text:
    Jones v. Dierks Forests, Inc.
    5-3330
    383 S. W. 2d 110
    Opinion delivered October 26, 1964.

      James II. Pilhinton, for appellant.

      Watson, Ess, Marshall & Eng gas, Kansas City, Mo., George E. Steel, Elbert Cook, for appellee.
   Paul Ward, Associate Justice.

Appellant very briefly, conveniently and appropriately states the prime issue in this case:

“Appellee holds ‘paper’ title to the 33.12 acres in dispute. Appellant claims the land by adverse possession contending that he has been in possession of, claimed and exercised ownership of said property against the world, and especially Appellee and its predecessor in interest, Dierks Lumber and Coal Co., Inc., for more-than seven years prior to filing of suit. The issue involved is whether Appellant’s possession has been of such a nature, and for the required time, as to ripen into title by adverse possession.”

Appellant, Norman Jones, filed a complaint in chancery stating in substance: he is the owner by adverse possession of four separate tracts of land, each described by metes and bounds as shown on a plat, totaling 33.12 acres; appellee, Dierks Forests, Inc., has some claim to the land — the nature of which is unknown — and is trespassing on said land; appellant (and those under whom he claims) has been in adverse possession of the lands for more than 7 years; that an “ancient” fence has been the agreed boundary line between the parties for many years. Appellee’s answer was a general denial. In addition, appellee pleaded a deed to the lands, adverse possession, payment of taxes and also alleged the lands were unimproved. The chancellor held against appellant, and this appeal follows.

One. It is first insisted that the decree should be reversed because the chancellor relied solely on “his own personal inspection of the property”. For reasons presently set forth, we are unable to agree with appellant. While it is true the chancellor did view the land, it is not shown that he relied solely on what he saw; and, also, the record contains ample testimony upon which he may have relied. In some instances and under some circumstances it is permissible for the trial judge to make a personal inspection. The rule is concisely stated in 89 C.J.S. Trial % 588b as follows:

“A view or inspection is permissible for the purpose of enabling the court to understand the evidence and properly to apply it, but the authorities are in conflict as to whether or not the facts ascertained on the view can be considered as evidence or have the effect of supplying evidence. ’ ’,

In the case of Mitcham v. Temple, 215 Ark. 850, 223 S. W. 2d 817, we said:

“The Chancellor personally inspected the property, took note of the condition of hedge and fence, and used this information (presumptively procured by consent of the parties) as aid to a better understanding of what the witnesses had testified to. This, of course, was permissible when so limited.”

In addition to the above, the record shows that appellant consented to and accompanied the chancellor on the inspection. We have held that a party cannot complain of error which he himself has invited. See Missouri Pac. R. Co. v. Gilbert, 206 Ark. 683, 178 S. W. 2d 73.

Tiuo. Appellant next contends the decree should be reversed “because chancellor held that plaintiff (appellant) must prove his adverse possession extended ‘a considerable period’ beyond seven years”. From our review of the record we do not understand the chancellor imposed any such burden on appellant and appellant’s brief does not make it clear he did so. On the other hand, the court, in its Memorandum Opinion, stated that “Adverse possession may not ripen into ownership unless possession for seven-years has been actual, open, etc. ...”

Three. Finally, it is ably urged by appellant that the court’s finding is against the weight of the evidence. It is admitted by appellant he has the burden of proving adverse possession. We conclude the trial court’s decision was not against the weight or preponderance of the evidence. It is not disputed that appellee had record title to the land in controversy, or that it has paid taxes thereon for more than twenty years. Appellant’s principal reliance is on the fact that he had the lands enclosed (with other lands owned by him) by a fence for more than seven years, during which time he grazed cattle on the lands. The record, however, shows conclusively that the said fence (during a great portion of the time) had such large gaps in it that it would not contain cattle. Such being the case, the chancellor was justified in finding appellant’s possession was insufficient to “fly the flag” as required by our decisions in Dowdle v. Wheeler, 76 Ark. 529, 89 S. W. 1002, and Dierks Lumber & Coal Co. v. Carroll, 223 Ark. 424, 266 S. W. 2d 294.

Affirmed.


source: Caselaw Access Project

author: Sam Robinson, Associate Justice. Paul Ward, Associate Justice

license: Public Domain

text:
    Sherman, Adm’x v. Mo. Pac. R.R. Co.
    5-3307
    383 S. W. 2d 881
    Opinion delivered October 26, 1964.
    [Rehearing- denied December 7, 1964.]

      F. C. Crow, for appellant.

      William J. Smith and William E. Sutton, for appellee.
   Sam Robinson, Associate Justice.

There was a collision at a grade crossing between a railroad train and a pickup truck. Two men, occupants of the truck, one the driver, the other a guest or passenger, were killed. The administratrix of their estates filed suits joining the railroad company and the engineer, C. I). Haver, as defendants. The cases were consolidated and tried. After both sides had rested, the trial court directed verdicts for the defendants. The administratrix has appealed, and the issue is whether the court erred in directing the verdicts.

About 7:30 a.m. on the morning of March 1, 1963, Ernest Albert McDade and Fred Joe McDade, brothers, were in a pickup truck travelling oast on a blacktop highway on the outskirts of Camden. A Missouri Pacific freight train consisting of four diesel units, 40 empty boxcars, and 26 cars loaded with ordinary freight, was travelling north on the main line of the Missouri Pacific tracks. The train, after having stopped in Camden, had traveled about one mile when the collision occurred. Both the train and the truck were going 20-25 miles per hour. Ernest Albert McDade, driver of the truck, made no effort to stop or avoid the collision. It is obvious that he never saw the train, although for the last 150 feet the truck traveled before reaching the railroad track there was nothing to obstruct his view of the train. It was broad daylight.

The engineer, fireman and brakeman on the train were in the cab of the lead engine, located at the front thereof. They all saw the truck just as soon as it could be seen, at a time when both the train and the truck were about 150 feet from the crossing. The trainmen testified that when they first saw the truck the train whistle had not been blown because of a city ordinance prohibiting the blowing of a train whistle in Camden, except in an emergency; appellant makes no point regarding the validity of the ordinance.

The trainmen testified that the bell, which is operated electrically, was ringing; that it had been turned on when the train pulled out of Camden and had not been turned off. The engineer testified that notwithstanding the city ordinance it was his practice to blow the whistle or horn when he saw anyone approaching a crossing that was also being approached by the train; that he assumed the driver of the truck would stop for the train. He had the right to make this assumption. Crossett Lumber Co. v. Cater, 201 Ark. 432, 144 S. W. 2d 1074. There the court said: “The operatives of trains have the right to assume that a traveler or a pedestrian approaching a railroad track will act in response to the dictates of ordinary prudence and the instinct of self-preservation, and will, in fact, stop before placing himself in peril, and the duty of the railroad employees to take precautions begins only when it becomes apparent that the traveler at a crossing will not do so.”

The engineer further testified that when the train got to within 75-80 feet of the crossing it appeared that the truck was not going to stop; that he, therefore, blew the distress signal and applied the brakes, but that the brakes did not slow the train in the distance of 75 feet to the crossing; that the train struck the truck broadside at the crossing and carried it on the front of the engine 4/10 of a mile, the distance it took the train to stop. He further testified that he stopped the train just as soon as it could be stopped after he applied the brakes, 75-80 feet before reaching the crossing.

It is clear from the evidence that the driver of the truck was negligent in not looking to see if a train was approaching the crossing. The train and truck reached the crossing at approximately the same moment. If the truck driver had only looked to his right he could not have failed to see an object as big as a railroad engine. The train was' bound to have been making considerable noise. The court judicially knows this to be a fact. Kansas City Southern Ry. v. Baker, 233 Ark. 610, 346 S. W. 2d 215; Missouri Pacific R. Co. v. Doyle, 203 Ark. 1111, 160 S. W. 2d 856.

But even though it is shown conclusively that the driver of the truck was negligent, there is still the question of whether the court was correct in directing verdicts in favor of the defendants. Notwithstanding the fact that the truck driver was negligent, he is entitled to recover if his negligence was of less degree than the negligence of the defendants. Ark. Stat. Ann. § 73-1002 (Supp. 1963.)

The question we have to decide is whether it can be said, as a matter of law, that the truck driver’s negligence is greater than that of the trainmen when the evidence is viewed as we must view it, in the light most favorable to the ones against whom the verdicts were directed. Powell v. Jonesboro, L. C. & E. R. Co., 166 Ark. 252, 266 S. W. 78.

Appellees introduced weighty evidence that not only was the truck driver negligent, but that there was no negligence on the part of the defendants. If, however, there is any substantial evidence to support a verdict for the party against whom a directed verdict is sought, it is the duty of the trial court to let the case go to the jury, and this is true although later on it might be within the prerogative of the trial court to set the verdict aside as being contrary to the preponderance of the evidence. Little Rock & Ft. Smith Ry. Co. v. Henson, 39 Ark. 413; Jones v. Lewis, 89 Ark. 368, 117 S. W. 561. Mr. Justice Hart said in St. Louis S. W. Ry. Co. v. Britton, 107 Ark. 158, 154 S. W. 215: ‘ ‘ Under the provision of the Constitution that “judges shall not charge juries with regard to matters of fact but shall declare the law,’ it has been repeatedly held that the circuit court has no power to determine the facts of the case and direct a verdict for either party, even though if returned for the opposite party it would set it aside as against the weight of the evidence. ’ ’

We have cases with facts similar to the facts in the case at bar where it has been held that it was the duty of the trial court to direct a verdict’for the defendant, such as Missouri Pacific Rd. Co. v. Davis, 197 Ark. 830, 125 S. W. 2d 785; Missouri Pac. Rd. Co., Thompson, Trustee v. King, 200 Ark. 1066, 143 S. W. 2d 55; Lloyd Adm’x v. St. Louis S. W. Ry. Co., 207 Ark. 154, 179 S. W. 2d 651.

