author: W. S. Mitchell, Special Chief Justice. Osro Cobb, Justice,

text:
    Bottoms Baptist Orphanage v. Johnson
    5-3609
    398 S. W. 2d 544
    Opinion delivered January 31, 1966

      Barber, Henry, Thurman, McCaskill & Amsler, for ..appellant.

      Paul K. Roberts, for appellee.
   W. S. Mitchell, Special Chief Justice.

This Workmen’s Compensation Claim involves the construction of Ark. Stats. 1947 Sec. 81-1313e dealing with claims for hernia.

Appellee contends that she suffered two accidental injuries, one on Sunday, September 4, 1960, and a second shortly before Thanksgiving of the same year, both arising out of the course of her employment and resulting in a condition diagnosed as cystocele and second degree prolapse of uterus. She was given two weeks’ leave of absence by her employer in September, 1960 but did continue working until January 15, 1961, followed by an operation on February 28, 1961, returning to work on April 15, 1961.

Appellants denied that there was any accidental injury arising out of Appellee’s employment and contended that she had failed to sustain the burden of proof required of hernia claimants.

Medical testimony described uterine prolapse as a form of hernia. The Referee found that Appellee’s.-eondition was not work-connected and denied the claim, which denial was affirmed by the Full Commission, whose conclusions read:

"CONCLUSIONS
Altlipugh there is some doubt that the claimant sustained a hernia which arose out of and in the course of her employment for the respondent it is clear that she failed to cease work immediately as the result of such condition. The record also reflects that physical distress following the occurrence of the alleged hernia, was not such as to require the attendance of a licensed physician within 48.'hours. It also appears that there was not severe pain in the hernia region. These and other requirements must be met under provisions of Section 13 (e) of the Arkansas Workmen’s Compensation Act before a claimant can recover. The claimant failed to meet those requirements.
The Referee’s decision is, therefore, affirmed, and the claim is denied.”

Appellee in her notice of appeal both to the Full Commission from the Referee’s Opinion and later to the Circuit Court from the opinion of the Full Commission preserved for argument charges of error (1) in the conclusion' that her condition was not. work-connécted; (2) in the holding that she had not complied with the provisions of the hernia ’statute and (3) in classifying a prolapse of the uterus as a hernia within the meeting of the Workmen’s Compensation Act, Section 81-1313e.

The Circuit Court sustained Appellee on all points and reversed the Commission. In the briefs the same issues are presented to this Court.

Was Appellee’s condition work-connected1?

On June 9, 1960 Appellee was employed as a dietitian by Appellant, Bottoms Baptist Orphanage. The Orphanage had three large walk-in refrigerators, the door to the middle section, which was the freezing unit, being harder to open and close than the other doors.

Appellee testified that on the morning of Sunday, Sunday, September 4, 1960, she had entered the freezing unit to check out food for the kitchen and when finished she tried to shut this refrigerator door but had difficulty in doing so.

She put both of her hands about head high against the door and pushed forward to close it, putting her whole weight against it to slam it or push it closed, but the door would bounce back. She weighed about 115 pounds. She had pushed in this manner about three times when on the fourth time as she pushed forward on the door she felt a sensation of pressure and a loss of water in the pelvis. She felt like she was just divided. She had no pain, nothing* more than that pressure. It was like she was giving birth to a child. Some might call it pain but she called it pressure.

Prior to this occurrence she had experienced no trouble of this sort.

One of the colored cooks helped Mrs. Johnson to close the door after the time when she had this sensation in the pelvic area.

She told the other1 employees that it seemed like when she closed the door it was going to pnll her in two. She continued working and did not visit a doctor until September 10,1960, when she saw her family physician, Dr. W. D. Bobertson, who told her that she had a prolapsed uterus and that the only cure was surgery.

Brother Seafelt, Manager of the Orphanage, suggested that she take time off, which she did, and then Dr. Bobertson had her take another week off, for a total of about two weeks off in September. Dr. Bobertson prescribed some exercises.

She improved as the result of this rest and felt fine and went back to work.

On Tuesday before Thanksgiving there was some orange juice in a case that was sitting on the floor with ice around it and she attempted to pick up the crate, when she experienced pain in the the same area where she had noticed it before and things never went back in place any more nor did the pressure leave until she had her operation. She continued to work, however, until the latter part of January, 1961.

Clara Moore, the cook, testified that she was on the job and remembers the door-closing incident, shortly after which—within 30 minutes—Appellee said that she had a pain in her lower stomach and indicated where the pain was. Appellee continued to work but complained about the lower part of her stomach, saying that it pained her.

Another employee of the Orphanage, Baymond Best, stated that the door had been giving trouble in closing for approximately six months before Mrs. Johnson complained of being injured. He. knew about Mrs. Johnson’s injury. The door was not a perfect fit on the box, therefore moisture would enter around the .door and cause it to stick or freeze, which would make it difficult to open the door. At times he would have to use a crowbar to pry it open and had done so several times before the door closing incident.

Dr. Robertson wrote the Workmen’s Compensation Commission under date of January 18, 1961, as follows:

‘ ‘ This is the first case of this nature in which there was a question of compensability that I have handled. Since I am not familiar with the Commission’s views in this area your opinion would and is needed before I can properly advise the above patient.
“Mrs. Johnson first visited me complaining of a feeling of pressure in the pelvic area on September 10, 1960. She dated the onset of symptoms to roughly one week previous, first noticing a feeling of discomfort when she opened the heavy doors to the walk-in refrigerator at the Bottoms Baptist Orphanage in Monticello, Arkansas.
“Mrs. Johnson is 50 years of age. She has had five pregnancies and has delivered four full-term infants; one miscarriage.
“It is a well-known fact that childbearing is the incident in most cases of pelvic relaxation resulting in uterine prolapse; however it is also true that most people who sustain a rupture while working have a pre-existing weakness.
“In my mind there is a similarity in the above diseases. I would certainly appreciate your views on this case. Mrs. Johnson was advised that I would write this letter before I would attempt to advise her on whether or not it was a compensable condition. ’ ’

On January 30, 1961, following correspondence from the Commission, the Doctor wrote again, giving additional information and stating:

“Mrs. Johnson’s disease, pelvic relaxation with uterine prolapse, has been aggravated by heavy lifting she says she has done in her capacity as kitchen •employee at the Orphanage. I have seen this lady several times for different complaints since July of .1959 and never before her visit of September 10, 1960 did she complain of anything pointing to uterine prolapse.”

In addition to Dr. Robertson’s testimony, Appellee introduced a statement from Dr. Merl Crow, who had performed the operation on Appellee, and also presented testimony of Dr. Joe Sanderlin, a specialist in gynecology. Dr. James Barker, also a gynecology specialist, testified for Appellant.

The doctors were in agreement as to the nature and usual development of the condition known as “pelvic relaxation with uterine prolapse,”.to understand which a definition and description of terms is required, and is found in Schmidt: Attorney’s Dictionary of Medicine, Illustrated:

“Uterus. The womb or organ in which the child is nourished and carried from its inception as a fertilized female egg cell through the stages of embryo and fetus until it is delivered to the outside world. It is a roughly pear-shaped body about three inches long situated in the lower part of the abdomen (technically in the pelvis) with its thin end down. The main rounded portion is the body; the tapering narrow end is the neck or cervix. The neck of the uterus is continuous with the vagina and protrudes partly into the canal of the vagina like a pear placed with the narrow end down into a small vase.
. . . The uterus is held in place by several ligaments and in its normal position is tilted forward resting upon the bladder.” (Page 856)
“The Vagina. The female canal extends from the uterus on the inside to the opening on the outside . . . just below the outlet of the bladder.” (Page 858)
“Prolapse. A falling or slipping down of an organ or other structure as of the uterus, rectum, etc.” (Page 646)
“Gystooele. A type of hernia in which the bladder forms a protrusion in the vagina. The vagina may be regarded as the outlet of the uterus occupying an intermediate position, (in the lower end of the female trunk) between the rectum and the back and the urethra (the outlet of the bladder) in front. The bladder is normally above the vagina and in front of it since it is in front of the uterus. When the tissues in the lower end of the trunk become relaxed, the bladder slips down and forms a bulge in the wall of the vagina.” (Page 209)

The uterus is supported almost entirely by two cardinal ligaments which are inserted into the upper cervical portion of the uterus, acting as two arms of a sling. When these and other ligaments which form the pelvic floor become relaxed, the uterus slides down the vaginal canal below the level of its normal support. There are three degrees of prolapse, each degree indicating the anatomical point in the vagina to which the uterus descended.

In prolapse, the uterus with no change in size, follows substantially the same downward motion and path as it does in pregnancy, without the resiliency in the ligaments to restore it to the normal position.

“The uterus is developed in an extraordinary way during pregnancy . . . Before pregnancy the cavity of the uterus is about 2y2 inches long, but at the end of pregnancy it is about a foot long; its weight increases from one ounce to two pounds. During the early months of pregnancy the uterus descends into the pelvic cavity but after the third month it rises until near the end of pregnancy when it sinks downward again.” Maloy: Legal Anatomy and Surgery 2d Edit., page 749.

The medical witnesses agreed that relaxation of the pelvic floor tissues usually stems from multiple childbirths, resulting in stretching and tearing of the tissue, coupled with a later loss of hormones after the menopause, creating a tissue insufficiency, the net result being that the ligaments lose their strength, elasticity and resiliency. These muscular changes take place gradually over many years.

Recognizing the existence of this relaxed condition, it was Dr. Sanderlin’s opinion that when Appelee put her hands on the refrigerator door and slammed it, this action created a strain internally by lowering the diaphragm, thus decreasing the intraabdominal capacity which increased the pressure within the abdominal and pelvic area exerted against the line of least resistance which in her case was a weakened pelvic floor. This strain aggravated the pre-existing weakened muscular condition, in Dr. Sanderlin’s opinion, and caused the prolapse to occur when it did. Dr. Robertson and Dr. Crow concur that the strain could have precipitated the prolapse.

On the other hand, Dr. Barker was of the firm opinion that Appellee’s condition ivas not related to her work. As to any strain caused by closing the door or attempting to raise the container of orange juice and its effect on the prolapse of the uterus, the Doctor said:

“In my opinion it could have been a precipitating or aggravating factor . . . but not a definite contributory and certainly not causative . . . There is a. remote possibility but it isn’t in my mind any more precipitating or aggravating factor than walking up stairs.”

