48 hours after the occurrence is an objective test and that if we held proof of the severity of the pain amounted to a substantial compliance with subsection (5), then subsection (5) would add nothing to the requirement that severe pain must occur.

Here the only evidence of pain is subjective. There is no objective evidence to show that the distress was such as to require the attendance of a licensed physician within 48 hours after the occurrence.

Our language in Harkleroad v. Cotter, supra, is here most appropriate. In that unanimous opinion we said:

“It might be argued, with considerable logic, that the specific statutory requirements as to proof in claims for hernia, penalize the honest, industrious and conscientious workman who fails or refuses to put down his tools immediately and rush to a doctor every time he feels pain following sudden strain or effort. The record before us in the case at bar indicates that the appellee was just such workman. It is a well recognized fact, however, that hernias may occur following any one of the numerous strains and efforts the average active individual workman may encounter during the 128 hour rest week, as well as during the 40 hour work week. It is a matter of common knowledge that witnesses do not see hernias sustained by fellow workmen as they would see a broken leg or broken arm. Consequently, the people have seen fit to make, and the legislature has seen fit to leave, a compensable hernia a rather dramatic occurrence under the statute, with little or no room left for question or doubt that it did occur within the course of employment as an immediate result of sudden effort, severe strain or force applied to the abdominal wall. The wording of the statute assumes the existence of a hernia. The statutory requirements of proof are directed at claims for hernia and not the existence or occurrence of a hernia.”

Reversed and dismissed.


author: Frank Holt, Justice.

text:
    Everett KING v. STATE of Arkansas
    5575
    465 S. W. 2d 712
    Opinion delivered April 19, 1971

      Powell Woods, for appellant.

      Ray Thornton, Attorney General; Milton R. Lueken, Asst. Atty. Gen., for appellee.
   Frank Holt, Justice.

The appellant was charged by information with two counts of possession of stolen property. The jury assessed his punishment at three years in the State Penitentiary on each count. From a judgment on that verdict comes this appeal.

Appellant, through his court-appointed trial counsel, contends for reversal that the evidence was insufficient to establish that the automobile (one count in the information) was stolen. We must agree with the appellant. The owner of the automobile was alleged in the information. It was also alleged that the appellant possessed the car “with the unlawful and felonious intent then and there to deprive the true owner of its property.” The State adduced evidence that the appellant was apprehended in possession of the vehicle as described in the information. However, the alleged ownership was never established. Ownership is a material element in the definition of the crime of possession of stolen property. Ark. Stat. Ann. § 41-5938 (Repl. 1964). The punishment is the same as in cases of larceny. Although an officer testified that the vehicle was reported stolen, there was no competent evidence establishing the ownership of the property. Since the alleged ownership in the information is a material and vital element in the alleged offense, we must hold that the evidence supporting this allegation was insufficient. See Fletcher v. State, 97 Ark. 1, 132 S. W. 918 (1910); Sutton v. State, 67 Ark. 155, 53 S. W. 890 (1899). Cf. Rogers v. State, (Ark. May 11, 1970) 453 S. W. 2d 393. The allegation of ownership permits an accused to make preparation for trial, to be confronted by the witness claiming ownership, and to be able to plead former acquittal or conviction should he ever again be accused of this same offense.

Appellant also contends for reversal that “without proof” as to the value of certain credit cards, there could be no conviction for the unexplained possession of them. There was evidence that appellant was found in possession of several credit cards. It is the State’s theory, which was supported by the owner’s testimony, that the various credit cards were of unrestricted value as to the amount that “might be collected thereon.” See Ark. Stat. Ann. § 41-3906 (Repl. 1964). The appellant’s theory is, however, there was no evidence that the value of the credit cards exceeded $35.00 or that he acquired any property in excess of $35.00 by using the credit cards. Therefore, at the most, he asserts that the alleged violation would be only a misdemeanor. We think that appellant was entitled to present to the jury his theory of a lesser offense which is in accordance with our recent view in Pierce v. State, (Ark. Mar. 9, 1970) 451 S. W. 2d 219.

We have examined other contentions appellant urges for reversal and find them to be without merit.

Reversed and remanded.


author: Carleton Harris, Chief Justice.

text:
    CHICAGO, ROCK ISLAND & PACIFIC RAILROAD COMPANY and Charles KIRK v. Paul HUGHES, a minor, by his father and next friend, Lewis Hughes
    5-5511
    467 S. W. 2d 150
    Opinion delivered April 26, 1971
    [Rehearing denied June 14, 1971.]

