author: G-eorge Rose Smith, J. Ed. F. McFaddin, Associate Justice

text:
    Chambers Built Ins Co. v. Rabb.
    5-2980
    370 S. W. 2d 39
    Opinion delivered May 6, 1963.
    [Rehearing denied September 9, 1963.]

      Shackleford & Shackleford, for appellant.

      Harry Grumpier, Brown, Compton and Prewett, for appellee,
   G-eorge Rose Smith, J.

The appellant, a manufacturer of cooking stoves, appeals from a verdict and judgment awarding the appellees $20,000 as compensation for severe burns suffered by their two-year-old daughter, Debra Dianne Rabb. The appellees’ complaint alleged that a defect in their kitchen range, which had been manufactured by the appellant, caused a container of grease to catch on fire and injure the child. The serious question in the case is whether there is any substantial evidence to support a finding that the fire was in fact caused by a defect in the above.

Mr. and Mrs. Rabb bought the stove new in 1959. It had been used in the preparation of two meals a day for about three weeks when the fire occurred on the evening of September 8. That night Mrs. Rabb, in preparing supper, fried potatoes in about two quarts of grease in the stove’s deep well. Near the end of the meal, which was eaten at a table about two feet from the stove, the door to the storage compartment in the lower righthand part of the stove fell open. Both Mr. and Mrs. Rabb testified that they could see smoke and flame in the compartment, and the grease in the deep well was on fire. Mrs. Rabb at once carried her little daughter out of the house. Mr. Rabb used a garden rake to pick up the container of burning grease and carry it outside. Just after he had backed through the door, however, Debra Dianne threw her arms around his legs and caused the hot container to fall off the rake, splashing burning grease upon the child,

Throughout the case the appellant’s theory has been that Mrs. Rabb, after cooking the French fried potatoes, forgot to turn off the burner under the deep well, so that the grease became so hot that it caught on fire. Mr. and Mrs. Rabb testified that the burner was turned off; but, if they were mistaken about this, there is an abundance of evidence showing that the failure to turn off the burner under the grease could have caused the fire. This testimony is in effect uncontradicted and need not be set out in detail.

To meet their burden of proving a defect in the stove the plaintiffs relied upon the testimony of C. B. Lampkin, a qualified appliance repairman. Lampkin examined the damaged range about a month after the fire, when, following Debra Dianne’s release from the hospital at El Dorado, the Babbs returned to their home at Magnolia. Lampkin found two loose mounting screws at a point where there was a gasket a few inches below the right front top burner on the stove. He said that gas escaping from the leaky gasket would be ignited ‘ ‘ almost instantly” by the pilot light for the right front burner. On cross examination he said that if the screws had been loose all along he did not think the stove could have been used for three weeks without a fire.

Lampkin’s testimony, viewed in its most favorable aspect, would support a finding that the loose connection had caused gas to be ignited by the pilot light at a point just below the right front top burner, which would place the fire in the upper front area of the storage compartment. It was still necessary, however, for the plaintiffs to show that flames originating in this area could in turn cause the grease in the deep well to catch on fire. Upon this vital point we can find no evidence to support the jury’s conclusion that the defective connection was the proximate cause of the fire in the deep well.

The deep well extended downward from the right rear section of the top of the stove. The well itself was a hollow metal cylinder, open at the top and the bottom. Bock wool about an inch and a half in thickness was wrapped around the outside of the well, for insulation. The well was heated by a gas burner at the bottom of the cylinder. The removable container, which at the time of the fire was filled with grease to about two-sevenths of its capacity, was placed in the metal cylinder when being used for cooking. There was a lid for the well, which Mrs. Rabb put back in place after she fried the potatoes.

The fatal weakness in the appellees’ proof is the complete absence of any evidence tending to show how a gas flame in the upper front area of the storage compartment could have ignited the grease in the deep well, in the lower rear section of that compartment. There is no proof whatever that the flame could have come in direct contact with the'grease. To the contrary, the substance of Lampkin’s testimony on this point is that the leaking gas could not have lit the grease: “You cannot ignite grease in the deep well from anything on the outside.” This statement by the witness is unquestionably a correct summation of the situation. With the lid covering the deep well the flames could not have come up through the opening around the front burner, traveled to the back of the stove, and then made their way past the lid in order to descend to the grease at the bottom of the well. Nor, since natural gas is lighter than air, could the fire have traveled downward in the storage compartment to enter the bottom of the cylinder, then up to the top of the metal container, and then down again to reach the grease. There is no possibility that leaking gas could have filled the compartment before igniting, for Lampkin himself testified that the gas would have been ignited almost instantly from the pilot light close by. Finally, there was no explosion. Neither Mr. nor Mrs. Rabb testified that an explosion occurred, and Lampkin said that gas leaking from the loose gasket would have been ignited ■by the pilot light without an explosion.

There being no proof that the flames came in direct contact with the grease, the only alternative basis for a recovery would be a showing that the flames played against the outside of the deep well and heated it to such an extent that the grease caught on fire. The record contains no evidence to support such a conclusion. Lampkin and one of the appellees’ attorneys were invited to attend, and did attend, a demonstration at which the appellant undertook a reproduction of the alleged fire. It was found that if the deep-well burner was not turned off, as the appellant insists to have been the ease, the grease would become overheated to the point of catching on fire in an hour and ten minutes. The effect of Mr. Babb’s testimony was that an hour and ten minutes elapsed between the time when his wife started to cook and the time of the fire. Mrs. Babb fixed the time at about forty minutes.

At this demonstration the appellant also loosened the mounting screws in question, upon a stove of the same model, and permitted the leaking gas to ignite from the pilot light and burn freely in the upper part of the storage compartment. The grease had first been used tq fry potatoes. It was found that its temperature, instead of going up, actually decreased. This is not surprising, in view of the fact that the grease not only was below the point where the heat was applied but also was insulated by the rock wool, the wall of the metal cylinder, the intervening air space, and the wall of the removable container. Moreover, it should be pointed out that the appellant’s attempted reproduction of the fire was not in the nature of sui’prise testimony produced for the first time at the trial. The appellees’ lawyer and their expert witness were both invited to view the demonstration well in advance of the trial, so that there was ample opportunity for a rebuttal.

It is fair to say that the appellees have never, in their proof, in their brief, or in their oral argument in this court, demonstrated facts upon which it could be found that the leaky gasket caused the grease in the deep well to catch on fire. In effect they bypass this problem, by contending that if Mrs. Babb turned off the burner under the deep well, as she testified, then the fire could only have come from the defect in the stove. But this argument ignores the vital issue of causation and would permit the jury to find a causal connection when no witness in the case was able to do so.

Beversed and remanded.

McFaddin, Johnson, and Holt, JJ., dissent.

Ed. F. McFaddin, Associate Justice

(dissenting). I dissent because I maintain that a ease was made for the jury. As I read the Opinion, the Majority is in effect holding that the plaintiffs, in order to recover in a product liability case like this one, have to prove to a mathematical certainty exactly how the established defect in the product caused the injury. I dissent because such is not my understanding of the applicable rule of law. The plaintiffs proved these essentials: (a) that there was a leak of gas in the stove caused by a defect; (b) that there was a fire in the stove caused by the leaking gas; (c) that the grease caught on fire; and (d) that in removing the flaming grease the little girl was injured. I maintain that when the plaintiffs proved these four points they made a case for the jury and it then became a question of whether the evidence offered by the defendant overcame the evidence offered by the plaintiffs.

At the outset, let me mention these four essentials:

A. That there was a leak of gas in the stove caused by a defect, was established by the witness Lampkin, who found the loose screws and stated where the burned places were on the stove.

B. That the leaking gas caught on fire was thoroughly established by the testimony of both Mr. and Mrs. Rabb. I quote the testimony of Mrs. Rabb:

‘ ‘ Q. Tell the jury then what happened as you were sitting there at the table, what happened with reference to the stove f
A. We were sitting at the table nearly finished or finished, and there was kind of a spewing sound and the storage compartment door fell down and then there was smoke and a little flame.
Q. You say there was sort of a spewing sound, — can you make a noise similar to it?
A. (Witness illustrating.)
Q. And you say the door fell down?
A. Yes, sir.
Q. And then you saw smoke and some flame?
A. Yes, sir.
Q. What part of the stove did you see smoke and flame?
A. The right hand side.
Q. Toward the front or toward the back?
A. Around the front.
Q. By around the front, — would that be around this thermal eye burner ?
A. Yes, sir, and under it.
Q. Under what?
A. Under the thermal eye burner and the storage compartment.
Q. You mean the storage compartment and underneath this thermal eye ?
A. Yes, sir.
Q. Where else did you see smoke and flame?
A. Up on the eye and the deep-well.
Q. When you took the potatoes out, did you put the lid on the deep-well ?
A. Yes, sir.
Q. Where was any smoke or fire with reference to the deep-well?
A. Just, around the edge.”

Whether one calls the storage compartment door falling down an explosion or not is immaterial. The point is that the compartment door fell down, and there were both smoke and flame; and Mrs. Rabb observed the flame, not only in the stove, but in the deep-well.

C. That the grease caught on fire is likewise established by the testimony of Mrs. Rabb, as above quoted, and also the testimony of Mr. Rabb; and also by the fact that the grease was on fire when some of it fell on the little girl.

D. That in removing the flaming grease the little girl was injured was thoroughly established. The causal connection between Mr. Rabb removing the flaming grease and the injury to his daughter is not discussed in the Majority Opinion, but I mention that there was a causal connection. (Hill v. Wilson, 216 Ark. 176, 224 S. W. 2d 797.) Mr. Rabb did what a person of ordinary prudence would have done in removing the grease; and. the little girl, in grabbing her father’s leg, could not be charged with negligence.

