text:
    BATESVILLE INSURANCE & FINANCE CO., INC. v. Virgil BUTLER, Jr.
    5-5191
    453 S. W. 2d 709
    Opinion delivered May 18, 1970

      Barber, Henry, Thurman, McCaskill ir Amsler, for appellant.

      Murphy, Arnold <kr Blair, for appellee.

      Highsmith, Harkey & Walmsley, for United States Fidelity and Guaranty Company, cross-appellee.
   Conley Byrd, Justice.

This declaratory judgment action arises out of a collision between a state owned vehicle driven by appellee and cross-appellant Virgil Butler, Jr., and a vehicle driven by James R. Burrow in which Albert Poole was a passenger. After suits were filed by Poole and Burrow against Butler, Butler sought a declaratory judgment against cross-appellee United States Fidelity and Guaranty Company upon his personal automobile policy. Butler contended that he was covered under a non-owned automobile clause or, in the alternative, that U.S.F.&G. was estopped to deny liability because of its agent’s representations. U.S.F.&G. brought in appellant Batesville Insurance & Finance Company, Inc.., as a third party defendant and asked for judgment over in the event U.S.F.&G. should be held liable for the alleged representations of appellant. Thereafter, Butler amended his complaint to also ask for relief against appellant.

The trial court found that appellant Batesville Insurance through its agent had represented to Butler that his personal automobile liability policy, issued by U.S.F.&G., provided coverage while driving an automobile owned by his employer, the Arkansas State Highway Commission, and that Butler had relied upon such representation. The court also found that Butler, at the time of the June 11, 1968, collision, was operating a non-owned vehicle “regularly used by him.” Pursuant to its findings the trial court denied Butler any relief against U.S.F.&G. but héld that appellant was liable to Butler for all benefits which would have been available to him if the representations as to coverage had been correct. Appellant has appealed and Butler has cross-appealed against U.SlF.&G. For reversal appellant contends:

“I. The judgment of the court below declaring that appellant is liable to the appellee, Butler, because of misrepresentation of the extent of Butler’s coverage under family automobile policy is not supported by the evidence in this case.
II. The appellee, Butler, is estopped from relying on any misrepresentation as to coverage allegedly made by appellant and cannot recover against appellant.
III. The court below erred in failing to give appellant credit for the amount of premiums appellee, Butler, would have had to pay for coverage under a ‘Driver-other-cars’ endorsement.”

Butler, for reversal of the judgment in favor of U.S.F.&G., contends:

“1. The trial court applied an erroneous test to determine the coverage issue, and,
2. Because of representations made by appellant as agent of U.S.F.&G., the latter should be estopped from denying coverage.”

By its policies issued from 1962 to 1968, U.S.F.&G. agreed to pay on behalf of Butler all sums he became legally obligated to pay because of bodily injury and property damages, "... arising out of the ownership, maintenance or use of the owned automobile or any non-owned automobile. ...” The policy defines a “non-owned automobile” as “. . . an automobile or trailer not owned by or furnished for the regular use of either the Named Insured or any relative, other than a temporary substitute automobile.”

Through answers to interrogatories, U.S.F.&G. described appellant Batesville Insurance as a “soliciting agent”, furnished with blank insurance policy forms and riders which it was authorized to countersign and issue as binding upon U.S.F.&G. on payment of the proper premium. The answers to interrogatories also stated that U.S.F.&G. did write endorsements providing coverage for what is commonly known as “extended non-owned auto coverage” but because of the manner in which it kept records, it did not know whether it had furnished such forms to appellant. Batesville Insurance had not issued such an endorsement prior to the date of Butler’s accident.

Mr. Butler testified that his work at the time of the 1968 accident was in the field and that he had to leave the office to do his work for the Highway Department. To get from the office to the field, he went by state owned automobile. On the day of the collision, he had been to Sidon, Arkansas, on state business and was returning. The cars which he drove were obtained from a vehicle pool, issued according to rank. He was the highest ranking employee using the pool and entitled to drive a car home.

Mr. Butler’s testimony about his dealings with appellant, Batesville Insurance & Finance Co., Inc., shows that he was living in Searcy, Arkansas, in 1962 when he first secured his automobile liability policy from appellant. The insurance was renewed from year to year — he is still insured through appellant with U.S.F.&G. During this time Butler had some accidents which he says he reported. At the time he reported a 1964 Forrest City, Arkansas, accident to Mr. Bert Stephens, appellant’s manager, Mr. Stephens informed him that he was covered. Sometime in May or June, 1965, while Butler was living across the street from Mr. Stephens, Butler received a call from a man involved in the Forrest City accident inquiring about a “rider” to cover that accident. Butler told the man that he did not have a “rider” but that he thought he was covered. The man replied, “Well, never mind anyway, we’re going to the Claims Commission.” Because Butler had heard “riders” discussed at the Highway Department’s offices, he again discussed the proposition of a rider with Mr. Stephens. This discussion took place as Mr. Stephens drove in his driveway. Mr. Stephens again told Butler that he didn’t need a rider, that he was covered and mentioned something in regard to secondary liability. Notwithstanding the foregoing assurances, Butler requested Mr. Stephens to check and make sure. Sometime within the next month, Butler again saw Stephens, either in his or Butler’s front yard, and Stephens again assured Butler that he was covered while driving a state owned vehicle. Following the Claims Commission hearing on the Forrest City accident, Butler and his immediate superior, Mr. George Cavaness, were at the Batesville Outing Club with Mr. Stephens. Butler and Cavaness asked Mr. Stephens about Butler’s coverage while driving a state vehicle. Mr. Stephens again assured Butler that he was covered while driving a state car.

Mr. George Cavaness testified that the matter of liability insurance coverage was of some concern to his department and a matter that was discussed around the office. He had always made it a policy to specifically talk to the people under his supervision about obtaining some kind of coverage. Since he was having to pay for a “rider” to have coverage and Butler was not, he had called Butler’s attention to the fact that Butler should make doubly sure that he had coverage. Cavaness says he was with Butler at the Batesville Outing Club when the discussion was had with Stephens about Butler’s liability coverage, and that he heard Mr. Stephens assure Butler that he was adequately covered.

Mr. Stephens, now retired from Batesville Insurance but still receiving some money from it, acknowledged that he knew both Butler and Cavaness. He could not recall the alleged conversations, but he would not deny that they occurred.

Appellant contends that the evidence is insufficient to sustain the trial court’s findings because Stephens’ statements to Butler were true and correct until such time as Butler made known to Stephens that Butler was driving a non-owned vehicle furnished for his regular use. Then appellant argues that there is no evidence showing that Stephens ever knew that Butler was talking about a vehicle furnished for his regular use and that consequently Stephens’ statements did not amount to a misrepresentation. We find no merit in this argument because the evidence specifically shows that Butler’s inquiries concerned his possible need for a “rider” and also why Cavaness’ policy needed a rider and his policy did not.

Appellant’s second contention is that the alleged misrepresentations were made under circumstances which would not afford Butler the right to rely thereupon blindly and without further investigation, and that Butler, who had the specific policies in his possession at all times but simply failed to read or examine same, is now estopped from relying upon any representations which appellant might have made as to the extent of coverage.

The failure of the insured to read the policy issued is not ordinarily a defense to an action against an agent who has misrepresented to the insured that the policy delivered contains the coverage bargained for. See Couch on Insurance 2d, § 25:60. Agents such as Mr. Stephens are licensed by the state and hold themselves out as having more knowledge than an ordinary citizen concerning insurance policies and their coverages. For these reasons we find no merit to this contention.

Appellant’s last argument is that the trial court erred in failing to give it credit for the premium that Butler would have paid had he been given the coverage represented. Since this alleged error was not raised in the trial court, we will not consider it for the first time on appeal. Royal Crown Bottling Co. v. Terry, 246 Ark. 128, 437 S. W. 2d 474 (1969).

We find no merit to the arguments on cross-appeal. The first point raised is that the trial court used the wrong test — i. e., the policy excludes a non-owned vehicle “furnished for the regular use of . . . the named insured,” and the trial court in its decree found that Butler was operating a state vehicle “regularly used by him and not within the definition of an insured vehicle as set forth in the policy.” The declaratory decree was prepared by counsel and approved as to form by all parties without objection. Furthermore, the findings of the trial court dictated in the record show that the trial court properly used the term within the meaning of the policy.

Butler’s second point on cross-appeal is that U.S.F.8cG. should be estopped from denying the cow erage in question because of the representations of its agent, the Batesville Insurance 8c Finance Co., Inc. In making this argument, Butler has shown us no reason to overrule our many decisions holding that the doctrines of waiver and estoppel, based upon conduct or action of an insurer, cannot be used to extend coverage of an insurance policy to a risk not covered by its terms or expressly excluded therefrom, Life & Casualty Co. v. Nicholson, 246 Ark. 570, 439 S. W. 2d 648 (1969). Furthermore, the only authority, apparent or otherwise, shown to have been delegated to the agent was to countersign and issue policies and riders on printed forms when the proper premium was paid. This falls far short of apparent authority to extend the risk contained in a printed policy by an oral representation as suggested by cross-appellant.

Affirmed.


source: Caselaw Access Project

author: Frank Holt, Justice.

license: Public Domain

text:
    Lucille HICKS v. Ben C. McMINN, Adm’r
    5-5254
    453 S. W. 2d 728
    Opinion delivered May 18, 1970

      Martin, Dodds, Kidd, Hendricks ¿r Ryan, for appellant.

