text:
    Thomason v. Hester Mobile Home Mfg., Inc.
    5-2773
    361 S. W. 2d 94
    Opinion delivered October 15, 1962.
    [Rehearing denied November 12, 1962.]

      Claude B. Brinton and Bon McCourtney, for appellant.

      Frierson, Walker S Snellgrove, for appellee.
   Carleton Harris, Chief Justice.

Appellee, Hester-Mobile Home Manufacturer, Inc., was, during the period of this litigation, a manufacturer of trailers in Blythe-ville, Arkansas, and appellant, Howard Thomason, was a retail dealer in such vehicles at Jonesboro. In March and April, 1961, negotiations were entered into for the purchase of six vehicles by appellant, and these were sold to him for the total sum of $19,247.30. Of this amount, $8,558.00 has been admittedly paid, and the present litigation refers to the difference in the sale price, $10,-689.30, which appellee contends remains unpaid; appellant contends that this amount of money was paid to Charles Russell Hester, the President of appellee corporation.

On May 31, 1961, the corporation instituted suit against Thomason alleging that appellee and appelLant had entered into an agreement whereby the former would sell to the latter certain trailers; that Thomason would procure the financing of such trailers, held in stock by him, under a floor plan arrangement with commercial finance companies, and would remit to appellee the portion of the purchase price of each trailer financed under such an arrangement, the balance to be paid as each trailer was sold. Six trailers were sold under this arrangement.

The complaint further alleged that Thomason had consummated a floor plan agreement with a finance company, but had failed and refused to remit the proceeds to Hester. It was further alleged that Thomason had been entrusted with the certificates of title to the vehicles in reliance upon his agreement to procure floor plan financing, but that appellant had encumbered the vehicles under his floor plan financing arrangements, and had thereby defrauded appellee of the title certificates; an equitable lien was claimed upon the vehicles, inferior to any bona fide liens which had been placed thereon. Further, “Upon information and belief, plaintiff alleges that, the defendant has appropriated the proceeds of the floor plan financing arrangements on the said vehicles into other assets of his business carried on as College Trailer Sales, and has sold certain vehicles and has notes or accounts receivable therefor. Plaintiff alleges that the defendant has no known assets out of which he can collect except the assets of the College Trailer Sales and that the defendant has already removed one of the trailers from the State of Arkansas and may remove others or sell them to bona fide purchasers, leaving the plaintiff without any means of collecting the indebtedness due him. Plaintiff alleges that the defendant is insolvent and is concealing his assets and is about to remove the said trailers or sell them into the hands of persons who would be in the position of bona fide purchasers, from whom plaintiff would be unable to collect the purchase money due upon the said trailers.” The prayer of the complaint sought judgment against Thomason for the sum of $10,-689.30, together with interest, and further sought the appointment of a receiver “to take charge of all of the trailers sold to the defendant by the plaintiff and the proceeds of sale of any such trailers already sold, including notes, accounts receivable, or any other form of proceeds, and to take charge of all of the other assets of College Trailer Sales and to hold the same pending further orders of this Court, and that the said assets be sold in satisfaction of the judgment in favor of the plaintiff, and for all proper relief.”

The Court appointed the Circuit Clerk of Craighead County as temporary receiver, and directed that he serve in such capacity “under his own bond”. Appellant filed a motion to discharge the receiver, asserting that he was not indebted to appellee, that he was solvent, and that appellee had an adequate remedy at law. Upon hearing on the motion, the Court discharged the receiver, but impounded four trailers until the cause was heard on the merits. On June 14, Thomason filed his answer, denying the allegations in the complaint, and stating that he had paid the alleged indebtedness to appellee in full. A cross complaint was filed wherein it was asserted that the appointment of the receiver had caused appellant to suffer embarrassment with his creditors, a loss of sales, and injury to his reputation, and damages were sought in the sum of $10,000. These allegations were denied by appellee, and on June 19, appellant moved to transfer the case to the Circuit Court of Craighead County. This motion was denied, and after the filing of several other motions, the cause proceeded to trail. At the conclusion thereof, the court entered its decree rendering judgment in favor of Hester Mobile Home Manufacturer, Inc., against Thomason in the amount of $10,698.30, together with interest from April 7, 1961, to November 20, 1961, or a total judgment of $11,083.62, with interest at 6%, and directed that if the judgment be not paid within 10 days, the commissioner of the court sell the trailers previously impounded, at public auction to the highest bidder for cash. The Court further held that there had been probable cause for the appointment of a receiver, and that appellant sustained no damages by the appointment of the receiver. From the decree so entered, appellant brings this appeal. Appellee cross appeals from the order of the court which denied the assessment of a reasonable attorney’s fee and the assessment of an expert witness fee for Linton Grodown, questioned documents expert, who testified for appellee. Though appellant urges several points for reversal, only three are actually pertinent to the question at this time, viz-.

"The Court erred in granting an order of receivership. ’ ’
"The Court erred in overruling Defendant’s Motion to transfer to Law Court and in retaining jurisdiction of the cause after the hearing upon receivership.”
“The Judgment is against the preponderance of the Evidence. ’ ’

The allegations in the complaint were sufficient to justify the Court in appointing a receiver. In 75 C.J.S., § 26, p. 690, we find, "A receiver may be appointed on the ground of fraud in obtaining property or where there is fraud coupled with other facts or circumstances, such as the insolvency of defendant, or insolvency and other matters.”

Appellant argues at length that the court erred in overruling his motion to transfer the case to the Circuit Court, after the receivership had been dissolved and the receiver discharged, contending that there was no equitable issue to be determined. Appellant asserts that this was simply a suit for a debt upon six trailers. We do not agree for several reasons. In the preceding paragraph, it has been pointed out that the appointment of the receiver was justified, and the appointment of the receiver was, of course, a matter properly within the province of the Chancery Court. We have held that when equity assumes jurisdiction for one purpose, it assumes jurisdiction for all purposes, Goodman v. Powell, 210 Ark. 963, 198 S. W. 2d 199. Furthermore, the allegations of the complaint were grounds for equity jurisdiction. Appellant says that these allegations were not sufficient for the reason that the assertion that Thomason had promised to finance the trailers, but did not subsequently pay the money over to appellee, related to an event to happen in the future, and consequently did not support the allegation of fraud or deceit. This argument is erroneous. The case of Wilson v. Southwest Casualty Ins. Co., 228 Ark. 59, 305 S. W. 2d 677 involved the question of a claim adjustor obtaining a release from a Mrs. Pelton on the fraudulent representation that he would settle with the Peltons’ insurance carrier. This court said, “A promissory representation may be the basis of fraud in procuring a release if the promissor never intended to fulfill the promise and made it for the purpose of obtaining the release”. We have likewise held in several other cases. No merit is found in this contention.

This brings us to the principal, and controlling, question in this litigation. That question, stated simply, is, “Has Thomason paid the total indebtedness due Hester?” Summarized, appellant’s contention is that he paid Hester $10,537.80 in cash on Wednesday, April 5, in the latter’s office. He stated that he borrowed $4,400 of this money from an uncle and aunt in Missouri, and that he already had the balance of the money in cash. Thomason testified that Hester gave him a receipt for the money but that the receipt didn’t show what it was for and that he accordingly “took a couple of invoices laying on Ms desk and wrote ont the receipt and he signed it and pnt his seal on it”. By deposition, Bill Parker, a former employee of Hester, testified that he was standing out side the office on the 5th, and could see Hester and Thomason inside. He stated that appellant purchased a chair and some tires on that occasion, and that he saw Thomason and Hester “changing Mils”, i.e., Thomason handed Hester some money and Hester, in turn, handed some money back to appellant, “Thomason had quite a roll but I don’t know how many he give Hester”. When asked if he observed anything unusual about the transaction, he replied, “Just the cash that is all.” Parker testified that all of the invoices [or bills of sale] were given to Thomason on the following Saturday. Appellant stated that he received all of the bills of sale on Saturday, April 8; that he received the white, yellow, and pink copies, and that Hester kept the blue copies. However, Thomason stated that he did not receive the yellow copy of Invoice No. 146.

