author: CONLEY Byrd, Justice. JOHN A. FOGLEMAN, Justice,

text:
    ARKANSAS SAVINGS AND LOAN ASSOCIATION BOARD et al v. GRANT COUNTY SAVINGS AND LOAN ASSOCIATION
    74-35
    510 S.W. 2d 863
    Opinion delivered July 1, 1974

      Harold E. Anderson Jr., for appellants.

      Wright, Lindsey & Jennings and John W. Cole, for appellee.
   CONLEY Byrd, Justice.

Appellee Grant County Savings and Loan Association filed an application with Appellant Arkansas Savings and Loan Association Board for a charter to operate a savings and loan association in Sheridan. On February 21, 1973, when there was one vacancy on the Board, the Board by a two to two vote denied appellee’s application for a charter. Thereafter, the Board permitted appellee to adduce additional evidence and at the public meeting on August 21, 1973, the Board by a two to three vote again denied the application. One of the original members who had voted for the granting of the charter at the February 21st meeting, first stated that he voted the same way, but subsequently, clarified his statement to show that he was voting to deny the charter. The written findings of the Board, being little more than conclusions following the language of Ark. Stat. Ann. § 67-1824, do not specifically state the reasons for the denial of the charter. The findings did conclude, however, that appellees had met all of the statutory prerequisites for the issuance of a charter except as follows:

“3. There is not a public need at the present time for the proposed association and the volume of business in the areas in which the association would conduct its business is not sufficient to indicate a successful operation.”

The circuit court on appeal reversed the Board and directed that a charter should be issued. For reversal the Board, among other things, contends that the circuit court erred in finding that there was not any substantial evidence to support the Board’s decision.

Appellees produced two expert witnesses, Windell R. Adams and Dr. Charles Venus, who testified that there was a savings potential sufficient to grant a savings and loan charter in Grant County. The statistics show that there is only one commercial bank in Grant County and that for the period from 1960 to 1970, the deposits in that bank increased 330.7% as compared to a statewide gain of only 140.6%. During the same period the county had a population gain of 17% compared to a statewide gain of 7.7%. The county for the same period had a housing increase of 21.4% compared to a statewide increase of 14.6%. The value added by manufacturing had a gain of 189.3% compared to 62% for the state as a whole.

The president of the Grant County Bank of Sheridan, an intervening protestant, showed that the demand deposits of his bank were $2.8 million in 1968; $3.1 million in 1969; $3.4 million in 1970; $4.1 million in 1971; and over five million for 1972. Time deposits were $2.1 million in 1968; $3.2 million in 1969; $3.6 million in 1970; $4.1 million in 1971; and that for the period from January 1st throughjuly 18, 1972 it had $5.3 million.

The Appellee’s proposed chairman testified that there was $2,272,798.07, loaned for residential mortgages in the county for 1970, and of that amount $405,965.88 was made by savings and loan associations from outside of Grant County. In 1971, there was a total of $2,964,154.55 in residential mortgages and of that total savings and loans made $615,-011.60. In 1972, there was a total of $3,256,154.95 in residential mortgages and of that total savings and loans made $1,-073,572.20. From January 1, 1973, through August 14, 1973, savings and loans had mortgages on record for $1,002,425.00.

The president of the Grant County Bank of Sheridan quite candidly stated that most of his bank’s real estate mortgages were for five years or less and that his bank could not meet the total loan volume demand for residential housing.

To counteract this showing, the Board relies upon facts brought out on cross-examination. One such fact is that Mr. P. A. Reader testified on direct that the community of Leola had a remarkable growth. On cross-examination it was shown that Leola had a population gain according to the U. S. Census Report of only 79 people from 1960 to 1970. Another such instance involved Mr. B. J. Benning who admitted on cross-examination that Prattsville according to the U. S. Census Report had a zero growth for the period from 1960 to 1970. We can find no substance in the Board’s contention. It appears that the witnesses were speaking of the growth of their communities while the census figures may have been taken entirely along the incorporated limits of the towns.

Other factors that the Board relies upon are the lack of a public transit system, the unemployment rate and the commuting of workers to adjoining counties. The Board in its argument here wishes to overlook the evidence that it permitted to be presented upon rehearing. That evidence shows an increase in residential mortgages by savings and loan associations from without the county from $405,965.88 in 1970, to over a million dollars in 1972. Other evidence showed an increase of time deposits in the county from $2.8 million in 1968 to $5.3 million by July 18, 1972. When this in-dicia of growth is considered despite the alleged deficiencies of which the Board mentions, it is difficult to understand why the Board was not somewhat arbitrary in considering the alleged deficiencies as substantial evidence.

Neither can we find any merit in the suggestion that the volume of business in the area is not sufficient to indicate a successful operation. Mr. Daniel B. Howard, a C.P.A., was the only witness to touch upon this issue. At a time when the time deposit commitments were only $367,500, he projected a net income of $1,906.00. Of course this picture had greatly increased in favor of appellees by the time of the rehearing which then showed time deposit commitments of $1,000,000.

Affirmed.

FOGLEMAN, J., dissents.

JOHN A. FOGLEMAN, Justice,

dissenting. This is another case in which I have a very strong feeling that this court, as well as the trial court, has erroneously enlarged the scope of judicial review by weighing the evidence before an administrative agency to determine the preponderance, rather than determining whether there was any substantial evidence to support the finding of fact made by the administrative agency. It is my fervent hope that a strict adherence to the Administrative Procedure Act in the making of findings of fact by agencies subject to that act mandated by Ark. Stat. Ann. § 5-710 (b) Supp. 1973 and Arkansas Savings and Loan Association Board v. Central Arkansas Savings and Loan Association, 256 Ark. 846, 510 S.W. 2d 872 (1974), will tend to relegate the courts to their proper role in judicial review.

I find evidence in the record which seems to me to be very substantial support for the finding by the board that the volume of business in the area in which the proposed association would conduct its business is not sufficient to indicate a successful operation. As we have previously noted, there must not only be sufficient savings deposits available, but there must also be an adequate market for sound loans to insure that the association can pay its operating expenses in addition to interest at a rate sufficiently high to draw and hold deposits. Arkansas Savings and Loan Board v. Southerland, 256 Ark. 445, 508 S.W. 2d 326 (1974). The majority has chosen to ignore the latter factor. Rather, it seems to take the position that the potential for success is enhanced by an increase in the amount of deposits pledged, which according to the applicants’ certified public accountant were assured only by the signatures of the pledgors. Yet, this could be an additional burden and might tend to impede rather than hasten the success of the association if it should prove to be unable to make sufficient loans at an interest rate high enough to pay both the interest required on the deposits and the operating expenses.

It seems to me that it would be at least speculative to say that there would be sufficient mortgage loan demand to insure a sufficient volume of business to the proposed Grant County Savings and Loan Association to indicate a successful operation. The applicants’ proposed budget and pro forma statement were prepared by a certified public accountant whose figures and methods had never been tested under actual operating conditions because none of the associations for whom he had prepared budgets had been in business for as long as one year. All of the figures in the budget were furnished to him by those proposed for management of the association, none of whom had any experience with a savings and loan association. In arriving at his gross operating income figure, he assumed a mortgage loan volume increasing to one million dollars by the end of the first year and no losses on mortgage loans during that time. He gave no basis for these assumptions.

Mortgage loan demand for such an institution seems to hinge largely upon demands for residential houses. While impressive statistics were given to show that Grant County population and economic growth had been exceeding state averages, there was substantial evidence to indicate that projections of these trends would be highly speculative. This should cause considerable doubt about the availability of adequate amounts of mortgage loans for appellees.

Part of the population increase may be attributed to the racial situation in more urban surrounding counties, and might be considered as a very unstable basis for predictions and projections or as permanent growth. It appeared that Leola and Prattsville, towns from which appellees expected to draw business, had population increases of 69 and 0 respectively, during the preceding decade, even though some residences were being built around Leola. Even though unemployment is relatively stable in the county, the average from 1960 to 1970 was 6.9% compared to a state average of 4.9% and a national average of 4.6%. In 1971 the rate was 5.8% opposed to an Arkansas average of 5.4% and in 1972 the Grant County avearge was 6.2%, slightly higher than the state average. Total employment increased by only 50 jobs during the preceding three years. Agricultural employment was declining. A principal industry in Sheridan, employing 170 people had threatened to close its plant at the time of the hearing. Had this occurred, it would have taken four or five years to increase jobs in the area sufficiently to recover from this one loss, according to an expert witness for appellees. In spite of the fact that school enrollment had increased substantially and new buildings were being added to the school system, a request for a tax increase of five mills for maintenance and operation of schools was rejected by the voters. An inordinate number of employed residents (1200 of, 3000) commute to work outside the county, most of them to Pulaski and Jefferson Counties. Windell R. Adams, the assistant director of the Southeast Arkansas Economic Development District, who prepared the economic data on the public need for the institution, would assume (rather logically) that some of these commuters do their banking business outside the county.

Adams stated it was difficult to project housing demand, but he attempted to do it by projecting the same percentage gain in housing units there had been between 1960 and 1970, in spite of the fact that he said the Research Center had only projected housing demand on a statewide basis, except for two metropolitan areas where there was a valid information basis. A footnote to his statistical data contained this statement: “If one assumes that 1960-70 population trends continue and the average number in each household remains at 3.1, there will be a need for 280 additional units in Grant County by 1980, substantially less than the 773 units projected above.” Only 35 residential building permits were issued in Sheridan in 1972, one of which was for apartments. The manager of a 16-unit apartment building had virtually 100% occupancy until recently but had a few vacancies at the time of the hearing. One witness said it was more difficult to find a house to rent than to find one to buy.