With these four essentials mentioned, I come to the question of whether the plaintiffs had to trace with mathematical accuracy how the defect in the stove, that allowed the gas to escape, caused the grease to catch on fire. I maintain that when the plaintiffs showed the four essentials above mentioned, they made a prima facie case for the jury. Volumes have been written on products liability cases, but I mention only a few which bear on the point here at issue. One of the leading cases is Shelly Oil Co. v. Holloway (8th Cir.), 171 F. 2d 670; and the scholarly opinion in that case was written by the late Judge Walter G. Riddick of Arkansas. The Holloways’ home ivas destroyed by fire, which they alleged had been caused by propane gas allowed to escape because of the negligence of the Skelly Oil Company. The cause was tried before a Judge without a jury; and from a judgment for the Holloways, the Skelly Oil Company appealed, claiming that the plaintiffs had failed to prove that the fire was caused by the escaping gas. Judge Riddick said:

‘ ‘ The evidence revealed no other reasonably probable source of the fire, except the presence of gas throughout the walls and upper floor of the house. That the fire was first seen coming from the hole in the floor in the bedroom occupied by Elmer Holloway does not conclusively establish that place as the point at which the fire originated ...
"Nor can it be said on this record that the court’s finding that the fire was caused by escaping gas is contrary to conclusively established physical facts and natural laws. The argument on this aspect of the case is based upon known properties of Skelgas. Briefly stated, it is that within the time elapsing between the hour at which defendant’s employees finished their work of inspection and repair and the discovery of the fire by Elmer Holloway, it was impossible, conceding the escape of gas, its diffusion, and mixture with air, for the mixture of air and gas in the open space between the rock ledge and the north wall of the lower floor of the house, between the joists supporting the floor on the second level of the house, and in the walls of the second floor of the house, to have reached a concentration above the explosive limit of Skelgas; or, in other words, that within the time specified any possible mixture of Skelgas and air, conceding that such a mixture could have occurred, would have remained within the explosive limits of Skelgas, and that instead of a fire in the house there would have been an explosion at the instant of contact of the Skelgas-air mixture with flame.
“In support of this contention recourse is had to laws of physics concerning the rate of expansion of gases; the time required for two gases of equal temperature and pressure to mix by diffusion in the absence of the application of heat or mechanical action, such as the difference in pressure of the two gases; and to a generally accepted formula for the computation of the rate of the flow of gases. The difficulty with defendant’s argument and computations is that too many of the decisive factors are only approximately known, if known at all.”

The similarity between the argument of the Skelly Oil Company in the reported case, and the argument of the appellant in the case at bar, is instantly apparent. The Skelly Oil Company claimed that the fire could not have happened as the plaintiffs contended; but Judge Biddick affirmed the judgment for the plaintiffs; and I submit that the same result should follow in the case at bar.

Another case worthy of study is Stadick v. Olson’s Hardware (N. D.), 64 N. W. 2d 362. There, a gas stove had exploded and injured the Stadicks, who sued the seller, Olson’s Hardware. From a judgment for the plaintiffs the defendant appealed, insisting that the Court should have given a directed verdict for the defendant. The Supreme Court of North Dakota, in affirming the Trial Court, did not require the plaintiffs to show to a mathematical certainty every step from the defendant’s negligence to the plaintiffs’ injury. Bather, the Court said :

“When the explosion occurred the only fire in the house was in the two pilot lights on the stove. The explosion occurred when the oven was opened by the plaintiff. The conclusion is inescapable that the explosion was caused by an accumulation of free gas in or about the stove. How did the gas come to be there? It had escaped from the system in one of two ways — either a burner was left partly open by tbe plaintiff or his wife or the gas escaped through a defect in the system.
‘ ‘ The plaintiff’s wife testified that she checked all of the burner valves to see that they were closed when she retired. The plaintiff testified that he looked at the stove before he opened the oven door; and there was nothing wrong with it; and that the burner valves were off. If the testimony of the Stadicks is to be believed, the only reasonable inference is that the gas that exploded escaped from a defect in the system. The evidence produced by the defendants shows that if the system was properly installed there was no danger of leakage . . .
‘ ‘ The fact that a verdict was rendered for the plaintiff indicates that the jury found the evidence of the Stadicks to be credible. On the basis of their evidence it was logical for the jury to infer that their injuries resulted from the explosion of gas that had escaped from the system that had been improperly installed by the defendants, whose negligence in making such an installation was the proximate cause of the damages which the plaintiff suffered.”

Without prolonging this dissent, I call attention to the case of Alldread v. Mills, 211 Ark. 99, 199 S. W. 2d 571. In that case there had been an automobile collision and the appellant insisted that the physical facts entirely disproved the appellee’s right to recover. We rejected that, plea about physical facts, saying:

“ ‘So frequently do unlooked-for results attend the meeting of interacting forces that courts, in such cases,, should not indulge in arbitrary deductions from physical law and fact, except when they appear to be so clear and irrefutable that no room is left for the entertainment, by reasonable minds, of any other.’ ”

I maintain that it was for the jury to decide from the-established facts in this case as to whether the little girl was injured because of the negligence of the appellant;, and so I would affirm the judgment for the plaintiffs.

       In the ease at bar the complaint alleged: “ . . . that the explosion in said stove and the resulting fire and injuries occurred as a result of the surface burner control unit (referred to as a ‘Thermal Eye’ by the manufacturer) not being properly secured to the mounting plate, which is connected to the gas supply line. As a result, gas leaked between said unit and the mounting plate and this gas was ignited by the pilot light and the resulting flames ignited the grease contained in the deep well vessel.” The answer of the defendant “ . . . admits that the deep well cooking container on said range ignited, but denies there was any explosion ...” Bes ipsa loquitur does not seem to have been brought into this case in any way. It is a straight issue of whether the defendant was negligent and whether the injuries resulted therefrom.

       It was stated in oral argument before this Court, and undenied, that the Rabb stove was delivered to the defendant’s retailer in Magnolia after the fire, and that the plaintiffs had no further connection with the stove. The record before us contains testimony as to experiments conducted by the defendant on other stoves. Whether the experiments on the other stoves could have been shown if an objection had been made is a matter that need not be discussed, because it does not appear that the plaintiffs made any such objection.

       In 80 A. L. R. 2d 488 there is an extensive annotation on the subject, “Liability of manufacturer or seller for injury caused by firearms, explosives, and flamables”; and in 80 A. L. R. 2d 598 there is an extensive annotation on the subject: “Liability of manufacturer or seller for injury caused by household and domestic machinery, appliances, furnishings, and equipment.” In 52 A. L. R. 2d 159 there is an annotation on: “Presumption or prima facie case of negligence based on presence of foreign substance in food in can or other sealed container.” Interesting cases examined on the points here at issue include these: Otis Elevator Co. v. Robinson, 287 F. 2d 62; Reynolds v. Natural Gas Co., 7 Calif. Rep. 879; Jaeger v. Elizabethtown Consolidated Gas Co. (N. J.), 11 A. 2d 746: Hilson v. Pac. Gas & Elec. Co. (Calif.), 21 P. 2d 662; Ky. etc. Power Co. v. Elliott, 220 S. W. 2d 964; Dixon v. Montgomery Ward (Ill.), 114 N. E. 2d 44; Ehler v. Portland Gas Co. (Ore.), 352 P. 2d 1102; Lindroth v. Walgreen (Ill.) 94 N. E. (2) 847; and see annotation in 88 A. L. R. (2) 230 entitled “Expert and Opinion Evidence as to cause or origin of fire.”


source: Caselaw Access Project

author: Sam Robinson, Associate Justice.

license: Public Domain

text:
    Ark. State Highway Comm. v. James.
    5-2942
    367 S. W. 2d 236
    Opinion delivered May 6, 1963,

      Dowell Anders and Don Gillaspie, for appellant.

      Bruce Bennett, for appellee.
   Sam Robinson, Associate Justice.

Appellee, Mrs. Jewel W. James, filed this suit to enjoin the Highway Commission from using as a part of the right of way of Highway 79, a small piece of land appellee claims that she owns. The Highway Commission has appealed from a decree holding that appellee owns the land involved.

In July, 1906, there was filed for record in Calhoun County, Arkansas, a plat of a part of the town of Thornton. Lots, blocks, and streets were set out in detail. The streets were named and dedicated to the public. North Second Street runs in a northeasterly direction, and Farrell Street runs in a northwesterly direction. These streets intersect at the north corner of block 14. The streets are 60 feet wide. Block 7 lies immediately to the northwest and across North Second Street from block 14.

In 1934 the Highway Commission acquired a portion of block 7 for the construction of Highway 79. In 1939 the Commission gave a Quitclaim Deed to Mrs. R. Hollingsworth purportedly conveying portions of North Second Street and Farrell Street not embraced within the right of way of Highway 79. In 1950 Mrs. Hollingsworth, by Quitclaim Deed, conveyed to appellee herein, Mrs. Jewel W. James, the purported interest she had acquired in the streets from the highway Commission.

The right of way of Highway 79 is 60 feet wide, but not all of it was used when the highway was first built. When the Highway Commission indicated it might use the entire right of way, Mrs. James filed this suit contending that by virtue of the deed from Mrs. Hollingsworth she owns a part of the land within the right of way of Highway 79.

The description in the deed from Mrs. Hollingsworth to Mrs. James is identical to the description in the deed from the Highway Commission to Mrs. Hollingsworth. Although the description in the deed is confusing, it is clear that the parties did not intend that a portion of the right of way of Highway 79 be conveyed to Mrs. Hollingsworth. The description is as follows:

‘ ‘ A part of the Southeast Quarter of Southwest Quarter of Section 12, Township 11 South, Range 14 West, described as follows:
“Beginning at the Northeast Corner of Block 14 in town of Thornton (original survey); thence run North 45 feet more or less to a point on the South right-of-way line of Highway No. 79; thence along South right-of-way line (Southwesterwardly) 225 feet more or less to a point; thence South 35 feet more or less to the Northwest Corner of Block 14; thence along the North line of Block 14 in an Easterly direction 225 feet more or less to the point of beginning.”