Hester testified that Thomason was in Ms office on Wednesday, April 5, but, they were “straightening” papers on two trailers that had previously been purchased. Appellee stated that the negotiations for the sale in question were entered into on Friday, April 7; that he gave all the bills of sale to Thomason at that time, and the latter was supposed to floor plan the trailers the following Monday, and then pay him. According to his evidence, several requests were made to Thomason for payment, all without success until April 17, at which time appellant gave appellee two checks in the total amount of $8,558.00; that these checks were the only payments he had received on the trailers. Hester denied emphatically that any money was paid to Mm on April 5, or that he gave a receipt for any such payment. Though there is much testimony by each party as to the details of the transaction, including payments on particular trailers, the real issue, determinative in this litigation, as previously stated, is whether the cash payment of $10,537.80 was made to Hester in his office on Wednesday, April 5. Appellee contends that the “receipt” is the lower part of the yellow copy of Invoice 146, and that the language of the receipt was placed on it by Thomason subsequent to receiving it. Indeed, it is a strange looking receipt! Quite obviously, the paper is the bottom portion of a bill of sale. The language at the top, admittedly written (actually hand printed) by Thomason, reads as follows: “Received of Howard Thomason, $10,537.80 by cash, which represents payment in full for the following trailers: — Serial No. 2181033, 5110-1030 and 5110-1029. A balance of $8,558 on the following trailers — (Serial No. 5110-1018, 51101032 and 5110-1029) will be due and payable on or before April 25, 1961. The sum of $19,095.80 represents payment in full of all debts past and present owed to Hester Mobile Homes Inc.” Beneath this language is the printed form appearing on all the bills of sale to-wit: “State of Arkansas, County of Mississippi, Personally appeared before me, the undersigned authority, ............................................................ to me personally known, who stated he is ....................................................................., of the HESTER MOBILE HOME MANUFACTURERS, that he is duly authorized to execute the foregoing instrument for and in the name and behalf of said corporation. Subscribed and sworn to, before me, this........................day of........................19............. My commission expires................................................19............. Notary Public...........................................” In the first blank appears the written name of Hester, admittedly his signature; in the second blank appears the word “President”, which is typed, and is a carbon copy; the date is given as 5 April 61. A faint outline of a corporate seal appears near the bottom right hand corner. Linton Godown, of Memphis, Tennessee, expert on the subject of questioned documents, who conducts his examinations by special cameras, lens, various types of microscopic and lighting devices, and special transparent test plates, testified that he had, by various experiments, made an. examination of the blue copy of Invoice 146, the “receipt”, and all of the blue forms retained by Hester in the transaction with Thomason, together with a number of blank invoice forms or bills of sale. It was his opinion that the yellow receipt was the lower portion of one of the yellow forms used as bills of sale and invoices by Hester Mobile Home Manufacturers, and that it was taken from the yellow copy of Invoice No. 146.

Godown’s findings, along with pertinent observations of the trial court, are summarized in an oral opinion rendered at the close of the case. The Chancellor stated, ‘ ‘ In looking at the receipt that the defendant produced before the court, on which he relies and states it is the true reflection of the transaction that took place in this case, the Court notices that the receipt, which is Exhibit 3, that the defendant claims, that trailer 5110-1029 was included in the $10,537.80 cash that he claims to have paid to the plaintiff. Also in his receipt he says that a balance of $8,558.00 is due on the following trailers, which would be payable on or before April 25, 1961, and in this purported receipt, the same trailer appears, No. 5110-1029. So in his purported receipt here he claims credit for this particular trailer in the $10,000 payment, and yet he claims it is still due in the balance of $8,558.00, which is represented by these checks. So certainly, Gentlemen, the receipt, in that respect, contradicts itself. Also, there was produced before the court here, a handwriting expert and the court was careful to observe, in regard to his interpretation as to whether or not the Exhibit 3, the alleged receipt, was the yellow copy of Invoice No. 146. If the Court recalls the testimony correctly, there appeared a seal which was affixed to Invoice No. 146 and there also appeared to be a seal on alleged receipt, Exhibit 3. The Court was careful to note that in this testimony, the identification was not made by where the seal appears in relation to the writing, but the identification was made in regard to the measurements from the right and left side of the paper and the bottom part of the paper. According to the proof produced by this expert, he overlapped the two seals in relation to the measurements of the paper, and they appeared to be identical.

‘£ Gentlemen, another observation the court has made in regard to this receipt here, it is written on the bottom of an invoice. There is no doubt that the plaintiff’s signature appears in the affidavit, ‘State of Arkansas, County of Mississippi, etc.’ and recites the plaintiff’s name and states in it that he is President of Hester Mobile Homes Manufacturers, and the date is filled in, ‘Subscribed and sworn to before me on this 5th day of April, 1961.’ There is a place for a Notary Public to sign. The Court does not believe that anyone would make out a receipt in this fashion. I believe the defendant testified Mr. Hester did write out a receipt that was not satisfactory to him and he sat down and wrote this out himself. The receipt here appears not to have been written in any great amount of haste. The left hand margin is exactly even. The space between the printed and written words is very neat, and even on the face of this receipt. The defendant himself says he filled in this information and that Mr. Hester signed it.

‘ ‘ Gentlemen, in view of the evidence before the court, the court is going to find that this receipt is the bottom half of Invoice 116.”

There are other facts which support the conclusion of the trial court. For instance, on April 17, the two checks totaling $8,558.00 were given to Hester. According to Thomason’s contention, this settled his indebtedness completely in the transaction (since he stated he had already paid the $10,537.80 in cash); yet there is no notation on either check to the effect that those payments represented payment in full. One of the strongest circumstances supporting the finding that the language on the “receipt” was superimposed subsequent to the time of the transaction, relates to a letter written by Hester to appellant on May 1. In this letter, Hester states, “* * * I want a check today for the amount of $10,537.80”. Thomason replied to this communication by writing a message on the bottom part of the letter. This message complained that one of the trailers needed repair work, was not as represented, and was not satisfactory. Not one line is ivritten to the effect that Thomason had already paid TIester in full! We think it inconceivable that an individual can receive a statement from another for $10,500, which sum has already been paid, and yet in answering, never mention that fact; rather, we are of the opinion that any person so billed, would immediately get in touch with the sender of the statement, and demand a reason for receiving a bill for an amount that had already been fully settled.

Another circumstance is pointed out by appellee which has some significance. In writing the letter, Hester actually made a mistake in the sum demanded, as the proper amount was $10,689.30. In his testimony, Thomason admitted that the amount shown in his receipt was “a few dollars off”. There is no testimony that the $10,537.80 figure was ever mentioned between the parties, and appellee contends that this circumstance reflects that appellant obtained the figure from Hester’s letter of May 1, and then used it in writing the receipt.

Be that as it may, we are definitely of the view that the Chancellor’s findings are supported by a preponderance of the evidence.

It follows that the decree on direct appeal is affirmed.

We think the court should have allowed the expenses incurred by appellee in obtaining the services of Linton Godown. Subsection (c) of Section 28-359, Ark. Stats., 1962 Replacement, provides as follows: “If a party, after being served with a request under Section 11 [§ 28-358] to admit the genuineness of any documents or the truth of any matters of fact, serves a sworn denial thereof and if the party requesting the admissions thereafter proves the genuineness of any such document or the truth of any such matters of fact, he may apply to the court for an order requiring the other party to pay him the reasonable expenses incurred in making such proof, including reasonable attorney’s fees. Unless the court finds that there were good reasons for the denial or that the admissions sought were of no substantial importance, the order shall be made.” This is an exact copy of Rule 37 (c) of the Federal Rules of Civil Procedure. In the case of Akins v. McKnight 13 F.R.D. 9, the District Court for the Northern District of Ohio, Eastern Division, stated, “There is presented a sworn denial of the requests, therefore, and not a failure to respond to requests. Under such circumstances, Rule 37(c) is mandatory that an order for expenses shall be made unless the court finds that ‘there were good reasons for the denial or that the admissions sought were of no substantial importance’.” In his answers to Requests for Admissions, Thomason, under oath, denied that Exhibit No. 3 (the receipt) was the bottom portion of the bill of sale and Invoice No. 146. As previously pointed out, we think unquestionably, that the evidence at the trial established that the so-called receipt was the bottom portion of the yellow copy of Invoice 146. Certainly this fact was of substantial importance, and, for that matter, could have been admitted without completely jeopardizing appellant’s defense, i.e., appellant could still have claimed that the receipt was written on his copy of the invoice when such invoice was given to him. At any rate, the failure to admit the fact in question forced appellee to obtain the services of the questioned documents expert. Godown testified that he made a charge of $100.00 for the examination and report which had been submitted, and was charging a fee of $250.00 for attending the trial and preparing the photographs. This charge appears to us, under the circumstances, to be fair and propel', and there is no showing by appellant that it is not reasonable. In fact, appellant does not question the amount. We are also of the view that counsel is entitled to a reasonable fee for his efforts and time expended, and that a reasonable allowance would be $150.00. Accordingly, the cause is remanded to the Chancery Court of Craighead County with directions to enter an order allowing the sum of $500.00 for expenses incurred in making proof of the matter denied in “Requests for Admission No. 2”.

It is so ordered.

       The proof throughout refers to Hester as the actual appellee.

       Apparently the mortgage liens against the trailers had been discharged subsequent to the filing of the suit.

       Appellant also devotes some portion of his brief to arguing that the Court erred in not requiring a bond for the receiver, but a discussion of this point is immaterial in determining this cause.

       Actually, appellant filed an answer and cross complaint in the Chancery Court several days before moving to transfer the case to the Circuit Court.

       The documents are headed “Bill of Sale and Invoice” and the parties use the terms interchangeably throughout. We, therefore, do likewise, and, in this instance, the document did constitute a bill of sale, as well as invoice. We have not overlooked our holding in Morrison v. Bland, 226 Ark. 514, 291 S. W. 2d 243, to the effect that an invoice, standing alone, is not regarded as a contract, or evidence of title.

       Mr. Godown is a graduate of Ohio State University, is a member of the American Society of Questioned Document Examiners, a Fellow in the Questioned Documents Section of the American Academy of Forensic Sciences, and a member of the Chicago Chapter of Photographic Scientists and Engineers. He has lectured at Indiana University and has testified in various courts of record in Arkansas and other states.

       Godown also testified that the word “President” appearing in carbon on the yellow receipt was in precisely the same location as the word “President” on the blue invoice of No. 146.

       The difference is actually S151.50.


source: Caselaw Access Project

author: Ed. F. McFaddin, Associate Justice.

license: Public Domain

text:
    Home Indemnity Co. v. Ray.
    5-2768
    361 S. W. 2d 24
    Opinion delivered October 15, 1962.

