author: Carleton Harris, Chief Justice.

text:
    Applegate v. Riggall.
    5-1717
    318 S. W. 2d 596
    Opinion delivered December 15, 1958.

      Shaw, Jones <& Shaw, Crouch, Jones & Blair, for appellant.

      James B. Hale, Pearson <& Pearson, for appellee.
   Carleton Harris, Chief Justice.

On November 20, 1957, Pauline O. Holt instituted suit in the Washington Circuit Court against appellant, Dr. Stanley Applegate. The complaint alleged that about March 10, 1956, Mrs. Holt became ill and sought the advice and services of Dr. Applegate; that she was informed by appellant that it was necessary that she undergo immediate surgery for removal of a tumor from her left ovary; that without her consent, the doctor removed her uterus, and performed upon her a total hysterectomy; that Applegate negligently cut, or otherwise destroyed, the normal function of her left ureter, creating a condition that prevented urine from escaping from plaintiff’s left kidney, but causing said urine to collect therein and causing the kidney to become enlarged and infected; that she underwent excruciating pain and suffering from March 20, 1956, until May 2, 1956, on which date it became necessary that the kidney be removed. Further:

“VI

That as the proximate result of the negligent acts or omissions by the defendant Stanley Applegate, it was necessary that the plaintiff be confined in a hospital and under the care of physicians and surgeons for a total of one hundred and fifty days, during which period of time the plaintiff suffered severe and intense pain, suffering, and mental anguish, and for which hospital and medical care, and the drugs and medicines necessitated thereby, the plaintiff was required to, and did, expend large sums of money.

“VIII

# * * the plaintiff states that it became and was necessary that her left kidney be removed as aforesaid, in order to prevent the flow and pássage of her urine from said kidney into her vagina as hereinabove set out, and the leakage therefrom, and that on or about the 2nd day of May, 1956, said kidney was removed by further surgical operation, and the loss of said kidney caused the plaintiff great injury and damage, all of which injury and damage was the proximate result of the negligent acts and/or omissions on the part of the defendant as set out herein.

“IX

That said acts and omissions, acting singly and together, caused and brought about and were the proximate cause of all of the aforesaid injuries and damages suffered by the plaintiff, all of which total the sum of one hundred thousand dollars ($100,000).”

The complaint prayed judgment against appellant in that amount.

Applegate answered, with a pleading termed, “Answer and Third Party Complaint,” denying the material allegations, and stating:

“ * * * that if in fact the plaintiff sustained any damages as alleged in the complaint that the same are not the result of any negligence on the part of this defendant.”

He then alleged that; Dr. Prank Riggall, a physician and surgeon at Prairie Grove,

“* * * carelessly and negligently represented to the plaintiff that her condition following surgery was such that it was necessary that her left kidney be removed, and acting upon said negligent representation, did, on or about May 2, 1956, remove the left kidney of the plaintiff; that the said action on the part of the cross-defendant was wholly unwarranted and that any damage, if any, suffered by the plaintiff was the proximate result thereof. That the negligence of the cross-defendant consisted of carelessly and negligently diagnosing the condition of the plaintiff as requiring the removal of the left kidney; and in carelessly and negligently advising the plaintiff to submit to said operation; and in carelessly and negligently performing the said operation without cause therefor; that the damage alleged in the complaint was the direct and proximate result of the negligence of the cross-defendant, for which this defendant and cross-complainant is not responsi•j-qe # # * > j

Subsequently, Dr. Riggall demurred to the third party complaint, which demurrer was sustained by the court. Prom the action of the court in sustaining the demurrer and dismissing the third party complaint, comes this appeal.

Let it first be said that it is not necessary that the parties act in concert in order to be liable as joint tortfeasors, and appellee concedes this to be the general rule. See Giem v. Williams, 215 Ark. 705, 222 S. W. 2d 800. The sole question to be determined is simply whether Dr. Riggall is a proper party defendant in this action. Appellee argues that the two doctors cannot be held to be joint tortfeasors, because any alleged injuries received from either by plaintiff, were separate and distinct injuries; that under the law, tortfeasors, acting independently, are jointly liable to a plaintiff, and liable to each other in contribution, only when the independent acts of each, cause or contribute to the same injury obtained by a plaintiff. We consider the latter assertion to be a correct statement of the law, but even so, we do not agree that Applegate is precluded from filing his third party complaint. While it is true that a part of plaintiff’s complaint deals with alleged injuries occurring before Dr. Riggall entered the picture, nonetheless, it is apparent from reading the portions of the complaint heretofore quoted, that a substantial part of the damage complained of was allegedly caused by the loss of the kidney. In other words, the suit is based upon all the injuries received by plaintiff, and suffering occasioned thereby. Dr. Applegate is being sued because of the removal of the kidney, and pain resulting, as well as for suffering occasioned by the earlier operation performed by him; and according to his third party complaint, the removal of the kidney was unnecessary. While Dr. Applegate denied any liability whatsoever, his alternative prayer was:

“# # * that if the plaintiff should recover on her complaint against this defendant, that this defendant and cross-complainant have judgment over against the third party defendant, and for all other proper relief. ’ ’

Arkansas Statutes, Section 34-1007, provides:

“Before answering, a defendant seeking contribution in a tort action may move ex parte or, after answering, on notice to the plaintiff, for leave as a third-party plaintiff to serve a summons and complaint upon a person not a party to the action who is or may be liable as a joint tortfeasor to him or to the plaintiff for all or part of the plaintiff’s claim against him? * * 5 J

By Arkansas Statutes, Section 34-1001, the term joint tortfeasors is defined to mean, “two or more persons jointly or severally liable in tort for the same injury to person or property.” Therefore, it would appear that the pivotal phrase in Arkansas Statutes, Section 34-1007 (italicized above), means: “. . . who is or may be liable jointly or severally to him or to the plaintiff for all or part of the plaintiff’s claim against him.” Of course, if plaintiff has no cause of action against Rig-gall, the latter could not be liable as a joint tortfeasor, but clearly, if appellant’s third party complaint be taken as true (as admitted by the demurrer), it would appear that a cause of action was stated against Dr. Riggall as a third party defendant.

The judgment of the court sustaining the demurrer and dismissing the third party complaint is reversed, and the cause is remanded with directions to overrule the demurrer and to reinstate the third party complaint.

       This second operation was performed by Dr. Frank Riggall, appellee herein.

       Emphasis supplied.

       For the purpose only of determining the sufficiency of the pleadings.


source: Caselaw Access Project

author: J. Seaborn Holt, Associate Justice. Ed. F. McFaddin, Associate Justice

license: Public Domain

text:
    Adams v. State.
    4908
    318 S. W. 2d 599
    Opinion delivered December 15, 1958.

      J. D. Thweat, Virgil Moncrief S John W. Moncrief, for appellant.

      Bruce Bennett, Atty. General and Bill J. Davis, Asst. Atty. General, for appellee.
   J. Seaborn Holt, Associate Justice.