It will be seen from the deed that it takes in no part of the right of way of Highway 79. In fact, 45 feet North of the “Northeast” Corner of Block 14 would end somewhere near the middle of Farrell Street; it would not go as far as the South right of way line of Highway 79. Then, according to the deed, the line of the property conveyed runs along the South right of way line Southwesterly 225 feet; thence South 35 feet, etc. Thus it will be seen that the description in the deed does not take in any part of the right of way of Highway 79. Moreover, there is attached to the deed, a plat showing the property that the parties intended to be conveyed by the deed from the Highway Commission to Mrs. Hollingsworth, and from Mrs. Hoilingsworth. to Mrs. James. It does not show that any part of Highway 79 was conveyed by those deeds.

Reversed with directions to dismiss the complaint.


author: Jim: Johnson, Associate Justice. Ed. F. McFaddin, Associate Justice

text:
    Creekmore v. Izard.
    5-2907
    367 S. W. 2d 419
    Opinion delivered May 6, 1963.
    [Rehearing denied June 3, 1963.]

      Conley Byrd, Ralph W. Robinson and H. B. Stubble-field, for appellant.

      Daily 3 Woods, Marvin Thaxton and Ray Trammell, for appellee.

      Arle. Bar Association, Amici Curiae.

      Catlett 3 Henderson, Amici Curiae.'
   Jim: Johnson, Associate Justice.

This appeal involves the question of whether a notary public and a realtor are practicing law when filling in simple standardized forms used in real estate transactions. The action was instituted by appellant Alfred Creekmore, a Notary Public in Mountainburg, to declare his right to continue to fill in the blanks in printed real estate forms, bills of sale, etc., none of which he contended constituted the practice of law. Clyman Izard and Fines F. Batchelor, Jr., as officers and members of the Crawford County Bar Association, and Marvin D. Thaxton, Chairman of the Unauthorized Practice of Law Committee of the Arkansas Bar Association, were made parties in their individual and representative capacities as members of a class in accordance with Ark. Stats. § 27-809. After an answer had been filed, Everett 0. Sewell, a regularly licensed and bonded real estate broker, was permitted to intervene, alleging that it was desirable for him in connection with his business as a real estate broker to be permitted to fill in the blanks in printed standardized real estate forms prepared or approved by a lawyer; that he possessed the required knowledge and skill to fill in such blanks in connection with real estate transactions handled by him as a real estate broker; and that his doing so would not adversely affect the public interest. Upon a trial on the merits, the trial court found that appellant Creekmore, a notary public, in filling in the blanks of printed forms of bills of sale, chattel mortgages, promissory notes, warranty deeds, quitclaim deeds, options, loan applications, real estate mortgages, deeds of trust, releases and satisfactions of real estate mortgages, powers of attorney, federal income tax returns, notices to quit or vacate real property and mineral (oil and gas) leases, constituted the practice of law; dismissed the intervention of appellant Sewell; and enjoined appellant Creek-more from performing the acts mentioned.

During oral argument, counsel for appellants admitted that they were entitled to no relief unless the rule in the case of Arkansas Bar Association v. Block, 230 Ark. 430, 323 S. W. 2d 912 could be relaxed. Following the decision in that case realtors were enjoined from the use of forms such as are involved in this case, see Block v. Arkan sas Bar Association, 233 Ark. 516, 345 S. W. 2d 471. Appellants earnestly argue that an engineer, an insurance agent, a banker, a merchant, a stock broker, and practically every other business or professional man does some acts which affect the legal rights of the people they serve, and that to require a person to employ a lawyer in every transaction involving them would virtually bring the wheels of commerce to a halt.

The appellees point out that the decision in Arkansas Bar Association v. Block, supra, is well decided and should remain undisturbed. In support of the soundness of the Block decision, they call to our attention the fact that it has been followed by a decision of the Arizona Supreme Court in the case of State Bar of Arizona v. Arizona Land Title & Trust Co., 90 Ariz. 76, 366 P. 2d 1, and that it conforms to a realtor-lawyer agreement entered into between the American Bar Association and the National Association of Real Estate Boards in 1942. In 28 Unauthorized Practice News 252, cited by appellees, the background of the lawyer-realtor controversy in Arizona both prior to and subsequent to the decision in State Bar of Arizona v. Arizona Land Title & Trust Co., supra, is discussed in detail by Wayland Cedarquist, a lawyer member of the National Conference of Lawyers and Realtors. This article suggests that, in the interest of the realtors, the lawyers and the public, some compromise between the lawyers and realtors should have been resorted to instead of the constitutional amendment which the Arizona realtors proposed.

The Supreme Court of Colorado, in Conway-Bogue Realty Inv. Co. v. Denver Bar Ass’n, 135 Colo. 398, 312 P. 2d 998, after holding that the preparation of instruments such as are involved here constituted the practice of law, said:

“The remaining and most difficult question to be determined is:
“Should the defendants as licensed real estate brokers (none of whom are licensed attorneys) be enjoined from preparing in the regular course of their business the instruments enumerated above, at the reguests of their customers and only in connection with transactions involving sales of real estate, loans on real estate or the leasing of real estate, which transactions are being handled by them¶
“This question we answer in the negative.
‘ ‘ The announced purpose of these suits are twofold: (a) To protect the licenses, privileges and franchises granted to attorneys from encroachment and damage by reason of the alleged unauthorized acts of the defendants.
‘ ‘ (b) To protect the public and particularly those persons participating in real estate transactions through brokers, from the dangers inherent in the preparation of legal documents by persons unskilled in the intricacies of the law rather than by lawyers.
‘ ‘ The defendants are all engaged in a lawful business. It is considered of such importance that the State of Colorado has adopted regulatory legislation providing for the licensing of persons engaged therein.
“ ‘No person shall be granted a license until he shall have passed a satisfactory examination and shall have established that he is trustworthy and bears a good reputation for good and fair dealing and is competent to transact the business of a real estate broker or real estate salesman in such manner as to safeguard the interest of the public . . .’C.E. S. '53, 117-1-1.
“We distinguish between the part of the public in quest of legal advice and services and out of which arises only the relationship of attorney and client and those bent on buying, leasing or selling real estate or borrowing money thereon, and out of which arises the relationship of seller-broker, buyer-broker, lessee-broker, lessor-broker, lender-broker or borrower-broker.
“The record shows conclusively that the defendants do not prepare papers or give advice to anyone except their customers who through solicitation or otherwise engage or employ them as brokers,.
“On the other hand, the record shows conclusively that the defendants do select, prepare and explain the documents enumerated above at the request of their customers, without charge other than the usual broker’s commission, and only in connection with real estate transactions then being handled by them and property left in their charge for management.
“The testimony shows, and there is no effort to refute the same, that there are three counties in Colorado that have no lawyers, ten in each of which there is only one lawyer, seven in each of which there are only two lawyers; that many persons in various areas of the state reside at great distances from any lawyer’s office. The testimony shows without contradiction that the practices sought to be enjoined are of at least 50 years uninterrupted duration; that a vast majority of the people of the state who buy, sell, encumber and lease real estate have chosen real estate brokers rather than lawyers to perform the acts therein complained of. Though not controlling, we must make note of the fact that the record is devoid of evidence of any instance in which the public or any member thereof, layman or lawyer has suffered injury by reason of the act of any of the defendants sought to be enjoined. Likewise, though not controlling, we take judicial notice of the fact that the legislature of the state, composed of 100 members from all walks of life and every section of the state, usually called upon by their constituents to adopt legislation designed to eliminate evils and protect the public against practices contrary to the public welfare, has never taken any step to prevent continuation of the alleged evil which we are now asked to enjoin.
‘ ‘ The question here to be resolved, and similar questions involving other businesses, has been before the courts of most of the 48 states, with widely divergent views and decisions resulting. There is very respectable authority for enjoining the acts complained of here; there is also respectable authority for denying injunctive relief. We feel that the weight of authority and especially the more recent decisions, sanctions our holding that the acts of which complaint is made, done without separate charge therefor by licensed real estate brokers only in connection with their established business, and in behalf of their customers and in connection with a bona fide real estate transaction which they are handling as brokers, should not be enjoined.
‘ ‘ The plaintiffs have much logic in support of their contentions. Reason, public convenience and welfare seem to be on the side of the defendants.
“We feel that to grant the injunctive relief requested, thereby denying to the public the right to conduct real estate transactions in the manner in which they have been transacted for over half a century, with apparent satisfaction, and requiring all such transactions to be conducted through lawyers, would not be in the public interest; that the advantages, if any, to be derived by such limitation are outweighed by the conveniences now enjoyed by the public in being permitted to choose whether their broker or their lawyer shall do the acts or render the service which plaintiffs seek to enjoin.”

In many respects our laws and history are analogous to those recited in the Colorado case. The evidence in this case shows that there are no lawyers in Mountainburg, Arkansas, and for a distance of 20 miles or more in either direction, and that there are no lawyers in Evening Shade, Arkansas, and for a distance of 20 miles or more in either direction, and we take judicial notice that there are many such towns in Arkansas similarly situated in which there are no lawyers. The real estate brokers licensing statutes, Ark. Stats. § 71-1301, et seq., in addition to requiring applicants to bear a good reputation for honesty, truthfulness and fair dealing, require that a broker take a written examination and provide for a $2,000.00 bond, conditioned that the broker and any salesman employed by him shall well and truly comply with, the provisions of the brokers licensing act. The act also gives the public the right to sue directly upon the bond for the violations enumerated in Ark. Stats. § 71-1307.

The testimony introduced on behalf of appellants shows that prior to the decision in Arkansas Bar Assn. v. Block, supra, it took only a matter of four or five minutes to fill in the blanks on the necessary deed and mortgage forms to complete a real estate transaction, but that since the Block decision it takes some three or four days to get a lawyer to prepare the necessary instruments; and that occasionally the broker takes a blank form, fills in all the necessary information, transmits it to the office of the lawyer, who subsequently retypes the whole instrument, for which he is paid a fee. Testimony further shows that many mistakes result from passing the information necessary to preparing a deed from the broker to the lawyer.

