author: Cableton Harris, Chief Justice.

text:
    A and B v. C and D.
    5-3514
    390 S. W. 2d 116
    Opinion delivered May 10, 1965.
    [Rehearing denied June 7,1965.]

      James L. Sloan, Leon Lush, Houston, Texas, for appellant.

      Smith, Williams, Friday S Boiuen, By Robert V. Light, for appellee.
   Cableton Harris, Chief Justice.

This appeal questions the validity of an adoption. As a matter of considering the welfare of the child involved, and in keeping with the spirit of the adoption law, the litigants will not be referred to by name, but rather, letters-of the alphabet will be used in discussing the facts. B is the natural mother of the child, a female infant, hereinafter called E. A is the husband of B. C and D are the adoptive parents of E. On January 24,1961, C and D obtained a temporary order of adoption of E in the Probate Court of Pulaski County on the basis of a petition alleging that E was the illegitimate child of B, having been born on January 18, 1961, at a Little Bock hospital. Piled with the petition was a “Consent of Adoption,” executed by B before a Notary Public, and reciting that B had given birth to E; that E was illegitimate, and that B waived all rights to E, and waived service of process and notice of hearing. A final order of adoption was entered on July 25, 1961. On June 26,1963, B, joined by A, whom she had met, and married in Texas, in June, 1962, filed a petition to vacate the adoption on the basis of fraud and unavoidable casualty, and C and D responded writh a general denial, also asserting that the period of limitation (Ark. Stat. Ann. §56-112 [1947]) had expired prior to the commencement of the action. After hearing testimony, the Probate Court of Pulaski County (Second Division) entered its order, dismissing the petition (as amended), and finding, inter alia, that B, at the time of executing the consent of adoption was of full legal age, of sound mind, and possessed the capacity to exercise her normal mental faculties. “She was not, at this time, under the influence of any drugs that would affect her ability to understand the nature of her acts.” The court further found that no fraud was perpetrated by any person in connection with execution of the consent, “nor was there any overreaching by any person dealing with her in this connection. ’ ’ Prom the judgment so entered, appellants bring this appeal.

The core, or essence, of this litigation is the contention of appellants that the consent of adoption was' signed by B not long after she had given birth to E, and at a time when she was hospitalized, under the influence of drugs, and in a distressed mental and emotional state. It is asserted that she was told by some individual, whom she understood to be a member of the hospital staff, or a physician, that her baby had died, and she would be required to sign some papers in connection with the death; that when signing the consent, she was not aware that she was consenting to the adoption of E, nor aware that she was waiving any of her rights as the natural mother. According to her testimony, B, in 1960, was employed in the bookkeeping department of a Little Rock concern. She had never been married, but discovered that she was pregnant. By wearing a tight girdle and full skirts, she concealed her condition, and continued with her duties. B received no prenatal care. On January 17, 1961, at about 11:30 PM, she went to St. Vincent’s Infirmary, accompanied by four girl friends, who were unaware of the real reason for the trip to the hospital; B told the nurse that she thought she might have appendicitis, and when a doctor came in, the girls were asked to leave. Upon examination, the physician asked if she were pregnant, and she admitted that she was, and was immediately taken to the delivery room. B stated that she received a shot, and remembered nothing else until the next day at noon, when, she stated, a white man was in her room and told her that she had a brother coming to visit her from Forrest City. She definitely placed this time as Wednesday, because she knew that the air-raid siren sounded on Wednesday at noon, and the noise had aroused her. She told the man that she did not have any relatives in Forrest .City, and remembered nothing further until late in the afternoon, when Bonita Haston (since married, and now named Griffith), a friend, came to visit. According to B, it was dark in the room by that time, and a man came in and told her that her baby had died. She was unable to describe the man, but remembered that he said there would be some papers for her to sign in order to give the hospital the authority to make an autopsy. She stated that she felt sleepy, as she termed it, “druggy.” This occurred on January 18. The witness stated that on the 19th, a nurse came into the room and gave her some pills, and perhaps a shot; that later, around noon, or in the afternoon, a man and woman came into the room with some papers. She testified that she was shown where to sign, and was given a pen to sign with, but that she was not advised as to the nature of the papers. It was her thought that they were the papers which had been referred to the day before. After these persons left, her boss, a Mrs. Taylor, came and visited for twenty or twenty-five minutes, asking if B needed any money, and advising that she eonld obtain a loan, if necessary. B testified that she (B) had about $170.00 cash in her purse, and about $175.00 in the hank. On the morning of the 20th, her brother (who lived in North Little Rock) visited her, and she told him that she injured herself when falling while bowling, and this was the reason for her being in the hospital. Later, upon being advised by a nurse that she could go home, she was taken by her brother to North Little Rock. From there she went to her mother’s home located in a small town in Arkansas, and stayed until the following Sunday, when she returned to Little Rock, and resumed work.

After marrying, she went to Dr. John Roberts Phillips in Houston for treatment of a cyst, and, during the examination, was asked if she had ever been pregnant. Since her husband was with her, B responded in the negative, but subsequently told Dr. Phillips that she had been pregnant, and had delivered a baby, but that it had died. Upon the advice of the doctor, she revealed these facts to her husband. A insisted that they come to Little Rock to ascertain if the baby actually had died, and they employed an investigator, Reed Thompson. Later, Thompson advised them that the baby was alive, and had been adopted, but would not give any information as to the people who had obtained the adoption. A stated that Thompson suggested that B see a psychiatrist, and Thompson further stated that he had learned that B had given her consent to the adoption, and that he did not care to have anything to do with the case.

Bonita Griffith testified by deposition that on the afternoon of Wednesday, January 18, 1961, she visited B at St. Vincent’s, and was in the room, when a white man, in hospital clothing, entered and told B that her baby had died, and that there would be some papers for her to sign. Mrs. Griffith stated that she had learned at B’s place of employment that B was in the hospital, and she went to St. Vincent’s and made inquiry. She was told that no one by that name was registered, hut on confirming from the office, where B was employed, that her friend was indeed in the hospital, Mrs. Griffith stated that she went from room to room until she found B on the third floor.

The Little Rock physician and obstetrician, who delivered the baby, testified that he was on the staff of St. Vincent’s Infirmary, and was the physician on call for unassigned patients in obstetrics and gynecology for the month of January, 1961. He stated that on the 18th, he received a call from the emergency room, and found that he had been assigned a patient who was in labor. He ascertained the name and read the information on the emergency records. This patient was B. He testified that the records reflected that she had received thorazine (a tranquilizing drug) at 1:00 AM, and received demerol and scopolamine at 1:45 AM, and at 3:00 AM. He explained that the purpose of demerol is to relieve pain, and the purpose of scopolamine is to dry up secretions, so that the patient will not be likely to vomit. The doctor testified that B told him that she was unmarried, but had been able to conceal her pregnancy from her employer, parents, and friends; that she did not know exactly what she was going to do, but was considering adopting her baby out. ’ ’ He said that he told her he would attempt to help arrange an adoption if she desired. The baby was delivered at 9:25 AM on the 18th. The witness stated that he saw her again between 4:00 and 5:00 PM when he checked his patients at the hospital, and at that time she told him that she wished to have the baby adopted. The doctor testified that he then contacted a couple who had desired to adopt a baby, but this couple had changed their minds, and no longer desired to adopt a child. He then called an attorney, with whom he was acquainted, to ascertain if the attorney knew of a suitable couple who wished and desired an adoption. Subsequently, C and D called the doctor’s office, and made an appointment to see Mm. Appellees went to Ms office, and they discussed the adoption and the usual arrangements, including financial arrangements. The witness stated that he saw B each day until the day of her discharge from the hospital, which was January 21, and that, in his opinion, she was given no drugs that would have affected her at the time of the signing of the consent to adoption. He said that he advised her on Friday that the attorney would he in to see her for the purpose of getting-adoption papers signed, and that she was entirely rational and lucid. The doctor testified that on the next morning (Saturday, January 21) he asked her if she had signed the papers for adoption, and she replied that she had.

Dr. Thomas H. Wortham was not acquainted with B personally, and never did see her, hut testified that, based upon an examination of B’s records, reflecting the medication that she had received, it was his opinion that the medication would affect the reasoning- process for about eight hours, and, at the most, twelve hours.

According to the Little Rock attorney, who prepared adoption papers on instructions from C and D, he proceeded on Friday, January 20, to St. Vincent’s Infirmary, in the company of Mrs. Helen Ward, a secretary and Notary Public in the Attorney G-eneral’s office. They entered the room which had been pointed out as the one occupied by B, the lawyer introducing himself and Mrs. Ward, and explaining the purpose of the visit. He testified that B appeared to be expecting him, and indicated that she knew who he was, and the purpose of his visit. The witness stated that he told her he represented the people who wanted to adopt her child, but that his relationship with his clients was confidential, and that if she consented to the adoption he would not be able to disclose the name of the client. He said that he also explained that he did not represent her (B); that the consent was a full and. absolute consent, and that ‘ ‘ she could not change her mind. ’ ’ The attorney stated that he handed her the paper, and that she looked at it for a minute or two, then signed, remarking that she thought it was best for the child. He said that B sat up in bed most of the time that he and Mrs. Ward were in the room. The lawyer further testified that Reed Thompson called and informed him that A had married a woman who had given her child for adoption, and asked if he might have the permission of the witness to tell A the name of the attorney (who had' handled the adoption), and inquired whether the latter would consent to see A. After receiving permission, A made a visit to the office, and stated that his wife was very upset because she had permitted her child to be adopted; that she was under the care of a psychiatrist, and had been advised to try and get the child back. The lawyer was quite positive that A did not say that B had been informed in the hospital that her baby had died. At the request of A, a letter was directed to his clients, setting out appellants ’ feelings in the matter, but C and D replied that they did not desire to talk with A, and felt that in remaining unidentified, the best interests of the child would be served.

Mrs. Helen Ward verified all that the attorney had said, stating that he had explained to B the meaning of the consent to adoption, and advising that it would be final. Mrs. Ward quoted B as saying that she had thought about the matter, and realized'fully what she was doing; that she could not care for the baby properly, and would rather that it would be reared in a home with two parents, who could look after it, and that she was glad that a nice couple would get the baby.