      Cooper Jacoway and A. F. House, for appellee.
   Frank Holt, Justice.

Appellant seeks to collect commissions due her as a real estate salesman on the basis that her commissions constituted wages as an employee within the meaning of our probate code. She worked many years for Hal Moore, a real estate broker in Little Rock, until the latter’s death in 1968. When appellant made a sale, Moore paid her a commission and retained a brokerage fee for himself. Appellant furnished her own car and transportation expenses; however, Moore provided her with a desk and other sundry needs incidental to her work. Appellant was not required to contribute to any of the office overhead expenses. She had complete freedom to work whenever she desired and received no compensation other than her commissions. Nor did Moore withhold taxes of any kind from her commissions; income taxes and Social Security payments were appellant’s own responsibility.

Upon Moore’s death, unpaid commissions, amounting to $8,564.92, from transactions up to four years previous were owing to appellant. She presented her claim for payment to the appellee, asserting that her unpaid commissions should be given subsection (b) priority, pursuant to Ark. Stat. Ann. § 62-2606 (Supp. 1969), in the distribution of Moore’s estate. The probate court, however, found this claim to be of subsection (c) classification and, therefore, not entitled to preference in payment. This appeal follows.

The sole question on appeal is whether unpaid real estate commissions, due a salesman from a number of transactions over a period of years, come within the compass of subsection (b) of § 62-2606. This statute classifies, in order of priority, the payment of claims to be made by the personal representative where the applicable assets of the estate are insufficient to pay all claims. The specified classifications are as follows:

“a. Costs and expenses of administration.
b. Reasonable funeral expenses and reasonable medical and other expenses incident to the last illness, and wages of employees of the decedent.
c. All other claims allowed.
No preference shall be given in the payment of any claim over any other claim of the same class, nor shall a claim due and payable, be entitled to a preference over claims not due.”

Appellant insists that her unpaid earnings are “wages of employees” within the purview of this statute and should therefore be given priority over subsection (c) claims. We do not agree.

Appellant urges us to interpret the terms “wages” and “employees,” as used in this statute, in their generic sense. She asserts arguments to the effect that “commissions” are a species of “wages,” as “sales agents” or salesmen are sometimes a species of “employees.” Our Employment Security and Workmen’s Compensation Acts are cited to us as examples. However, each statute dictates whether these terms are to be taken as synonymous or whether they must be distinguished. Therefore, the controlling consideration is a determination of the legislative intent.

In reviewing the history of this statute and the precursor of subsecdon (b), appellee correctly notes that the Revised Statutes of 1838, Ch, IV, § 80 [Ark. Stat. Ann. § 62-1003 (1947)], listed “expenses of the last sickness, wages of servants, * * *” as high priority claims, [emphasis added] Appellee’s contention is that the legislature, both in 1838 and in 1949 (the year in which the present statute was enacted), was attempting to provide for only those persons directly dependent upon an employer for wages for a livelihood. See 35 Am. Jur., Master and Servant § 63, and 29 ALR 2d 772 (1953). In the situation presently before us, appellant is requesting priority for commissions which are in arrearage up to four years. Clearly such commissions cannot be construed to be wages, the continuity in the payment of which she depended upon for her livelihood; rather, they reflect the posture of past debts entitled to no greater priority than other subsection (c) claims.

Appellant argues that § 62-2606 is a remedial statute and, as such, should be interpreted liberally by this court so as to give generic import to the terms “wages” and “employees” thus including her claim within subsection (b). This subsection has a primarily protective complexion, precisely delineating those claims to be given such priority — i. e., “reasonable funeral expenses, reasonable medical and other expenses incident to the last illness, and wages of employees of the decedent.” One could not effectively argue that this subsection should apply to unpaid medical expenses unconnected to the last illness and originating up to four years prior to decedent’s demise; so, too, we do not think that its scope should be broadened to include appellant’s claim which would thereby not only diminish the specific protection afforded to any personal wage earners the decedent might have had, but also unfairly divert assets which should be applied to subsection (c) claims equally, as is directed by the last paragraph of § 62-2606.

Affirmed.

Byrd, J., disqualified and not participating.


text:
    Jack STANLEY, III v. STATE of Arkansas
    5483
    454 S. W. 2d 72
    Opinion delivered May 18, 1970
    [Rehearing denied June 22, 1970.]

      Harper, Young ir Smith, for appellant.

      Joe Purcell, Attorney General; Mike Wilson and Don Langston, Asst. Attys. Gen., for appellee.
   Frank Holt, Justice.

The appellant was charged by information with the crime of first degree murder. Upon trial, the State waived the death penalty. A jury found appellant guilty of the alleged offense and assessed his punishment at life imprisonment in the State Penitentiary. From a judgment on that verdict comes this appeal.

The appellant first contends for reversal that the evidence is insubstantial to show a willful, deliberate, malicious, and premediated killing. The appellant was fourteen and one-half years of age at the time he admittedly shot and killed his stepfather. The State adduced evidence that when the police officials appeared at appellant’s home shortly after this tragedy occurred, the appellant admitted shooting his stepfather and said that he didn’t know the gun was loaded. The appellant was also interrogated by the prosecuting attorney and released in the custody of his mother. After further investigation, appellant was questioned a few days later at which time he claimed he did not know why he shot his stepfather. He stated that his stepfather had punished him on three occasions; however, he disclaimed any hatred for him. He admitted he had made a previous statement that he intended to kill his stepfather. A witness, who was a neighbor and about the same age as appellant, testified that the appellant was in his home twice on the day of the shooting. Appellant told this witness that he intended to shoot his stepfather that night and that he had “tried” to kill him about two days before and he couldn’t get a mechanism of the rifle to work as his stepfather drove up to the house. Appellant expressed a hatred for his stepfather because of alleged physical punishment administered by him. Another youthful member of this household testified that appellant told her on that same day that he intended to kill his stepfather and when she replied that he must be “kidding,” appellant said he could get by with it by making some excuse, running away or by putting a silencer on the gun. He expressed to her a hatred for his stepfather and had made similar statements of dislike previously. Another witness, about the age of appellant, testified that he came by this house as the appellant was leaving and he understood appellant to say that he was going to shoot his stepfather because of his dislike for him and that on other occasions he had heard appellant say that his stepfather beat him up once or twice.

The appellant did not testify. However, one of his narrations to the police was that when his stepfather came into the house late in the afternoon, the stepfather opened the gun cabinet and mentioned that he was going to trade off the rifle; that appellant asked to see the gun and that his stepfather handed it to him and went into an adjoining room; that appellant went to the gun cabinet, picked up a shell, loaded the gun, and then sat down on the divan; that his stepfather returned and was standing at a nearby table; “* # * I didn’t aim the rifle at him, I just held it with the barrel pointing towards him and I shot him. After I shot him he fell forward and caught himself against the chair and bent over then fell back on the floor. * * * After I shot him, I pulled the jack open and the shell fell out. I reached down and picked up the shell and looked at it and I laid it down on the table in front of the sofa. I then laid the rifle down and walked over to see about Ed. * * * It wasn’t long after that, maybe a couple of minutes before my mother came in. When she did I said, mama, mama I shot Ed. * * * I don’t know why I did it, there was something in me that just says kill, kill, kill.”

Appellant’s court appointed trial counsel ably and forcefully argues on appeal and in oral argument that: “* * * this is not premeditation from the standpoint of the individual taking a life, but rather the immature reactions of a child attempting to cope with a situation which he did not understand, i. e., the loss of his grandmother and the readjustment to life without her.”

Appellant’s defense was based only upon the plea of insanity. Appellant’s counsel asserts that this youthful offender was mentally disturbed because of his inability to reconcile differences, conflicts and crises he had experienced. Evidence was adduced from several lay witnesses in support of this contention, and especially with reference to the effect of the loss of his grandmother about two months previously. Also, a local psychiatrist testified that in his opinion the appellant was psychotic or mentally ill to the degree of not being responsible for the alleged act of murder. Previous to the trial the appellant was committed by a court order to the Arkansas State Hospital for a mental examination and was returned as being without psychosis. One of the doctors from the Arkansas State Hospital testified that it was the opinion of himself and the other members of the hospital psychiatric staff that appellant was not psychotic and that he was not mentally ill to the extent of being incapable of choosing between right and wrong and was, therefore, legally responsible for his acts.

The State’s theory of first degree murder and the appellant’s defense of insanity were both fully presented to the jury. The trial court instructed the jury on all degrees of homicide, the issue of insanity, and, further, told the jury that should it find the appellant insane, he would be committed to the. State Hospital until the superintendent had determined that appellant had regained his sanity. The jury’s anxiety and agonizing duty in resolving the conflicting theories and evidence, and in making its determination from the various verdict forms are apparent from questions propounded by it. It was within the province of the jury to determine the credibility of the witnesses and the weight to accord to their testimony in resolving these conflicting factual issues. It is firmly established that on appeal we must view the evidence in the light most favorable to the appellee and affirm the jury’s finding and verdict if there is any substantial evidence to support it. Harris v. State, 239 Ark. 771, 394 S. W. 2d 135 (1965); Stockton v. State, 239 Ark. 228, 388 S. W. 2d 382 (1965); Veatch v. State, 221 Ark. 44, 251 S. W. 2d 1015 (1952). Therefore, we must find no merit in appellant’s contention since we cannot say there was no substantial evidence to support the verdict of the jury.

