author: Paul Ward,- Justice.

text:
    American State Bank v. Carl Creekmore, Judge
    5-4211
    414 S. W. 2d 389
    Opinion delivered May 8, 1967

      Dale L. Bumpers, for appellant.

      Lomde Bachelor and Bachelor & Bachelor, for ap-pellee.
   Paul Ward,- Justice.

This Petition for a Writ of Prohibition stems, from a suit in replevin, and raises questions of jurisdiction of the trial court. The factual background, about which there is no controversy, is summarized below.

On May 17, 1966 Jim Brewer filed a complaint in the Crawford County Circuit Court to recover a rock crusher in possession of Bill Beam, d/b/a/ Beam Brothers Contractors. Brewer also asked judgment for $1,500 against Beam for expenses in locating the machine and a like amount for detention of same. Beam answered with a general denial, and a cross-complaint against the American State Bank located in Franklin County — hereafter referred to as “Petitioner”. It was there alleged that Petitioner had previously sold the rock crusher to him — Beam—for $550; that Petitioner knew the machine needed extensive repairs, and did not mention any dispute over the title. Beam prayed the court for relief as follows: (a) Dismiss Brewer’s complaint; (b) otherwise, judgment against Petitioner for breach of title, and; judgment against Petitioner for any amount that Brewer might recover against him — Beam. Service on Petitioner was had in Franklin County.

Petitioner filed a Motion to Quash service and Dismiss the cross-complaint on the ground that it was an Arkansas corporation situated in Franklin County, and that, therefore, Beam’s cross-complaint could not he iried in Crawford County. The Motion was denied by the trial court, and this “Petition for Writ of Prohibition” comes to us as case No. 4211.

On November 23, 1966 Brewer filed an “Amended Complaint for Replevin” against Beam and the Petitioner (the bank) alleging, among other things; plaintiff is owner and entitled to possession of the rock crusher; on December 20, 1965 Petitioner took the machine and converted it to its own use, and then conveyed possession and title to Beam; he inquired of Beam and Petitioner about the location of the rock crusher, but they denied any knowledge thereof “when in truth and in fact defendant knew the location thereof, and with Beam Brothers Contractors concealed same from plaintiff . . . until he had expended large sums of money in locating same”. (Emphasis ours.) Plaintiff prayed for judgment in the amount of $1,500 “against all of said defendants for expenses for locating” the equipment.

Petitioner again filed a motion to quash and dismiss — as in case No. 4211. The motion was denied, and again Petitioner seeks relief in this Court as in case No. 4211. This case comes to us as No. 4212. At the request of Petitioner the two cases were consolidated for presentation here.

We first consider case No. 4212 where the trial court refused to quash the service on Petitioner. The court was correct, and the petition for a Writ of Prohibition must be denied.

. The amended complaint, as previously abstracted, shows a cause of joint liability against Petitioner and Beam. That being the situation, and Beam being a resident of and having been served in Crawford County, service on Petitioner in Franklin County was good. In the case of Terry v. Plunkett-Jarrell Company, 220 Ark. 3, 246 S. W. 2d 415, we find this language

“Thus, before a cause may be prosecuted against a defendant outside the county of his residence, there must he a resident defendant or a defendant summoned in the county in which the suit is brought, against whom there is a bona fide claim of joint liability”.

See also Barr v. Cockrill, Judge, 224 Ark. 570, 275 S. W. 2d 6.

In case No. 4211 we hold that the trial court erred in refusing to grant Petitioner’s Motion to quash service on Beam’s cross-complaint. The reason for so holding- is that the cross-complaint did not state a cause of joint liability against Petitioner and Brewer. However this error is of no material significance at this time in view of our holding- in case No. 4212. In the case of Rudolph v. Mundy, 226 Ark. 95, 288 S. W. 2d 602 we held that where a plaintiff sues all of the joint-tort-feasors, the joint-tort-feasors must prosecute their claims for contribution against each other in that action or lose the right to do so. Therefore Beam may now prosecute any cause of action, pertinent to this case, he has against Petitioner, by now filing appropriate pleadings and obtaining service thereon.

It follows that the petition for a Writ of Prohibition must be, and it is hereby, denied.


source: Caselaw Access Project

author: Lyle Beown, Justice.

license: Public Domain

text:
    Robert Lynn Dunlap, etc. v. Maryland Casualty Co.
    5-4215
    414 S. W. 2d 397
    Opinion delivered May 8, 1967
    [Rehearing denied Jome 5, 1967.]

      Byron R. Bogará and Patten So Brown; By Gerland P. Patten, for appellant.

      S. Hubert Mayes Jr., for appellee.
   Lyle Beown, Justice.

This is a suit on behalf of Robert Lynn Dunlap to establish vicarious liability against Maryland Casualty Company. The question is whether a guest’s liability policy affords coverage to a host driver with respect to a claim by an injured party with whom the host collides. Maryland denied liability, and its position was sustained by the trial court.

On Sunday, January 29, 1961, Glenn Gouge, Jr. a teen-ager, was permissively driving his father’s car. At Sunday School he met some friends of his own age and invited them to ride around with him prior to either going to church or going home for the noon hour. The boy ran a stop sign and collided with a vehicle driven by Mr. Dunlap. In the collision Dunlap’s infant child received brain damage.

Suit was filed on behalf of the infant child and against Glenn Gouge, Jr. Judgment was obtained for $19,959.25. Gouge, Sr. carried liability insurance in the sum of $10,000, and his insurer has paid that amount.

The case before us — Dunlap v. Maryland Casualty Company — arises in this manner: One of the boys riding with Glenn Gouge, Jr., was Dan Smith. His father carried liability insurance with Maryland Casualty. When the case of Dunlap v. Gouge was filed, Maryland was notified of the filing. Maryland was advised by Dunlap’s counsel that in his opinion Maryland’s policy issued to the Smith family covered this accident. Maryland declined to participate. The mother of the injured child brings this suit to compel payment by Maryland Casualty-

Counsel for appellant Dunlap advances a unique theory upon which claim for recovery from Maryland is predicated. It is contended that Dan Smith’s act of riding in the Gouge automobile constituted a use of a non-owned automobile by Dan Smith. Maryland’s policy covering the Smith family refers to coverage with respect to the use of a non-owned automobile. It is Dunlap’s theory that under this “use coverage” Maryland is liable.

Succinctly stated, the Smith policy is a family automobile policy. Maryland Casualty agrees to pay on behalf of the insured (which includes any relative who is a member of the Smith household) certain sums which the insured shall become legally obligated to pay as damages because of bodily injury. This coverage is extended to the use of certain types of non-owned automobiles. Sub-section (c) under “Persons Insured” extends coverage to any other person legally responsible for the use of a. non-owned automobile. Appellant Dunlap contends that under this provision Glenn Gouge, Jr. was insured under the Smith family policy. It is asserted that he is a “third person legally responsible for using a non-owned automobile which is also being used at the same time by the Smiths or a relative.”

The pivotal question is: Was Dan Smith using the Gouge automobile? There is no allegation of joint venture between the. teen-agers riding in the Gouge automobile. There is no proof that Dan Smith participated, directly or indirectly, in the operation of the Gouge car. In the complaint filed in this case, the only reference to Dan Smith’s activity is that “Dan Smith was riding in (using) said automobile by permission of the owner thereof.” Dan Smith was not made a party to the case of Dunlap v. Gouge, in which the judgment for personal injuries was rendered.

There are many cases which discuss the subject of “use” as the word is utilized in liability policies. "We have not been cited a case — nor do we find one — where the factual situation precisely fits the case at bar. Courts and text writers point up the importance of the factual context of each case. For example, every case cited by appellant has a factual feature which distinguishes it from this case. Cited by appellee is Potomac Insurance Company v. Ohio Casualty Insurance Company et al, 188 F. Supp. 218 (1960). It contains a state of facts very similar to this case. Under a liability policy issued by Potomac to Marvin Mark, Potomac was obligated to defend Mark against any suit arising out of the “use” .by the insured of any non-owned automobile. Mark was a guest in a vehicle owned and driven by Hilda Koerber. The Koerber car was involved in a collision. By declaratory judgment procedure Potomac sought a determination of the demand made against it to defend. The court said:

“Defendants contend that the word ‘use’ is ambiguous and may be extended to cover Marvin Mark’s situation in the Koerber automobile. It is the opinion of this court that no reasonable person could thusly construe the language of the policy; to do so would, in effect, extend its coverage to any situation wherein the insured is the occupant of an automobile. Clearly this is neither the intended nor apparent meaning of the policy.”

The opinion in Potomac does not afford us a detailed description of the terms of the policy. The sum-marization of the provisions, however, describes a striking similarity to the policy in our case.

Affirmed.


author: Lyle Brown, Justice.

text:
    Curtis W. Jones et al v. G. F. Brown et al, Trustees of First Baptist Church of Benton
    5-4221
    414 S. W. 2d 618
    Opinion delivered May 8, 1967

      Martin K. Fulk and Griffim Smith; for appellant.

      Hall & Tucker and John F. Lovell, Jr., for appellee.
   Lyle Brown, Justice.

This is a suit between adjoining property owners to resolve the title to a strip of ground nineteen and two-tenths feet in width. Appellants, Curtis W. Jones, et al., appeal from a decree of the trial court holding that appellees, G. F. Brown, et al, trustees of the First Baptist Church of Benton, and their predecessors in title, had been in adverse possession of the property since 1952.

Some thirty-five years ago Dr. Dewell Gann, Sr., obtained record title to Lots Four, Five, and Six in Block Fifteen, all of which were deeded in 1946 to Dr. Dewed Gann, Jr. A portion of this property was deeded in that year to Dr. C. W. Jones Sr., and another portion was deeded in 1949 to Dr. Jones and his son. The property remaining to Dr. Gann was situated between the Jones land to the south and the First Baptist Church to the north.

In 1952 the Joneses and Dr. Gann joined in a suit to confirm title to their respective interests in the three lots. Included in the suit were fifteen feet of Smith Street to the south and four feet of Market Street to the east, both strips bordering on the Jones property. Those portions of the streets had been abandoned by the city. The confirmation decree purported to set aside Lot Four to Dr. Gann and the balance to the Joneses, all by metes and bounds descriptions.