The record reflects that B, while in Houston, Texas, had consulted Paul V. Ledbetter, Jr., a psychiatric social worker, and two psychiatrists. In answering interrogatories, Ledbetter stated that B did not tell him that her baby had died. He further stated that it was his understanding “ that at no time did she believe the child to have died.” There was no testimony from the two Houston psychiatrists.

We think the preponderance of the testimony supports the findings of the Probate Judge. In addition to the testimony, which we feel preponderates in favor of appellees, the acts of B clearly indicate that she was aware of the fact that she had consented for the child to be adopted. For instance, while stating that she was told that the baby had died, B made no inquiry about funeral arrangements, nor did she ever inquire as to where the baby was buried. Although aware of the fact that she had incurred financial obligations for medical expenses while in the hospital, and though stating that she had saved some money for this purpose, B left the hospital without consulting, or making arrangements, with any hospital authority for payment of these bills; nor did she ever make any payment. As stated, we think the evidence is convincing that B, not only did not have any fraud practiced upon her, but was also fully cognizant of the nature of the instrument executed, i.e., she was aware that she was irrevocably giving up her rights to E.

It is asserted that the Probate Court erred in receiving testimony that C and D were proper persons to rear the child. Very little evidence was offered on this point, and certainly the testimony was only incidental to the major issue. We agree that, in this particular hearing, the suitability of the adoptive parents was not in question, but we are unable to see that any prejudicial error was committed. In fact, as is known by the attorneys, this court tries Probate and Chancery cases ele novo, and we think the evidence is ample to sustain the court’s judgment, absent the testimony referred to.

Finally, it is urged that the consent to adoption was not properly executed. Appellants point out that the adoption statute requires a written consent, verified by affidavit, and they assert that Mrs. Ward only witnessed and acknowledged. B’s signature. It is true that the evidence does not reflect that B held up her hand while Mrs. Ward recited a formal oath, but we think there was substantial compliance with the statutory requirement. Mrs. Ward was present in the room; Mrs. Ward did see B sign the consent; Mrs. Ward did hear the explanation given B by the attorney representing C and D, and it is obvious that this appellant' executed the instrument with the full intent to do that which is required by the statute. Ark. Stat. Ann. §28-206 (Repl. 1962) provides:

‘ ‘ Every affidavit shall be subscribed by the affiant, and the certificate of the officer before whom it is made shall be written separately, following the signature of the affiant. ’ ’

These requirements, of course, were met in the instant case. In Cox v. State, 164 Ark. 126, 261 S.W. 303, we said:

“So here we think if appellant signed the affidavit for the purpose of swearing to it, knowing that the clerk regarded his act of signing the affidavit as a method of making affirmation, the jury was warranted in finding that appellant was sworn. ’ ’

We accordingly find no merit in this contention.

As set forth in this opinion, we, like the Probate Judge, find no fraud, or overreaching, and are convinced that the consent was obtained at a time when B was fully cognizant of the significance of her actions. Still, we think it appropriate to make some comment relative to this method of acquiring children for adoption, which has now become an established practice in some areas of the State. Acquiring a child in this manner is, most often, unwise. The natural mother, after some period of time, marries, and sets up her home, and frequently decides that she desires to have her child back. Such a situation may well mean grief, sorrow, and expense for both the mother and the adoptive parents, if the mother is able to learn the whereabouts of the child. When in the hospital, though fully aware that she is giving up her child, her thinking-processes may well be clouded by the nature of the predicament in which she finds herself. In addition, the general policy in such cases, which has developed over the years, of the adoptive parents paying all expenses connected with the birth of the child, is somewhat akin to the actual sale of babies, which has occurred, though, of course, unlawfully, in some sections of the country. We think constructive legislation could well be enacted in the adoption field by the General Assembly.

Finding no reversible error, the judgment is affirmed.

Justices Johnson and Holt, not participating.

       Dr. Phillips, by deposition, verified that B had told him that her baby had died.

       The witness testified that she looked into the various rooms on the first floor, then the second floor, and repeated the process until she found B on the third floor. On cross-examination, she stated that the rooms on the first floor had patients in them. Subsequently, both local doctors, whose testimony is hereinafter discussed, stated that there are no patients on the first floor at St. Vincent’s.

       He explained that the physician on call for unassigned patients took care of those people who came to the hospital without a doctor, who did not request a particular doctor, and who needed attention in his specialty.

         C, the adoptive father, paid the fee of $150.00, and also paid all hospital bills, which the doctor said was customary in this type of adoption case. “It’s usually understood, as you well know, the adopting parents usually pay the expenses.”

       C, at the suggestion of the attending physician, obtained a doctor of his choice to examine the child, before proceeding further with the adoption. He selected Dr. Wortham.

       In some instances, prospective adoptive parents have themselves made all arrangements, including financial, with the mother, and, of course, in all such cases, the natural parent is always aware of who has her child.


source: Caselaw Access Project

author: Carretón Harris, Chief Justice.

license: Public Domain

text:
    Gregory v. Walker.
    5-3523
    Opinion delivered May 10, 1965.

      Felver A. Rowell, Jr., for appellant.

      Charles II. Eddy, Philip II. Loh, for appellee.
   Carretón Harris, Chief Justice.

Appellant, Bob Gregory, on June 30,1962, entered into a parol agreement with appellee, C. E. Chapman, to purchase a certain 130-acre farm from Chapman. The property was being purchased for the benefit of Gregory’s son, David, who desired to commence farming operations, rather than to attend college. Gregory, therefore, was insistent that he must have possession of the lands as of January 1, 1963. Chapman agreed to give possession on that date. At the time, the lands were being rented to Aubrey Walker, also an appellee herein, and Gregory and Chapman agreed that the 1962 rents were to he paid to appellant. Walker did not give up the lands, hut continued to hold same for the year 1963, and thereafter, appellant instituted suit against both Chapman and Walker, seeking $6,000.00 damages against Walker for unlawful detention of the premises, and, in the alternative, seeking judgment against Chapman in the sum of $7,500.00 for damage sustained by virtue of breach of contract. The case was transferred from the Circuit Court to the Chancery Court of Conway County, and trial was held in that court. After hearing the evidence, the court found that the Gregorys purchased the land from Chapman on June 30, 1962, for the benefit of their son, and further found that there was an agreement that Gregory was to receive the rents (except grain rents) for the year 1962, and that Chapman would notify Walker to vacate the premises by the end of the year. The court found that Walker’s tenancy was a year-to-year holding, entitling him to six months ’ notice to vacate; further, that Chapman did, on July 1, 1962, give notice to Walker to vacate at the end of the year. However, the Chancellor held that this notice was insufficient to terminate the year-to-year tenancy. The trial court also found that the reasonable rental value of the lands for 1962 and 1963 was the agreed crop rental; further, that Walker had paid the rent in full for 1962, £ £ and has paid or stored the beans constituting the rent for 1963 subject to collection by the plaintiff Gregory.” Accordingly, no judgment was rendered against this appellee.

As to Chapman, the court found that he owed Gregory for the reasonable rental value of the premises for the years 1962 and 1963, less amounts paid by Walker. This resulted in a judgment against Chapman for $50.00, and also judgment for storage costs on the beans. From the decree entered in accordance with these findings, appellant brings this appeal.

For reversal, appellant relies upon two points, first, that the trial court erred in holding that Aubrey Walker did not receive timely notice to terminate the tenancy, and second, that the court erred in holding that Chapman was only liable for the reasonable rental value of the land, rather than the actual damages sustained by appellant.

We agree with the trial court that the notice to vacate given appellee Walker by appellee Chapman was insufficient to terminate the year, to year tenancy. It is pointed out in 32 Am. Jur., Section 997, under Landlord and Tenant, that there is no absolute rule as to computation of time, and the practice varies in the several jurisdictions. The Chancellor, in a written opinion, succinctly gave his reasons for holding the notice insufficient, and since we completely concur, this portion of his opinion is adopted in full as follows:

“The notice to vacate given defendant Walker by defendant Chapman on July 1, 1962, was insufficient to terminate the year to year tenancy. Although it is generally stated that such tenancy requires 6 months ’ notice, very little authority has been found on the day such notice is to be given. However, it appears that in Arkansas, notices to terminate tenancies must require that the tenant vacate at the end of one of the recurring periods of holding. Reece v. Leslie, 105 Ark. 127 [150 S. W. 579]; Stewart v. Murrell, 65 Ark. 471 [47 S.W. 130]. These cases involve month to month tenancies but the principle would appear to be the same, that is that Walker was required to vacate on December 31, 1962. It appears, also, as to month to month tenancies that the notice to vacate must be given prior to the commencement of one of the recurring periods of holding and that a notice given after the period has commenced is insufficient. Wyatt v. Erny, 193 Ark. 479 [101 S. W. 2d 181]; King v. Solmson, 188 Ark. 237 [65 S.W. 2d 19]. An annotation appearing at 88 ALE 1344 gives cases from other jurisdictions, some of which agree with this holding and some of which would hold the notice in this case to be sufficient. See also 32 Am. Jur. “Landlord and Tenant” Secs. 998-999. This holding, by excluding the day of the notice, appears to be in keeping with Ark. Stats. Sec. 27-127, defining “month” to mean a calendar month and Sec. 27-130 requiring that only one day between two acts may be counted. Thus, since Mr. Walker was entitled to 6 months ’ notice, terminating his tenancy on December 31, 1962, the notice given on July 1, 1962, would either be less than 6 months’ notice since he was to vacate on December 31,1962, or would have been a notice to vacate on January 1, 1963, after the new term had commenced. ’ ’

It might be added that this court has, on numerous occasions, held that, in the computation of time, the first day is to be excluded, and the last day, included. See State ex rel Hebert, Prosecuting Att’y. v. Hall, Secretary of State, 228 Ark. 500, 308 S.W. 2d 828, and cases cited therein.