On the other hand, we have cases in point where it was held that the trial court properly submitted the issues to the jury. Powell v. Jonesboro, L. G. & E. Ry. Co., 166 Ark. 252, 266 S. W. 78; St. Louis-San Francisco Ry. Co. v. Horn, 168 Ark. 191, 269 S. W. 576; Missouri Pac. Rd. Co. v. Rogers, 206 Ark. 1052, 178 S. W. 2d 667; Missouri Pac. Rd. Co., Thompson, Trustee v. Magness, 206 Ark. 1081, 178 S. W. 2d 493; Missouri Pac. R. Co. v. Walden, 207 Ark. 437, 181 S. W. 2d 24. See also Phillips v. Kurn, 145 F. 2d 908.

Some of our former decisions regarding degree of negligence appear to be in irreconcilable conflict, but upon close examination it will be seen that there is some distinction in the facts on which the decisions are rendered. The sum and substance of our holding is, and has been, that each case must stand on its own facts. We said in St. Louis-San Francisco Ry. Co. v. Horn, supra,: “Each case must, of course, be considered upon its own peculiar facts, and the legal sufficiency of the evidence on the question of degree of negligence must be tested, the same as in other cases, by the state of the testimony presented in a given case.”

We believe the evidence in the case at bar was sufficient to take the case to the jury. The witness, Mrs. Freeman, testified that she did not hear the whistle or bell, although she was in a good position to have heard either if it had been sounded, and there is an inference from her testimony that the light maintained at the crossing by the railroad company to warn travelers on the highway of approaching trains was not burning. Moreover, the witness Charles Stinett, who was nearby, did not hear the bell, and there is testimony of the fireman that although the train is equipped in a manner that he could apply the emergency brakes, he did not do so. Our attention has not been called to any testimony that the engineer applied the emergency brakes; if there is evidence in the record to that effect we have failed to discover it. True, the engineer stated that he applied the brakes, but it is not clear that he applied the emergency brakes, and the fact remains that although the train was going at a speed of only about 20-25 miles per hour it took it 4/10 of a mile to stop. The engineer testified that the train could not be stopped any sooner, but it must be remembered that he is a party to the litigation.

The witness Delmer Paul Parrish, a police officer, testified that immediately following the wreck he heard the engineer state that if he had applied his brakes all at once he would have derailed the train, and John W. Daniell, another police officer of the City of Camden, testified that he heard the engineer state that he was afraid to apply his emergency equipment because he would scorch the track and derail the train. If the speed of the train had been slowed just a little the truck may have cleared the tracks without being struck.

Reversed and remanded.

Ward, J., dissents.

Paul Ward, Associate Justice

(dissenting). In my opinion the majority has wholly failed to recognize the real issue involved on this appeal.

The issue is not whether there is substantial evidence to show negligence on the part of the railroad company. The real issue is whether there is substantial evidence to show the driver’s negligence was of a less degree than that of the railroad company. See: Missouri Pacific Railroad Company v. Davis, 197 Ark. 830, 125 S. W. 2d 785; and Missouri Pacific Railroad Company v. Price, 199 Ark. 346, 133 S. W. 2d 645. In the Davis case there was (as here) evidence of negligence on the part of the driver and the railway company. Appellees were severely injured at a railway crossing. When they were within 100 feet of the crossing they could have seen the train as it approached. They testified that the whistle was not blowing and the bell did not ring until just before the collision, and they were corroborated by two other people. This was disputed by the engineer who stated he blew the whistle and rang the bell, and that he applied the emergency brake which caused one wheel of the engine to run off the track. This Court in summing up the testimony said “it must be assumed that no signals were given by appellant.” The case was allowed to go to the jury which rendered a judgment in favor of appellees. On appeal this Court reversed the lower court and dismissed appellees’ causes of action, using this language:

“We have, therefore, a case in which it appears that the jury found that there was negligence on the part of the railroad company in the failure to give warning of the approach of the train to the crossing; but it appears to be utterly unreasonable to say that this negligence was comparable to that of the plaintiff, or that the jury was warranted in finding that the plaintiff’s negligence was of less degree than that of the railroad company. * * * *
“Under these circumstances, it is not merely to split hairs, it is to trifle with the testimony, to say that the jury was warranted in finding that the negligence of the plaintiffs was of less degree than that of the railroad company. In our opinion, the trial court should have told the jury, as a matter of law, that the negligence of the plaintiffs was not of less degree than that of the railroad company.”

In the Price case the facts and the issue were similar to -those in the Davis case. Price was seriously injured as he attempted to cross in front of a train at night— he testified that he looked, and listened until he was close to the crossing, but he heard no signals and saw no head light. His testimony was corroborated by other witnesses. Again, there was testimony of negligence on the part of both the driver and the railroad company. The matter was submitted to a jury which returned a verdict in favor of appellee for $20,000. This Court, in commenting on the testimony, said:

“. . . we must assume that the bell was not being-rung ; that the whistle was not blown; that the flash light system (through some mysterious caprice of mechanics) had suspended operation; that the engine headlight was dim; that appellee slowed to a speed of 15 or 20 miles an hour as he crossed the tracks; that he looked and listened, and did not see a train nor hear a signal, and that, haying thus reassured himself, he proceeded upon the track at the very instant a passenger engine (which the undisputed evidence shows was not traveling more than 20 miles per hour) engaged the crossing.”

This Court reversed the judgment of the trial court and dismissed appellee’s cause of action using the language set out below:

“To say in the instant case that appellee’s negligence was not, as a matter of law, equal to or greater than that of appellants would be to disregard human experiences and known factors of physical operations, and this we cannot do. Of course, comparative negligence is a matter of jury determination, but there must be substantial evidence to sustain a verdict that a defendant’s negligence was of a higher degree than that of the plaintiff, and such evidence is lacking in the case before us.” (Emphasis added.)

The majority opinion does not even recognize much less pass on the issue so clearly defined in the two cases just discussed. Also, as previously pointed out, the issue is one for us and not the jury to pass on in the first instance.

I would therefore affirm the judgment of the trial court.


author: Jim Johnson, Associate Justice.

text:
    Ford Motor Credit Co. v. Catalani.
    5-3355
    383 S. W. 2d 99
    Opinion delivered October 26, 1964.

      Griffin Smith, for appellant.

      William H. Drew, for appellee.
   Jim Johnson, Associate Justice.

This is an action to cancel a conditional sales contract for usury.

On April 3, 1963, appellee Pete Catalani purchased a Ford automobile from appellant Hollis Motor Company at McGehee and executed a conditional sales contract to finance the unpaid balance of the purchase price. Appellant Ford Motor Credit Company, holder of the contract, has assumed all responsibility for the calculations of interest upon which this suit is based and has in fact released Hollis Motor Company from any liability. On May 2, 1963, appellee filed suit against appellants in Chicot Chancery Court, alleging that the conditional sales contract interest exceeds ten percent per annum and that the contract is therefore void, and prays cancellation. Appellants answered that the contract is not usurious because any excess interest was the result of erroneous mathematical calculation without intent to charge a usurious rate, and prays that the excess be remitted and the complaint dismissed. On September 12, 1963, the parties entered into a stipulation that provided (omitting details): (1) appellee purchased a certain car, receiving credit for a trade-in, leaving a certain balance due; (2) the balance due was financed by appellant Ford Motor Credit Company; (3) itemized insurance and finance charges; (4) described the payment schedule; (5) detailed the items comprising the principal sum financed; (6) itemized the credit life insurance charge; and (7) stipulated finally that “the payment schedule on the contract sued on herein, when computed, produces an interest rate in excess of ten percent per annum.” At trial on September 12, 1963, testimony of appellee and the manager of appellant Ford Motor Credit Company’s office was taken. By decree of December 23, 1963, the court held that the contract was usurious, can-celled the contract and quieted title to the automobile in appellee.

On appeal appellant Ford Motor Credit Company contends that an isolated failure to properly compute the amount of interest on an installment contract is not usury, and that the only issue is “whether this admitted error was deliberate.”

Appellee testified about purchasing the automobile, signing a conditional sales contract at Eudora, being contacted by Reed, manager of the Ford Motor Credit Company office in Jackson, Mississippi, who advised appellee that the first contract was in error and had appellee sign a second contract which reduced the number of monthly payments from 24 to 23 and increased the final balloon payment somewhat. Appellee testified that Reed told him that the legal interest rate in Arkansas is 10.5% and that he (appellee) did not learn that the maximum legal interest rate in Arkansas is 10% until he talked to his lawyer a few days later. Reed testified about finding an error in appellee’s contract, and having appellee sign the second one, which was the one sued on. (It appears that the first contract was also usurious.) Reed denied telling appellee that the Arkansas lawful interest rate is 10.5%. Reed’s testimony reveals that when Hollis Motor Company called him and asked him to figure the payments under the proposed contract, his secretary figured it according to Ford Motor Credit Company’s formula. Reed also figured the payments, reached a different and higher result and arbitrarily assumed that his figures, rather than those of his secretary, where accurate and used them in preparing the contract. The secretary’s work sheet Avas introduced in evidence along with Reed’s, in an attempt to shoAv Reed’s mathematical error which occasioned the usury. It is demonstrated by the secretary’s Avork sheet that the company's formula is accurate. Reed was unsuccessful in attempting to convince the trial court that his error was a simple mathematical error in calculation. From the detailed analysis of the figures involved in the chancellor’s findings (24 pages), as well as Reed’s lengthy testimony, it seems apparent that Reed’s error was in using the wrong interest rate, one which may be permissible in Mississippi without forfeiture of the principal but not in Arkansas [Miss. Code Ann. § 36 (1942)]. This is not the type of error in mathematic calculations which the courts of Arkansas will forgive and forget by allowing the lender to repay the overage. To the contrary — this court has staunchly resisted all attempts to erode the constitutional interdiction of contracts bearing more than ten percent interest. In Brooks v. Burgess, 228 Ark. 150, 306 S. W. 2d 104, the usury was patent and when the debtor objected, foreclosure proceedings were brought for the amount of the principal only, and later amended to ask for interest in accordance with the terms of the mortgage. The holding in the Brooks case is particularly apt here:

“That the suit was brought only for interest at the legal rate amounts in substance to no more than an effort to remit the excess, which cannot validate the contract. Habach v. Johnson, 132 Ark. 374, 201 S. W. 286.
“Nor is this a situation that permits a finding, of excusable mistake. We have often recognized that a lender who attempts to compute his charges according to law is not to be penalized for an inadvertent mathematical error or for a true mistake of fact, such as the inclusion of an incorrect charge for insurance. Garvin v. Linton, 62 Ark. 370, 35 S. W. 430, 37 S. W. 569; Cox v. Darragh Co., 227 Ark. 399, 299 S. W. 2d 193; Griffin v. Murdock Acceptance Corp., 227 Ark. 1018, 303 S. W. 2d 242. That is not the case before us. Here the lender made no effort to compute the interest at the legal rate, nor was there a mathematical error in his calculations. At the most Burgess made a mistake of law, that of thinking that his method of charging interest was lawful. If the usury laws are to mean anything- at all it is plain enough that those who engage in the business of lending money must at their peril familiarize themselves with those laws. Otherwise there is nothing to prevent every lender from habitually collecting excessive interest charges, as long as he purges the account of usury when it becomes necessary to go into court.”