The present lawsuit had its genesis when the church trustees, appellees herein, decided to purchase the Gann property for the purpose of expansion. It was then discovered that the south boundary line of Lot Four splits a duplex building owned by Dr. Gann and his successors in title. Nineteen and two tenths feet south of this line is an old fence running east and west. Part of this fence was originally erected by one of the Joneses in 1952, and it was extended in 1957 by a tenant of Dr. Gann. If the fence were extended to the east a short distance it would apparently tie into the southwest corner of the duplex.

Dr. Gann died in 1957, and Ms widow died in 1965. In .the latter year the church obtained from the executor of the Gann estate a deed to Lot Four and the easterly 162.6 feet of the north nineteen and two-tenths feet of Lot Five, described by metes and hounds. The latter strip, the subject of the present controversy, is claimed by the church by reason of adverse possession thereof by its predecessors in title, the Ganns. The Joneses, appellants herein, dispute this claim. The chancellor found the disputed strip to have been adversely possessed for more than seven years by the Ganns, and it is this finding wMch we are asked to reverse. We decline to do so.

The record title of the Joneses is weakened by two significant factors. First, the original plat of Block Fifteen, upon which the various legal descriptions are based, was severed from the original city plat and lost. That was several years prior to this lawsuit. So it is not at all clear exactly where the “true” boundaries are located. Secondly, the surveyor’s plat prepared for this lawsuit shows that the church building protrudes into Lot Four, the Gann duplex protrudes into Lot Five, the Jones Clinic straddles the line between Lots Five and Six, and the south wall of another building extends into the closed portion of Smith Street. There was no showing at the trial that anyone, even the Joneses, ever considered the boundaries to split each of these buildings. In fact, Dr. Jones, Jr., recognized the fence as the south line of the Gann property.

The Gann duplex building was some fifty years old and from 1952 to 1965 was occupied by a tenant who paid his rent to the Ganns, with no objection from the Joneses. The balance of the disputed area is effectively enclosed by the fence erected by the Joneses and extended by the tenant. Actual possession of the strip would appear, therefore, to have been established by the church’s predecessors in title. See McNeely v. Ballard, 220 Ark. 736, 249 S. W. 2d 567 (1952) ; Miller v. Fitzgerald, 169 Ark. 376, 275 S. W. 698 (1925).

As to the adverse nature of the possession, this case is similar in many respects to Rossner v. Jeffrey, 234 Art. 723, 354 S. W. 2d 705 (1962), where the disputed strip was likewise enclosed within a fence for many years. The contention was there made that the lack of testimony as to the intent of the possession, caused by the death of the claimant’s predecessor in title, precluded a finding of adverse possession. In response to this argument we said:

“ The “adverseness” of the possession . . . does not consist alone of mental intentions, but it must also be based on the existence of physical facts which openly evince a purpose to hold dominion over the land in -hostility to the title of the real owner, and which will give notice of this hostile intent. A possession, it appears, is adverse to the true owner when it is unaccompanied by any recognition, express or inferable from the circumstances, of the right in the latter.’ Tiffany, Real Property (3d Ed.), § 1142. ‘When the evidence tends to show that the. possession has all the qualitiés of an adverse holding, the law presumes that such possession is adverse, absent evidence to the contrary.’ Thompson, Real Property, ’§ 2544. There is nothing to indicate that Ketscher’s open and notorious possession was permissive or subordinate to the Rossners ’ title. The chancellor was therefore justified in concluding that the necessary hostility of intent existed. If this were not so it would often be impossible to prove adverse possession after the death of the person who had acquired title in that way.”

Such a result in this case is strengthened by the fact that' the Joneses, although present at the trial, offered no testimony. This failure to present their version of the facts is significant. In Saliba v. Saliba, 178 Ark. 250, 11 S. W. 2d 774 (1928), the lower court instructed the jury that failure to produce evidence under a party’s control creates a presumption that it would be unfavorable to him. That instruction was approved by this court.

This iincontested possession by the Ganns for a substantial period of time after the execution by them of the deeds to the Joneses also serves to rebut the presumption that continued possession by a grantor of iand deeded to a grantee is subordinate to the title of the grantee. See Anderson v. Burford, 209 Ark. 452, 190 S. W. 2d 961 (1945), and the many Arkansas cases there cited.

The recognized starting point for metes and bounds descriptions in the involved area is an iron pin at the southwest corner of the courthouse square. That starting point is the basis for the metes and bounds description by which the chancellor made the award to the church. That description places the south boundary line of the disputed property at the fence and nineteen and two-tenths feet into Lot Five as shown on the unofficial plat of Block Fifteen.

Affirmed.


author: John A. Fogleman, Justice. liVLE BrowN Justice,

text:
    Dorothy Beevers, Adm’x v. Wilburn W. Miller
    5-4204
    414 S. W. 2d 603
    Opinion delivered May 8, 1967
    [Rehearing denied Jume 5, 1957.]

      Chambers & Chambers and McKay, Anderson So Crumpler, for appellant.

      Shaver, Tackett So Jones; By: Boyd Tackett, for ap-pellee.
   John A. Fogleman, Justice.

Appellant contends that the trial court erred in failing to give AMI 502, its requested Instruction No. 6. Appellee contends that this was not reversible error because the content of the proffered instruction was covered by the court’s instructions numbered 6 (AMI 501) and 7 (AMI 203).

Appellant brought suit against appellee alone for wrongful death of her decedent while a passenger in a truck being driven by one Herschel G-oodwin. She alleged that appellee, driving a truck negligently, forced Goodwin to swerve his vehicle off the. road, on which both were traveling,, to avoid a collision, causing the latter vehicle to overturn and the death of her decedent. Appellee defended on allegations that he did not meet the vehicle driven by Goodwin, and, in the alternative, that the sole proximate cause of the death was the negligence of the owner and operator of the vehicle driven by Goodwin. There was testimony that Goodwin was a young man, inexperienced in, driving the truck, a top-heavy oil rig, and was just learning to drive it. Appellee testified that he gave such a rig plenty of space on the day of the occurrence and that there was no crowding when he met it.

Appellee makes certain contentions about the record on appeal which are not well founded because of the provisions of Act 555 of 1953, the purpose of which was to simplify appellate procedure.

The first contention is that the bill of exceptions is not approved by the trial court. This is no longer necessary unless a difference arises as to the correctness of the record. See Ark. Stat. Ann. (Repl. 1962) §§ 27-2127.3, 27-2127.4, 27-2127.8 and 27-2129.1.

He next contends that the transcript of testimony and record designated by appellant is insufficient for the court to know whether the instruction in question should have been given and that the court will presume that the parts of the record omitted will support the action of the trial court. The objection is tardily made. Appellee had ten days after the filing of appellant’s designation of the record within which to serve and file a designation of additional portions of the record. Ark. Stat. Ann. § 27-2127.2 (Repl. 1962). It was only necessary to have enough of the record to show that part pertaining to the one point contained in appellant’s statement of points to be relied upon and we find nothing to show the inadequacy of the record in this respect. If appellant had designated more, she would have run the risk of an assessment of costs against her even upon reversal of the case. Spikes v. Hibbard, 226 Ark. 93, 288 S. W. 2d 38. As was there said, it is the clear intention of the act and particularly § 27-2127.6 to reduce the expense of litigation by requiring the omission of all matters not essential to the decision of the question presented by the appeal. It is there clearly stated that when the record has been abbreviated without objection from opposing parties, no presumption shall be indulged that the findings of the trial court are supported by any matter omitted from the record. This court has so applied this statute uniformly, where appellant filed his designation of points to he relied upon, as was done here. Griffin v. Young, 225 Ark. 813, 286 S. W. 2d 486 ; Manila School District No. 15 v. Sanders, 226 Ark. 270, 289 S. W. 2d 529 ; Bell v. Kroger Company, 230 Ark. 384, 323 S. W. 2d 424. It is the duty of the appellee to designate for inclusion in the record any explanatory matter that might be needed to support the court’s action. Reed v. Reed, 238 Ark. 840, 385 S. W. 2d 35. It was the duty of appellant to include in the record any- additional record designated by appellee. Arkansas Farmers Association, Inc. v. Towns, 232 Ark. 997, 342 S. W. 2d 83. An appellee who fails to object to the record as abbreviated by appellant acts at his peril. Southern Farmers Association, Inc. v. Wyatt, 234 Ark. 649, 353 S. W. 2d 531.

, Appellee also asserts that the abstract of the record by appellant is so deficient that the court cannot know whether the failure to give the instruction was prejudicial error. Although it is impossible for the seven judges of this court to explore a transcript to determine whether there was reversible error, this is not a case where sufficiency of the evidence to support a verdict is questioned and the relatively brief abstract of the abbreviated record was sufficient to be the “condensation without comment or emphasis, of only such material -parts of pleadings, proceedings, facts, documents and other matters in the record as are necessary to an understanding of all questions presented to this court for decision” required by Buie 9 (d). If appellee considered the abstract insufficient he had the option to submit a supplemental abstract; Rule 9 (e). Appellee has not pointed out any deficiency in the abstract;

• .Appellee also contends that appellant’s objection to the court’s failure to give the questioned instruction came, after the jury was instructed and actually after the argument of the case. Nothing in the transcript reflects that this, was the case. Appellee relies on language in the objection which indicates that appellee’s counsel had argued the case to the jury at the time the . object tion was made. This objection was not contained in the original transcript hut supplied in a supplement to the original transcript, certified by the official court reporter. Neither the original nor the supplement shows when the objection was made. Appellee joined in the motion under which the supplement was filed and waived any objection thereto. This was an appropriate time to bring this matter into the record. It is suggested that the court was aware of the objection but requested that appellant wait until the jury was deliberating to put the specific language of the objection into the reporter’s record. 'It is well known among the bench and bar that this is a common practice designed to expedite the trial by diminishing the time jurors must wait for instructions to be settled, prepared in written form and given. In the absence of a specific objection by counsel, which does not appear here, we find no waiver on the part of appellant’s counsel under such circumstances.