Appellant next contends that the court erred in permitting the introduction of the State’s exhibits and allowing certain testimony. Appellant asserts that the introduction into evidence of the weapon, the expended cartridge, a photograph of the deceased, the bullet, a ballistics report, and fingerprints was prejudicial error. He argues that these items and the testimony accompanying their introduction were unnecessary since it was conceded that the appellant committed the act of shooting his stepfather. It is appellant’s position that the testimony and these exhibits were used to inflame and prejudice the minds of the jurors against the appellant. We cannot agree. The burden rested upon the State to prove beyond any reasonable doubt the allegation of first degree murder. The elements of malice, intent, deliberation, and premeditation are essential requisites in the proof of first degree murder. All of these exhibits and accompanying testimony were relevant and material to the issue as alleged in the information. Harris v. State, supra. Furthermore, the admission of the photograph of the deceased rests in the sound discretion of the trial court. Davis v. State, (May 5, 1969) 440 S. W. 2d 244; Stewart v. State, 233 Ark. 458, 345 S. W. 2d 472 (1961); Lee v. State, 229 Ark. 354, 315 S. W. 2d 916 (1958). The photograph of the deceased shows him fully clothed and in the position in which he was found at the scene of the alleged crime. We find no abuse of discretion by the trial court in the case at bar.

The appellant next asserts that the court erred in refusing to give a requested instruction which is based upon the Durham rule which pertains to the issue of insanity. This rule is predicated upon the theory that a defect or disease of the mind constitutes a valid defense. Durham v. United States, 214 F. 2d 862 (D. C. Cir. 1954), 45 A. L. R. 2d 1430. We have repeatedly rejected this theory. Stewart v. State, supra; Downs v. State, 231 Ark. 466, 330 S. W. 2d 281 (1959). We have held that the fact one has a mind which is below normal does not exempt one from punishment for his criminal behavior. Ezell v. State, 217 Ark. 94, 229 S. W. 2d 32 (1950). Our most recent rejection of the Durham rule and reaffirmance of our rule enunciated in Bell v. State, 120 Ark. 530, 180 S. W. 186 (1915) is found in Davis v. State, supra. This rule recognizes the defense of insanity which prevails when the defendant proves by a preponderance of the evidence, first, that at the time of the alleged crime, the defendant was under such a defect of reason from disease of the mind as not to know the nature and quality of the act he was doing, or, second, if he did know it, that he did not know that he was doing what was wrong, or, third, if he knew the nature and quality of the act and knew that it was wrong, that he was under such duress of mental disease as to be incapable of choosing right from wrong as to the act done and unable, because of the disease, to resist the doing of a wrong act which was the result solely of his mental disease.

The appellant next contends that the court erred in permitting the prosecution to refer to matters in his closing argument that were not in evidence and that were designed to inflame and prejudice the minds of the jurors. Appellant refers to that portion of the closing argument by the prosecuting attorney who stated: “Other people the age of the defendant, again are watching. It may well be that this defendant was watching events that occurred before this one did.” The trial court had previously admonished the jury during closing arguments that: “Any argument or statements or remarks of the attorneys having no basis in the evidence should be disregarded by you.” The trial court is accorded wide discretion in controlling and supervising the argument of counsel before a jury. Peters v. State, (Feb. 23, 1970) 450 S. W. 2d 276; Parrott v. State, (April 14, 1969) 439 S. W. 2d 924. No manifest abuse of discretion is demonstrated as a result of this argument to the jury.

The appellant next contends that the trial court erred in overruling the appellant’s motion to transfer the cause of action to the juvenile court. The alleged offense occurred on March 13, 1969. On March 17, 1969, after further investigation, the appellant was taken into custody for more questioning. On that date an information was filed by the prosecuting attorney, the appellant was then arraigned and preparations were made to transfer him to the State Hospital for á mental examination. After being found without psychosis by the State Hospital staff, appellant’s court appointed counsel petitioned the trial court, before trial, to transfer the case to the juvenile or county court. The motion was denied. Ark. Stat. Ann. § 45-241 (Repl. 1964) provides that it was within the discretion of the trial court to transfer the appellant’s case to the juvenile court. The argument advanced by appellant on this point was discussed in Monts v. State, 233 Ark. 816, 349 S. W. 2d 350 (1961), where we recognized that, under the provisions of our statutes, the matter of the transfer of a cause of action against a juvenile to the juvenile court is within the sound discretion of the trial court. See, also, Pritchard v. Downie, 216 F. Supp. 621 (D. D. C. 1963). Our legislature has also provided that following a conviction of a felony, the trial court is then authorized to send a juvenile under eighteen (18) to the penitentiary “if in the judgment of the trial judge such course may be expedient.” Ark. Stat. Ann. § 46-308 (Supp. 1969). The trial court was in a position much superior to ours to evaluate the extremely onerous problems presented by appellant’s motion. We cannot say that in the circumstances there was an abuse of discretion by the trial court in refusing to grant appellant’s pretrial motion.

Nor can we agree with appellant’s assertion that the entire proceedings of the appellant’s trial constitute a violation of his constitutional rights, both state and federal.

This case has given us much concern. However, finding no error, the judgment is affirmed.

      Ark. Slat. Ann. § 41-112 (Repl. 1964) provides that: “An infant under twelve [12] years of age shall not be found guilty of any crime or misdemeanor.” Between the ages of 12 and 14 years the presumption is that one is incapable of discerning right from wrong until the contrary is affirmatively shown. Gilchrist v. State, 100 Ark. 330, 140 S. W. 260 (1911); Garner v. State, 97 Ark. 63, 132 S. W. 1010 (1910).

      Section 41-111 states: “A person shall be considered of sound mind who is neither an idiot nor a lunatic, or affected with insanity, and hath arrived at the age of fourteen [14] years, or before that age, if such person know the distinction between good and evil.”


text:
    Royce Van MURPHY v. STATE of Arkansas

      5490

    454 S. W. 2d 302
    Opinion delivered May 18, 1970

      W. Harold Flowers, for appellant.

      Joe Purcell, Attorney General; Mike Wilson, Asst. Atty. Gen., for appellee.
   Frank Holt, Justice.

A jury found appellant guilty of the crime of first degree murder as alleged by an information and assessed his punishment as death in the electric chair.

On appeal the appellant first contends for reversal of the judgment on thát verdict that the evidence is insufficient to support the jury’s verdict. We cannot agree. The appellant, an inmate of the Arkansas State Penitentiary, admittedly killed a fellow inmate. The appellant told an investigating officer shortly after the killing that the victim and another inmate were “clowning around” in the barracks when the appellant walked by; that the deceased shoved or struck the appellant and called him a one-eyed son of a bitch; that as he walked away he started thinking about the altercation, went a short distance and got a knife that another inmate had given him the day before; that he walked back to the victim and stabbed him as he got up from his bunk bed; that he did not know how many times he stabbed him because his mind went blank; that he then gave the knife to another inmate and left the scene.

The inmate who was playing cards with the victim verified that the deceased and the appellant had engaged in a verbal clash when appellant was “bumped” by the decedent who did call the appellant a son of a bitch; however, according to him, this occurred earlier in the day. According to this witness, the appellant walked up from behind the deceased, who was unarmed, and started stabbing him in the chest without any warning.

Defense witnesses testified, however, that appellant acted in self-defense by wresting the knife from the deceased and then stabbed him when the deceased reached into his pocket. The appellant testified in his own defense and repudiated the version of his witnesses. He testified, as he had admitted to the investigating officer, that he got his knife from a nearby bunk and came back and stabbed the deceased after being knocked down by him as he walked by and was called a one-eyed son of a bitch. This epithet infuriated appellant because he considered it as referring to him as a “freak.” There had been no previous trouble between these inmates. The victim died almost immediately from two chest wounds inflicted by a knife. It is well established that in determining the sufficiency of the evidence, on appeal we must view the evidence in the light most favorable to the appellee and affirm if there is any substantial evidence to support the jury’s verdict. Hadaway v. State, 215 Ark. 658, 222 S. W. 2d 799 (1949). Certainly we cannot say that this evidence was in-. substantial and not sufficient to sustain the jury’s finding and verdict.

The appellant asserts that the trial court erred in the admission of the statement made by appellant to the criminal investigator of the Arkansas State Police. We find no merit in this contention. The testimony of the officer is uncontradicted that the statement made to him was freely and voluntarily given after fully advising the appellant of his rights. The trial court conducted an in-chambers hearing and made an independent determination that the appellant’s statement was freely and voluntarily made. Further, a sufficient answer to this contention is that the defendant testified in his own behalf and, in effect, reaffirmed his statement given to the investigator.

The appellant contends that the court erred in its instructions with regard to the alleged confession. As previously indicated, before permitting the officer to relate the appellant’s confession to the jury, the court conducted an evidentiary hearing in chambers, in accordance with the requirements of Jackson v. Denno, 378 U. S. 368 (1964). After this hearing, the court made an independent determination and held that the appellant’s confession was admissible. The officer was then permitted to relate appellant’s statements to the jury. In one of its instructions, the court told the jury that appellant’s confession, allegedly made to the officer, should be considered along with all the other evidence in the case in determining the guilt or innocence of the appellant. See Ark. Stat. Ann. § 43-2105 (Supp. 1969), and Brown v. State, 239 Ark. 909, 395 S. W. 2d 344 (1965). In finding no merit in this contention we only need observe that no prejudice could have resulted to the appellant because he testified in open court and admitted the killing in substantially the manner he related to the investigating officer. Further, the appellant is in no position to complain about this instruction since he made only a general objection and offered none of his own. Blaylack v. State, 236 Ark. 924, 370 S. W. 2d 615 (1963); Monts v. State, 233 Ark. 816, 349 S. W. 2d 350 (1961).