Appellee testified that she had no symptoms prior to the door closing incident. Her fellow employee corroborated Appellee’s testimony as to the onset of her trouble being’ in close proximity to the door closing incident followed by considerable discomfort. Dr. Robertson is positive that Appellee first saw him about six days after the incident. He was sufficiently convinced of the merits of her case to take it upon himself to write the Workmen’s Compensation Commission in her behalf.

The testimony on this phase of the case preponderates in favor of Appellee and the Commission in effect so found by its statement in the Conclusion to its Opinion in which it relied in affirming the Referee’s denial of the claim on the failure of the Appellee to meet the requirements of the hernia statute. Appellee’s exertion in closing the refrigerator door, under this record, was a contributing cause of the uterine prolapse. Bryant Stave and Heading Company v. White, 227 Ark. 147, 296 S. W. 2d 436; The Crossett Co. v. Childers, 234 Ark. 320, 351 S. W. 2d 841.

This holding that the occurrence of a prolapse of the uterus can be work-connected finds support in Berkhamer v. Heinsling et al., Pa. Super. 28 Atl. 2d 807 (1942), where the claimant slipped and fell in the course of her employment in the starch room of a laundry where she had worked continuously for more than thirty years, fracturing the lower end of her right femur, and sustaining a prolapse of the uterus, which latter condition was not noticed until after an extensive period of convalescence.

Also, in the case of Burek v. Domur Realty Corp., 181 N. Y. S. 2d 45, the claimant testified that she was a janitress for about six years and for three years her work included lifting or moving heavy cans of ashes. On a certain day while lifting such a can, it slipped out of her hands:

‘ ‘ The whole thing dropped and meantime I felt sore inside . . . later on I felt everything drop.”

At the conclusion of the testimony, and because of the divergent medical views, the New York Commission selected an independent gynecologist, who found that the relaxed condition of the pelvic floor in this case was actually an occupational disease, resulting from several years of repeated and continuous lifting, inducing the disabling physical result.

The Commission adopted this view, which was accepted by the Court, whose opinion said that the facts would have warranted a finding that the prolapse of the uterus was causally related to the specific incident of the “ash can,”

Does Appellee’s proof meet the five requirements of Sec. 81-1313o t
This section reads:
“Hernia: In all cases of claims for hernia, it shall be shown to the satisfaction of the Commission:
(1) That the occurrence of the hernia immediately followed as a result of sudden effort, severe strain or application of force directly to the abdominal wall;
(2) That there was severe pain in the hernial region ;
(3) That such pain caused the employee to cease work immediately;
(4) That notice of the occurrence was given to the employer within 48 hours thereafter;
(5) That the physical distress following the occurrence of the hernia was such as to require the attendance of a licensed physician within 48 hours after such occurrence.”

The record fully sustains the Commission’s rulings that Appellee did not suffer severe pain and that the pain did not cause her to cease work immediately. It would he redundant to discuss further the testimony on the latter point. As to the sensation she experienced Appellee testified on direct examination:

“Q. Mrs. Johnson, describe the sensation you had or the pain you had or what reaction you had when you attempted to shut this door and knew something was wrong.”
“A. Well, it was just like something had dropped out of place and there was a pressure and it wasn’t as bad right then as it got to be by the ligaments being torn aloose and standing on my feet, it made it worse than it did that day. ’ ’
On cross examination she stated:
“Q. Would you describe that sensation or feeling for us, please?
“A. Well, it was just a pressure and loss of water and that was about as well as I can describe it.
”Q. Can you describe for us where the pressure was, please ma’am?
“A. Well, it was in the pelvis or just above. Well, in other words it seemed like I was just dividing right in here.
”Q. Now, by that I interpret your feeling of pressure in the lower part of your abdomen?
“A. Yes, sir.”
“Q. Did you have any pain in any part of your body at that time?
“A. No, no pain, nothing more than just pressure.
“Q. You describe it as ‘pressure’ feeling and not a feeling of pain?
“A. Well, it is what I would call it. In other words, like you were going to give birth to a child. ’ ’
“Q. Did you suffer a sharp pain when you picked up the orange crate?
“A. Well, not too sharp, but it ivas pain.”

Appellee further testified that some might call these sensations pain but she described them more as pressure.

Appellee’s proof fails to meet two of the requirements of Sec. 81-1313e, and since failure to discharge the burden of proof as to any one of the five requirements would bar recovery under this section of the statute, it is unnecessary to discuss the arguments under the other subsections. McMurtry v. Marshall Model Market No. 48, 237 Ark. 11, 371 S. W. 2d 4.

We now reach the most difficult question for decision.

Is Appellee’s condition, described as “second degree prolapse of the uterus and cystocele” a hernia within the meaning of the phrase “Hernia: In all cases of claim for hernia ... ” in Sec. 81-1313e?

The Circuit Court held as a matter of law that Appellee’s condition was not a hernia within the meaning of Sec. 81-1313e and therefore should be treated under the Workmen’s Compensation Act as a general accidental injury.

Webster: New International Dictionary, 2d Edition, defines hernia and rupture:

“Hernia: A protrusion consisting of an organ or a part projecting through some natural or accidental opening in the walls of its natural cavity, as hernia of the brain or of the bowels. Hernia of the abdominal viscera is the most common. Called also rupture.”
“Rupture: 1. A breaking apart, or separating, or state of being broken apart; as the rupture of the skin, of a blood vessel; .... (3) med. hernia.”

In Workmen’s Compensation Statutes the word “hernia” is used bjr the Legislature in a popular and therefore more limited sense. Although an intervertebral disk is sometimes referred to as a “hernia nucleus propulsus” it is not a “hernia” within the meaning of that term nor is a brain hernia. Provisions of such statutes cannot be made to apply practically to such injuries. Royal Indemnity Company v. Jones, Tex. Crt. Civ. App. 201 S. W. 2d 129. There, the word “hernia” generally means an abdominal hernia or rupture, 99 C.J.S., § 185, page 637, Workmen’s Compensation Section 165, described in the following definition:

“A. hernia is a protrusion of any organ through an abnormal opening in the wall of the containing cavity. When the word “hernia” or “rupture” is used without qualification it is intended to mean a protrusion from the abdomen usually of the intestine through an abnormal opening in the abdominal wall.” Gray: Attorneys’ Textbook of Medicine, 3rd Edition, Vol 3. Sec. 65.02.

That the Arkansas Legislature intended to localize the word “hernia” as used in Sec. 81-1313e to those which protrude through the abdominal wall is evident:

“IlerHia: In all cases of claims for hernia, it shall be shown to the satisfaction of the Commission:
(1) That the occurrence of the hernia immediately followed as a result of sudden effort, severe strain, or the application of force directly to the abdominal wall; ...”

In Texas where a comparable statute does not refer to the abdomen, the Court not only restricts the word “hernia” to abdominal hernias, but has said:

“Under that section the term is used in its popular sense and usually refers to the inguinal type. Lewis v. American Surety Company, 143 Texas 286, 184 S. W. 2d 137. The inguinal type is one that is readily diagnosed and usually corrected by comparatively simple operation. That is the reason for this sort of operation being especially treated by the Legislature.” Texas Employer’s Insurance Association v. Shelton, 161 Texas 259, 339 S. W. 2d 519.

According to Gray, supra, Section 65.04 characteristic names are given to hernias indicative of that part of the abdominal wall through which the hernia passes and he lists: diaphragmatic hernia, passing through the diaphragm; umbilical hernia, passing through abdominal wall near umbilicus or navel; femoral hernia, passing through femoral canal, which carries femoral artery to the front of the leg; inguinal hernia, passing through inguinal canal, which carries the structures from the testicles' to the abdomen; ventral hernia, passing through the front of the abdomen at points not mentioned above; and lumbar hernia, passing through back of abdomen in region of small of the back.

As to the most common hernias, this comment is pertinent:

“In inguinal, femoral and umbilical hernias, there is a weak place in the belly wall. The weak parts to be considered in inguinal and femoral hernias are the external and internal abdominal rings and the canal. These rings do not really exist except when a hernia is pushing through them; and the canal is a mere slit or flat passage.” Maloy: Legal Anatomy and Surgery, 2d Edition, page 616.

It is of passing interest to note that only claims involving inguinal and umbilical hernias have reached this court; direct inguinal hernias (as being caused by a blow from the outside), Jobe v. Capital Products Corp., 230 Ark. 2, 320 S. W. 2d 634; indirect inguinal hernias (indicating a congenital weakness aggravated by a sudden strain resulting in the hernia), Harding Glass Company v. Davis, 212 Ark. 89, 204 S. W. 2d 880, The Crossett Co. v. Childers, 234 Ark. 320, 351 S. W. 2d 841, Prince Poultry Company v. Stevens, 235 Ark. 1034, 363 S. W. 2d 929, McMurtry v. Marshall Model Market No. 48, 237 Ark. 11, 371 S. W. 2d 4; and umbilical hernias, Williams Manufacturing Co. v. Walker, 206 Ark. 392, 175 S. W. 2d 380.

For the purpose of determining the applicability of special hernia statutes such as ours some courts have declined to make a distinction between hernias which manifest their presence by protrusion through some part of the abdominal wall saying that all such are subject thereto. Kinsman v. R. F. Post Company, 152 Pa. Sup. Court 67, 81 Atl. 2d 358 (femoral hernia): Commans v. Ingalls Shipbuilding Corp et al (Mississippi) 128 So. 2d 115 (diaphragmatic hernia) this reasoning being opposed to the view expressed by the Texas Court in the above cited cases. For the purposes of this opinion it is neither necessary nor desirable to distinguish, or indicate whether a distinction should be made, between hernias generally referred to as abdominal hernias involving a protrusion through an abnormal opening of the abdominal wall.

This Court has recognized the Legislative motive behind the requirements of Sec. 81-1313e:

“Special hernia statutes such as ours, it has been said, are intended to distinguish non-industrial congenital hernias from those definitely produced by trauma or effort at ■work. Larson, Workmen’s Compensation Section 39.70.” Crossett Co. v. Childera, supra.