The appellants argued that should we, acting under our rule-making power under Amendment 28 to the Arkansas Constitution, permit a licensed and bonded real estate broker to complete the forms involved in a real estate transaction upon simple standardized forms approved by his lawyer, the broker’s lawyer, in addition to the Beal Estate Licensing Board, would also have an opportunity to say whether the particular licensed and bonded real estate broker possessed the requisite knowledge and skill to fill in the blanks in the forms approved by him. They also point out that the lawyer, at the same time, by the simple expedient of noting on the forms that they had been approved for a named broker by the approving lawyer, could police the broker’s future operations by picking up the forms that he had approved for that particular broker or by refusing to approve additional supplies of forms.

The individual members of this court have spent many hours of research in trying to determine what does and what does not constitute the practice of law. After the oral argument was held, we requested amicus curiae briefs. There seems to be no clear cut definition of the term. In Ark. Bar Assn. v. Union National Bank, 224 Ark. 48, 273 S. W. 2d 408, we said:

“An Individual Gan Practice Law For Himself. It is generally conceded that an individual who is not a licensed attorney can appear in the courts and engage in what is commonly conceded to be practicing law provided he does so for himself and in connection with his own business.”

Many activities fall within the ambit of the practice of law, for instance, a merchant collecting his own bills is not practicing law while a lawyer performing the same service for the merchant would be practicing law.

The relief here sought by appellant Sewell, the realtor, falls within the ambit of the merchant for the filling in of the simple standarized forms here involved is a necessary incident of his business just as the collection of the merchant’s bills is a necessary incident of his business. Therefore we are ruling that the decision in Ark. Bar Assn. v. Block, 230 Ark. 430, 323 S. W. 2d 912, should be modified to provide that a real estate broker, when the person for whom he is acting has declined to employ a lawyer to prepare the necessary instruments and has authorized the real estate broker to do so, may be permitted to fill in the blanks in simple printed standardized real estate forms, which forms must be approved by a lawyer; it being understood that these forms shall not be used for other than simple real estate transactions which arise in the usual course of the broker’s business and that such forms shall be used only in connection with real estate transactions actually handled by such brokers as a broker and then without charge for the simple service of filling in the blanks.

Appellant Creekmore, the notary public, does not stand in the same shoes as the broker. His preparation for a fee of deeds, mortgages, bills of sale, etc., clearly constitutes the practice of law for there is no connection between his business and that of preparing such instruments. The learned trial judge was correct in confining him in his capacity as a notary public to the taking of acknowledgments.

The decree of the trial court also enjoins appellant Creekmore from preparing income tax forms. In this particular, the decree is too broad. A person does not have to be a lawyer to fill out income tax forms. See Lowell Bar Assn. v. Loeb, 315 Mass. 176, 52 N. E. 2d 27, 31.

Some question has been raised as to whether this is a proper class action, but under our civil procedure, Ark. Stats. § 27-809, a person is entitled to sue as a member of a class or to sue representative members of a class as a whole. See Massey, Trustee v. Rogers, 232 Ark. 110, 334 S.W. 2d 664.

From what has been said it follows that the decree is reversed as to appellant Sewell and affirmed with respect to appellant Creekmore except for the injunction against filling out income tax forms, each party to bear his own costs.

MoFaddin and Robinson, JJ., dissent.

Ed. F. McFaddin, Associate Justice

(dissenting). I am strongly of the opinion that under the authority of the two Block cases, the decree of the Chancery Court herein should be affirmed in every respect, except as to the federal income tax returns. The first Block case was decided in 1959, and the second Block case was decided in 1961 ; and every matter presented in the present case was before us in those cases. I maintain that we should not overrule cases so recently decided. Trial judges will never know when to follow the rule of stare decisis if appellate judges change the holdings with each subsequent case.

The volume containing the first Revised Statutes of Arkansas was published in 1838, and Albert Pike wrote the preface to that volume, which preface is a classic. On Page YII of the preface, there is this language:

“Change and innovation in the law is generally a great evil, and every alteration in existing statutes should be made slowly, cautiously, and with due deliberation. It is sometimes better to abide by a law manifestly unjust, unequal, and unfounded in reason than by altering it to unsettle rules of practice and titles to property ...”

What Albert Pike said of legislation is many times more applicable to judicial decisions. In Carter Oil Co. v. Weil, 209 Ark. 653, 192 S. W. 2d 215, Judge Frank Smith, speaking for this Court, quoted from Taliaferro v. Barnett, 47 Ark. 359, 1 S. W. 702:

“ ‘A decision of the court when overruled stands as though it had never been, and the court in reversing judgment declares what the rule of law was in fact when the erroneous decision was made. ’ ’ ’

In the first Block case we listed twenty-five instruments which real estate brokers were then using in their business, and we held that, with the sole exception of No. 14 (offers and acceptances), the brokers, in filling in the blank spaces, were Practicing law. Now, in the present case, the two Block cases are specifically “modified” by this language:

‘ ‘ Therefore we are ruling that the decision in Arkansas Bar Assn. v. Block, 230 Ark. 430, 323 S. W. 2d 912, should be modified to provide that a real estate broker, when the person for whom he is acting has declined to employ a lawyer to prepare the necessary instruments and has authorized the real estate broker to do so, may be permitted to fill in the blanks in simple printed standardized real estate forms, which forms must be approved by a lawyer; it being understood that these forms shall not be used for other than simple real estate transactions which arise in the usual course of the broker’s business and that such forms shall be used only in connection with real estate transactions actually handled by such brokers as a broker and then without charge for the simple service of filling in the blanks.”

I submit that no person can now tell how many of the twenty-four instruments prohibited to realtors in the first Block decision are now allowed to realtors by the present decision, and how many of the twenty-four instruments prohibited in the first Block decision are still prohibited to realtors. The Majority Opinion in the present case merely saj^s, “permitted to fill in the blanks in simple standardized real estate forms which must be approved by a lawyer. ’ ’ Which forms are ‘ ‘ simple standardized real estate forms ? ’ ’ The Majority Opinion does not answer the question. The law is thus left in confusion; and subsequent litigation will be required to settle the confusion. The words of Albert Pike, as contained in the preface to the Revised Statutes of 1838, are certainly applicable to the present case.

There is a splendid way in which this Court can keep itself abreast of the times in conveyancing matters. I have repeatedly urged the Court to adopt such a course; but my suggestions have been brushed aside. I now make the suggestion here. Amendment No. 28 to the Arkansas Constitution was adopted by the People in 1938; and the full text of the Amendment is:

“The Supreme Court shall make rules regulating the practice of law and the professional conduct of attorneys at law. ’ ’

Acting under the mandate of that Amendment, this Court on April 24,1939, promulgated rules regulating the professional conduct of attorneys at law; but this Court has never seen fit to promulgate rules regulating the practice of law so as to clearly delineate when realtors are engaged in the practice of the law. In the first Block case we refused to define the practice of the law, but did hold that the completion of any one of twenty-four different instruments there listed constituted the practice of the law. I thought then and say now that this Court should promulgate rules definitely stating which transactions constitute the practice of the law, and which do not. If, as the years go by, the Court should find that certain changes needed to be made in the rules, then the Court would be free to do so under the constitutional power. Buies operate prospectively; whereas Court Opinions operate retrospectively, as shown in Carter Oil Co. v. Weil, supra.

I insist that the present case should be affirmed (except only as to the filling in of federal tax returns); and this Court should either simultaneously or later promulgate rules definitely stating what instruments may not be completed by realtors. Then any interested party or organization desiring a change in the rules may apply to the Court for such change without having overstepped an unstated line. The opinion of the Majority in the present case will inevitably lead to subsequent litigation. The Constitution says: “The Supreme Court shall make rules governing the practice of the law ...” When we follow the Constitutional mandate it will be unnecessary to have all these suits like the one at bar.

For the reasons herein stated, I respectfully dissent from the Majority holding.

       The Arizona constitutional amendment proposed by the realtors, giving them the right to fill in forms such as are involved here, carried by a vote of more than 3 to 1.

       The General Assembly of the State of Arkansas passed Act 135 of 1941, designed to prohibit to some extent the drafting of instruments such as are involved here. This Act was referred to the people and defeated in a referendum in the general election of 1942.

        Metropolitan Life Insurance Co. v. Fry, 184 Ark. 23, 41 S. W. 2d 766.

       The first Block case is Arkansas Bar Assn. v. Block, 230 Ark. 430, 323 S. W. 2d 912; and the second Block case is Block v. Arkansas Bar Assn., 233 Ark. 516, 345 S. W. 2d 471. Throughout this dissenting opinion these cases will be referred to as the “Block cases.”

       Here is the language of the opinion: “As indicated, we hold that the preparation of any of the instruments here involved, or any other instruments involving real property rights for others, either with or without pay, save and except Instrument No. 14 above, constitutes the practice of law in this State.”


author: Frank Holt, Associate Justice.

text:
    Steinberg v. Ray.
    5-2959
    367 S. W. 2d 445
    Opinion delivered May 6, 1963.
    [Rehearing denied June 3, 1963.]

      Ben Lindsey, Harry Steinberg and Barber, Henry, Thurman & MeCashill, for appellant.

      Charles A. Walls, Jr., Joe Melton and Wright, Lindsey, Jennings, Lester & Shults, for appellee.
   Frank Holt, Associate Justice.

This litigation is the result of a collision between two automobiles on September 4, 1961, near Jacksonville, Arkansas, resulting in the death of one of the occupants and injuries to the three others. One of the automobiles was driven by the appellee, T. F. McCarty. His wife, Virginia McCarty, was a passenger in his vehicle and suffered injuries causing her death. The appellant, Simon Steinberg, was driving the other vehicle and his wife, Buth Steinberg, was accompanying him.