The trial court found that the measure of damages was the reasonable rental value of the lands for the years 1962 and 1963, and that the agreed crop rental met this test. Appellant asserts that this was error, vigorously contending that if he had been placed in possession of the premises on January 1, 1963, a substantial profit would have been made from farming operations. Gregory stated that he would have made 25 bushels of beans to the acre on 115 acres, and the beans would have sold for $2.68 a bushel. He said that seed would have cost a total of $300.00; that fuel would have cost approximately $400.00, and that $1,000.00 would have been paid to “get it chopped.” It is argued that appellant should have been granted judgment in the amount of $7,705.00, less the rent paid by Walker for the year 1963.

We cannot agree with this contention. In Lamkins v. International Harvester Co., 207 Ark. 637, 182 S.W. 2d 203, this court said:

“Furthermore, appellant’s claim for damages, asserted in his cross-complaint, is based upon allegations that he was prevented from planting and' growing a twenty-five-acre crop of soybeans. The measure of damages for preventing planting of a crop is the rental value of the land.”

Several cases are then cited in support of the statement. Likewise, in Dilday v. David, 178 Ark. 898, 12 S.W. 2d 899, we commented:

“The law is settled that, where no crop has been planted, the measure of damages for an actionable wrong so preventing is the rental value of the land.”

Further, in Sumlin v. Woodson, 211 Ark. 214, 199 S.W. 2d 936, this court, after stating that damages cannot be based upon conjecture and speculation, said:

“Such damages ‘must be certain both in their nature and in respect to the cause from which they proceed. It is against the policy of the law to allow profits as damages, where such profits are remotely connected with the breach of contract alleged, or where they are speculative, resting only upon conjectural evidence or the individual opinions of the parties or witnesses. ’ 13 Gyc. 53. Spencer Medicine Co. v. Hall, 78 Ark. 336, 93 S.W. 985; Beekman Lbr. Co. v. Kittrell, 80 Ark. 228, 96 S.W. 988, Hurley v. Oliver, 91 Ark. 433, 121 S.W. 920.’ To the same effect, see, also, St. L.-S. F. Ry. Co. v. Spradley, 199 Ark. 174, 133 S.W. 2d 5; and S.W. Tel. & Tel. Co. v. Memphis Tel. Co., 111 Ark. 474, 163 S. W. 1153, and earlier cases there cited. See, also, Yol. 7 West’s Arkansas Digest, ‘Damages’, § 40,124,176, listing other cases from this court. See, also, 17 C. J. 758, 788 and 910 for general discussion. (25 C. J. S., Damages, §§ 28, 43,90.) In 15 Am. Juris. 560, after giving the general statements from leading cases, this rule is deduced:
“It has been said that the most definite rule that can De drawn from the cases would seem to be that if by any chance or under any condition of affairs then existing the profits might not have accrued though the wrongful act had not intervened, there can be no allowance of profits lost as damages; but if, except for the wrongful act, there must have been profits, notwithstanding any other circumstances, existing at the time of the perpetration of the wrong, the question of their speculativeness and contingency is absolutely negatived.”

Crops are, of course, dependent on many factors, inter alia, the elements, the type of soil, the time of planting— and the ability of the farmer. Gregory testified that he would have made “twice as much,” and then proceeded to give the figures heretofore related. This evidence was no more than guesswork and speculation, and it is also noteworthy that Gregory testified that he had never grown soy beans himself. For that matter, the testimony, as to the crop that he would have made, had possession been turned over to him, is somewhat in conflict with his earlier statement that the land was purchased for the benefit of his son, who would farm it. Be that as it may, the testimony introduced is insufficient to establish damages.

Appellee Chapman urges affirmance of the court decree in the main, but argues that the court erred in directing him to pay $50.00 to Gregory, the storage bill on' some of the soy beans, and taxing him with the court costs. We are unable to consider this argument, since appellee took no cross-appeal from the decree of the court.

Affirmed.

       The deed was made to David, and the receipt for the down payment was also in his name.

       Walker had withheld $50.00 from the 1962 bean rent, for work that he had done for Chapman, and the court held that Walker was entitled to the $50.00. This was the reason for the judgment in that amount for Gregory against Chapman.

       From the record: “Q. — Have you ever raised soy beans? A.— Myself, I haven’t, but I’ve had it done. Q. — You say you’ve had it done. You mean people have rented your land and raised soy beans on your land? A. — Well I been raising soy beans the last two or three years with other people, partnership and so forth, on some other land.”


author: Ed. F. McFaddin, Associate Justice.

text:
    Mo. Pac. R. R. Co. v. Southern Cotton Oil Div.
    5-3512
    390 S. W. 2d 113
    Opinion delivered May 10, 1965.
    [Rehearing denied June 7,1965.]

      William J. Smith and William H. Sutton, for appellant.

      Wright, Lindsey, Jennings, Lester & Shults, for appellee.
   Ed. F. McFaddin, Associate Justice.

This appeal involves a “switch agreement” between the parties. The appellant, Missouri Pacific Railroad Company (hereinafter called ‘ ‘ Carrier”), filed this action against appellee, Southern Cotton Oil Division, Hunt Foods and Industries, Inc. (hereinafter called “Shipper”), basing its cause of action on the said switch agreement.

The shipper has a plant in Newport, Arkansas, and property. The germane provisions of the switch agreement are:

“Sec. 2. Shipper shall maintain vertical clearance of 25 feet from nearer rail, and horizontal clearance of 5% feet from center-line, of switch; (emphasis supplied). . . .
“See. 3. Shipper also agrees to indemnify and hold harmless Carrier for loss, damage or injury from any act or omission of Shipper, Shipper’s employes or agents, to the person or property of the parties hereto and their employes and to the person or property of any other person or corporation, while on or about Switch; ...
“Sec. 4. Shipper, at Shipper’s cost and responsibility, shall continuously maintain scale, live rails and switches, and appurtenances to each thereof. Shipper agrees to indemnify and hold harmless the Carrier from all liability, damages, expenses, attorney’s fees and costs, which Carrier may incur or suffer, caused by the maintenance, existence or use of scale, live rails, switches and appurtenances to each thereof. ...”

On December 3, 1961 Mr. Davis, a brakeman for the carrier, was having cars placed on the scales of one of the switch tracks for weighing. In signalling the engineer, Mr. Davis moved sideways without noticing a concrete minnow pool on the shipper’s property. As a result Mr. Davis fell in the pool and received injuries. He threatened to file action against the carrier under the Federal Employer’s Liability Act; and after investigation and negotiation the carrier settled Mr. Davis’ claim for $4693.60. This settlement was made in good faith after the shipper had refused to participate in any way. Then the carrier sued the shipper for said amount and also costs of investigation, claiming that under the switch contract the shipper was obligated to indemnify the carrier for all such amounts.

The shipper admitted: (a) the foregoing provisions of the switch agreement; (b) the fact that Mr. Davis was injured; (c) the refusal of the shipper to participate in any settlement madé by the carrier with Mr. Davis; and (d) the settlement actually made by the carrier with Mr. Davis. But the shipper, by pleading and evidence, insisted that it was not liable in any way, claiming that Mr. Davis did not receive his injuries while on any space or area covered by the switch contract.

The cause was tried before the Court without a jury and resulted in a judgment for appellee (shipper) and this .appeal ensued, in which only one point is urged by appellant (carrier), to-wit: ‘ ‘ The court erred, as a matter of law, in refusing to render judgment for the appellant. ’ ’ The parties have cited us to a number of cases involving switch agreements with provisions similar to those in the case at bar, some of which cases are: C.R.I. & P. RR. v. Dobry Flour Mills, 211 F. 2d 785; Colonial Stores v. Central of Ga., 279 F. 2d 777; Mann v. Pere Marquette (Mich.), 97 N.W. 721; Seaboldt v. Penna. RR. Co., 290 F. 2d 296; Anthony v. La. & Ark., 199 F. Supp. 286; Union Pac. v. Bridal Veil Co., 219 F. 2d 826; Booth-Kelly Co. v. So. Pac. Co., 183 F. 2d 902; and Ruddy v. N.Y. Central, 224 F. 2d 96.

We come then to the evidence. The shipper had maintained for more than twenty years a concrete “minnow pool” on its premises. Prom the pictures introduced in evidence the pool appears to be about four feet square with 6-inch concrete walls rising about 18 inches above the ground level. The outside of the concrete wall nearest the switch track is 8 feet, 8% inches from the center of the switch track; that is, the center of the switch track is 8 feet, 8% inches away from any part of the minnow pool. The switch agreement, as previously quoted, provided a guarantee of clearance of 8 feet, 6 inches, so the outside wall of the minnow pool lacked 2% inches of being within the area contracted by the shipper to be free of obstacles. In order to keep grass from growing around the concrete walls of the minnow pool, the shipper had scraped the ground to the extent of about 10 inches from the outside wall of the minnow pool on all four sides. The carrier claimed that this clearing of the grass around the minnow pool had made a depression about two inches deep next to the concrete walls and that it was this depression which invaded the area of guaranteed clearance.

We hold that a question of fact was made in the case at bar as to whether scraping the grass around the sides of the minnow pool constituted a violation of the free clearance which the shipper was required to maintain for the carrier. The switch agreement did not require that the ground be level. The pictures introduced in evidence show many sloping places. We cannot say as a matter of law that scraping the grass from around the concrete wall to a two inch depth was a violation of the contract for clearance. It was a question of fact whether scraping the grass adjacent to the minnow pool was a violation of the horizontal clearance provision of the switch agreement.

In its judgment the Circuit Court made these findings :

“2. Defendant has not violated any of the provisions of the contract. . . .
“4. The accident did not occur on premises covered by the contract.
“5. No act or omission or conduct of defendant was a proximate cause of the accident. . . .
‘‘7. The minnow pool with a wall around it was open 'and obvious to all and had been seen by W. H. Davis daily for a long number of years. ”

From a careful study of the entire record, we cannot say that the Trial Court was in error under the facts shown.

Affirmed.