The court’s Instruction No. 6 (AMI 501) requested by appellee, defined proximate cause and then told the jury:

“This does not mean that the law recognizes only one proximate cause of damage. To the contrary, if two or more causes work together to produce damage, then you may find that each of them was a proximate cause.”

By its Instruction No. 7 (AMI 203) the court told the jury that its verdict should be for appellant if they found she had met the burden of proving that she had sustained damage, that appellee was negligent and thát such negligence was a proximate cause of her damages; otherwise, its verdict should be for appellee. Appellee then requested AMI 502 which would have first told the jury that when two or more persons are guilty of negligence working together as proximate causes of damage, each, may be found to be liable, regardless of the relative degree of fault. It would have added that if they found that negligence of appellee proximately caused damage to appellant, it was not a defense that some third person may also have been to blame. No contention is made that the instruction is an incorrect statement of law or that it is abstract.

The avowed purpose of AMI was to improve communication between judge and jury by the giving of understandable instructions on the applicable law. See AMI Introduction. The note on use of AMI 502 states that it should not be given when the case is submitted on interrogatories. It further states that the last sentence should be used only when some person who may also have been at fault is not a party to the action. In the draft, the word “defendant” is given in both the singular and the plural, indicating that it is a proper instruction where there is a single defendant and a defense that the negligence of one not a party to the action caused the-damage. It would eliminate any idea that the negligence of another only contributing to the damage could be a defense or reduce the amount of appellant’s recovery, however great that contribution might be. The jury was not told this anywhere and this instruction was necessary for them to have a clear understanding of,, this. Consequently, the instruction should have been given and the failure to give it constituted reversible error as this matter was not otherwise adequately covered. If we adopted any other position, it would be difficult to understand why AMI 502 was drawn or when it should be used since the combination given by the court would have been sufficient to cover all situations.

As earlier pointed out, the pleadings show clearly that appellee’s defense was largely based on a contention that appellant’s damage was caused solely by the negligence of Goodwin. He did not plead negligence by her decedent, nor did he assert that negligence of Goodwin should be imputed to him. Consequently, the jury should understand clearly that appellant was entitléd to a verdict if it found appellee guilty of negligence which contributed as a cause, however slightly, to appellant’s damage, even though they might have thought that the negligence of Goodwin was a far greater contributing cause. With the issues so presented, Goodwin not having been made a third party defendant, it was imperative that the jury be told that Goodwin’s negligence constituted no defense unless they found it to he the sole proximate cause. We do not think that the instructions given by the court made this clear. It was essential to do so in order to give the jury a clear understanding of the governing legal principles, particularly in a case submitted for a general verdict. Speculation as to the failure to make Goodwin a party would have been eliminated as a possible factor in the verdict.

Even if the court’s general instructions could be said technically to have covered the matter in a general way, it is error to refuse to give a specific instruction correctly and clearly applying the law to the facts of the case, even though the law in a general way is covered by the charge given, unless it appears that prejudice has not resulted. St. Louis & S F R Co. v. Crabtree, 69 Ark. 134, 62 S. W. 64 ; Western Coal & Mining Co. v. Buchanan, 82 Ark. 499, 102 S. W. 694 ; Western Coal & Mining Co. v. Burns, 84 Ark. 74, 104 S. W. 535 ; Nebraska Underwriters’ Ins. Co. v. Fouke 90 Ark. 247, 119 S. W. 261 ; American Fire Ins. Co. v. Haynie, 91 Ark. 43, 120 S. W. 825 ; Western Coal & Mining Co. v. Moore, 96 Ark. 206, 131 S. W. 960.

In St. Louis & S. F. R. Co. v. Crabtree, supra, where this court reversed the trial court for failure to give an instruction that it was the duty of one approaching a railroad track to look both up and down the track as long as he approached, notwithstanding the giving of a general charge that one approaching a crossing should look and listen for approaching trains, this language very appropriate to this case was used:

“*** A lawyer would, of course, understand that the charge of the judge was intended to convey the idea that the traveler about to cross a railroad 'trade must look for trains from both directions, and must continue on his guard until the danger is passed. But jurors are not usually learned in the daw. ' They may have concluded in this case that plaintiff discharged the duty to look and listen by looking only in the direction from which he was expecting a train to come, or by looking and listening at only one time. We do not say that they did take this view of the law, but they might have done it, ■ under instructions which did not explicitly tell them that it was his duty to look in both directions, and to continue on his guard until the track was passed. When the circuit judge was asked to make the law clear to the jury on this point, by telling them that one ■ approaching a railroad track should ‘look up and down the track as long as he approaches,’ we think he should have done' so. But counsel for plaintiff say that we should presume that the attorney for the company in presenting the case to the jury argued that the instruction that one about to cross a railway track ‘should look and listen for approaching trains’ meant that he should look north as well as south. We are willing to indulge in this presumption, for we have no doubt that this argument as to the meaning of the instruction was made by the attorney for the defendant company. In other words, the trial judge having refused to explicitly instruct the jury on this point, the only resource left to the company was to rely upon a statement of the law made to the jury by its attorney. But jurors are not required to take the law from counsel, and it was putting an undue burden upon the defendant company to compel it to rely upon convincing the jury as to the proper view of the law by an argument of its attorney. If the sympathies of the jury happened to be with the other side, that might be difficult to do, and might be too heavy a task even for the most gifted attorney. It is a burden that the law does not impose, for it is the duty of the judge to instruct; and each party has the right to.have the jury instructed upon the law of the case clearly and pointedly, so as to leave no ground for misapprehension or mistake.”

The argument advanced here is somewhat anal-agous to that advanced by appellee in Prescott & N. W. Ry. Co. v. Weldy 80 Ark. 454, 97 S. W. 452. In treating the contention this, court said:

“While it is true that all of the instructions'given by the court predicated the plaintiff’s right to recover solely on the defect in the track or roadbed, as set forth in the complaint, still the defendants were entitled to a specific instruction, telling the jury that if the injury occurred from some cause other than that alleged in the complaint, or that if the deceased was guilty of negligence in the particular mentioned which contributed to the injury, there could be no recovery.”

The minds of the jurors should have been directed to this particular point. Bailey v. State, 92 Ark. 216, 122 S. W. 497.

A reversal must follow the refusal of a proper instruction, unless it affirmatively appears that no injury resulted. St. Louis & S. F. R. Co. v. Crabtree, 69 Ark. 134, 62 S. W. 64 ; Hamilton-Brown Shoe Co. v. Choctaw Mercantile Co., 80 Ark. 438, 97 S. W. 284 ; Prescott & N. W. Ry. Co. v. Weldy, 80 Ark. 454, 97 S. W. 452 ; Western Coal & Mining Co. v. Buchanan, 82 Ark. 499, 102 S. W. 694 ; Ohio Handle & Mfg. Co. v. Jones, 98 Ark. 17, 135 S. W. 455.

Although the court is not required to give every correct instruction offered when the instructions'given explicitly, clearly, fully and fairly cover the matter requested, we cannot say that prejudice to appellant did not result in this situation.

Reversed and remanded for new trial.

HabRxs C. J., and BrowN, J., dissent

liVLE BrowN Justice,

dissenting. The majority opinion holds that the trial court erred in refusing to give plaintiff’s requested instruction AMI 502. From this holding I must dissent. This is a two-party lawsuit in which plaintiff alleges the defendant driver was negligent. The defendant denies negligence and asserts the deceased met death as a result of the negligence of the driver operating the truck in which deceased was a passenger. The court gave AMI 501, followed by AMI 203. Bearing in mind that G-oódwin (in whose truck deceased was a passenger) was not a party to the suit, I think the two instructions, given in the order copied, were sufficient.

“AMI 501. The law frequently uses the expression ‘proximate cause,’ with which you may not he familiar. When I use the expression ‘proximate cause,’ I mean a cause which, in a natural and continuous sequence, produces damage and without which the damage would not have occurred.
“This does not mean that the law recognizes only one proximate cause of damage. To the contrary, if two or more causes work together to produce damage, then you may find that each of them was a proximate cause.”
“AMI 203. Dorothy Beevers as Administratrix claims damages from Wilburn W. Miller and has the burden of proving each of three essential propositions :
First, that she has sustained'damages; .
Second, that Wilburn W. Miller was negligent;
And third, that such negligence was a proximate cause of plaintiff’s damage.
“If the you find from the evidence in this case that each of these three propositions has been proved then your verdict should be for Dorothy Beevers, Admx.; but, if, on the other' hand, you find from the evidence that any one of these propositions has not been proved, then your verdict should be for Wilburn W. Miller.”

Considering these two instructions together, the court told the jury that if Miller was' negligent, and Miller’s negligence was a proximate cause, Beevers’ ad-ministratrix was entitled to recover any damages sustained. Then with reference to defendant Miller’s assertion that Beevers’ driver (Goodwin) was negligent, the jury was in effect told, in the second paragraph of AMI 501, that Goodwin’s negligence would not bar recovery against Miller.

In addition to the copied instructions,, plaintiff requested AMI 502:

“When the negligent acts or omissions of two or more persons work together as' proximate causes of damage to another, each of those persons may be .found to be liable. This is true regardless of the relative degrees of fault between them.
“If you find that negligence of the defendant proximately caused damage to the plaintiff, it is not a defense that some third person may also have been to blame.”

First, I would call attention to this statement: “When the negligent acts oi; omissions of two or more persons work together as proximate causes of damage to another, each of those persons may be found to be liable.” This jury could not find liability against Goodwin because he was not a party to the suit. To that extent the instruction could! confuse the jury because in this case there is only one person charged with liability.