A suit was filed by appellee, Bernard Bay as Administrator of the Estate of Virginia McCarty, against Simon Steinberg in the Circuit Court of Lonoke County, Arkansas. Mr. McCarty also filed suit against Mr. Steinberg and Mrs. Steinberg in the same forum. Subsequently, counterclaims were filed by Mr. Steinberg and Mrs. Stein-berg against Mr. McCarty. The cases were consolidated for trial. The Court granted Mrs. Steinberg’s motion for a directed verdict on the complaint against her which was based upon the allegation of a joint venture. The Court overruled Mr. Steinberg’s timely motions for a directed verdict on the complaints against him. The jury returned a verdict in favor of the appellee, T. F. McCarty, in the amount of $13,000.00 and in favor of the appellee, Bernard Bay, Administrator of the Estate of Virginia McCarty, in the amount of $1,300.00. Both verdicts were against Simon Steinberg who appeals. There is no cross-appeal.

Appellant relies for reversal on the refusal of the trial court to direct a verdict in his favor. Therefore, the only issue presented by this appeal is whether there was any substantial evidence to support the verdicts in favor of appellees.

The plaintiffs-appellees allege in their complaints that at the time of the accident appellee-McCarty was driving his vehicle on Highway No. 67 in a southerly direction and the defendant-appellant was entering U. S. Highway No. 67 from State Highway No. 161 on a curving upgrade approach at an unlawful and unreasonable rate of speed and without yielding as required by law, colliding’ with McCarty’s automobile and that the negligence of the appellant consisted of traveling at an excessive and unlawful speed; failing to keep a lookout; failing to yield the right-of-way; failing to keep his car under control and that the negligence of the appellant was the proximate cause of the accident. The Steinbergs denied these allegations.

To meet the burden of proving these allegations of negligence the appellees rely on the testimony of Olen Hutson, a Jacksonville City Policeman. He testified that he made an investigation following the accident and when he arrived on the scene he found both vehicles in the northbound traffic lane. McCarty’s vehicle was found headed in a “northwesternly” direction and Steinberg’s in a “ northeasternly ’ ’ direction. He testified that he could not “pinpoint” the point of impact. Further, he estimated McCarty’s car to be a distance of ten feet from the point of impact and Steinberg’s car about twelve feet from the point of impact on the right or east side of the northbound traffic lane and off the highway in the ditch. He testified that the Steinberg car had left approximately ninety feet of skid marks leading up to the point of impact. He placed the accident as being on Highway No. 67 at or a little north of the access or ingress road coming onto and merging with Highway No. 67. This is where the four-lane highway, No. 67, narrows or merges into two lanes. In response to the question if Hutson could determine by the physical facts where the Steinberg vehicle came from, he replied:

“No, sir, not definitely. I might say it appeared the Steinberg vehicle came off of the old highway on to the new highway. ’ ’

On cross-examination he testified that at the time of the accident this access or ingress road, with a yield right-of-way sign, was limited to northbound traffic.

Appellee-McCarty, who was 71 years of age, was unconscious for two and a half weeks following the accident. He testified that he had no recollection as to how the accident happened. He testified that he was driving his automobile south from Cabot to Jacksonville and that:

“I was on Highway 67 and I was going that way and there was a road turning off to the left and we were trying to take that road, as far as I can remember now going to Jacksonville and that is all I remember.”

Appellant,- Steinberg, 62 years of age, denied that he entered No. 67 from the access or ingress road and testified he was already on Highway No. 67 going north, en route from El Dorado to Paragould, Arkansas, and that he was traveling between forty-five and fifty miles per hour as he was leaving the four-lane portion of the highway merging into two lanes; that he first noticed the McCarty car in its proper or southbound lane as it was meeting him and no other car was in sight; that as the two cars neared each other, McCarty pulled from his southbound lane across and into the northbound lane in front of him, whereupon he, Steinberg, applied his brakes and swerved to his right in an unsuccessful effort to avoid the collision. Mrs. Steinberg corroborated his testimony. Hugh Meeks testified that he witnessed the accident from a distance of about two hundred feet and his testimony tended to corroborate Mr. Steinberg’s testimony.

We must view the evidence in this case and all reasonable inferences deducible therefrom in the light most favorable to the appellees and if there is any substantial evidence to support the verdict we must affirm it. Arkansas Power & Light Co. v. Connelly, 185 Ark. 693, 49 S. W. 2d 387; Davis v. Bullard, 231 Ark. 898, 333 S. W. 2d 481.

However, it is also our duty to determine the sufficiency of the evidence as a matter of law. St. Louis Southwestern Ry. Co. v. Braswell, 198 Ark. 143, 127 S. W. 2d 637. In this case we said:

“It would seem, however, that in any view to be taken, the issues are whether the evidence is substantial, and who is to judge of that quality. If this is not a question of law, then substantiality loses its significance, with the result that any testimony may suffice.”

The burden rested upon the appellees to present proof from which could be adduced some substantial evidence on which the jury might find negligence on the part of the appellant as alleged in appellees’ complaints. The alleged negligence conld be established either by direct or circumstantial evidence. Appellees earnestly and forcefully contend that the testimony of the investigating officer, Olen Hutson, is substantial in nature. We cannot agree. Juries are not permitted to base their verdicts on speculation and conjecture. Kapp v. Sullivan Chev. Co., 234 Ark. 415, 353 S. W. 2d 5; Superior Forwarding Co. v. Garner, 236 Ark. 340, 366 S. W. 2d 290.

In the case at bar it is not shown by any factual evidence that the appellant, Steinberg, was negligent or that any negligence on his part was the proximate cause of the accident. The undisputed evidence in this case is that appellant, Steinberg, was proceeding north in his proper lane of traffic and that the appellee, McCarty, was proceeding south in his proper lane of traffic as they approached each other. McCarty admits he was trying to turn to his left and enter an access road. This ingress road was limited to northbound traffic. According to the physical facts in this case the Steinberg vehicle left ninety feet of skid marks behind it leading up to the point of impact and both vehicles came to rest in the northbound traffic lane, or in Steinberg’s proper lane of traffic. There is no evidence whatsoever that Steinberg was ever out of his proper lane of traffic.

Further, at or near the scene of this accident there was a large sign visible to southbound traffic with an arrow and the words “Keep Right”. This was the direction appellee, McCarty, was traveling.

According to the evidence in this case there is no proof of facts, nor can any reasonable inferences be drawn from the evidence, that establishes any substantial evidence that the appellant, Steinberg, was negligent or that any negligence on his part was the proximate cause of this collision resulting in injuries to the appellees.

We agree with the appellant that the Court should have granted his motions for a directed verdict. Therefore, the case being fully developed, the judgment is reversed and the cause dismissed.


author: Carleton Harris, Chief Justice.

text:
    Sisemore v. Neal.
    5-2992
    367 S. W. 2d 417
    Opinion delivered May 13, 1963.

      Jeff Duty, for appellant.

      Dickson, Putman, Millwee $ Davis, for appellee.
   Carleton Harris, Chief Justice.

This litigation presents solely a question of law. On April 7, 1959, appellant’s wife, Mildred Sisemore, was involved in an automobile accident with a car driven by appellee, Junior Neal. On May 14, 1959, Mrs. Sisemore instituted suit against appellee in the Washington Circuit Court, alleging certain acts of negligence, and praying judgment for pain and suffering, loss of earnings, and medical bills in her own right. In July, 1960, the case was tried, and the jury rendered a verdict for appellee herein. No appeal was taken from this judgment.

On November 21, 1961, appellant, Paul Sisemore, filed the instant suit in his own right, against Neal, seeking to recover for loss of consortium, and medical and hospital expenses, this suit arising out of the same accident. Judgment was sought in the amount of $27,000.00. Neal answered, contending that any cause of action stated by appellant “is barred by res judicata,” and subsequently filed his request for Admissions of Pact which were in due time answered by appellant.

Appellee then filed his motion for Summary Judgment as follows:

“That based on the pleadings in said case, on defendant’s Request for Admissions of Pact, on plaintiff’s Response to said Request for Admissions of Fact, and on the pleadings and judgment filed and rendered in Civil Case No. 3196 on file in the office of the Circuit Clerk of Washington County, Arkansas, and appearing of record in Volume 33 of the judgment records of said Circuit Clerk, there is no genuine issue as to any material fact and that said defendant is entitled to judgment as a matter of law. All the foregoing pleadings, admissions and judgment entered in Case No. 3196 are made a part of this motion by reference.”

The court granted the motion, and entered its judgment dismissing Sisemore’s complaint with prejudice. Prom such judgment, appellant brings this appeal.

Though a different type of action was involved, and the suit was heard in Chancery, this court, in Fleming v. Cooper, 225 Ark. 634, 284 S. W. 2d 857, quoted from 50 C. J. S., Section 798, Page 342, as stating the general and applicable rule:

‘ ‘ A wife will be concluded by a judgment in an action for or against her husband with respect to any right or interest which she claims through or under him; and so likewise will a husband be concluded by a judgment for or against the wife in respect of a right or interest which he claims through or under her. ’ ’

A similar situation presented itself in Tollett v. Mashburn, 183 F. Supp. 120 (U. S. District Court, W. D. Ark.). In that case, a husband sought recovery for medical expenses and loss of consortium as a result of injuries to his wife. Judge John E. Miller, in a persuasive opinion, noted that the wife was barred from recovering for her injuries by the statute of limitations, and then stated:

“Unless the defendants are liable to the plaintiff, Berthenia Tollett, they cannot be liable to her husband, Kelsio Tollett. Without doubt the claim of Berthenia Tollett is barred by the Statute of Limitations, and, since it is barred, the claims of Kelsie Tollett for damages, if any, arising from the assault and battery are likewise barred. ’ ’

The court then quoted from Desjourdy v. Mesrobian, 52 R. I. 146, 158 A. 719, as follows:

“ ‘The husband’s right of action for the loss of services and expense in caring for his wife is concomitant with and dependent upon an actionable injury to her. To recover he must prove in the first instance all that his wife would have to prove in order to recover. If the plaintiff’s contention is sustained, the analogous situation arises that the main action is barred and the dependent action may be prosecuted notwithstanding. ’ ’ ’

On appeal, the Court of Appeals, Eighth Circuit, affirmed this holding, stating :

“We conclude that the trial court correctly interpreted the law of Arkansas and that the appellant Kelsie Tollett’s claim must fall with that of his wife. It may be noted that this comports with the decisions of other jurisdictions that the husband’s right to special damages for medical expenses or loss of consortium is derivative and depends upon the wife’s successful suit for damages.”