       The carrier’s liability under the Federal Employer’s Liability Law was much broader than the shipper’s liability under the switch agreement.


author: George Rose Smith, J.

text:
    DeSoto Hotel & Baths v. Luth.
    5-3556
    389 S. W. 2d 897
    Opinion delivered May 10, 1965.

      Q. Byrum Hurst, for appellant.

      Richard W. Hobbs, for appellee.
   George Rose Smith, J.

This is an action by the appellee for the value of personal property taken from his car while it was in the appellant’s custody. Summons was served on the defendant on either March 25 or March 27, 1964. The answer was filed on April 15. On motion to strike the answer the court found that the summons was actually served on March 25, so that the answer was filed on the twenty-first day. This appeal is from an ensuing order striking the answer and awarding the plaintiff a default judgment. The judgment must be reversed, for, in a case decided after the trial in the case at bar, we held that the statute permits the answer to be filed on the twenty-first day. Widmer v. J.I. Case Credit Corp., 239 Ark. 12, 386 S.W. 2d 702.

It is true, as the appellee points out, that the appellant ’s abstract- of the record is deficient, but since the appellee’s brief supplies the meager facts necessary to an understanding of the case his motion to affirm for noncompliance with Rule 9 must be denied.

Reversed.


text:
    Bunting v. Scott County Milling Co.
    5-3576
    389 S. W. 2d 896
    Opinion delivered May 10, 1965.

      Donald Poe, for appellant.

      Daily db Woods, for appellee. '
   George Rose Smith, J.

This is a workmen’s compensation case in which the claimant, Thomas William Bunting, seeks to recover compensation for permanent partial disability. The Commission’s denial of the claim was affirmed by the circuit court. The only question here is whether the Commission’s decision is supported by substantial evidence.

The appellee-employer operates a feed mill. On May 29,1962, Bunting suffered a severe compensable injury to his back when a stack of heavy feed sacks fell on him. Two vertebrae were fractured, but on July 9 Dr. Jenkins found that Bunting would be able to return to work on July 14, with no permanent injury.

Bunting did return to work and, at his request, was given light duties that involved no heavy lifting. On December 22, however, he tried to lift some sacks of feed and again hurt his back. He was away from his job, either in a hospital or at home, for several weeks. On January 19, 1963, Dr. Kirkpatrick examined Bunting and made a report that concluded with this paragraph: “In my opinion, this man has a healed fracture of the transverse process of the third lumbar vertebra. I see no indication of any further injury or disease state in the low back. I do not think he is disabled.” Eight days after this examination Bunting went back to his job and continued to work until April 20 when, according to the employer’s testimony, he was discharged for cause. At the first hearing in the case, held on July 9, 1963, the claimant testified that he was disabled and had been unable to do anything more than light part-time work after his second injury on December 22.

It was the unanimous opinion of the Commission that the claimant’s proof failed to establish, by a preponderance of the evidence, any permanent partial disability. In reaching this conclusion the Commission pointed out that “none of the doctors who saw claimant for his injuries have stated he has any permanent partial disability attributable to such injuries. ’ ’ This statement is accurate; there is no medical testimony to support the claim. To the contrary, Dr. Kirkpatrick was positive in saying that “I do not think [Bunting] is disabled.” The issue is entirely one of fact. With the testimony in conflict we are bound by the Commission’s decision. Kivett v. Redmond Co., 234 Ark. 855, 355 S.W. 2d 172 (1962).

Affirmed.


author: Paul Ward, Associate Justice.

text:
    Scaife v. Coleman.
    5-3505
    389 S. W. 2d 884
    Opinion delivered May 10, 1965

      W. K. Grubbs, Sr., for appellant.
    No brief filed for appellee.
   Paul Ward, Associate Justice.

The principal question for decision is whether appellees (Otto Coleman and Ray Eisele) have a right, acquired by prescription, of ingress and egress to and from their property over lands belonging to appellant (Mrs. Jane Scaife). Tom Dixon, a lessee, has no interest in this litigation and we will hereafter refer to Mrs. Scaife as appellant. A summary of the relevant and undisputed facts is set forth below.

Appellant owns (among other lands) the north one-half of the northwest quarter (80 acres) in Section 10 which we will hereafter, for clarity, refer to as tract “A”. She also owns the land (with certain exceptions immaterial here) adjoining on the east and extending approximately three-fourths of a mile to the levee on the west side of the Mississippi River, which land we will, for clarity, refer to as tract “B”. Appellees own the land adjoining tract “A” on the north, being in Section 3, and they also own land in the south portion of the northeast quarter of aforesaid Section 10. All the above described property lies in Township 18 south, Range 1 west. The alleged road in dispute runs north and south on or near the line dividing tracts “A”' and “B” for a distance of approximately one-fourth of a mile.

Pleadings. (Petition) On May 9, 1963 appellees filed a petition in chancery court against appellant which contained, in essence, the following allegations (after first setting forth the locations and ownerships of the land): The road (as above described) has been openly, continuously and adversely used by petitioners and the public generally under claim of right for more than seven years, and petitioners have “acquired a prescriptive right that is absolute and vested in the petitioners and the public generally”. This road is the only accessible way to the property being farmed and used by petitioners, and appellant, on November 15, 1962, obstructed the road and made it impassable to traffic, causing damage to petitioners in the amount of $7000. The prayer was that appellant be required to remove the obstruction, -that she be permanently enjoined from interfering with the use of the road by petitioner's, and for damages.

(Answer) Appellant denies the existence of any road such as claimed by appellees; denies that appellees or any other person has been adversely using any road across her land; denies that any person has acquired any prescriptive right to any way across her land; denies she has obstructed any road on her land; and, denies appellees have suffered any legally compensable damages. By way of counter-claim, appellant states there is a turnrow across tract “A” which her tenants and appellees have used at times as a road, and that appellees liad dug ditches along the turnrow and placed gravel thereon, causing her damage to the extent of $200. The prayer was that appellees’ petition be dismissed and that she be given $200 damages..

Findings. After a rather lengthy hearing, the chancellor found (among other things):

‘ ‘ There was never a fence along the east side of the Scaife place. There was a turnrow, road or passageway
. . . either all located on the Scaife place or on the line dividing the two tracts [A and B]. . . . This route was a turnrow for the Scaife place in those years when the rows or cultivation ran in that direction, but it was also, at all times, a way, the only way, a way of necessity, established, accepted and acquiesced by the family, as a means of ingress and egress to the Coleman and Scaife places for the family and their tenants.
. . . This route has been used by the several owners of the Coleman place for some 25 years or more. The owners of the Scaife place allowed the way to pass from a family way to one used by strangers without objection and seemingly with approval. During the past quarter of a century, the owners of the Scaife place, despite the several different owners of the Coleman place, have never voiced any objection to the use of the route as a means of ingress and egress. They have by their non action and acquiescence through the years led the several owners of the Coleman place to believe and rely on their right to use said way. . . .”

Based upon the above (and other) findings the trial court decreed appellees had acquired, by prescription, a private easement over the lands of appellant and described the road in 'detail as set out in the record at page 35. The trial court also gave appellant judgment for $200 against appellees and appellees judgment for $94 against appellant.

On appeal appellant urges four separate points which may be. summarized as.follows: One, There is no-evidence to support the findings and decree of the trial court; and Two, There is no evidence to support the $94 judgment.

One. We have many times held, under various factual situations, that a right of way across the land of another may be acquired by continual usage for a large .number of years. See Martin v. Bond, Trustee, 215 Ark. 146, 219 S. W. 2d 618; Fullenwider v. Kitchens, 223 Ark. 442, 266 S. W. 2d 281; Chicago, R. I. & P. R. R. v. State of Arkansas, 224 Ark. 622, 275 S. W. 2d 646; Salzer v. Balkman, Trustee, 234 Ark. 209, 351 S. W. 2d 422; and Duncan v. Manes, 235 Ark. 377, 360 S. W. 2d 128.

There can be no doubt that the findings of the trial court copied above support its conclusion that appellees have acquired the prescriptive right of ingress and egress over the land of appellant. A careful search of the record convinces us that the weight of the evidence supports said findings. Several witnesses testified they had known the road in question for as long as twenty years (and two as long as forty years) and that it had been in constant use by the general public and particularly by tenants who lived on and worked the lands now belonging to appellant and appellees. In addition to the above, the General Highway Map of Chicot County (1958 edition) prepared by the Arkansas Highway Commission shows an unimproved dirt road running south from appellees’ land in Section 3, and the same thing is shown by a map of the Mississippi Eiver Commission prepared by the Corps of Engineers, U. S. Army. We see no merit in appellant’s contention that the alleged location of the road in question was not proved. As was stated in Westlake v. Duncan, Dieckman, and Duncan Mining Co., Inc., 228 Ark. 336, 340, 307 S. W. 2d 220, the weight of the testimony “shows without doubt that there was only one road which all the witnesses were talking about and that is the one involved here”. There is, however, some testimony that more than one road (south of the one in dispute) was used from time to time.

Two. We are unable to say the weight of the testimony does not support the trial court’s award of $94 to appellees against appellant. There is testimony in the record showing appellant had obstructed the road so that it would have to be repaired be^re E could be used, and that it would cost this amount to make the needed repairs. We think the trial court properly held it was the responsibility of appellant to make (or pay for) said repairs. As pointed out above, the trial court also required appellees to pay appellant $200 for damages they did to the road.

Affirmed.


author: Sam Robinson, Associate Justice.

text:
    Griffin v. State.
    5123
    389 S. W. 2d 900
    Opinion delivered May 10, 1965

      Murphy & Arnold, Erwin é> B eng el, for appellant.

      Bruce Bennett, Atty. General, By: Richard B. AdJcisson, Chief Asst. Atty. General, for appellee.
   Sam Robinson, Associate Justice.

Appellant, Clyde Griffin, was charged by felony information in the Independence Circuit Court with the crime of murder in the first degree. He was convicted of voluntary manslaughter and has appealed to this court.

Appellant owns land adjoining land owned by Kell Wyatt and his wife, Faye Wyatt. There has been considerable controversy and some litigation regarding the correct location of the property line. Wyatt v. Wycough, 232 Ark. 760, 341 S. W. 2d 18.