      Shaver, Tackett é Jones, for appellant.

      Joe D. Woodward and Harry Crumpler, (Robert G. Compton, on the brief), for appellee.
   Ed. F. McFaddin, Associate Justice.

Trial in the Circuit Court resulted in a judgment whereby the appellees recovered from the appellant on the omnibus coverage clause in the insurance policy issued by appellant; and this appeal challenges such judgment.

On November 26, 1959, Grady Junior Talley (hereinafter called “Talley”) was driving a motor vehicle on U.S. Highway No. 82 in Columbia County. There was a collision between that motor vehicle and one driven by Arthur Ray, resulting in the death of Arthur Ray, and property damages and personal injuries to Miss Helen Bain, the owner and occupant of the car Ray was driving. Action was filed in the Columbia Circuit Court against Talley by Miss Bain and by Jewell Ray, administrator of the estate of Arthur Ray, deceased. (They are the appellees in the present appeal.) Judgments were obtained against Talley for $26,500.00 in favor of Miss Bain, and for $35,000.00 in favor of Ray, as administrator. Executions on said judgments were returned nulla bona, and then Miss Bain and Ray, Administrator, proceeding under § 66-4002 Ark. Stats., filed the present action against appellant, The Home Indemnity Company, alleging the foregoing matters and also: that D. C. Littrell was the owner of the motor vehicle driven by Talley in the traffic collision; that Littrell had granted permission to Talley to drive said vehicle; that Littrell had a liability insurance policy with appellant, The Home Indemnity Company, covering said vehicle, with limits of $5,000 for property damage and $10,000 for each collision; that said policy had an omnibus coverage clause which made Talley an insured under said policy; and that The Home Indemnity Company, after due notice, had refused to defend appellees’ action against Talley. The prayer of the complaint was for judgment for $5,000.00 personal injuries and $1,550.00 property damage in favor of Miss Bain; and $5,000.00 damages for Ray, Administrator (being the limits of the policy coverage), “. . . with 12% penalty and reasonable attorney’s fee, as prescribed by law. ’ ’

By answer, the appellant Insurance Company stated, inter alia-.

“Defendant admits and alleges that a liability insurance policy had been executed by this defendant prior to the date of the collision in favor of D. C. Littrell, covering the involved vehicle which was involved in the collision while being driven by Grady Junior Talley, indemnifying D. C. Littrell, and any driver operating the vehicle with his permission, against loss by reason of liability arising from accidents in which the involved vehicle might subsequently be involved, with policy limits of $5,000 for personal injuries suffered by each person in each accident, limiting personal injury recovery to $10,000 for each accident, and limiting property damage liability to $5,000 for each accident. Defendant denies that the insurance policy enured to the benefit of G-rady Junior Talley, and defendant denies that Grady Junior Talley was operating the motor vehicle with the permission of the owner, D. C. Littreil. Defendant admits that it refused to defend the Complaint by and on behalf of plaintiffs against Grady Junior Talley, and that the defendant has refused to pay any portion of the judgment obtained against Grady Junior Talley. Defendant denies that plaintiffs are entitled to any benefits afforded by the liability insurance policy in favor of D. C. Littreil.”

Trial to a jury resulted in verdicts and judgment for Miss Bain and Ray, Administrator, as prayed; and The Home Indemnity Company brings this appeal, urging the points herein discussed.

I. Defendant’s Request For An Instructed Verdict. At the close of all the evidence, the Court denied the defendant’s request for an instructed verdict; and in testing the correctness of such ruling, we recite the evidence in the light most favorable to the verdict, as is our rule. See Life & Cas. Co. v. Kinney, 206 Ark. 804, 177 S. W. 2d 768, and cases there cited.

The evidence showed that D. C. Littreil owned and operated a potato farm near Canton, Texas; that Talley, a Negro man, lived near Waldo, Arkansas, as did two other Negro men, named Witcher and Robinson; that in September, 1959, Littreil and another farmer employed Talley, Witcher, and Robinson to work in the harvesting of the potato crop on the Texas lands; that on one or two occasions either Littrell or the other farmer had transported Talley, Witcher, and Robinson from Canton, Texas to Waldo, Arkansas, in order that the said employees could visit their respective homes; that while at work Talley kept Littrell’s Chevrolet pickup truck at the place where Talley stayed near Canton, Texas; that Talley, with Littrell’s consent, used the truck to go to the picture show and to get groceries; and that it was this same pickup truck that was involved in the traffic collision.

The evidence further showed that on the afternoon before Thanksgiving of 1959, Littrell agreed that if Talley, Witcher, and Robinson would help Littrell move some cattle, he would allow Talley the pickup truck to transport Talley, Witchell, and Robinson to Waldo for Thanksgiving. Littrell immediately called his insurance agent and obtained an insurance policy for the trip; and it is the policy sued on by the appellees. When the cattle moving was completed, Talley, Witcher, and Robinson left Canton, Texas, about 9:00 P.M. Wednesday night in the Chevrolet pickup truck, and arrived in Waldo, Arkansas about 1:00 A.M. Thanksgiving morning.

Talley and Littrell both testified that Littrell instructed Talley that when he reached Waldo he was to leave the truck with Mrs. Fannie Mitchell, who lived near Waldo, and that the truck was to so remain until Talley was ready to return to Texas after Thanksgiving. Talley testified that he took the truck to Mrs. Mitchell’s house about 9:00 A.M. Thanksgiving morning, but that no one was at home; and that he later made another trip to Mrs. Mitchell’s home, and no one was there. It developed that Mrs. Mitchell had only recently married and moved a short distance from her former home and was Mrs. White. Until after the collision this was unknown to Littrell, as well as Talley. Littrell gave Talley no specific instructions as to where to leave the truck if Mrs. Mitchell was not at home; but Talley and Littrell both testified that Talley had been instructed that he was not to drive the truck on private ventures while he was on the trip. That negative restriction on the permission to nse the track is the main defense of the Insurance Company.

Talley testified that when he found no one at home at Mrs. Mitchell’s house, he did not leave the truck:

“Q. On that morning why did you take that truck on with you?
“A. Because that is what I was supposed to do.
“Q. Why didn’t you leave it there?
“A. Because she wasn’t there.
“Q. Why did you take it hack with you?
“A. Because I was in charge of it.
“Q. You felt responsible for it?
“A. Yes, six’.”

After a second unsuccessful effort to find anyone at home a.t Mrs. Mitchell’s, Talley and another boy started to drive to Buckner, Arkansas, and enroute had the traffic collision that caused the injuries to Miss Bain and the death of Arthur Bay. The Insurance Company claims that, under the testimony of both Littrell and Talley, it is clear that the permission under which Talley received the truck contained a specific negative restriction against such driving as was being done at the time of the traffic collision and, therefore, that permission was absent and there was no insurance coverage.

The Insurance Company called Littrell as a witness, so the plaintiffs are not bound by his testimony. Furthermore, even though the plaintiffs called Talley as a witness, the plaintiffs were and are free to contradict the details of his testimony by other witnesses. Talley was not a party to the case, but only a witness. Sharpensteen v. Pearce, 219 Ark. 916, 245 S. W. 2d 385; Arnold v. State, 233 Ark. 3, 342 S. W. 2d 291, and cases there cited. The plaintiffs showed by other witnesses, including the Sheriff of Columbia County and the Prosecuting Attorney of the District, that Littrell had repeatedly admittecl that he let Talley have the truck, and that in none of these conversations had Littrell, when the collision was under investigation, made any claim that he had placed any negative restrictions on Talley’s driving the truck while in Waldo. The plaintiffs also showed by Witcher and Robinson on cross-examination that when Littrell let Talley have the truck, nothing whatsoever was said by Littrell as to. what Talley was to do with the truck if Mrs. Mitchell was not at home.

In view of all the evidence, we reach the conclusion that a jury question was made as to whether there was in fact a negative restriction placed on the permission that Littrell gave Talley as to the truck; and, with a jury question made, certainly the motion for an instructed verdict was correctly denied.

Counsel for both sides have been diligent in their search for cases on the omnibus coverage in insurance cases. We are cited to an array of cases and authorities on the question. Some of these are: Allstate Ins. Co. v. Mathis, 232 Ark. 484, 339 S. W. 2d 132; Traders & General Ins. Co. v. Powell (8th Cir.), 177 F. 2d 660; Standard Accident Ins. Co. v. Rivet (5th Cir.), 89 F. 2d 74; Columbia Gas. Co. v. Lyle (5th Cir.), 81 F. 2d 281; Martin v. Burgess (5th Cir.), 82 F. 321; Nyman v. Monteleone, 211 La. 375, 30 So. 2d 123; Olgin v. Employers Mutual (Tex. App.), 228 S. W. 2d 552; Blashfield Cyclopedia of Automobile Law & Practice, Vol. 6, Pt. 1 § 3946; Am. Jur. Vol. 5A, p. 99 et seq., “Automobile Insurance” § 98 et seq.; and a splendid annotation in 5 A.L.R. 2d 600, entitled, “Automobile Liability Insurance: Permission or consent to employee’s use of car within meaning of omnibus coverage clause.” We find it unnecessary to decide (a) whether the law of Texas covers; (b) what the law of Texas is; or (c) whether Arkansas should adopt the conservative, liberal, or middle of the road view on omnibus coverage. If there was no negative restriction attached to the permission when Littrell let Talley have the truck, then Talley occupied the status of an insured under the policy; and, as aforesaid, there is evidence to take the case to the jury on the question as to whether there was a negative restriction in the permission.