      Wright, Lindsey ir Jennings; By: William R. Overton, for appellants.

      James C. Cole, for appellee.
   Carleton Harris, Chief Justice.

This litigation relates to a railroad crossing accident. On May 24, 1968, a vehicle operated by Thelma Hughes, and in which her brother-in-law, Paul Hughes, appellee herein, was a passenger, was struck by a Chicago, Rock Island & Pacific Railroad Company train at a gravel road crossing in Malvern. Paul Hughes suffered injuries, and subsequently instituted suit against the railroad company and Charles Kirk, and Howard Smith, crewmen, for damages. On trial, the jury returned a verdict for Hughes in the amount of $20,000. From the judgment so entered, appellants bring this appeal. Two points are alleged for reversal, the first being that the trial court erred in submitting to the jury the issue of failure to keep a lookout. It is also asserted that the trial court erred in using modified versions of standard AMI instructions. We proceed to discuss these points in the order listed.

Thelma Hughes testified that she was driving a 1967 Opel Cadet automobile, and that her son Ricky was riding in the front seat with her. Appellee was riding to the right of Ricky. The automobile was a station wagon, having one door on each side, and a lid that lifted up at the back. The back door had a handle on the outside but no handle on the inside. The three were on their way to a little league park, and Mrs. Hughes had crossed at this particular crossing before. She stated that on approaching the crossing, she came to a complete stop about ten feet from the track, heard no whistle blowing or bell ringing, and proceeded to change gears and start up on the track. The motor went dead with the automobile in about the middle of the track, the front wheels being completely over and the back wheels not having crossed the track at all. She attempted to start the car five or six times and then heard "the roar and looked and saw the train coming”. She said that it was not traveling very fast and she attempted to start the car again, but without success. She then hollered "jump” and leaped out of the left side of the car, her son following immediately behind her. Paul “went over the back seat”, but was unable to open the back door since there was no handle on the inside. The train struck the automobile, but was not traveling fast enough to overturn the vehicle, and came to a complete stop within fifty or sixty feet beyond the crossing. Appellee suffered injuries from the collision as heretofore stated.

We think the court erred in submitting the issue of whether the train crew failed to keep a proper lookout. In Lovegrove v. Mo-Pac Railroad Co., 245 Ark. 1021, 436 S. W. 2d 798, we held on the question of failure to keep a constant lookout, the railroad company was entitled to a directed verdict if the undisputed testimony of the train crew reflected that such a lookout was being kept; we added that the jury might disregard the crew’s testimony when it was inconsistent within itself or contrary to other accepted testimony. In the instant case, we are of the view that not only did the evidence given by the train crew show that a proper lookout was being kept, but also, the other evidence offered, on behalf of appellee, substantiated this fact.

What was the evidence? Charles Graves, classified as a brakeman, testified that he was seated on the front seat on the west side, or left-hand side of the engine. Charles Kirk is an engineer but was classified as a fireman at the time because there had been a reduction in force; however he had served as an engineer in his own right on other runs, and had passed all the requirements as an engineer. He was sitting on the right-hand side of the engine. Howard Smith is an engineer, and at the time, was observing from the left-hand side of the train. As to keeping a lookout, Graves testified:

“Well, we came around the curve and Mr. Kirk was blowing the whistle in this curve and he made a reduction. He set the air brakes and the train slowed down and we, just as we came around the curve, I guess, I don’t know approximately how far we were from the crossing, 275 to 300 feet from the Collie Road crossing —we call it the ballpark crossing, I saw this car pull up there. * * * * The car stopped right on the tracks.”

He said that the automobile was approximately 15 or 20 feet from the tracks when he observed it and that he pulled the emergency brake valve as soon as the car stopped, this putting “the train in emergency”. Graves stated that the train was traveling around fifteen or fourteen miles per hour when he threw it into emergency; that it was moving about four or five miles per hour when it made contact with, the car and then traveled about an engine’s length past the crossing, or 50 or 60 feet.

Kirk testified that when the car came upon the track, he was able to see the hood and part of the front door, the train traveling around a slight curve. When asked how long it was between the time he saw the door and hood of the car and the time the train went into emergency, Kirk replied “The train was in emergency. The brakeman Graves, had already pulled the emergency valve”. He said that he was entirely satisfied with the stop made by the train and it was the best stop that could have been made.