On the 4th day of February, 1964, appellant was burning brush on his land when he was approached by Kell and Faye Wyatt, who had walked more than 700 feet over appellant’s land to get to the place where appellant was working. Buford Blanton, who was employed by appellant that day, had become ill and was not working at the moment, but was standing near appellant. Mr. and Mrs. Wyatt walked up to Griffin and Blanton. Mrs. Wyatt, who was armed with a club, picked up an axe and threw it behind her. Mr. Wyatt hit at Blanton, but missed him. In dodging, Blanton fell to the ground.

According to testimony in the record, Mrs. Wyatt, without saying a word, hit Griffin across the head with the club, cutting a severe gash; blood ran down into his face and into his eyes. Griffin had an automatic pistol in his pocket; he pulled it and started shooting, killing both Mr. and Mrs. Wyatt. Two separate charges of murder were filed against Griffin. He was tried for killing Mrs. Wyatt.

First appellant argues that the evidence is not sufficient to support a conviction of voluntary manslaughter. The statutory definition of the crime is: Ark. Stat. Ann. § 41-2207 (Repl. 1964), ‘ ‘Manslaughter is the unlawful killing of a human being, without malice express or implied, and without deliberation.” Ark. Stat. Ann. § 41-2208 (Repl. 1964), “Manslaughter must be voluntary, upon a sudden heat of passion, caused by provocation, apparently sufficient to make the passion irresistible.”

Without going more into detail regarding evidence of the killing, it is our opinion that it is sufficient to support the verdict.

As justification for the homicide, appellant relied on the theory of self-defense. Of course a plea of self-defense where a man has killed a woman is rather unusual. Counsel for appellant, therefore, considered it absolutely necessary to determine, insofar as possible on voir dire examination of the veniremen, just how they felt about the law of self-defense. Over appellant’s objection and exceptions, the court refused to permit counsel for defendant to question the veniremen along that line. In explaining the court’s ruling on this point the court said: “This ruling was made after each of the jurors were questioned by the Court as to whether or not they could and would follow the law as given by the Court and an affirmative indication given by each to the Court.”

The court should have permitted counsel to question the veniremen as indicated. The mere fact that they stated that they would follow the law as given by the court was not necessarily sufficient to enable counsel to determine whether peremptory challenges should be exercised. There are very few people bold enough to say that they will not follow the law, and yet there are many people who do not believe there is any justification for taking human life, whether it is done in self-defense or in defense of their homes, their family, or their country. In many instances, counsel decides whether to use a peremptory challenge not so much on what a venireman may say, but on how he says it.

In Lauderdale v. State, 233 Ark. 96, 343 S. W. 2d 422, the court quoted with approval from 31 Am. Jur. 121, as follows: “A wide latitude is allowed counsel in examining jurors on their voir dire. . . . Thus, reasonable latitude should be given parties on the examination of jurors to gain knowledge of their mental attitude toward the issues to be tried.” (Our emphasis.) In the case at bar, counsel for defendant thought it necessary to gain knowledge of the veniremen’s mental attitude about the theory of self-defense, especially so when the defendant was charged with killing a woman. In many cases this court has given effect to the rule allowing wide latitude in voir dire examination of the veniremen.

Ark. Stat. Ann. § 39-226 provides: “In all cases, both civil and criminal, the court shall examine all prospective jurors under oath upon all matters set forth in the statutes as disqualifications. Further questions may be asked by the court, or by the attorneys in the case, in the discretion of the court.” “Discretion of the court”, referred to in this section, does not invest the courts with authority to transform discretion into prohibition, nor does it require that in the process of ascertaining the desired facts counsel must utilize the court as a conduit through which communication must be conveyed to the jury. Neither did this statute change the rule giving litigants the right to examine jurors separately in order to determine whether such jurors are subject to challenge for causé, or to elicit information on which to base the right of a peremptory challenge. Missouri Pac. Trans. Co. v. Johnson, 197 Ark. 1129, 126 S. W. 2d 931.

In the Johnson case the court said: “All trial lawyers, and all students of the science of jurisprudence, know that general questions directed to the jury panel, or to individual jurors, by a judge who at. the beginning of the trial has no special information regarding the issues, or the relationship of the parties, or the attending circumstances, sometimes fail to elicit answers which may cause even the most conscientious juror to reveal an existing prejudicial status.”

In Sorrentino v. State, 214 Ark. 115, 214 S. W. 2d 517, this court held that a defendant had the right to inquire into the attitude of prospective jurors in regard to the offense involved. The court said in Clark v. State, 154 Ark. 592, 243 S. W. 868: “It does not follow, however, from the fact that the information to be elicited might not constitute disqualifying bias that appellant was not entitled to propound the inquiry. On the contrary, we think he was entitled to make the inquiry for the purpose of determining [whether] he should exercise a peremptory challenge allowed by the statute.”

This court has held it proper to inquire “whether manufacturer of liquor would prejudice juror against deceased”, Stovall v. State, 233 Ark. 597, 346 S. W. 2d 212; “whether public declarations of a political candidate would influence juror”, Gurley v. State, 164 Ark. 397, 262 S. W. 636; “whether character of prosecuting witness would influence juror”, Turner v. State, 171 Ark. 1118, 287 S. W. 400; “whether juror would convict ‘If the state proves that this defendant raped this little girl and gave her gonorrhea or syphilis’ ”, Fields v. State, 203 Ark. 1046, 159 S. W. 2d 745; “whether the juror had a prejudice against detectives”, Maroney v. State, 177 Ark. 355, 6 S. W. 2d 299; “whether juror is a member of the Ku Klux Klan and prejudiced on that account”, Bethel v. State, 162 Ark. 76, 257 S. W. 740.

In the case at bar, where the defendant was charged with murder in the first' degree and sought to justify the killing on the theory of self-defense, his counsel should have been permitted to question the veniremen with reference to their mental attitude regarding the proposition of self-defense.

There is one other thing we might mention. The State’s Instruction No. 19, dealing with the law of self-defense, failed to take into consideration the appellant’s contention that he was attacked by both Mr. and Mrs. Wyatt, and at the time of the shooting he was protecting himself against both of them. There is evidence in the record tending to support appellant’s theory on this point; therefore, in a new trial the instructions should not leave the jury under the impression that only the action of Mrs. Wyatt should be considered in determining whether the defendant was acting in self-defense at the time of the shooting.

Many points are argued on appeal, but we do not find anything prejudicial to defendant, other than the points heretofore discussed, that would likely occur on a new trial.

Reversed and remanded for new trial.

Harris, G. J., dissents.

Ward, J., not participating.


author: Jim Johnson, Associate Justice.' Justice Ward

text:
    Burton v. Bingham.
    5-3579
    389 S. W. 2d 876
    Opinion delivered May 10, 1965

      Terral, Rawlings & Matthews, for appellant.

      Rose, Meek, House, Rarron, Nash & Williamson, for appellee.
   Jim Johnson, Associate Justice.'

This is an action for personal injuries to a child pedestrian. On January 2, 1964, eleven-year-old Barbra Withers, attempting to cross Highway 65 at Woodson, was struck and injured by a tractor-trailer rig driven bys appellee Earnie Bingham. Suit was filed in Pulaski Circuit Court on March 31, 1964, by appellant Emma Jean Burton, Barbra’s mother, against Bingham and his employer. The case was tried to a jury on November 4, 1964, and resulted in verdicts and judgment for appellees.

For reversal appellant contends that the court erred in giving an instruction on unavoidable accident.

In a very recent opinion, Houston v. Adams (opinion delivered April 26, 1965), 239 Ark. 346, 389 S. W. 2d 872, this court scrutinized the giving of instruction on unavoidable accident as follows:

“First, it is insisted that upon the facts of this case the trial court should not give an instruction submitting the issue of unavoidable accident to the jury. It is pertinent to observe that we have held that a collision is the result of an unavoidable accident if it is not attributable to negligence on the part of either party. [Cases cited.] The defendants argue that since the jury might find that they were free from negligence the instruction is proper.
“In the past decade several courts have re-examined the suitability of this instruction in negligence cases. In the leading case, Butigan v. Yellow Cab Co., 49 Cal. 2d 652, 320 P. 2d 500, 65 A. L. R. 2d 1, the Supreme Court of California overruled an earlier decision and held that the issue of unavoidable accident should not be submitted to the jury in any case (except when a definition of the term may be required by statute). From the opinion: ‘The so-called defense of inevitable accident is nothing-more than a denial by the defendant of negligence, or a contention that his negligence, if any, was not the proximate cause of the injury. . . . Since the ordinary instructions on negligence and proximate cause sufficiently show that the plaintiff must sustain his burden of proof on these issues in order to recover, the instruction on unavoidable accident serves no useful purpose.
“ ‘The instruction is not only unnecessary, but it is also confusing. When the jurors are told that “in law we recognize what is termed an unavoidable or inevitable accident” they may get the impression that unavoidability is an issue to be decided and that, if proved, it constitutes a separate ground of nonliability of the defendant. Thus they may be misled as to the proper manner of determining- liability, that is, solely on the basis of negligence and proximate causation. ’ ” . . .
“We are of the opinion that in a typical negligence case the position taken by the California court is right. In such a case the plea of unavoidable accident is in fact nothing more than an assertion that the defendant was not guilty of actionable negligence. That defense should be submitted to the jury in terms of negligence and proximate causation. For the court to submit also an issue of unavoidable accident is, as the Butigcm opinion pointed out, to suggest that unavoidability is a separate defense, requiring separate consideration by the jury.
“We do not foreclose the possibility that in exceptional situations an unavoidable accident instruction may be permissible. . . . But when, as here, the question is merely whether one or more of the parties were guilty of negligence we hold that the instruction in question should not be given.”

From what has been said, it follows that in the case at bar the question being simply whether one or more of the parties were guilty of negligence, the trial court erred in giving an instruction on unavoidable accident.