Appellant further contends for reversal that the court erred in denying his motion to defer sentence and judgment because of appellant’s mental condition at the time of trial and sentencing. Within two weeks after the commission of the alleged crime, the appellant was committed to the Arkansas State Hospital for a mental examination. It was the opinion of the hospital psychiatric staff that the appellant was without psychosis. Several months later when the appellant was tried, the defense of insanity was not interposed. The appellant testified, however, that he could not “think straight” at times and that he had previously been hospitalized for a mental disturbance. After closing arguments were made to the jury, and again as the jury left the courtroom for its deliberations, the appellant importuned the jury to be merciful and give him the death sentence. When the appellant appeared for sentencing several days after the jury’s verdict, his court appointed counsel made an oral motion for a stay of sentencing and judgment upon the basis that the appellant was mentally incompetent and that proof would be adduced to substantiate his alleged mental condition and the need for a re-examination at the State Hospital. The trial court denied the request for the stay, stating that: “Under the circumstances of the trial and the lateness of your motion the court is going to deny your motion; however, I am going to give him time in which you can take whatever action you need to take in it, which you perhaps will.” When insanity is claimed as a ground for postponement of sentence, the trial court is empowered to exercise its discretion. Ark. Stat. Ann. §§ 43-1301, -1303, -1304 (Repl. 1964). See, also Townsend v. City of Helena, 244 Ark. 228, 424 S. W. 2d 856 (1968), and Cousins v. State, 202 Ark. 500, 151 S. W. 2d 658 (1941). The trial court had the opportunity to observe the appellant and to consider his demeanor during the trial and on the day of sentencing. Before the trial, the appellant was committed by the court to the State Hospital for a mental examination and there it was determined that he was without psychosis. In the circumstances, we cannot say that the trial court abused its discretion in denying appellant’s oral motion that proceedings be postponed until a further mental examination was conducted.

After considering every objection and assignment of error, as we do in capital cases, Ark. Stat. Ann. § 43-2723 (Repl. 1964) and Brown v. State, supra, and finding no error, the judgment is affirmed.


author: Carleton Harris, Chief Justice.

text:
    Frank DOLPHUS, Jr. v. STATE of Arkansas
    5472
    454 S. W. 2d 88
    Opinion delivered May 25, 1970

      E. V. Trimble, for appellant.

      Joe Purcell, Attorney General; Mike Barrier, Asst. Atty. Gen., for appellee.
   Carleton Harris, Chief Justice.

Frank Dolphus, Jr., appellant herein, was charged by an Information filed on December 4, 1968, with the crime of Grand Larceny, alleged to have occurred on November 22, 1968. On trial, Dolphus was found guilty, and after being found guilty, the jury determined sentence on the basis of the Habitual Criminal Statute, Sec. 43-2328 Ark. Stat. Ann. (1969 supplement), fixing his sentence as a fourth offender at twenty-six years and three months confinement in the penitentiary. From the judgment entered in accordance with these verdicts, appellant brings this appeal. No brief has been filed by the appellant, but his motion for a new trial, in effect, questions the substantiality of the evidence to sustain the conviction. It is also contended that the court erred in imposing a sentence upon Dolphus as an habitual criminal, it being asserted that this statute is unconstitutional in that Dolphus is being punished twice for previous offenses, and also, it constitutes cruel and unusual punishment. We proceed to a discussion of each point.

Mrs. Virginia Hammett testified that she and her husband had operated a grocery store for about 20 years in West Memphis; that on the morning of November 22, 1968, she opened the store a little after 7 o’clock A.M., her 20 year old son, Ed Hammett, being there with her. She said that about 7:50, a Negro man came to the store, went to the back, picked up a ten cent cake, and walked back to the cash register. She was behind the counter and he handed her a ten dollar bill. According to her testimony, as she opened the register and rang up the dime, the man said “No, wait a minute, I’ve got some change”. She then gave back the ten dollar bill, and he slammed the change over the counter away from the register, which was still open. In the meantime, he had asked for a can of baby food, and her son had gone around the counter to obtain it. At the same time, Mrs. Hammett was “down on the floor picking up the change”. The man then left the store. Mrs. Hammett stated that he was the first customer for the day, and that no money had been taken in at the time he walked in; the only money in the cash register was what she had placed there in opening the store for business that morning. She also said that no suppliers had been paid prior to the man’s coming into the store; that after he left, she discovered that $50.00 in $5.00 bills was missing from the cash register. At the trial, the witness identified Dolphus as the man in the store.

The son also identified Dolphus as the man who was present in the store, stating:

“Well, he had come in to buy — to purchase something from the store, and he brought it up to the counter, and asked my mother, Mrs. Hammett, where the tall thin man was, which meant my daddy who was sick, and then he asked for spinach and bacon baby food. I thought there was no such thing, but I thought maybe there was and started to look, then I thought, I know there is not, and I started back, and I guess I returned to the front quicker than he thought I would, and I saw him reach over the cash register and grab money out of the cash register and put it in his pocket.’’

On cross examination, young Hammett said he didn’t actually see Dolphus with his hand in the cash register, but saw him reach over to the cash register. The witness followed Dolphus out of the store, and saw appellant drop something and stop to pick it up. Hammett stepped back into the grocery and told his mother to call the police. He then observed Dolphus get into a 1964 light blue Imperial, bearing a Tennessee license number, took down the license number, saw the car leave in the direction of Memphis, and reported the matter to a police patrol car. Hammett said there was another person also in the car, a woman. Dolphus was arrested by officers of the Memphis Police Department, and he voluntarily returned to Crittenden County. No evidence was offered by appellant. The testimony was sufficient to sustain the conviction. It is true that no one actually saw Dolphus put his hand into the cash register, but such proof was not necessary. We have held that participation in larceny may be shown by circumstances. Puckett v. State 194 Ark. 449, 108 S. W. 2d 468. This assignment of error contains no merit.

Nor do we find merit in the second contention. The record reflects that counsel for the state and counsel for the appellant stipulated that Dolphus had previously been convicted of robbery in the State of Oklahoma, serving time in the Oklahoma penitentiary in 1952; that he had previously been convicted of the offense of larceny in 1956, serving time in the state penitentiary in Illinois, that he had also been previously convicted of the offense of attempted larceny of a building in 1964, serving a sentence in Jackson, Michigan.

After finding appellant guilty of the current offense, the jury was instructed as to punishment for a fourth or subsequent conviction under the statute previously cited, and his sentence was fixed at 26 years and 5 months. The same contention now made by appellant was made in the federal case of Oliver v. United States of America 290 F. 2d 255, where Oliver was convicted of a narcotics violation in 1959, but was sentenced on the basis of having also been convicted of a similar offense in 1941. The Circuit Court of Appeals (8th Circuit), in rejecting the contention, said:

“An application was thereafter filed by appellant, which was in effect a motion under 28 U. S. C. A. § 2255, challenging the validity of the heavier sentence to which he had been subjected from the existence of his 1941 conviction. The basis of his challenge was that the increased penalty provision invoked against him for a second offense violation of the narcotics statutes had been enacted after his 1941 conviction, and that its application to him therefore made it an ex post facto law, in violation of Art. 1, § 9, cl. 3 of the Constitution. * * * *

“The trial court denied the § 2255 motion without a hearing and refused to allow appellant to proceed on appeal in forma pauperis, except to permit him to file a notice of appeal without payment of fee. He now seeks leave from us to prosecute his appeal in forma pauperis.

“The increased penalty imposed upon appellant under § 7237 (a) because of his 1941 conviction is not a punishment for that offense, but simply ‘a stiffened penalty for the latest crime, which is considered to be an aggravated offense because a repetitive one.’ (citing other cases) Appellant was not being made to pay an additional penalty for the violation he committed in 1941, but he was merely being given more severe punishment for what he had done in 1959, in that he had seen fit to engage in another narcotics offense after § 7237 (a) was enacted”.

Nor can we agree that the penalty constitutes cruel and unusual punishment.

Affirmed.

Fogleman, J., not participating.

      The reporter evidently inadvertently made an error in transcribing the Court’s charge to the jury; in quoting the Court’s recitation of the stipulation, the location of the Illinois penitentiary is shown as “Bernard” instead of "Menard”, and the serving of the sentence at Jackson is shown as “Mississippi” instead of “Michigan”.

      Under the statute, Dolphus could have received thirty-one years and six months.


author: George Rose Smith, Justice.

text:
    SOUTHERN FARM BUREAU CASUALTY INSURANCE COMPANY v. WRIGHT OIL COMPANY, inc.
    5-5252
    454 S. W. 2d 69
    Opinion delivered May 25, 1970

      Shaver, Tackett, Young & Patton, for appellant.

      McMillan, McMillan <b Turner and Robert Wright, for appellee.
   George Rose Smith, Justice.

The question is whether a claim for personal injuries is assignable in Arkansas. This appeal is from a judgment upholding such an assignment.