In 27 Am. Jur., Section 506, Page 108, appears the following statement:

‘ ‘ Generally however, the cause of action for loss of consortium of the wife does not exist in the husband, unless the defendant would have been liable directly to the wife for the injury to her occasioning the consequential loss to the husband.”

Likewise, in Section 507, Page 109:

‘ ‘ Furthermore, it may be noted that ordinarily a defendant cannot be held liable for consequential injuries to the husband unless he also would have been liable to the wife for the direct injury to her. ’ ’

Appellant relies on the case of Little Rock Gas & Fuel Co. v. Coppedge, 116 Ark. 334, 172 S. W. 885. But that case only holds that the husband has a separate canse of action (distinct from his wife’s canse of action) for loss of consortium. The question now presented was not involved in that litigation.

We think logic unquestionably supports the view here taken. To permit a second suit would authorize “two bites ’ ’ and would have the actual effect of rendering the prior judgment, wherein Neal was exonerated of liability, a nullity.

Under the authorities herein cited, we hold that the action of the trial court in dismissing appellant’s complaint (on the ground that his derivative action for medical expenses and loss of consortium was barred by the adverse judgment in the wife’s suit) was correct, and should be affirmed.

It is so ordered.

       Answers included admissions that Mrs. Sisemore, in her suit, sought recovery of some of the medical and doctor bills for which appellant seeks judgment in this case. Also, Mrs. Sisemore sought judgment for loss of earnings up to the time of filing her complaint.

         Tollett v. Mashburn, 291 F. 2d 89 (1961).


author: Ed. F. McFaddin, Associate Justice. Paul Ward, Associate Justice

text:
    Hinton v. Bryant.
    5-2961
    367 S. W. 2d 442
    Opinion delivered May 13, 1963.

      Duty & Duty, for appellant.

      Davis & Mills, for appellee.
   Ed. F. McFaddin, Associate Justice.

This is the second appearance of this case in this Court. The first appeal is Hinton v. Bryant, 232 Ark. 688, 339 S. W. 2d 621; and reference is hereby made to that opinion for the background facts. On the first appeal we held that certain platform scales were realty and passed with the transfer of the land, but that improper evidence had been introduced : so we remanded the cause for a new trial, and we took occasion to remark:

“The appellant also complains that the appellees failed to show that he is legally responsible for the removal of the scales, which were taken away by third persons not parties to this suit. We do not find it necessary to reach this question. Owing to the error indicated the case must be retried, and upon a new trial the plaintiffs may offer additional evidence tending to fix responsibility upon the appellant ...”

On the new trial, the Circuit Court — a jurj^ being waived — rendered judgment for Bryant for $595.00; and from that judgment Hinton gave notice of appeal and designated a partial record and a definite point, as follows :

“Come now the defendants and designate as the record on appeal herein all the testimony and exhibits thereto of James B. Bryant and also all the testimony and exhibits thereto of W. L. Hinton, together with all the pleadings and judgment of the Court in this cause.
“The point to be argued on appeal in this cause is the sole question of whether or not W. L. Hinton is liable to the plaintiffs under the testimony of James B. Bryant and Walter L. Hinton. The question of the amount of damages and value of the scales will not be a point in the appeal. ’ ’

Bryant made no additional designation; so we have before us now only the testimony of Bryant and Hinton in the designated point of whether Hinton is liable. Since no additional portions were designated by appellee, we decide the question on the designated record before us. Manila School Dist. v. Sanders, 226 Ark. 270, 289 S. W. 2d 529; Kimery v. Shockley, 226 Ark. 437, 290 S. W. 2d 442. Bryant testified that he purchased a 10-acre tract from Hinton by deed dated January 4, 1958, and the platform scales were then attached to the premises; that he rented the premises to Hinton for a short time; that later he acquired possession of the premises; that after he acquired possession of the premises the scales were removed without his consent; and that the damages to the premises amounted to $2,000.00. Bryant did not testify as to who removed the scales.

Hinton testified: that he sold the land to Bryant; that he sold the scales to Tyson Feed & Hatchery for $250.00 during the time he had the land rented; that he ended his rental contract and delivered possession of the premises to Bryant on March 1,1960; that the scales were still on the premises when he delivered possession to Bryant; and that the scales were removed by Capitol City Scale Company after Bryant went into possession of the land. The original check from Tyson Feed & Hatchery to W. L. Hinton for $250.00 was introduced in evidence. It is dated April 21,1959, and Hinton testified that the check represented the amount for which he sold the scales to Tyson. Just why Tyson did not remove the scales when he purchased them is not shown; nor is it shown that Tyson had anything to do with the removal of the scales by Capitol City Scale Company. Here is Hinton’s testimony:

“Q. Mr. Hinton, you testified that you didn’t deliver any scales to Tyson?
A. No.
Q. It has been testified by Mr. Bryant that the scales were taken away from his property. Were yon there when they were taken away %
A. Well, I wasn’t in possession of the property, no, sir.
Q. Do you know who took them away?
A. Yes.
Q. Who was it?
A. The Capitol Scale Company in Little Bock.
Q. How do you know that?
A. I saw them. In passing by there, I saw them taking the scales out.
Q. That’s all you know about it?
A. Well, yes, that’s all I know. Mr. Bryant was present there at the time.
Q. I say, is that all you know about the removal of the scales?
A. Yes, that’s ail I know.
Q. Did you authorize anybody to remove the scales?
A. No, sir ...
Q. Did you ever sell, or deal, any with the Capitol City Scale Company?
A. No.
Q. Did you sell them the scales?
A. No.
Q. Did you have any dealings with them whatsoever ?
A. No, sir.”

Giving all possible inferences which the trier of the facts was privileged to draw, we still have a situation before us in which the record shows that Hinton sold the scales to Tyson for $250.00 and that after Bryant went into possession of the land the scales were removed by the Capitol City Scale Company. There is absolutely nothing in the record before us to show that the sale of the scales by Hinton to Tyson caused, or resulted in, the removal of the scales by the Capitol City Scale Company. There is no testimon}7' in the record before us to show that the sale of the scales by Hinton to Tyson was the cause of, or resulted in, the Capitol City Seale Company removing the scales from the land. That is the fatal “gap” in the testimony before us.

We have a wealth of cases in Arkansas which hold that one who sells property from the land of another and emeses the property to be removed is liable for trespass. One of the leading cases is Hendrix v. Black, 132 Ark. 473, 201 S. W. 283, L. R. A. N. S. 1918 D 217. There Black owned the land on which Hendrix had a void tax deed. Hendrix executed a timber deed to Edwards, who, under the timber deed, entered on Black’s land and cut the timber. Black recovered against Hendrix and we affirmed, saying:

“In short, the facts fully justified the chancellor in finding that the acts of Edwards under the circumstances were trespasses upon the appellee’s land; that these acts of Edwards were also the acts of the appellant and that the appellant through Edwards committed the trespass upon the appellee’s land. ‘Those who authorize the commission of a trespass are equally responsible as those by whose acts the trespass is committed. ’ State of Maine v. Jesse S. Smith and others, 78 Maine, 260.”

Likewise, in Lewis v. Phillips, 223 Ark. 380, 266 S. W. 2d 68, we held that generally, where a trespass is committed by defendant’s advice or direction, the contractual or other relation is immaterial in determining defendant’s liability. In Lewis v. Mays, 208 Ark. 382, 186 S. W. 2d 178, appellant sent timber cutters into the woods, who cut timber from the appellee’s land. The defense was that the cutters were independent contractors for whose acts the appellants were not liable. We held the appellants liable, saying: “The general rule applicable to the facts here is stated in § 85 of Cooley on Torts (4th Ed.) as follows: 'All who actively participate in any manner in the commission of a tort, or who command, direct, advise, encourage, aid or abet its commission, are jointly and severally liable therefor.5 55

If there had been any evidence that the Capitol City Scale Company was acting as the agent of Tyson, then a case would have been made against Hinton. But we cannot say that the trespass by Capitol City Scale Company was caused by the act of Hinton or Tyson. In 127 A. L. R. 1015, there is an Annotation entitled, "Liability of grantor or lessor of property which he does not own to true owner for trespass by lessee or grantee55; and cases are reviewed from many jurisdictions. To the same effect see also American Law Institute’s Restatement of the Law of Torts § 158. But in all the cases that we have found the trespassing person has been the grantee of the person who executed the instrument, or the agent or transferee of such grantee. Here, we find no evidence that the Capitol City Scale Company was in any wise the agent or the remote grantee of Tyson; and so we reverse the judgment and remand the cause for a new trial.

Ward, J., dissents.

Paul Ward, Associate Justice

(dissenting). I am unable to agree with the result reached by the majority. I do agree with the trial judge when he said: ". . . the defendant [Hinton] wrongfully exercised acts of ownership over the scales and constructively became a party to the conversion.” It is admitted that Hinton sold the scales (which admittedly belonged to appellee) and collected the sales price of $250. It is admitted he stood by and watched the scales removed by the Capitol City Scale Company. In my opinion this placed the burden on Hinton (not on appellee) to show the Capitol City Scale Company was an imposter. Any other view almost amounts to a license to steal.