There was no testimony that anyone had been unable to obtain a loan for residential purposes. The Grant County Bank in Sheridan, whose deposits had increased phenomenally during the preceding five years, had started making some loans with maturities up to 20 years. Residential loan volume, other than FHA or VA loans, amounted to about 30% of its total loans. From 1969 to 1972, this bank made from 37.8% to 45.7% of the mortgage loans in Grant County. Other residential mortgages, with some exceptions, were made to savings and loan associations in Pine Bluff, Malvern, or Little Rock. Admittedly, the Grant County Bank cannot meet the total residential housing loan demand in Grant County, but there was evidence that the demands were being met. There are savings and loan associations in Pine Bluff, about 24 miles away, Malvern, about 25 miles away, Little Rock, about 33 miles away. Two builders testified on behalf of appellants. One of them stated that of 50 or 60 houses built by his concern, two-thirds were financed by loans made by Farmers Home Administration and the remaining one-third, most of which were priced above the Farmers Home Administration loan limit, were financed through loans made by the First Federal Savings and Loan Association in Pine Bluff. Each builder had one customer who financed his home by a loan from the Grant County Bank.

Of course, all the savings and loan associations which held the residential mortgages in the county which were of record in 1970, 1971, 1972 and 1973 were located outside the county. There is no indication that they could not or would not compete with a local association for loans or that they would not continue to make loans in like amounts. The same may be said about Farmers Home Administration and the other lenders making residential loans. Capital Savings and Loan Association had filed an application for the establishment of a branch office in Sheridan in 1972 but had later asked that action be withheld until it made request for further action. Dr. Charles Venus, an economist testifying on behalf of the appellants, stated that there was no way to ever keep out-of-county financial institutions from competing in the Grant County market.

Strangely enough, the person proposed as president of the proposed association voted, as a director of the Grant County Bank, to protest the application.

I would reverse the judgment of the Circuit Court and sustain the board.


source: Caselaw Access Project

author: Frank Holt, Justice.

license: Public Domain

text:
    Derol MAY v. EXXON CORPORATION
    74-34
    512 S.W. 2d 11
    As Amended on Denial of Rehearing July 22, 1974

      Gannaway, Darrow & Hanshaw, for appellant.

      W. P. Hamilton, for appellee.
   Frank Holt, Justice.

Appellee brought suit against appellant on a promissory note and an open account for goods delivered to appellant while he operated two of appellee’s service stations. Appellant duly filed his answer and thereafter amended it by a counterclaim alleging certain unfair and discriminatory business practices by appellee, i.e., supplying gasoline at a lower price to a nearby competitor. He sought compensatory and punitive damages. Appellee moved to strike the amendment alleging that the counterclaim was filed untimely, which is admitted, and that all counterclaims are compulsory by the provisions of Ark. Stat. Ann. § 27-1121 (Repl. 1962). Before the trial court ruled, however, appellant filed a separate suit alleging the same cause of action. Appellee demurred on grounds of the pendency of the original action between the same parties and the same issue. Both cases were consolidated. The court dismissed appellant’s counterclaim and sustained appellee’s demurrer to the separate action. Appellant contends that the trial court erred. We cannot agree.

Appellant does not contend that the trial court abused its discretion in refusing to permit him to amend his answer after more than one year to include a counterclaim. Instead the sole issue is whether the filing of a counterclaim is controlled by § 27-1121. Appellant's attempted counterclaim does not relate to a collection of his note and for goods purchased by him from appellee. By the counterclaim he seeks damages for allegedly discriminatory uniair business practices. Appellee, however, insists that all of appellant’s existent causes of action must be pleaded in his counterclaim.

Ark. Stat. Ann. § 27-1123 (Act 267 of 1917) defines a counterclaim. It reads:

The counterclaim mentioned in this chapter [§§ 27-1121 — 27-1125, 27-1129, 27-1130] may be any cause of action in favor of the defendants, or some of them against the plaintiffs or some of them.

§ 27-1121 (4) (Act 54 of 1935) affects this counterclaim section and in pertinent part provides:

In addition to the general denial above provided for, the defendant must set out in his answer as many grounds of defense [,] counter-claim or set-off, whether legal or equitable, as he shall have.

§ 27-1123 has been held to allow (before the 1935 amendment of § 27-1121 [4]) the defendant to counterclaim in either a contract or tort action or in any case where liability could be asserted in an original action brought against the plaintiff. Coats v. Milner, 134 Ark. 311, 203 S.W. 701 (1918) and Church v. Jones, 167 Ark. 326, 268 S.W. 7 (1925). In the latter case we said that a counterclaim is “*** in effect, the instituting of a cross-action, and the part of the answer alleging it is in the nature of a complaint by the defendant against the plaintiff.” We further said “*** the manifest purpose of the Legislature in defining a counterclaim [§ 27-1123] was to permit persons who have gone to law to settle, in a single suit, all matters in dispute between them, whether the respective causes of action grow out of the same or different contracts or whether they arise upon contract or arise out of some tort.”

§ 27-1123 must be interpreted in conjunction with § 27-1121 (4) in order to determine if the counterclaim is compulsory. We have interpreted the section as mandatory. Corey v. The Mercantile Insurance Company of America, 207 Ark. 284, 180 S.W. 2d 570 (1944). Failure to plead the counterclaim is res judicata. Olmstead v. Rosedale Bldg. & Supply, et al, 229 Ark. 61, 313 S.W. 2d 235 (1958). and Corey, supra. However, it appears that these cases dealt with counterclaims arising out of a more nearly related transaction, although the language in them does not limit the mandatory provision of § 27-1121.

We construe the mandatory provision of § 27-1121 as to counterclaims as being applicable and controlling in the case at bar. The amendatory language of § 27-1121, when read in conjunction with § 27-1123, required appellant to plead in his answer or timely amended answer his claim for damages as a result of the asserted discriminatory business practice against him by appellee. Martin v. Romes, 249 Ark. 927, 462 S.W. 2d 460 (1971). In Corey, supra, we observed that the legislature, in amending the counterclaim statute to include the word “must, ’’ “***meant something by this change and that was to require a defendant to ‘set out in his answer as mariy grounds of defense, counterclaim or setoff, whether legal or equitable, as he shall have.' Otherwise there would have been no occasion to amend said subsection ****.” (Emphasis added.) Appellant, not having timely pleaded his counterclaim is therefore barred from bringing a separate action.

In treating a related question, we have said “[TJhere does not appear any valid distinction between a counterclaim and a cross-complaint.” Huffman v. City of Hot Springs, 237 Ark. 756, 375 S.W. 2d 795 (1964). There an answer was timely filed and then more than a month later a cross-complaint. In reversing the trial court’s rejection of the cross-complaint, we said “[T]he filing of an answer meets the requirement of the statute, and there is no sound reason why a party should not be permitted to amend his pleading thereafter, provided, of course, such pleading is filed within a reasonable time.” Certainly, in the case at bar, the appellant has not demonstrated that his counterclaim was offered within a reasonable time following his answer and the refusal of the counterclaim was an abuse of discretion. Here, our opinion should not be construed to prevent any litigant from filing a counterclaim within a reasonable time after the filing of an answer, especially where the trial court approves or the right is reserved by approval of the trial court.

Affirmed.


author: Conley Byrd, Justice. John A. Fogleman, Justice, Frank Holt, Justice,

text:
    Mildred S. McCRAY v. Elwood H. McCRAY, Jr.
    74-69
    Substituted Opinion delivered October 7, 1974

      Ralph R. Wilson, for appellant.

      William C. Gilliam, for appellee.
   Conley Byrd, Justice.

Both appellant and appellee sought a divorce. The appellant prevailed. However, she contends that the chancellor erred with respect to her statutory dower rights. Appellant asserts that she is entitled to a dower interest in a parcel of real property in addition to V2 of the proceeds from the sale of their jointly owned residence. The appellee admitted that he owned an undivided 1 /3 interest in certain realty. Ark. Stat. Ann. § 34-1214 (Repl. 1962) provides in pertinent part that where the wife is granted a divorce, as here, she “***shall be entitled to one-third [1/3] of the husband’s personal property absolutely, and one-third [1/3] of all the lands whereof her husband was seized of an estate of inheritance at any time during the marriage for her life*** ” Clearly this statute mandates that appellant was entitled to her statutory interest in this additional real property.

Appellant also presents the argument that even though the court awarded her the household furnishings, Vi of the proceeds from the sale of the residence and an automobile, she was entitled to a dower interest in additional personal property. The burden was upon her to establish the nature and'extent of appellee’s property, both real and personal. It was for the chancellor to resolve the conflict in the evidence, some of which appears speculative. After a careful review of the evidence, we are of the view there is nothing in the record to show that appellant has not received in value her equitable share of her statutory rights in the personal property. Biddle v. Biddle, 206 Ark. 623, 177 S.W. 2d 32 (1944); and Myers v. Myers, 226 Ark. 632, 294 S.W. 2d 67 (1956).

The chancellor dissolved the estate of the entirety under which the parties’ homestead was held and ordered the property sold and the proceeds divided. The record shows that the parties were married in 1928 and that at the time of trial in January, 1971, appellant was sixty-four years of age. Appellant had been steadily employed during most of the marriage — having earnings of $7,800 for the year of 1970. Appellee had worked as a rural mail carrier since 1935, and his earnings fluctuated from $10,000 to $12,000 per year. Some two years before their separation the parties had sold the home they owned on Main Street in Malvern for $12,000 and after paying off a small mortgage put the balance of $11,-000 into their present home. The proof shows that their present home was built on a lot acquired in 1959, for $3,000, by appellant from her own monies. In addition appellant admittedly put an additional $6,900 of her own savings into the construction cost of their present home. Other evidence shows that appellee left the appellant and took a room with a widow and her children two doors down from appellant. When we consider that these parties had been married for thirty-nine years; that appellee flagrantly violated the marital code by moving in with another woman within sight of the family home; and that appellant not only spent $3,000 of her own funds for the lot upon which the house was constructed but also used $6,900 of her savings to finish the construction only two years before the separation, we conclude that the chancellor abused his discretion in ordering the family homestead sold. It follows that the chancellor should have awarded possession of the family homestead to appellant and have imposed upon her the obligation of keeping up the insurance and taxes in the parties’ joint names.