In 1967 Mr. and Mrs. Robert O. Hickson owed Wright Oil Company, the appellee, $1,206.24 upon an open account. The Hicksons also had unliquidated personal injury claims, arising from a traffic collision, against Howard Cox and his liability insurer, the appellant. The Hicksons, to secure their debt to Wright, assigned to it $1,206.24 of their tort claims against Cox and Southern Farm. Wright notified Southern Farm of the assignment and asked that it be honored in any settlement of the Hickson-Cox dispute. Southern Farms, however, ignored that request and settled with the Hicksons for more than the amount of their debt to Wright. Wright then brought this action against all three defendants for $1,206.24. Southern Farm alone has appealed.

At common law the courts did not recognize either the assignment or the survival of tort claims, whether for personal injury or for property damage. Laying aside survivability for the moment, the principal justification for the rule against assignability was the avoidance of maintenance — the fomenting of litigation between others. If causes of action for personal injuries could be assigned, then speculators could buy up such claims, perhaps at necessitous discounts, and conduct a profitable traffic in human pain and suffering. See Rice v. Stone, 1 Allen (Mass.) 566 (1861). It has also been said that the considerations urged to a jury in a personal injury case are of such a personal nature that an assignee cannot urge them with equal force. Bethlehem Fabricators v. H. D. Watts Co., 286 Mass. 556, 190 N. E. 828 (1934).

Common law judges often mentioned assignability and survivability in the same breath, even though the policies underlying the two interdictions were far from being identical. Thus a linkage of thought grew up. Consider, for example, our opinion in Ark. Life Ins. Co. v. American Nat. Ins. Co., 110 Ark. 130, 161 S. W. 136 (1913). There we held that an action in tort for the destruction of a business did not survive under our statute, because the cause of action did not involve physical damage to tangible personal property. But we enunciated, as dictum, the rule of thumb that had already come into being: “The causes of action that survive are assignable; those that do not survive are not assignable.” Thus what began as an association of ideas is being stated in terms of cause and effect.

The fusion of assignability with survivability occurred in several jurisdictions without the courts seeming to realize what was taking place. Over a period of many years statutes providing for the survival of tort claims have been widely adopted in America. In a few states, such as Virginia and West Virginia, the legislature has taken pains to declare that survivability does not give the right to assign a tort claim not otherwise assignable. Under such statutes assignability and survivability have been kept separate. Ruebush v. Funk, 4th Cir., 63 F. 2d 170 (1933); Hereford v. Meek, 132 W. Va. 373, 52 S. E. 2d 740 (1949).

Usually, however, the survival statute does not mention assignments. The wording of our own statute is fairly typical: “For wrongs done to the person or property of another, an action may be maintained against the wrongdoers, and such action may be brought by the person injured, or, after his death, by his executor or administrator against such wrongdoer, or, after his death, against his executor or administrator, in the same manner and with like effect in all respects as actions founded on contracts.” Ark. Stat. Ann. § 27-901 (Repl. 1962).

A factor contributing to the merger of survivability with assignability was the absence of any good reason for denying assignability when property damage only was involved. The reasons of policy that militate against the assignment of personal injury claims have little relevancy with respect to property damage claims. That distinction was recognized by the Supreme Court of Tennessee in 1925, when it observed that “actions ex delicto for injuries to property, as distinguished from actions ex delicto for injuries to person, are assignable.” Haymes v. Halliday, 151 Tenn. 115, 268 S. W. 130 (1925).

There is a clear division of authority upon the assignability of personal injury claims under survival statutes like ours. In some states the courts have routinely applied the rule of thumb by which survivability and assignability go hand in hand. In Mississippi, for example, the court first applied that rule, without discussion of policy considerations, in a property damage case. Chicago, St. L. & N. O. R. R. v. Packwood, 59 Miss. 280 (1881). When the issue later arose in a personal injury case, the court merely followed its earlier holding, without comment. Wells v. Edwards Hotel & City Ry., 96 Miss. 191, 50 So. 628 (1909). Other cases upholding the assignability of personal injury claims, as a consequence of their survivability, include Vimont v. Chicago & N. W. R. R., 64 Iowa 513, 21 N. W. 9 (1884); Grand Rapids & I. Ry. v. Cheboygan, 161 Mich. 181, 126 N. W. 56, 137 Am. St. Rep. 495 (1910); Daven port v. State Farm Mut. Auto. Ins. Co., 81 Nev. 361, 404 P. 2d 10 (1965); Galveston, H. & S. A. Ry. v. Ginther, 96 Tex. 295, 72 S. W. 166 (1903); and Lehmann v. Deuster, 95 Wis. 185, 70 N. W. 170, 37 L. R. A. 333, 60 Am. St. Rep. 111 (1897).

When the cases are studied it is strikingly noticeable that in no instance, as far as we have found, has any court discussed the basic issue of public policy in the course of holding that survivability carries with it assignability with respect to personal injury claims. The opinions follow a set pattern in declaring that inasmuch as the claim would survive the injured person’s death, it is therefore assignable during his lifetime.

By contrast, whenever courts have explored the policy considerations pertinent to the issue, they have held —without exception, we think — that survivability of personal injury claims does not attract assignability in its wake. The leading case is North Chicago St. Ry. v. Ackley, 171 Ill. 100, 49 N. E. 222, 44 L. R. A. 177 (1897). There the court first recognized the basis for the common-law rule: “On grounds of public policy, the sale or assignment of actions for injuries to the person is void. The law will not consider the injuries of a citizen whereby he is injured in his person to be, as a cause of action, a commodity of sale.” The court then went on to point out that survival statutes are passed not for the benefit of the injured person but for that of his widow and next of kin. Yet if the cause of action is held to be assignable by the injured person, the very purpose of the survival statute is defeated. Moreover, as the court observed: “If such actions are held assignable, on the sole ground of survivor, then an assignee in bankruptcy or under the benefit of creditors would take the cause of action.”

Similarly, in an Arizona case the court first reviewed the policy argument against assignability and then concluded that the assignment of personal injury claims should be authorized by legislation more explicit than a mere survival statute. Harleysville Mut. Ins. Co. v. Lea, 2 Ariz. App. 538, 410 P. 2d 495 (1966). From the opinion:

At common law, a chose in action for personal injuries could not be assigned and would not survive. Most writers objected to the assignability because they felt that unscrupulous people would purchase causes of action and thereby traffic in law suits for pain and suffering. . . . While there may have been other reasons for frowning upon the assignability of personal injury claims, a vast majority of the early rulings based the non-assignability upon the grounds that at common law such claims did not survive the death of the injured person. It is not then surprising to note that when statutory provisions providing for the survival of a cause of action for personal injuries have been enacted, the courts have generally followed the rule that the claim is also assignable.
* * * * *
Although the historical reasons given for the non-assignment of a personal injury claim have been based mostly on the non-survivability of the cause of action, we believe that the non-assignability rule standing alone has much support in public policy. Although we are not called upon to discuss the absence of legislation which would authorize the control of policy provisions in medical benefit insurance, allowing the subrogation or assignment of a cause of action for personal injuries is so fraught with possibilities, that the rule in Arizona against assignment should remain the same until changed by the legislature.

The entire subject was treated in the same way in Missouri, where the court, after reviewing the arguments at some length, reached this conclusion: “We reject the rule . . . that whether a cause of action for personal injury is assignable depends solely upon whether it survives and adopt the rule that such causes of action may not be assigned prior to judgment for reasons of public policy.” Forsthove v. Hardware Dealers Mut. Fire Ins. Co., Mo. App., 416 S. W. 2d 208 (1967).

We have no hesitancy in joining those courts which hold that a survival statute does not confer the power of assignment upon the holder of an unliquidated tort claim for personal injuries. It follows, of course, that we also reject the appellee’s secondary argument that the proceeds of such a claim should be assignable before judgment, even though the cause of action itself is not. The only value of a cause of action is its possible conversion into a collectible money judgment; so there is no sound basis for distinguishing between the cause of action and its proceeds as far as assignability is concerned.

Reversed.


text:
    B. J. HOLLEMAN et al v. Geraldine FOWLER
    5-5267
    454 S. W. 2d 100
    Opinion delivered May 25, 1970

      Comer Boyett, Jr., for appellants.

      Lightle & Tedder, for appellee.
   George Rose Smith, Justice.

This appears to be a suit by the appellee to recover judgment upon a $30,-000 note and to impress a constructive trust upon certain land. The chancellor granted the money judgment but refused to enforce the asserted trust. The appellants gave notice of appeal and filed a two-volume record in this court, but they have not submitted an abstract or a brief. As to them the decree must be affirmed under our Rule 10.

The appellee filed notice of cross appeal and has submitted a brief urging that the chancellor erred in refusing to declare a constructive trust. The appellee, however, has not abstracted that part of the record pertinent to her cross appeal, as she should have done. Terry v. Klein, 133 Ark. 363, 201 S. W. 801 (1918). It being impossible for all the seven judges to examine the record, we have no choice except to affirm the decree on cross appeal as well. Insured Lloyds v. Ahrend, 245 Ark. 225, 431 S. W. 2d 740 (1968).

Affirmed.


author: J. Fred Jones, Justice.

text:
    J. W. HARKLEROAD and UNITED STATES FIDELITY & GUARANTY COMPANY v. James D. COTTER
    5-5256
    454 S. W. 2d 76
    Opinion delivered May 25, 1970

      Dudley & Burris, for appellants.
    O. D. Pendergrass, for appellee.
   J. Fred Jones, Justice.

This is a workmen’s compensation case involving a claim for hernia. The referee and the full commission awarded compensation benefits and the award was affirmed on appeal to the circuit court. On appeal to this court, the employer and compensation insurance carrier rely on the following point for reversal:

"The appellee’s claim for workmen’s compensation benefits does not come within the purview of Arkansas ‘Statute 81-1313 (e).”