On a charge of the crime of rape (Sec. 41-3401 Ark. Stats. 1947) appellant, Adams, was convicted of assault with intent to commit rape (Sec. 41-607 Ark. Stats. 1947) and his punishment fixed at a term of three years (the minimum) in the state penitentiary. Prom the judgment is this appeal.

The prosecuting witness had a “blind” date with Adams on the night of July 21, 1957, and accompanied him in a car to a drive-in movie. During the show Adams made such improper advances towards her that she got out of the car. After the movie was over appellant borrowed a car and started to take her home, however, before arriving there Adams turned off on a side road, began trying to assault her and when she jumped out of the car appellant ran after her, caught her, threw her on the ground and forcibly and against her will had sexual intercourse with her.

Appellant concedes that the evidence was sufficient to support the verdict of the jury but earnestly contends that reversible error was committed by remarks of the prosecuting attorney in his opening and closing arguments to the jury. In this connection the record reflects: “Opening Argument — By Mr. Lee: Now gentlemen of the jury I don’t charge people with anything . or for any crime unless I know what I am doing. Mr. Moncrief: If the court please we object to the statement that Mr. Lee just made, that he doesn’t charge-people with anything or any crime unless he knows what he is doing and that is the exact statement that he made and we are objecting to it, and we would like the court to tell the jury to disregard it. The court: Gentlemen of the jury Mr. Lee wasn’t a witness to this case and he has only acted by his official duties that is required by him and you are to consider the case on the law and the evidence that is introduced and not on the argument of counsels. Mr. Moncrief: Note the defendant’s exceptions. Closing Argument — By Mr. Lee: Now, gentlemen if you turn this man loose go home and tell your daughters that you made it really hard for them today because you turned a man loose that can run over them and take anything from them he wants to and then come up here and tell cock and bull story and get away with it. Mr. Moncrief: If the court please we object to the statements that Mr. Lee just made. Mr. Lee is trying to compare the juror’s daughters with some girl that goes out on blind dates and I am sure that none of the jurors try to get blind dates for their daughters or even allow their daughters to go out on blind dates and we are objecting to the statements that Mr. Lee just made, that if they turn this boy loose that he can run over their daughters and take anything away from them he wants to and then come up here and tell some cock and bull story and get away with it. The court: As I have told the jury before that you are not to consider the case on the arguments of counsels but on the law and the evidence introduced. Mr. Moncrief: Note the defendant’s exceptions.”

We have concluded that appellant was correct in his above contention and that the judgment must be reversed for the above error. The duty and responsibility of a prosecuting attorney is a high and important one, and has been announced by this court many times. It is as much his duty to protect the innocent as to convict the guilty. In Holder v. State, 58 Ark. 473, 25 S. W. 279, we said: “A prosecuting attorney is a public officer ‘acting in a quasi judicial capacity.’ It is his duty to use all fair, honorable, reasonable and lawful means to secure the conviction of the guilty who are or may be indicted in the courts of his judicial circuit. He should see that they have a fair and impartial trial, and avoid convictions contrary to law. Nothing should tempt him to appeal to prejudices, to pervert the testimony, or make statements to the jury which, whether true or not, have not been proved. The desire for success should never induce him to endeavor to obtain a verdict by arguments based on anything except the evidence in the case and the conclusions legitimately deducible from the law applicable to the same. To convict and punish a person through the influence of prejudice and caprice is as pernicious in its consequences as the escape of a guilty man. The forms of law should never be prostituted to such a purpose.” See also Kansas City, Ft. Smith & Memiphis RR Co. v. Sokal, 61 Ark. 130, 32 S. W. 497.

In reversing the judgment for prejudicial remarks of the prosecuting attorney, similar in effect to those in the present case, in the case of Hughes v. State, 154 Ark. 621, 243 S. W. 70, we used this language: “Lastly, appellant contends that his rights were prejudiced by the following statements of the prosecuting attorney made in closing the argument, to-wit: ‘I know he is guilty, I am willing to meet my God in the next hour knowing that Hughes is guilty, because I am thoroughly convinced. I have examined the testimony and know so much about it, and know things that never get to anybody else.’ When this statement was made, the counsel for appellant objected, and the court stated that the argument of the prosecuting attorney was improper and the jury should not consider it. The statement was an attempt on the part of the prosecuting attorney to testify. He, in effect, said that he was in possession of facts which could not be revealed to the jury, but which riveted conviction upon appellant. Coming from a sworn official, the remark was calculated to make a deep impression upon the minds of the jurymen. It cannot, perhaps, he classed with remarks the effect of which cannot be removed even by a solemn admonition of the court, but it was certainly a flagrant violation of the right of appellant to a fair and impartial trial vouchsafed to him by the Constitution and laws of the State of Arkansas. Considering the highly prejudicial character of the remark, its effect could not be removed by a mild admonition of the court.”

As indicated, we hold that the above remarks of state’s counsel were highly improper and prejudicial to appellant’s rights. His remarks referring to the daughters of the jurors were improper and inflammatory and tended to arouse passion and prejudice. “.The appeal to the jury to put themselves in plaintiff’s place was improper. One doing that would be no fairer judge of the case than would plaintiff herself. Dallas Ry. & Terminal Co. v. Smith, 42 S. W. 2d 794. The fact must be very plain to justify a lawyer in declaring his opponent’s case to be trumped up,” F. W. Woolworth Co. v. Wilson, 74 Fed. 439, 98 A. L. R. 681. Here the mild rebuke of the court was not sufficient to remove from the minds of the jury the damage done.

Since the judgment must be reversed and remanded for a possible new trial for the above error, we do not discuss the other assignments of alleged errors, other than to point out that we think the prosecuting attorney was allowed too much latitude on his cross-examination of appellant, Adams, and that the trial court abused its discretion in permitting it. While our rule is that a defendant when he submits himself, as here, to cross-examination is in the same position as any other witness, and in testing his credibility may be asked about previous convictions of offenses and about his personal habits and associates, we think improper and prejudicial questions were permitted. Over appellant’s objections and exceptions the prosecuting attorney was permitted to ask appellant: “Q. Did you ever assault another female? A. No, sir. Q. Did you ever assault a Mr. Emmett Honn’s daughter? A. No, sir . . . Q. Did you assault a woman down at Eadel? A. "Where? Q. Eadel? A. Never been down there. Q. You have never been down there or in that county? A. Not that I know of.” We think these questions were highly prejudicial and improper in the circumstances. The record before us fails to show, in the slightest degree, that appellant had ever assaulted any other woman. Without any basis of fact whatever, the state’s counsel was permitted to question appellant about imaginary assaults of two other women, which obviously, we think, would tend to inflame the minds of the jury against appellant.

The judgment is reversed and the cause remanded for a new trial.

Mr. Justice McF addin dissents.

Ed. F. McFaddin, Associate Justice

(dissenting). I find no reversible error in this case, and, therefore, I vote to affirm.