Appellant also requests an additional attorney’s fee for the services of her counsel on appeal, which we allow in the amount of $600.00.

Reversed and remanded.

John A. Fogleman, Justice,

dissenting. Like my brother Holt, I am unwilling to join in the court’s retreat from its previous refusal to hold that the chancellor abused his discretion in ordering the tenancy by the entirety disolved by sale. In our original opinion in this case, we said:

Neither can we agree that the chancellor erred in ordering the jointly owned residence sold and the proceeds equally divided between the parties. Each is regularly employed. The appellant earns approximately $7,800 a year. Appellee’s earnings fluctuate from $10,000 to $12,-000 annually. The chancellor awarded her $50 per month alimony and, as indicated, the household furnishings. Appellant has had the use of the residence since their separation in 1967. Their only child is a married adult. Ark. Stat. Ann. § 34-1215 (Repl. 1962) specifically gives the court the power to dissolve an estate by the entirety upon the rendition of a final divorce decree. Sec. 34-1214, supra, provides authority for the sale of real estate where it cannot be divided without “great prejudice” to the parties. The chancellor is, therefore, accorded broad discretionary authority in the disposition and award of marital property in a divorce action. In view of both parties’ earnings and their contribution to the purchase of the home in which they had lived for only approximately two years before their separation, the award of the household furnishings to appellant together with alimony, we cannot say the chancellor abused the discretionary power entrusted to him by our legislature in ordering a sale of the property and dividing the proceeds equally. Furthermore, it is well established that we do not reverse a chancellor’s finding on a disputed factual issue unless it is clearly against the preponderance of the evidence. We are unable to say that the chancellor’s resolution of this iss: e was clearly against the preponderance of the evidence.

This case had been before that judge from the time appellant instituted suit for separate maintenance on January 31, 1967. She did not even seek a divorce until October 17, 1969, some two years after appellee took up his abode in a place near this home. Even then, her grounds were general indignities and desertion. The case was tried January 19, 1971. The chancellor saw, heard and evaluated these parties and their positions. For some unexplained reason a formal decree was not entered until two years and nine months after the court’s decision was noted on the trial docket on the day of the trial.

During the separation of the parties beginning in January, 1967, he bought a set of tires for appellant’s automobile. In addition to other items of personalty awarded her, appellant sold a boat for $150.00 with appellee’s consent.

Appellant was approximately 67 years of age at the time the decree was entered. At the time of the trial, she had been employed as a secretary, clerk-typist, by the U.S. Department of Agriculture for 21 years, had a salary of $7,800.00 a year, wrs eligible for retirement and will be required to retire when she reaches age 70. Her retirement income would have amounted to $150.00 or $160.00 a month, if she had retired at the time of the trial. She has a diamond ring worth $ 1,000.00. Although she kept her money separate all during the marriage, with approval of appellee, she admitted that her money was released because appellee was paying things she normally would have paid as “a member of the marriage.” Appellee, a rural mail carrier, earned $12,610.70 in 1970, the most he ever earned, but his earnings, being based on a mail count, fluctuate and decreased by $1,100.00 in 1971. He anticipated that it would later be much less. He testified that appellant had tried to get him fired.

The lot on which the home was built in 1964 was purchased by appellant in 1959 for $3,000.00. Of the cost of the new home SI 1,000.00 was paid from the proceeds of the sale of the home in which the parties had been living. Appellant’s contribution of $6,900.00 to the cost of the home was based upon her promise to appellee to pay all above the $11,000.00 realized from the sale, because of his reluctance to incur indebtedness for a new home. Appellee testified that he let appellant pressure him into selling and that the sale price was far below value. He said the buyer made $7,000.00 profit on it. Appellee’s father gave them $350.00 on a lot for the previous home.

All these matters and others were in contemplation by the chancellor in arriving at his decision. In spite of the fact that fault is a relevant consideration in such matters, giving the chancery court discretionary power to act upon tenancies by the entirety in divorce cases was not for punitive purposes. The discretion is a sound judicial one and this, to me, means an equitable one. Appellant was not blameless. Without detailing the evidence the chancellor heard, the fact that appellee was not without fault, is clearly shown by the testimony of the mature adult daughter of the parties, called as a witness by appellant. She said that her mother and father had trouble for many years — at least since her childhood. Appellant admitted she threw a rock at appellee when he came to the house during the separation.

I simply cannot agree that the chancellor abused his broad discretion in this matter.

Frank Holt, Justice,

dissenting. I dissent only from that part of the majority opinion which holds that the chancellor erred in dissolving the parties’jointly owned residence, ordering the property sold and the proceeds divided between them. As indicated, both parties were steadily employed during most of their marriage. It is uncontradicted that the appellant “kept my money separate” which she earned during their marriage. From these funds she contributed to the purchase of their new home in order that the full purchase price be paid. However, before their present separation, it appears that during their marriage the appellee paid the utilities and provided her money every two weeks “to run the house on”. For twenty years he had made the monthly payments on the house which she persuaded him to sell in order to build their home which is now in issue. Since this acquisition and during this litigation, appellee has continued to pay the insurance, taxes and all utilities except the telephone bill. Her earnings, as well as appellee’s, have regularly improved. She has $3,800 savings in California and $590 in a local state depository. The chancellor awarded her all of the household furnishings, an automobile, attorney’s fee and $50 a month alimony. Appellant has had the use of their jointly owned residence since their separation in 1967. Their only child is a married adult who testified that her parents’ marriage was a “mismatch. ” Appellant and appellee each adduced evidence of marital discord tending to blame or place the fault upon the other.

It is well settled that the chancellor is accorded broad discretionary authority in the award of property in a divorce action. The appellant has the burden to demonstrate that the chancellor abused his discretionary power in ordering a sale of their jointly owned property and dividing the proceeds. Furthermore, it is well established that we do not reverse a chancellor’s finding on a disputed factual issue unless it is clearly against the preponderance of the evidence. The chancellor is in a better position than are we to observe the witnesses and evaluate the conflict in equities.

I would affirm the chancellor on this issue.

Fogleman, J., joins in this dissent.


author: FRANK Holt, Justice.

text:
    FIRST NATIONAL BANK, Little Rock, Ark., Trustee of the Retirement Plan for Employees of MOBLEY CONSTRUCTION Company, Inc., & James Barron MOBLEY, Jr. v. MERCHANTS & PLANTERS BANK of Newport, Arkansas, and Fred M. PICKENS, Jr.
    74-53
    510 S.W. 2d 874
    Opinion delivered July 1, 1974

      George W. Boland, for appellants.

      Pickens, Boyce, McLarty & Watson, by: James A. McLarty, for appellees.
   FRANK Holt, Justice.

Appellant Mobley borrowed 312,500 from appellee Merchants and Planters Bank. Appellee Pickens guaranteed the loan. Repayment of the loan was to be made by appellant Mobley from two separate funds from which he received monthly payments. The fund involved in this litigation is the Mobley Retirement Plan. The plan, established by Mobley’s deceased father, is a spendthrift trust since it contained a non-assignability clause. Mobley, however, executed a power of attorney for Pickens, his longtime friend and benefactor who was aware of the restrictive provision, and instructed the trustee of thé plan, appellee First National Bank, to forward Mobley’s monthly payments under the plan to Pickens for payment to the bank. For about two years Pickens regularly applied the payments to the appellant bank or until Mobley filed a petition in bankruptcy in the United States District Court in Colorado. Mobley then revoked the power of attorney given to Pickens, who had notice of the proceeding, and instructed the trustee to stop sending Pickens the payments. A balance of $2,971.85 was owed on the loan. Mobley was adjudicated a bankrupt. The bankruptcy court discharged Mobley’s debt due to Merchants Bank and also discharged the debt due Pickens. The court also concluded that the Mobley Retirement Plan was beyond the reach of the trustee in bankruptcy and Mobley’s creditors could not recover from the fund. However, Pickens’ interest in the fund by virtue of his guarantee of the loan was ordered left for a determination in the pending litigation instituted by appellees in the Arkansas court.

The chancellor here found that the power of attorney was irrevocable and ordered appellant First National Bank to ascertain the balance owing the appellee Merchants Bank by Pickens as a surety and further ordered First National to pay to Merchants Bank such funds as are necessary to satisfy the Pickens’ debt to Merchants Bank. Appellants contend that the power of attorney was erroneously found by the trial court to be irrevocable.

The general rule is that a power of attorney coupled with an interest, which position appellee Pickens asserts he has, makes the appointment irrevocable. See, e.g. McColgan v. Bank of California, 208 Cal. 329, 274 P. 342 (1929). However, the cases bearing on the issue before us indicate that an attempted assignment of future income from a spendthrift trust is regarded as merely a direction to the trustee for payment of sums as they accrue subject, however, to the right of revocation by the beneficiary at any time. In re Stern’s Estate, 176 N.Y.S. 2d 787 (1958); and In re Easton’s Estate, 13 N.Y.S. 2d 295 (1939). Accord, Bogart, Trust and Trustees § 226 (2d. Ed. 1965), and Restatement of Trusts 2d § 152, Comment i (1959). For other cases dealing with power of attorney assignments being revocable for public policy or statutory reasons, see Scott v. Hall, 177 Or. 403, 163 P. 2d 517 (1945), Norton v. Tuttle, et al, 60 Ill. 130 (1871), and In re Nunno’s Estate, 293 N.Y.S. 827 (1937). In the case at bar, since the retirement fund contained a non-assignment clause, the power of attorney, even though given for security, was revocable at any time and the lower court erred in holding to the contrary.