II. Instructions. The Insurance Company offered instructions which stated that before the plaintiffs could recover the jury must find that Talley was “on the involved occasion driving the pickup truck with specific permission and authority, ’ ’ etc. After the quoted words the Court added, “express or implied.” The Court defined “express or implied,” and then in other instructions the Court added the words, “express or implied,” in regard to the permission that Talley had to use the truck. The Insurance Company objected in each instance to the addition of the words, “express or implied,” and insists that Littrell had given a specific negative restriction on Talley’s permission to drive the truck, and that such restriction made any “express or implied” permission impossible.

We find no error in the ruling of the Trial Court in regard to the point here under consideration. It was testified by several witnesses that Littrell did not tell Talley what to do with the truck in the event that Mrs. Mitchell was not at home. It was shown that when Talley was at work for Littrell in Texas, Talley kept the truck at the place where he stayed, and with Littrell’s knowledge used the truck as he desired to go for groceries and to go to the picture show; and it was shown, as heretofore detailed, that Littrell let Talley have the truck to make the trip to Waldo, Arkansas. With such evidence in the record, the matter of express or implied permission was properly included in the instructions to the jury.

Affirmed.

       Italics our own.

       The attorney for the Insurance Company stated to the Trial Court: “The whole litigation is whether or not the Negro (Talley) was driving with permission. The plaintiffs have alleged that he was driving with permission, and we have denied that he was driving with the permission of the owner.”


author: George Rose Smith, J.

text:
    Miller v. Curtis.
    5-2776
    361 S. W. 2d 65
    Opinion delivered October 15, 1962.

      Bailey & Trimble, for appellant.

      William G. Gilliam, for appellee.
   George Rose Smith, J.

This is a tort action by the appellee, as administrator, for the wrongful death of Harold Curtis, Sr. The jury returned a verdict in favor of the plaintiff for $25,000, specifying that the award was to compensate the decedent’s widow for the loss of contributions from her husband. The appellant contends that the evidence does not establish any liability on his part, and, alternatively, that the court erred in its instructions to the jury.

On the afternoon of March 29, 1960, the appellant, Grady Miller, drove his station wagon from his home in Little Rock to Hot Springs. The engine developed a knock on the trip, and Miller stopped to have it checked at the Wade Groin Ford Company’s garage in Plot Springs. For the inspection the car was parked on the concrete floor of the garage, near the rear wall.

The decedent, a mechanic employed by Groin, tested the engine and determined that Miller could drive the vehicle to his summer cottage on Lake Hamilton and bring it back the next day for repairs. While the station wagon was being inspected a large truck backed into the garage and stopped in the wide entranceway, partly blocking Miller’s exist.

At the decedent’s direction Miller started his car and began to back slowly toward the entranceway, intending to go around the truck. Suddenly Miller’s engine began to race at full speed, and the vehicle spun its wheels on the concrete and leaped backward toward the truck. Curtis was crushed between the two vehicles and suffered extensive and painful injuries to his face and chest, from which he died four days later.

The court was right in submitting the question of liability to the jury. The proof is that Miller’s accelerator was out of order and would stick when depressed all the way to the floorboard. It would not stick in any other position, however, and it is shown to be mechanically impossible for the accelerator to go down to the floorboard without being pushed. Hence the jury would have been justified in finding that the tragedy was the result of Miller’s having in some way depressed the accelerator all the way down to the floor, where it stuck. Even though Miller may not have known that the accelerator was not functioning properly it was still a question of fact whether Miller’s conduct was negligent. The defendant’s motion for a directed verdict was correctly denied.

The plaintiff’s Instruction No. 5 was as follows: “You are instructed that it is the duty of the driver of any motor vehicle to keep his vehicle' under such control as to be able to check the speed or stop it absolutely if necessary to avoid injury and damage to others, where danger could reasonably be expected, or is apparent, and in this respect you are instructed that if you find from a preponderance of the evidence in this case that the defendant, Grady Miller, failed to keep his car under such control, and if his failure to do so was the proximate cause of the death of Harold E. Curtis, Sr., and if you find plaintiff’s decedent, Harold E. Curtis, Sr., was not negligent, then you are instructed to find for the plaintiff. ’ ’

This instruction is similar to those approved in Lockhart v. Ross, 191 Ark. 743, 87 S. W. 2d 73, and Livingston v. Baker, 202 Ark. 1097, 155 S. W. 2d 340, but there is an important difference. In the case at bar the concluding language of the instruction told the jury that if Miller failed to keep his car under control and if that failure was the proximate cause of Curtis’s death, then the plaintiff was entitled to recover. The instruction should have gone farther and required the jury to find, as a condition to the defendant’s liability, that his failure to keep his car under control amounted to negligence. See Floyd v. Johnson, 193 Ark. 518, 100 S. W. 2d 975. In fact, the instruction as given was in effect a peremptory charge for the plaintiff, since the undisputed evidence shows that Miller did fail to keep his car under control and that this failure ivas the cause of Curtis’s death.

The court also erred in giving the plaintiff’s Instruction No. 7: “You are instructed that if you find from the evidence that at the time and place of the occurrences in question plaintiff’s decedent was a mechanic engaged in working in the building in which the accident occurred, then I instruct you no duty was imposed upon him to be constantly on the lookout for motor vehicles. It is not negligence as a matter of law for a workman to keep his mind on his work. A workman under such circumstances may properly assume that the motorist will not be guilty of running him down without warning.” This instruction, in stating that various specific acts did not constitute negligence, invaded the province of the jury, since the issue of negligence on the part of Curtis was a question of fact to be determined by the jury. Bean v. Coffee, 169 Ark. 1052, 277 S. W. 522.

The judgment must be reversed, and, since the verdict of the jury is an entity that we cannot fairly subdivide in this case, the cause will be remanded for a new trial upon all issues. Oklahoma Gas & Elec. Co. v. Hofrichter, 196 Ark. 1, 116 S. W. 2d 599; Manzo v. Boulet, 220 Ark. 106, 246 S. W. 2d 126.

Reversed.


author: Paul Ward, Associate Justice.

text:
    Doster v. Bell.
    5-2769
    361 S. W. 2d 28
    Opinion delivered October 15, 1962.

      Parker Parker, for appellant.

      Williams $ Gardner, for appellee.
   Paul Ward, Associate Justice.

This is an action brought by Mr. and Mrs. Doster in probate court to remove a guardian previously appointed for Mr. Doster’s four children. From an adverse order appellants prosecute this appeal for a reversal.

Mr. Doster’s first wife died April 8, 1956 leaving-four children whose ages at that time were three, six, eight and nine. The probate court of Yell County, on a waiver signed by Doster, appointed Wesley Bell (grandfather of the children) as guardian of the persons and estates of the children. The order of appointment was made May 8, 1956 under docket number 271.

Later Mr. Doster moved to Little Rock and remarried. He and his present wife are the appellants herein. On June 2, 1959 appellants filed a petition in the Yell County probate court (docket No. 271) asking to have the guardian (appellee herein) discharged, and to have custody of the children given to them. Later they petitioned the same court to grant them rights of visitation. The record contains an “Exchange Agreement” (between two chancellors) wherein reference is made to a “petition of adoption” under case number 272, but this proceeding seems to have been abandoned. Then on February 13,1960 Mr. Doster made a motion (later granted) to transfer cases 271 and 272 to the Pulaski County probate court. Pursuant thereto the probate court of Pulaski County ordered the causes docketed as cause No. 3747.

After testimony was presented by both sides on September 25, 1961, the court made the following findings : Appellee is the paternal grandfather of Charlette, Darlotte, Sandra Kay, and Chester T. Doster, Jr.; said children have lived with appellee and his wife since May 1956, and they give the children a good home with proper care and training; that Mr. Bell is a proper person to act as their guardian; that from observation of and an interview with the children he finds them happy and satisfied with their present home and surroundings and they desire to remain with their grandparents; and that appellants have failed to prove any statutory grounds required for the removal of the guardian, and that it is not to the best interest of the said minors at this time to terminate the guardianship. The court further found that the children should be given an opportunity to become better acquainted with their natural father. The court then denied appellants’ petition for removal of Bell as guardian, and granted the children permission to •visit in the home of their father four days at the end of the year and also during one-half of the vacation period between school terms.

For a reversal appellants present their argument under five separate headings, but we find it necessary to discuss fully only one general question which substantially includes all questions raised. • "• ' ■ •

It is ably and forcefully contended by appellants that the natural father is entitled to the custody of his children, and that he is a fit and proper person to have such custody. In support, appellants rely on expression of this Court in Lipsay v. Battle, 80 Ark. 287 97 S. W. 49; Kirk v. Jones, 178 Ark. 583, 12 S. W. 2d 879; Hancock v. Hancock, 197 Ark. 853, 125 S. W. 2d 104; and, Brown v. Brown, 218 Ark. 624, 238 S. W. 2d 482. We are aware that in these and other decisions of this Court we have recognized the rights of parents over and above that of relatives or strangers in cases of this kind. However, in these cases we have also consistently looked to the best interest of the children as the guiding factor. The record reveals that the trial court considered both sides of this question in making his decision, and we are unwilling to say he ruled against the weight of the evidence. On the one hand the father has remarried and has established a home, but on the other hand the record reflects certain facts and circumstances indicating it was to the best interest of the children, at least for the present, to remain with their grandfather and grandmother. Unfortunately, for appellants, it appears from the record that the father was at one time considered incompetent and that he has a record of several convictions for minor law violations. The trial court, as before noted, talked with the children and obtained their wishes and desires. The court then very wisely, we think, gave the children opportunity to get better acquainted with their father and the surroundings in his new home. Some of the children are now, and others soon will be, of such age as to be able to choose where they would like to live. Considering all these things we cannot say the trial court failed to act in the best interest of these children. We find no valid reasons for discharging Bell as guardian, and find the trial court was justified in refusing to do so.