I. The majority opinion says that the Prosecuting Attorney in his opening argument made some improper remarks. Even so, the Trial Court told the jury: * Gentlemen of the jury, Mr. Lee wasn’t a witness to this case and he has only acted by his official duties that is required of him and you are to consider the case on the law and the evidence that is introduced and not on the argument of counsel.” The majority opinion says that in the closing argument the Prosecuting Attorney made some improper argument. Even so, the Trial Court told the jury: “As I have told the jury before that you are not to consider the case on the arguments of counsel but on the law and the evidence introduced. ’ ’

Ordinarily we hold that such admonitions by the Trial Court will erase any errors: and I think the admonitions did in this case. All the defendant did was to save his exceptions: he did not ask for a mistrial; so I think he is hardly in a position to ask for a new trial now. I cannot believe that the jury became inflamed over the remarks of the Prosecuting Attorney to such an extent as to disregard the Court’s admonitions, because the accused was not convicted of rape, but only of assault with intent to rape; and the majority opinion states that the appellant concedes that the evidence was sufficient to support the verdict.

II. Finally, the majority opinion says that the Court allowed the Prosecuting Attorney to go too far in the interrogation of the accused on cross examination. The Prosecuting Attorney did not go as far in the case at bar as the Prosecuting Attorney did in the cross examination of the accused in the case of Seward v. State, 228 Ark. 712, 310 S. W. 2d 239. In that case the Prosecuting Attorney interrogated the defendant concerning the death of his second wife and the homicide of Will Walker; and we held that no error was committed by the Trial Court in allowing the Prosecuting Attorney to ask such questions. Likewise, I see no error here.

I vote to affirm the judgment of the Trial Court.


author: Ed. F. McFaddin, Associate Justice.

text:
    Arkansas State Highway Commission v. Richards.
    1699
    318 S. W. 2d 605
    Opinion delivered December 15, 1958.

      W. R. Thrasher, Dowell Anders, O. Wendell Hall, Jr., Ed Boyett, for appellant.

      Ben M. McCray, for appellee.
   Ed. F. McFaddin, Associate Justice.

The appellant, Arkansas State Highway Commission, proceeding under its powers of eminent domain, condemned a right-of-way through a 65-acre airport owned by appellee, Mike Richards. The jury awarded Richards $50,000 as damages; and on appeal appellant argues only two points, being: (1) “The verdict is excessive in that there is no substantial evidence to support the verdict”; and (2) “The Court erred in not granting plaintiff’s motion for a directed verdict of $23,250 at the close of the testimony.” We consider these two points together.

The Court submitted the case to the jury on instructions about which there is no complaint; telling the jury: that the landowner’s just compensation is the difference between the fair market value of the lands before and after the taking, or damage; that the landowner is entitled to recover not only for the lands taken, but also for the damages, if any, to the remaining lands not taken; and that such fair market value should be based upon the highest and most valuable purpose to which the lands could reasonably be devoted at that time or in the reasonable future.

The evidence for the landowner established that he owned a tract of 65 acres located near the City of Benton, Arkansas; that he had purchased the lands and improved them for an airport; that the lands were being used as an airport at the time of the condemnation proceedings ; and that such use was the most valuable purpose for which the lands could be devoted. In order to establish this last point (as the most valuable use for which the lands could be devoted), Richards showed that he had invested in the lands, hangars, runways, and other improvements to the airport, a total in excess of $110,000; that the rental value of the airport made a fair return on the investment. Richards showed that the State Highway Commission had condemned a strip of land for a highway right-of-way through the approximate center of the airport; that the right-of-way through Richards’ airport varied from 300 to 320 feet in width, and from 1333 to 1976 feet in length; and that the strip so condemned completely destroyed the use of the land as an airport and rendered it valuable only for agricultural purposes. The strip condemned contained 12.35 acres and the lands remaining totalled 52.65 acres in two tracts, entirely separated from each other by the highway right-of-way. Thus, the use of the lands as an airport was completely destroyed; and witnesses for Richards testified that the two tracts remaining were valuable only for agricultural or grazing purposes, and had a value, as such, of about $100.00 per acre, or a total of $5,265.00.

The appraiser for the Highway Department testified that the total value of appellant’s 65-acre tract was only $48,750 before the taking, and that after the taking the lands remaining were worth $25,500. Thus, the appraiser for the Highway Department fixed $23,250 as the maximum amount that Richards should recover. Appellant says that what Richards spent in improving the airport is not the test of value; and appellant is correct in such statement; but the cases recognize that when there is no readily ascertainable market value for the property in the particular use to which it is devoted (as an airport in the case at bar) then the cost of the property is admissible — not as a substitute for market value, but — as an aid to the jury to assist it in determining the market value. The rationale of the holdings is summarized in Nichols on “Eminent Domain,” 3rd Edition, Volume 4, § 12.313, in this language:

“Cost as criterion. As has been stated previously where the character of the property is such as not to be susceptible to the application of the market value doctrine, resort has been had, among other things, to the original cost of the property, or to the current cost of reproduction less depreciation. Market value, it has been held, is not equivalent to the amount expended for the property by the owner.

“The proper measure is the market value of the land with the buildings upon it, and the owner therefore receives nothing for the buildings unless they increase the market value of the land. Accordingly, evidence of the structural value of the buildings is not admissible as an independent test of value. When, however, it is shown that the character of the buildings is well adapted to the location, and structural cost of the buildings, after making proper deductions for depreciation by wear and tear, is a reasonable test of the amount by which the buildings enhance the market value of the property. As in other cases of determining market value, not only the character and condition of the building, but also the uses to which it might be put, are matters for consideration.

“As a general rule the market value of the property is the measure of damages, and, ordinarily, the cost of construction is not material, and especially the cost of some particular improvement, which, however convenient to the owner, may not correspondingly increase the market value. When there is nothing to show that the cost of a particular improvement would aid in determining the market value of the whole estate, or that the value of the whole estate would depend closely on the cost in detail of improvements made upon it from time to time, evidence of such cost should be excluded. When, however, it appears by independent evidence or by reasonable inference that a building or other improvement erected upon the land tended to adapt the property to the use to which it could most advantageously be put, and there is nothing to show that the sum paid for its construction was not paid in good faith and under normal conditions, it cannot be said as a matter of law that the cost would not assist the jury in arriving at the market value of the whole estate, and in such a case evidence of the cost is admissible.

“The admissibility of such evidence has in some cases been left to judicial discretion.”

Giving the evidence its strongest probative force to sustain the verdict, as is our rule on appeal, we reach the conclusion that the amount awarded is not excessive.

The judgment is affirmed.

William J. Smith, J., not participating.

Holt and Robinson, JJ., dissent.

       Mrs. Richards was a party to the case because of dower; hut we refer to the Richards as “appellee”.

       This witness stated that the 52.65 acres remaining after the taking were worth $750.00 per acre; whereas, witnesses for Richards placed such value at only $100.00 per acre. This difference between the witnesses as to value of the 52.65 acres remaining would be $34,222.00.