We are not unmindful that in business transactions the confidence of benefactors, based upon long friendships, are sometimes misplaced. However, we cannot hold in the case at bar that the power of attorney was irrevocable. To do so in the factual situation in this case is most appealing; however, it would constitute a precedent that would impair, if not in effect nullify, the purpose of spendthrift trusts. As the late Mr. Justice Frank Smith so aptly wrote in Byler v. State, 210 Ark. 790, 197 S.W. 2d 748 (1946), “The answer is, ‘Twill be recorded for a precedent and many an error by the same example will rush into the state. It cannot be.’ ”

Neither can we agree that the doctrine of unclean hands can be applied to invalidate or intrude upon the spendthrift provision of a trust. We have found no such authority and neither have appellants cited any to us.

We deem it unnecessary to discuss appellants’ other contentions for reversal.

Reversed and dismissed.


author: CARLETON HARRIS, Chief Justice.

text:
    Nathaniel DANIELS et al v. CHICAGO, ROCK ISLAND and PACIFIC RAILROAD et al
    74-74
    511 S.W. 2d 175
    Opinion delivered July 8, 1974

      Carpenter, Finch & Dishongh, for appellants.

      Wright, Lindsey & Jennings, for appellees.
   CARLETON HARRIS, Chief Justice.

On November 4, 1969, Verneda, Annie, and Fred Daniels, Jr., were killed at a railroad crossing at Wheatley when the half-ton pickup truck driven by Fred, was struck by an engine pulling only a caboose. The Daniels were traveling north on Highway 70 and the train was traveling west. Decedents were survived by their respective spouses and children, and suit was instituted by Nathaniel Daniels, Administrator of the estate of Verneda, and the Administrators of the estates of the other two decedents, appellants herein, against Chicago, Rock Island and Pacific Railroad, and the engineer operating the engine. The complaint alleged negligence, inter alia, failure to keep a proper lookout at the crossing, failure to ring a bell or blow a whistle in the manner prescribed by law, and negligence in failing to clear the right-of-way of visual obstructions. The several administrators prayed judgment against the railroad for damages and costs. The railroad company and engineer, appellees herein, answered, denying all allegations of negligence and subsequently, the case proceeded to trial. At the conclusion of appellants’ testimony, appellees moved for a directed verdict, which was granted and from the judgment so entered, appellants bring this appeal.

Of course, it might be stated at the outset that in “dealing with a directed verdict, we must take that view of the evidence which is most favorable to the party against whom the verdict is directed, and, if there is any substantial evidence tending to establish an issue in his favor, it is error for the court to take the case from the jury. In testing whether there is substantial evidence, the testimony and all reasonable inferences deducible therefrom must be viewed in the light most favorable to the party against whom the verdict is directed, and, if there is any conflict in the evidence, or where the evidence is not in dispute, but is in such state that fair-minded men might draw different conclusions therefrom, it is error to direct a verdict.” Page v. Boyd-Bilt, Inc., 246 Ark. 352, 438 S.W. 2d 307.

In contending for a reversal, appellants first assert that the trial court erred in directing the verdict because the testimony of two witnesses presented a jury question, and the case should accordingly have been submitted to the jury.

The testimony mentioned referred to the question of whether the train whistle was blown or the bell on the engine rung in compliance with the statute. Chester Watson, a resident of Wheatley, testified that he lived about 800 feet from the crossing; that he was at his home on the date and hour of the collision, and that, in fact, he heard the impact between the train and the truck. He stated that he did not hear the train whistle before the collision, although he was awake and, as stated, heard the collision itself. On cross-examination, the witness was asked:

“Now suppose an officer of the law testifies that he was closer to the crossing than you were, between your house where you were at the time of this accident and this particular railroad crossing, and he testifies that he not only saw, but he heard this whistle blowing before it got there to the crossing, would you contradict him?”

After an objection to the question had been overruled by the court, the examination continued as follows:

“Q. Would you contradict him?
A. Yes, sir.”

The witness said that he did not know the people involved in the wreck, or their families; that he had “never seen nary one of them.”

Lilly Verne Smith, who testified that she lived less than 500 feet from the crossing, stated that she heard the impact of the collision, but prior thereto, she heard neither the blowing of a whistle nor the ringing of a bell. The witness said that she was in her living room at the time of the collision; further, that she knew none of the parties.

Appellees argue that the evidence mentioned was not the substantial evidence required to avoid a directed verdict, pointing out that Watson only testified that he did not hear a whistle blow, and Lilly Smith simply testified that she heard neither a whistle nor a bell. We disagree with appellees that this evidence was insufficient to take the case to the jury, and we have held contrary to the contention of appellees in several railroad cases. In St. Louis-San Francisco Railway Company v. Horn, 168 Ark. 191, 269 S.W. 576, this court said:

“It is undisputed that the crossing signal was given at the whistling post with the customary four blasts of the whistle, but there is, we think, a substantial conflict in the testimony as to whether or not any signals were given thereafter. The engineer and fireman both testified that the bell was kept ringing from the whistling post down to the crossing, and the engineer testified that the whistle was sounded again after passing the post and before reaching the crossing. But there is substantial testimony from which the jury might have found that there were no signals given, either by bell or whistle, after the whistle was sounded at the post. It is contended by learned counsel for appellant that the testimony on that point is merely negative, but we are of the opinion that the testimony is of more force than that. Witnesses testified that they did not hear the bell, and the jury might have found that the bell was not rung, otherwise the witnesses would have heard it. ” [Our emphasis]

Likewise, in St. Louis Southwestern Railway Co. v. Hopkins, 196 Ark. 657, 119 S.W. 2d 542, we stated:

“Appellants call attention to the testimony of appellee’s four witnesses (other than appellee), all of whom testified negatively as to signals — that is, they did not hear the bell or whistle. It is urged on behalf of appellant that the substance of such testimony is that the witnesses did not know whether the signals were, or were not, given. Appellee testified that the signals were not given. This testimony is contradicted by witnesses for appellants who were not connected in any way with the case, and who are referred to as disinterested witnesses. They testified that the bell was being rung and that the whistle was being blown.”

We held that there was a question of fact for the jury’s determination and affirmed the judgment. Our holding in Missouri Pacific Raolroad Company, Thompson, Trustee v. Rogers, 206 Ark. 1052, 178 S.W. 2d 667, was exactly the same, where we stated:

“This argument rests upon the theory that the testimony relating to the ringing of the bell is negative in its character and, therefore, wholly lacking in eviden-tiary value. Many decisions of this court may be found declaring the rule to be, that where a witness, in possession of his faculties of hearing, was so situated that he would have heard signals had they been given, testifies that he heard no such signals, such testimony cannot be classed as negative in its character. Such testimony is treated as being affirmative testimony, tending to establish the fact that such signals were in fact not given, ; id is entitled to such weight as the jury sees fit to give it.” (Citing cases).

See also Missouri Pacific Railroad Co. v. Yarbrough, 229 Ark. 308, 315 S.W. 2d 897, and Missouri Pacific Railroad Co. v. McDaniel, 252 Ark. 586, 483 S.W. 2d 569 (1972).

In accordance with what has been said, we find that the trial court erred in directing the verdict for appellees.

It is also asserted that the court erred in failing to allow the case to go to the jury because of evidence relating to foliage and debris, appellants contending that such foliage obstructed the view of those approaching the crossing, in violation of Ark. Stat. Ann. § 73-631 (Supp. 1973).

The evidence in the record on this point is rather meager, consisting of the testimony of Lilly Smith, photographs which were offered into evidence, and the State Police Report by the officer who investigated the occurrence. Inasmuch as the judgment is herein reversed on point one, and the evidence on point two will likely be more fully developed in a new trial, we see no necessity to discuss the latter contention.

The judgment is reversed and the cause remanded to the Lee County Circuit Court for further proceedings not inconsistent with this opinion.

      See Ark. Stat. Ann. § 73-716 (Repl. 1957).

      § 73-631 is as follows:
      “Hereafter, all railroad corporations operating in this State shall maintain their right of way at or around any railroad crossing of a public road or highway free from grass, trees, bushes, shrubs or other growing vegetation which may obstruct the view of pedestrians and vehicle operators using the public highways, for a distance of one hundred (100) yards in all right of way directions from such railroad crossing.”


author: George Rose Smith, Justice.

text:
    ARKANSAS STATE HIGHWAY COMMISSION v. V. C. LUGAR et ux
    74-75
    511 S.W. 2d 157
    Opinion delivered July 8, 1974

      Thomas B. Keys and George 0. Green, for appellant.

      Catlett & Henderson, for appellees.
   George Rose Smith, Justice.

At the trial of this condemnation suit the landowner, on direct examination, mentioned an offer that he had had for the purchase of the property. The court admonished the jury not to consider the testimony. The appellant contends that the error was so prejudicial that a mistrial should have been granted. We do not agree.

The landowner testified that he bought the property in 1956 and considered it to be a good investment. The record then continues:

Q. And you intended to hold it. Is that the reason you held on to that after you moved away from here to go to Alabama to live?
A. Oh, yes, sir. I had many opportunities, you know, to sell it. In fact, people wrote to me quite often wanting to buy this property, and well, I even had a return of fifty thousand dollars. . .

Upon objection the judge and the attorneys went into chambers, where the judge denied the condemnor’s motion for a mistrial and stated that the jury would be instructed to disregard the statement. The court promptly gave this admonition to the jury:

Ladies and gentlemen, I don’t know whether any of you heard the remarks the witness made or not, I didn’t hear it, but I am told what he said, and what he said, of course, is not at all admissible in this trial and not to be considered by you as evidence at all; so if any of you heard it, you will please totally and completely and absolutely disregard it. It is not evidence in this case. Does everybody understand that? Proceed.