Tile second paragraph of AMI 502 does. not speak of liability. It speaks of blame. Concededly, the second paragraph appropriately explains that any blame on the part of Groodwin would not free Miller if the latter’s negligence was a ‘proximate cause. In fact, it is there spelled out more explicitly than in the last paragraph of AMI 501. On the other hand, the exact argument can he made to the jury irrespective of which “last paragraph” is given. Of course lawyers naturally like to hear the trial judge instruct the jury in phrases that they can “hammer home” by quotation in their closing arguments. This is one reason for the traditional argumentative instructions, giving one for the plaintiff in his chosen words, then another to counteract it in the chosen words of the defendant. The majority opinion cites a number of old cases. Many of the cases cited are good examples of the pitfalls of lengthy instructions dealing in “specifics” advanced by plaintiff and defendant. The trend in composition of instructions is based on the requirements that they be conversational, understandable, and unslant-ed. It is refreshing to know that we are moving away from the old form of “instructions for the plaintiff” and “instructions for the defendant.”

Secondly, the refused instruction is not a “must” instruction — one to be given in every tort case. When the case is submitted on interrogatories, the note on use to AMI 502 recommends that the bracketed portion of AMI 501 be given, if appropriate.

Finally, it is my view that if the giving of AMI 502 be conceded appropriate, yet the refusal to give it was not prejudicial error. This conclusion is based on the theory that the subject matter was covered by AMI 501.

I would affirm. Harris, C. J. joins in this dissent.


author: J. Fred JoNes, Justice.

text:
    Frank Showen v. Morris H. Moore
    5-4222
    414 S. W. 2d 613
    Opinion delivered May 8, 1967
    [Rehearing denied June 5, 1967.]

      Holt, Park & Holt, for appellant.

      House, Holmes & Jewell, for appellee.
   J. Fred JoNes, Justice.

This is an appeal from the Pulaski County Circuit Court and the question presented is whether or not the trial court erred in entering a summary judgment on the record before it in this case.

Morris H. Moore as plaintiff in the trial court, filed suit in unlawful detainer against Frank Showen to recover the possession of a dwelling house occupied , by Showen. Showen retained possession under cross bond.

Moore alleged ownership of the.property involved; that Showen had paid no rent since October 1964, but has wrongfully and without right held over and refused to quit possession notwithstanding demands therefor.

Showen answered by general denial and with the allegation “that the relationship of landlord and tenant does not now exist and has never existed between the plaintiff and the defendant or anyone under, by or through whom plaintiff claims the right to possession of the property.” * * * “that the plaintiff, Morris H. Moore, has. no right to the possession of said property or any part thereof.”

With the issues thus joined, Moore filed a motion for summary judgment and upon the pleadings, exhibits, interrogatories, and the deposition of Showen; the motion for summary judgment was granted and judgment for possession was entered in favor of Moore. Showen has appealed to this court, relying on the following point for reversal:

“There are genuine issues as to material facts that require the introduction of evidence in this case which has been denied to appellant by the granting of the summary judgment.”

The record reveals the following facts:

Appellant is a disabled veteran, fifty-four years of age. Appellant was born in the house he now occupies and has lived there all his life. The property at one time belonged to appellant’s grandfather and appellant lived in the house with his mother until her death in 1964, and has continued to occupy the house since his mother’s death. Appellant’s mother, Mrs. Showen, and appellee’s mother, Mrs. Moore, were very close lifelong friends until Mrs. Moore’s death about 1937. After the death of Mrs. Showen in 1964, appellant learned, for the first time, that the legal title to the property was in Mrs. Moore. He knew that Mrs. Moore had “helped”, his mother “when they auctioned the place off at the'court house,” and after Mrs. Moore died in 1937, appellant knew that his mother continued to occupy the house under some kind of agreement between his mother and ap-pellee, but did not actually see the written agreement until after his mother’s death. Appellant’s deposition on this point is as follows:

“A. I knew that Mrs. Moore when they auctioned the place off at the Court House, I knew that she helped mother.
Q. At that time?
A. In the auction. I knew that.
Q. From the legal title viewpoint, the first time you were aware of the fact that the actual legal title was in Mrs. Moore’s name was after your mother’s death, was it not?
A. That’s right.
Q. And the first time you knew that your mother had entered into an agreement with—
A. Morris Moore.
Q. Morris Moore was after your mother’s death?
A. It wasn’t the first time I knew that there was some kind of an agreement. I never did see the actual agreement until after her death.
Q. You knew that your mother was there under some agreement with Mr. Morris Moore?
A. That’s right.
# # *
Q. Your mother let you live in the premises all of the time until her death?
A. Yes,, sir.
Q. And you did not claim any interest in the property in contradiction of her claim to ownership I take it? .
A. Not to bier ownership. I have never claimed ownership, I mean before her death.
Q*. Actually yon were just born in the house?
A. That’s right.
Q. And by reason of being a child of—
A. Mamie Showen.
Q. Mamie Showen, Mamie McCoppin Showen you just grew up there and there wasn’t—
A. It was my lifelong home and so there is no question. ’ ’

In answer to interrogatories propounded by appel-lee, the appellant stated that he claims an undivided one-half interest in the property as one of the two surviving heirs of his mother, who acquired title to the property through her father, Joseph McCoppin, and by gift Inter Vivos from Mrs. Moore, and that he has further acquired title to the property by adverse possession since the appellee made claim to the property as his own after the death of his mother, Mrs. Moore. In answer to interrogatories, appellant contended that he and his deceased mother paid the general taxes on the property for the years 1951 through 1962, and that he and his deceased mother had actual, continuous and uninterrupted possession of the property for approximately 70 years; that the property belonged to his grandfather, Joseph McCoppin; that he was born in the home on said property where he is now living, and his possession has been adverse since 1947. Appellant admits that he has never expended any sums for rent and does not have insurance in force on the property.

William Joseph McCoppin was a brother to Mrs. Showen and he also lived with Mrs. Showen and appellant in the property until his death in 1955.

On December 30,1937, after the death of Mrs. Moore, the appellee entered into a lease agreement with Mrs. Showen and her brother. The lease agreement was filed for record in the Pulaski County recorder’s office on October 25, 1939, and this lease is not questioned by appellant. Since this lease is so important to the decision we reach, it is copied in full as follows:

LEASE CONTRACT

286

To

32687 Morris Moore Mamie McCoppin Showen et al

LEASE CONTRACT

THE STATE OF ARKANSAS, County of Pulaski: KNOW ALL MEN BY THESE PRESENTS:

That whereas, Mrs. Maude Addis Moore, prior to her death, owned the property in the City of Little Rock, Pulaski County, Arkansas, known as lots 15 and 16, in block No. 1 of Clark’s Addition to the City of Little Rock, Arkansas, which is the property now in possession of and occupied by the undersigned; and

WHEREAS, the said Mrs. Maude Addis Moore during her lifetime permitted the undersigned to use and occupy said premises, in consideration that the undersigned would keep the improvements on said premises in a reasonable state of repair and pay for such repairs and keep the said property insured in some solvent insurance company and pay the premiums thereon, insuring the same in the name and for the benefit of Maude Addis Moore, and would pay all State, County, City and District taxes and assessments of every kind and character on said property, and the undersigned has used and occupied said property for a number of years under such agreement with the said Mrs. Maude Addis Moore; and

“WHEREAS, since the death of Mrs. Maude Addis Moore, said property is now owned by Morris Moore, her son, to whom the same was bequeathed by the will of said Maude Addis Moore:

NOW, THEREFORE, the undersigned (whether one or more) expressly acknowledges the ownership of said property by the said Morris Moore, and in consideration of the said Morris Moore permitting the undersigned to live upon, use and occupy said property, the undersigned has this day and does hereby agree with the said Morris Moore that the undersigned will keep said property in a fair and reasonable state of repair and pay all costs and expenses of such repairs, and pay all other items of expense that are proper and necessary in order to keep said property in a good, usable, and habitable condition and will pay all taxes, State, County, City and District due and to become due against said property and all assessments heretofore or hereafter made against the same, and will insure said property in some solvent insurance company and pay all the premiums thereon, having said policy or policies made to the said Morris Moore.

And the undersigned further agrees that possession, use and occupancy of said premises by the undersigned or anyone claiming by, through or under the undersigned, shall not and will not constitute or be construed to be adverse to the said Morris Moore, and it is further understood that during the existence of this contract the undersigned shall not be required to pay any rent upon or for said premises.

If is further understood that this contract can be terminated by either party at any time by either party giving to the other party thirty days advance notice of the date upon which termination shall be effective, which notice shall be given in writing by ordinary United States mail, addressed to' the undersigned at .Little Rock, Arkansas, or to Morris Moore at Marshall, Texas, and upon cancellation or termination hereof, the undersigned will deliver possession of the above premises to the said Morris Moore or his agent upon the date of termination hereof as fixed by the notice' aforesaid.

IN TESTIMONY OF WHICH, This instrument is executed this 30th, day of December, A. D. 1937.

■ Mamie McCoppin Showen

William Joseph McCoppin

This lease instrument was duly ■ attested, notarized and filed for record on October 26, 1939,'.and no question is raised as .to its authenticity or purpose.

Appellee filed his complaint under Ark. Stat. Ann. § 34-1503 (Repl. 1962) where “unlawful detainer” is defined as follows: ■

Every person who shall willfully and without right hold over any lands, tenements or. possession after the determination of. the time- for which they were demised, or let to him, or the person under whom he claims, or who shall peaceably and lawfully obtain possession of any such and shall hold the same willfully and unlawfully after demand made in writing for the delivery or surrender of possession thereof by the person having the- right to' such poses-sions, his agent or attorney, or who shall fail or ré-fuse to pay the rent therefor when due, and after three 3 days’ notice' to quit and demand made in writing for the possession thereof by the person entitled thereto, his agent or attorney, shall refuse to quit such possession, shall be deemed guilty of ■an unlawful detainer.” ^

Appellee filed his motion for summary judgment under Ark. Stat. Ann. § 29-211 (Repl. 1962). Subsection (e) of this statute provides:

# * #
“The..judgment sought shall be rendered forthwith if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is ho genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. A summary judgment interlocutory in character, may be rendered on the issue of liability alone although there is a genuine issue as to the amount of damages.”