       For additional discussion, see also the same work, Volume 5, § 20.1.

         See Albert v. Morris, 208 Ark. 808, 187 S. W. 2d 909, and cases there cited.


author: George Rose Smith, J.

text:
    Martin v. Terrell.
    5-1702
    318 S. W. 2d 607
    Opinion delivered December 15, 1958.

      James G. Cole, for appellant.

      Joe W. McGoy, for appellee.
   George Rose Smith, J.

This is a suit by the appellees for a mandatory injunction to require the appellants to remove two fences that they have erected across what is asserted to be a public road. The chancellor granted the relief prayed. Substantially the only contention made on appeal is that the maintenance of a gate across the road for many years compels the conclusion that the public’s use of the way has been merely permissive.

The several parties all own farm land on what is known as Morrison Island or Watermelon Island. This so-called island consists of twelve or thirteen hundred acres lying between the Ouachita River and an old river bed that is now a slough. For a good many years the various landowners have, by common consent, maintained a single fence around the entire island.

The great weight of the evidence shows that the road in question has existed for seventy-five years or more. It -provides access to the island from a nearby county highway. The road enters the island through a gate in the perimeter fence, crosses the land owned by the appellant Martin, and runs thence to lands owned by the four appellees and others. Throughout its life the road has been used by the landowners of the island and by the general public; at times it has been worked upon by the county. If it were not for the gate at the entrance to the island there would be no good reason to doubt the public’s prescriptive right to use the road.

This dispute arose when Martin, and the other defendants at his direction, placed two fences across the road at points on Martin’s land. In insisting that the long-continued existence of the gate entitles him to close the road Martin relies upon our settled rule that the public loses its prescriptive right in a road when it acquiesces for more than seven years in a landowner’s maintenance of a gate across the road. Porter v. Huff, 162 Ark. 52, 257 S. W. 393. The reason for the rule, as we observed in the Porter case, is that the gate gives notice to the public that they pass through the land by permission of the owner and not as a matter of right.

To apply the rule to the particular facts of this case would extend it beyond the reasoning on which it is based. To begin with, the gate was not situated on the land that Martin owns; so the gate could hardly be regarded as notice to the public that their passage across that particular land was by permission of its owner. Upon somewhat similar facts we held, on rehearing, in Stoker v. Gross, 216 Ark 939, 228 S. W. 2d 638, that a landowner is not entitled to close a road across his land merely because another landowner has maintained a gate at a different point on the road. See also Holmes v. Pierce County, 121 Wash. 56, 208 P. 7.

The proof does not support Martin’s effort to distinguish the Stoker case on the ground that here Martin’s predecessor in title, Henry B. Means, Sr., mistakenly believed that the gate was on the land that Means owned. Means acquired the land in 1915 and owned it until his death in 1950. The gate was near the Means barn and was sometimes referred to as the Means gate, but it was actually on adjoining land owned by the appellee Sibley. Coley Buck, who supervised the Means farm for thirty-four years, testified positively that Means never laid claim to the land where the gate is. GK B. Sibley and Charles Crow gave similar testimony. Henry B. Means, Jr., evidently believed that the gate was on the Means land, as he once kept the gate locked for two or three days, but he frankly admitted that his assumption was based on hearsay. On the whole record we are not convinced that the elder Means relied upon the gate as a protection against the creation of an easement.

In the second place, the gate was not maintained .even by its owner as a means of asserting his dominion over the road. There is abundant evidence that the perimeter fence, including the gate, was kept in repair by the community as a whole, to protect the island lands against the intrusion of cattle during the crop seasons. Everyone concerned helped in the maintenance of the fence, the gate, the bridge across the slough, and even the road itself. We are by no means persuaded that the various landowners, in assuming their fair share of the responsibility for the fence, the gate, the bridge, and the road, had the slightest notion or intention of demonstrating by their maintenance of the gate that their use of the road was merely permissive. It is much easier to believe that they used as a matter of right the facilities that they themselves had created.

Affirmed.


text:
    Hot Spring County v. Bowman.
    5-1740
    318 S. W. 2d 603
    Opinion delivered December 15, 1958.

      W. B. Thrasher, Dowell Anders and W. B. Brady, for appellant.

      Wendell O. Epperson and Joe W. McCoy, for appellee.
   George Rose Smith, J.

This is a claim against the county for damages of $40,000 assertedly suffered by the appellees as a result of a lowering of the grade of Highway 67 in front of their service station. The county court disallowed the claim, finding it excessive. Upon appeal to the circuit court the appellees were awarded a verdict and judgment for $10,000. The county contends that the State alone is liable to the claimants and, alternatively, that incompetent evidence was introduced at the trial.

In 1954 and 1955 the State Highway Commission approved a plan for the renovation of Highway 67 in Hot Spring county. Pursuant to Ark. Stats. 1947, § 76-510, the Commission applied to the county court for assistance in the project. The court granted the petition and entered an order requiring any aggrieved landowner to present his claim within one year. It is conceded that by this order the county made itself liable for the value of the land that was actually taken as a right-of-way for the improvement. Ark. State Highway Com’n v. Palmer, 222 Ark. 603, 261 S. W. 2d 772.

It happened, however, that none of the appellees’ property, which abutted the highway for a distance of 120 feet, was actually taken. Along their frontage the pre-existing right-of-way was used, hut the roadbed was lowered about three feet, causing the damage now complained of.

The county points out that the Highway Commission controls the grade of state highways and could have lowered the roadbed in front of the appellees ’ land without applying to the county court for assistance. Counsel also seek to deduce from some of our prior decisions a rigid rule by which liability for a change in the grade of a street or highway would he limited to the public agency having the authority to make the change. Among the cases cited are Eickhoff v. Street Imp. Dist. No. 11, 120 Ark. 212, 179 S. W. 367; Red v. Little Rock Ry. & Elec. Co., 121 Ark. 71, 180 S. W. 220; and Road Imp. Dist. No. 6 v. Hall, 140 Ark. 241, 215 S. W. 262. It is accordingly urged that the appellees have no claim against the county and that their only remedy was against the State, either by a suit for an injunction or by an application to the Claims Commission.

We are unable to agree with this reasoning. None of the cases relied upon lays down the inflexible principle that the appellant would have us adopt; each case merely holds that a particular public agency was not liable under certain statutes not pertinent to the present controversy. Here the county’s liability derives from Ark. Stats., § 76-510, which authorizes the Highway Commission to call upon the county court to change or widen any state highway, in the manner provided by § 76-917. The latter section empowers county courts to make such changes in old roads as may be deemed proper. It is plain enough that the county may assume the responsibility for a change in the existing highway, whether or not the acquisition of additional right-of-way is involved.