We find no merit in appellants’ contention that the trial court should have granted their petition to discharge Bell because he filed no answer in accordance with Ark. Stats. § 27-1135. In the first place, it is not shown that Bell was served with a summons as the statute requires. Moreover appellants participated in all subsequent proceedings without objection on their part.

Neither do we agree with appellants’ statement here that “the order appointing Bell is void” because his bond was not approved by the court. The bond for $500 appears in the record, showing a filing date of May 4,1956. Also shown in the record is the “Order Appointing Guardian”. It is dated May 8, 1956 and contains these words: “It is further ordered, adjudged, and decreed that the bond of such guardian filed herein in the sum of $500 is hereby in all things approved and confirmed. ’ ’

Finding no error, the decree of the trial court is hereby affirmed.

Affirmed.


author: Sam Robinson, Associate Justice.

text:
    City of Waldron v. Huston.
    5-2799
    361 S. W. 2d 556
    Opinion delivered October 15, 1962.
    [As amended on denial of rehearing November 26, 1962.]

      Donald Poe, for appellant.

      R. 8. Dunn, for appellee.
   Sam Robinson, Associate Justice.

In 1948 the appellees, Robert Huston and his wife, Barbara Huston, bought the Northwest Quarter of the Northwest Quarter of Section 27, Township 3 North, Range 29 West, in Scott County, Arkansas. In 1951 the city limits of the City of Waldron were extended to include all of Section 28, township and range as above set out. Sections 27 and 28 are bordered on the north by State Highway No. 80.

In September, 1961, the City of Waldron contracted with Glenn Plummer to do some grading on an old road beginning at Highway 80 and the northeast corner of Section 28 and running south about one-fourth mile. It was thought that the road was located in Section 28 at the section line dividing Sections 27 and 28, and in the city limits. After Plummer had pushed down five or six trees and had done some grading for a distance of about 150 feet on the old road, Mrs. Huston caused him to be stopped, it being her contention that the road Plummer was working was in Section 27.

A temporary restraining order was issued by the Chancery Court enjoining the City of Waldron and Plummer from doing any further work on the road. On final hearing the restraining order was made permanent, the Chancellor finding that if the road in question is in Section 27, the land on which it is located belongs to the Hustons, as they had purchased the Northwest Quarter of the Northwest Quarter of Section 27; and if the road is in Section 28, the Hnstons own the land on which the road is located by adverse possession. The Court further held that the Hustons had been damaged in the sum of $400.00 by reason of the grading of the road and destruction of the trees, and had been damaged in the additional amount of $250.00 caused by the piling of the trees on the Huston property. The city has appealed.

The principal controversy between the parties is the correct location of the section line between Sections 27 and 28. The City of Waldron claims that the section line begins at one point and the Hustons contend it is 17 feet west of that point.

The Hustons bought their land from the Waldron Hardware Company in 1948 and paid for it in installments. The last installment was paid in 1953 and the deed and abstract were delivered. The grantor employed Mr. Edgar Smallwood, the county surveyor, to establish the location of the corners of the property sold to the Hustons. Mr. Smallwood established the Northwest corner of Section 27 and the Northeast corner of Section 28 as being the point the city now claims is the north end of the section line between the two sections. At that time Mrs. Huston did not agree with Mr. Smallwood that the corner, as located by him, was correct. She thought the section line between the two sections was farther west, but she accepted the deed and did nothing further about establishing the line until the city began to grade the road in 1961.

Of course, if the road in question is in Section 27, the city has no authority to work it, and would not want to work it, as it would be outside the city limits. On the other hand, if the road is in Section 28, it is within the city limits; the Hustons have no record title to any part of that section and could own no part of the land on which the road is located unless they have acquired such ownership by adverse possession.

A decided preponderance of the evidence proves that the 150 feet of the road worked by Plummer for the City of Waldron is in Section 28; that the trees knocked down and the grading done by him, for which the trial court awarded the Hustons damages in the sum of $400.00, is in Section 28; and that the Huston land in Section 27 was not damaged by removing the trees or working the road. The trees, however, were pushed over onto the Huston property in Section 27, and on that account the trial court awarded damages in the sum of $250.00.

Now as to the evidence of the location of the section line between Sections 27 and 28. Mr. Edgar Smallwood, who lives in Waldron and is the County Surveyor of Scott County, along with Mr. Melvin Bell, a graduate engineer, made a survey to locate the Northeast corner of Section 28 and the Northwest corner of Section 27. They began their measurements at a corner established by a U.S. Government- survey. The corner was unmistakably marked by a wagon thimble buried in the ground with the big end up. This was the corner between Sections 20, 21, 28, and 29. Mr. Smallwood first found this corner in 1934 by digging in the ground and finding the wagon thimble described in the field notes of the U.S. survey. That corner is now in the center of a paved street in Waldron, but it was again located with field notes.

. Mr. Luther C. Phillips, County Surveyor of Garland County, produced as a witness by appellees, also measured from the corner of Sections 20, 21, 28, and 29 and reached the same point that Mr. Smallwood and Mr. Bell had said was the correct line between Sections 27 and 28; but Mr. Phillips ran two other lines and reached the conclusion that the correct line was 17 feet west of that point. First he began at a point three-fourths mile north of Sections 27 and 28 and ran a line south. He missed by 18 feet the point he later testified was the correct corner. He then went to a point one-fourth mile south and three-fourths mile west of the corner in question and began at an alleged corner that was not identified by field notes or monuments. He only had information he obtained from one of the property owners of the Love and Henry Addition to the City of Waldron. Mr. Phillips was asked:

“Q. You say there is no marker there but an iron stob?
A. Yes.
Q. And the only way you know about it was what one of the property owners pointed out to you as the corner of one of his lots?
A. Yes, sir.”

He had no field notes.

The kind of evidence used by Phillips in locating a known starting point does not carry much weight in establishing corners for an accurate survey. The evidence is completely convincing that the section line between Sections 27 and 28 is where Mr. Smallwood and Mr. Bell testified that it is located. The preponderance of the evidence shows that the work done by Plummer was west of the Smallwood line. This being true, the 150 feet of road worked by Plummer is, accordingly, in Section 28.

The next question is whether the Hustons have acquired any part of Section 28 by adverse possession. There is no evidence that they have exercised any acts of ownership over any part of Section 28. True, they thought the west line of Section 27 was farther west than it proved to be, but they did not fly their flag over that part of Section 28 they thought was in Section 27; they did nothing whatever that would be calculated to let anyone know they were claiming ownership of any part of Section 28. One cannot acquire land by adverse possession merely by thinking that the land belongs to him; he must do more. Adverse possession may not ripen into ownership unless possession for seven years has been actual, open, notorious, continuous, hostile, exclusive, and accompanied with the intent to hold against the true owner. Terral v. Brooks, 194 Ark. 311, 108 S. W. 2d 489, and the many cases cited under Adverse Possession, Arkansas Digest.

Moreover, the evidence is overwhelming to the effect that the road running along the section line of Sections 27 and 28 from Highway 80 to the Wagoner house about one-fourth mile south, has long since been acquired as a public road by prescription. According to the undisputed testimony, the strip of land in question has been used by the public as a road for 50 years or more. For many years there has been a fence on each side of the road. Until this litigation arose, the right of the public to use the road has not been questioned. The county has worked the road for many years; graded it and put rock and gravel on it. At one time someone put a wire gate across the end of the road to keep stock from getting out onto the highway, but this was not done by appellees.

From what has been said, it can be seen that the Hustons are not entitled to a judgment for damages alleged to have been sustained by reason of the work done by Plummer on the 150 feet of road, all of which is in Section 28; but the trees pushed down were piled on appellees’ land in Section 27, and for that reason they are entitled to damages of $250.00 as awarded by the court.

On cross appeal, the Hustons maintain that they are entitled to a judgment against Plummer as well as one against the city, by reason of Plummer piling the trees on the Houston land. The city employed Plummer to do the work, and the city cannot damage private property without paying just compensation. Our Constitution, Art. 2, Sec. 22, provides: ‘ ‘ Private property shall not be taken, appropriated, or damaged for public use without just compensation.” Dickerson v. Oklolona, 98 Ark. 206, 135 S. W. 863; Fayetteville v. Stone, 104 Ark. 136, 148 S. W. 524; Clark County v. Mitchell, 223 Ark. 404, 266 S. W. 2d 831. Of course, if Plummer negligently placed the trees on appellees’ property, he would be liable for such negligence and appellees would be entitled to a judgment against him as a joint tort-feasor; but the city was given ten days to remove the trees from appellees’ property in lieu of paying the $250.00 damages. The record does not show whether the trees have been removed.