Affirmed.


author: Frank Holt, Associate Justice.

text:
    Milwaukee Ins. Co. v. Wade.
    5-3346
    383 S. W. 2d 105
    Opinion delivered October 26, 1964.

      Victor Hlavinka, for appellant.

      Autrey é Goodson, for appellee.
   Frank Holt, Associate Justice.

The appellee brought this action against the appellant to enforce the provisions of an insurance policy covering appellee’s registered quarter horse [Tom Ike]. The issues were presented to the trial court, sitting as a jury, and it found that the death of the horse was made necessary because of injuries received in a collision of the vehicle in which the horse was being transported. The trial court awarded judgment for $1,000.00, the face amount of the policy, plus the statutory penalty and an attorney’s fee.

For reversal the appellant urges several points which he ably summarizes by stating: ‘ ‘ The only question presented on this appeal is whether the evidence will support the Trial Court’s finding that the vehicle in which the insured quarter horse was being transported struck the shoulder of the road and/or collided with the embankment of the adjoining ditch.”

The horse was in a two-horse trailer which was attached to a pickup truck owned and being driven by an individual who had borrowed the horse from appellee. The driver temporarily lost control of the truck trying to avoid striking a dog. The vehicle left the road and the front bumper struck the embankment of a roadside ditch before the driver, without stopping, was able to bring the vehicle back upon the highway. Then he stopped to investigate the condition of the horse since he had heard some noise in the trailer during the incident. The horse was found standing in the road favoring his left hind leg. Pins securing the hinges on the tailgate of the trailer were sheared. Later it became necessary to destroy the horse because of the leg injury received at the time of this accident.

The pertinent provisions in the Mobile Agricultural Equipment and Livestock Floater Policy reads as follows :

“2. b. This policy insures livestock against:

(1) Death or destruction, directly resulting from or made necessary by: (d) Collision ** of a vehicle on which the insured property is being transported; collision with other vehicles except those owned or operated by the Assured or by any tenant of the Assured;”. The appellant argues that the pickup truck and the trailer were two separate vehicles and since “Tom Ike” was being transported on the trailer hitched to the truck and only the pickup truck struck the embankment, therefore, the collision was not with the vehicle [the trailer] in which the horse was being transported. We cannot agree with appellant’s construction of the meaning and purpose of the policy in question. In Aetna Life Ins. Co. v. Spencer, 182 Ark. 496, 32 S. W. 2d 310, Mr. Chief Justice Hart aptly stated:

“Contracts of insurance should receive a reasonable construction so as to effectuate the purposes for which they are made. In cases where the language used is ambiguous, it should be constructed in favor of the insured because the policy is written on forms prepared by the insurer. Of course, legal effect should be given to all the language used, and the object to be accomplished by the contract should be considered in interpreting it.” [Emphasis added.]

Also, see American Fidelity & Casualty Co. v. McKee, 198 Ark. 601, 130 S. W. 2d 12; Importers’ & Exporters’ Ins. Co. v. Jones, 166 Ark. 370, 266 S. W. 286; 29 Am. Jur., Insurance, § 305, p. 683. The obvious intention of the parties in the instant case was to insure this horse from death or destruction caused by a collision while being transported. It is undisputed that the insured quarter horse was being transported in a semi-trailer attached to the pickup truck which collided with a roadside ditch embankment. The trailer alone had no motive power and was incapable of transporting the horse without the pickup truck. We think that the trial court made a fair, reasonable, and sensible construction of the disputed terms of the insurance policy in question.

Another familiar rule is that any intent to exclude coverage should be expressed in unmistakable language and the burden to show an exclusion rests upon the insurance company to prove facts which bring it within the exception. Riverside Ins. Co. v. McGlothin, 231 Ark. 764, 332 S. W. 2d 486. A review of the record in this case does not reveal that the trailer or semi-trailer was so excluded.

It is well settled that the finding of a trial court, sitting as a jury, has the same verity and effect as that of a jury and, further, that we must affirm if there is any substantial evidence to support it. In the case at bar we think there was ample evidence to sustain the finding of the trial court. A- fee of $200.00 is reasonable for the services of appellee’s attorney on this appeal.

Accordingly, the judgment is affirmed.


author: Carleton Harris, Chief Justice.

text:
    Ark. State Highway Comm. v. Hightower.
    5-3333
    383 S. W. 2d 279
    Opinion delivered November 2, 1964.

      Lee G. Allen, Lindsey J. Fairley S Mark E. Woolsey, for appellant.

      Felver A. Rowell, Jr., for appellee.
   Carleton Harris, Chief Justice.

The issue on this appeal is the validity or non-validity of a certain minute order which was adopted by the Arkansas State Highway Department, and which relates to the construction of access driveways to state highways from abutting property. The Chancellor found that the regulation, herein question, was discriminatory under the Fourteenth Amendment to the United States Constitution, and the equal protection clause of the Arkansas State Constitution. With this finding, the Highway Department’s complaint against appellees was dismissed, and, from the decree so entered, appellant brings this appeal.

Oil June 28, 1961, Minute Order No. 4161 was adopted by tbe commission. This order sets out the requirements for construction of access driveways, and, inter alia, provides for tlie proper width of such driveways, and for safety zones; it prescribes the length of such zones, the type of curbs, or posts, that shall be used, and other factors relating to safety. The regulation only applies to new construction, and, under the order, those interested in constructing access driveways from their property to the highway are required to obtain a permit from the department. Appellees applied for a permit, which was granted. The permit provided for the erection of four safety islands with three entrances into the property between the islands, and further provided for the erection of concrete curbs around the safety islands. After accepting the permit, appellees proceeded to build the access driveways, but refused to construct the islands called for in the permit. Marion Hightower stated that it would be “awfully expensive” to build concrete curbing; that, in his opinion, there was no reason for the safety islands. The court, in holding with appellees, commented that the evidence reflected that property owners-with driveways in existence prior to the adoption of the order were not required to conform to the standards (for driveways) sought to be imposed on appellees in this case. By written opinion, the court then stated:

“Prom the foregoing, it will be seen that the facts in this case are not in dispute. The minute order, which has the effect of a statute, is a valid exercise of the police power of the state. See Arkansas State Highway Commission v. City of Little Rock, 227 Ark. 660, 300 S. W. 2d 929 (1957). As a factual finding, both from the testimony, and a view of the premises, it is found that the required islands would contribute to the safety of the highway at this point and are reasonable under the circumstances.
“The defendants have raised the issue that the order is discriminatory, appar cutty under the 14th amendment to the United States Constitution and under the equal protection clause of the Arkansas Constitution of 1874, (Article 2, Section 3). * * *
“Although no cases from Arkansas have been found, it appears to be the law that an abutting owner has the right to construct driveways connecting with a highway, subject to such reasonable' regulations as public authority may prescribe. [Citing authority] * * *
“It thus appears that the question is whether or not the order involved, by requiring permits only for new driveways thus excepting existing driveways from its terms, amounts to an unconstitutional discrimination. The question might be stated whether or not the classification of driveways existing prior to the effective date of the order, (June 28, 1961), as being exempt from the order as proposed to driveways created subsequent to that date, is a reasonable classification.
“I am holding that the order by exempting existing driveways does amount to an unconstitutional discrimination. In this respect I might mention that my limited research has uncovered cases holding both ways on this question. * * *
“It appears to this court that the order would be discriminatory if enforced against these defendants, when no attempt is being made to enforce it against driveways in existence prior to its adoption. Particularly this is so in view of the fact that a filling station without such safety islands is directly across the road from the property is question. It also appears that if such an order as to driveways, is to be enforced at all, it will have to be enforced against all driveways and not simply against those sought to be constructed subsequent to the effective date of the order. As a factual matter, it appears that there is a definite need for such driveways and islands at all entrances to the highways of this state and that such an order, if applied fairly, would be reasonable and necessary for the safety of the highways.”

It will be noted that the court found that the required islands would contribute to the safet}7 of the highway at the point in question; that such a requirement is reasonable, and that a definite need exists for such driveways and islands at all entrances to the highways of the state. The holding of invalidity as to the-order is based solely on the finding that appellees were being discriminated against because owners of stations constructed prior to the order were not covered by the regulation.

"We think the learned trial court erred in reaching this conclusion, and we are of the view that appellees cannot prevail in this litigation for two reasons.

First, we do not agree that appellee is relieved of the requirements of the order simply because owners of other stations (built before the order went into effect) are not affected by its provisions.

At the outset, let it be said (as stated by the trial court) that there is authority on both sides of this question ; in fact, several cases are cited by opposing counsel in support of the respective positions taken, but we are definitely of the view that the order is not invalid as being discriminator}7. In reaching this conclusion, there are certain basic tenets that have been recognized. First, the general rule is that statutes will be considered to operate prospectively only, unless a legislative intent to the contrary is clearly expressed, or strongly implied, from the language used. See Chism v. Phelps, 228 Ark. 936, 311 S.W. 2d 297, and authorities cited therein. In fact, it appears, if the regulation in question affected stations already in operation at the time of the rendition of the order, that fact itself might render such order invalid. As stated in 50 Am. Jur., Section 477, Page 493:

“ Because every law that takes away or impairs vested rights under existing laws, is generally reprehensible, unjust, oppressive, and dangerous, such retroactive laws have not been looked upon with favor, but with disfavor, so that courts are loath to 'give a statute such effect. To the contrary, a prospective interpretation of statutes affecting substantive rights is favored. It is a maxim, which is said to.be as ancient as the law itself, that a new law ought to be prospective, not retrospective, in its operation (nova constitutio futuris formam imponer e clebet, non praeteritis).”