Here the county court’s order gave no hint to the affected landowners that the county meant to restrict its liability to the value of land actually taken. The order recites the fact that the road is to be rehabilitated as set out by the Highway Commission’s plan and specification, that the improvements asked for in the Commission’s petition are accepted, and that any landowner who is affected by the order is to present his claim to the county court. Although the record is not wholly clear on the point, it appears that the Commission’s plans and specifications contemplated the change in grade along the appellees’ land. To say the least, it may fairly be assumed that the Highway Commission did not embark upon an extensive renovation of Highway 67 without knowing what the finished grade would be. A landowner who is damaged by a change in the grade of the highway is protected by the constitution to the same extent as one whose land is actually taken. Clark County v. Mitchell, 223 Ark. 404, 266 S. W. 2d 831. If the county intended to assume the latter liability only, that intention should have been clearly disclosed by the order, so that the public would not be misled.

On the second point, however, the judgment must be reversed. An expert witness for the claimants was permitted to arrive at the value of the land, before the change in grade, by capitalizing the income derived from the service station on the property. This was error. Hot Spring County v. Crawford, 229 Ark. 518, 316 S. W. 2d 834. The record does not support the argument that this income consisted only of rent received by the appellees from lessees of the property; Bowman testified that he operated the station himself for a substantial part of the period that was considered in the capitalization of income.

Reversed and remanded for a new trial.


author: Paul Ward, Associate Justice.

text:
    Banko v. Garvin.
    5-1742
    318 S. W. 2d 611
    Opinion delivered December 15, 1958.

      Wright, Harrison, Lindsey S Upton, for appellant.

      Charles A. Brown and Neill Bohlinger, for appellee.
   Paul Ward, Associate Justice.

The question here deals with the application of an automobile guest statute.

Appellee was injured while in an automobile belonging to and controlled at the time by appellant in a parking building in Little Rock.

The pertinent facts, in the main undisputed, leading up to this litigation are: Appellant, Dorris Banko, a nurse in the Navy, driving in her own car from California to her new station in Massachusetts, stopped at Little Rock, her former home, on October 31, 1957 to visit friends: She and her mother who was making the trip with her went to the home of appellee, Bula Garvin, and spent the night: The next morning the three persons mentioned drove down town in appellant’s car preparatory to meeting another friend, Mrs. Thelma Ellis : It seems that appellant understood they would visit a few minutes with Mrs. Ellis during her noon recess hour at some place Mrs. Ellis would designate for temporary parking: However, as appellant was driving south on Louisiana Street and was approaching the intersection with 4th Street, Mrs. Ellis motioned to her to drive into the Newrock Parking Center which was just to appellant’s right. Appellant accordingly drove into the parking center and stopped the car when Mrs. Ellis opened the right rear door and greeted her and her mother: At about this time appellant, at the direction of a parking attendant, after he had given her a claim check, started to move her car out of the entrance lane and over to the right side of the ground floor of the parking area: As appellant attempted this maneuver she lost control of her car which began to gather speed, headed down a ramp at the rear of the building and collided with a concrete wall. Appellee was in the front seat of the car with appellant. As a result of the accident appellee was injured, and brought suit against appellant for damages, recovering a judgment in the amount of $5,000 in the trial court, from which comes this appeal.

From the briefs we understand it is agreed by both appellant and appellee that the evidence shows appellant was guilty of ordinary negligence but that she was not guilty of “willful misconduct” or that she “willfully and wantonly operated” the automobile in causing the collision which resulted in the injury; and also that appellee was a “guest” in appellant’s car.

In view of the above the following situations are presented: (a) If Ark. Stats. 75-915 is in full force and effect, as contended by appellant, then the judgment of the trial court should be reversed, because there was no willful and wanton negligence shown and because it was not necessary, under that statute, for appellant to be driving on the highway at the time of the accident, (b) If on the other hand said § 75-915 has been repealed, as contended by appellee, the judgment should be affirmed, because appellant was shown to be negligent and because appellant is not protected by the other so called guest statutes which apply only when the automobile is being operated on the highway.

Briefly stated another way: Appellant says she is not liable because she is protected by the guest statute, § 75-915, which requires that she be shown guilty of willful and wanton negligence. Appellee says the guest statutes are not involved at all, and that appellant is accountable for ordinary negligence.

The trial court, by its instructions, adopted appellee’s view over the objections of appellant.

To better understand the arguments pro and con on the above stated issue it is deemed necessary to set out the essential parts of the three “guest statutes” concerned, with the dates of their enactments.

Act 61 of 1935. (Referred to hereafter as Act A) Section 1. “No person transported as a guest in any automotive vehicle upon the public highways of this State shall have a cause of action against the owner or operator of such vehicle for damages on account of any injury, death or loss occasioned by the operation of such automotive vehicle unless such vehicle was willfully and wantonly operated in disregard of the rights of others.” (§ 75-913 Original Volume Ark. Stats.)

Act 179 of 1935 (Referred to hereafter as Act B) Section 1. “No person transported or proposed to be transported by the owner or operator of a motor vehicle as a guest, without payment for such transportation, nor the husband, widow, executors, administrators or next of kin of such person, shall have a cause of action for damages against such owner or operator, or other persons responsible for the operation of such car, for personal injury, including death resulting therefrom, by persons while in, entering, or leaving such motor vehicles, unless such injury shall have been caused by the willful misconduct of such owner or operator.” (§ 75-915 Ark. Stats.)

Act 175 of 1955. (Referred to hereafter as Act C) Section 1. “That no person transported as a guest in any automotive vehicle upon the public highways or in Aircraft being flown in the air, or while upon the grounds, shall have a cause of action against the owner or operator of such vehicle or Aircraft, for damage on account of any injury, death or loss occasioned by the operation of such automotive vehicle or Aircraft unless such vehicle or Aircraft was willfully and wantonly operated in disregard to the rights of others.” (§ 75-913 in New Volume of Ark. Stats.)

We can find no sound or reasonable ground for appellee’s contention that Act B has been repealed. Act A was approved February 20, 1935, while Act B was approved March 21, 1935. Both statutes deal with guests while riding in automobiles, the former on the public highways and the latter not so limited. While it is true that the legislature might have combined both features in the same Act we know of no rule compelling it to do so. There is no contention, nor can we see how it could be reasonably contended, that Act A. repealed Act B. Consequently, if Act B has been repealed it must have been done by Act C. But an examination of Act C reveals that it only amended Act A, as is clearly shown by the enacting clause and the Act itself. If the legislature had intended to repeal Act B it would have been easy and natural to say so. Also, there appears a good reason why the legislature did not want to repeal Act B since it contained a provision (not copied above) dealing with guests who were related (to the driver) by blood or marriage (recently declared unconstitutional by this court in Emberson v. Buffington, 228 Ark. 120, 306 S. W. 2d 326). Because of this and other distinct differences between Act B and Act C we see no ground or reason for the application of the doctrine of repeal by implication which has been urged by appellee.