Smith testified that the train was traveling from fifteen to eighteen miles per hour as it approached the crossing; that there is a twenty mile per hour restricted speed at that portion of the track. He said that he first saw the automobile when it drove up to the crossing and stopped, and that the train was between a quarter and a third of a mile away. The witness stated that only a few seconds elapsed from the time the car pulled into view and stopped, and the train was put in emergency. His testimony was that the speed of the train was between two and three miles per hour at the time it struck the automobile.

Thus the testimony by the members of the crew is all to the effect that the automobile was observed as soon as it could have been observed, and the train practically immediately put in emergency. The testimony of Mrs. Hughes is to the same effect. She said that after five or six attempts to start the car, she heard the roar, looked, and saw the train coming; that it was “not very fast”. From the record:

“Q. Was the train traveling very fast?
A. Well, when it come around the bend it started braking.
Q. Did you get any impression it was traveling at a fast speed or slow speed?
A. I couldn’t tell how fast it was going when it come around the bend. It started slowing as it come around the bend.
Q. You have never measured the distance up to the bend, have you?
A. No, sir.”
Further, from the record:
“Q. Did you see the train when it came around the bend as you were sitting on the track?
A. No. I was trying to start my car and heard the noise as the train started around the bend. I looked and saw it as it started around the bend.
Q. At that time when the train first came into sight, was it putting on its brake at that time?
A. Yes.
Q. In other words, as soon as he saw you he started putting on brakes. Is that what it amounted to?
A. Yes.
Q. Did you think the train was going to get stopped before it hit you?
A. Yes.
Q. I gather it slowed down to the point it was barely moving when it came in contact with your car?
A. Yes.
Q. Could 'y°u hear the brakes squeaking and squealing or however you want to describe it?
A. Yes.
Q. Did they squeal all the time from the time you first saw it—could you hear that?
A. Just as it came around the bend it started applying his brakes.
Q. It kept slowing down as it got closer and kept getting slower and slower?
A. Yes.
Q. Did I understand you to say after you saw or heard the train coming around the bend you tried to start your car some more after that?
A. Yes.
Q. You know about how many times you tried to start it?
A. Two or three times.”

Thus, Mrs. Hughes stated that the train started braking as it came around the bend (when she first could have been observed) that it was traveling slowly; that the brakes were squealing the entire time from when first applied until the car was struck, and that it (train) was barely moving when contact was made. Appellee, Paul Hughes, was not looking and did not even know a train was approaching until his sister-in-law hollered “jump”. We think the evidence herein set out clearly shows that there was no justification for the submission of the issue of whether a proper lookout was being maintained.

It is next asserted that the court erred in giving AMI 305-A instead of following the "Note On Use”, and giving AMI 305-B. 305-A, given, states "It was the duty of the railroad company, its agents, servants and employees, before and at the time of the occurrence, to use ordinary care for the safety of Paul Hughes”. Appellants contend that B should have been given instead of A, 305-B reading as follows. "It was the duty of all persons involved in the occurrence to use ordinary care for their own safety and the safety of others.”

We think appellants are correct in this contention. Several specific objections were made to the giving of 305-A, but it is sufficient to point out that the Note On Use states that A should be used when negligence on the part of the plaintiff is not an issue, and that B should be used when negligence on the part of the plaintiff is an issue. The negligence of Paul Hughes was an issue in this case, and in fact AMI 2109, instructing on comparative negligence, was given by the court at the request of appellants. The court gave no reason for using 305-A instead of 305-B, and we hold that error was committed.

Finally, it is asserted that the trial court erred in giving the jury a modified form of AMI 502, this modification consisting of adding a sentence to the instruction. AMI 502 reads as follows:

“When the negligent acts or omissions of two or more persons work together as the proximate cause of damage to another, each of those persons may be found liable. This is true regardless of the relative degree of fault between them. If you find that negligence chargeable to the defendant railroad proximately caused damage to Paul Hughes, it is not a defense that some third person may also have been to blame.”