We find the court’s admonition to have been sufficient to cure the error. In a situation such as this one the trial judge must be given broad authority, for he is in the best position to assess the possibility of prejudice. See Ark. State Highway Commn. v. Shepherd, 239 Ark. 1010, 395 S.W. 2d 743 (1965). That the answer was not responsive to the question is important, Ragon v. Day, 228 Ark. 215, 306 S.W. 2d 687 (1957), since that fact shows that there was no deliberate effort to bring in inadmissible testimony. Moreover, the court’s admonition was prompt, clear, and emphatic.

The appellant’s most persuasive argument rests upon the amount of the jury’s verdict, $50,000, which is the identical amount of the inadmissible offer mentioned by the landowner. We are not persuaded, however, that the jury disregarded the court’s admonition and seized upon one sentence in the testimony as the basis for its verdict. If the verdict had coincided with an inadmissible figure ending in odd dollars and cents, counsel’s argument would be practically unanswerable. But here the amount, $50,000, is not only a convenient round number, but it lies fairly near the middle point between the maximum value of $68,350 fixed by one of the landowners’ expert witnesses and the minimum value of $24,000 fixed by the condemnor’s expert witness. We conclude that prejudicial error is not shown.

Affirmed.

Jones. J., dissents.


author: George Rose SMITH, Justice.

text:
    DILLARD DEPARTMENT STORES, Inc., d/b/a GUS BLASS COMPANY & PFEIFER’S OF ARKANSAS v. Margaret STUCKEY
    74-114
    511 S.W. 2d 154
    Opinion delivered July 8, 1974

      Griffin Smith, for appellant.

      Alonzo D. Camp, for appellee.
   George Rose SMITH, Justice.

This is a tort action arising from an unlawful arrest. On December 22, 1972, the appellee, a school teacher, was shopping in the appellant’s department store at Little Rock. She was arrested and accused of shoplifting by Detective Spahr, an off-duty city policeman in uniform who was employed by the appellant to deter shoplifting and otherwise act as a security guard within the store. Officer Spahr testified that he saw Mrs. Stuckey take a scarf and put it in a plastic bag, but when she was taken to the police station and searched no merchandise was found. After having been acquitted in municipal court Mrs. Stuckey brought this suit and obtained a verdict for $1 ,- 000.00.

For reversal the appellant contends that in the circumstances Officer Spahr was compelled by statute to make the arrest and that, inasmuch as the appellant did not direct or bring about the arrest, there was as a matter of law no agency relationship between Spahr and the appellant.

Only two cases are cited to support the appellant’s position, but neither is in point. In Meyers v. State, 253 Ark. 38, 434 S.W. 2d 334 (1972), we held that an off-duty policeman, privately employed, had a duty to apprehend persons in the act of committing criminal offenses. That was a criminal prosecution, presenting no issue of agency. In Chicago, R. I. & P. Ry. v. Nelson, 87 Ark. 524, 113 S.W. 44 (1908), the arresting policeman was not employed by the defendant railway company and was not under its control. He was stationed at the defendant’s depot as an ordinary policeman, apparently in the course of his regular employment by the city. We merely held that the railway company’s payment to the city of half the officer’s salary, as an inducement to the city to station a policeman at the depot, did not make the officer an employee of the company.

Here the situation is so materially different from that in the Nelson case as to present a question of fact with regard to agency. It is ordinarily the rule that when the defendant’s employee wrongfully brings about the plaintiff’s arrest by a police officer, the employer’s liability is a question of fact. Kroger Grocery & Baking Co. v. Waller, 208 Ark. 1063, 189 S.W. 2d 361 (1945); Missouri Pac. R. R. v. Yancey, 178 Ark. 147, 10 S.W. 2d 22 (1928); Ark. Central Power Co. v. Hildreth, 174 Ark. 529, 296 S.W. 33 (1927).

In essence the appellant contends that despite the rule just mentioned, an employer, by engaging an off-duty policeman as its agent, can immunize itself from liability for an unlawful arrest whenever the officer acts upon his own initiative. That contention, however, runs counter to the basic rule that a principal is liable for its agent’s torts whfen committed in the course of his employment and for the principal’s benefit. St. Louis, I. M. & S. Ry. v. Grant, 75 Ark. 579, 88 S.W. 1133 (1905).

The precise situation is discussed in the Restatement (2d) of Agency, § 245 (1957):

If . . . the arrest is made by the servant, not to advance the interests of his master but in the performance of his duty as a citizen, or solely because the servant is an officer of the state or municipality, the master is not liable. This is a question to be determined by the triers of fact.

This illustration is given:

P, a railroad, employs A as a private detective to investigate crimes committed against the railroad and to seize the offenders if found. A is also a constable of the city, authorized by the city to make arrests. A, unreasonably believing that T has stolen goods from the railroad, arrests T. It is a question of fact whether A acted in his capacity as servant of the railroad or as a police officer.

A more exact parallel to the case at bar could hardly be found. Upon facts similar to those now before us other courts have held the issue to be one for the jury. J. J. Newberry Co. v. Smith, 227 Ala. 234, 149 So. 669 (1933); Hanna v. Raphael Weill & Co., 90 Cal. App. 2d 461, 203 P. 2d 564 (1949).

Here the testimony js amply sufficient to support the jury’s conclusion that Officer Spahr was acting in the course of his employment by the appellant and for its benefit. The officer had worked for the appellant in his off-duty hours for two years. He was paid by the appellant, at the rate of $4.00 an hour. His primary duty was to deter shoplifting. Immediately after the arrest he interrogated Mrs. Stuckey in a back room provided by the appellant. At the police station Officer Spahr made out an “Offense Report” describing the offense as shoplifting and listing the appellant as the complainant. Thus it cannot be said as a matter of law that Spahr was acting solely as a policeman rather than as an employee of the appellant.

Affirmed.


author: Lyle Brown, Justice.

text:
    ARKANSAS KRAFT CORPORATION v. Gary HALBROOK
    74-38
    512 S.W. 2d 544
    Opinion delivered July 8, 1974
    [Rehearing denied September 9, 1974.]

      Laser, Sharp, Haley, Young & Boswell, P.A., for appellant.

      Felver A. Rowell, Jr., for appellee.
   Lyle Brown, Justice.

As a result of injuries received from playing softball on a tract of land owned by appellant, appellee was awarded judgment for SI5,000. For reversal appellant contends (1) that the court should have granted its request for a directed verdict, and (2) that it was error for the court to tell the jury that appellee was an invitee upon the premises.

The Conway County Softball Association is composed of a number of amateur teams. In July 1969 the teams were participating in a district tournament at Morrilton. Appellee was a regular player on one of’ the local teams and while in the act of sliding into home base suffered a severe break of an ankle. Appellee’s tort action was based on the allegation that the home plate was installed with some two to four inches protruding above ground level; that such construction constituted negligence; and that his injury was caused by his foot coming into contact with the protruding base.

Whether the trial court should have granted a directed verdict can be determined from a set of facts which are fairly undisputed. The first two games of the tournament were played on the field of Sacred Heart School. The playing surface was not satisfactory. Bill Hice, the district softball commissioner, obtained permission from appellant to use a pasture belonging to appellant which was at the time being converted into a baseball field. Fill dirt was in place, the backstop was up, and the fence had been erected. On Sunday morning before the game that afternoon, the district commissioner and the two umpires went to the field and made final preparations for the game. They put down the necessary lines and installed the bases. The two umpires who participated in getting the field ready were paid from tournament fees. Neither of the three men were employed by appellant. Balls and bases were bought from filing fees paid by the participating teams.

We think it crystal clear that if the home plate was improperly installed it was not the work of appellant, its agents, or employees. It is true that some of appellant’s employees were present on the premises at the time of the accident; however, all the evidence is to the effect that they were there as players. Certainly they did not take any part in. supervising the activities, nor is it shown that they had any authority to participate in supervision. The district commissioner for the softball league testified he was in complete charge of the field on the day in question.

Reversed and dismissed.


author: Lyle Brown. Justice.

text:
    DIAMOND SHAMROCK CORPORATION v. Everett E. C. PHILLIPS and Lorain S. PHILLIPS
    74-66
    511 S.W. 2d 160
    Opinion delivered July 8, 1974

      Warner and Smith, by: J. 11. Evans, for appellant.

      Sam Sexton, Jr., for appellees.
   Lyle Brown. Justice.

This case involves the correlative rights of the owners of the surface estate and the separate owner of the minerals. Appellant Diamond Shamrock Corporation caused a gas well to be drilled under a proper oil and gas lease executed by the owners of the minerals. Appellees, the Phillipses, owned only the surface estate. The suit was brought on the theory that the drilling of the well at the precise location where appellees intended to build a home was “wrongful, and unreasonable and demonstrated a wholly callous indifference to the rights of the plaintiffs”. Appellees were awarded $4,000 actual damages and $2,000 punitive damages.

For purposes of discussion we divide, as did the parties, appellees’ land into two separate tracts. The 5-acre tract abuts U.S. highway 64 with a frontage of some 600 feet. It is served by natural gas, city water, and electricity. The appellees bought it for the avowed purpose of building their retirement home, paying $1,000 an acre for it. The 80-acre tract, which is pasture land, lies to the rear (north) and to the west of the 5-acre tract and does not come out to the highway.

By virtue of an order of the Arkansas Oil and Gas Commission, Section 18, composed of 640 acres in which section appellees’ land is located, was designated as the Union City Field and as a unit for the purpose of exploring for gas. The order further provided for one drilling site for each section of land and that it should be located at the discretion of those who proposed to drill, within a certain radius from the center of the section. Appellant selected three possible drilling sites on the unit, all located on appellees’ 80-acre tract. One point was designated as “original location” and it was 150 feet north of the 5-acre tract. Alternate No. 1 and Alternate No. 2 locations were also in the pasture land and north and west of the 5-acre homesite.