Justification for these requirements comes primarily from the field of medicine:

“How will an Industrial Accident Board or a Jury determine that a hernia is entirely produced by injury 1 Medically it must be agreed that if abdominal contents immediately pass through an opening in the abdominal wall where there was no preexisting opening, that the muscles forming the wall must have been immediately torn asunder. Such cannot occur without immediate excruciating pain and the appearance of a lump at once. Further, with the abdominal contents immediately herniating, the organs involved will stretch their attachments. The intestine is the usual organ which herniates and the sudden stretching of its attachment almost invariably produces nausea or vomiting. Therefore it is usually considered that a hernia probably was accidental, particularly if the injury was very severe, if there was a definite history of immediate excruciating pain with nausea or vomiting and the immediate appearance of a lump which is determined to be a hernia. Obviously the symptoms must be severe enough that the patient becomes disabled at once.” Gray supra, Section 65.16.

This Court has, in effect, given credence to this reasoning in holding that a congenital predisposition to hernia does not become a statutory hernia under Sec. 81-1313e until there is a “break through.” Crossett Co. v. Childers, supra, where it was said:

‘ ‘ Childers testified that on February 9 while he was at work a heavy wrench came in contact with his stomach as he 'was attempting to free certain jack screws. The pain was intense but it went away after he had rested for five or ten minutes and he was able to finish the day’s work. That night he observed a small lump in the hernial area but it did not occur to him that he might have a hernia. He did his usual work during the next two days, though with some discomfort.
On February 12 there was a leakage of chlorine gas at the plant. Childers had trouble breathing and coughed steadily for 20 minutes or more. This coughing caused abdominal pain that Childers described as much more severe than that upon the first occasion. In the hernia region ‘ (it) felt like it just broke on through. A big swelling come out.’ Childers was forced to cease working and was sent to a doctor, who found that he had an inguinal hernia. ’ ’

The Commission’s conclusion, that it was not until February 12 that Childers’ condition actually became one of hernia, was affirmed:

“There can be no doubt that it was Childers’ work and working condition that caused his congenital weakness to be converted into an actual case of hernia. Under the Appellant’s theory Childers’ injury could never have been compensable for the incident of February 9 did not cause him to cease work as the statute demands and by February 12 it was too late for him to require the attendance of a physician within the limit of 18 hours. It may be true, as the Appellant insists, that the onset of hernia may in some cases be too gradual for it to meet the statutory conditions for compensability. In this record, however, there is substantial evidence to support the Commission’s conclusion that it Avas not until February 12 that Childers’ condition actually became one of hernia. In that view all of the statutory requirements are shown to have existed.”

Under all Workmen’s Compensation Statutes liability for the payment of compensation is premised on there, being an accident in the course of the employment and an injury resulting therefrom. The Supreme Court of Georgia has observed that the breakthrough of the abdominal wall actually constitutes the accidental injury, the hernia or droppage of the intentines being the natural result of this injury.

“The rule under our Workmen’s Compensation law as to hernia is somewhat different from that apply-to other injuries in that not only must hernia have resulted from injury by accident arising out of and in the course of the employee’s employment but it must be definitely proved to the satisfaction of the industrial board that such resulting hernia ‘did not exist prior to the accident’ and ‘was accompanied by pain’ and ‘appeared suddenly’ and ‘immediately followed (the) accident.’ ” Liberty Mutual Insurance Company v. Blackshear, 197 Ga. 334, 28 S. E. 2d 860.
“However, although it has been held by this Court in Hardware Mutual Casualty Company v. Sprayberry, 195 Ga. 393, 24 S. E. 2d 315 and by the Court of Appeals in the same entitled case (69 Ga. Appeal 196, 25 S. E. 2d 74) that the term “hernia” as used in the statute means the protrusion of an internal organ or part projecting through an open-in the walls of the abdominal cavity, we think that the rupture of the tissues of the abdominal wall arising out of an injury in the course of the employment constitutes the actual accidental injury, and that the hernia is merely a natural resultant therefrom; and that the sudden appearance of the rupture, as manifested by accompanying evidences of pain, immediately and without substantial interval following the accident, constitutes an integral part of the resulting hernia within the meaning of the statute; although under the Sprayberry decision the statute would not have application unless the rupture ivas actually followed naturally in duo course and without interruption by a resulting protrusion. ’5

Bearing in mind those decisions and that a “hernia” as that word is used in Sec. 81-1313e is a protrusion of an organ from the abdominal cavity through an abnormal opening in the abdominal wall, was Appellee !s condition such a hernia, or should it be treated as a general. injury?

Dr. Robertson described the condition as “second degree prolapse of the uterus with cystocele” and Dr. Barker in answer to the question as to whether or not he had told Mrs. Johnson that she had sustained some kind' of a hernia replied.

“A. I explained it to her in terms of she had had a marked droppage of the bladder, which is in our terminology the sacropubic hernia which is an all-encompassing word which means droppage or herniation of her entire pelvic organs, including her bladder, uterus, rectum. ’ ’
Dr. Sanderlin referred to it as a “pelvic hernia.”

It is apparent that in using the word “hernia” the medical witnesses in the instant case had in mind the medical or surgical definition and not the definition appropriate to Workmen’s Compensation Statutes.

Dr. Robertson testified:
“ Q. What is a hernia ?
“A. A hernia is a weakening in one of the layers of the body causing a protrusion or bulging of underlying or deeper structures.”
"When asked to define the word “hernia” Dr. Sanderlin replied:
“Hernia is a displacement of certain organs from normal position through a weakened area in the Avails containing them.”

The definition of the word “prolapse” does not embody any element of rupture. Prolapse of the uterus is the falling or slipping down of the uterus from Avithin the abdominal cavity further than normal into the tube-like vagina. The upper end of the vagina is an opening of the abdominal cavity, the cervix of the uterus normally resting in this opening.

According to Dr. Sanderlin the internal pressure built up by Appellee’s exertion was not against the abdominal Avail but against the pelvic floor Aveakened by disease caused by injuries due to multiple births and hormone deficiencies. This is not a congenital condition. In this doctor’s opinion the weakened supporting ligaments had allowed the body of the uterus to elevate and become a prolongation of the vagina thus being in a position of potential prolapse.

Appellee’s testimony establishes that the droppage, contributed to by the exertion, Avas not accompanied by great pain. Dr. Sanderlin explained that there was no tearing of tissues such as is experienced Avhen either a break occurs in the abdominal Avail or when the intestines tear loose as they fall through such a break. The doctor did not belieA^e that sudden, as distinguished from gradual, droppage of the uterus would normally produce severe pain.

Once a prolapse occurs an operation is inevitable, according to Dr, Barker.

“A. I would first recommend wliat you’d do to get it cured, because sooner or later she’s going to be back. I never have to talk these women into having surgery. They are the easiest ones to take care of because when I see it it is just a case of whether I do it this month or a year from now and they will be back for sure. ’ ’

The operation performed on Mrs. Johnson was a total abdominal hysterectomy, bi-lateral salpingooepherectomy and anterior and posterior colporrhaphy and porineorrhaphy, which means that the entire uterus and both ovaries were removed by abdominal incision with repair of the pelvic floor. Is this an operation contemplated by the statute which requires the employer to pay for a radical operation for the repair of a hernia? Certainly not in the popular sense.

It is noted that medical and legal texts do not treat uterine prolapse under the general heading of hernias. In 5 Schneider Workmen’s Compensation Text Permanent Edition, Section 1461 Uterus Prolapse appears under the general heading of “Diseases as Accidents” at page 570. Section 1470 is headed “Hernia-General” and the heading Hernia appears on every page from 573 through page 614.

Because of the physical differences between a hernia and a prolapse of the uterus and under the testimony in this case an accidental injury contributing to the condition described as second degree prolapse of the uterus with cystocele (bulging into the side of the vagina by the bladder permitted by the weakened pelvic floor) which normally occur together would not be compensable if such condition is construed to be a hernia as that word is used in Sec. 81-1313e.

We do not attribute any such intention to the Legislature.

On the contrary, we deem it appropriate to recognize the merit of the following principle:

“It is the settled rule in this state in aid of interpretation that the Compensation Act grounded as it is in social and economic considerations is to be liberally construed to effectuate the general legislative policy (citing cases). The special provision relating to herniae is in the nature of an exception and by the same token is to be strictly construed. A ease not within its precise letter is to be excluded.” Furferi v. Pennsylvania R. Co. 117 N. J. L. 508, 189 Atl. 126, 130.

This case is remanded to the Workmen’s Compensation Commission with instructions to make an award to Appellee for a general injury.

Harris, C. J. not participating'.

Cobb, J., concurs.

Osro Cobb, Justice,

concurring. I fully agree that the Workmen’s Compensation Commission failed to follow our statutory law and the yardsticks provided by decisions of this court in holding against appellee, the injured employee. I, therefore, concur with the action of this court in remanding the case to the Workmen’s Compensation Commission with instructions to make an award to appellee.

My primary reason for writing this short concurring opinion is to take note that the original injury to appellee occurred in 1960. Now, some five years later, the case has finally reached this court and even now we are’ limited in the relief we can provide appellant to a remand of the case with instructions to the Commission. The long and inordinate delays incident to the adjudication of this case are shocking indeed. Justice delayed is frequently justice denied. This is dramatically evident in cases of this character.

I therefore suggest the compelling importance of adjudicating controverted compensation claims with maximum expedition at all levels of consideration of such cases. Of course, this expeditious handling of such cases should be done without sacrifice or compromise to any of the valid rights of the parties litigant.


source: Caselaw Access Project

author: Carleton Harris, Chief Justice.

license: Public Domain

text:
    Jenkins v. Hill
    5-3754
    398 S. W. 2d 679
    Opinion delivered February 7, 1966

      Wright, Lindsey & Jennings and William R. Over-ton, for appellant.

      Henry & Boyett, for appellee.
   Carleton Harris, Chief Justice.