Nor can we agree with appellee’s able argument to the effect that all three of the above mentioned statutes deal with the same subject matter (“same class of persons or things”) and should be considered together. The result of appellee’s argument would be that the last Act (Act C) replaces Act B. Supporting this argument appellee quotes the “General Rules” found in Vol. 82, C. J. S. at page 801, under § 366 entitled “Statutes Relating to Same Subject Matter in General. ’ ’ The gist of the rule is that such statutes should be harmonized if possible. In the same section mentioned above it is stated that “. . . although an act may incidently refer to the same subject as another act it is not in pari materia if its scope and aim are distinct and unconnected. ” It is obvious, we think, that the scope and aim of Act B are distinct and different from that of Act C. "While both deal with the same general subject of “guest” the scope is not confined to the public highways in the former as it is in the latter; the former deals with the degree of relationship while the latter doesn’t, and; the latter deals with aircraft while the former doesn’t.

To put these Acts in their right perspective we think it is important to bear in mind that they were originally designed to deal with liability to a guest (in an automobile) who might be negligently injured, and not to regulate traffic on the highways. This being true, it is altogether reasonable that the legislature chose, perhaps wisely, to give protection to drivers both on and off the public highways. Certainly it was foreseeable that guests might be injured in either event.

We find no merit in appellee’s contention that the journey had come to an end and consequently no guest statute is involved. All the. testimony shows that the journey had not ended but that appellee would have continued to ride with appellant after the short visit with Mrs. Ellis.

The judgment of the trial court is reversed and the cause-of action is dismissed.


author: Sam Robinson, Associate Justice.

text:
    Gordy v. The Equitable Life Assurance Society of the United States.
    5-1712
    318 S. W. 2d 609
    Opinion delivered December 15, 1958.

      Wood $ Smith, for appellant.

      Bernal Seamster, for appellee.
   Sam Robinson, Associate Justice.

The amount of an attorney’s fee is involved here. Appellant, Victor G. Gordy, retained H. B. Stubblefield, an attorney, to attempt the collection of disability benefits on six policies of insurance. Gordon contends that Stubblefield was to receive as his fee one-third of the accrued benefits, and Stubblefield contends that he was to receive one-third of the full amount collected on the policies, including the amount to be paid in the future, less the amount payable in the event of death. Prom a judgment in favor of Stubblefield, Gordy has appealed.

Three policies were issued to Gordy by The Equitable Life Assurance Society of the United States. Two of these policies are involved in this appeal; these policies provide for waiver of premium and for disability benefits of $100 per year each. . Suits were filed on the Equitable policies, but the insurance company made a settlement before the trial for the full amount the policyholder claimed was due, and judgment was entered for the accrued benefits less that part barred by the statute of limitations. The trial court assessed a 12% penalty and an attorney’s fee of $750. The insurance company appealed to this court, contending the attorney’s fee was excessive, and Gordy, represented by Stubblefield, cross-appealed, contending it was not enough. The judgment was affirmed. Equitable Life Assur. Society of U. S. v. Gordy, 228 Ark. 643, 309 S. W. 2d 330.

The present action pertains to future benefits payable under two of the policies. The judgment in the circuit court established the validity of Gordy’s claim for disability benefits. When payment of benefits accruing subsequent to the judgment became due, the insurance company filed an interpleader in chancery court and deposited in court the amount due under the policies. The interpleader alleged there was a controversy between Gordy and his attorney, Stubblefield, regarding the amount due each. Stubblefield contends that he should have as his fee one-third of all sums collected and to be collected, including future benefits, but exclusive of death benefits, and that Gordy was to get two-thirds of everything, including the attorney’s fee and penalty. Gordy contends that the attorney’s fee was to be one-third of the accrued benefits and one-third of the attorney’s fee and penalty. The chancellor held that Stubblefield is entitled to one-third of the future bene- ■ fits, as well as one-third of the accrued benefits, and Gordy has appealed.

Stubblefield maintains that if his agreement with Gordy is not a binding contract, he is entitled to one-third on a quantum meruit basis. So far as the terms of the agreement are concerned, the parties were before the chancellor, and that court was in much better position than this court to judge their credibility; and we cannot say a finding that the agreement was for an attorney’s fee of one-third of future benefits, as well as those which had accrued, is against the preponderance of the evidence. Moreover, if the agreement is disregarded and the attorney’s fee is assessed on a quantum meruit basis, one-third of everything recovered, including future benefits but excepting death benefits, is not too high, considering all the circumstances. In fact, it appears that the odds were greatly against Stubble-field’s being able to bring the matter to a successful conclusion. The courts have approved many contracts for attorneys’ fees calling for 50% of the amount recovered where the prospects of making recovery were much greater than were Gordy’s for collecting disability benefits under the terms of the policies. In order to collect on the policies, it was necessary to show that Gordy’s disability began before he reached age 60. He had reached that age in 1952, and his alleged disability began in 1949. He did not employ Stubblefield, however, until 1955. Undoubtedly the statute of limitations had run on part of the claim; the whole thing had become somewhat stale, and many lawyers would not have accepted employment on a contingent basis. Stubblefield was faced with the prospect of long, drawn out, strongly contested and expensive litigation, with a good chance of finally receiving no fee at all.

The record shows that Stubblefield advanced a large part of the necessary expenses of the litigation, and there is no showing he would have recovered this money if he had lost the case. Apparently he did a tremendous amount of work on the case. It was shown that his files pertaining to the matter were voluminous. Some of the litigation was in federal court, and after winning his case there before a jury, Stubblefield had to go to the circuit court of appeals; and, as heretofore mentioned, he had to handle one angle of the case in this court. All of this work could have been anticipated from the beginning. In addition, it appears that there must have been grave doubt about being able to prove Gordy’s alleged disability. In short, it appears to have been a pretty weak case. And, in agreeing to handle it on a contingent basis, Stubblefield was taking a long gamble on collecting a fee.

Appellant cites Johnson v. Rolf, 208 Ark. 554, 187 S. W. 2d 877, and other cases, to the effect that equity regards the relation of attorney and client in much the same light as that of guardian and ward, and will relieve a client from hard bargains from an undue advantage secured over him by his attorney. But the rule announced in those cases has no application to the facts in the case at bar. Here it does not appear that Gordy was overreached in any particular. On the contrary, it appears that he was very fortunate in being able to engage, on a contingent basis, the services of a very able lawyer who, through energy, perseverance and tenaeiousness, brought his client’s litigation to a successful conclusion. The future disability benefits Gordy will receive are just as much the result of the lawyer’s work as the accrued benefits.

Affirmed.


author: William J. Smith, Associate Justice.

text:
    Leach v. State.
    4927
    318 S. W. 2d 617
    Opinion delivered December 15, 1958.

      Eugene Coffelt, for appellant.

      Bruce Bennett, Atty. General and Russell J. Wools, Asst. Atty. General, for appellee.
   William J. Smith, Associate Justice.