The case of Webb v. Herpin, 217 Ark. 826, 233 S. W. 2d 385, involved an action in unlawful detainer, and in that case this court said:

“This form of action is meant to provide the landlord with a summary means of ousting a tenant who refuses to pay his rent. By making the lease the tenant recognizes his landlord’s title, and the latter ought not be required to jeopardize his ownership whenever he seeks to repossess the land. If the alleged tenant really has a valid claim of ownership he may either defend the possessory action by proving his title, as we have seen, or he may bring a concurrent action to put the title in issue.”

In the case of Griffin v. Monsanto Co., 240 Ark., 420, 400 S. W. 2d 492, this court said:

‘ ‘ The defendant’s pleading is in substance a motion for a summary judgment. We so treat it. Such a motion, cannot be used to submit a disputed question of fact to the trial judge., Testimony submitted with the motion ‘must be viewed in the light most favorable to the party.resisting the motion, with all doubts and inferences being resolved against the moving party.’ Judgment should be entered summarily only if the evidence, when so considered, shows that there is no genuine issue as to any material fact in the case.”

Appellant did not allege title in defense of appellee’s claim to the right of possession, hut in answer to interrogatories propounded by appellee, he based his claim on inheritance from his mother who acquired title through her father and by gift Inter Vivos from appel-lee’s mother, Mrs. Moore, and also by adverse possession' since the property was claimed by 'appellee:

It is clear from the lease agreement that after the death of Mrs. Moore, appellant’s mother as well‘as her brother who lived with her, recognized appellee’s ownership in the property. It is also clear from the lease and appellant’s own testimony, that Mrs. Showen and her brother as well as the appellant himself, continued to occupy the property after Mrs. Moore’s death, under the lease from the appellee. Mrs. Showen and her brother continued in possession under the lease signed by them until their deaths, and appellant obviously continues in possession under the same lease. ■ . ■

Appellant admits that he only knew that his mother was in possession of the property under some Hind of ■am, agreement with appellee. Yet appellant claims title through inheritance from his mother who admitted' by her duly executed lease that she had no title. Appellant admits that he claimed no title or interest iñ the property adverse to his mother during her lifetime, and appellant does not question the authenticity of the recorded lease. The lease not only recognizes appellee’s ownership in the property insofar as appellant’s mother and her brother were concerned, it recognizes appellee as a landlord for appellant’s mother or anyone holding under her. Appellant admits that he came into possession of the property through the permission of hi& mother and he admits that he has never paid rent and is in arrears, on insurance and taxes. ■

We conclude that the lease agreement accomplishes the purpose for which it apparently was primarily intended; to give appellant’s mother and her brother a home in exchange for the upkeep and payment of taxes, and to prevent the loss of title by adverse possession to anyone holding under them.

We hold that there was no justiciable controversy presented on the pleadings and exhibits in this case, and that the trial court’s decision on that point was based on substantial evidence and should be affirmed. By so holding in this unlawful detainer action, however, we do not foreclose appellant’s right to try title to the property involved in an appropriate action.

Affirmed.


author: CoNley Byrd, Justice.

text:
    Aaron K. Wyatt v. Clyde Griffin and Mabel Griffin
    5-4199
    414 S. W. 2d 377
    Opinion delivered May 8, 1967

      Chapman & Wil&y, for appellant.

      Murphy & Arnold, for appellees.
   CoNley Byrd, Justice.

Appellant, Aaron K. Wyatt, appeals from an order of the trial court dismissing upon demurrer his action in ejectment against appel-lees Clyde Griffin and Mabel Griffin. The amended complaint alleges that appellant is the owner of the E 1/2, SW Frl 1/4, Sec. 23, T-12-N, R-5-W. Attached to the original complaint was a series of conveyances within the Wyatt family dating back to 1941. Paragraphs VI and VII of the complaint alleged as follows:

“That the lands in question were the subject of litigation between plaintiff’s predecessors in interest and the defendants’ grantors. The boundary line was fixed by the Supreme Court of Arkansas in the case of Wyatt v. Wycough, 232 Ark. 760, 341 S. W. 2d 18, establishing the defendants’ grantors interest in property in the area as the land in Section 26, Township 12 North, Range 5 West, all lying in Independence County, Arkansas.
“That notwithstanding the plaintiff’s ownership and possession of the lands as aforesaid the defendants have, since the boundary line was fixed, without the consent or knowledge of the plaintiff, built and are maintaining a fence from a point 293 feet north of the said Section line for a distance of approximately 810 feet across plaintiff’s property.”

The prior boundary judgment, affirmed by this court in Wyatt v. Wycough, 232 Ark. 760, 341 S. W. 2d 18, (1960) found that appellees were the owners and entitled to immediate possession of the NE Erl of the NW Frl, Sec. 26, T-12-N, R-5-W; that the north line of ap-pellees’ property was the line surveyed by Hon. Clyde Griffin, County Surveyor, along which a fence was erected; and that appellees were entitled to possession of the lands immediately to the south, bounded on the east by the East line of the NW 1/4 of Sec. 26 and on the west and south by the old river bed.

Appellfees contend that to state a cause of action in ejectment or to avoid a plea of res judicata it was necessary for appellant to allege in his complaint “that appellees were possessing land north of the line surveyed by Hon. Clyde Griffin, County Surveyor, along which a fence was erected.” On this point, we hold that the complaint was sufficient to state a cause of action in ejectment. The complaint obviously alleges that appel-lees have built a fence north of the boundary line established by the judgment in Wyatt v. Wycough.

Appellees also take the position that the complaint is insufficient, in that appellant's documents of title give him title only to that portion of the SW 1/4 of Sec. 23 which was originally in “-Crow” Island; and that since the complaint does not deraign title to the 9.09-acre swamp land tract in the SE part of the SW Frl 1/4 of Sec. 23 east of the river which would have adjoined appellees’ lánds on the north, the complaint does not comply with Ark. Stat. Ann. § 34-1408 (Repl. 1962).

To adequately understand appellees’ contention one needs to know that when the land was first surveyed in 1826, the portion of the NW 1/4 lying east of the river constituted a parcel of only 8.8 acres or less; and that immediately north of the parcel now claimed by appellees, the 1826 government survey showed a 9.09-acre tract in the SE part of the SW Frl 1/4 of Sec. 23 east of the river. According to the 1826 survey, the descriptions set forth in appellant’s muniments of title would have been in an island located somewhat in the center of Sec. 23. Since that time, the river has migrated eastward until all of the lands in question are west of the river and connected to the lands originally in the island, which is referred to in the briefs as “Crow” Island.

Appellees’ last position, with respect to the SE part of the SW Frl quarter east of the river, would be well taken except for tlie fact tliat the government survey shows that appellees’ land at the time of the government survey was also east of the river, while the judgment in Wyatt v. Wycough, upon which they now rely as being res judicata, shows their lands in Sec. 26 to now be west of the river. In this situation we have, held that when land along a navigable stream is washed away by the gradual action of the river, the land call is forever washed away, and a conveyance by such description thereafter is ineffective. Adkisson v. Starr, 222 Ark. 331, 260 S. W. 2d 956 (1953). Furthermore, if the land adjoining appellees’ on the north were added to “Crow” Island by accretion, it would then be conveyed and properly described by the description under which appellant received his title. Towell v. Etter, 69 Ark. 34, 63 S. W. 53 (1900).

It has been suggested that appellant’s complaint was defective because it did not deraign title back to the United States government or plead adverse possession for the necessary period. We believe that, construing the complaint liberally as we should upon the demurrer, it can be understood as pleading prior peaceable possession in appellant. We have held that a plaintiff in ejectment can recover as against a mere trespasser invading the actual possession of the plaintiff. Since the record is here on demurrer and there is nothing to show any title to the disputed tract in appellees, we hold that the complaint is sufficient to force appellees to plead. Vanndale Special School Dist. No. 6 v. Feltner, 210 Ark. 743, 197 S. W. 2d 731 (1946).

Reversed and remanded.

Ward, J., not participating.


author: CoNley Byrd, Justice. John A. Fogleman, Justice,,

text:
    Vance Cupp, Jr., Administrator v. Pocahontas Federal Savings & Loan Association et al
    5-4235
    414 S. W. 2d 596
    Opinion delivered May 8, 1967
    [Rehearing denied June 5, 1967.]

      Kirsch, Cathey & Brown, for appellant.

      Vernon J. King, for appellees.
   CoNley Byrd, Justice.

Appellant, administrator of the estate of J. D. Nolen, brings this appeal primarily for the benefit of Mr. Nolen’s children by his first wife, in order to determine the right of ownership of two savings accounts carried by Mr. Nolen at the time of his death. Appellees are the Pocahontas Federal- Savings & Loan Association, Mary E. Mondy and Maggie Burkeen, and Mary E. Mondy, administratrix of the estate of Thucie Nolen, deceased.

The record shows that some time in 1935 J. D. Nolen divorced Mary Nolen, mother of his five children, and shortly thereafter married Thucie Nolen, with whom he lived until his death on April 15, 1965. On January 20, 1961, he established, among others, account No. 4706 in the joint names of. himself and Thucie ■ Nolen- “as joint tenants with right of survivorship and not as tenants in common.” On January 6, 1964, he established account No. 6035 in the name of “J. D. Nolen, payable in case of death to Thucie Nolen.” Account No. 4706 has $10,000 therein and account No. 6035 has a balance of $9,903,90.

With respect to account No. 4706, appellant contends that the disposition of the account is not controlled by section 38 of Act 227 of 1963,. but by section 1 of Act 343 of 1939; and that the record clearly shows that J. D. Nolen did not intend to create a joint and survivor: ship account in favor of Thucie Nolen.

Appellees contend that, although the account was created before the effective date of Act 227 of 1963 (Ark. Stat. Ann. § 67-1838 [Repl. 1966]), the act is curative in nature and the account is controlled by the later act. In the alternative, appellees contend that even if Act 343 of 1939 is the controlling statute, there is ample proof to sustain the chancellor’s- finding that Mr.-Nolen intended to create a joint and survivorship account.