Appellant has urged a number of other points for reversal, including alleged improper questioning by counsel for appellees. While it is obvious some of the questions were improper, appellant’s objections were sustained and in the absence of a request by counsel for the court to admonish the jury to disregard the improper questions and appellant’s apparent election to thus gamble on the outcome of the trial, we are unwilling here to sáy that prejudicial error was committed.

For the error in giving an instruction on unavoidable accident, the case is reversed and the cause remanded for new trial.

Justice Ward

dissents. It is his view that it was harmless error to give the instruction which in his opinion was more favorable to appellant than to appellee.


author: Frank Holt, Associate Justice.

text:
    Littlejohn v. Earle Industries.
    5-3563
    389 S. W. 2d 898
    Opinion delivered May 10, 1965

      McMath, Leatherman, Woods & Youngdahl and John P. Sizemore, for appellant.

      Spears & Sloan, for appellee.
   Frank Holt, Associate Justice.

This is a workmen’s compensation case and the sole issue is whether there is any substantial evidence to support the Commission’s finding that the claim was controverted to such an extent that the appellees, the employer and insurance carrier, are liable for appellant’s attorney’s fee. The circuit court reversed the Commission’s finding that the claim -was controverted and that appellees are liable for an attorney fee. The claimant has appealed.

It is appellant’s contention there is substantial evidence to support the Commission’s finding that the claim was controverted and, therefore, the attorney’s fee should he paid by the appellees. "We agree.

It is well settled that we do not upset the findings of the Commission unless there is no substantial evidence to support them. Potlatch Forest Inc. v. Smith, 237 Ark. 468, 374 S. W. 2d 166. In Hughes v. Tapley, Admx., 206 Ark. 739, 177 S. W. 2d 429, we said: “The rule is also well settled that in testing the sufficiency of the evidence before the Commission, the circuit court, on appeal from the Commission, and this court, on appeal from the circuit court, must weigh the testimony in its strongest light, in favor of the Commission’s findings.” See, also, Fagan Electric Co. v. Green, 228 Ark. 477, 308 S. W. 2d 810. With these rules in mind we review some of the evidence pertinent to the appellant’s point that the claim was controverted.

The appellant was injured on June 18, 1963. His attorney properly filed his claim with the Commission shortly thereafter. The appellees then requested a thirty-day extension before stating their position on controverting the claim. Over appellant’s objection, a ten-day extension was granted. On September 23,1963 the appellees stated they “neither admitted nor denied that the claimailt was entitled to compensation”. The appellees later offered to pay compensation to the claimant on the basis of 10% disability conditioned upon an order of final discharge by the Commission since the claim appeared “suspicious”. The appellant responded by asserting the evaluation of permanent disability was premature since appellant maintained that he was unable to return to work on October 6, 1963 despite his own medical reports. The claimant steadfastly protested that he had not fully recovered from his hack injury and an operation on August 24th to correct this injury.

A hearing was held before the referee in February 1964. The claimant continued to contend that his healing period had not ended. The appellees stated that they were not controverting the appellant’s right to compensation or payment of his medical expenses. However, due to the conflicting reports from appellant’s various doctors, the appellees maintained that they were unable to determine exactly what was owed appellant. The appellees stated they were ready to pay any compensation due appellant upon a definitive adjudication. In other words, the appellees said they were ready to make payment when the extent of their liability was determined. The referee found that the claim for compensation had not been controverted and, therefore, appellees were not liable for an attorney fee. He did find, however, that the healing period had ended on December 10, 1963 instead of October 5th and, further, that the appellant’s permanent disability amounted to 15% instead of 10%.

The appellant then appealed to the full Commission where additional correspondence and medical reports were considered and made a part of the record. On September 18, 1964 the Commission found, among other things, that the healing period had not ended [appellant had another operation on his back in May 1964]; that the question of permanent disability be held in abeyance; that appellant’s claim for compensation beyond December 10, 1963 had been controverted and directed the appellees to pay appellant’s attorney the maximum attorney fee based upon compensation due claimant for" temporary total disability. The appellees then appealed to the circuit court and it reversed that part of the Commission’s finding that the claim for compensation was controverted and the award of an attorney’s fee. Appellant has paid all medical expenses.

When we weigh the evidence in the light most favorable to the Commission’s findings, we cannot say the evidence was not sufficiently substantial to support the Commission’s finding that the claim was controverted.

Despite appellant’s own medical reports, he persisted in maintaining that he was physically unable to work because of his injury. Begardless of the conflicting and confusing medical evidence in behalf of appellant, his claim of inability to work was corroborated by the fact it was necessary for him to have an operation on his back in August 1963, May 1964, and November 1964 in order to correct his admitted injury. It must be said that an adjudication of appellant’s contention became necessary before appellees could know the extent of their liability.

Our Workmen’s Compensation Commission has authority to assess attorneys’ fees whenever the Commission finds the claim has been controverted in whole or in part. Ark. Stat. Ann. §81-1332 (Repl. 1960). Thus, our legislature has entrusted to the Commission the right to determine the necessity of a claimant to secure the services of an attorney in order to preserve his benefits. We have indicated that on appeal this court will not interfere with the Commission’s determination on the issue of attorneys’ fees unless there is an abuse of discretion. Lundell v. Walker, 204 Ark. 871, 165 S. W. 2d 600; Brown v. W. H. Patterson Construction Co., 235 Ark. 433, 361 S. W. 2d 13 and Ragon v. Great American Indemnity Co., 224 Ark. 387, 273 S. W. 2d 524. Generally, the courts do not question the discretionary power of a commission in the matter of an attorney’s fee unless the determination is “clearly wrong”, 10 Schneider, Workmen’s Compensation Text 381 (3rd Ed. 1953), orunless there is a “gross abuse” of discretion, 2 Larson, Workmen’s Compensation Laws ”349 (1961).

In the case at bar we are of the view that the Commission did not abuse its discretion and, further, there was substantial evidence to sustain the Commission’s finding and award of an attorney’s fee. The judgment is reversed and the cause remanded for proceedings not inconsistent with this opinion.


author: Carleton Harris, Chief Justice.

text:
    Faubus, Governor v. Kinney.
    5-3649
    389 S. W. 2d 887
    Opinion delivered May 17, 1965.

      Bihice Bennett, Atty. General, By: Farrell E. Faubus, Asst. Atty. General, for appellant.

      Jim Shaver, N. L. Schoenfeld, Brief Amicus Curiae, for appellee.
   Carleton Harris, Chief Justice.

This opinion deals with reapportionment of the Arkansas General Assembly.. On January 28, 1965, the United States District Court, Eastern District of Arkansas, Western Division, three judges sitting as the court, held that the existing apportionment of the membership of the House of Representatives and Senate of this state, and the method of apportioning the membership were constitutionally invalid and void, as contrary to the Equal Protection Clause of the Fourteenth Amendment to the Constitution of the United States, and the Arkansas Board of Apportionment was directed to reapportion the General Assembly in a manner which would meet the requirements of the Equal Protection Clause, such reapportionment to be completed not later than June 15, 1965.

In the meantime, on January 6, 1965, Clarke Kinney, appellee herein, had instituted a suit in the Chancery Court of Pulaski County (Second Division), seeking a declaratory judgment as to’ the validity of Amendment 45 to the Constitution of the State of Arkansas. An answer was filed to this petition by appellants, and on March 17, 1965, the Chancery Court entered its decree, holding that the provisions of Amendment 45, establishing one hundred members for the House of Representatives, and thirty-five members for the Senate, were effective, standing alone, and valid, under the Constitutions of both the State, and the United States. The trial court further held that the provision of the Constitution, creating the Board of Apportionment, was effective, standing alone, and that the Board is the proper authority to re-' apportion the General Assembly. From the decree so entered, appellants bring this appeal.

A resume of the provisions involved is in order. All of the Arkansas Constitutions have provided for periodic reapportionment of the Legislature on the basis of population. Originally the responsibility for reapportionment was placed in the Legislature, but in 1936, the electorate of Arkansas adopted Amendment 23, which created a Board of Apportionment, and placed in such Board the duty of reapportioning both Houses of the General Assembly, following each Federal census, directing, however, that an initial reapportionment be made in 1937. Acting thereunder, the Board made the 1937 reapportionment, and also reapportioned in 1941 and 1951. Amendment 23, inter alia, provided (in Section 2) that the House of Bepresentatives should consist of one hundred members, with “each county existing at the time of any apportionment” to have at least one representative, with the remaining members to be equally distributed, as nearly as practicable, among the more populous counties of the state. Section 3 provided that the Senate should consist of thirty-five members, with the Board of Apportionment dividing the state into senatorial districts in such manner that each Senator would represent, as nearly as practicable, an equal number of persons; further, that each district should have at least one Senator. This amendment remained in effect until the general election of November, 1956, when Amendment 45 was adopted by the people. This amendment, which restated the provisions of Amendment 23, in large measure, made only two changes that are here pertinent. Section 3 (referring to the Senate) reiterated the provision that the Senate should consist of thirty-five members, but “froze” the senatorial districts in accordance with' the State Supreme Court decision in the case of Pickens v. Board of Apportionment, 220 Ark. 145, 246 S. W. 2d 556. In other words, Section 3 of this amendment provided that the geographical composition of the districts, and the number of Senators from each district, should not be changed. In conformity with this section, the Board of Apportionment, in Section 4, was only required to apportion the membership of the House of Representatives.

There are only two questions before this court in this litigation. First, does the decision of the Federal District Court, invalidating the apportionment provided in Section 2 of Amendment 45 (referring to the House of Representatives) and invalidating the apportionment in Section 3 (referring to the Senate), also invalidate the provisions of those same sections which provide that the House of Representatives shall consist of one hundred members, and that the Senate shall consist of thirty-five members? The next question is whether the Board of Apportionment is the proper authority to apportion under the Constitution of this State.