In substance, our conclusion is that the line established by Smallwood is the section line between Sections 27 and 28; that the work done by Plummer was in Section 28; that the Hustons have acquired none of the land by adverse possession; that the road from Highway 80 to the Wagoner house has been acquired by the public by prescription; that the city is not liable to the Hustons for the $400.00 damages awarded by the trial court, but is liable for $250.00 for piling the trees on the Huston property; that Plummer is liable as a joint tort-feasor for the $250.00 if he negligently piled the trees on appellees’ property and the trees have not been removed.

Reversed on appeal and on cross appeal with instructions to allow the Smallwood survey to be laid out on the ground and then for the Court to determine from competent evidence whether any damages have accrued to the appellees in addition to the $250 above mentioned, and if so, to render judgment accordingly.


author: Jim Johnson, Associate Justice.

text:
    Waters v. Coleman.
    5-2770
    361 S. W. 2d 268
    Opinion delivered October 15, 1962.
    [Rehearing denied November 19, 1962.]

      M. V. Moody, for appellant.

      Wright, Lindsey, Jennings, Lester é Shults, for appellee.
   Jim Johnson, Associate Justice.

This case arises out of an automobile collision. Appellant, Mathew Waters, sued appellee, George Coleman, for personal injuries and damages to his automobile sustained by appellant when appellee’s car hit the rear of appellant’s car on Highway 67, south of Jacksonville, October 19, 1960. Appellant was turning or about to turn left; appellee overtook him and tried to pass on the left, when the collision occurred. Appellant and his witnesses testified that appellee was traveling at a high rate of speed, which was contradicted by testimony of appellee and his witnesses, including an Arkansas State Police officer introduced as an expert on accident investigations. This officer was allowed to testify, inter alia, as to his opinion of appellee’s speed and point of impact. Appellant objected to all of this witness’ testimony and also objected to certain of appellee’s instructions to the jury. The jury returned a verdict for appellee, and from the judgment comes this appeal.

The jury instructions give us a great deal of concern. To say the least, they could have been better worded, and appellant’s position improved by more specific objections. However, since it is not necessary for a determination of this case, we do not pass on the instructions in this opinion.

For reversal appellant specifically urged that the trial court erred in permitting a state police officer to testify as an expert witness over appellant’s general and specific objections, because there were four eye-witnesses in close proximity to the collision who testified seeing the collision and the impact, and that this evidence invades the province of the jury.

The officer’s testimony abstracted from the record is as follows:

“I have been with the Arkansas State Police fifteen years. I am a graduate of the FBI Training School, Arkansas State Training School and Northwestern Traffic Institute. I have been an instructor in accident investigation in the Arkansas State Police since 1951. For the last ten years my job has been the investigation and analysis of all accidents investigated by our office.
“I am qualified by experience and training to examine points of impact or physical evidence at the scene of an accident and express an opinion of the speed and location of the vehicles. In determining the speed of a vehide there are a number of fadors that are involved. The three major fadors are the surface over which the car has traveled, the initial speed the car was traveling and whether the surface Avas upgrade or downgrade, and of course, wet or dry, in which the type of surface is taken into consideration. In a minimum speed estimate, I do not take into consideration the vehicle. In a probable speed estimate, in order to determine as near as possible the exact speed, that is taken into consideration.
“I went to the scene of the accident. I looked at the automobile driven by Mathew Waters.
“Of the Waters vehicle, I think the testimony I have heard in court here this morning is pretty well established his vehicle was traveling not more than 15 miles per hour and certainly that is a high speed to make a turn such as he was making. His speed would be estimated at a maximum of 10 miles per hour and the Coleman vehicle, of course, is a different matter. The surface over which he was sliding out there was dry, level asphalt and a test skid from that surface shows that it had a drag factor of holding factor of .75, which makes it three-fourths perfect over Avhich to drive an automobile. In the formula we use, if you have two facts, then you can find the third factor. After the test skid was made Ave had the drag factor and 105 feet of skid marks involved in the initial accident and using the formula we do use, his speed would be 47.7 miles per hour when he applied his brakes. In other words, he would have to be traveling at that speed in order to slide his car to a stop, in 105 feet without striking anything.
‘ ‘ The damage, of course, done to both vehicles, gives a pretty good estimate of the speed of the cars.
“As has been testified to, the speed of the Waters, vehicle has been pretty well established, and the very small amount of damage done to both vehicles on impact, between the cars leads to the opinion that the Coleman car was virtually stopped at the point of impact. The fact that the Coleman car traveled behind the Waters, car after the impact and brought to a stop under control and driven off the highway indicates that Coleman’s car was under control at all times and traveling at a very low rate of speed at the point of impact. There has been testimony that the Waters car was knocked into the cafe. But it must be remembered that the Waters car was in motion and had been turned toward the cafe before point of impact. Had Coleman’s car been traveling at 89 or 90 miles per hour — .
“The point of impact on these two vehicles, it had been testified on the Waters car was the left rear and on the Coleman car the testimony shows it was the right front. Now if the Coleman car had been traveling at a relatively high rate of speed then the Waters car would never have continued in that direction. Let me put it this way. It would be more understandable probably in the place of two automobiles we take two cue balls, we all know what cue balls are and in this case the Waters automobile had traveled at the specified speed of 10 miles per hour. It has been testified here by several witnesses that the Coleman car was traveling from 80 to 90 miles per hour. If the Coleman vehicle had struck the Waters vehicle, neither of them would have been in this courtroom.
“The course of the two vehicles as shown on the diagram of the police report, had the Coleman vehicle struck the Waters vehicle at the point of impact as shown, the Waters vehicle would have been shoved straight south down the highway and they both would have been completely demolished.”

On cross-examination, the witness testified that he did not see the accident, and that at the time of the accident he was probably at State Police Headquarters about twenty miles from the scene of the accident.

Appellee argues in effect that the officer’s testimony simply explained to the jury the foundation upon which he reached his conclusions as to the single issue of the speed of the vehicles. Ergo, the evidence was admissible under the rule laid down in St. Louis & S. F. R. v. Fithian, 106 Ark. 491, 155 S. W. 88.

In onr view, the witness’ testimony went much further than contended by appellee. In fact it was tantamount to a reconstruction of the collision and a comment on the weight of the evidence. In this case there were five eye-witnesses who testified on behalf of appellant (including appellant) and two who testified on behalf of appellee (including appellee) in addition to the expert. While the testimony was in such hopeless conflict as to amount to a swearing match, the facts to be determined were not complicated. This was a relatively simple collision. Certainly there was no evidence to indicate that it was beyond the jury’s ability to understand the facts and draw its own conclusions. The state of the record being thus, we find that the trial court erred in allowing appellee to resort to expert opinion. Mo. Pac. R. Co. v. Barry, 172 Ark. 729, 290 S. W. 942, Henshaw v. Henderson, 235 Ark. 130, 359 S. W. 2d 436.

Eeversed.


author: Neill Bohlinger, Associate Justice.

text:
    Craig v. State.
    5055
    361 S. W. 2d 16
    Opinion delivered October 15, 1962.

      Sexton & Morgan, by Thomas A. Pedron, for appellant.

      Frank Holt, Attorney General, by Milas H. Hale, Asst. Attorney Gen., for appellee.
   Neill Bohlinger, Associate Justice.

On April 4, 1962, the appellant was convicted.in the Justice of the Peace Court, Carter Township, Greenwood District, Sebastian County, on a charge of disturbing the peace and sentenced to thirty days confinement in jail and was also fined at the same time for assault and battery.

At the time of sentencing, the appellant made an oral motion for an appeal to the Sebastian Circuit Court and executed a bond for his appearance in that court.

No further action seems to have been taken in the matter and on May 5, 1962, the Justice of the Peace ordered a commitment for the incarceration of the appellant. On May 7,1962, the appellant filed in the Sebastian Circuit Court a petition for a writ of habeas corpus and a petition for a writ of certiorari. The circuit court denied both petitions and the appellant appeals here under the contention that by the terms of Act 151 of the Acts of 1905 he was allowed sixty days after conviction to perfect his appeal, which time had not elapsed on the date of the issuance of the order of commitment. On May 21,1962, a bail bond in the sum of $500.00 was fixed by a justice of this court under which appellant was released from custody pending further orders of this court.

It is the contention of the State, however, that an appeal from an inferior court to the circuit court must be perfected within thirty days from date of judgment, which time had elapsed at the time the commitment was issued.

Act 151 of 1905 is captioned as an act to amend the laws regulating appeals to the circuit court in criminal cases and provides, in Section 1:

“Any person convicted before any justice court, or police, or city court of any crime, misdemeanor, breach of the penal laws of this State, or of violation of any city or town ordinance, may appeal therefrom to the circuit court of the county in which such conviction occurred at any time within sixty days thereafter.”

Since the passage of Act 151 of 1905, the Legislature has twice acted on the matter of appeals from inferior courts to the circuit court.