Shortly prior to May of 1971 appellees had moved a house trailer onto the 5-acre tract where they intended to live during the construction of their new home. They also fenced a garden tract. Phillips testified he was approached by an official of appellant who was in charge of a surveying crew. The official was Clovis Moody who died before the trial. Phillips testified that Moody placed a stake on the five acres and said “he might drill there”. Phillips said he protested that he did not want an encroachment on the homesite; whereupon Mr. Moody acceded to his request. Phillips said Moody assured him the well could be drilled behind the house site and in the pasture. With that assurance Phillips said he went to California to sell some property he owned there. When Phillips returned in June he found the well had been completed and was located over on the 5-acre tract. The well was located, according to appellant’s exhibit introduced at the beginning of the trial, 160 feet directly south of the spot marked “original location”. Three slush pits containing salt water, a meter shed, a tank, and well head equipment were in place. Phillips further testified that there was not enough room between those structures and the highway “because there wouldn’t be enough yard, and it’s too close to the well to build”. He said the equipment “takes up a strip about 50 feet wide and 100 feet long”.

According to the witness the well was drilled 24 feet west and 150 feet south of the point where the permit obtained from the Oil and Gas Commission showed it was to be drilled. His testimony was corroborated by Shamrock’s exhibit one, being a scaled plat entitled “Oil Well Location”. It actually showed the well to be 160 feet south of the original location.

The witness gave his opinion as to the fair market value of the homesite. Those figures were $7,500 before the well was drilled and $500 after the fixtures were in place. That testimony was given over the objection of appellant to the effect that it was not the proper measure of damages.

Darrell Stepp testified he sold appellees the homesite for $5,000. He said he was familiar with home locations up and down the highway in the vicinity of the land; that appellees originally had a beautiful homesite; and that there is not now room between the well fixtures and the highway for a desirable building site.

Mrs. Phillips testified she was present and participated in the conversation with Moody. “He mentioned the location where the well is now and we seriously objected to it because it was our homesite, and he said they would find another site.” After further discussions Mr. Moody said, according to the witness, that the company would drill at what was designated as “Original Location”. As we have said, that site was 150 feet back of the homesite. She said when she and her husband returned from California they discovered that the well was drilled on the homesite. “Mr. Moody told us he was sorry to even see us because he was gone on a two week vacation and they thought that was where it was supposed to be, and I wasn’t here to tell them any different.”

Appellees called as a witness, Bill Mosley, a geologist. He is in charge of the Ft. Smith office of the Arkansas Oil and Gas Commission. The area in controversy is within his jurisdiction. He explained that a driller is required to file a notice of intent to drill, that notice being accompanied by a plat showing the proposed location of the well. He presented a copy of the plat filed by appellant. It showed the proposed location to be in the pasture land to the rear of appellees’ homesite. After the well is completed the driller is required to file a completion report. He exhibited a copy of that report filed by appellant. That report also shows the well to be in the pasture. The witness said the first time he knew the well was actually on the homesite was when he heard in the opening statement at the trial that the well was not at the location shown in the application to drill and in the report of completion.

On cross-examination the witness testified that a driller has to be careful in selecting a drilling site to avoid faults and salt water. He was shown a geological map of the involved area and he conceded that in order to avoid drilling into a fault the geologist was “very limited in where he placed or recommended that a well be drilled within the 160 acre area”. He said that the location selected was a good one, the well being one of the largest gas producing wells in western Arkansas.

The first witness called by appellant was David Daggs. He is a drilling rig supervisor and worked for the driller who was employed by appellant to drill the well on appellees’ property. He said he heard some, but not all, of the conversations between Clovis Moody and the appellees, being there because the location for the well was being staked. He testified that the original location (behind the homesite and in the pasture) fell near appellees’ garden. He said Moody told appellees he could move the location a little south and get away from the garden because they objected to losing their garden site. “Mr. Moody and myselt went down a little south of the garden and showed Mr. and Mrs. Phillips a location. They still didn’t want the location built there but said it would be better than up in their garden.” On cross-examination he conceded that he did not have any explanation as to why the well was actually drilled 160 feet south of the location certified to the Arkansas Oil and Gas Commission. He recalled that appellees did not want the well located in front of the proposed site of the house and wanted it constructed “back behind the house up north”.

The next witness called by appellant was Dick Williams, a qualified geologist employed for several years by appellant. He was responsible for selecting the location of gas wells in western Arkansas and particularly a site for the well on appellees’ property. He selected the “original location” as shown on appellant’s exhibit one. The location was selected because it revealed the best possibilities for avoiding a fault on the north and high enough to stay out of salt water on the south. He said the well was actually drilled 160 feet south of the original location he selected. “The original location picked by me was the only one I was aware of and I knew nothing about the alternate location staked to the north of the original location.”

With respect to the law governing this case we first look to the respective rights of the owner of the minerals and the separate owner of the surface. The general rule governing the right of the mineral owner is aptly stated in 10 Thompson on Real Property § 5561 (1940):

As against the surface owner, the owner of the minerals has a right, without any express words of grant for that purpose, to go upon the surface to drill wells to his underlying estate, and to occupy so much of the surface beyond the limits of his well or wells as may be necessary to operate his estate and to remove the product thereof. * * * It is a well-settled principle that injury necessarily inflicted in the exercise of a lawful right does not create a liability. The injury must be the direct result of the commission of a wrong.

Our case of Koury v. Morgan, 172 Ark. 405, 288 S.W. 929 (1926) quotes the same language from a previous edition of Thompson.

An injury to the surface may be said to be the result of the commission of a wrong when the use of the surface is unreasonable. In Martin v. Dale, 180 Ark. 321, 21 S.W. 2d 428 (1929), we said the driller had a right to ingress and egress but in exercising that right “it was his duty to do so in the manner least injurious to his grantor. ...” Another case which is very persuasive is Getty Oil Co. v. Jones, 470 S.W. 2d 618 (Sup. Ct. Texas 1971). That case refers to “the rules of reasonable usage of the surface”. Jones, the surface owner, installed irrigation equipment above the ground. Thereafter, Getty Oil drilled wells and installed pumping equipment which prevented the use of the irrigating equipment. The court said “where there is an existing use by the surface owner which would otherwise be precluded or impaired, and where under the established practices in the industry there are alternatives available to the lessee whereby the minerals can be recovered, the rules of reasonable usage of the surface may require the adoption of an alternative by the lessee”. Then in 4 Summers O. & G., § 652 (1962) we find this statement: “If the acts [of the lessee] complained of are found not to constitute a reasonable use of the surface, .... the lessee is liable for the injury done . ... "

With the evidence at hand the jury in the case before us evidently concluded that appellant’s driller was unreasonable in that he disregarded the site selected by appellant's geologist for the drilling and dropped south 160 feet. (The reason for the change in location was never explained.) Furthermore, the jury could have found that it was wrong for appellant, through its agents, to make a firm commitment not to drill on the homesite and thereafter, in the absence of appellees, to go upon the homesite and sink the well.

We conclude that the jury was warranted in returning a verdict for actual damages. Since the damages to the homesite were permanent, the measure of damages is the difference in the before and after value of the property. Standard Oil Co. of La. v. Goodwin, 174 Ark. 603, 299 S.W. 2 (1927); 4 Summers O. & G. § 658 (1962).

What we have thus far said disposes of appellant’s first six points with the exception of point four. That point challenges the propriety of instructing the jury on punitive damages. Punitive damages “are not a favorite of the law”. Harris Manufacturing Co. v. Williams, 164 F. Supp. 626 (1958). Negligence alone, however gross, is not sufficient to sustain such an award. St. Louis, I. M. & S. Ry. v. Dysart, 89 Ark. 261, 116 S.W. 224 (1909). Gross negligence, without willfulness, wantonness, or conscious indifference, does not justify infliction of punitive damages. St. Louis S. W. Ry. v. Evans, 104 Ark. 89, 148 S.W. 264 (1912). The burden of proof was of course on appellees. For all we know the drilling on the homesite could have been caused by a breakdown in communications between the driller and the geologist; or, appellant’s superintendent could have negligently left the marker on the homesite. We do not think appellees met their burden of proof and the jury was left to speculation and conjecture as to the cause of the mixup, if there was once. Certainly, appellees offered no proof of willful or wanton misconduct from which malice could be implied. Chicago, R.I. & P. Ry. v. Whitten, 90 Ark. 462, 119 S.W. 835 (1909).

Appellant’s final point is that the court erred in not giving a more specific instruction on actual damages. The court told the jury that if it found for appellees “you must then fix the amount of money which will fairly and reasonably compensate them [for] the damages to the land occasioned by $uch use”. No further instruction was requested. The absence of an instruction with a more specific measure of damages is raised for the first time on appeal. The only evidence introduced on damages concerned the before and after value of the lands, so there was no other yardstick for the jury to use.

Affirmed as to actual damages; reversed and dismissed as to punitive damages.

ByRD, J., dissents in part. He would affirm as to punitive damages.


author: JOHN A. Fogleman, Justice.

text:
    Richard W. RICKETT JR v. Dr. Harry HAYES
    73-221
    511 S.W. 2d 187
    Opinion delivered July 8, 1974

      Tom Gentry, for appellant.

      Smith, Williams, Friday, Eldredge & Clark, by: W. A. Eldredge, Jr. and J. D. Watson, for appellee.
   JOHN A. Fogleman, Justice.