In 136 A.L.R. 207 is found an annotation pertinent to the principle at issue in this litigation:

“With respect to the regulation of buildings and businesses in the interest of the public health or safety, the courts in a number of cases have held valid and constitutional legislation which in terms excepted existing buildings or business from its regulatory provisions.”

Tn the case of Sammarco v. Boysa, 193 Wis. 642, 215 N.W. 446, 55 A.L.R. 370, the Wisconsin court said:

“There is a manifest cliff erencebetween prohibiting the erection of undesirable buildings, or buildings to be devoted to undesirable purposes within a given area, and compelling the destruction of buildings already constructed or prohibiting a continuance of the use to which they may presently be devoted. In the one case the owner has made expenditures in the construction of his building or in fitting up his premises for the use to which they are devoted, while in the other case no such expenditures have been incurred. This "circumstance furnishes an unimpeachable basis for classification for the purposes of legislation such as we are construing ... To assert that the ordinance here under consideration denies the equal protection of the law would not only defeat the purpose of zoning laws in general, but it would amount to a declaration that society is powerless to prevent the growth and development of an' evil without completely stamping out the evil.”

Here, in this case, the state, under appellees’ theory, would be powerless to promulgate regulations of a progressive nature, though the regulations were entirely prospective in effect.

Let it be remembered that there is a distinct difference between the effect of the regulation on the owner of a business already existing at the time of the order, and the effect upon an individual who contemplates establishing a business after the rendition of the order.

In the first instance, a vested right would be distuvbed by the new regulation — a regulation not in effect, not contemplated, when the owner of the business built his establishment. To compel compliance would probably mean the expenditure of a considerable sum of money by the owner, an expense unforeseen at the outset. But the individual who contemplates constructing an establishment after the new regulation, enters upon the venture “with his eyes open,” i.e., with full knowledge of the probable cost of compliance. Certainly, he is not compelled to enter into the new business venture, and the cost of compliance with requirements can be taken into consideration in determining whether to proceed. In Newman v. Mayor of City of Newport, 57 A. 2d 173, a city ordinance provided that a person owning land abutting upon any public street or highway in the city of Newport, and who desired an entrance or driveway over a sidewalk adjoining his land, should, after certain preliminai’y requirements, file an application for authority to construct the driveway. Appellant filed such an application, and it was denied. On appeal, Newman contended that the city ordinance Avas unconstitutional for several reasons, including the fact that it did not apply to existing driveways. In disposing of this contention, the Supreme Court of Rhode Island said:

“The constitutionality of the ordinance is further questioned on the ground that by its terms it does not apply to existing driveways and therefore gives owners and occupants of existing business properties an unfair economic advantage, and denies to petitioners the equal protection of the laws. The mere statement of this proposition shows that it merits little consideration. We are not concerned Avith the economic advantage that business places existing at the time of the passage of the ordinance may have derived from its enactment.”

"Were it otherwise, appellees still could not prevail in this litigation, for we think they are precluded from challenging the validity of the minute order. Appellees applied for authority to construct access driveways to the highway, and sought a permit for this purpose. The permit wras granted, and accepted by the appellees. Mr. Hightower was entirely familiar, or could have been, with the requirements therein set forth, including the provision for the safety islands. Appellees accepted benefits granted by the permit (construction of the driveways), and, accordingly, we do not think the Hightowers are in a position to attack the validity of the order, or to question any requirement included in the permit. In St. Louis Public Service Company v. City of St. Louis, 302 S.W. 2d 875, the Missouri Supreme Court said:

“The rule is well settled that one voluntarily proceeding under a statute or ordinance, in claiming benefits thereby conferred, will not be heard to question its validity in order to avoid its burdens. The same or similar rules have been applied in litigation involving many different types of instruments, licenses, or other transactions. The designation used in referring to this rule or doctrine is obviously unimportant. It is frequently called an estoppel. However, it is akin to the rule against assuming inconsistent positions and it involves the principles of waiver, election, and ratification rather, pei'haps, than being limited to the precise principles of equitable estoppel. Regardless of the name or principle designated, the result is clearly the same. It precludes one who accepts the benefits from questioning the validity of the accompanying obligation. For convenience, we will, hereinafter refer to this rule or doctrine as an estoppel.”

A similar holding was rendered in the Nebraska case of James E. Dailey Estate v. City of Lincoln, et al. 185 N.W. 332. There, the court stated:

“We are of the opinion that the facts stated in the petition do not raise the legality, illegality or constitutionality of the complained of provisions of this building ordinance. The plaintiff could not, after having applied for and accepted from the building inspector a permit to bnild a wall twelve inches thick, build one eight inches thick, and, when ordered to show cause why the permit granted should not be revoked or canceled, for that reason plead that the provisions of the building ordinance requiring him to agree to build in accordance with tlie plans and specifications were illegal and void and not binding upon him. Nor could the plaintiff, after having applied for, received and accepted from the building inspector a permit, question his authority to grant the same. Nor could it, after having agreed that if it did not build in accordance with the plans and specifications submitted its permit might be canceled by the council, question the council’s authority to cancel its permit. By its conduct it is estopped from questioning the right of the building inspector to issue the permit granted on its application and the council’s authority to revoke the same for not building in accordance with the plans 'and specifications. As between the plaintiff and defendant, the provisions of the sections complained of cannot be questioned by plaintiff. If the plaintiff desired to question the legality of this building ordinance, it should have done so before it applied for, received and accepted a permit thereunder. ’ ’

We think the language in these cases is apropos in the instant litigation, and appellees, having accepted the permit, are not now in a position to question the complete validity of the order.

It is also asserted that Minute Order No. 4161, insofar ¿s the safety islands are concerned, provides alternate methods of construction, vis, concrete curbs, or posts, but that the permit issued to Hightowers requires the use of concrete curbs. This argument likewise is completely answered by the preceding paragraphs. In fact, the application signed by7- Marion Hightower requests permission to construct driveways as described in the permit.

Reversed.

       Ark. Stat. Ann. § 76-201.5 (Repl. 1957), Sub-section (m) authorizes the commission to “adopt reasonable rules and regulations from time to time for the protection of, and covering traffic on and in the use of the State Highway System, and in controlling use of, and access to, the highways, except that no provision contained herein shall be construed as replacing the existing ‘rules of the road.’ ” There is no contention in this litigation that the minute order does not have the same effect as an enacted statute.


author: Ed. F. McFaddin, Associate Justice.

text:
    Christensen v. Dady.
    5-3304
    383 S. W. 2d 283
    Opinion delivered November 2, 1964.

      Kenneth C of felt, for appellant.

      Coleman, Gantt, Ramsay £ Cox, for appellee.
   Ed. F. McFaddin, Associate Justice.

This appeal involves a bailment. The essential facts are practically undisputed. Appellant Christensen made a purchase at the drug store of appellee Dady at about 5:00 P.M., and the amount paid for the articles purchased was $1.64. In the course of the transaction, Christensen laid his billfold on the counter and forgot to repossess it. After Christensen’s departure the clerk who had waited on him found the bill fold and delivered it to Dady, who placed it in the drawer of a filing cabinet. The next morning Christensen called Dady and learned that the billfold had been found. About 4:00 P.M. when Christensen called at the drug store for the billfold, it could not be found; and Christensen filed this action against Dady, claiming that, as bailee, Dady had failed to exercise the proper care for the protection of the bailment. Christensen testified that the billfold contained $1,040.00 in currency and also credit and identification cards.

Dady testified that he had no safe in the store; that he placed the billfold in the drawer of a filing cabinet where he kept his own papers; that he exercised the proper degree of care for the safety of the bailment; that his store had been previously burglarized; and that evidently liis store was burglarized again during the night and the billfold and contents taken. The police investigated the matter but found no trace of the billfold or contents. The jury verdict was for Dadjq and Christensen brings this appeal and lists the following as his point on appeal:

“The trial court in passing on the instructions’ offered, given and refused, committed reversible error in sending the case to the jury on the slight degree of care theory instead of the ordinary care doctrine and the gross negligence theory instead of ordinary negligence, and in failing to let the jury say whether it would serve to the benefit of both parties for Dady to take care of Christensen’s property.”

As to the first prong of appellant’s point little need be said. The law is well settled as to the degree of care required of a gratuitous bailee and the degree of care required of a reciprocal bailee ; and both appellant and appellee concede this to be true. The question is, what was the type .of bailment that existed as disclosed by the facts of this case.

That brings us to the second prong of the appellant’s point, which is that the Trial Court failed to let the jury say whether the bailment here involved was a gratuitous bailment or a reciprocal bailment. It is well recognized that when the basic facts are in dispute as to the nature of the bailment (i.e., gratuitous or reciprocal), then the determination of the relationship should be left to the jury under proper instructions. Bail v. Culbert, (Ala.), 96 So. 228; Staples v. Left Fork (W. Va.), 77 S.E. 2d 872; White v. Burke (Wash.), 197 P. 2d 1008; Hearst v. Cuneo (7th Cir.), 291 F. 2d 714. See also 8 C.J.S. p. 552, “Bailments” § 53. But tlie appellant did not offer any instruction submitting such issue to the jury.

Even if we assume that there was enough evidence introduced to allow the issue of the type of bailment to be submitted to the jury, nevertheless the appellant should have asked an instruction submitting such issue. No such instruction was requested by anyone, and the point seems to be raised here for the first time. If appellant though that the evidence made a jury question on the type of bailment, then he should have requested an instruction to that effect. One who fails to request an instruction cannot complain because it was not submitted to the jury. Jones v. Seymour, 95 Ark. 593, 130 S.W. 560; Wallace v. Riales, 218 Ark. 70, 234 S.W. 2d 199. The plaintiff should have offered a correct instruction for the Court to submit to the jury the question of the type of bailment. No such instruction was offered. Affirmed.

Robinson, J., not participating.