This is a case of first impression. On August 8, 1962, William Gr. Jenkins, appellant, while operating his automobile through Bald Knob, Arkansas, struck appellee, Ben F. Hill, a pedestrian, who was crossing the street. Jenkins.was a citizen of Texas, residing in Weatherford. On August 25, 1964, Hill instituted suit against Jenkins in the Circuit Court of White County for alleged personal injuries sustained in the accident. Summons was served on the Secretary of State as agent for service for appellant on August 28, 1964. On the day before, Hill’s attorney had mailed a copy of the summons and complaint, by registered mail, with return receipt requested, to Jenkins at 4121/2 South Jefferson Street, Weatherford, Texas. The letter was returned by the post office to appellee’s attorney. On October 1, 1964, Jenkins, having learned from other sources that the suit had been instituted against him, filed a special plea and answer. Appellee moved for default judgment, because of Jenkins’ failure to file a timely answer; the court granted the motion, and entered judgment for appellee in the amount of $9,990.00. A motion to set aside the judgment was filed on behalf of appellant, but was denied. Hence, this appeal. For reversal, appellant asserts that the trial court erred in entering a default judgment for two reasons; first, that appellee failed to give appellant notice of service of summons on the Secretary of State as required by the statute, and second, that Jenkins was not subject to the jurisdiction of the trial court, because he did not receive actual notice of the pendency of the lawsuit. It is then assertód that the court erred in refusing to set aside the default judgment.

The parties entered into a stipulation of fact as follows :

“1. On August 25, 1964, a complaint was filed in this Court by plaintiff, Ben F. Hill, against defendant, William C. Jenkins, a non-resident, for injuries arising out of an accident occurring in Bald Knob, White County, Arkansas, on August 8, 1962. A copy of that complaint is attached as Exhibit No. 1 and made a part hereof. Process was issued by the Circuit Clerk, directed to the Sheriff of Pulaski County, Arkansas, who served the Arkansas Secretary of State on August 28, 1964. A copy of that process with return is attached hereto as Exhibit No. 2 and made a part hereof.

“2. On August 27, 1964, plaintiff’s attorney deposited in the United States Mail a Notice of Suit filed, a copy of the process and the complaint addressed to defendant at 412% South Jefferson Street, Weatherford, Texas, registered mail with return receipt requested. 412% South Jefferson Street, Weatherford, Texas, was the address of defendant, William G. Jenkins, as shown on the Arkansas State Police report filed August 10, 1962, by Trooper John M. Westmoreland. The registered letter addressed to defendant was returned by the U. S. Post Office to plaintiff’s attorney. A copy of the letter with attachments is attached as Exhibit No. 3 and made a part hereof. A copy of the return receipt which was returned by the U. S. Post Office is attached as Exhibit No. 4 and made a part hereof.

“3. On August 28, 1964, a complaint and summons were served on the Arkansas Secretary of State who, on September 1, 1964, mailed them by registered mail to William G. Jenkins at 412% South Jefferson, Weather-ford, Texas. The envelope and contents were returned undelivered by the Post Office Department and received in the office of the Secretary of State on September 4, 1964, where they now are.

“4. A letter was sent by the office of Secretary of State, State of Arkansas, to plaintiff’s attorney stating that notice had been sent by registered mail to defendant at 412% South Jefferson, Weatherford, Texas, advising him of the pendency of the suit. A copy of that letter is attached hereto as Exhibit No. 5 and made a part hereof.

“5. On September 2, 1964, a copy of the complaint and a letter were mailed to defendant’s liability insurance carrier in Fort Worth, Texas. A copy of that letter is attached as Exhibit No. 6 and made a part hereof. Defendant contends that this is not relevant, competent or material evidence and does not Avaive his objection to it.

“6. ' On October 1, 1964, defendant filed in the Circuit Court of White County, Arkansas, a special plea and answer, copy of which is attached as Exhibit No. 7 and made a part hereof.

“7. On January 4, 1965, plaintiff filed a motion for default judgment, copy of which is attached as Exhibit No. 8 and made a part hereof.

“8. On January 14, 1965, defendant filed a response to plaintiff’s motion for default judgment, copy of that response and exhibits being attached hereto as Exhibit No. 9 and made a part hereof.

“9. On January 26, 1965, plaintiff’s attorney filed an affidavit with the Circuit Clerk of White County, Arkansas. A copy of that affidavit with attached exhibits ‘A, B, C and D’ is attached hereto as Exhibit No. 10 and made a part hereof.”

. At issue is an interpretation of certain provisions of Ark. Stat. Ann. § 27-342.2 (Eepl. 1962). Other provisions of this statute have been previously passed upon, but the particular point at issue has not heretofore been raised in this court. Pertinent to this determination are the following provisions of that section, as follows.:

“Service of such process shall be made by serving a copy of the process on the said Secretary of State and. such service shall be sufficient service upon the said nonresident owner, or nonresident operator, or chauffeur, or upon the resident owner, resident operator, or chauffeur who has subsequently absented himself physically from the State,- or upon the executor, administrator or other .legal representative of his estate in case he has-not survived such accident or collision or has since died,, provided that notice of such service and a copy of the proóess are forthwith sent by registered mail by the plaintiff or his attorney to the defendant at his last known address* * *”

Based on the facts set forth in the stipulation, we agree with appellant that the trial court erred in entering its default judgment, and further erred in’ refusing to set this judgment aside. It will be noted that appellee’s attorney, on August 27, 1964, mailed a-notice of the filing of the suit, a copy of the process, and a copy of the complaint, to appellant. It was not until the next day, August 28, that the summons was served on the Arkansas Secretary of State. This procedure, of course, did not comply with the actual provisions of the statute, for, under its clear terms, the statute provides that plaintiff, or his attorney, must mail to a defendant notice of the service of summons on the Secretary of State. Appellee argues' that there was substantial compliance with the statute, and that appellant’s insurance carrier had also been advised of 'the pendency of the’ action.

. First, let it be said that we have held that this statute must be strictly construed. Kerr, Administrator v. Greenstein, 213 Ark. 447, 212 S. W. 2d 1.

Next, it appears that all of the states that have passed upon similar (and in some cases, almost identical) acts have flatly held that notice must be sent by a plaintiff or his attorney after actual service of process on the statutory agent, and the mailing of notice before the actual service does not meet the requirements of the statute.

One of the leading eases on this point is State ex rel. Stevens v. Grimm, Circuit Judge (Wis.), 213 N. W. 475. There, the Wisconsin plaintiff attempted to obtain service on a Minnesota defendant under the Wisconsin non-resident motorist statute. The pertinent part of that statute is almost identical with our own. It provides that service of process shall be made by serving a copy upon the Secretary of State “and such service shall be sufficient service upon the said non-resident; provided, that notice of such service and a copy of the process are within 10 days thereafter sent by mail by the plaintiff to the defendant’* ’* ’*.” Appellee points out that the Wisconsin statute uses the word “thereafter,” while our statute provides that after serving the Secretary of State, notice of the service and a copy of the process shall “forthwith” be sent to the defendant. We do not agree that this word creates a substantial difference in the meaning of the Wisconsin statute and the Arkansas statute. Webster’s Third New International Dictionary (unabridged) defines the word, “forthwith,” as, “(1) with dispatch: without delay: within a reasonable time: immediately. (2) immediately after some precedent event: thereupon.” It is accordingly apparent that the word, “forthwith,” in our statute means that the notice of the service and a copy of the process must be sent to the non-resident defendant at least within a reasonable time after service oil the Secretary of State. In Grimm, the plaintiff notified the defendant by mail of the filing of the suit on October 2. The summons and complaint were received by the Secretary of State on October 4. The plaintiff contended, as here, that his action in writing to the defendant, and sending a copy of the summons and complaint on October 2, was sufficient compliance with the statute. The Wisconsin Supreme Court held otherwise, stating:

“Waiving the question of the sufficiency of the affidavit of mailing, it is quite apparent that the plaintiff could not give notice of the service or filing of the summons and complaint upon the secretary of state prior to the performance of that act. The statute clearly requires that notice be given of an existing fact, to -ivit, the service of the summons and complaint upon the secretary of state, and it is not a substantial compliance with the statute to give notice of something which has not yet been done. Notice of filing in the office of the secretary of state could not properly be given until the notice had been filed.”

In Varra v. Superior Court, 4 Cal. Rptr. 920, the District Court of Appeal (Third District) for California passed on the same question. After naming the proper official to be served, the statute provided:

“A notice of service and a copy of the summons and complaint shall be forthwith sent by registered mail by the plaintiff or his attorney to the defendant.”

The defendant received a notice, together with complaint and copy of summons, on October 28, 1959, though the proper state official was not served until November 2. The court said:

‘ ‘ Strict compliance with the conditions- of the above quoted sections is essential to the obtaining of jurisdietion of a non resident defendant* * *. It is clear from the' language of the notice itself that it did not purport to give the required ‘Notice of service’ upon the director. Such ‘notice of service’ could not,'in fact, have been then given as the director was not served until November 2, 1959.”

The court then cited State ex rel. Stevens v. Grimm, supra.

In Bucholz v. Hutton, 153 F. Supp. 62 (Mont.), the the Federal District Court (Havre Div.) was presented with a similar situation. The plaintiff sent a notice to the non-resident defendant on November 20, 1956, together with a copy of the complaint. On the next day, November 21, the Secretary of State wás served. The sufficiency of the service was questioned, inter alia, on the basis that the notice of service of summons on the Secretary of State was mailed the day before service was actually made; and accordingly, was insufficient. The court, in upholding this contention, said:

“The service of process in the instant case accordingly was insufficient for failure to comply with the provisions of Sec. 53-204, R.O.M. 1947, in that (1) notice of'service was mailed by plaintiff’s attorney before service was actually made upon the Secretary of State* * * ”

Likewise, the same view was expressed by the District Court of Appeal of Florida (Third District). Conway v. Spence, 119 So. 2d 426. There too, the summons was not served upon the Secretary of State until the day after plaintiff’s counsel had forwarded notice, copy of ■complaint, and copy of summons which had been issued, to the non-resident defendant. In holding that there had "been no compliance with the statutory requirement for “notice of such service” of process on the Secretary of State, the court said:

“We must reject the -appellee’s contention that mailing a copy of the complaint and oAthe summons to the non-resident defendants amounted to giving them fnotice of such service.’ The notice which the statute, requires, is one which will impart to the non-resident defendant the information that service of such process has been made on the Florida Secretary of State. In the absence of the required notice to them, the defendants were left with no certainty as to when they should answer to avoid a default, or, for that matter, as to whether any service of that summons was made or would be made on the Secretary of State. Therefore, we must uphold appellants’ contention that the forwarding to them, as non-residents, of copies of the summons before it was served on the Secretary of State, with no notice as to the fact of service, was not a substantia] compliance with the statutory requirement for ‘notice of such service’ of process on the Secretary of State, [Citing cases.] ”

Several other states have reached the same conclusion, and, as stated, we know of no case to the contrary. In accordance with the reasoning and citations herein set out, we hold that the pertinent provisions of the statute, here in question, must be fully complied with. It follows that the default judgment must be set aside. In view of this holding, it becomes unnecessary to. considér appellant’s contention that a non-resident defendant must receive actual notice, since appellant has already filed an answer in this case. It "might be added that we find no merit in appellee’s contention that appellant’s insurance cárrier was notified (by appellee’s counsel) before the time for filing answer had’expired, and that this notice cured any defect of attempted service on Jenkins. The insurance company was not a party to the law suit, and the statute setting out the manner in which service can be obtained upon a non-resident defendant, makes no mention of the insurance carrier.