We agree with appellant that accounts such as No. 4706 established under Act 343 of 1939 and prior to the effective date of Act 227 of 1963 would be controlled by the interpretation given to Act 343, unless the person OAvning the account made some change therein after the effective date of the 1963 act, as was the case in Harris v. Searcy Fed. Savings & Loan Ass'n, 241 Ark. 520, 408 S. W. 2d 602 (1966). Under the interpretation given to Act 343 of 1939 and the similar hanking act, Acts 1937 No. 260 § 1 (Ark. Stat. Ann. § 67-521 [Repl. 1966]), the determination of ownership by the snrvivor of snch account depends upoii the intent of the depositor. Park v. McClemens, Ex’r, 231 Ark. 983, 334 S. W. 2d 709 (1960).

The record shows that prior to January 20, 1961, J. D. Nolen had had other savings accounts, some of which were carried in his and Thucie’s names as joint tenants with right of survivorship. On January 20, 1961, he closed out accounts Nos. 3801, 4108, 4109, 4110, 4111, 4112 and 4113, and opened the following accounts:

“No. 4701 J. D. Nolen and/or Robert Nolen as joint tenants with the right of survivorship and not as tenants in common. $5,000.00
No. 4702 J. D. Nolen and/or Ethel Davis as joint tenants with right of survivorship and not as tenants in common. $5,000.00
No. 4703 J. D. Nolen and/or Martha Davis as joint tenants with right of survivorship and not as tenants in common.. $5,000.00
No. 4704 J. D. Nolen and/or Gladys Watson as joint tenants with right of survivorship and not as tenants in common. $5,000.00
No. 4705 J. D. Nolen and/or Fred Nolen as joint tenants with right of survivorship and not as tenants in common. $1,500.00
No. 4706 J. D. Nolen and/or Thucie Nolen as joint tenants with the right of survivorship and not as tenants in common. $9,679.10”

On each of the accounts in the name of J. D. Nolen and his children, he had the following notation typed by the teller: “Make all withdrawals to J. D. Nolen only until his death.” No such notation Was made on account No. 4706 in the name of J. D. Nolen and Thucie Nolen.

In July and August of 1963, J. D. Nolen withdrew $4,000 each from account Nos. 4701, 4702, 4703 and 4704, and gave the money to his children. To Fred Nolen, in lieu of the $4,000, he gave some land which he valued at $4,000, and obtained a receipt therefor. On January 4, 1964, Mr. Nolen closed out accounts Nos, 4701 through 4705 and on the same day established account No. 6035, above mentioned, which was opened in the name of “ J. D. Nolen, payable in case of death to Thucie Nolen.” At that time he also withdrew $4,666.43 from account No. 4706 (leaving a balance therein of $10,000) and deposited same in account No. 6035.

Opposed to this evidence, appellant shows that when J. D. Nolen and Thucie were married in 1935, an antenuptial agreement was entered into; that deceased had consistently stated that he did not intend for any woman to keep his children from getting his property and that after Thucie died the property would belong to his children.

We think the testimony on Mr. Nolen’s intent to create a survivorship account ‘With his wife, Thucie, in account No. 4706 is ample to sustain the chancellor’s finding.

With respect to account No. 6035, appellant makes a number of contentions, all based on Ark. Stat. Ann. § 67-1838(5) (Repl. 1966), which reads as .follows:

“If a person opening or holding a savings account shall EXECUTE and FILE with the association A DESIGNATION that on the death of the person named as holder, the account shall be paid to or held by another person or persons, the- account, and any balance thereof which exists from time to time, shall be held as a payment on death account and unless otherwise agreed between the person or persons opening the account and the association:
(a) Upon the death of the holder of the account, the person or persons designated by him and who have. survived him shall he the owners of the account . . . and any payment made by the association to any of such persons shall be a complete discharge of the association as to the amount paid;” (Emphasis supplied.)

Appellant’s first contention is that the statute was passed to afford protection to savings and loan associations and should not be construed as affecting substantive rights of contesting claimants to the deposit. This contention is based somewhat on the proposition that the legislature does not possess the constitutional power to declare what shall be conclusive evidence of a fact, as such a declaration would invade the power of the judiciary. Coupled with this contention is the contention that if the statute be construed as creating property rights, it is clearly in conflict with the Statute of "Wills.

We disagree with appellant. Obviously, the legislature was aware of the interpretations which this court had given to Act 343 of 1939 and the comparable banking act, Ark. Stat. Ann. § 67-521 (Repl. 1966). In subsection 5(a) of section 38 of the act, it unequivocally states that a'person so designated who survives the depositor shall be the owner of the account. Nor do we find any merit in the contention that to so interpret the act would make it unconstitutional. While we have recognized that the legislature can not declare one fact conclusive evidence of another material fact in controversy, such is not the situation involved here. It is perfectly permissible for the legislature to declare the legal effect of doing certain acts. The legislature declared only what the légal effect of executing and filing with the association such a designation would he — namely, to make Thucie Nolen the owner of the account as between heirs and devisees of the holder thereof. We have many similar statutes, such as a statute giving a materialman a lien upon the filing of notice within a certain number of days after he has performed work.

While the effect of Ark. Stat. Ann. § 67-1838(5) is to take snch savings and loan accounts out of the operation of the Statute of Wills, we know no reason why the legislature is prohibited from doing so. Both statutes are creatures of the legislature. In this situation the intention of the legislature is clearly stated. While some argument has been made with reference to the repealing section and the emergency section that the legislature was here dealing only, with savings and loan associations and not intending to affect property rights, such arguments fall by the wayside when we consider that the legislature has also passed Act 78 of 1965, making the identical provisions applicable, to banks in general, and clearly repealing all laws and parts of laws in conflict therewith. We are not here concerned with the rights of creditors nor with what procedure should be followed on such accounts in the event of an insolvent estate.

Lastly, appellant argues that J. D. Nolen did not comply with the terms of subsection 5 of section 38 of the act in executing and filing a designation with the savings and loan association.. This contention is made on the basis that the signature card contained only the name of J. D. .Nolen and the signature of J. D. Nolen. There was also testimony .by. numerous interested parties that the- account book carried only the name of J. D. Nolen. However, the account was carried by the association on its ledger as “ J. D. Nolen, payable in case of death to Thueie Nolen,” and the proxy card signed by J. D. Nolen carried the same notation as the ledger sheet. While perhaps it would have been better for the association to have used a card designed solely for the purpose of complying with the statute, we can not say that the proxy card does not comply with the requirements of the statute. All the statute actually requires is that the person holding the account “shall EXECUTE and FILE with the association A DESIGNATION. . . .” To hold that the proxy card did not comply with the statute would be. adding a formality to the establishment of such an account that is not contained in the statute. .

For the reasons stated, we affirm the judgment of the trial court.

Harris, C. J., and BrowN and FoglemaN, JJ., dissent.

John A. Fogleman, Justice,,

dissenting. I dissent from the holding of the majority affirming the award of the proceeds of Account No. 6035 to the estate of Thucie Nolen.

In the first place, I cannot find any compliance with Ark. Stat. Ann. § 67-1838 (5) (Repl. 1966) on which to base the holding. I cannot find an execution and filing of a designation in the proxy card. It is to be noted that the chancellor did not find that there was a designation executed and filed by Nolen on this account, but based his finding on evidence of Nolen’s intention. Intention of the account holder is not sufficient unless the expression thereof is executed and filed. While the statute does not prescribe a form of designation, surely there must be some expression of intention therein on the part of the party opening it to create such an account. The proxy card does not purport to do this. It only purports to be a continuing’ revocable proxy vesting J. D. Nolen’s voting power as a member of the association in the President of the association. Only two instruments were executed by Nolen, the proxy card and a signature card. The latter constitutes an application for membership and a savings share account. Nowhere is there any mention of Thucie Nolen’s name or any indication that Nolen intended the account for which he then applied, to be payable on death to anyone.

If there was any one of the documents prepared at the time this account was opened about which a lesser degree of care would be exercised, it would be the proxy card. The employee of the association who attended to the opening of this account said that Mr. Nolen never had any trouble reading papers involved in the transaction of his business. She opined that he was familiar with a proxy and its function so that she felt it unnecessary to explain it to him. He certainly had many experiences in the opening and closing of accounts. It only stands to reason that he knew that the signature card was the basis of the opening of the account and that the proxy was for the benefit of management instead of his own. Consequently, he or any other prudent person would be very attentive about the correctness of the signature card but prone to be careless about the proxy card. This seems particularly true when the documents were executed virtually simultaneously.

I would reverse the lower court on the part of the decree relating to Account No. 6035.

I am authorized to state that Harris, C. J., and Brown, J., join in this dissent.


author: CourtNey C. Crouch, Special Justice. J. Fred Jones, Justice,

text:
    Black & White, Incorporated v. Reserve Insurance Company
    5-4165
    414 S. W. 2d 369
    Opinion delivered May 8, 1967

      Butler, Greene & Byrd and Bose, Meek, House, Barron, Nash & Williamson, for appellant.

      Wright, Lindtsey & Jennings, for appellee.
   CourtNey C. Crouch, Special Justice.

This is an action by the appellant to recover $6,000.00 under an excess liability policy issued by the appellee, Reserve Insurance Company. The trial court, hearing the case without a jury, entered judgment for the defendant.

Appellee’s defense was predicated on the appellant’s failure to comply with the terms, provisions and conditions of the policy. The appellant contends, for reversal, that the lower court erred in finding that the appellant’s conduct was a material breach of a provision of the excess policy.

For a better understanding of the issues raised by this appeal and our conclusions, we briefly summarize the facts. Appellant, Black & White, Inc., carried primary liability insurance coverage with a maximum, limit of $10,000.00 for each person in another company. On September 10, 1964, a vehicle operated by one of appellant’s employees was involved in an accident which resulted in a suit being filed against it on January 14, 1965, by Owen W. Ashley for personal injuries. A judgment was rendered against the. appellant in favor of Ashley on July 8, 1965, in the amount of $16,000.00. The primary carrier paid its maximum coverage on said judgment, leaving a balance of $6,000.00

Appellant first notified the appellee of the accident and pending litigation by letter dated January 31, 1965, in which it stated that the primary carrier had referred the matter to its counsel for defense. The letter further stated:

“Since the physical damage was minor and. there were no injuries complained of at the time of the accident, we believe the case can be settled without trial. We will keep you informed of future developments as the [sic] occur.”