       A gratuitous bailee is responsible for goods entrusted to him when the goods are damaged or lost through his gross negligence. See Rollins v. E. St. L. Cotton Co., 144 Ark. 146, 221 S. W. 452; Wear v. Gleason, 52 Ark. 364, 12 S. W. 756; and Baker v. Bailey, 103 Ark. 12, 145 S. W. 532.

       A reciprocal bailee is responsible for goods entrusted to him when the goods are lost or damaged because of the failure of the bailee to use ordinary care and diligence. See Bertig v. Norman, 101 Ark. 75, 141 S. W. 201; Tombler v. Koelling, 60 Ark. 62, 28 S. W. 795; and Warren v. Geater, 206 Ark. 518, 176 S. W. 2d 242.


author: George Rose Smith, J.

text:
    Richison v. Boatright.
    5-3357
    383 S. W. 2d 287
    Opinion delivered November 2, 1964.

      John G. Holland, for appellant.

      Shaw, Jones & Shaw, for appellee.
   George Rose Smith, J.

In July of 1959 the appellant was working as a carpenter in the construction of a new roof upon a commercial building in Port Smith. In the course of his work he stepped through a piece of unsupported roofing felt and fell against the ceiling joists, injuring himself. In 1962 he brought this action for his inuries against the appellee, I. B. Boatright, who was the roofing contractor for the job in question. The jury’s verdict was for the defendant. In this court the appellant complains of the trial judge’s action in giving or refusing instructions.

At the trial the issues of Richison’s contributory negligence and of his assumption of the risk were submitted to the jury. Richison specifically objected to these instructions, insisting that there was no evidence to justify the submission of these questions. We think the court was right in holding that an issue of fact was presented upon each point.

At the time of the accident Richison and the other carpenters had been putting ceiling joists in place and then nailing down decking at right angles to the joists. The roofers worked behind the carpenters, covering the decking with strips of felt. Neither the decking nor the felt had been completely laid when the plaintiff was hurt.

On the afternoon preceding the accident the roofers had caught up with the carpenters, having covered all the completed decking with felt. The unfinished edge of the decking was irregular, apparently because the decking boards were not all the same length. (Upon this point the testimony is not as clear to us as it was to the jury, for the witnesses referred to a model and to diagrams that were not introduced in evidence.) The roofers allowed the felt to overhang the edge of the decking by some eight inches, but the witness McKinney testified that before leaving the job the roofers nailed on a board that completely covered the overhang. Despite this precaution Bichison says that the next day he stepped through a piece of unsupported felt.

On the issue of negligence the jury could have found that Bichison was at fault. He had assisted in putting down the decking and must have known that the ends of the hoards were staggered. The jury could have found that he was careless in walking too close to the edge, even if the protective board referred to by McKinney had somehow been removed. On this point the case is similar to Headrick v. H. D. Cooperage Co., 97 Ark. 553, 134 S.W. 957, where the plaintiff stepped into a hole in the floor of a sawmill. He knew that the hole was there, but its exact location had been obscured by an accumulation of sawdust. We held that his contributory negligence was a matter for the jury.

In the same way the defense of assumed risk involved an issue of fact. The jury may have believed that Bichison voluntarily exposed himself to danger in walking along the edge of the unfinished work. In Chicago, R.I. & P. Ry. v. Allison, 171 Ark. 983, 287 S.W. 197, it was held that where a carpenter working on the roof of a caboose tripped and fell over a piece of tin dropped by a fellow worker the defense of assumed risk was properly left to the jury.

It is argued that two other instructions were inherently erroneous. The plaintiff’s only pertinent objection was to “all instructions given.” Some of the instructions were correct; so this en masse objection is unavailing. Wootton v. State, 232 Ark. 300, 337 S.W. 2d 651. Counsel also relied upon Ark. Stat. Ann. §§ 81-101 and -108 (Repl. 1960) in requesting the court to tell the jury that if Boatright (though not Bichison’s employer) had control of the laying of the roofing felt it was his duty to furnish the plaintiff a safe place to work. We do not determine whether this statute was intended to enlarge an employer’s common law duty to use ordinary care to furnish a safe place to work. By its terms the act applies only to a person having five or more employees. § 81-101. There being no proof that Boatright had that minimum number of employees, the instruction, was properly refused. Layne-Arkansas Co. v. Henderson, 221 Ark. 691, 255 S.W. 2d 423.

Affirmed.


author: Paul Ward, Associate Justice.

text:
    Bennett v. Gundolf.
    5-3358
    383 S. W. 2d 289
    Opinion delivered November 2, 1964.

      Robert N. Hardin and Patten & Brown, for appellant.

      Garmaway é Harrow, for appellee.
   Paul Ward, Associate Justice.

Appellant DeWitt Bennett III sued three of his young acquaintances to recover damages for personal injuries received when he was run over by his own car. The question of joint adventure also enters into the case.

Tn order to understand the issues raised (particularly that of joint adventure) it is necessary to set out in some detail the facts and circumstances out of which appellant’s injuries arose. The three defendants, Billingsley, Gundo’lf, and Boswell left Benton at about 10 p.m. and drove a short distance to a “bauxite pit” to go swimming and plan a party for the following day. Billingsley drove his father’s car and took Boswell with him. Gundolf followed in his own car. Appellant (apparently finding ont about the swimming party) drove out to the bauxité pit, arriving about 20 minutes after the other three. It is admitted he had been drinking during that evening. At any rate, shortly after appellant arrived he lay down on the ground and went to sleep. The other boys did not go swimming that night, but they did decide to go skiing the next- day. It was disclosed by appellant upon arrival that he might have trouble starting his car when the time came to leave. Therefore, when the boys were ready to go home Billingsley and Gundolf undertook to start appellant’s car. In doing so they asked Boswell to stay with appellant, and they pushed his car, with Billingsley’s car, some distance from the original parking area. In a short time they succeeded in starting appellant’s car, and Billingsley drove it back while Gundolf drove Billingsley’s car. When Billingsley arrived in appellant’s car at the place where the boys had been assembled he ran over (and injured) appellant who was still lying on the ground.

After (apparently) suit was filed by appellant, Billingsley’s Insurance Company paid $9,500 and he was released. Upon trial the court instructed a verdict in favor of Boswell and the jury returned a verdict in favor of Gundolf.

For a reversal appellant on appeal urges only two points.

One. In the case of Gundolf it is urged that the trial court erred in refusing appellant’s requested Instruction No. 5 which defined joint venture or joint adventure. It is unnecessary to copy the instruction here because appellee concedes it is a correct abstract statement of the law. It is, however, insisted by appellee that the instruction was properly refused since it was not supported by any evidence. To be specific, appellee says (and we agree) that one of the two necessary elements of any joint venture is the equal right of each person to direct and govern the movements and conduct of the other person in respect thereto. See: Stockton v. Baker, 213 Ark. 918, 213 S.W. 2d 896; Wymer v. Dedman, 233 Ark. 854, 350 S.W. 2d 169; and Woodard v. Holliday, 235 Ark. 744, 361 S.W. 2d 744.

Again, we agree with appellee Gundolf that the record discloses no evidence from which, a jury could find that he (or Boswell) had any right (or opportunity) to direct and govern Billingsley when he drove the car over appellant. Neither Gundolf or Boswell was in the car with Billingsley nor was it at any time planned for them or either of them to be. In fact, the record discloses that Billingsley knew more than the others about starting appellant’s car since he had worked on it previously.

Tiro. As previously indicated Boswell could not be held liable for appellant’s injuries on the theory of a joint adventure, but appellant further contends that a jury question was presented as to Boswell’s negligence in failing to protect appellant. The trial court instructed the jury to return a verdict for Boswell, and we think it was proper to do so. The evidence is that Boswell was sitting in Gundolf’s car wheu Billingsley returned in appellant’s car. It appears that Billingsley knew as well as Boswell that appellant was lying on the ground and also where he was lying. It is not shown that Boswell knew Billingsley was going to run over appellant in time to prevent him from doing so. It is not shown that Boswell ■was' left behind for the purpose of protecting him from being run over. The evidence is that when the two boys went off to start appellant’s car Boswell was asked to “stay with Dee” (appellant), and he said he would.

Finding no substantial evidence of negligence on the part of Boswell, we must affirm the action of the trial court.

Affirmed.


author: Sam Robinson, Associate Justice.

text:
    Palmer v. Standard Life & Accident Ins. Co.
    5-3352
    383 S. W. 2d 285
    Opinion delivered November 2, 1964.

      Ijohnes T. Tiner, Ward & Mooney, for appellant.

      Henry 8. Wilson, for appellee.
   Sam Robinson, Associate Justice.

On May 1, 1962, the appellee, Standard Life & Accident Insurance Company, issued to the Mid-South Grain Company, Inc., a group accident and health policy of insurance. In connection therewith, it issued and delivered to appellant, Harry 0. Palmer, as an employee of the grain company, its certificate of insurance No. 0248 under the group policy.

On June 7, 1962, Palmer was injured. Later he filed a claim with the insurance company for benefits under the terms of the policy in the sum of $1,724.29. The insurance company denied liability; Palmer filed suit. The trial court directed a verdict in favor of the insurance company on the theory that the undisputed evidence shows that Palmer was not an employee of the grain company and therefore, under the terms of the policy, could not recover. Palmer has appealed.

The polic3r provides: The insurance company “ Certifies that a Group Accident and Health Policy has been issued to the Employer shown below, and that the Employee named herein became eligible for benefits, subject to the terms of the Policjy on the Effective Date indicated . . . provided that on the Effective Date shown above he is then regularly performing the duties of his occupation; otherwise the Effective Date shall be the date of his return to active duty.”

The provision that on the effective date of the policy, May 1, 1962, the insured must be performing the duties of his occupation does not mean that he insured must be actually working at his job with the grain company at the time he is injured, because the policy excludes from its coverage “bodily injury arising out of or in the course of employment.”

Palmer operated a crop dusting service whereby he used airplanes to dust crops with insecticides and fertilizer. The grain company sold the material used in dusting the crops. Palmer had a working arrangement with the grain company whereby he promoted the sale of the commodities the grain company had for sale, and the grain company made collections from farmers for Palmer for his work in dusting the crops. In fact, the grain company made most of the collections for work done by Palmer; about 90% was collected by the grain company; they even made collections for him where they had not sold the material used in dusting the crops, and in some instances they paid Palmer even though the farmer did not pay the grain company.