It is my opinion that this case is controlled by the principle of law stated in 89 C. J. S. Trover & Conversion § 134, page 622:

‘‘In actions for conversion, the conversion must be established by a preponderance of the evidence, but it may be proved either directly or by inference, and may be shown by circumstantial evidence. Any evidence of an act of ownership or control wrongfully exercised over plaintiff’s property will suffice as proof of a conversion.”

       That is, as to admission of evidence regarding- damages.

       Bryant alleged in the complaint that Hinton: “. . . fifteen (15) months after delivery of said lands to these plaintiffs, unlawfully and without authority sold and delivered said scales to Tyson’s Poultry, Inc., by bill of sale containing covenant of general warranty, dated the 21st day of April, 1959; that on or about the 12th day of June, 1959, Tyson’s Poultry, Inc., acting on the authority of said bill of sale, entered upon the property of these plaintiffs, took possession of and carried said scales away.” Hinton’s answer was: “That the defendants deny each and every material allegation contained in the complaint of the plaintiffs.” So Bryant had the burden of proving his allegations.


author: George Rose Smith, J.

text:
    Moeller v. Graves.
    5-2964
    367 S. W. 2d 426
    Opinion delivered May 13, 1963.

      TJlys A. Lovell and Darrell D. Dover, for appellant.

      Suzanne Chalfant Lighton, for appellee.
   George Rose Smith, J.

This is a boundary line dispute. The controlling question is whether adjoining landowners may, even in the absence of any dispute or uncertainty, change the location of the boundary by an oral agreement that is carried into effect by the maintenance of a fence along the agreed line for more than seven years.

There is no real dispute about the parol agreement. What is now the appellees’ property was once owned by Marguerite Miles, and what is now the appellants ’ property was owned by R. E. and R. M. Ming. In 1945 Mrs. Miles and her husband decided to erect a fence between the two tracts, to contain their three cows. Wanting one end of the fence to be close to their house they meant to start the fence upon their own land, to run it at an angle out to the common boundary, and thence to continue along that line. Instead of employing a surveyor Miles and Ming undertook to step off the line.

Digging the postholes along the boundary proved to be hard work. Ming, who was helping with the project, generously suggested that the attempt to follow the true line be abandoned and that the fence be attached instead to a number of trees upon the Ming property. Mrs. Miles testified that the parties agreed that the fence line would be the permanent boundary, even though the result was to give Mrs. Miles more than the five acres called for by her deed. She quoted Ming as having said, “I won’t miss it, because I have over 100 acres.” Mrs. Miles’s testimony is corroborated by Mrs. Ming, who was the only other one of the contracting parties to be called as a witness.

Mrs. Miles continued in possession of her tract until she sold it in 1958. During those thirteen years the fence remained in place; its location was never questioned either by her or by the various owners who succeeded to the Mings’ title. The present controversy arose shortly before the appellants brought this suit, in 1961, to quiet their title to the disputed strip. The appellees pleaded title by adverse possession and relied upon the facts as we have narrated them. The chancellor upheld the oral agreement and accordingly confirmed the title in the appellees.

We have often held that when the location of the true line is in doubt or in dispute the parties may, by parol agreement, fix a line that will be binding, even though their possession under the agreement does not continue for the full statutory period of seven years. Sherrin v. Coffman, 143 Ark. 8, 219 S. W. 348; Robinson v. Gaylord, 182 Ark. 849, 33 S. W. 2d 710. The theory of these cases is that the parol agreement does not operate upon the title itself but merely fixes the line to which each party holds under his deed. Hence there is no violation of the statute of frauds. In the case at bar, however, the appellants contend that there was a violation of the statute, owing to the fact that there was no uncertainty or disagreement about the true line.

The answer to this argument is that even though the parol agreement may in its inception have been contrary to the statute of frauds, for want of any doubt or dispute, the title nevertheless vested by adverse possession after the agreement had been in foree for the full statutory period of seven years. Black v. Napier, 212 Ky. 315, 278 S. W. 834; Smith v. Gerrish, 256 Mass. 183, 152 N. E. 318. Mrs. Miles testified that after the construction of the fence she and her husband thought that they owned the land up to the fence, “because Mr. Ming gave it to us.” It is clear enough that Mrs. Miles and her husband occupied the land for more than seven years in the belief that they owned it. The requirement that adverse possession be hostile does not mean, of course, that the possessor must entertain a conscious feeling of ill-will or enmity toward his neighbor.

Our cases involving the establishment of a boundary line by long acquiescence confirm our present conclusion. For example, in Gregory v. Jones, 212 Ark. 443, 206 S. W. 2d 18, there had been no prior dispute about the boundary, but we held that the recognition of a fence line for 34 years “shows a quietude and acquiescence for so many years that the law will presume an agreement concerning’ the boundary.” In the case at hand there is no need to resort to such a presumption, for the testimony affirmatively shows that the agreement was actually made.

Affirmed.


text:
    Ark. State Highway Comm. v. Johns.
    5-2989
    367 S. W. 2d 436
    Opinion delivered May 13, 1963.
    [Rehearing denied June 3, 1963.]

      Dowell Anders and II. Clay Robinson, for appellant.

      Batchelor & Batchelor, for appellee.
   George Rose Smith, J.

In this eminent domain proceeding the appellant seeks to acquire about half of a twelve-acre tract owned by the appellees. The circuit court, sitting without a jury, awarded the landowners $3,500 as compensation for the property being taken. For reversal the appellant contends that the court erred in refusing to strike the testimony of certain witnesses for the landowners.

Two of the witnesses, Bob Geliy and Joe Snelly, were real estate dealers in Crawford county. After having-first stated that they were familiar with land values in the vicinity of the Johns property and that they had inspected this property, both these witnesses expressed their opinion as to the fair market value of the appellees ’ property before and after the taking. The appellant made an unsuccessful attempt to have this testimony stricken, on the ground that neither witness had stated the facts and reasons forming the basis for his opinion. In insisting that the testimony should have been excluded the appellant cites cases such as Ark. State Highway Comm. v. Byars, 221 Ark. 845, 256 S. W. 2d 738, holding that the opinion of an expert witness is not substantial evidence when the witness fails to give a fair or reasonable basis for his conclusions.

We think counsel have misconstrued the intent of our cases. It is true that a non-expert witness, such as a layman testifying about a testator’s mental capacity, must state the facts upon which his opinion is based before giving that opinion. Walsh v. Fairhead, 215 Ark. 218, 219 S. W. 2d 941. But there is no similar condition to the admissibility of an expert’s opinion.

An expert witness, after having established his qualifications and his familiarity with the subject of the inquiry, is ordinarily in a position to state his opinion. For instance, a physician might testify that he had examined a certain patient and found him to be afflicted with malaria. That testimony would unquestionably be admissible. Yet if this physician, on cross-examination, were forced to admit that he had found no recognized symptom of malaria and had based his conclusion solely upon the fact that the patient had been bitten by a mosquito, then, under the rule in the Byars case, the witness’s opinion would no longer constitute substantial evidence.

It was incumbent upon counsel for the appellant to support their motion to strike by showing that the landowners’ expert witnesses had no reasonable basis for their opinions. Counsel actually made no effort in that direction, the motion to strike Snelly’s testimony having been made without any cross-examination at all. Thus there was a complete failure to overcome the prima facie admissibility of the testimony that was challenged.

Near the end of the trial the witness Snelly was recalled in rebuttal and testified that a seven-acre tract contiguous to the Johns land had recently been sold for about $700 an acre. On cross-examination Snelly conceded that the purchaser had been a contractor, who used the seven acres for the excavation of dirt rather than as a home site (which was the use to which the Johns tract was best suited). In view of this dissimilarity counsel for the condemnor asked that all the testimony about the sale of the adjoining parcel be excluded.

This motion was properly denied. Snelly also testified that the other tract was the same kind of land as that being condemned, that the highway department’s witnesses had considered the other sale, and that the other tract would not have been sold any more cheaply for any purpose other than the one for which it was actually used. Hence the fact that the contractor used the tract as a source of dirt did not completely destroy the similarity between the two pieces of land. We have no reason to think that the trial judge could not and did not consider the other transaction in its proper perspective. For much the same reason we are of the opinion that the court did not err in refusing to strike the entire testimony of the witness Owen Bass, a former county assessor. Much of this witness’s testimony was competent; so the motion to exclude all his testimony was properly denied. Nichols v. State, 92 Ark. 421, 122 S. W. 1003.

Affirmed.


author: Paul Ward, Associate Justice.

text:
    Edwards v. Brimm, Ex'x.
    5-2986
    367 S. W. 2d 433
    Opinion delivered May 13, 1963.

      Leo Wulfsohn, Irving Eisenberg, Chicago, Illinois.

      L. Weems Trussell, for appellee.
   Paul Ward, Associate Justice.

Frances Shelton died on November 8, 1960 leaving a will dated May 4, 1957. The Probate Court of Dallas County entered an order, dated November 18, 1960, admitting the will to probate and appointing appellee, Beulah Brimm, executrix. On November 19, 1960 the executrix signed and posted a notice (as provided by Act 32 of 1953) to all persons having claims against the estate, stating the will had been admitted to probate. The case number of the proceedings was 981.

On May 13,1961 Moses C. Edwards (a nephew of deceased) and his wife filed (or attempted to file) a petition asking the court to revoke the probate of said will and also filed (or attempted to file) a claim against the estate in the amount of $7,433.55. There is no contention by anyone that the petition and claim were not in proper form.

It is the contention of the executrix, based on the factual situation presently set forth, that the above mentioned pleadings were never legally filed. This was also the finding of the trial court.

The record discloses that appellants and one of their attorneys live in Chicago; that said attorney mailed a letter to the probate clerk at Fordyce, Arkansas (county seat of Dallas County); that in said letter was enclosed the petition and the claim (above mentioned) for filing-in case No. 981; and, that the attorney also mailed a copy of the claim to appellee’s attorney of record.