As to the first question, the answer is “No.” It is the contention of appellants that, since portions of the sections have been invalidated, the entire sections are likewise void and of no effect. We have held contrary to this contention many times. In Levy v. Albright, 204 Ark. 657, 163 S. W. 2d 529, this court said:

“An act may be unconstitutional in part and yet be valid as to the remainder. Many cases so hold, and the following quotation from Cooley’s Constitutional Limitations appearing in the case of Oliver v. Southern Trust Co., 138 Ark. 381, 212 S. W. 77, has been many times approved by this court: ‘ “. . . Where, therefore, a part of a statute is unconstitutional, that fact does not authorize the courts to declare the remainder void also, unless all the provisions are connected in the subject-matter, depending on each other, operating together for the same purpose, or otherwise so connected together in meaning that it cannot be presumed the Legislature would have passed the one without the other. The constitutional and unconstitutional provisions may even be contained in the same section, and yet be perfectly distinct and separable, so that the first may stand, though the last fall The point is not whether they are contained in the same section, for the distribution into sections is purely artificial, but whether they are essentially and inseparably connected in substance. If, when the unconstitutional portion is stricken out, that which remains is complete in itself, and capable of being executed in accordance with the apparent legislative intent, wholly independent of that which was rejected, it must be sustained. . . . ”

See also Emberson v. Buffington, 228 Ark. 120, 306 S. W. 2d 327, and cases cited therein. While these particular cases referred to statutes enacted by the Legislature, the rule is the same in construing Constitutions. The rule is stated in 16 Am. Jur. 2d, Constitutional Law, §42 (1964) as follows :

“The question may arise as to the effect of partial invalidity of a constitutional amendment. In accordance with the rules governing the invalidity of portions of a statute, it has been held that where part of an amendment to a state constitution is invalid because it violates the Federal Constitution, if the several parts of the amendment are separable, the valid portions may be saved, unless it is obvious that the intent of the adopters of the amendment was to accept one general scheme in an entirety, in which event, if part of the amendment falls, the whole must fall with it.”

Our cases hold likewise. In Bailey, Lt.-Gov. v. Abington, 201 Ark. 1072, 148 S. W. 2d 176, this court said:

“The rules governing the construction of constitutional amendments are the same as those governing the construction of statutes.”

See also Shepherd v. Little Rock, 183 Ark. 244, 35 S. W. 2d 361.

We think, unquestionably, that the people would have passed the provisions in Amendment 45, fixing the House membership at one hundred members, and the Senate membership at thirty-five, irrespective of whether the other provisions (held invalid by the Federal District Court) had been contained in the sections. This is emphasized by the fact that, not once, bnt twice, the people adopted constitutional amendments, fixing the House and Senate memberships at. the above mentioned numbers. Those provisions are certainly not dependent upon the language in the balance of the sections, but are completely independent requirements. We hold that these provisions are valid.

As to the second issue, we likewise agree with the Chancery Court that the Board of Apportionment is the proper authority to carry out the mandate of the Federal District Court. The Federal Court, though directing the Board of Apportionment to effect a valid reapportionment of the Arkansas House and Senate that would meet the requirements of the Equal Protection Clause of the Fourteenth Amendment to the Constitution of the United States, made clear that it was not concerned about which body or agency of the state has the power to make the ' reapportionment.

Here, again, we think it obvious that the creation of the Board of Apportionment is 'entirely independent of the other provisions of the amendment, and would have been passed by the people, though the invalid provisions had been omitted. As previously pointed out, the Legislature was originally given the task of reapportioning the General Assembly at proper periods, but the people took away this right in 1936 when Amendment 23 was adopted, placing the authority in the Board of Apportionment. This choice was again reiterated by the passage of Amendment 45. It is true that this last amendment only gives the Board the authority to reapportion the House, but it is obvious that the reason for this distinction (from Amendment 23) is that Section 3 “freezes” the Senate, as heretofore mentioned. In fact, this was the only purpose in passing Amendment 45, as the other provisions of that amendment were substantially the same as the requirements of Amendment 23. This is even shown by the popular name: “To preserve present apportionment of State Senators and Existing Senatorial Districts.”- Amendment 45 repealed all laws in conflict with its provisions. In St. Louis, I. M. & So. Ry. Co. v. State, 86 Ark. 343, 111 S. W. 260, this court, through Justice Hart, quoted the general rule on this subject, as follows;

“Where there is, by a general clause, a repeal of all acts and parts of acts inconsistent with the statute, and it is apparent that the repealing statute is to be substituted for the one repealed, the unconstitutional character of the repealing statute will also render void the repealing clause. And on the same principle a prior statute will not be impliedly repealed by inconsistency with a subsequent unconstitutional one.”

See also 82 C.J.S. Statutes, §281, and 102 ALB 802. Here, it is apparent that Section 3 of Amendment 45 (“freezing” the senatoral districts) was to take the place of, or be substituted for, Section 3 of Amendment 23, which provided for apportionment of the Senate by the Board. The Federal Court has held Section 3 of Amendment 45 in violation of the Equal Protection Clause of the Fourteenth Amendment to the Constitution of the United States, and, under the law quoted, the repealing section was also void.

It is true that certain provisions of Amendment 23 would also be unconstitutional under the decision by the Federal District Court, but, as previously stated, the number constituting House and Senate, membership is not affected, and the creation of the Board of Apportionment is not affected. Under Amendment 23, the Board was given authority to apportion the Senate, as well as the House. In Davis v. Synhorst, 225 F. Supp. 689 (1964), a reapportionment case, a three-judge court said:

"If an act is repealed by an unconstitutional amendment, the former act remains in force when the unconstitutional amendment is declared void, providing this result gives effect to the Legislature’s intention. The matter of legislative intent is controlling.”

Likewise, in matters relating to constitutional amendments, the intent of the people is controlling.

. Clearly, since 1936, the people have desired that apportionment be accomplished by the Board of Apportionment. It follows that this Board is the proper authority to undertake the reapportionment as ordered.

Affirmed.

       See Yancey v. Faubus, 238 F. Supp. 290.

       The reapportionment was directed under the authority of several cases, decided by the United States Supreme Court, viz, Baker v. Carr, 369 U. S. 186, decided in 1962, and the following cases, decided in 1964: Reynolds v. Sims, 377 U. S. 533; WMCA, Inc. v. Lonenzo, 377 U. S. 633; Maryland Committee For Fair Representation v. Tawes, 377 U. S. 656; Davis v. Mann, 377 U. S. 678; Roman v. Sincock, 377 U. S. 695; Lucas v. Colorado General Assembly, 377 U. S. 713.

       The Board of Apportionment consists of the Governor, the Attorney General, and the Secretary of State. '

       The census is taken every ten years.

       Emphasis supplied.

       From the opinion in Yancey V. Faubus: “The Board of Apportionment is before the Court, and whether rightly or wrongly the Board is taking the position that it has or probably has the power to make a. valid reapportionment. Since the Board takes this position, we think that it should be directed, and it will be directed, to come forth with a valid scheme of apportionment not later than June 15 . of the current year. If it develops ultimately that the Board has no such power as a matter of State law, the Court can then take such steps as- may seem necessary or appropriate in the circumstances, including the addition of other parties defendant if such a course seems necessary or desirable.
      “The Court is aware that the Legislature is now in session, and the Court is aware also that the possibility of that body taking some action itself in the field of reapportionment is being discussed rather widely. Our directive to the Board to proceed to make a reapportionment by June 15 is certainly without prejudice to the right of the Legislature to take such action in the field as it may deem to be proper or judicious.
      “After all, this Court is not directly concerned at this time with what body brings about ,a valid reapportionment, nor is it concerned with what particular scheme may be adopted ultimately provided that the chosen scheme meets the constitutional requirement laid down by the Reapportionment Cases.”


text:
    Wherry v. Wherry.
    5-3519
    389 S. W. 2d 277
    Opinion delivered May 17, 1965.

      E. V. Trimble, for appellant.

      James-A. Ross, for appellee.
   Ed. F. McFaddin, Associate Justice.

This is an appeal by Mary Wherry from a judgment of the Probate Court of Drew County, finding and declaring Sarah Wherry — rather than Mary Wherry — to be the lawful surviving widow" of William Wherry, -who died on June 5, 1961.

The appeal must fail since appellant did not bring to this Court within due time any of the evidence heard by the Trial Court. The following are the factual dates:

(a) The judgment of the Probate Court was filed May 12, 1964.

(b) The notice of appeal was filed June 1, 1964.

(c) The order extending the time for filing the appeal in the Supreme Court “to the full statutory time” was filed July 28, 1964.

(d) The transcript — containing only the pleadings, findings, and judgment of the Probate Court, and the notice of appeal — was filed in this Court on November 12, 1964.

(e) On April 22, 1965, there was tendered to the Clerk of the Supreme Court for filing what purported to be a transcription of the testimony heard by the Probate Court and on which the judgment was based. These pages were certified by the Court Reporter under date of January 21, 1965, but not tendered to the Clerk of the Supreme Court until April 22, 1965.

It is obvious that the filing of the testimony -was entirely too late (see Ark. Stat. Ann. §27-2127.1 [Repl. 1962]); arid in the absence of the evidence, the appellant has no foundation on which to base an argument that the findings of the Trial Court are contrary to the preponderance of the evidence.