Then on April 22, 1965, appellant, Black & White, notified the appellee by letter that the case was set for trial July 8, 1965, but that a settlement had been tentatively agreed upon and needed only Mr. Ashley’s approval. Reserve was further advised that it would be notified immediately should developments occur that would change the present course and delay the settlement.

Byrd Pollard, superintendent of claims for the ap-pellee, testified that on May 25,1965, he telephoned Bob James, assistant manager' of Black & .White. James was author of the letters referred to above. At that time, James advised him that the case had been settled within the primary policy and that he. had made such a notation, on the file. Nothing further was heard or reported to appellee; until it was advised that judgment had been entered against the appellant on July 8, 1965. James denied that he had advised Pollard that the case had been, settled.

Appellant made demand upon . appellee to pay the $6,000.00 excess. judgment, which it refused to do, so appellant paid said sum and brought this action for reimbursement, attorneys • fees arid' penalties.

The éxcess policy provides as follows:

A.
“This policy covers excess • limits as shown in Section I after and only after the limits, as shown in Section II,, of another insurance company, referred to as the primary insurer, are fully used and exhausted.”

The conditions of the policy provide as follows:

“1. It is agreed that this policy, except as herein stated, is subject to all conditions, agreements and limitations of and shall follow the primary insurance in all respects, including changes by endorsement
“2. Notice of any accident, which appears likely to involve this policy, shall he given to the company, which at its own option, may, hut is not required to participate in the investigation, settlement or defense of any claim or suit. In the event expense and/- or costs in connection with any claim or suit is incurred jointly hy mutual consent of the company and of the insured or primary insurer, the company, in addition to the limit of liability, as expressed in Item 5, Section 1, of the Declarations shall he liable for no greater proportion of such expense and/or costs than the amount payable hy the company under this policy hears to the total ■loss payment.”

The primary policy provides in Section 18 as follows :

“18. Assistance and Cooperation of the Insured. The insured shall cooperate with the company and, upon the company’s request, shall attend hearings and trials and shall.assist in effecting settlements, securing and . giving evidence, obtaining the attendance of witnesses and in the conduct of suits. The insured shall not, except at its own cost, voluntarily make any payment, assume any obligation or incur any expense other than for such immediate medical and surgical relief to others as shall he imperative at the time of the accident.”

In its brief, appellant contends there is an ambiguity in the excess policy as to whether the primary policy’s cooperation conditions are applicable as between the excess insurer and the insured. However, we find no ambiguity as it is quite clear that the excess policy clearly incorporated by reference all the conditions, agreements and limitations of the primary policy, which in our opinion makes the above quoted Paragraph 18 of the primary policy a part of the excess policy.

It is well settled that fact findings by the trial court in a case such as this are treated with the same finality as are jury verdicts on appeal and .will be affirmed if supported by substantial evidence. Norvell v. James, 217 Ark. 932, 234 S. W. 2d 378 (1950).

The trial court made no specific findings of fact or conclusions of law but as a preface to announcing its decision stated:

“May 28, 1965, you notified it had been settled within primary limits. Judgment will be for the defendant. ’ ’

We also note that at one point in the proceedings the court said:

“They have pleaded you did not cooperate and you have not cooperated if you told them that a claim had been filed and then wrote back and said it had been settled and later let it go to judgment. You have not cooperated. You have lulled them.”

We think the court’s findings that the appellant had advised the appellee that the claim had been settled within the limits of the primary coverage is supported by substantial evidence. We further reach the conclusion that the trial court found that Black & White failed to cooperate.

We, therefore, examine as a matter of law whether these facts would prevent.appellant from recovering un-dor the excess insurance policy in question.

Appellant contends that lack of cooperation must be proved by the insurer to have been willful and premeditated and in this connection cites U. S. F. & G. v. Brandon, 186 Ark. 311, 53 S. W. 2d 422 (1932). However, after a careful review we reach an entirely different interpretation of this decision. In that case, the insured failed to attend the trial and the insurer contended that this constituted a failure to cooperate in violation of the express provisions of the policy requiring him to cooperate. This court in passing on the matter said:

“It is the duty of the insured to cooperate with the defendant by landing aid and such information as he possessed in preparing the case for trial and to attend the trial and testify as to the true facts and circumstances concerning the accident. Without his presence and aid, the insurance company was seriously handicapped. But there is nothing in this record to show the reason for his absence from the trial. For all we know, he may have been seriously ill or dead. We are, therefore, of the opinion that it was the duty of the insurance company in this action to go further than showing his mere absence from the trial in order to show lack of cooperation and to show the reason for such absence. We cannot, therefore, say as a matter of law that his failure to attend the trial in the absence of any proof or explanation as to why he so failed established a breach of the contract in this regard. On the contrary, we think that it was a question for the jury and that it was the duty of the appellant in the trial to show that the insured had no good reason to absent himself from the trial.”

We do not interpret the term “no good reason” as used by the court in the Brandon case to encompass willful, deliberate or premeditated failure to cooperate. For example, the insured might have testified that he knew that the ease was set for trial on a given date bnt simply forgot it, and certainly this would not he willful, premeditated or deliberate as the terms are normally used, but it would be “no good reason” for being absent from the trial.

The policy reads, ‘ ‘ The insured shall cooperate with the company, and etc.” In the Brandon case this court said the word “cooperate” is a simple word and anyone ivith sufficient intelligence to qualify as a juror in a civil action would know that it simply means to operate with or work together. Appellant and appellee had been working together up to a point, but when appellant advised that the case was settled and then took no steps to retract the information or notify appellee the case Avas to be tried, it certainly was not working with the appellee. We think that rather than assisting the insurer that it was operating in the opposite direction! Such action Avould certainly operate as a breach of the cooperation clause in the policy of insurance.

The appellant in the Brandon case cited authorities from other jurisdictions to justify its position. but in each of the cases cited, as pointed out by this court, the insured had willfully and deliberately failed to attend the trials. However, at no place did this court say in Brandon it was incumbent on an insurance company to prove willful or deliberate failure to cooperate before invoking the non-cooperation clause. Neither did the court point out what reasons might constitute failure to cooperate. We are, therefore, of the opinion that the Brandon decision is not applicable in this case. In fact, we are unable to find any case law in any jurisdiction applicable to the facts in this case.

Appellant further contends it is incumbent upon the insurer to prove it' has been prejudiced before it can invoke the non-cooperation clause. There is a vsdde divergence of opinion in other jurisdictions as to whether prejudice is necessary in order to enable an insurance company to avoid liability where there has been a breach of the cooperation clause. This point has never been decided by this court and we do not deem it necessary to pass on this matter at this time, as we think both prejudice and a material violation of the cooperation clause have been shown in this case.

When appellant notified the appellee that the case had been settled and failed to retract this misstatement of fact, appellee was precluded from doing anything to protect its obligations under its excess policy.

Appellee argues that appellant had done nothing but watch and wait and it would probably have not done anything even if it had been notified of the trial. However, from the very beginning appellant led appellee to believe that the case involved minor damages and. subsequently advised that it had been tentatively settled and finally stated that it had been settled. Therefore, there was never any reason for appellee to do anything other than to make inquiry from time to time as to the status of the litigation and certainly there was no reason for it to make any further inquiry after being notified on May 28, 1965, that the case had been settled.

Byrd Pollard testified without objection as follows:

“Upon receipt of that information on May 28, 1965, the file was placed in a basket for the purpose of closing it out. If I had received information it was not closed and was to proceed to trial, the file would have been referred to Mr. G-oheen, the Vice President in Charge of Claims of Beserve, for the purpose of pretrial review. I would also have made inquiry as to demands, injuries, oiit of pocket expenses of this situation and all information pertaining to the .trial itself, evidence to be presented in a settlement. This would have been followed all the way through. I was not advised at all about the trial. The next information coming to me was a letter in July advising that the case had teen tried and had resulted in a verdict.”

The actions of appellant prevented appellee from demonstrating how far it would have gone to protect itself in the way of settlement negotiations, pre-trial preparation, and trial preparation had it known the case was going to trial, hut from the company policies outlined by Pollard and .by logical reasoning we can assume that it would not have let the matter in effect go by default on its part. •

Appellant argues that appellee should have been in contact with .the attorney for the primary carrier for information and settlement possibilities. However, we point out that this attorney was retained by the primary carrier and not by appellee and never once was any information given to appellee that the case could not be settled within the primary limits, so there was no reason for it tó contact anyone except its insured to keep informed of the developments. We further point out that the cooperation clause under consideration provides that the-insured shall cooperate, not the primary carrier.

. Bob James testified that he handled claims for the appellant and that they had in the neighborhood of 100 accidents'a year; só he was no novice in handling claims of this nature and dealing with the insurance companies. Despite his assuránee and'promise to keep appellee advised, there is nothing in the record to disclose why he misled appellee to its prejudice.

Affirmed.

Byrd* J.., disqualified.

Jones, J., dissents.

J. Fred Jones, Justice,

dissenting. I do not agree with the majority view in this case. It is my view that when the Reserve Insurance Company was advised that suit had been filed for an amount, far in excess of the primary coverage, it. elected to depend entirely on the primary insurance carrier to bear the expense of defending the suit in protection of its own $10,000.00 limits, and thereby took the calculated risk of paying the excess of any judgment over $10,000.00 This is exactly what appellee had contracted to do; it could be required to do no more and had no right, under its contract with appellant, to do anything less.

Appellee had written notice from the appellant that suit for $25,000.00 had been filed, and that the primary carrier was defending, the lawsuit. Appellee had subsequent written notice that the case was set for trial on July 8, 1965. Appellee did nothing, and was required to do nothing under its contract, until it was notified that judgment for $16,000.00 had been rendered on July 8, 1965, at which, time it was called upon to pay the excess amount of $6,000.00. Appellee then contended that it had been advised in a telephone conversation with appellant’s assistant manager prior to July 8, 1965, that the case had been settled within the policy limits of a primary liability insurance contract between the appellant and another company, and appellee refused payment on the grounds that appellant had failed to render the cooperation required under the provisions of the primary policy which provisions were adopted by reference, in the policy' issued by appellee.