While the appellant, Bill Leach, was driving his automobile west on TJ. S. Highway 71 between Bentonville and Rogers on March 12, 1958, two members of the Arkansas State Police who were driving behind him saw him weaving from one side of the road to the other. They overtook Leach and succeeded in stopping him. The appellant was arrested and charged with operating an automobile upon a public highway while he was under the influence of intoxicating liquor, second offense. The jury found him guilty and fixed his punishment at a fine of $250 and ten days in jail. Pursuant to the jury verdict, the Circuit Court sentenced the appellant and suspended his driver’s license for a period of one year.

For reversal, the appellant contends that the trial court erred in refusing to quash the jury panel and in refusing to grant a continuance; that the jury verdict was based upon prejudice; and, that certain remarks by the Prosecuting Attorney in his closing argument were prejudicial.

At the trial the testimony of the arresting officers and others was to the effect that the appellant was unsteady on his feet; that his speech was not clear; that his face was flushed; and, that he had the smell of intoxicating liquor on his breath. For purposes of this opinion we do not consider it necessary to further summarize the evidence.

With reference to his first assignment of error, the appellant refers to a colloquy between the Court, and the appellant and his counsel at the time the case was set for trial. In our opinion, the appellant has failed to state any statutory ground for challenging the jury panel. Section 43-1911 Ark. Stats. 1947. Also, he is in no position to complain about the jury panel since he failed to exercise his peremptory challenges. Hooper v. State, 187 Ark. 88, 58 S. W. 2d 434.

The appellant’s second contention likewise has no merit. He moved orally for a continuance on the ground that a witness he desired to use was absent, and he did not file an affidavit setting forth information specifically required by the applicable statute. Section 27-1403 Ark. Stats. 1947. Further, a motion for continuance is a matter within the sound discretion of the trial court and we find nothing in the record to indicate an abuse of discretion in this case. Turner v. State, 224 Ark. 505, 275 S. W. 2d 24.

Apparently the appellant’s contention that the jury’s verdict was based on prejudice is predicated upon what he describes as conflicting and ridiculous evidence adduced by the State. It is settled that the jury weighs the evidence and in this case it did so on instructions from the Court to which the appellant did not object. The testimony to which we have referred, we think, constituted substantial evidence to support the verdict of the jury. Slavens v. State, 226 Ark. 62, 287 S. W. 2d 892.

In making his closing argument, the Deputy Prosecuting Attorney said: “In my opinion, he was driving while under the influence of intoxicating liquor, like Joe Means said — strong like he had been by the cider mill. ’ ’ Joe Means, Sheriff of Benton County, had testified that when arrested, the appellant was unsteady on his feet; that his speech was very bad; and, that he had the smell of alcoholic beverage on his breath. In our opinion, this statement by the Deputy Prosecuting Attorney while arguing the case to the jury was nothing more than a permissible comment on the evidence in the case. Willis v. State, 220 Ark. 965, 251 S. W. 2d 816.

The judgment of the circuit court is affirmed.


author: Leon B. Catlett, Special Associate Justice. Paul Ward, Associate Justice (dissenting).

text:
    Clinton v. General Motors Corporation.
    5-1585
    318 S. W. 2d 577
    Opinion delivered December 15, 1958.

      Wright, Harrison, Lindsey & Upton, for appellant.

      Rose, Meek, House, Barron <& Nash, Edwin E. Runaway, Henry M. Hogan and Raniel Boone, Detroit, Michigan, for appellees.

      H. Maurice Mitchell, Beresford L. Church, Jr., Spitzberg, Bonner & Mitchell, for appellee; Wood <& Smith, amicus curiae brief for Ford Motor Co. Richard B. Rarrah, Dearborn, Michigan, Owens, McHaney, Lofton & McHaney, amicus curiae brief for Chrysler Corp., and Leland J. Markley, Kelley, Rrye, Newhall, Herbert E. Moshier, Detroit, Michigan.
   Leon B. Catlett, Special Associate Justice.

Act 530, which became effective on July 1, 1957, created the Arkansas Motor Vehicle Commission, composed of a Chairman and six members, and provided for the regulation by such Commission of the sale and distribution of new motor vehicles in Arkansas. On June 27, 1957, six automobile dealers, including franchised new car dealers and non-franchised new car dealers, filed suit in the Pulaski Chancery Court seeking a declaratory judgment that Act 530 was unconstitutional in multiple respects under the State and Federal Constitutions and for an injunction against its enforcement. On August 27, 1957, General Motors Corporation, a nonresident automobile manufacturer, filed suit in the same Court praying the same relief as asked in the case of the six automobile dealers for substantially the same reasons. The two cases were consolidated for trial, and on January 14, 1958, the Court below held the Act “unconstitutional in its entirety because it contravenes the Constitution of Arkansas and the Constitution of the United States in several respects, particularly: 1. The Act contains arbitrary classifications among persons following the same calling and trade. 2. The Act is not a valid exercise of the police power. 3. The Act fails to provide for an impartial tribunal. 4. The standards set out in the Act are not sufficiently definite. 5. The Act constitutes a prohibited delegation of legislative powers. 6. The Act imposes unreasonable burdens and restrictions on interstate commerce.”

Excellent briefs have been submitted by the parties and by Ford Motor Company and Chrysler Motor Corporation as amici curiae.

The legislation and ensuing litigation are a sequel to a similar Act, No. 182 of 1955, reviewed and declared unconstitutional in Rebsamen Motor Company v. Phillips, 226 Ark. 146, 289 S. W. (2d) 170. In the Bebsamen case the Court found that Act 182 contravened Section 18, Article 2 of the Arkansas Constitution by arbitrarily classifying dealers in new and unused cars' as subject to the required license, while exempting dealers engaged in the sale of new and used cars. The question presented is whether Act 530 of 1957 is sufficiently different from Act 182 of 1955 to eliminate unconstitutional features.

Section 2(a)'of Act 530 of 1957 defines-a “New Motor Vehicle” as “any motor vehicle transferred for the first time from a manufacturer, distributor or wholesaler, factory branch or distributor’s branch, and which motor vehicle has theretofore not been used.” The remainder of Section 2 is devoted to defining, among other terms, “Motor Vehicle Dealer,” “Commission,” “Manufacturer,” “Distributor,” “Wholesaler,” “Factory Bránch” and “Distributor Branch.” Section 3 creates the Arkansas Motor Vehicle Commission and empowers it to “make and enforce all reasonable rules and regulations” necessary to accomplish the purposes of the Act. Section 4(a) specifies that on or after July 1, 1957, engaging in business as a motor vehicle dealer, or manufacturer, distributor or wholesaler of motor vehicles without first obtaining the license required by the Act, constitutes a misdemeanor with each day of violation a separate offense, and Section 4(b) requires an applicant to execute a form prescribed by the Commission containing information relating to the applicant’s financial standing, business integrity, whether applicant has an established place of business and is primarily engaged in the pursuit of the business for which a license is sought, and whether the applicant is able to conduct properly such business and such other pertinent information consistent with the safeguarding of the general economy, public interest and public welfare. Section 4(c) sets forth a schedule of license fees and Section 4(d) provides that a change of location must be sanctioned by a new license. Section 5 enumerates the grounds for denying, revoking, suspending or delaying the issuance of a license, and specifies that such action may be taken by the Commission if a “Motor Vehicle Dealer” (a) has required a purchaser of a new motor vehicle, as a condition of delivery thereof, to also purchase special features, appliances, accessories or equipment not desired by the purchaser; (b) has represented and sold as a new and unused motor vehicle any motor vehicle which has been used and operated for demonstration purposes, or which is otherwise a used motor vehicle; or (c) resorts to or uses any false or misleading advertising in connection with his business as a “Motor Vehicle Dealer.”