The real question in the Probate Court -was which of the parties — i.e., Mary Wherry, the first wife, or Sarah Wherry, the second wife — was the lawful surviving -widow of the deceased. The Probate Court had jurisdiction to determine this matter; and heard evidence and rendered an Opinion which -we copy in extenso:

“This is a proceeding for the determination of the lawful widow of the decedent.
“Mary Wherry, hereinafter referred to as ‘Mary’ and Sarah Wherry, hereinafter referred to as ‘Sarah,’ each contends to be the lawful widow of the decedent.
• ‘ ‘ Mary was married to the decedent in Drew County, Arkansas, on September 4, 1921. Sarah was married to the decedent in Drew County, Arkansas, on January 23, 1952. There were no children born of either marriage. The decedent died intestate on June 5, 1961, and left surviving no child, children, or their descendants, but certain heirs at law, the names of which are not in issue.
“Mary and the decedent, hereinafter called ‘William’ separated in Drew County, Arkansas, in 1923, and did not cohabit as man nad wife thereafter, except in the 1940’s while Mary was visiting her father in Drew County, they saw each other, and there is an indication that intimacy resulted from these visitations. Mary went to Lincoln County, Arkansas, and there she made an effort to secure a divorce, but she stated the effort was unsuccessful because she lacked the neeessary finances. The proof indicates that during this period the employer of William at the Arkansas A. & M. College was assisting him with some ‘divorce papers.’ Mary later left Lincoln County and went to Jefferson County, Arkansas. She remained there for a period and then returned to Lincoln County, and from there went to the State of Washington. She remained there for a time and returned to Pulaski County, Arkansas. In the 1940’s she spent eleven months in Drew County, Arkansas, visiting her father.' Since her separation from William she married a man named Green and still bears his name. She married him on the then assumption that she was divorced from William. She testified that she had never been divorced from William.
“After the separation of Mary'and William, he has lived in Drew, Garland, Union, and Ouachita Counties, Arkansas, and was in the Armed Services in World AVar II.
“Sarah and William lived together as husband and wife from the date of their marriage until his death.
“The Chancery Court records of Drew County, Arkansas, do not show a divorce decree wherein William and Mary were divorced.
Applicable Authority
“Miller v. State, 235 Ark. 880, 362 SW (2) 443. Miller v. Miller, 237 Ark. 66, 371 SW (2) 511.
“RESOLVING TEE ISSUES
“The case of Miller v. Miller, supra, so completely covers the issues in this action that it is adopted as authority and the findings herein made in conformity therewith.
“CONCLUSION
“1. The plea of Mary should be denied;
“2. Sarah is the lawful widow of William;
“3. The heirship should be found as shown by the facts;
“4. The response of Sarah should be granted;
‘ ‘ 5. The estate should pay all costs of this proceeding;
“6. The attorney for Sarah should prepare precedent in conformity with these findings and submit to the attorney for Mary for approval as to form.
“Dated 2 day of March, 1964.
/s/ James Merritt, Probate Judge.”

On the face of the record the judgment of the Probate Court was correct as to the law; and an examination of .the transcription of the evidence (even though filed too late) convinces us that the judgment of the Probate Court was correct as- to the facts.

Affirmed, with appellant to pay the costs of the appeal.

       There was no petition for certiorari to complete the transcript filed on November 12, 1964.


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    Huitt v. Ermentraudt.
    5-3590
    390 S. W. 2d 128
    Opinion delivered May 17, 1965.
    [Rehearing denied June 7, 1965.]

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

      Martin, Dodds £ Kidd, for appellee.
   Ed. F. McFaddin, Associate Justice.

This case stems from a traffic mishap involving a motorist (appellant) and a pedestrian (appellee). The pedestrian received a judgment for personal injuries and the motorist brings this appeal, urging only one point, to-wit: “A verdict should have been directed in favor of appellants.”*

After a careful study we conclude that a question of fact was made for the jury. Mr. Ermentraudt was walking down the right side of the highway and started across the road at a place not marked for crossing. The appellant, driving a 1955 car, came up behind Mr. Ermentraudt, who either walked into the side of the car or was struck by it. The evidence showed: that the driver of the car usually wore glasses, but was not wearing them at this time; that the speedometer on the car was broken but that the speed was approximately ”35 to 40 miles per hour ’; that the driver did not see Mr. Ermentraudt until within 50 yards of him; that the driver sounded his horn but never applied his brakes; that the driver swerved his car to the left lane; that Mr. Ermentraudt was struck while in the left lane; that the driver of the ear then went off the road on the left side, traveled several hundred yards in the ditch, and finally regained the highway; and that the driver never stopped his car but went on home.

From all these facts, and others, we conclude that appellant’s negligence and Mr. Ermentraudt’s contributory negligence were issues for the jury. Such being true, the Trial Court was correct in refusing to give an instructed verdict for the appellants.

Affirmed.

       One appellant was owner of the car and the other was the driver. It was admitted that if the driver be liable, the owner is also; so we refer to the driver as “appellant.”


author: George Eose Smith, J.

text:
    Wheeler v. Jones.
    5-3593
    390 S. W. 2d 129
    Opinion delivered May 17, 1965.
    [Rehearing denied J une 7,1965.]

      G. Thomas Eisele, for appellant.

      John B. Driver, N. J. Henley, for appellee.
   George Eose Smith, J.

This is a proceeding -filed by the appellant to contest the general election of last November with, respect to the office of comity judge in Searcy Comity. This appeal is from an order sustaining a demurrer to the complaint, on the ground that it fails to state a cause of action, and dismissing the proceeding.

The complaint alleges that the Comity Board of Election Commissioners certified that the appellee, the Democratic candidate, had defeated the appellant, the Republican candidate, by a vote of 1,701 to 1,691. As a basis for the contest the complaint asserts that 52 named persons who were not qualified electors voted in the absentee box and that an additional 196 named persons voted in precincts in which they did not reside. There is no allegation either that these, challenged votes were cast for the appellee or that the result of the election would be changed if these votes were set aside. All that the complaint really asks is that the questioned ballots be declared void and that the remaining ballots then be counted to see who actually won the election.

We have often held that a complaint such as this one does not state a cause of action. Several of the cases were reviewed in McClendon v. McKeown, 230 Ark. 521, 323 S. W. 2d 542 (1959). Under these decisions the contestant, to state a cause of action, must show that the outcome of the election would be changed if certain identified illegal votes cast for his opponent were disregarded:

This appellant makes two arguments in his attempt to escape the effect of our prior holdings. First, it is contended that those cases involved the primary election laws and are not controlling in a contest of a general election. It is true that the statute permitting a contest of a primary election, Ark. Stat. Ann. § 3-245 (Repl. 1956), is not worded exactly like the statute that governs the contest of a general election. § 3-1204. There is, however, nothing in the difference in wording to support the appellant’s present argument. Neither statute purports to define the allegations that a contestant must make to state a cause of action. The rule followed in our earlier opinions is not of statutory origin. It is merely an example of the basic principle that a complaint, to be good against demurrer, must state facts constituting a cause of action. It is the absence of such facts that makes the present complaint fatally deficient.

Secondly, it is insisted that thi's plaintiff would be denied due process of law if we should hold his complaint to be subject to demurrer. This argument has no merit. Fundamentally the appellant complains of the fact that some persons voted in precincts where they did not live and that others who were not qualified electors were allowed to vote. There is nothing in the due process clause to require-either that a voter cast his ballot only in his home precinct or that he comply with the various Arkansas statutes defining a qualified elector. As far as the constitution is concerned, the legislature is free to dispense with both of these requirements. Thus it is readily apparent that the grievances now asserted by the plaintiff do not involve matters protected by the guaranty of due process of law.

The trial court was right in refusing to allow the plaintiff to amend his complaint after the expiration of the twenty days allowed for the filing of the contest. Ark. Stat. Ann. § 3-1203. As we have seen, this complaint did not state a cause of action. To allow it to be amended in such a way as to state a cause of action would, in effect, permit the plaintiff to assert, for the first time, his cause of action after the expiration of the twenty days. Such an amendment is not permissible. Cain v. McGregor, 182 Ark. 633, 32 S. W. 2d 319 (1930). We do not think it necessary to discuss other subordinate contentions made by the appellant.

Affirmed.


text:
    K. C. So. Ry. Co. v. Story.
    5-3578
    390 S. W. 2d 124
    Opinion delivered May 17, 1965.
    [Rehearing' denied June 7,1965.]

      Hardin, Barton, Hardin & Jesson, for appellant.

      Byron Goodson, for appellee.
   Paul Ward, Associate Justice.

A fire which originated along the right-of-way of the Kansas City Southern Railway Company (appellant herein) damaged real estate belonging to appellees (S. G. Story and Dukes Wilson, d/b/a Story and Wilson) which land lay adjacent to said right-of-way. The stipulated damages amounted to $1980.

Following a trial before the Circuit Judge (sitting as a jury) wherein appellees contended the fire was caused by negligence and carelessness on the part of appellant, a judgment was entered against appellant and in favor of appellees in the amount previously mentioned.

On appeal the only point urged is the lack of substantial evidence to support the judgment.

The material testimony which is not in dispute may be summarized as hereafter set forth. Appellant’s freight train, consisting of 122 cars and five diesel locomotive units passed the land belonging to appellees and shortly thereafter a fire was observed on the right-ofYvay. No one saw the fire when it first started or knows exactly how it started. At the time of the fire the weather was dry and had been for several weeks.

First, it is deemed proper to set forth clearly the applicbale rule of law under which this case is being-tried. In the recent case of Kansas City So. Ry. Co. v. Beaty, 239 Ark. 187, 388 S. W. 2d 79, to which reference is made for more details, it is pointed out that before the passage of Act 141 of 1907, it was necessary for the plaintiff, in a case of this nature, to allege and prove negligence on the part of the railroad company. After the passage of said Act 141 it was not necessary to allege or prove negligence, but it was, of course, necessary to prove (by direct or circumstantial evidence) that the railroad company was responsible for starting the fire. This was the law until the passage of Act 320 of 1955 when once more it was made the duty of the plaintiff to allege and prove negligence. This rule of law applies in this case.

We have concluded that in this case the finding- of the trial court (sitting as a jury) is supported by substantial evidence. In the Beaty case we quoted with approval from Missouri Pacific Railroad Company v. Johnson, 198 Ark. 1134, 133 S. W. 2d 33, the following:

“Where fire is discovered shortly after a train has passed, and the proof does not establish some other origin of the fire, the jury is justified in finding that fire originated from sparks from the engine. . . . There is thus made a case of prima facie negligence, not rebutted by other evidence to the effect only that the spark arresters were in good condition. . .

In addition to the testimony set out above, the record also discloses: one witness said he observed the fire shortly after the train passed; another witness said the train was using its brakes when it went by; and, another witness testified the wheels and brakes on the train were made of cast-iron, which (when the brakes were applied) has a tendency to create sparks; and, appellant has some fiber brake shoes on its newer cars. We conclude, therefore, that the judgment of the trial court is supported by substantial evidence.

Affirmed.