We remanded this medical malpractice case for a new trial. Rickett v. Hayes, 251 Ark. 395, 473 S.W. 2d 446. On this appeal from a second judgment based upon a jury verdict adverse to the appellant, a former patient of the appellee, appellant asserts the following points for reversal:

I. The trial court committed prejudicial error in failing to disqualify a juror for prejudice and bias.
II. In criticizing the appellant’s expert witness, Dr. Walker, the trial court invaded the province of the jury.
III. AMI 1501, as modified and given by the trial court,’ was prejudicially erroneous.

These points may be treated without elaborate preliminary statements of the factual background. We will take them up in order and, under the heading pertaining to each point, state only the background essential to the treatment of that point, as disclosed by the abstracts in the case. At the outset, we state that we find no reversible error.

I

Twenty-four prospective jurors were chosen by the clerk for the regular jury panel. After preliminary questions by the circuit judge were answered by them, the respective attorneys conducted voir dire examinations. A Mrs. Dickerson disclosed that she was then under the care of a doctor and that she was the sister-in-law of a doctor. There was, to say the least, some ambiguity in her responses to questions pertaining to her attitude about medical malpractice cases, and it would not be unreasonable to say that she equivocated about the matter. She first stated that, if the evidence showed that there had been negligence, she could go along with it. When appellant’s attorney asked her if she could be sure, she said that she didn’t know. She then gave a positive affirmative answer when the court asked her if she would make a finding that appellee was guilty of negligence if the evidence warranted it under the instructions of the court. When the court inquired as to any reluctance to do so on her part, she stated that she would like to be disqualified, or that she would disqualify herself. She disavowed any preconceived notion about malpractice that would prevent her from giving the parties a fair, impartial determination of the facts. When appellant’s attorney again pursued the matter of her desire to disqualify, she said that, maybe there was some doubt in her mind, but she didn’t think there would be any doubt in giving “him” a fair trial. When appellant’s attorney asked, “Well, you’re not quite sure, are you?” she responded, “Well, maybe not.” When asked by the judge to explain, Mrs. Dickerson said that she felt one way when questions were put by the attorney, but felt confident when the questions were put in the way they were by the judge. She was emphatic, upon further questioning by the judge in saying that she would be fair and impartial, that she could give “him” a fair judgment and would find for Mr. Rickett just as quickly as she would for Dr. Hayes should the evidence warrant it. The judge found her qualified over appellant’s objection and challenge for cause. Thereafter, appellant’s attorney struck Mrs. Dickerson’s name in exercising his three peremptory challenges. In arguing appellant’s motion for new trial, the attorney stated that she was one of those he was forced to strike because he couldn’t let someone sit on the jury who answered as she did.

We need not decide whether the circuit judge abused his discretion in this instance. The questioned juror did not sit on the jury. It has been a long-standing rule in this state that a party is not entitled to claim prejudice in such circumstances, unless it is shown that he was forced to accept some objectionable or disqualified juror without the privilege of exercising a peremptory challenge. Arkansas State Highway Commission v. Dalrymple, 252 Ark. 771, 480 S.W. 2d 955. No juror who was challenged for cause served on the jury and it is not shown that appellant would have otherwise struck the name of some juror other than the three actually stricken.

II

Dr. Robert V. Walker, an oral surgeon of Dallas, Texas, who had performed surgery on appellant, after the surgery and treatment by Dr. Hayes, was called as an expert witness by appellant. During cross-examination of this witness, appellant’s attorney registered an objection, asserting that the cross-examining attorney was badgering the witness. The trial judge stated that the attorney for appellee was entitled to considerable latitude on cross-examination, expressed his desire to keep the trial on an impartial plane and stated the necessity for cooperation by all attorneys in the case in order that his objective be accomplished. When appellant’s attorney continued to object saying that appellee’s attorney was badgering the witness by not permitting him to fully answer questions, the judge interrupted, saying:

The witness is very reluctant or he offers more testimony than is called for, he volunteers information and I’ve asked the witness to cooperate and I’ve also asked the attorneys. Now, I’m doing the very best I can to require both parties to conduct this trial in a professional-like manner. Now, if you want to proceed, we will. If you want to take a recess, we’ll take it and come back and try some more.

These are the remarks of which appellant now complains. His attorney did request a recess, during which he stated his objections in camera, directing them toward the characterization of the witness as reluctant and the statement that the witness volunteered more information than he was asked for by the cross-examiner’s questions. Without any further ruling having been made, appellant’s attorney stated that he couldn’t afford to ask for a mistrial. After the judge stated he had on two or three previous occasions asked the witness to answer the questions, had asked the cross-examiner to proceed in an orderly manner, and had intended his remarks to be addressed to both parties equally, the cross-examination was resumed. No admonition was then given the jury and none was requested. The cross-examination proceeded to its conclusion on the same day but before the commencement of redirect examination on the following day the trial judge addressed an admonition to the jury. He said:

So I would ask you to be patient with the attorneys and the Court and if the objections seem to you to be frivolous or unnecessary, please give us the benefit of the doubt and realize that the attorneys are doing their best to do what the law says they should do and the Court is doing its best to follow the law in making the decisions. ...sometimes in the heat of trial, it may appear that we have lost sight of these things and that is not necessarily true. The attorneys, I am confident, have complete respect for the Court and I, likewise, have complete confidence in the attorneys. Do not hold anything against the litigants, one way or the other, if things seem sometimes to get a little uptight. You may proceed.

In instructing the jury, Judge Digby appropriately gave AMI, Civil, 101 (f), which reads:

I have not intended by anything I have said or done, or by any questions that I may have asked, to intimate or suggest what you should find to be the facts, or that I believe or disbelieve any witness who testified. If anything I have done or said has seemed to so indicate, you will disregard it.

As has often been said, it is simply impossible for an appellate court or its individual members to capture from a cold written record the atmosphere prevailing in the courtroom during a fiercely contested trial, as this obviously was. It is the peculiar role of the trial judge to supervise and expedite the trial of a lawsuit and to avoid having it degenerate into an emotionally charged verbal battle between attorneys or between witnesses on the one hand and attorneys on the other. Of course, in doing so, it is his duty to avoid any expression or intimation of his feelings about the credibility of any witness or his opinion on any question of fact which might influence the jury.

Appellee’s counsel have, in their brief, referred us to portions of the record of the cross-examination of Dr. Walker which might well be taken as indicative of a reluctance on the part of the witness to give direct answers and of a desire to volunteer information well beyond the scope of questions directed to him. To say the least, it does appear that the judge had found it necessary to admonish this witness on more than one occasion during his cross-examination to answer questions directly and concisely. Certainly there are occasions when a trial judge may and should rebuke, reprove or admonish a witness about his conduct and manner of answering questions. Appellee’s attorneys have also cited cases from other jurisdictions where remarks less moderate than those made by the trial judge here have been held to be not prejudicial or reversible error. See Kendrick v. Healy, 27 Wyo. 123, 192 P 601 (1920); Ganz v. Metropolitan St. Ry. Co., 220 S.W. 490 (Mo. 1920); Uram v. The American Steel & Wire Company of New Jersey, 379 Pa. 375, 108 A 2d 912 (1954); Aetna Life Insurance Company v. Kramer, 65 Okla. 165, 165 P 179 (1917); But we need not determine whether the judge’s remarks in this instance were necessary to the proper conduct of the trial, or whether they were indicative of the judge’s feeling about credibility of the witness. As above pointed out, neither a motion for declaration of a mistrial nor a request for an admonitory instruction was made, even though appellant now argues that it was the duty of the trial court to instruct the jury that his remarks should not be considered as reflecting upon the credibility of the witness. Appellant seems to feel that his objection was sufficient to require some action that the court did not take and was not asked to take. A mere objection to the comment by the presiding judge is not sufficient basis for reversal, evdn if we took it to be erroneous or prejudicial. Arkansas Valley Industries v. Giles, 241 Ark. 991, 411 S.W. 2d 288; Lin Manufacturing Company v. Courson, 246 Ark. 5, 436 S.W. 2d 472; Jones v. Bank of Horatio, 102 Ark. 302, 143 S.W. 1060. The declaration of a mistrial is a drastic remedy to which resort should not be had unless justice cannot be served by a continuation of the trial or unless prejudice may not be avoided or removed by any other step or means. Back v. Duncan, 246 Ark. 494, 438 S.W. 2d 690; First National Bank of Springdale v. Hobbs, 248 Ark. 76, 450 S.W. 2d 298; Donahue v. Cowdrey, 246 Ark. 1028, 440 S.W. 2d 773;,Johnson v. State, 254 Ark. 293, 493 S.W. 2d 115.

There are many instances where an admonitory instruction will have the desired effect. See, e.g., First National Bank of Springdale v. Hobbs, supra. If indeed, the trial judge’s remarks were erroneous or prejudicial, we have no doubt that he would have instructed the jury to disregard them or not to consider them as indicative of his opinion on any question of fact or to have any bearing on the credibility of the witness. Our view is supported by the fact that the judge did, on his own motion, give the admonitions recited above. This is about all he could have been expected to do without a request for more direct action. It is well known that, for tactical reasons, trial counsel sometimes deliberately avoid requests for such instructions for fear that they will overemphasize the effect of improper remarks and thereby result in prejudice to the client which might not otherwise exist. For this reason, our established rule that more than a mere objection is necessary to our finding reversible error in such a case is a proper one and is applicable here. Were the rule otherwise, one could withhold any request for a mistrial or an admonitory instruction, speculate on the outcome of the trial, and then complain from the perspective of hindsight that the court’s failure to take appropriate action on its own motion had deprived him of a fair trial. This possibility should be eliminated. In viewing this matter, we feel that the failure of appellant to include this ground in the motion for a new trial filed by him, when considered along with the admonitions given by the trial judge and the absence of any request by appellant for any other action during the trial, is not without significance.