At the time of the issuance of the policy, evidently the insurance compairf, the grain company, and Palmer all thought that Palmer was an employee of the grain company within the meaning of the policy. Palmer is designated as an emplojme in the policy. There is no showing that on the date Palmer was injured his situation with the grain company was any different than it was at the time of the issuance of the certificate of insurance to him in which he is designated as an employee. There is no explanation of why the insurance company considered Palmer as an employee of the grain company at the time of the issuance of the certificate to him, but did not consider him to be such an employee at the time he was injured.

Appellee cites Aetna Life Insurance Co. v. Carroll, 188 Ark. 154, 65 S.W. 2d 25, as sustaining the view that Palmer was not an employee at the time he was injured, but in that case Carroll worked for the T-erry Pood Stores, Inc. up to May 31, 1932, at which time he was discharged. He died June 17, 1932. The policy provided that it terminated automatically at the end of the policy month in which the employee terminated.

Appellee also relies on Armour & Co. v. Rice, 199 Ark. 89, 134 S.W. 2d 529. In that case Eice sued Armour for personal injuries, alleging that at the time he was injured he was an employee of Armour. This court held that there was no substantial evidence to show that Eice was an employee of Armour. There, the court quoted from Labatt on Master and Servant as follow: “ ‘employee’ is defined as ‘a person employed to do certain work for another under the express or implied .terms of an agreement between them, and the master is to have the right to exercise control over the performance of the work, to the extent of prescribing the manner in which it shall be executed.’ ”

Even if it should be considered, that the foregoing definition is applicable here, there is no showing that Palmer did not come within that definition as an employee in promoting sales for the grain company. The great weight of authority is that the term “employment”, .as used in a policy-of group insurance, refers to a status rather than to a contractual relationship. John Hancock Mutual Life Ins. Co. v. Pappageorgu, 24 N.E. 2d 428. See annotation 68 A.L.R. 2d 35.

Eeversed and remanded.


text:
    Crawford v. Cox Planing Mill & Lumber Co.
    5-3360
    383 S. W. 2d 291
    Opinion delivered November 2, 1964.

      Ward & Mooney, for appellant.

      Rose, Meek, House, Barron, Nash & Williams, Frier-son, Walker <& Snellgrove, for appellee.
   Frank Holt, Associate Justice.

The trial court sustained appellees’ demurrers to the appellants’ amended complaint. On appeal the only issue is whether appellants ’ amended complaint stated a-cause of action under the doctrine of attractive nuisance.

The appellant alleged that the “minor” child [no age stated] was injured when he fell from an unguarded scaffold while playing the game of hide-and-seek on a Sunday afternoon in a construction area on public school grounds where no warning signs or barricades of any nature existed. The plaintiff’s complaint further stated:

“The unfinished walls of buildings under construction and the scaffolding erected adjacent thereto by or at the. direction' of the defendants, while they may have been relatively safe for experienced artisans of mature judgment, were so narrow in width and unstable in structure as to be a definite and positive hazard to young children without experience or knowledge of their latent dangers, in that the flooring of said scaffolding would spring up and down and slip upon its base in such a manner as to cause such a child to lose his balance and equilibrium and unpredictable movements of the flooring of said scaffolding, unforeseeable by a child, did cause Glenn Crawford, a minor, to fall and resulted in his injuries.”

We have recognized and applied the doctrine of attractive nuisance in permitting recovery for injuries to children where instrumentalities or conditions of any kind exist that attract and injure children who are too young or immature to realize the existence of its dangerous character. Foster v. Lusk, 129 Ark. 1, 194 S.W. 855; Standard Oil Co. of Louisiana v. Dumas, 183 Ark. 616, 38 S.W. 2d 17; Arkansas Power & Light Co., v. Kilpatrick, 185 Ark. 678, 49 S.W. 2d 353.

In other instances we have refused the application of this doctrine because of the character of the instrumentality and maturity of the child. Garrett v. Arkansas Power & Light Co., 218 Ark. 575, 237 S.W. 2d 895; Carmichael v. Little Rock Housing Authority, 227 Ark. 470, 299 S.W. 2d 198, and Jones v. Comer, 237 Ark. 500, 374 S.W. 2d 465.

The doctrine of attractive nuisance is intended for the protection and benefit of children of such a tender age that they are incapable of exercising sufficient judgment and discretion to avoid a danger or peril.

In the case at bar, since the demurrers to appellant’s complaint were sustained, we must consider the alleged facts as being true. However, in accordance with the general rules the appellant must allege shfficient facts in the complaint to invoke the doctrine of attractive nuisance.

Buildings under construction ordinarily are not regarded as coming within the doctrine of attractive nuisance so as to impose liability for injury to trespassing children. 65 C.J.S., Negligence, § 29, 475; Annotation, 44 A.L.R. 2d 1258; 36 A.L.R. 252.

The attractiveness of an instrumentality itself is not sufficient to invoke the doctrine. In addition to attractiveness, it must be shown that the object, instrumentality, or conditions are so dangerous to a child that precautionary measures are required. Arkansas Valley Trust Co., v. McIlroy, 97 Ark. 160, 133 S.W. 816. If every instrumentality that is attractive to a venturesome boy and, also, has an element of danger about it constitutes an attractive nuisance then there is no limit to its application. Perils or dangers, such as exist from climbing, are' obviously known to children who are old enough to be unattended and capable of venturesome conduct. Any child capable of climbing knows that if he falls from a fence, a tree, or any elevated structure injury can result. Senders v. Baird, 195 Ark. 535, 112 S.W. 2d 966.

In the case at bar the scaffold embodied no perils not readily apparent to children capable of responding to their natural climbing instincts. It was not such a dangerous instrumentality that it comes.within the scope of the doctrine of attractive nuisance. Therefore, the allegations of the complaint constituted no submissible issue for' the jury.

Affirmed.


text:
    Bauer v. Eudy.
    5-3326
    383 S. W. 2d 493
    Opinion Delivered November 9, 1964.

      Sivift & Alexander, for appellant.

      Bruce Ivy, for appellee.
   Carleton Harris, Chief Justice.

Appellants are owners of certain farm lands in the Osceola District of Mississippi County, being known locally as the “Bauer Farm,” and comprising approximately 1,000 acres. Since 1951, these lands have been rented to appellees J. O. Eudy and Bruce Eudy. Over this period of time, four separate lease contracts, each identical in content, have been entered into b3r the parties. The last such contract covered the period of time from January 1, 1959, through December 31, 1960. Appellants. became dissatisfied with the manner in which the Eud3rs were operating the farm some time early in 1959, and testimony reflected that complaints had been made by A. F. Barham of Osceola, agent for Dr. Bauer, to the appellees by registered mail. On June 21, 1960, suit was instituted b3r appellants, it being alleged that the contract had been violated by appellees in several respects, and, inter alia, damages were sought. A general denial was filed by the Eudys, who likewise filed their cross complaint, asserting that appellants were indebted to them for certain repair work that, had been done on the farm; judgment was also sought for fertilizer and defoliant, appellees contending that appellants were liable for a part of this cost.

At the conclusion of the trial, the court rendered an oral opinion, finding against appellants on their complaint, and likewise finding against appellee on certain of the repair items for which suit had been brought. However, $700.00 of the amount claimed was allowed for the tearing down of a barn, and the building of a tractor shed in 1958; claim was also allowed for fertilizer in the sum of $203.47, together with interest. From the decree embodying these findings, appellants bring this appeal.

While the original complaint alleged various violations of the contract by appellees, the only alleged violation here relates to that portion of the contract under the heading, "Drainage Ditches.” This provision reads as follows:

"The party or parties of the second part will permit no driving of vehicles in or across any of the farm ditches except at regular crossings or when cleaning said ditches. They will make, without cost to parties of the first part, such other farm ditches from time to time as may be necessary to properly drain said lands at all times.
‘ ‘ The party of the second part will also, between the first day of September and the fifteenth day of October in each year during the life of this contract cut and burn all weeds, grass, bushes, briars and other vegetation from said ditches, the banks thereof, and from all turn rows and margins of said lands.
"He will also keep all farm ditches upon said lands clear and free of drifts, slides, bars, weeds, grass, bushes, briars or other vegetation which may obstruct the free flow of water therein. ’ ’

Whether appellees violated this provision is simply a question of fact, and we accordingly can see no useful purpose in setting out the testimony. Dr. Bauer, Ralph Ferguson, Jim Pittman and A. F. Barham all testified for appellants by deposition. At the trial, C. H. Bond, Jr., testified orally, and Mr. Barham and Ferguson also testified orally. Six witnesses, including J. 0. Eudy, testified for appellees, vis, Don Fletcher, Marcus Stovall, James Terry, Ralph Bowden and Roy Rounsavall. The testimony by appellant’s witnesses was to the effect that appellees had not complied with the provisions of the contract, herein quoted; to the contrary, the testimony of the witnesses for appellees was to the effect that the provisions had been complied with. The testimony was rather positive on each side, and appellants admit that, under our holdings, “the chancellor is the best judge of the veracity of the witnesses, their demeanor and the weight of their testimony,” but urge that, in the instant case, “the chancellor committed error in not finding that the rule of preponderance of evidence was carried by the plaintiffs [appellants] and their witnesses with reference to defendants’ breach of contract.” We cannot agree with this contention, for we are cer-. tainly unable to say, from the printed record before us, that the chancellor decided against the preponderance of the evidence.