Appellant denied that it had advised appellee that settlement had been made, but appellee was permitted to fortify the testimony of its claims superintendent on this point with a notation the superintendent says he made in the lower right hand corner .of an entry sheet at the time he says he obtained the information by phone.

Appellant was not required, under its policy contract with appellee, or with the prime insurance carrier, to keep appellee advised of the progress of the negotiations toward settlement; it is usually.the other way around. As a general rule and practical matter, when an insurance carrier is notified of a claim made or lawusit filed against its insured, it takes over from there, and keeps the insured advised of the progress made toward settlement.

It is my view that the appellee’s evidence in this case loses its substantial qualities when measured by the logic, or lack of it, in the proposition that an assured would pay premiums on an insurance policy for protection against the hazards of a lawsuit, and then advise its insurance carrier that ■ a lawsuit had been settled when in fact it had not. ■ ■ • .

I fail to see wherein the appellee was prejudiced in any event. Appellee’s superintendent testified to the effect that upon receipt of advice that the case had been settled, the file was placed in a basket for the purpose of being closed out, and that had he not been so advised, the file would have been referred to the vice-president in charge of claims for the purpose of pre-trial ¡review. It is my opinion that this is not the kind of service appellant had paid for under its policy. Appellee could have referred the file to its vice-president on April 22, 1965, when it was notified by letter that the trial was set for July 8, if it considered this procedure- of any importance under the policy. No liability • accrued to ap-pellee until judgment was entered in this case, and as I view it, the policy was written for the protection of the appellant and not for the protection of the appellee.

I would reverse the decision of the trial court and direct- judgment- against the appellee for $6,000.00.


author: CarletoN Harris, Chief Justice.

text:
    Aaron Clark v. State
    5264
    414 S. W. 2d 601
    Opinion delivered May 15, 1967

      Jack L. Lessmberry, for appellant.

      Joe Purcell, Attorney General; Don Langston, Asst. Atty. General, for appellee.
   CarletoN Harris, Chief Justice.

Appellant, Aaron Clark, was charged by Information in Crittenden County on September 17, 1963, with the crime of murder in the first degree. Counsel for Clark was appointed by the court, and the case was continued until February 20, 1964. On that date, appellant appeared before the court with his attorney, and after the prosecuting attorney moved to reduce the charge, Clark entered a plea of guilty to murder in the second degree. Thereupon, the court sentenced him to a term of twelve years in the Arkansas State Penitentiary. In November, 1965, appellant filed a petition under our Criminal Procedure Rule No. 1, asserting the violation of certain of his constitutional rights before entering his plea and ashing for a hearing on his allegations. The petition listed the names and addresses of purported witnesses that he desired to have subpoenaed on his behalf. The court appointed an attorney to represent Clark on the petition, and on February 25, 1966, a judgment'was entered entitled, “Findings and Order.” The order recites that the cause came on to be heard, the petitioner appearing by his court-appointed attorney, and the matter was submitted upon the petition filed by appellant. After finding that such petition was not verified, as required by Section (A) of Criminal Procedure Rule No. 1, the court made further findings based on docket sheets, and the original file, to the effect that an attorney had been appointed for Clark on September 20,1963, and that appellant had waived formal arraignment, and entered a plea of not guilty. The order further recites that, following a continuance until the next term of court (Clark being permitted to make bond), the charge against appellant was, on February 20, 1964, reduced to second degree murder. The order then sets out that, on the said date, appellant was accompanied into open court by his attorney, and was asked if he understood the charge, and whether he desired to plead guilty. When appellant replied in the affirmative, the court sentenced him to the term of twelve years in the State Penitentiary. After reciting these findings, the judgment sets forth that the petition is without merit, and is denied. Subsequently, another attorney was appointed to appeal the judgment to this court.

Section (A) of Criminal Procedure Rule No/i provides that the petition (motion), praying that a sentence be vacated or corrected, shall be verified. There was a valid reason for including this provision. It is not the purpose of Criminal Procedure Rule No. 1 to permit the holding of a second hearing simply as a matter of giving a defendant two trials; rather, the purpose of the rule is to provide a method for determining, after the filing of an appropriate petition, whether any constitutional requirements or statutory enactments, either federal or state, relative to the rights of an accused, have been violated, or whether the sentence is otherwise subject to a collateral attack. Of course, conducting a hearing on these petitions adds to the work load of the trial courts, many of which already contain over-crowded dockets, and these courts should not be asked to conduct hearings on motions that are actually frivolous in nature, and which cannot be supported by legal evidence. The requirement of a verification subjects one to possible penalties for perjury, and thus discourages the filing of this type of petition. The. particular petition involved here is preceded by a motion to proceed in forma pauperis, which apparently was attached as the front sheet of the actual petition for relief, and this motion to proceed as a pauper is verified. It may be that petitioner considered this as a verification of the entire motion. Without detailing the allegations set out in the principal motion, let it suffice to say that we think they were sufficient to require the court to have Clark brought before it, and to give appellant an opportunity to present evidence to sustain his contentions. It might also be mentioned that any records relied on by the Circuit Court, in whole or in part, in reaching its conclusions (such as docket sheets, transcript of interrogation or statements made at the time of the plea, etc.) should be included as a part of the record sent to this court. This has not. been done in the present instance, the transcript consisting only of the “Findings and Order’’ of the Circuit Judge, and the petition filed by appellant.

It is. therefore the order of this court that this cause be remanded with directions to first give the petitioner a reasonable opportunity to verify his petition; if the petition is not verified, it shall be dismissed. If Clark, within the time allotted, verifies said petition, then, and in that event, the court shall enter its order directing that appellant be brought before it, and thereupon conduct a hearing in accordance with the provisions of Criminal Procedure Rule No. 1.

It is so ordered.

FoglemáN, J., disqualified.

       There are no filing marks on the petition, but the petitioner shows it as being filed on November 12, 1965.


author: Geobge Rose Smith, Justice.

text:
    Robert Stepps v. State
    5252
    414 S. W. 2d 620
    Opinion delivered May 15, 1967
    [Rehearing denied June 5, 1967.]

      Brockman & Brockman, for appellant.

      Joe Purcell, Attorney General; Bon Langston, Asst. Atty. Gen., for appellee.
   Geobge Rose Smith, Justice.

On the night of January 15, 1966, the appellant shot and killed Artis Frazer at Hosea Miller’s Place, a drive-in roadhouse near Tucker, Arkansas. The prosecuting attorney at first charged Stepps with first-degree murder, but on the day of trial he reduced the charge to the second degree. The jury found the accused guilty of voluntary manslaughter and fixed his punishment at three years imprisonment. The five points urged for reversal have, for the most part, very little to do with the merits of the case.

It is first argued that the information should have been quashed for the reason that Stepps was not served with a copy, as the statute requires in capital cases. Ark. Stat. Ann. § 43-1204 (Repl. 1964). Officer Smithey testified that he read the information to Stepps at the county jail and explained that he was leaving a copy with Stepps’ personal effects so that it would be available either to him or to his lawyer. Not only was this a substantial compliance with the statute, but there was also no possibility of prejudice, there being no contention that Stepps ivas unaware of the charge against him. An allied pre-trial point, that the accused was not taken before a magistrate after his arrest, is without merit; for that statutory requirement is directory, not mandatory. Ark. Stat. Ann. § 43-601 ; Moore v. State, 229 Ark. 335, 315 S. W. 2d 907 (1958).

The witness Thompson, who was sitting in a car outside Miller’s Place when the shooting occurred, testified that after Stepps and another man entered the house he heard someone say, “Let me kick him before you ...” Upon objection the court instructed the jury not to consider the statement. The testimony was actually meaningless, for there was no other proof about any threat or act of kicking. The court’s admonition to the jury was clearly sufficient to correct the matter. See Washington v. State, 227 Ark. 255, 297 S. W. 2d 930 (1957).

After the shooting Hosea Miller at once took the injured man to the hospital at England, where Dr. Cooper was called. The defense counsel objected to Dr. Cooper’s testimony that he examined a man (dead upon arrival at the hospital) “who I later found out' was Artis Frazer.” The court’s action in overruling counsel’s objection to the doctor’s statement was not reversible error. In a- sense, whenever a witness refers to someone by name it could be argued that the reference is based upon hearsay, however long and well the witness may have known the person referred to. But when, as here, there is not the slightest question about the person’s identity there can be so sound basis for insisting that the witness not be permitted to refer to him by name. Here the evidence is undisputed that Stepps shot Frazer in the face, that Frazer was taken to the hospital at England, that Dr. Cooper was called, and that Dr. Cooper examined the body of a man whose death had been caused by a bullet wound in the face. To require a new trial merely because Dr. Cooper was allowed to say that he later found out that the body was that of Artis Frazer would be an absurdity.

Finally, it is argued.that the State’s suppression of certain evidence amounted to a denial of due process of law. There was a sharp dispute about whether Frazer had a knife in his hand when he was killed. Hosea Miller testified that he did not see a knife immediately after the shooting, but when he got back from the hospital he found a knife on the floor and called it to the attention of Officer Perkins. Perkins testified that he picked up the knife, took it to the county jail, and placed it in a locker that he shared with Officer Bradley. Both officers testified that in some way or other the knife was los,\ or mislaid before the trial.

This case is unlike those in which the State has deliberately suppressed or inadvertently destroyed evidence essential to the defendant’s proof of his innocence. State v. Fowler, 422 P. 2d 125 (Ariz., 1967) ; Trimble v. State, 75 N. M. 183, 402 P. 2d 162 (1965). Here Officer Perkins admitted that he had picked up the knife and that (doubtless to his chagrin) it had been lost. There is no reason to suppose either that the jury disbelieved the officer’s uncontradicted statements or that the accused’s position would have been strengthened by the actual production of the knife.

Affirmed.