Reversed and remanded.

      Exhibit A to the motion to set aside default judgment consisted of certain admissions of Hill, taken from his deposition of January 9. Exhibit B was the Arkansas State Police report of the accident. Exhibit C was the affidavit of Jenkins, which set out a meritorious defense. Jenkins asserted that he was traveling north in a line of traffic when appellee ran between the appellant’s car and the car immediately in front of appellant. Jenkins alleged that he was traveling within the speed limit, immediately applied his brakes, and turned his wheels to the right to avoid striking Hill, and that he did all he could to avoid the accident. As to notice of the pending suit, he stated that he now lives on the Benton Highway, near Little Rock, having lived there since October 23, 1964. Further: “My address just prior to this was 1310 Hanover Street, Weatherford, Texas. I lived there from November 1963, to October, 1964. My address prior to this was 114 Throckmorton Street, Weatherford, Texas, and I lived there from August, 1962, to November, 1963. My address just prior to this was 412% South Jefferson Street, Weatherford, Texas. I lived there from June 1962 to July 1962. During the months of August or September, 1964, while living at 1310 Hanover Street, Weatherford, Texas, I did not receive any complaint, summons or notification of a lawsuit pending against me and as of November 25, 1964, I still have not received any such lawsuit papers. I did receive a letter from an attorney * * * in April, 1963, while living at 114 Throckmorton, Weather-ford, Texas, which I turned over to my insurance company. This is the only correspondence that I have received- from any ■ one relating to the accident that happened ot Angüst- 8, 1962, in the vicinity of Bald Knob, Arkansas.”

      The original act was passed in 1933, and has been amended several times, generally for the purpose of enlarging the scope of the act.

      It will be noted that this' statute, like the Arkansas statute* uses the word, “forthwith.”


author: Ed. F. McFaddin, Justice.

text:
    Safeway Stores, Inc. v. Gross
    5-3676
    398 S. W. 2d 669
    Opinion delivered February 7, 1966

      House, Holmes & Jewell, for appellant.

      Richard W. Hobbs and William R. Mitchell, for appellee.
   Ed. F. McFaddin, Justice.

The appellee recovered a damage judgment against appellant, but the judgment must be reversed because of an error in one of the instructions.

Appellee, Karen Gross, a high school girl, went with her mother to the Safeway Store in Hot Springs in December 1963. While her mother was in another department of the store, Karen selected a lipstick and some mascara to give to her mother for Christmas, and Karen went to the check-out counter to pay for the items. She testified that she had the lipstick in one hand and the mascara in the other, that both items were visible, and that she was in line .to pay for them. The assistant store manager testified that Karen had slipped the lipstick in her pocket. At all events, according to Karen, the assistant store manager accosted her, accused her of secreting merchandise without intending to" pay for it, and demanded that she accompany him and another employee to the office. She testified that he put his hand on her back and that she -was marched between the two employees to the office, and that after a search revealed nothing except the visible lipstick and mascara, she was allowed to leave the office and rejoin her mother.

Through her father as next friend, Karen filed this action against Safeway Stores, seeking damages for (a) assault and battery, (b) slander, and (c) false imprisonment, all claimed to have occurred in the lipstick-mascara incident. Trial to a jury resulted in a verdict and judgment in favor of Karen, and on this appeal the appellant urges five points for reversal. "We find no merit in any of the points except the one relating to Instruction No. 2; and it is on that point we base our reversal. We do not detail the testimony as to the assault and battery or as to the slander, because it was the giving of the Instruction No. 2 relating to false imprisonment that necessitates a reversal.

As aforesaid, Karen testified that the two articles (lipstick and mascara) were always visible, and that the assistant manager used language which, in effect, amounted to slander. Dean v. Black & White Stores, 186 Ark. 667, 55 S. W. 2d 500. The jury accepted Karen’s testimony, as it had a right to do. On the other hand, the employees of the store testified just as positively that Karen had concealed the lipstick in her pocket. On such testimony of concealment Safeway asked its Instruction No. 2, the challenged portion of which, as offered, read: “You are further instructed that the finding of such unpurchased goods or merchandise concealed upon the person or among the belongings of such person shall be prima facie evidence of wilful conceal ment.” (Emphasis supplied.) The Trial Court refused the instruction as requested, and then amended it and gave it so that the challenged portion read: “You are further instructed that the finding of such unpurchased goods or merchandise wilfully concealed upon the person or among the belongings of such person shall be prima facie evidence of concealment.'’’ (Emphasis supplied.) All the remainder of the instruction was given as requested.

The appellant specifically objected to the giving of the instruction as amended. We hold that the Court committed error in giving the instruction as modified. This instruction was framed from a portion of'At'k-Stat. Ann. § 41-3942 (Repl. 1964), which is a part of Section 4 of Act No. 50 of 1957. The statute says: “ .... and the finding of such unpurchased goods or merchandise concealed upon the person or among the belongings of such person shall be prima facie evidence of wilful concealment . . .' . ” We have quoted oily that portion of the Act from which the appellant framed the germane portion of Instruction No. 2, and it will be observed that the appellant’s requested instruction was a direct quote from the statute.

The Court could have refused the Instruction No. 2 entirely and made no attempt to modify it; and then an entirely different issue would have been presented here as to whether the appellant could take one sentence from a statute and omit the rest, the question then being whether the section given was susceptible of more than one construction. (L. & A.RR. v. Woodson, 127 Ark. 323, 192 S. W. 174; and Mo. Pac. Trans. Co. v. Parker, 200 Ark. 620, 140 S. W. 2d 997.) But the Court-was not content to merely refuse the instruction; instead the Court undertook to amend the instruction and on its own motion gave the instruction as amended and therein the Court committed error.

The instruction as given said that if Karen wilfully concealed the articles, then that would be prima facie evidence of concealment. In effect, this wiped out the prima facie presumption because the jury would- first have to find that she had wilfully concealed before any presumption of concealment could arise. The burden of showing proof for the prima facie presumption was thus made greater than the effect of the presumption. What the Act No. 50 of 1957 ivas undertaking to do in the sentence here involved was to create a presumption that concealment on the person was prima facie evidence of wilful concealment. It is clear that the Court, emasculated the statutory presumption by giving the -modified instruction, and such was error; and was specifically pointed-out by the defendant in the special objection.

The next question is whether the error in the instruction was prejudicial or harmless; and we reach the conclusion that the error was prejudicial. The case was submitted to the jury on three claims urged by the plaintiff [i.e., (a) assault and battery; (b) slander; and (c) false imprisonment); and a general verdict was rendered. The appellant requested that the case be submitted on special issues so that if a verdict should be returned for the plaintiff, all parties could ascertain on which of the three claims for damages the verdict was based. But the 'Court insisted on submitting the case to the jury for a general verdict; so we do not know whether the giving of the modified Instruction No. 2 had anything to do with the verdict. The verdict might have been based on assault and battery, or on slander. But, likewise, it could have been based on false imprisonment; and, if so, the presumption herein mentioned is vital to the defendant’s defense because the complete Instruction No. 2, as heretofore copied, related to the rights of the storekeeper if there were a wilful concealment.

We have repeatedly held that when an error is shown in an instruction given, it is presumed that the error was prejudicial until the opposite is established. St.L. S.F. RR. Co. v. Crabtree, 69 Ark. 134, 62 S. W. 64; Neal v. Brandon, 70 Ark. 79, 66 S. W. 200; Conway v. Coursey, 110 Ark. 557, 161 S. W. 1030; Webb v. Waters, 154 Ark. 547, 243 S. W. 846; and Hargis v. Horrine, 230 Ark. 502, 323 S. W. 2d 917. In the case at bar, because of the general verdict it cannot be shown that the error was harmless; so, in line with our cited cases, we must presume that the error in the instruction was prejudicial; and for that reason the judgment is reversed and the cause remanded.

      The full text of the instruction, as requested, reads: “You are further instructed that the finding of such unpurchased goods or merchandise concealed upon the person or among the belongings of such person shall be prima facie evidence of wilful concealment. Persons so concealing such goods may be detained in a reasonable manner and ’for a reasonable length of time by a peace officer, or a merchant, or a merchant’s employee in order that recovery of such goods may be effected. Such detention by a peace officer, merchant or merchant’s employee shall not render such person civilly liable for false arrest, false imprisonment or unlawful detention.”

      The objection was: “The instruction as given by the Court is an erroneous statement of the law, is confusing and is prejudicial to the defendant. The instruction as given makes it imperative upon the defendant to prove ‘wilful concéalment,’ and then states that such finding of wilful concealment would be prima- facie evidence of ‘concealment.’ The statute provides that if it is found that there was a concealment of unpurchased goods, then it is prima facie presumed that the concealment was wilful. The instruction as given does not allow any presumption of prima facie evidence to arise in favor of the defendant upon the finding of concealment, but specifically places upon the defendant the burden of proving wilful concealment, and thus is contrary to the law.” • -■tf"''"

      JIn U. S. Reports 13 L. ed. 2d 1138 there is an annotation entitled: “Validity, under federal constitution, of criminal statute or ordinance making- one fact presumptive, or prima facie evidence of another.” In 86 A. L. R. 2d 435 there is an annotation entitled: “Construction and effect, in false imprisonment action, of statute providing- for detention of suspected shoplifters by merchant or employee.”


text:
    Orrell v. E. C. Barton & Co.
    5-3755
    398 S. W. 2d 685
    Opinion delivered February 7, 1966

      John F. Gibson, for appellant.