Act 323 of the Acts of 1939 is entitled “An Act Regulating Appeals From Inferior Courts to the Circuit Court,” and Section 1 thereof is as follows:

“A party ivho appeals from a justice of the peace judgment or a common pleas judgment or a municipal court judgment must file the transcript of the judgment in the office of the circuit court cleric within 30 days after the rendition of the judgment. If the transcript of the judgment is not filed within 30 days after the rendition of the judgment, execution can be issued against the signers of the appeal bond.” [Emphasis added]

In 1953 the Legislature passed Act 203 entitled “An Act to Amend Act 323 of the Acts of the General Assembly of the State of Arkansas for the Year 1939, It Being an Act to Regulate Appeals from Inferior Courts to the Circuit Court.” Section 1 of Act 203 is as follows:

“Section 1 of Act 323 of 1939, being Section 26-1307 of the Statutes of the State of Arkansas, be and the same is hereby amended to read as follows:
‘If a party appeals from a justice of the peace judgment or a common pleas judgment or a municipal court judgment the clei’lc of the court or the justice of the peace of the court from which the appeal is taken must file the transcript of the judgment in the office of the Circuit Court Clerk within thirty (30) days after the rendition of the judgment.’ ”

It will be noted that Act 203 of 1953 amended Act 323 of 1939 by placing the responsibility of filing the transcript within a thirty day period upon the clerk of the court, or upon the justice of the peace rather than upon the appealing party and omitted the last sentence of Act 323 which is immaterial here.

In order for us to sustain the contention of the appellant it would be necessary for us to engraft upon the clear wording of the statute an intent upon the part of the Legislature to make the Acts of 1939 and 1953 apply only to civil cases. In this connection we can do no better than to quote from the opinion of the learned trial judge in that particular.

i < * * * 0£ course obvious that this Act contains no language whatsoever limiting its application to civil cases. In view of this state of affairs the Court feels that there is nothing for it to construe or interpret. There is no ambiguity about this Act and- for the judicial branch of the Government to engraft words of limitation on it would be an affront to the legislative branch of our Government. Surely where the Legislature has expressed itself in clear and unequivocal language the courts have no business in picking it apart, and certainly in this instance there can be no quarrel with the lucidity of expression employed by the Legislature in expressing its will. To the contrary it must be pointed out that this Act serves a laudable purpose of making uniform the time in which to perfect appeals from inferior courts to the Circuit Court without regard to whether or not the case is criminal or civil in nature, or whether it emanates from a Municipal or Justice of the Peace Court.”

It is clear that the Legislature intended no difference of allowance of time for the appeals of civil and criminal cases.

In Whiteley v. Pickens, 225 Ark. 845, 286 S. W. 2d 4, there was before the court the matter of the time allowed for a defendant to perfect an appeal to the circuit court from a lower court and in holding that the transcript of the judgment from the lower court must be filed in the office of the circuit court within thirty days after rendition of the judgment, we said:

“* * * The transcript must be filed with the clerk of the circuit court within 30 days to confer jurisdiction upon the court. ’ ’

This is in line with the holding in Nowlin v. Merchants National Bank, 192 Ark. 529, 92 S. W. 2d 390, and Bridgman v. Johnson, 200 Ark. 990, 142 S. W. 2d 217.

In the Whitely, case, supra, we further said:

“We hold that the burden was on appellant to see that the transcript was lodged within the 30 day period and that Act 203 of 1953, which was an amendment to Act 323 of 1939, does not change the law in this respect.”

In Ex parte Hornsby, 228 Ark. 975, 311 S. W. 2d 529, there was before us a case in which Hornsby, being-in durance vile, petitioned the Crittenden Circuit Court for a writ of habeas corpus to inquire into the jurisdiction of the court which had committed him. There was no record of an appeal having been taken and in that case we said:

“At the outset we are confronted with the proposition that an application for habeas corpus cannot be made to perform the function of an appeal, or writ of error, in correcting errors or irregularities at the trial. We have repeatedly held that if a petitioner for habeas corpus is in custody under process regular on its face, nothing will be inquired into save the jurisdiction of the court whence the process came.” Citing cases.

Hence there was no jurisdiction in the circuit court in this case and the petition for habeas corpus was properly refused.

We further hold that the appellant’s petition for writ of certiorari was at best a substitute for failure to file his appeal on time. As we said in Ex parte Phillips, 80 Ark. 200, 96 S. W. 742:

“Certiorari can not be used as a substitute for appeal except in instances where the right of appeal has been unavoidably lost through no fault of the petitioner. ’ ’

There, is no proof here that the right of appeal was unavoidably lost.

The finding of the circuit court refusing the writ of habeas corpus and writ of certiorari is affirmed.


text:
    Andrews v. Victor Metal Products Corp.
    5-2785
    361 S. W. 2d 19
    Opinion delivered October 15, 1962.

      Ward & Lady, for appellant.

      Pickens, Pickens & Boyce, for appellee.
   Neill Bohlinger, Associate Justice.

The appellant, Clara V. Andrews, brought this action in the Jackson County Circuit Court to recover the sum of $5,700.00 which she alleged was due her by the appellee as damages for her discharge by the appellee. She alleged that she was a member in good standing of a union and that she was discharged without written notice in violation of the contract with the union and the appellee.

Against this contention the appellee has pleaded res judicata as a defense alleging that the judgment in Case No. 2040 in the Jackson County Circuit Court under the style of Clara V. Andrews v. Commissioner of Labor, State of Arkansas, Employment Security Division and Victor Metal PRODUCTS is conclusive as to the issues involved in this case.

The transcript in this case embodies the following judgment upon which appellee relies:

“IN THE CIRCUIT COURT OF JACKSON COUNTY
ARKANSAS
CLARA V. ANDREWS APPELLANT
VS. NO. 2040
COMMISSIONER OF LABOR OF THE STATE OF ARKANSAS, EMPLOYMENT SECURITY DIVISION, AND VICTOR METAL PRODUCTS CORPORATION RESPONDENTS
JUDGMENT
The matter of the claim for benefits of Clara V. Andrews, S.S. No. [ XXX-XX-XXXX ], appealed from the Board of Review, is presented to the Court for judicial review upon the petition of the said petitioner, Clara V. Andrews, the response of the respondents, Commissioner of Labor, State of Arkansas and Victor Metal Products Corporation, the transcript of the proceedings before the Board of Review and the oral argument of counsel for the respective parties; from all of which the Court finds that the record before the Board of Review of the State of Arkansas contains substantial evidence supporting the decision of said Board in disqualifying the claimant for benefits and the decision should be affirmed by this Court.
It is therefore, by the Court, considered, ordered and adjudged that the decision of the Board of Review entered herein on July 7, 1959 disqualifying the petitioner, Clara V. Andrews, for benefits is affirmed and that the respondents recover from. the said petitioner costs herein expended for which execution may issue.”

From this judgment we are asked to find that in Case No. 2040 the issues that are presented here were before the Jackson Circuit Court in that cause. The pertinent part of that judgment is:

“* * * the Court finds that the record before the Board of Review of the State of Arkansas contains substantial evidence supporting the decision of said Board in disqualifying the claimant for benefits and the decision should be affirmed by this Court.”

It has been stated so often as to become axiomatic that:

“* * * To render a judgment in one suit conclusive of a matter sought to be litigated in another, it must appear from the record, or from extrinsic evidence that the particular matter sought to be concluded was raised and determined in the prior suit; or that it might have been litigated in that case. Livingston v. Pugsley, 124 Ark. 432, and Morton v. Linton & Plant, 138 Ark. 297,” Gordon v. Clark, 149 Ark. 173, 232 S. W. 19. [Emphasis added]

There is no extrinsic evidence and the record before us shows nothing except that in Case No. 2040, referred to supra, there was found substantial evidence supporting a decision of the Board of Review in disallowing certain benefits to claimant and we are left in the field of conjecture as to what was before the Board of Review. Was it something entirely foreign to the case now before us? Was it the particular wages or loss claimed in this action?

In their excellent brief the attorneys for the appellee have ably stated their plea of res judicata but as we said in the Gordon v. Clark case, supra, it must appear from the record. The statements of counsel we will accept without reservation, but that does not make them part of the record and our conclusion must be based upon the record.

For the reasons stated herein, this cause is reversed and remanded.


author: Carlton Harris, Chief Justice.

text:
    Armstrong v. Sturch.
    5-2917
    361 S. W. 2d 77
    Opinion delivered October 22, 1962.

      Fred Pickens, Jr., for appellant.

      Kaneaster Hodges, for appellee.
   Carlton Harris, Chief Justice.

Seventy-six electors of Glaize Township, Jackson County, Arkansas, on July 23, 1962, filed a petition with Joe G-. Armstrong, County Clerk of Jackson County, and one of the appellants herein, asking that the question of “For the Manufacture or Sale of Intoxicating Liquors” and “Against the Manufacture or Sale of Intoxicating Liquors ’ ’ be placed upon the ballot for the general election to be held on November 6, 1962. No action was taken by the clerk, and about September 18th, that official advised appellees that the petitions-had not been filed within the time prescribed by law, and he would not canvass its sufficiency or certify it to the County Board of Election Commissioners for inclusion on the November 6th ballot. On September 26, 1962, appellees filed their complaint in the Chancery Court of Jackson County, Arkansas, seeking Writs of Mandamus against the County Clerk and the County Board of Election Commissioners to compel the certification of the petitions as sufficient, and the submission of the question (heretofore stated), at the general election. Appellants, the County Clerk and the Board of Election Commissioners of Jackson County, filed their demurrer to the complaint on the ground that such complaint showed on its face that the petitions had not been filed within the time prescribed by law. The demurrer was overruled by the court. Appellants elected to stand on the demurrer and declined to plead further. Admittedly, the petition, insofar as containing a sufficient number of qualified electors, is valid. The court directed the issuance of writs as prayed, and this appeal followed.