We conclude that the judgment of the circuit court must be reversed. To hold otherwise would, in our opinion, do more than merely approve a liberal construction of the statute. It would, in effect, amend or nullify a provision of the compensation law which the legislature has seen fit to leave unchanged in effect for more than thirty years.

Ark. Stat. Ann. § 81 -1313 (e) (Repl. 1960) provides, in part, as follows:

“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.”

There is little question that on September 12, 1968, the appellee, Mr. Cotter, either sustained a hernia while in the course of his employment, or he sustained an injury on that date which later resulted in a hernia. Mr. Cotter testified, without controversion, that he and four other men were lifting a 4 x 9 inch eye beam about 20 feet long, when he felt something pull in his side and felt a stinging sensation in his inguinal region. He testified that the accident occurred about 10:00 o’clock on Thursday, September 12, and that he at first thought he had strained a muscle. He testified that he went ahead and worked the remainder of the day on Thursday, as well as all day Friday, and all of the following week. He says that he got to hurting at night until he couldn’t sleep so he decided he had better go to a doctor. He says that on Monday, September 23 he went to Dr. Carl B. Arnold, and at this point Mr. Cotter testified:

“Q. Did he discover that you had an inguinal hernia?
A. He said that I had a direct hernia he thought he could feel a direct there but he said to stay off work a few days — he said it would not get any better — it would have to be operated on but it might be put off until a later date so I stayed off that week and then on a Thursday there was a big knot come up there in my side — well I thought my intrals come out — I don’t know what it was.
Q. This would be Thursday following the Monday examination?
A. Yes, sir.”

Mr. Cotter testified that he returned to the clinic on Friday morning and saw Dr. Ducker who diagnosed a hernia and recommended an operation. He says he entered the hospital on Sunday, September 29, and was operated on the following day. On cross-examination Mr. Cotter testified that he reported his injury to his employer on the day it occurred, Thursday, September 12, but that he continued to work on that and the following day. He testified that no one worked on Saturday, but the following week he worked the full five days and then went to the doctor on the following Monday, September 23. Mr. Cotter testified under questioning by the referee, as follows:

“Q. When you told Mr. Harkleroad, what did he tell you?
A. He told me to take it easy — I thought it was just a pulled muscle in there — it was hurting — the muscle went up to my ribs — it was hurting around my hip on there — I thought I had just sprained something.”

Mr. Harkleroad, the appellant employer, testified that the appellee was working for him at the time of his injury and reported the injury to him. He says that actually, the claimant and three other men were lifting the beam because he himself had a weak back and wasn’t doing much lifting. He says that Mr. Cotter reported that he had pulled something in his side but didn’t know just what it was—

“so we just went ahead — I told him not to do any more lifting that day and see what happened to it because we didn’t know exactly what it was.”

Dr. Carl B. Arnold reported that he examined the appellee on September 23, 1968, and diagnosed a right inguinal hernia which was repaired on September 30, 1968. Dr. Arnold concluded his report as follows:

“His hernia was indirect inguinal with no significant ring formation on a fairly good sized sac. This means to me the hernia was of very recent occurrence and I assume related to his work.”

The opinion of the referee which was adopted by the full commission sets out conclusions as follows:

“Section 13 (e) of the Workmen’s Compensation Act, pertains to hernias and provides:
‘(1) That the occurrence of the hernia immediately followed as the result of sudden effort, severe strain, or the application of force direcdy 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 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 48 hours after such occurrence.’
Respondent has contended that claimant did not comply with sub-section 2, in that there was severe pain in the hernial region. The evidence reflects that at the time of the lifting of the heavy steel beam, along with three other employees, that claimant did feel a stinging sensation and burning in his inguinal region and reported this to his employer and he was told not to do any additional lifting and see how he got along. Section 3 provides that such pain caused the employee to cease work immediately. The evidence reflects that the employer did tell claimant to cease work and not do any heavy lifting. Sub-section 5 provides that the physical distress following occurrence of the hernia was such as to require the attendance of a licensed physician within 48 hours after such occurrence.
The employer was notified at the time by the claimant that he had a stinging, burning sensation in his inguinal region as a result of lifting this steel beam and the provision of Section 13 following subsection 5 comes into being here and it provides: ‘In every case of hernia it shall be the duty of the employer forthwith to provide the necessary and proper medical, surgical and hospital care and attention to effectuate a cure by radical operation of the hernia, to pay all reasonable expenses in connection therewith and in addition to pay compensation not exceeding a period of 26 weeks. In case the employee shall refuse to permit such operation it shall be the duty of the employer to provide all necessary first aid, medical and hospital care and service, and to supply the proper and necessary truss and other mechanical appliances to enable the employee to resume work, etc.’
In construing all of Section 13 (e)- pertaining to hernias it is shown that when the claimant herein reported his injury to his employer the burden shifted to the employer and it was incumbent upon him to send the man to a doctor to determine what was the matter and the extent of his injury. . .”

We agree with the Commission that it was incumbent upon the appellant employer to send the appellee to a doctor to determine what was the matter and the extent of injury, but we do not agree that such obligation stemmed from a shift in burden of proof. The statute places a separate and direct duty on the employer to furnish the necessary and proper medical, surgical and hospital care in hernia cases, as well as in other types of injury, and we see no connection between the duty imposed by statute upon the employer and the duty imposed by statute upon the employee.

This court did not write the workmen’s compensation statutes and we do not propose to do so now. The statute does not provide compensation benefits for every injury sustained by a workman in the course of his employment. The Workmen’s Compensation Law provides no benefits at all for pain and suffering; it provides very limited benefits for head or facial disfigurement (§ 81-1313 [g]), and it provides no benefits in claims for hernia unless five different things be shown to the satisfaction of the Commission.

We pass up further comment on the first, second and fourth requirements, as our decision rests primarily on the third and fifth statutory requirements. Under the third requirement it must be shown that such pain caused the employee to cease work immediately. This requirement could be in no plainer language. We recognize the possibility that the employer may have told the* appellee to cease work, as found by the Commission, but we fail to find such specific instructions in the record. On this point, after testifying as set out on page 3, supra, in answer to questions by the referee, the appellee continued as follows:

“Q. So he told you to take it easy?
A. Yes, sir.
Q. Did he tell you to continue to work?
A. No, sir he didn’t — I didn’t ask him — I went ahead and worked on my own — we was busy and trying to get another house framed up over there.”

The appellant employer testified on this point as follows:

“Q. What, if anything, did you advise him?
A. Well I didn’t know just what it was so we just went ahead — I told him not to do any more lifting that day and see what happened to it because we didn’t know exactly what it was.”

The statute does not require that it be shown to the satisfaction of the Commission that the employee be told by his employer to quit work. The statute requires that it be shown that the employee did cease work immediately, and that he did so because the pain he suffered was severe enough to cause him to do so. If “immediately” means two weeks in the case at bar, what about the next case involving three weeks and the next that may involve three months? There is no waiver or estoppel involved in the case at bar as there was in the case of Prince Poultry Co. v. Stevens, 235 Ark. 1034, 363 S. W. 2d 929. In the Stevens case rather than telling the claimant to cease work, as the Commission found was done in the case at bar, the employer insisted that the claimant Stevens continue to work because he was the only one available who knew the egg truck route. The claimant Stevens suffered pain which prevented him from doing his regular work so he was furnished a helper and only showed the helper where to go. He continued in this' manner for the four days following his injury before he was able to consult a doctor.

The fifth and final requirement that must be shown to the satisfaction of the Commission is that the physical distress following the occurrence of the hernia was such as to require the attendance of a licensed physician within 48 hours after such occurrence.

In the case of Potlatch Forests v. Burks, 244 Ark. 714, 426 S. W. 2d 819, the claimant, while operating a cut-off saw on December 22 sustained an application of force directly to his abdominal wall when a board kicked back and struck him. The appellee experienced severe pain but after resting a few minutes continued to work until quitting time. He slept well that night but was bothered with pain the next morning and although suffering on December 23, he worked that day. The plant closed December 23 for Christmas holidays and appellee was unsuccessful in his attempt to contact a doctor on December 24. He again tried to contact a doctor on December 25 but without success. Being still unable to contact a doctor on December 26, the claimant returned to work on December 27 but the pain became so severe by 9:30 a.m. he was forced to stop working. The claimant finally was able to contact a doctor on December 28 at which time his hernia was diagnosed. The Commission denied the claim for compensation and denial was affirmed by the circuit court. In affirming the circuit court judgment, this court said:

“When the testimony is viewed in the strongest light in favor of the Commission’s finding, as we must do, Fagan Electric Co. v. Green, 228 Ark. 477, 308 S. W. 2d 810 (1958), we find that there was substantial evidence to support the Commission’s denial of relief to appellee.”

In Miller Milling Co. v. Amyett, 240 Ark. 756, 402 S. W. 2d 659, the claimant sustained his injury when he picked up a sack of feed on March 6, 1964. He rested for about 30 minutes and before going home told his employer of the injury. He meant to go to a doctor but kept putting it off for a period of four months, after which time he did go to a doctor who diagnosed a hernia. In reversing a judgment of the circuit court which affirmed an award of compensation by the Commission, this court said:

“The appellee’s position really narrows down to the contention that since he suffered severe pain on March 6 his condition therefore ‘required’ the attendance of a physician within forty-eight hours. The fallacy in this argument lies in its disregard of the fact that severe pain must exist in every instance of a compensable hernia, for that condition is the second of the five statutory requirements. Hence, if the appellee is right, the fifth requirement — that the attendance of a physician be required within forty-eight hours — adds nothing whatever to the earlier statement that severe pain must occur. We are not at liberty to give absolutely no meaning and effect to the plain language of the statute. We must conclude that the requirement of immediate medical attention was not sufficiently established in this case.”