The court then added to this instruction the following sentence, “However, in this case you are told that the negligence of Thelma Hughes, if any, cannot be chargeable to Paul Hughes”. We agree with appellant that this addition should not have been made, and is a clear violation of the per curiam order of this court dated April 19, 1965, wherein we stated' that if AMI contains an applicable instruction it should be used “unless the trial judge finds that it does not accurately state the law”. The order then provides that the court shall state its reasons for refusing the AMI instruction. No reason was given by the court for adding the last sentence, and in addition to what has already been said, we think appellants are correct in stating that the addition was to the advantage of appellee. The word “However”, according to Webster’s Third New International Dictionary (Unabridged), means inter alia, “nevertheless, notwithstanding”. In other words, it seems to qualify, or limit, the first part of the instruction, and to overly emphasize that the possible negligence of Thelma Hughes cannot be chargeable to Paul Hughes. Actually, of course, the additional sentence does not really add anything to the meaning of the instruction, for AMI 502 very definitely states that if negligence of the railroad proximately caused appellee’s damages it is not a defense that some third person may also have been to blame. This “third person” can only have reference to Thelma Hughes, the driver of the automobile. The effect of the addition was simply to tell the jury twice that any negligence on her part could not be charged to appellee.

For the reasons stated herein, the judgment of the Hot Spring County Circuit Court is reversed, and the cause remanded.

It is so ordered.

       The court directed a verdict for Smith.


text:
    Charlie BROOKS v. Katie McGILL
    5-5518
    465 S. W. 2d 902
    Opinion delivered April 26, 1971

      Odell C. Carter, for appellant.

      George Howard, Jr., for appellee.
   Carleton Harris, Chief Justice.

This litigation relates to who is the owner of Lot Nine of Paul’s Addition to the town of Grady, Arkansas. In September, 1946, a warranty deed was given from Sam Bass and wife to Ira McGill and Katie McGill to land described as Lot Nine in Block Three of Paul’s Addition to the town of Grady. In November, 1951, Lem Mosley and wife conveyed by warranty deed to Charlie Brooks, appellant herein, land described as Lots Five and Eight in Block Three of Paul’s Addition to the town of Grady. In 1968, Katie McGill, appellee herein, obtained a deed from Southeast Arkansas Levee District for Lot Twelve, Block Three of Paul’s Addition to the town of Grady. Appellee’s residence is located on this lot; also, in this same year, she obtained a deed from the State of Arkansas for Lot Twelve Block Three of Paul’s Addition to the town of Grady. Accordingly, though Mrs. McGill, together with her husband, had received a deed in 1946 to Lot Nine, she actually placed her house on Lot Twelve, thinking it was Lot Nine. Appellee testified that she did not know when she discovered that her home was actually on Lot Twelve; as noted, she did acquire the two deeds heretofore referred to in 1968. In August, 1969, Mrs. McGill instituted suit in the Lincoln County Chancery Court against Brooks alleging that nine months previously, Brooks had entered on her property without her consent, permission, or approval, had stacked lumber on the premises and had interfered with her enjoyment and use of the premises. It was contended that Brooks was financially irresponsible; that an action for damages would be of no value; that she had no adequate remedy at law, and she prayed the Chancery Court, in addition to seeking $5,000 damages for appellant’s unauthorized entry, use and occupation of the property, to restrain Brooks from coming upon any part thereof. Appellant filed a motion to dismiss the complaint, asserting that he was in possession of the land referred to, and had been for twenty years; that he had planted a garden thereon and used it for many years, and was the owner of the land; further, that the action was purely an ejectment action, and the proper remedy would be a suit in ejectment in the Circuit Court of Lincoln County. This motion was denied, and Brooks filed an answer setting out more fully his acts of possession; he also renewed his motion that the complaint be dismissed, or in the alternative, that the cause be transferred to the Circuit Court of Lincoln County. The court overruled the motion, and •the cause proceeded to trial, the court entering a decree for appellee at the conclusion thereof. Three points are relied upon for reversal, but since we agree that the trial court erred in refusing to transfer the case to Circuit Court, there is no need to discuss the other points relied upon.

It is clear from the record that Brooks was in possession of Lot Nine at the time this suit was filed; in fact, the complaint itself asserts that he had been in possession for nine months. This being true, we cannot examine further the evidence heard by the chancellor, for the motion to transfer should have been granted. In Gibbs v. Bates, 150 Ark. 344, 234 S. W. 175, this court said:

“In the present case the plaintiff claims under a legal title, and the defendant is in possession of the land claiming to hold adversely to the plaintiff and to all other persons. The plaintiff claiming under a legal title and the defendant being in possession, the plaintiff had a full and complete remedy at law, and chancery had no jurisdiction in the premises.”

See also Jackson v. Frazier, 175 Ark. 421, 299 S. W. 738, and cases cited therein.

The same situation exists in the case before us.

Reversed and remanded, with directions to transfer to the Lincoln County Circuit Court.