The Chancellor allowed labor costs of $700.00 to appellees for tearing down a barn and building a tractor shed. The amount sought by appellees was $2,890.00, but the court held that all items were barred by the Statute of Limitations, except the $700.00 item (this work took place in 1958). Appellants point out that Mr. Eudy indicated that he would not have instituted this claim except for the fact that he was sued by appellants. Of course, this is really not pertinent to the claim itself. The fact that he had not originally planned to seek remuneration does not mean that he was not lawfully entitled to it. Appellants do not dispute that this work was done, though they stoutly contend that it was not done at their direction. Mr. Barham stated that the agreement was made between Eudy and Bauer. Bauer testified that he gave permission for the work to be done, but would not have done so had he known that he would be charged with the cost. Eudy testified that he obtained an estimate from the Joiner Lumber Company as to the proper charge for tearing' down the barn and putting up the shed, the estimate being $700.00 (such estimate being offered in evidence); that this amount was agreed upon. Appellants mention that no claim was asserted for this amount at the end of 1958 (at which time the old contract expired, and the new one was entered into). But we do not consider this fact controlling. We daresay that frequently, for reasons of friendship, promotion of harmony, or other valid reason, the holder of a claim fails to assert his claim or make demand for payment. The fact remains that the court found that the work had been done; that there had been an agreement to pay Eudy $700.00 for this particular labor, and we are unable to say that this finding was against the preponderance of the evidence.

With reference to the allowance of a portion of the cost of the fertilizer, the court found:

“In regard to the fertilizer, the court is convinced the fertilizer was used. It has been testified here $813.91 worth of fertilizer was used on the crops. One-fourth of that would be $203.47. The contract does state the amount of fertilizer and poison would have to be by agreement of the parties.”

However, in its opinion, the court pointed out that in past years (under the same provision in the contract) fertilizer had been used, and the landlord had paid one-fourth of the cost. Further:

‘ ‘ The court also feels like the clause in the contract whereby the tenant agrees to farm the land in a. good husbandlike manner, would cover the use of fertilizer.”

We do not feel that appellants have established error.

Affirmed.

       The total amount claimed for work in the cross complaint was $2,890.00, hut the Chancellor found that $2,190.00 of this claim was barred by the Statute of Limitations; he also denied the claim for one-fourth of the cost of defoliant, since this was not contemplated under the contract.


text:
    Soncini v. Rankin.
    5-3336
    383 S. W. 2d 500
    Opinion Delivered November 9, 1964.

      Wright, Lindsey, Jennings, Lester & Shults, for appellant.

      Earl J. Lane, M. G. Lewis, Jr., for appellee.
   Ed. F. McFaddin, Associate Justice.

Four teenagers were travelling in a bigb powered car at an enormous speed. Tbe car ran into a bridge abutment and all' four occupants were killed. This is an action for damages brought by the administratrix of one of the teen-agers against the owner of the automobile.

Mrs. Dorothy Easley Rankin is the mother and administratrix of the estate of Nancy Ann Easley, aged sixteen, who was killed in the above mentioned collision on August 10, 1960. The other occupants of the car, also killed, were Jerry Muncrief, aged 19, James Muncrief, aged 13, and Carolyn Muncrief, aged 15. The Muncrief children (two brothers and a sister) were first cousins of Nancy Ann Easley. The defendant is Mrs. Frances Soncini, the owner of the Cadillac convertible, which she had allowed Jerry Munerief to drive. Trial resulted in a verdict and judgment for Mrs. Rankin as administratrix of the estate of Nancy Ann Easley; and Mrs. Soncini brings this appeal, urging three points:

“1. The trial court erred in denying appellant’s motion for a directed verdict at the close of the appellee’s case in chief.
“2. The trial court erred in denying appellant’s motion for a directed verdict at the conclusion of the entire ease.
“3. The trial court erred in denying the appellant’s motion to dismiss appellee’s Amendment to Amended and Substituted Complaint on the ground that this pleading was barred by the statute of limitations pertaining to actions for wrongful death.”

I. The Plea Of Limitation. This is appellant’s third point, but we discuss it first. There was considerable uncertainty as to which of the children was actually driving the car at the time of the fatal collision. To understand the plea of limitation it is necessary to give dates of some of the pleadings:

(1) On September 14, 1962, Mrs. Rankin, as administratrix, filed this action against Mrs. Soncini. The original complaint, in addition to alleging negligence of the driver- of the car, damages, etc., alleged that Mrs. Soncini was the owner of the car and “. . . that the defendant was further negligent and careless in entrusting the said Cadillac convertible automobile, a dangerous instrumentality, to a minor that she knew was irresponsible, unstable, 'and an unsafe driver.”

(2) On September 28, 1962, the defendant, Mrs. Soncini, filed a motion that the plaintiff make the complaint more definite and certain by alleging the name of the person driving, the car at the time of the collision; and this motion was granted.

(3) On December 19, 1962, the plaintiff, by amendment, alleged that Mrs. Soncini had entrusted the car to David Millich, who had negligently and carelessly entrusted the car to Jerry Mnncrief, whom he knew was irresponsible and unstable.

(4) To the complaint and amendment Mrs. Soncini filed a demurrer; and then on July 11, 1963, the plaintiff filed an amended and substituted complaint in which it was alleged that Mrs. Soncini negligently entrusted the automobile owned by her “. . . to Michael Gerald Muncrief, a minor of the age of 19 years, that she knew, or by the exercise of ordinary care should have known, was irresponsible, unstable, and incompetent, both physically and mentally, to have possession and control of the said automobile. That on the said date, the said Michael Gerald Mnncrief drove the defendant’s said automobile to his home and picked up his brother, James Hugh Muncrief, a minor of the age of 13 years, and his sister, Carolyn June Muncrief, a minor of the age of 15 years. That he then drove the said automobile, to the home of his first cousin, Nancy Ann Easley, a minor of the age of 16 years, the plaintiff’s intestate, and picked her up. That the said Michael Gerald Muncrief, because of his irresponsibility, unstableness and incompetency, permitted his said sister, Carolyn June Muncrief, to drive the said automobile in violation of law. That the said Carolyn June Muncrief, under the negligent direction of the said Michael Gerald Mnncrief, drove the said automobile . . .”

(5) On July 15, 1963, the defendant demurred to the amended and substituted complaint, which demurrer was overruled, and the defendant requested and obtained a continuance of the case and then filed a general denial.

(6) On August 27, 1963,. the plaintiff filed an amendment to the amended and substituted complaint, and in the amendment alleged that Michael Gerald Muncrief (also referred to herein as Jerry Muncrief) was driving the automobile at the time of the fatal collision.

It will be observed that the fatality occurred on August 10, 1960, and that the last mentioned amendment Was filed on August 27, 1963, which, was three years and seventeen days after the fatality; and because of that fact the defendant pleaded the statute of limitations, relying on Ark. Stat. Ann. § 27-907 (Repl. 1962). The plea of limitation was denied; and that is the ruling now under consideration.

We hold that the filing of the amendment on August 27, 1963, was not the beginning of a new cause of action but was in compliance with the defendant’s original request to furnish the name of the person who was driving the car at the time of the fatal impact. There was considerable uncertainty all the time as to who was driving the car because all of the occupants in the car were killed. Finally, after the taking of the deposition of David Millieh on July 24, 1963, the plaintiff ivas able to definitely allege that Jerry Muncrief was the driver of the car, and that was the final allegation. The naming of Jerry Muncrief was not the beginning of a new cause of action but in compliance with the defendant’s request for the name of .the driver. The amendment filed on August 27, 1963, did not change the cause of action or add any new parties; it merely made definite and certain an allegation as to the driver of the car. What we said in Western Coal Co. v. Corkille, 96 Ark. 387, 131 S. W. 963, is applicable here:

“The amendment was therefore only a continuation, of the original complaint, and it took effect as of the date when the latter was filed. 1 Enc. Plead. & Prac. 621; Wright v. Walker, 30 Ark. 44; Brockaway v. Thomas, 32 Ark. 311; Kuhns v. Wisconsin, etc. Ry. Co., 76 Ia. 67; Gordon v. Chicago, R. I. & P. Ry. Co., 129 Ia. 747.”

II. Defendant’s Motions For Instructed Verdict. Under this topic we consider the appellant’s first and second points, as previously listed. The plaintiff alleged, and the case was tried to the jury on the theory (a) that Mrs. Soncini was the owner of the Cadillac car; (b) that she was negligent in entrusting the car to Jerry Muncrief; (c) that she knew Jerry Muncrief to be an incompetent and careless driver; (d) that Jerry Muncrief was the driver of the car at the time of the collision; and (e) that his careless and negligent driving caused the death of the plaintiff’s intestate. With becoming candor, appellant concedes that there was sufficient evidence to take the case to the jury on items (a), (b), (c), and (e) above; but appellant contended below — and urges here— that there was no substantial evidence on item (d) above; that is, that Jerry Muncrief ivas the driver of the car at the time of the collision.

In short, the appellant contends that there is a missing essential in the plaintiff’s proof and that the plaintiff cannot recover since there is no substantial evidence that Jerry Muncrief was driving the car at the time of the fatal mishap. The issue is thus narrowed to the evidence on that sole point, since the appellees wave aside any contention that Mrs. Soncini might be liable if Jerry Muncrief was in the car and directing its operation, even though not the actual driver. So the issue is pinpointed to the evidence as to who was actually driving the car at the time of the fatal impact.

The abutment collision occurred about 4:10 P.M. on Arkansas Highway No. 7, called the “Old Little Rock Highway.” The scene was several miles east of Hot Springs on what is called the “Belvedere Stretch.” The Soncini car was travelling away from Hot Springs at a rate of speed estimated from 80 to 100 miles per hour and was weaving down the highway. The car finally crossed to the left and hit the bridge abutment with tremendous force. The.motor was wrenched from the car and remained on the highway. The car leaped the bridge abutment and fell wheels down in the ditch. The door on the left (driver’s) side was torn off the car. The door on the right remained attached to the car. The top was broken away from the windshield and there was left a space of several feet between the upper part of the windshield and the car top. Part of the seats from the car were found on the ground to the left of the car. Jerry Muncrief’s body was some distance up the road on the left side of the highway. The bodies of James and Carolyn Muncrief were under the culvert of the bridge. Nancy Ann Easley’s body was still in the car, with her feet near the door on the right side and her head resting on the back of the back seat.