Ill

Appellant argues here that the circuit judge prejudically modified AMI 1501 by stating the test of skill and learning required to be that ordinarily possessed and used by members of appellee’s profession in good standing engaged in the “same type of practice or specialty.” He says that the use of the disjunctive terminology was erroneous because appellee was engaged in the practice of plastic surgery as a specialty but that oral surgeons, as well as plastic surgeons, perform the type of operation done on Rickett, even though they practice different specialties. We feel that appellant correctly states that the record indicates that the practice of the two types of surgery overlaps in this instance but that the standards of the two specialties may differ. Appellant says that because of the wording of the instruction, the jury was permitted to use alternative standards in reaching their decision. Even though the instructon, as it appeared in AMI, Civil (1965) was drafted so that either the words “type of practice” or “specialty” could be used, the use of both in the alternative is not reversible error in the circumstances of this case.

The word specialty as used in the instruction simply means a particular branch or field of the medical profession. In the sense it is used it has been defined as:

That in which one specializes or has special knowledge; a branch of knowledge, art, science, or business to which one specially devotes himself. Webster's New International Dictionary, 2d Ed.
A branch of knowledge, science, art, or business to which one devotes oneself whether as an avocation or a profession and usually to the partial or total exclusion of related matters. Webster’s Third International Dictionary, Unabridged.
A special subject to study, line of work, area of interest, or the like. Random House Dictionary of the English Language, The Unabridged Edition (1966).
An aspect of medicine to which physicians confine their practice after certification of special knowledge by examination. The American Heritage Dictionary of the English Language (1969).

The use of both alternatives probably resulted from the desire of appellant to use only “type of practice,” while appellee wanted to use the word “specialty” to the exclusion of “type of practice.” It does not seem to us the appellant could have been prejudiced by the court’s action. It is clearly established that the treatment of the patient is to be tested by the standards of the doctor’s own school. See Bockman v. Butler, 226 Ark. 159, 288 S.W. 2d 597. Certainly, the same rule must be applied in the Casé of specialties for the same reasons. One educated and trained in a particular field should not be expected or required to meet the standards or follow the normal procedures prescribed for another field and his treatment should not be measured by the criteria of a field other than his own. See Prosser, Law of Torts, 4th Ed. 163, Ch. 5, § 32; Restatement of the Law, Torts 2d 75, Ch. 15, § 299 A, Coleman v. Wilson, 85 N.J.L. 203, 88 A 1059 (1913). Appellee is not an oral surgeon but a plastic surgeon who undertook the repair and treatment of appellant’s broken jaw, an operation admittedly within his field.

Apparently in recognition of the rule that treatment by a physician is to be tested by the standards of his specialty, appellant alleged in his complaint that appellee did not possess or apply with reasonable care the degree of skill and learning ordinarily possessed and used by members of his profession in good standing engaged in the specialty under which this type of medical practice falls. The difficulty which confronted the trial judge in framing this instruction arose from the opposing theories of the parties. Appellant took the position, supported by his expert witness, that the surgery and treatment of his fractured mandible fell not only within the field of practice of plastic surgeons but within that of oral surgeons and that the standards of both specialties in this overlapping area were and should be the same. In this he was supported by his expert witnesses, all of whom were oral surgeons, although some of them also qualified as plastic surgeons. On the other hand appellee and his witnesses took the position that there were differences.

It appears that oral surgery is a specialty in the field of dentistry and plastic surgery, in the field of medicine. There was testimony that there was a great deal of feeling between oral and plastic surgeons and some animosity on the part of oral surgeons toward the plastic surgery field. It was also said that oral surgeons could not have patients admitted to a hospital without the collaboration of a medical doctor while plastic surgeons, as medical doctors, could. Among the principal differences of opinion between the medical experts apparent from the record are the priopriety of procedures with reference to removal of teeth in the line of the fracture and the timing of placement of arch bars. Oral surgeons took the position that the teeth should almost always be removed. On the other hand, plastic surgeons seem to feel that sound teeth should not be removed but should be utilized in the repair process to obtain better alignment unless they actually interfere with the setting of the bone. While oral surgeons say that arch bars should be applied before the reduction of the fracture by setting the jaw into its proper position by wires, a plastic surgeon said that in the field of plastic surgery this is optional and dependent upon the judgment of the particular practitioner in the circumstances. Thus, whether the criteria for testing the skill and learning applied by Dr. Hayes were governed by the “type of practice”, i.e., the repair of a fractured jaw, or by Dr. Hayes’ specialty, i.e., plastic surgery, became one of the questions of fact to be determined by the jury. Restatement of the Law, Torts 2d 75 Ch. 12 § 299 A; Hart v. Steele, 416 S.W. 2d 927 (Mo. 1967). See also Buckner v. Wheeldon, 225 N.C. 62, 33 S.E. 2d 480 (1945). The instruction given by the court clearly left this question to the jury. Neither of the parties offered any other instruction which would have done so. To have chosen “type of practice” to the exclusion of “specialty” would not have made it clear to the jurors that they might apply the teachings of plastic surgeons and not consider those in the field of oral surgery if they found as a matter of fact that the former should control. It has been appropriately said that the law does not permit a physician to be left at the mercy of his competitors, whether they agree with him or not, when there is a heated controversy between two medical schools of thought and the physician has followed a recognized method of treatment he thinks best, even though expert witnesses may think some other method would have been preferable. Sims v. Callahan, 269 Ala. 216, 112 S. 2d 776 (1959). We cannot find any error on this score and certainly none to the prejudice of appellant.

Appellant also objects to the AMI instruction in that it requires the physician or surgeon to use “his best judgment” in applying with reasonable care the requisite degree of skill and learning and suggests that the practitioner should be required to possess and apply with reasonable care the skill, learning and judgment ordinarily possessed and applied by members of his profession in good standing engaged in the same type of practice. The instruction as given correctly states the law in Arkánsas on this point, at least since the decision in Dunmam v. Raney, 118 Ark. 337, 176 S.W. 339. See Gray v. McDermott, 188 Ark. 1, 64 S.W. 2d 94; Walls v. Boyett, 216 Ark. 541, 226 S.W. 2d 552. This seems to be the prevailing view in the United States, at least where there is room for a difference of opinion. See 61 Am. Jur. 2d 230, 251, 176. Physicians, Surgeons, etc. §§ 110, 124, 147; 70 C.J.S. 947 - 949, 953, 963, §§ 41, 44, 48; Prosser, Law of Torts, 4th Ed., 162, Chap. 5 § 32; Loudon v. Scott, 58 Mont. 645, 194. P. 488, 12 A.L.R. 1487 (1920); Buckner v. Wheeldon, supra; Sims v. Callahan, supra; Christie v. Callahan, 75 U.S. Ap. 133; 124 F. 2d 825 (D.C. Cir., 1941); Ball v. Mallinkrodt Chemical Works, 53 Tenn. Ap. 218, 381 S.W. 2d 563, 19 A.L.R. 3d 813 (1964); Sim v. Weeks, 7 Cal. Ap. 2d 28, 45 P. 2d 350 (1935); hearing denied by Supreme Court July 12, 1935; Pike v. Honsinger, 155 N.Y. 201, 49 N.E. 760 (1898); Feeney v. Spalding, 89 Me. 111, 35 A 1027 (1896).

As the Missouri Supreme Court has put it “as long as there is room for an honest difference of opinion among com-patent physicians, a physician who uses his own best judgment cannot be convicted of negligence, even though it may afterward develop that he was mistaken.” See Haase v. Garfinkel, 418 S.W. 2d 108 (Mo. 1967). Where a physician or surgeon, in the exercise of his best judgment, follows an alternative course of treatment sanctioned and approved by competent medical authority, he cannot be held liable because he failed to pursue another and different course. Wooten v. Curry, 50 Tenn. Ap. 549, 362 S.W. 2d 820, 93 A.L.R. 2d 307 (1961), cert. den. Nov. 9, 1962; Jackson v. Burton, 226 Ala. 483, 147 S. 414 (1933); McClarin v. Grenzfelder, 147 Mo. Ap. 478, 126 S.W. 817 (1910); Scarano v. Schnoor, 158 Cal. App. 2d 612, 323 P. 2 178, 68 A.L.R. 2d 416 (1958).

It must be kept in mind that the instruction given did not excuse the surgeon if he used his own best judgment unless he also applied the required skill and learning with reasonable care. In other words, one may recover from a physician or surgeon under A.M.I. Civil 1501, on the basis of any one of three alternatives:

(1) if he did not have that degree of skill and learning required;
(2) if he did not apply that skill and learning with reasonable care; or
(3) if he did not use his best judgment.

Certainly we must recognize that physicians and surgeons must make judgment decisions which are not to be tested from the perspective of hindsight only. Scarano v. Schnoor, supra.

Appellant also argues here that the principal vice in the instruction is in its restricting the jury to the consideration of expert testimony in deciding the question of liability. In our previous consideration of this case, we said that the testimony clearly demonstrated that appellee’s duty in the premises was not a matter of common knowledge. Rickett v. Hayes, 251 Ark. 395, 473 S.W. 2d 466. We also note that, on the earlier appeal, in asserting prejudice through the circuit judge’s limiting discovery interrogation of the plastic surgeon used by appellee, appellant first argued that the question of negligence was so highly technical that expert testimony was mandatory. In his reply brief appellant flatly stated that the present action fell under the classification that required the testimony of expert witnesses. Even if we should say that the evidence differs from that in the previous trial, we note that the appellant made no specific objection to the instruction on this ground in the trial court. He is not entitled to raise this question on appeal.

The judgment is affirmed.

JONES, J., would again reverse and remand.

      Arch bars were said to be devices applied to the teeth so the upper jaw can be fixed to prevent movement of the jaw and thus stabilize the fractured bone.