Further discussion of what must be shown by the claimant in order to establish a claim for hernia would only add words without substance to this opinion. The statute is plain as to what must be shown in order to establish a claim for hernia and the record is plain that the appellee failed to make such showing. The appellee failed to show that severe pain caused him to cease work immediately, and he failed to show that the physical distress following the occurrence of the hernia was such as to require the attendance of a licensed physician within 48 hours. The statute seems designed for just such situation. If appellee’s hernia occurred on September 12, the pain was not severe enough to cause him to quit work immediately nor was the physical distress of such nature to require the attendance of a physician within 48 hours, or within two weeks as for that matter. If the hernia did not occur until the "big knot” appeared on Thursday following the examination on Monday, then the occurrence of the hernia did not immediately follow as a result of lifting the steel beam — it followed two weeks later.

Except as to the lapse of time before seeing a doctor, the case at bar is almost op all fours with our very recent case of A. G. Haygood v. Turner, 247 Ark. 724, 447 S. W. 2d 316. The main difference in the Turner case and the case at bar was that Turner did not see a doctor for more than six months, as compared with two weeks in the case at bar. In Turner we distinguished the Prince and Miller cases and reversed the circuit court judgment which had reversed an order of the Commission disallowing the claim.

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. Consequendy, 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.

The judgment of the circuit court is reversed and the cause dismissed.

      Severe pain in the hernial region referred to in the second requirement.


text:
    ARKANSAS STATE HIGHWAY COMM’N v. George HARTSFIELD et ux
    5-5218
    454 S. W. 2d 82
    Opinion delivered May 25, 1970

      Thomas Keys, and Virginia Tackett, for appellant.

      James Pilkinton, for appellees.
   J. Fred Jones, Justice.

Under the power of eminent domain, the Arkansas State Highway Commission condemned a 35 foot strip of land across the end of two lots belonging to Mr. and Mrs. Hartsfield on which they have their home near Hope in Hempstead County, Arkansas. A jury trial resulted in a judgment on a verdict in favor of Mr. and Mrs. Hartsfield for damages in the amount of $8,000. The highway department has appealed and relies on the following point for reversal:

“The verdict is excessive and there is not substantial evidence to support it.”

The property involved was taken for the purpose of building an access road from the appellees’ property, and property south of it, to Highway No. 29, upon which access was being controlled in connection with an interchange between new Interstate Highway No. 30 and old Highway 29. Two expert witnesses testified for the appellees and two testified for the appellant.

Mr. Charles Wilburn, an expert witness for the appellee landowners, testified that in his opinion the market value of the property was $12,300 before the taking and $1,500 after the taking, leaving a damage to the property in the amount of $10,800. He testified that he compared the Hartsfield property with comparable sales of other property in arriving at his before and after value. He described the appellees’ house as a 19 year old single story modern five room house having two bedrooms, one bath, and five clothes closets. He described the house as having a brick curtain wall foundation, as having well-kept hardwood floors, and as having a fairly new roof. He described the front yard, prior to the taking, as containing flower beds, shade and pecan trees, with access from the road onto Highway 29 over a gravel driveway practically level with the highway. He described the taking as coming within seven feet of the front wall of the house and two and one-half feet from the front steps. He described a frontage road being constructed on the strip taken, and also described a chain link fence erected between the frontage road and Highway 29, as a part of the controlled access feature. Mr. Wilburn testified that it will be necessary to drive over the service road a distance of approximately 540 feet around one end of the fence in order to gain access to Highway 29. He says that the service road had been built within a few feet of the appellees’ house, and that the utility gas line, water line and electric lines have been moved to an area between the service road and the house. He says prior to the taking there was adequate drainage and that since the taking there is no room for culverts without interfering with the utility lines.

On cross-examination Mr. Wilburn testified that the value of the property would not be enhanced for industrial use because of the controlled access. He was not asked on cross-examination concerning any of the comparable sales he said he considered in arriving at his conclusion as to value. He was questioned concerning the sale of the “Messer property” but testified that he did not consider the sale of the Messer property as a comparable sale because it occurred six years prior to his appraisal, and that he did not consider the sale of the Messer property among the comparable sales he did consider in arriving at his opinion as to the market value.

Mr. P. M. Brown, the other witness who testified as an expert for the appellees, described the property and the location on the highway before and after the taking about the same as did Mr. Wilburn. He testified to a before value of $12,000 and an after value of $2,050, leaving a difference of $9,950. Mr. Brown also testified that he found and considered other comparable sales in arriving at his conclusion as to the before and after market value of the appellees’ property. On cross-examination this witness was asked no question concerning comparable sales.

Mr. Kenneth McMurrough, an appraiser, and one of the expert witnesses for the appellant, testified that it was his opinion that immediately prior to the taking the market value of the property was $9,000, with $2,100 of that amount attributable to the value of the plot and $7,400 attributable to the building and improvements on the property. He testified that the remaining value of the property after the taking would be $6,700, which would leave $2,800 as damages because of the taking. Mr. Charles Scott, the appellant’s other expert witness, testified that in his opinion the market value of the property prior to the taking was $10,300, and that after the taking its value was $7,250, leaving a difference of $3,050, which he considered to be the damage because of the taking.

Most of appellant’s argument in support of the point it relies on, is directed to the inadequacy of testimony pertaining to comparable sales. The appellant complains that the expert witnesses for the appellees “were satisfied with saying that they did find comparable sales . . . but did not go so far as to even identify the parties.” The appellant seems to overlook the fact that these witnesses were testifying as expert land appraisers, and that having so qualified, their opinion evidence, within the bounds of their expertise, would be acceptable in evidence even without giving the basis for the opinion. The testimony of an expert, like the testimony of any other witness, is open to attack on cross-examination and is subject to contradiction by direct testimony. The appellant’s argument in this connection is thoroughly answered in our very recent decision of Ark. State Highway Comm’n v. Dean, delivered on December 1, 1969, 447 S. W. 2d 334. The pertinent parts of that opinion are well stated in the last four headnotes, as follows:

“. . . The testing of the probative weight of an expert’s estimate of value necessarily requires a liberal latitude of inquiry into the factors and considerations upon which it is based.
. . . Where the burden imposed upon appellant to demonstrate the lack of basis for witness’s opinion, or the weakness thereof, was heavy in view of the witness’s qualifications and studies, the latitude of permissible cross-examination should have been great.
. . . The object of cross-examination is to weaken or disprove the case of one’s adversary, break down his testimony in chief, test the recollection, veracity, accuracy, honesty, and bias or prejudice of the witness, his source of information, his motives, interest, and memory, and exhibit the improbabilities of his testimony.
. . . Limitation imposed by the trial judge upon Highway Commission’s cross-examination of landowners’ expert witness on real estate values held error.”

The appellant had considerable latitude available to it on cross-examination in determining what comparable sales the witnesses were referring to when they testified that they considered such sales. The appellant could have ascertained by cross-examination the identity of the parties and the prices obtained in the sales the witnesses considered as comparable had the appellant considered such testimony important and desirable in the cross-examination of the witnesses who had testified as to comparable sales. It would appear that the appellant was the one who was satisfied with the testimony offered by the appellees’ witnesses that they did arrive at their conclusions as to market value through comparable sales.

We conclude that the judgment of the trial court is supported by substantial evidence and we are unable to say that the jury verdict for $8,000 and the judgment entered thereon is excessive.

The judgment is affirmed.


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    Wavelon H. YANT v. L. R. BOWKER

      5-5306

      454 S. W. 2d 84
    Opinion delivered May 25, 1970

      John 1. Purtle, for appellant.

      L. R. Bowker, pro se.
   J. Fred Jones, Justice.

This appeal involves a $31 lawsuit. The litigation arose between the appellant, Wavelon H. Yant, and his insurance agent, L. R. Bowker, when Bowker filed a complaint against Yant in the North Little Rock Municipal Court alleging debt due for insurance premium in the amount of $31 and praying judgment for that amount. Yant denied in his answer that he owed Bowker any sum of money for an insurance premium for the reason that the policy was not renewed on its renewal date. The answer also alleged that Bowker is not an insurance company and could only be acting for someone else, and that he is not the proper person to bring an action for an insurance premium due some company which he may or may not represent.

Judgment was rendered in favor of Bowker in the North Little Rock Municipal Court for $51. Upon appeal to the Pulaski County Circuit Court judgment was also rendered for Bowker in the same amount as in the municipal court. On appeal to this court Yant relies on the following point for reversal:

“. . . there was no valid contract binding appellant to continue the unsolicited policy in force or to pay for it.”