We have given the final position of the car and its occupants in some detail since the question of who was driving the car was a question for the jury to decide from the testimony of the witnesses and all of the physical facts and all inferences to be drawn therefrom. Mrs. Barbara Jean Ward, a sister of the deceased Muncrief children, testified that she saw Jerry Muncrief driving the Cadillac convertible when he came to the Muncrief house and picked up his brother and sister and drove away some time around 3:30 in the afternoon. At that time the top was up on the convertible, which was a two-door car. Jerry was driving, Carolyn was in the middle of the front seat, and James was on the right side of the front seat. Since the fatal impact occurred between 4:00 and 4:10 P.M., the testimony of Mrs. Ward would give the position of the occupants approximately 40 minutes before the collision. When the children left the Muncrief home they were going to Nancy Ann Easley’s home some 10 or 11 blocks away. Mrs. Muncrief, mother of the children, also testified that Jerry Muncrief was driving the car at the time it left the Muncrief home. On this testimony the appellee contends that when a certain person is shown to be driving a car and in control of it, that condition continues until shown otherwise by indisputable testimony. Flick v. Shimer (Pa.), 17 Atl. 2d 332; Limes v. Keller (Pa.), 74 Atl. 2d 131; Claussen v. Johnson (Iowa), 278 N. W. 297; Moore v. Watkins (Tenn.), 293 S. W. 2d 185. See also annotation in 32 A. L. R. 2d 988, entitled: “Proof, in absence of direct testimony by sufvivors or eyewitnesses, of who, among occupants of motor vehicle, was driving it at time of accident.”

For the appellant, Mrs. Bernice Rogers testified that she was driving east on the Belvedere Stretch at about 4:00 P.M. and was travelling slightly under 60 miles an hour; that she first saw the Cadillac car through her rear view mirror; that the Cadillac car passed on her left; and that she also saw the occupants through the rear window of the Cadillac car. Mrs. Rogers said all four of the occupants were in the front seat of the Cadillac car and that a girl with dark hair, wearing it as a ponytail, was on the extreme left of the front seat. This description would fit Nancy Ann Easley. Mrs. Rogers could not say that the girl was driving the car, ■but she did say that the girl was on the extreme left of the front seat.

When we consider that the positive testimony established that Jerry Muncrief was driving the car 30 to 40 minutes before the wreck, that Mrs. Rogers testified that a girl with a ponytail was on the extreme left of the front seat (which description would fit Nancy Ann Easley), and when we consider the positions of the bodies and the position of the wrecked car — when we consider all of these matters — we conclude that a question of fact was made for the jury as to whether Jerry Muncrief was the driver at the time of the fatal impact. It was for the jury to decide how much weight to give to the presumption that Jerry Muncrief, having been the driver, continued to be so. It was for the jury to decide how much Mrs. Rogers could have actually seen with a car passing her as this one was, and how much she could have seen through the back window of the Cadillac convertible. It was for the jury to decide whether the position of Nancy Arm Easley’s body in the car indicated that she ivas all the time seated in the back seat and was kept from being-thrown clear of the car because the top of the convertible had not become entirely severed. The Trial Court correctly submitted to the jury the question of who was the driver of the car; and we leave that verdict undisturbed.

Affirmed.

       This is the same party known and referred to as “Jerry Muncrief” throughout the testimony, and this opinion.

       That section reads: “Every such action shall be brought by and in the name of the personal representatives of such deceased person, and if no personal representative, then same shall be brought by the heirs at law of such deceased person. Every action authorized by this act [§§ 27-906 — 27-910] shall becommenced within three [3] years after the death of the person alleged to have been wrongfully killed and not thereafter. [Acts 1957, No. 255, § 2, p. 790.]”

       The guest statutes (Ark. Stat. Ann. §§ 75-913 and 75-915 [Repl. 1957]) were not pleaded and were not issues in this case. Among other cases cited in the briefs are: Rook v. Moseley, 236 Ark. 290, 365 S.W. 2d 718; and Carter v. Montgomery, 226 Ark. 989, 296 S.W. 2d 442.


text:
    Shafer v. Akers.
    5-3361
    383 S. W. 2d 508
    Opinion delivered November 9, 1964.

      Charles IF. Garner, for appellant.

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

In 1960 the appellants, the widow and heirs of R. E. Shafer brought this suit to quiet their title to several tracts of land in White county. By intervention the appellees, Lee and Fred Akers, asserted title by adverse possession to a very small part of the land — a parcel of about 1.9 acres. The chancellor sustained the appellees’ contention and entered a decree quieting their title. The appellants insist that the decree is against the weight of the evidence.

That one or both of the appellees had actual possession of the disputed tract for some sixteen years before this suit was filed is practically an undisputed fact. The land lies on the bank of the White river and has been the site of a fishing and boating facility. Lee Akers bought the business, which was known as Freshwater Fish Company, from E. F. Brown in 1944. In about 1955 Fred Akers, Lee’s brother, became a partner in the venture.

Lee testified that when he bought the Fish Company’s business in 1944 he was unable to find out who owned the land. He says that he has claimed ownership of the land ever since he acquired the business. There is no doubt about the Fish Company’s possession having-been open and notorious. Its proprietors have main-tamed fishing docks and a houseboat at the edge of the water. On the land itself there have been cabins with electric lights, parking areas, a gasoline pump supplied from a buried storage tank, racks for drying nets, and equipment such as rental boats for commercial and sporting fishermen.

The appellees have not had record title to the land, but neither is there proof of record title in the appellants. They merely show that in 1952 R. E. Shafer, their predecessor in title, received from a cooperage company a deed to land that includes the 1.9 acres in question. The Shafers have paid the taxes every year upon the tracts they claim.

It is contended by the Shafers that the Fish Company’s possession has been permissive. They say that for about sixteen years R. E. Shafer rented a 40-acre tract of pasture land that Lee Akers owned in the vicinity. After Shafer obtained his deed in 1952 he permitted Akers to occupy the river front property now in issue in return for Shafer’s continued occupancy of the pasture land. Akers denies this testimony, asserting that he rented the pasture to Shafer in 1950 only, after a flood had compelled Shafer to seek more land for his mules.

In urging their contentions the parties rely upon oral testimony that is hopelessly in conflict. The Fish Company’s actual occupancy of the property is consistent either with its own claim of adverse possession or with the Shafers’ claim of a parol agreement for an exchange of possessory rights. It is of some significance, however, that Akers had controlled the property for eight years before 1952, when the Shafers say that his occupancy became merely permissive. The chancellor had the advantage of seeing and hearing the witnesses as they testified. Our review of the record does not convince us that his decision is against the preponderance of the evidence.

Affirmed.


text:
    Clay v. Dodd.
    5-3349
    383 S. W. 2d 504
    Opinion delivered November 9, 1964.

      William M. Stocks, Bethell S Pearce, for appellant.

      Wayla/iid A. Parker, for appellee.
   Paul Ward, Associate Justice.

This is a dispute over a common boundary line between property owned by the parties. Appellees’ land lies in the northwest quarter of Section 4, Township 6 North, Range 31 West. Appellant’s land adjoins on the west and is located in the northeast quarter of Section 5, same township and range. Appellant says the common boundary line is one-half mile long. It is conceded by appellant that “the fence line enclosing the described lands and separating the same from adjoining land was established more than fifty years ago.”

When appellant moved a portion of the fence 20 feet to the east, appellees filed this suit to restrain him from further trespassing and from interfering with the quiet enjoyment of their lands. Appellees claimed adverse possession by them and their predecessors in title for more than 50 years and also claimed that the fence dividing their property from appellant’s property had been mutually accepted for said period of time. In his answer appellant “admits that plaintiffs acquired said property by purchase about 14 years ago and took immediate possession of same”, but denies “that there has been a mutual agreement by the parties respecting the boundary line within the past 14 years ...”

At the close of a lengthy hearing the trial court found that no question of adverse possession was involved, but that the decisive question was “whether the fence, which by the undisputed evidence, has been in existence for the past fifty years, has been acquiesced in by the respective owners and their, predecessors in title.” The trial court resolved this question in favor of appellees and quieted appellees’ title to the land bounded by the west fence line as established by the evidence, and enjoined appellant from asserting any claim to the disputed strip of land.

After a careful study of the record and the several contentions of the parties we are unable to say the trial court’s finding is against the weight of the evidence. This appears to us to be a case wherein we must rely strongly on the frequently stated rule that the trial judge, who sees and observes the witnesses, is in a better position than we are to adjudge the credibility of the witnesses and the weight of their testimony. This is true because much of the testimony refers to certain locations on the ground which are not identifiable on the exhibits, thereby rendering the testimony meaningless.

Although it is contended by appellant that many years ago there were two fences (between which ran a road) it is not clear to us at what period the east fence ceased to exist. There is, however, testimony that there was never more than one fence. It appears undisputed that when appellees bought their property 14 years ago there was only one fence which was the west boundary line of their property. Consequently, we think the trial court was justified in finding that the old fence line became the boundary line by acquiescence of the parties and their predecessors in title. It is not seriously contended by anyone, that there was ever any misunderstanding about or trouble over the fence line for over 50 years. In such situation the applicable rule was clearly stated by this Court in Gregory v. Jones, 212 Ark. 443, 206 S. W. 2d 18:

“It is true that in this case the original rail fence line was established without a prior dispute as to boundary ; but the recognition of that line for the many intervening years (34 in this case) shows a quietude and acquiescence for so many years that the law will presume an agreement concerning the boundary.”

See Tull v. Ashcraft, 231 Ark. 928, 333 S. W. 2d 490.

We do not agree with appellant that the trial judge committed reversible error in viewing part of the old fence line. The court was confronted with conflicting testimony about whether there has been one or two fences in existence for some 50 years. Under the circumstances it appears the trial judge was merely seeking to evaluate the conflicting testimony. This he had a right to do, under our decision in the case of Mitcham v. Temple, 215 Ark. 850, 223 S. W. 2d 817. Also, it appears that appellant expressed no objection to the court’s action although he had an opportunity to do so before the- rendition of the decree.

Likewise, we find no error in the court’s allowing appellees to introduce into evidence their Exhibit “C” which is a map of their lands made by the Soil Conservation Service in the regular course of business in that county. The purpose of the map’s introduction, as stated at the time, was to depict the west line of appellees’ property as described in the complaint. We are unable to see, and appellant has not pointed out, how he has been prejudiced by the introduction' of the map. Also, the map was admissible under our decision in Graves v. Wimpy, 237 Ark. 368, 372 S. W. 2d 812.

Affirmed.