Only one question is presented in this lawsuit, vie, “Were the petitions filed within the time prescribed by law?”, and our holding is confined solely to that issue.

Appellants’ contention that the petitions were not valid is based on the provisions of Amendment No. 7 (Initiative and Referendum) to the Constitution of the State of Arkansas. The pertinent portion of the amendment, relied upon by appellants, is found under the heading ‘ ‘ Municipalities and Counties ’ ’ and reads as follows :

“In municipalities and counties the time for filing an initiative petition shall not be fixed at less than sixty days nor more than ninety days before the election at which it is to be voted upon; * * *”

Initiated Act No. 1 of 1942 [§ 48-801 Ark. Stats. Anno.] provides for the manner of holding “Local Option” . elections, and this section was amended by Act 15 of the General Assembly of 1955. Section 2 of that act [§ 48-825 1961 Supp.] provides:

“Every petition for a local option election shall be prepared in accordance with Initiated Act No. 1 of 1942 [§ 48-801], and it shall be filed, and the subsequent proceedings thereupon shall be had and conducted, in the manner provided for county initiative measures by Initiative and Referendum Amendment No. 7 to the Constitution of Arkansas and enabling acts pertaining thereto.”

The sum and substance of appellants’ argument is, therefore, as follows:

The petitions of appellees were filed with the clerk on July 23, 1962. This was more than 90 days prior to the general election to be held on November 6, 1962, and, thus, (it is contended) in conflict with the requirements of Amendment No. 7. Accordingly, in appellants’ view, the petitions were not timely filed, and the court erred in holding them valid, and directing its writs of mandamus to appellants.

In rendering its decision, the court stated:

“This matter is presented to the Court on the complaint of the plaintiffs to which the defendants have demurred, thereby, admitting the truth of the allegations in the complaint. And, in an attempt to sustain their demurrer, they contend that the time limits under the I & R Amendment govern the time of filing and as the petitions were filed more than ninety days before the election that they were, so far as the Clerk is concerned, never filed and, although they admit that the Clerk has refused to act on the petitions, that he was not required to act because of this early filing.
It has been argued here that the time of filing for these petitions is governed by the I & R Amendment. I fail to see that. We have here the Section 48-801 which controls the local option elections. As to the preparation and the filing of the petitions and the percentage required, it is admitted the petitions represented a proper percentage of the qualified electors in Glaise Township in Jackson County; so that question need not he passed on.
“Section 48-801 as amended by Act 15 of 1955, which is in the Digest as 48-824 and 25, governs this case before us, but Act 15 of 1955 or Section 48-825 of the Digest says:
Every petition for a local option election shall be prepared in accordance with Initiated Act No. 1 of 1942, — (which is 48-801 of the Digest) — and it shall be filed,—
“It shall be prepared and filed in accordance with 48-801; and right here is where I have to differ with the contentions of the counsel for the defendants. They have put a different construction on this section than I am forced to put on it. Then, after it is filed:
—and the subsequent proceedings thereupon shall be had and conducted in the manner provided for county initiative measures by Initiative and Referendum Amendment No. 7 to the Constitution of Arkansas and enabling acts pertaining thereto.
“Now their argument is based on the theory that the I & R Amendment takes effect before the filing. As I construe this section, when the petitions are filed, then, the I & R Amendment and its provisions begin to take effect; and the procedure from there is in accordance with the I & R Amendment provisions.”

We agree with the logic of the trial court, and, as that court subsequently stated, Section 48-801, as amended, does not set a time limit on the filing of petitions.

In January, 1944, in the case of Yarbrough v. Beardon and Phillips v. Foreman, 206 Ark. 553, 177 S. W. 2d 38, it was clearly held that Amendment No. 7 to the Constitution has nothing whatever to do with local option elections on liquor questions. In that case we held that the word “measure” used in Amendment No. 7 did not include “a submission to the legal voters of the county on the question of the sale of liquor”. In 1955, Act 15 was passed. Thereafter, on October 29, 1956, this court handed down its decision in Brown v. Davis, 226 Ark. 843, 294 S. W. 2d 481, which we deem controlling in the present litigation. In that case we held that after a local option petition has been prepared under the provisions of Initiated Act No. 1 of 1942 and filed with the County Clerk, subsequent procedure must be governed by Initiative and Referendum Amendment No. 7 to the Constitution. From the opinion:

“The legislative purpose or intent in this Act 15 is clear. Its primary purpose is to change the date of holding local option elections to the regular biennial November election days; in other words, special local option elections are prohibited. In Section 2 it expressly provides that petitions for local option elections must be prepared in accordance with the provisions of Initiated Act No. 1 of 1942, and all subsequent proceedings thereupon shall be had and conducted in the manner provided for county initiative measures by I. & R. Amendment No. 7 to the Constitution of Arkansas. This could only mean, we think, that petitions should be prepared and that procedure followed in accordance with our construction of Act 1 of 1942. Had the legislature intended to repeal any part of Act 1 of 1942 or to change local option elections into initiative acts, it would have been very easy for it to have so declared. The legislature is presumed to take knowledge of the decisions of this court when enacting legislation.
‘ ‘ The decree of the trial court contains these further recitals, which we hold the record supports and to which we agree. ‘Under the clear wording and intent of Act 15, supra, the provisions of the I. & R. Amendment, and its enabling act, did not come into play (or affect this petition) until said petition was filed with the County Clerk. Up to that time, the petition was and is governed by Initiative Act No. 1 unaffected by the provisions of Sections 2 and 3 of Act 15, supra. However, after such petition was filed with the County Clerk, “subsequent proceedings thereon shall be had and conducted, in the manner provided for county initiative measures by Initiative and Referendum Amendment No. 7 to the Constitution- and enabling acts pertaining thereto.” This means simply that while the local option petition under Act 1, supra, as amended, is not an initiative measure within the meaning of the I. & R. Amendment, still after such local option petition is prepared in accordance with Initiative Act No. 1 of 1942, and filed with the County Clerk, thereafter in-order to get the question on the ballot at the regular biennial November general election in an orderly way such petition shall be handled in the same manner, and the same procedure followed, as if it were in fact a county initiative measure. Though different in nature, the same procedure insofar as getting the question on the ballot is concerned, must be followed after said petition is filed with the Clerk. That is what Section 2 provides. * * ”

It might also be pointed out that we are committed to a liberal construction of this amendment, bearing in mind the purpose of its adoption, and the object it sought to accomplish, Leigh and Thomas v. Hall, Secretary of State, 232 Ark. 558, 339 S. W. 2d 104. Our holding in Southern Cities Distributing Company v. Carter, 184 Ark. 4, 41 S. W. 2d 1085, bears some similarity to the issue at hand. There, a referendum petition was filed to refer a municipal ordinance, and was filed less than 30 days after the enactment of the ordinance. This court held that the latter fact did not invalidate the petition, under the provisions of Amendment No. 7 to the Con.stitution, stating:

“The amendment provides the time for filing a referendum petition at ‘not less than thirty (30) days nor more than ninety (90) days after the passage of such measure by a municipal council’. This does not mean, of course, that the petition for a referendum cannot be filed less than 30 days after the passage of the measure sought to be referred, but only that the city must allow at least 30 days after the passage of the measure for the filing of a referendum petition thereon, and cannot allow more than 90 days. * * * It is true the referendum petitions were filed * * * less than 30 days after the adoption of such measure hut they remained on file and were on file after 30 days after the passage of the gas rate resolution, and were passed upon and certified by the city clerk on the 31st day after the passage of the resolution, as containing sufficient signatures of qualified electors to authorize the referendum petitioned for. The referendum petitions, although they could not have been required to be filed in less than 30 days after the passage of the measure sought to he referred, were in no wise invalidated by having been sooner filed.”

We think the same reasoning applies to the filing of an initiative petition under Amendment No. 7, and the language “In municipalities and counties the time for filing an initiative petition shall not be fixed at less than sixty days nor more than ninety day's before the election at which it is to he voted upon” simply means that the legislature may not require that the petitions be filed earlier. It will be noted that the amendment itself does not definitely fix the time, but appears rather as a directive to the legislative body, circumscribing and limiting its authority in the matter.

Of course, viewing the matter from a practical standpoint, appellants, or the general public, have not in any manner been misinformed or misled because the petitions were filed on July 23rd rather than August 8th. As stated in Southern Cities Distributing Company v. Carter, supra, the petitions “remained on file with the pioper officer”. In fact, though not controlling, if anyone was misled, it was the appellees. The petitions were accepted by the clerk, who placed his filing mark thereon. Petitioners were not advised that, in the clerk’s view, the petitions were being filed too early, and it was not until September 18th (when it was too late to file such petitions), that appellees were advised by the clerk that he would not certify the petitions as sufficient. Be that as it may, we bold that tbe petitions were filed Avitbin tbe proper time, and the writ was properly issued to tbe clerk directing that be certify tbe sufficiency of tbe petitions to the Board of Election Commissioners, and give tbe required statutory notice by newspaper advertisement ; further, tbe writ was proper in directing tbe Board of Election Commissioners for Jackson County to submit tbe proposal to tbe electorate at tbe general election to be held on Tuesday, November 6, 1962.

Affirmed.

       Amendment No. 7, following the provision for the filing of initiative petitions in municipalities and counties, (heretofore quoted in the body of this opinion) provides that the time for filing a referendum petition shall he fixed “at not less than 30 days nor more than 90 days after the passage of such measure by a municipal council; * * *”