The policy is not before us on this appeal but Mr. Bowker testified that on the 9th day of August, 1966, he wrote a Travelers Insurance Company policy for a three year period on a frame house belonging to Yant, and that the premium was payable in three annual installments of $62 each. He says that Yant promptly paid the first years’ premium due on August 9, 1966, but was slow in paying the installment due on August 9, 1967. He testified that Yant did finally pay the 1967 premium installment on January 9, 1968, but totally failed and refused to pay the 1968 installment which was due on August 9, 1968. He says that the policy was surrendered and cancelled on February 9, 1969, and that he filed suit for the earned portion of premium installment for 1968. Mr. Bowker says that he wrote this policy with the Travelers Insurance Company and that he remits to Travelers within 45 days following the month in which a premium becomes due. He testified that the policy in question was not the type of policy subject to renewal, but was a term policy which ran from August 9, 1966, to August 9, 1969, with the premium being payable annually. He says that the policy could have been terminated at any time.

Mr. Yant testified, in part, as follows:

“Q. Do you recall any conversations with Mr. Bowker concerning the annual premium which was due on the policy in question in 1968?
A. I don’t remember the exact dates, but I do remember the conversation over the telephone.”

Mr. Yant denied that he agreed to accept the policy or that he ever agreed to pay for it, and denies that he ever requested Mr. Bowker or anyone else to pay his insurance premiums. He denies that he ever ordered the policy or made any application for the policy and then Mr. Yant testified as follows:

“Q. When you received a notice from Mr. Bowker on the two prior years, you did pay it?
A. I paid it previously, for the first two years.
Q. What about the one that was due in ’68?
A. The third year, when it came up, I told him I didn’t have the money to pay for it and he might as well go ahead and cancel it.
Q. Did you ever, at any time, agree to continue the policy after that?
A. No, never did.”

The difficulty between the parties in this case apparently arose out of their different interpretations of the provisions of the insurance contract. The appellant apparently interpreted it as one to be renewed annually, and the appellee interpreted it as a three year contract to be paid for in annual installments, but one that could be terminated by either party at any time. The policy is not before us and its provisions for cancellation are not in the record. As to the appellant’s efforts to cancel the policy, he testified as follows:

“The third year when it came up, I told him I didn’t have the money to pay for it and he might as well go ahead and cancel it.” (Emphasis supplied).

In the case of Commercial Union Fire Ins. Co. v. King, 108 Ark. 130, 156 S. W. 445, the insurance company was defending a claim for loss due to fire on the ground that the insurance company had cancelled the policy before the fire. In that case the court said:

“The notice must be given to the insured, and it should state not merely the intent to cancel, if some condition be not complied with, but it must he an actual notice of cancellation within the meaning of the policy and so unequivocal in its form, that the insured may not be left in doubt that his insurance will expire on the time limited by the terms of the notice, and that the company will not be liable for any loss after the expiration of that time.” (Emphasis supplied).

No less notice should be required when the insured is the party attempting to cancel the policy. The appellant has the burden of proving the affirmative defense of cancellation of the policy in order to avoid payment of the premium, and the trial court found that the appellant failed in carrying that burden in the case at bar. The conversation of the appellant with the appellee, as testified by the appellant, indicates at most, a mere intention on the part of the appellant to cancel the policy. Certainly this is true in the absence of any showing by the appellant of any overt actions that he took in order to effectuate the cancellation of the policy.

In Cooley’s Briefs on Insurance, vol. 5, p. 4647, the following rule is stated:

“. . . even in case of a cancellation of the contract by the insured, the mere intention to cancel will not be sufficient without some overt act giving the company notice that the contract is at an end.”

By precedent of our own cases, too numerous to mention, we are required to affirm the judgment of a trial court in a law case when supported by any substantial evidence. The conflicting testimony of Mr. Bowker and Mr. Yant was heard by the trial court sitting as a jury and the conflict was apparently resolved in favor of Mr. Bowker. This is not a suit on an insurance policy where the insurance company is an indispensable party in interest. This is a suit for debt in the amount of $31 brought by an insurance agent against his customer for. an earned portion of an overdue insurance premium which the agent says he was obligated to remit to the company in which the insurance was written within 45 days from the date of the policy.

Judgment is affirmed.


author: Conley Byrd, Justice.

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    ARKANSAS STATE HIGHWAY COMM’N v. Ralph D. MONTGOMERY et ux
    5-5219
    454 S. W. 2d 87
    Opinion delivered May 25, 1970

      Thomas Keys and Virginia Tackett, for appellant.

      James Pilkinton, for appellees.
   Conley Byrd, Justice.

The sole issue in this eminent domain action is whether the trial court abused its discretion in refusing appellant Arkansas State Highway Commission a continuance when it discovered during trial that the landowners, appellees Ralph D. and Marie Montgomery, had by interlineation amended their answer to claim $14,000 instead of $8,000 as just compensation.

The record shows that the landowners owned lands in Blocks 1, 3 and 5 of McDowell’s Subdivision, that the blocks were separated by platted but unopened streets, and that the landowners had their ownership in the three blocks under one fence without regard to the platted streets.

The taking here touched only Block 1 of McDowell’s Subdivision. When the landowners first answered, they claimed damages of $8,000, but when the appraisers viewed the property and notified counsel for landowners that the property in the three blocks constituted a unit and that all three were damaged, counsel for landowners by interlineation on the original answer, and without service of notice on the Highway Department, changed the $8,000 to $14,000.

The matter of the claimed damages to the three blocks as a unit was discussed with the court at a pretrial conference. The trial judge decided that he was unable to rule on the issue until all of the landowners’ proof was heard. As a result the testimony on behalf of the landowners was presented both on damages to the three blocks as a unit and on damages to the Block 1 land, in case the court ultimately ruled that the evidence as to the unit was insufficient to go to the jury.

While witnesses were testifying to damages sustained to the three blocks as a unit, the Highway Department moved for a continuance because the landowners had only claimed in their answer damages of $8,000 and that they were now testifying to damages in a greater amount to the surprise of the Department. At the conclusion of the landowners’ proof, the trial court sustained the Highway Department’s objection to the damage testimony based upon the three blocks as a unit. This left the testimony on damages to Block 1 at $8,475 by Mr. Charles Wilburn and $10,275 by Mr. P. M. Brown.

A continuance is usually a matter of discretion with the trial court and a party has no reason to complain of a refusal of a continuance in the absence of a showing of surprise. We find no abuse of discretion in this instance since the issues presented to the jury were confined to the Highway Department’s theory of the damages sustained.

Affirmed.


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    ST. PAUL FIRE & MARINE INS. CO. v. J. B. WOODS and Woody’s Catering Service, Inc.

      5-5262

    454 S. W. 2d 670
    Opinion delivered May 25, 1970
    [Rehearing denied June 29, 1970.]

      L. A. Hardin, for appellant.

      Howell, Price, Howell ir Barron, for appellees.
   Frank Holt, Justice.

J. B. Woods was president, general manager, and majority stockholder of Woody’s Catering Service, Inc. Sometime in 1967, Woods purchased from a dealer in Japan. 80 cartons of plastic razorback hogs, having a cost value of $4,180.00, which he apparendy intended to distribute as table decorations through the Catering Service. St. Paul Fire 8c Marine Insurance Company issued a floater on its policy with Woody’s Catering Service, Inc. covering the 80 cartons of merchandise in the sum of $1,000.00. Later, or on July 1, 1967, Baker Van 8c Storage Company stored these 80 cartons in its warehouse and issued to Woods, in his own name, a warehouse receipt for the merchandise. The following day, fire destroyed the warehouse and the 80 cartons stored therein.

On August 7, 1967, appellant indemnified Woody’s Catering Service, Inc. in the sum of $1,000.00, pursuant to the terms of its policy. Thereafter, Woods institured suit, in his own name, against Baker Van 8c Storage Company and secured and collected a judgment for $4,180.00 for the destroyed merchandise. Subsequently, appellant filed suit against Woods for $1,-000.00, claiming a right of subrogation to that amount. Woods demurred and appellant thereupon amended its complaint to include Woody’s Catering Service, Inc. as a party defendant. The demurrer of Woods was then overruled by the trial court, and Woods and Woody’s Catering Service, Inc. proceeded to file answers. Interrogatories were propounded and answered by the parties, and the case was then submitted by appellant and appellees upon motions for summary judgments based upon the pleadings, exhibits, and interrogatories. The trial court found in favor of the appellees. From that judgment comes this appeal.

Appellant asserts three points for reversal. However, the resolution of this appeal is contingent upon one main issue, namely: Where merchandise is purchased by, and stored in the name of, a majority stockholder of a corporation for prospective use by the corporation, and such merchandise was previously insured in the name of the corporation, is the insurer entitled to subrogation rights for the damages which were recovered against a third party tortfeasor in an action prosecuted by the stockholder in his individual name for the loss of the merchandise? We think the answer in the circumstances should be in the negative.

There was evidence adduced that Woody’s Catering Service, Inc. had an insurable interest in the destroyed merchandise. There was also evidence by appellee Wood that he had paid the cost of the articles and, to that extent, had an insurable interest as an individual. As we view the record, this evidence appears undisputed; and, further, there is no evidence of any fraudulant conduct. This being so, appellee Woods, as an individual, had a separate cause of action against Baker Van & Storage Company for the recovery of his damages. Appellant has subrogation rights only as to the Catering Service, and its indemnification of loss to this corporation did not affect the rights or claims of Woods individually against the storage company. Similarly, on the record before us it is not shown that the recovery against Baker Van & Storage Company obtained by Woods, who sued in his individual capacity and not as agent of the corporation, had any effect on whatever rights or claims Woody’s Catering Service, Inc., or its subrogee, may have against the storage company. See General Exchange Ins. Corp. v. Arnold, 206 Ark. 224, 174 S. W. 2d 543 (1943). The judgment, therefore, must be affirmed.