The basic contention of appellee to sustain the decree of the trial court (which dismissed the petition and claim) is that the petition and the claim both were captioned “In the Probate Court of Garland County, Arkansas” when they should have been captioned “In the Probate Court of Dallas County, Arkansas.”

The order of the trial court, in material parts, reads as follows:

‘ ‘ That the files in this case contain a letter dated May 13, 1961, signed by Irving Eisenberg, addressed to the Clerk of the Probate Court of Garland County, Fordyce, Arkansas, enclosing- (1) Petition to Contest Will and (2) Claim of Moses C. Edwards and Ida Mae Edwards of 2210 W. 13th St., Chicago, Ill. Both the Petition to Contest the Will and the Claim show in the caption thereof that they are to be filed in the Probate Court of Garland County, Arkansas . . . The letter dated May 13, 1961, and enclosures were forwarded to the Clerk of the Probate Court of Dallas County, but due to the fact that they were to be filed in the Garland Probate Court, no Notice was given to Beulah Brimm by registered mail as provided by Sec. 113 b of the Probate Code, and no further action was taken thereon.
“The Claim and Petition to Contest the Will were placed in the file of papers in the case of the Estate of Prances Shelton, deceased, in the Clerk’s Office in Dallas County, Arkansas, but were not filed. ’ ’

It is undisputed that appellants had until May 19, 1961 to file the petition and claim. In view of the language used by the trial court, and in the absence of any contention to the contrary, we think the record establishes the fact that the letter, the petition, and the claim reached the clerk of the Dallas County Probate Court before the date above mentioned.

Por reasons presently set out, we think the trial court erred in striking appellants’ petition and claim from the files. Every fact and circumstance indicates that the substitution of the word “Garland” for the word “Dallas” was merely a clerical error or oversight, and that no one was actually deceived, misled, or prejudiced. It is evident from the record that the Chicago attorney used printed forms sent to him by an associate attorney who lived in Hot Springs (Garland County), which forms were printed for use in “Garland” County. There can be no doubt whatever that the papers were to be filed in case No. 981 pending in the Dallas County Probate Court. They specified case No. 981, they identified the case No. 981 by reference to parties named in that case, and they were mailed to Pordyce in Dallas County. The record also discloses that copies of papers were sent to appellee’s attorney of record in case No. 981. Such being the facts and circumstances, to deny appellants their day in court would be an injustice and not in keeping with our liberalized form of pleadings as indicated by Ark. Stats. § 27-1160 and § 27-131. Among other things the former section provides:

“The court may, at any time, in furtherance of justice . . . amend any pleadings or proceedings ... by correcting a mistake in the name of a party or a mistake in any other respect. . . . The court must, in every stage of an action, disregard any error or defect in the proceedings which does not affect the substantial rights of the adverse party. ...”

The latter section reads as follows:

‘ ‘ The rule of common law that statutes in derogation thereof are to he strictly construed shall not be applied to the Code. The provisions of the Code, and all proceedings under it, shall be liberally construed, with a view to promote its object and to assist the parties in obtaining justice.”

The general rule as to liberality in pleadings is well stated in 71 C. J. S. Pleading § 50, “Clerical Errors; Mistakes in Writing or Spelling”:

“G-enerally mere clerical or typographical errors which could not have misled the opposite party will not vitiate a pleading. Such errors are corrected by the context of the pleading or are self-correcting. Thus mere clerical mistakes, such as the use of one word or one name for another, where there is and can be no doubt as to what word the pleader intended to use ... will not render a pleading bad. ...”

We again point out that all the facts' and circumstances point unerringly to the intention of appellants to file their pleadings in case No. 981 pending in Dallas County Probate Court pertaining to the estate of Prances Shelton.

We conclude therefore that the petition and the claim should be considered as properly filed in case No. 981 prior to May 19, 1961.

In view of what we have said above, appellants’ petition was filed within the time prescribed in Ark. Stats. § 62-2114 b. (2) that is, “within six months after the date of the first publication of the notice of the admission of the will to probate.5 ’

It is our conclusion that the claim was also properly filed. Aide. Stats. § 62-2601 a. provides, in pertinent part, that

“ ... all claims against a decedent’s estate . . . shall be forever barred as against the estate, the personal representative, the heirs and devisees of the decedent, unless verified and presented to the personal representative or filed with the court within six months after the date of the first publication of notice to creditors.”

As previously pointed out, appellants’ claim was filed with the court within the specified period of six months.

It is the contention of appellee, however, that the trial court was justified in striking the claim because no proper notice of the filing of said claim was given as provided in Ark. Stats. § 62-2012 c. As appellee interprets this sub-section, it required appellants (in this case) to prepare the notice of filing and deliver it to the clerk ready for posting whereupon the clerk (as provided in Ark. Stats. § 62-2604 b.) “shall, by registered mail, notify the personal representative of the filing of the claim. ’ ’

We find it unnecessary in this case to pass upon the merits of the above contention. In our opinion there was a substantial compliance with the statute by giving notice to appellee’s attorney pursuant to the provisions of Ark. Stats. § 62-2012 e., which reads:

“SERVICE ON ATTORNEY. If there be an attorney of record for a party in a proceeding or matter pending in the court, all notices required to be seiwed on the party in such proceeding or matter shall be served on the attorney and such service shall be in lieu of service upon the party for whom the attorney appears.”

It is admitted in this case that appellee’s attorney received a copy of appellants’ claim before May 19,1961.

It is also argued here by appellee that the trial court was justified in dismissing the claim because appellants did not offer to pay the filing fees. This argument cannot be sustained in view of sub-section h. of said Section 62-2012 which reads:

“COSTS OF NOTICE. All expense incurred in giving notice under the provisions of this Code shall be taxed as costs in the proceeding.”

The judgment of the probate court is therefore reversed, and the cause is remanded, for further proceedings consistent with this opinion.

Reversed and remanded.


text:
    Moore v. U. S. F. & G. Co..
    5-2952
    367 S. W. 2d 438
    Opinion delivered May 13, 1963.

      Yingling, Henry & Boyett, for appellant.

      Pollard S Hastings, for appellee.
   Sam Robinson, Associate Justice.

The issue in this case is who shall suffer the financial loss caused by the confiscation of an automobile by the government — the owner of the car or the insurance company who had issued a policy covering the loss of the car.

The case was originally filed by appellee, United States Fidelity & Guaranty Company, against the appellant, Mary Ellen Moore, alleging that she had purchased the automobile in question and as a part of the consideration had executed her title retaining note in the sum of $1,042.80; that the Searcy Bank had been a holder in due course of the note; that.the insurance company had issued a liability and physical damage policy on the car; that the policy provides, in effect, that the bank would be entitled to recover on the policy for the loss of the car, notwithstanding such loss may have been due to an unlawful act of the appellant, Mary Ellen Moore.

The complaint alleges that the automobile had been confiscated by the U. S. Government; that the insurance company had paid the bank the balance of $875.36 owed on the note and had been subrogated to the rights of the bank on the note, and prayed judgment against appellant in that amount. Mary Ellen demurred to the complaint; the demurrer was sustained; the insurance company appealed to this court. U. S. Fidelity & Guaranty Co. v. Moore, 233 Ark. 703, 346 S. W. 2d 524.

In that appeal, appellee Moore contended that the trial court was correct in sustaining the demurrer because the complaint did not allege any act on her part that would preclude her from recovering for the loss of the car under the terms of the policy of insurance. We reversed idle judgment, pointing out that “The settled law relative to demurrer is that when the facts stated in a complaint with every reasonable inference deducible therefrom constitute a cause of action, the demurrer should be overruled. ’ ’

The complaint alleges that “agents of the Alcohol and Tobacco Tax Division of the U. S. Treasury Department confiscated the heretofore described automobile. Pursuant to said confiscation, said Federal Agency legally sold said automobile and retained the proceeds from the sale.”

It was felt that this allegation was sufficient against a demurrer; that there was a reasonable inference deducible from the complaint that Mary Ellen was charged with being guilty of using the car in a manner that might preclude her from recovering on the policy of insurance for its loss. We cited several cases as holding that the Federal Courts would not declare a forfeiture unless there was guilty knowledge imputable to the owner of the forfeited property. Actually, the cases cited deal with situations where the owners of forfeited property were attempting to prevail upon the courts to set aside the forfeiture on authority of U. S. C. A., Title 18, Sec. 3617. The cited cases point out that a forfeiture can not be set aside where there is guilty knowledge on the part of the owner, not that there must be guilty knowledge before there can be a forfeiture. Guilty knowledge is not necessary to a valid forfeiture. U. S. v. One 1942 Plymouth Sedan Automobile, 89 F. Supp. 884; U. S. v. One Plymouth Coupe, 88 F. Supp. 93; Busic v. U. S., 149 F. 2d 794.

It must be admitted that our opinion in the first appeal is subject to the construction that Mary Ellen could not recover because the automobile had been confiscated by the Federal Government. The trial court, therefore, adopted that construction and held that the order of forfeiture in the Federal Court was res judicata of the question of whether Mary Ellen is entitled to recover on the insurance contract for the loss of the car.

The action in Federal Court was against the automobile — an action in rem. Waterloo Distilling Corp. v. U. S., 51 Sup. Ct. 282; Florida Dealers & Growers Bank v. U. S., 279 F. 2d 673. Mary Ellen was not a party to the proceeding in Federal Court. The doctrine of res judicata is therefore not applicable. Timmons v. Brannan, 225 Ark. 220, 280 S. W. 2d 393; Thomas v. McCullum, 201 Ark. 320, 144 S. W. 2d 467; Seaboard Finance Co., et al v. Wright, Admx., 223 Ark. 351, 266 S. W. 2d 70.

The issue of whether appellant can recover on the policy of insurance has not been decided on its merits. The judgment is therefore reversed and the cause remanded for a new trial.

Ward, J., dissents.