      Williamson, Williamson & Ball for appellee.
   Ed. F. McFaddin, Justice.

In this case estoppel was unsuccessfully, pleaded to defeat the lien claim of a materialman.

In March 1963 appellants, Jimmy Orrell and his wife, entered into a contract with Capital Construction Company whereby the latter would furnish all labor, services, and materials, and would build a residence for the Orrells. The Capital Construction Company purchased several thousand dollars of such materials from appellee, E. C. Barton & Company (hereinafter called “Barton”). When the account remained unpaid, Barton filed this suit for a materialman’s lien on the building and one acre of land belonging to the Orrells (Ark. Stat. Ann. § 51-601 et seq. [1947)]. In resisting th¡e suit the Orrells. claimed that Barton was estopped to assert a lien against the Orrells and their property. Trial in the Chancery Court resulted in a decree awarding Barton .the claimed lien; and on this appeal the Orrells urge only one point: ‘ ‘ The Court erred in denying appellants ’ plea of estoppel.” , . ....

Of course, the burden of proving estoppel, in a case like this one, was and is on the persons asserting it. Kennemore v. Robbins, 223 Ark. 384, 266 S. W. 2d 64, was a case wherein estoppel was pleaded to defeat a lien claim; and there we said: “The burden was on the appellees [landowners] to prove the facts constituting their claim of estoppel, since it is conceded that the .materials had been furnished and the lien notice filed within the statutory time.” Degen v. Acme Brick Co., 228 Ark. 1054, 312 S. W. 2d 194, was also a case wherein estoppel was pleaded to defeat a lien; and there we said: “The question at issue is whether the appellants [landowners] met the burden of proving their defense.”

In the case at bar the Chancery Court heard the evidence ore terms, and then delivered a written Opinion of ten typewritten pages. Among other language found in the excellent Opinion of the Chancellor, we quote, the following:

“The burden is on the Orrells to prove estoppel by a preponderance of the evidence. Kennemore v. Robbins supra.....Thus, it is found, considering all the testimony in the record, that the weight of the proof is at least equal on the'part of each party as to their respective versions of the material part of the conversation, or at least it:does not preponderate in favor of the Orrells and probably preponderates in favor of Barton . . . The plea' of estoppel by the Orrells should be deniéd for the reason the same has not been sustained by a preponderance of all the evidence in the record.” '.

It would serve no useful purpose to recount the testimony of each witness. The fact remains that the burden was on the appellant to sustain his1 plea of estoppel; and in this Court on trial de novo on the record, we have carefully considered all the testimony of all the-witnesses and we cannot say that the decree of the Chancellor is against the preponderance of the evidence. The Trial Court had the opportunity to oh-serve the witnesses’ demeanor, appearance, mannerisms, candor or lack of candor, and consequently was in a much better position than is this Court, which sees only the typewritten page, to judge the credibility of the witnesses and the weight to be given the testimony of each. The words of Mr. Justice Knox in Ellis v. Blankenship, 207 Ark. 739, 182 S. W. 2d 756, are apropos:

“This case furnishes a splendid example of the value of the rule that the findings of a chancery court, while not conclusive, are nevertheless persuasive, and will not be disturbed unless against the weight of the evidence. If we were required to examine this record and decide this case on first impression, wholly without knowledge of local conditions,. we would work under a great handicap. The chancellor on the other hand doubtless knew all, or most of the parties and witnesses; he was familiar with the scene in which the controversy was set'; he was adjusting a dispute between his neighbors and friends, and the decree of the chancery court, of necessity, reflected much local color, which was clear to the judge thereof and helpful to a proper determination of the issues, but of which we can know little.”

Affirmed.


author: George Rose Smith, Justice.

text:
    Wood v. Patterson
    5-3732
    398 S. W. 2d 672
    Opinion delivered February 7, 1966
    [Rehearing denied March 14, 1966.]

      Crumpler & O’Connor, Mahony & Tocum, for appellant.

      Spencer & Spencer, for appellee.
   George Rose Smith, Justice.

This is a suit by the appellees, the lessors, to cancel an oil and gas lease (in form two duplicate instruments) with respect to twenty of the forty acres covered by the lease. The appellants, the lessees, concede that some right of cancellation exists, but they insist that it extends to ten acres only—not twenty. The dispute actually turns upon a single question: Was the lessees’ original application to the Oil and Gas Commission for a permit to drill a well on the west half of the tract effectively changed to refer to the south half of the tract? The chancellor found that the lessees’ proof did not establish their'contention that the application had been changed. If that finding was correct the chancellor was right in canceling the lease with respect to the entire east half of the forty-acre tract.

The facts are somewhat involved. The lease covered the southwest quarter of the northwest quarter of a certain section in Union county. The parties used a printed form, but they inserted a special provision that if the first well should result in production the lessees agreed to begin a second well within sixty days and in like manner to drill additional wells “until one well is located on each drilling unit as established by the Arkansas Oil and Gas Commission.”

Two producing wells were eventually drilled. Both were in the southwest quarter of the forty-acre tract, but they tapped different oil-bearing sands. The lessees, in applying to the Commission for a permit to drill the first well, completed a printed form in which one of the blank spaces was filled in as follows:

“Number of acres and description of drilling-unit: 20 acre- TJnit, WV2 SWVé NWVi........................”

The Commission issued the permit. The lessees completed the well, Patterson No. 1, which became the discovery well for what is apparently a very small producing formation.

Upon completion of the well the lessees filed a written request that the Commission hold a hearing for the purpose of adopting field regulations for the production discovered by the Patterson No. 1 well. Notice of the hearing was sent to the lessors, who did not attend. After the hearing the Commission issued a four-page order fixing the regulations for the formation. Among other things the order prescribed twenty-acre drilling units and specified that each unit should be the north half, the east half, the south half, or the west half of a regular governmental one-sixteenth section.

The appellants insist that as a result of the hearing their drilling unit for Patterson No. 1 was changed-from the west half of the forty acres, as their application for a drilling permit stated, to the south half of the tract. The asserted change, however, was not mentioned (a) in their request for the hearing, (b) in the notice of hearing that was sent to the lessors, or (c) in the Conn mission’s order. (There is testimony that individual drilling units are specifically described in very few Commission orders such as the one involved here.)

At the outset the appellants argue that their original selection of a twenty-acre drilling unit should not be given any weight, because the possibility existed that the regulations later adopted by the Commission might not sanction a drilling unit of exactly twenty acres. Even so, that uncertainty was dispelled when the Commission did prescribe a twenty-acre unit. Inasmuch as the description in the permit application proved to be in conformity with the Commission’s subsequent order we are of the opinion that thereafter the original description could be relied upon as a declaration of the lessees’ intention.

The appellants’ other proof comes to this: At the hearing before the Oil and Gas Commission the appellants’ petroleum engineer, whose testimony was taken down by a court reporter, explained some six or seven regulations that the lessees were requesting. In the course of his testimony the witness asked that the drilling unit for Patterson No. 1 be the south half of the forty-acre tract. That request was sandwiched between two similar requests, also involving land descriptions, with no intimation whatever that a change in the identity of the. drilling unit was being sought. .

None of the five.members of the Commission testified in the court below. The Commission’s executive director, Edward A. Albares, was called as a witness. Albares testified that his notes, taken during the Commission’s conference after the hearing, showed that the commissioners “voted unanimously to grant the application as requested.” At some later date, evidently after the present controversy had arisen, Albares made a hand-written notation on the original application for the drilling permit, that the unit had been changed “at Hearing July 11, 1963,” to the south half of the tract. Albares candidly admitted that he made the notation after a discussion not with the commissioners but with his own staff.

The appellants do not argue, and are not in a position to argue, that they themselves made the asserted change in the drilling unit, for there is no proof of any action at all on their part. Hence they contend that the Commission made the change. No doubt the Commission could have done so, but there is no proof that the Commission consciously did do so. All that the Commission actually did -was to issue a routine order granting a routine request for field regulations. It would strain credulity to assume that the commissioners compared the application for a drilling permit (which was not involved in the hearing) with the engineer’s oral recitation of a technical land description, noticed that the two descriptions were not alike, and concluded not only that a request for a change was being tacitly made but also that it should be granted.

Public records should not be needlessly subjected to the uncertainties of oral testimony. Until this controversy arose the only available public record relating to the drilling unit (the permit application) described it as the west half of the tract. An amendment of that record should, we think, be found in an instrument of equal dignity, not in a court reporter’s notes. See Ark. State Highway Commn. v. Wilmans, 239 Ark. 281, 388 S. W. 2d 916 (1965), where we rejected a contention that public records had been changed by an oral agreement.

Another consideration strengthens our conclusion. If the appellants are right in their contention (an issue we do not reach) that Patterson No. 1 extended the primary term of the lease for all formations underlying the south half of the forty acres and that Patterson No. 2 likewise extended the term for all formations underlying the west half, then the lessors would be in the helpless position of being unable to drill, or to authorize anyone else to drill, the northeast quarter (ten acres) of their land, despite the cancellation of the appellants’ lease with respect to those ten acres. This would be true because the northeast ten acres could not be made a part of either of the two twenty-acre units that would otherwise be available, for in both instances the other half of those potential drilling units would already be encumbered by the appellants ’ lease. Such an inequitable result should, if possible, be avoided.

The decree is affirmed.


text:
    Holt v. Ames
    5-3745
    398 S. W. 2d 687
    Opinion delivered February 7, 1966

      Lester E. Dole, Jr., for appellant.

      Streett & PlunJcett, for appellee.
   George Rose Smith, Justice.

This is a suit by the appellee, Robert C. Ames, for specific performance of an option contract by which the appellant, J. L. Holt, assertedly bound himself to sell a parcel of land to Ames for $35,000.00. The appellant’s main contention is that the option contract ivas not sufficiently definite and certain to be specifically enforceable. The chancellor rejected that defense and entered a decree granting the relief sought by the purchaser.

In the court below the defendant filed an answer denying all material allegations of the complaint. Such a denial casts upon the plaintiff the burden of proving a valid contract. Purvis v. Erwin, 167 Ark. 345, 268 S. W. 355 (1925); Stanford v. Sager, 141 Ark. 458, 217 S. W. 458 (1920).

We copy the only writing that was signed by the parties, or either of them:

“OPTION TO BUY
“It is hereby agreed that Mr. J. L. Holt will give Robert Ames 120 day purchase option on his property at 642 Lincoln.
“The purchase price will be $34,500.00. Robert Ames will give Mr. Holt $1.00 for this 120 day option to purchase.
“Option beginning April 1, 1964 ending July 30, 1964.
“Signed: J. L. Holt
Robert Ames
Witness:
Eleanor Jackson”

The purchase price was actually $35,000.00, with Ames making an unrecited deposit of $500.00 earnest money. Holt concedes that if the option is unenforceable Ames is entitled to have the earnest money returned to him.

We are of the opinion that the appellant is right in his insistence that the contract lacks that degree of certainty which the law requires. The only description of the land, “his property at 642 Lincoln,” is defective in two respects. First, although a description by a street address may in some instances be sufficient, Creighton v. Huggins, 227 Ark. 1096, 303 S. W. 2d 893 (1957), here the tract demanded by the purchaser includes other land lying next to 642 Lincoln and not embraced Avithin the lot designated by that house number. Secondly, the memorandum does not indicate the city or town where the property is to be found. Hence the writing itself does not supply the necessary clue by Avhich the land may be identified. Miller v. Best, 235 Ark. 737, 361 S. W. 2d 737 (1962).

The appellee contends that the defects in the option agreement were remedied by the seller’s having submitted for the buyer’s examination two abstracts of title that are said to contain an accurate description of the land. The abstracts were not signed by the seller, were not mentioned in the option agreement, and actually conflicted with that agreement in that the property described in the abstracts was not 642 Lincoln. The rule is that the written agreement must, Avithout a resort to extrinsic evidence, embrace all the-terms-and conditions of the sale. Tate v. Clark, 203 Ark. 231, 156 S. W. 2d 218 (1941). Here it is impossible for the appellee to prove the contract without bringing extrinsic parol evidence into the record. That crutch is not available to him.

There is actually still another fatal omission in the option contract: It does not state the terms upon which the purchase price is to be paid. In Jonesboro Inv. Co. v. Cherry, 239 Ark. 1035, 396 S. W. 2d 284 (1965), we reaffirmed our earlier declarations that such an omission renders the contract unenforceable.

Reversed.

Cobb, J., not participating.


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

text:
    Robertson v. Phillips
    5-3751
    398 S. W. 2d 889
    Opinion delivered February 7, 1966
    [Rehearing denied March 7, 1966.]

      Barrett, Wheatley, Smith & Deacon, for appellant.

      Douglas Bradley, for appellee.
   Paul Ward, Justice.

This litigation is to determine who is the owner of a Certificate of Deposit in the principal sum of $4,000, and to a Joint Bank Account in the sum of $646.50.

Factual Background. Richard Isaac Phillips died testate on February 25, 1963, leaving all his property to Norman A. Phillips, a son and only heir. Before his death (and on November 23, 1962) he purchased the $4,000 Certificate of Deposit from the Citizens Bank of Jonesboro, payable to “Richard Isaac Phillips or Mamie Robertson, or order.” Mamie Robertson was the deceased’s sister with whom he was living when he died. The Certificate was delivered to the deceased who placed it in a safety deposit box which he rented from the bank. He retained the key to the box.

On January 5, 1963 the deceased created a joint account with appellant in a bank located in Troy, Kansas, it being in the amount of $646.50 at the time of his death. This was a “joint” account payable to Phillips or his sister or the survivor.

How this action arose. Upon the death of Phillips his son (appellee herein) was appointed executor of his estate in accord with a provision of the will, and as such he claims title to the Certificate.

On July 26, 1963 Mamie Robertson (appellant herein) filed suit against Norman individually and as administrator. In material parts and in substance the complaint alleges: (a) The Certificate, being made out to the deceased or appellant or order, created a joint tenancy, and that it was so intended by the deceased and the bank; (b) In the alternative the Certificate should he reformed to express the wishes and intention of the deceased.

To the above complaint appellee answered, denying the certificate created a joint tenancy and denying it could be reformed. By way of cross-complaint appellee alleged that the money in the Kansas bank belonged to the estate and not to appellant as she claims.

After a hearing was had on the pleadings, testimony and stipulations of the parties, the trial court found that the Certificate of Deposit ($4,000) belongs to the estate and that the money in the Kansas bank ($646.50) belongs to appellant. Appellant now prosecutes a direct appeal and appellee prosecutes a cross-appeal.

It is our conclusion that the trial court must be affirmed on both counts. Appellant relies on five points for a reversal, but they are so interrelated that we deem it unnecessary to discuss each point separately.

One. It is undisputed that the Certificate of Deposit was made out to the deceased or appellant, and it is contended this created a joint account or joint tenancy under the provisions of Ark. Stat. Ann. § 67-521 (Repl. 1957). We do not agree. The pertinent portion of said section reads:

“When a deposit shall have been made by any person in the name of such depositor and another person and in form to be paid to either, or the survivor of them, such deposit thereupon and any additions thereto made by either of such persons, upon the making thereof, shall become the property of such persons as joint tenants, and the same, together with all interest thereon, shall be held for the exclusive use of the person so named, and may be paid to either during the lifetime of both, or to the survivor after the death of one of them; ... ”

The above section of our statutes has been before this Court for interpretation not less than ten times. See: Black v. Black, 199 Ark. 609, 135 S. W. 2d 837; Harbour v. Harbour, 207 Ark. 551, 181 S. W. 2d 805; Pye v. Higgason, 210 Ark. 347, 195 S. W. 2d 632; Powell v. Powell, 222 Ark. 918, 263 S. W. 2d 708; Vincent, Adm’x. v. Vincent, 224 Ark. 449, 274 S. W. 2d 772; Tesch v. Miller, 227 Ark. 74, 296 S. W. 2d 392; Park v. McClemens, 231 Ark. 983, 334 S. W. 2d 709; Von Tungeln v. Chapman, 233 Ark. 219, 343 S. W. 2d 782; Beyer v. Pope, 236 Ark. 443, 366 S. W. 2d 716; Ratliff v. Ratliff, Admx., 237 Ark. 191, 372 S. W. 2d 216.

It would serve no useful purpose to analyze our reasoning and conclusions reached in the above mentioned cases. It suffices, for the purpose of this opinion, to say we have never held, in a case of this nature, that there was a right of survivorship unless it was first shown the statute was complied with, in that the account was payable to either the depositor or the survivor. This conclusion is affirmatively stated in the Ratliff case, supra, at page 194 of the Arkansas Reports. It is not contended, of course, that the words emphasized above, are found on the Certificate of Deposit in question here.

It should be helpful to the public in general to know that the 1965 legislature passed two acts which will significantly affect many subsequent bank deposits, but which have no bearing on the issue here. One is Act No. 73, being Ark. Stat. Ann. § 67-552 (Special Supp. 1965). The other is Act No. 444, being Ark. Stat. Ann. § 67-521 (Repl. 1966).

Two. The trial court was correct in holding the Certificate could not be reformed to comply with the alleged wishes of the deceased that appellant should get the money. In the first place it is clear that no part of the money belonged to appellant and that if the deceased did desire appellant to have the money his action, in making the deposit, was voluntary. In the case of Gray v. Gray, 233 Ark. 310, 344 S. W. 2d 329, we held that a voluntary conveyance is not subject to reformation. Neither can appellant win on the theory that the money was given to her, because there was no delivery.

Cross-Complaint. Appellee contends that the money in the Kansas bank belongs to the estate because it was only a check-account to take care of current expenses while he was living in the home of appellant. The trial court held otherwise, and we do not go into the merits of the court’s holding because the cross-appeal was not filed within the time provided by Ark. Stat. Ann. § 27-2106.1 (Repl. 1962). This section provides, among other things, that any party to an action “may cross-appeal from a judgment on decree by filing with the court in which the case is tried a notice of cross-appeal within ten (10) days after the notice of appeal is served on such party.” According to the record appellee did not comply with the above provision. It shows: (a)' The notice of appeal was filed by appellant on May 21, 1965 and appellee was notified by mail on the same day, and (b) Appellee filed notice of cross-appeal on June 15, 1965.

The decree of the trial court is accordingly affirmed on direct appeal and on cross-appeal.

McFaddin, J., dissents.

Ed. F. McFaddin, Justice,

dissenting. I cannot agree to an affirmance of the direct appeal in this case. The Majority—because of legal technicalities regarding reformation of gifts—is allowing a result to come about which is entirely opposite from the result which the Bank promised Richard Isaac Phillips. When Mr. Phillips went into the Citizens Bank in Jonesboro he had a conversation with the then President of the Bank, Mr. Morris L. McKinney. Mr. McKinney’s testimony is abstracted as follows:

“I was formerly president of Citizens Bank of Jonesboro for a period of 27 or 8 years. I retired January 1, 1963. I became acquainted with Richard I. Phillips in the fall of 1962. He ivas a customer of the bank. He came in the bank one morning, came to my desk, visited with me perhaps 30 minutes or an hour and stated he would like to make a deposit. I can’t remember how the original deposit was made. My acquaintance continued a few months. .1 remember his obtaining the certificate of deposit in litigation. His account amounted to some $7,700. approximately, and he wanted to get some interest on part of that and decided he would place $4,000 of this account on time certificate at 4%. He stated he wanted his sister to have this money in event of his death and I told him that we could make the certificate .jointly-that is to either party-and he said that was the way he wanted it, so that was the way we fixed it. I think the certificate was made to him or Mamie Robertson. He voluntarily discussed-his personal affairs with me and stated that his sister in Kansas was very close to him and wanted him to come up there and live with her so she could take care of him as he was in ill health. He also stated that he had a son who was not very close to him-in fact, they had nothing in common. I don’t believe they even visited with each other, and he stated that he wanted his sister to have the money in event of his death. I thought the certificate of deposit as prepared would give the funds to the survivor in event of death of either one.”

Mr. Phillips was advised by the banker that the certificate would go to Mamie Robertson in the event of his death. Mr. McKinney was of that opinion, and so advised Mr. Phillips. On that information and advice Mr. Phillips made the deposit. The Bank should correct the error of its President. All possible parties are before the Court: there is Norman Phillips, individually; Norman Phillips, as Executor of the Last Will and Testament of Richard Isaac Phillips; and also the Citizens Bank of Jonesboro. I think we should grant reformation. This deposit was more than a mere gift to Mamie Robertson: it was supposed to be a contract between the Bank and Mr. Phillips for the benefit of Mamie Robertson; and I think she is entitled to reformation. We granted reformation in Gray v. Gray, 233 Ark. 310, 344 S. W. 2d 329; and I think we should grant reformation in this case.


author: Jim Johnson, Justice.

text:
    Eisele, Adm’r v. Beaudoin
    5-3739
    398 S. W. 2d 676
    Opinion delivered February 7, 1966

      Barber, Henry, Thurman, McCaskill & Amsler, for appellant.

      McMath, Leatherman, Woods & Youngdahl, for appellee.
   Jim Johnson, Justice.

This appeal principally involves the dead man’s, statute.

On October 14, 1962, McKinley Beandoin, a Negro native of south Louisiana, his wife, appellee Marie Beaudoin, their daughter, appellee Beulah LaCaze, and her infant son Billy, were driving through Arkansas on their way home to Chicago after a family visit in Louisiana. McKinley Beaudoin and his daughter had alternated driving. Beaudoin was driving north on U. S. Highway 167 in the rain. About eight miles north of Sheridan the automobile left the highway on the righthand side, went down an embankment, the left side of the automobile struck a tree 138 feet away with such force the car came to rest about twelve feet from the tree. All the occupants were injured. Billy LaCaze, the infant, died in his mother’s arms en route to the hospital and McKinley Beaudoin died two days later in a Little Kock hospital.

Willie LaCaze, the boy’s father, was appointed administrator of his son’s estate. On October 22, 1963, appellees Marie Beaudoin, Beulah LaCaze and Willie LaCaze as administrator, filed suit in Grant Circuit Court against appellant G. Thomas Eisele, administrator of the estate of McKinley Beaudoin, deceased. Trial before a jury resulted in verdicts for the estate, for Beulah LaCaze and for Marie Beaudoin. From judgment on the verdicts comes this appeal.

It is conceded that the passengers in the automobile were guests and appellees alleged that McKinley Beaudoin was guilty of wilful misconduct in the operation of the automobile by operating it at a high, unlawful and excessive rate of speed under the prevailing conditions and by failing to keep the automobile under proper control or to keep a proper lookout.

For reversal appellant urges first that the trial court erred in permitting the surviving passengers to testify that a verbal warning as to speed was given to the driver, who died as a result of the accident.

Beulah LaCaze and Marie Beaudoin both testified that before the accident Marie Beaudoin told her husband lie was driving too fast.. Appellant contends that this testimony is inadmissible under the so-called “dead man’s statute,” Section 2 of the Schedule to the Arkansas Constitution. This section reads as follows:

“In civil actions no witness shall be excluded because he is a party to the suit or interested in the issue to be tried. Provided, that in actions by or against executors, administrators, or guardians in which judgment may be rendered for or against them, neither party shall be allowed to testify against the other as to any transactions with or statements of the testator, intestate or ward, unless called to testify thereto by the opposite party. Provided, further, that this section may be amended or repealed by the General Assembly.”

The dead man’s statute has been considered by this court many times. The court apparently first dealt with this particular situation, that is, testimony of a party about an automobile accident and statements made to the deceased before the accident (but not statements made by the deceased) in Rankin v. Morgan, 193 Ark. 751, 102 S. W. 2d 552. The court specifically held that a collision and incidents connected therewith are not transactions with the testate or intestate, and further observed that since disqualification of witnesses is not favored, the court “will not extend or expand by interpretation the limited compass” of the dead man’s statute.

It is our view that the protestation to the deceased driver relative to the speed of the automobile made here was an incident connected with the collision. It follows, therefore, that the trial court did not err in admitting the testimony objected to.

Appellant secondly urges that the trial court erred in permitting Marie Beaudoin to testify as to her estimate of the speed of the automobile before the accident.

Appellee Beaudoin testified that she did not drive a car. Over appellant’s objections, she was permitted to testify as to her opinion of the car’s speed before the accident. A similar objection was made in 1911, “the very threshold of the automobile age,” in Bowen v. State, 100 Ark. 232, 140 S. W. 28. There the court said:

“Transportation by automobile may be taken as a matter of common knowledge and general information. It does not require the knowledge of an expert to determine whether an automobile is moving at a usual or unusual rate of speed. Any person of ordinary understanding and common observation is competent to speak upon that question. In the case of Railway Company v. Thomason, 59 Ark. 143, this court said:
“ ‘The witness was testifying to matters of fact which he says he had observed, and about Avhich men of common understanding might be informed upon observation. Any person cognizant of the facts upon Avhich he bases his judgment may give his opinion on questions of identity, size, Aveight, distance and time. Such questions are open to all men of ordinary information.’ Again:
“ ‘We can see nothing in the distance or range of the reflection of light by the headlight of an engine calling for the exercise of peculiar skill, the possession of professional knowledge, or requiring any peculiar habit of study in order to qualify a person to understand it, and to testify about it intelligently.” The same may be said as to the speed of an automobile. See, also, Little Rock Traction & El. Co. v. Nelson, 66 Ark. 498; Miller v. State, 94 Ark. 544; St. Louis & S. F. Ry. Co. v. Brown, 62 Ark. 254.” [Emphasis ours.]

Appellant next contends that the trial court erred in refusing to direct a verdict for appellant at the close of appellees’ evidence, as there Avas a failure of evidence of wilful and wanton misconduct on the part of the driver.

There was testimony that the driver was travelling75 to 80 miles an hour, in a blinding rain storm so bad other cars were using headlights, after being warned or asked to slow down. Photographs in evidence show the distance traveled after the car left the road, the damage to the pine tree and the smashed left side of the car. This, with other evidence, correctly submitted to the jury the question of wilful and wanton misconduct under the rule “that when fair-minded men might differ, then the question is one for the jury.” Harkrider v. Cox, 230 Ark. 155, 321 S. W. 2d 226, and cases cited therein.

Appellant’s final point urged for reversal is that the verdict in the sum of $8,000 for the estate of the deceased infant, Billy LaCaze, is grossly excessive.

(The verdict and judgment found for Willie LaCaze as administrator of the estate of Billy LaCaze and fixed the damages at $4,000 for the mother, Beulah LaCaze and $4,000 for the father, Willie LaCaze.)

The jury was instructed that if they decided for the administrator, they would consider three elements of damages: (1) present value of the minor’s future services and contributions to the parents, (2) an amount to reasonably compensate the parents for their mental anguish, and (3) the reasonable value of the funeral expenses. If this verdict were for funeral expenses, it would seem excessive because the father testified to burial expenses of $175. However, no interrogatories were submitted to the jury and it would be valueless to speculate what percentage of the verdict was attributable to each of the three elements of damage. Smith v. Tipton, 237 Ark. 486, 374 S. W. 2d 176. Determination of damages for mental anguish and loss of services is the province of the jury. Certainly the amounts in this verdiet are not so grossly excessive as to shock the conscience of the court. Beggs v. Stalnaker, 237 Ark. 281, 372 S. W. 2d 600.

Affirmed.


author: Frank Holt, Justice.

text:
    Norwood v. Allen
    5-3741
    398 S. W. 2d 684
    Opinion delivered February 7, 1966

      Kenneth C of felt, for appellant.

      Cole & Scott, for appellee.
   Frank Holt, Justice.

Appellant instituted a partition suit seeking to enforce her alleged interest in certain lands by reason of her father’s will. The appellees, the Allens, resisted the partition suit as the owners in fee simple title deraigned from a 1935 court approved sale, specifically pleading the statute of limitation. The chancellor granted appellees’ motion for summary judgment and held that appellant had no interest in the lands and that appellees are the sol© owners.

On appeal appellant contends for reversal that (1) her father’s will contained no provision authorizing the sale of her interest and (2) there were certain procedural defects which rendered the court approved sale fraudulent and void. The will, naming appellant one of the devisees, was executed in 1930 by her father who died the same year. In 1935 appellant’s mother, as executrix of the estate, sold the property in question pursuant to a probate court order. The court found that the proposed sale “is to the best interest of said estate and for the benefit of said minor heirs * * * Martha Ann Rhoads” [appellant].

The appellees acquired title to the lands in 1964 and the following year appellant filed her partition suit.

The chancellor was correct when he granted appellees ’ motion for summary judgment since the statute ©f limitation applies. One of the grounds for granting a motion for summary judgment is the absence of a genuine issue of a material fact. Ark. Stat. Ann. § 29-211 (Repl. 1962); Epps v. Remmel, 237 Ark. 391, 373 S. W. 2d 141. Our summary judgment statute is a reenactment of Rule 56 of the Federal Rules of Civil Procedure. Russell v. City of Rogers, 236 Ark. 713, 368 S. W. 2d 89. A summary judgment is proper where a claim is barred by the statute of limitation. The Horton Brown Corporation v. Goodhart, 233 F. 2d 23 (D. C. 1956).

In the case at bar the remedy appellant now seeks was limited to three years after reaching her full age (18). Ark. Stat. Ann. A 57-103—37-101—37-226; Brake v. Sides, 95 Ark. 74, 128 S. W. 572; Cannon v. Price, 202 Ark. 464, 150 S. W. 2d 755.

According to the pleadings, exhibits, etc., the appellant was named in the 1930 will as one of the testator’s children. It is evident that appellant reached her age ©£ majority more than three years before, 1965 when she began this litigation. Therefore, the statute of limitation must be applied since she did not attack the validity of the court order authorizing the sale within three years after reaching her full age.

No justiciable issue exists and the chancellor correctly granted the motion for summary judgment.

Affirmed.

Cobb, J., not participating.