Customarily, manufacturers of automobiles sell new motor vehicles, through their distribution systems, only to dealers with whom they have a franchise or contract.

A careful and painstaking comparison of the provisions of Act 530 of 1957 with those of Act 182 of 1955 fails to disclose any real difference in the basic requirements imposed by Act 530 in connection with “any motor vehicle transferred for the first time from a manufacturer, distributor or wholesaler, factory branch or distributor branch, and which motor vehicle has theretofore not been used,” and the requirements imposed by Act 182 in connection with “the sale of new and unused motor vehicles” by a dealer holding a bona fide contract with or franchise from a manufacturer of such vehicles. Nor has any difference been discerned between the sale of a “motor vehicle transferred for the first time” and the sale of “a new and unused motor vehicle.” Both Acts regulate and require the payment of license fees by identical classes, while the competitors of such classes engaged in the same business are not regulated or required to pay such fees. There is no reasonable basis for placing the franchised dealers under regulation and requiring them to pay license fees, while not making the same requirements of the non-franchised or independent dealers.

In the case of Rebsamen Motor Company v. Phillips, supra, this Court pointed out that while the manufacture and sale of motor vehicles constitutes an area by no means exempt from regulation under the police power of the State, such regulation may not extend to a point where competition is circumscribed in an unreasonable manner. Act 530 and Act 182 reach an identical result in this respect.

In reaching this decision we do not desire to create an impression that the wisdom of legislation has or will become a factor in judicial appraisal where attack is made on constitutional bases. However, as we have often held, the police power may not be applied to a class without equal application to all members of such class.

While additional grounds of unconstitutionality are urged, some of which are meritorious, in view of our conclusion, a discussion of these points is unnecessary. Act 530 of 1957 is unconstitutional in its entirety.

A ffirmed.

The Chief Justice and Mr. Justice Ward dissent.

George Rose Smith and William J. Smith, JJ., not participating.

Paul Ward, Associate Justice (dissenting).

For the reasons hereafter set out, I am unable to agree with the majority opinion.

I cannot help feeling that those making the majority opinion have missed entirely the purpose and the essential provision of Act 530 of the 1957 General Assembly. The sole and only purpose of the Act was not to punish but to help the franchise dealers of Arkansas. This is specifically stated in Section 1 of the Act. This plain fact seems to have entirely escaped the majority, because they say: “There is no reasonable basis for placing the franchised dealers under regulation and requiring them to pay a license fee” (my emphasis). It is, of course, the view of the complaining dealers [and General Motors Corporation] that the Act is a burden on them, but that certainly does not express the attitude of a vast majority of the franchise dealers of Arkansas. Confirmation of this conviction is the fact that they are so persistent in their efforts to obtain this kind of legislation. Section 1 of the Act explains clearly why auto manufacturers are opposing this legislation. It removes the economic pressure they now are able to exert upon their dealers.

Having understood the purpose of the act, it is now pertinent to examine the question of “classification”. The essence of the majority opinion is that there is “an arbitrary classification among persons following the same trade or calling”, (my emphasis). So it will be interesting to have a look at just what are these classifications, and just how arbitrary they are.

One group consists of authorized dealers who sell new cars. This group [as stated in said § 1] are subjected to superior economic pressure and thereby forced into agreements, acts, and practices which produce harmful effects on thé general economy. Those in this group can resist this pressure only at the risk of losing their business to others who are willing to submit and thus start the round robbin of economic pressure all over again.

In the other group are used car dealers, and they are not affected by the Act in any way. Those in this group do not have to buy more cars than they want and therefore are not under the pressure imposed on the first group.

To say, as the majority does in effect, that this difference between the two groups is imaginary and that a classification based thereon is arbitrary is simply being unrealistic. Neither is it realistic to say both groups are engaged in the same hind of business. Of course both groups deal basically with automobiles, but they do so under entirely different circumstances and conditions. The legislature has always recognized classification distinctions, and with this courts approval. For example, the county officers in one county deal with the same matters as officers in other counties, but they are nevertheless classified as to salaries solely on the basis of different conditions. All cities deal with local government but they are also classified and given different powers and duties depending on different conditions. In the case of Ring v. Mayor and Council of Borough of North Arlington, 136 N. J. L. 494, 56A. 2d 744, in dealing with this precise question, the court said: “In the exercise of the power to license for regulation and revenue, distinctions may be made not only between businesses of different character, but also between businesses of the same general class where there are substantial differences in the subject matter and trade methods and practices related to the object of legislation” (my emphasis). It was also said in the Bing case: “A distinction in legislation £is not arbitrary, if any state of facts reasonably can be conceived that would sustain it’ ”.

Neither do I agree that this case is controlled by the Bebsamen case, cited in the majority opinion. The gravamen of the Bebsamen opinion is found on page 152 of the Ark. Reports. It holds that there is no distinction between selling “new and unused cars” and selling “new and used cars”. A careful examination of Act 530 reveals that no such classification is made. Of course I took the view in the Rebsamen case, as shown by my dissenting opinion, that the classification there was not arbitrary, and I certainly do not want to extend further the restrictive scope of that opinion. In the Rebsamen case both groups dealt with new cars while here only one group does. That one distinguishing feature alone, added to the numerous other distinguishing features enumerated heretofore, constitutes the basis for a reasonable classification, and that is all this court has ever required. For confirming decisions see: Williams v. State, 85 Ark. 464, 108 S. W. 838; Kelso v. Bush, 191 Ark. 1044, 89 S. W. 2d 594; Bollinger v. Watson, 187 Ark. 1044, 63 S. W. 2d 642; Hogue v. The Housing Authority of North Little Rock, 201 Ark. 263, 144 S. W. 2d 49, and; Thompson, Com. of Revenues v. Continental Southern Lines, Inc., 222 Ark. 108, 257 S. W. 2d 375.


text:
    Morgan v. Daniels.
    5-1714
    318 S. W. 2d 823
    Opinion delivered December 22, 1958.

      M. V. Moody d Joe Brooks, for appellant.

      Gockrill, Laser d McGehee d Jacob Sharp, Jr., for appellee.
   Carleton Harris, Chief Justice.

Appellant instituted a suit for damages alleging that he was seriously injured by the action and negligence of appellee in striking him at the intersection of 10th and Broadway in Little Rock. Appellee answered, denying the allegations, alleging that any damages were caused solely and proximately by appellant’s own negligence. Unavoidable accident was further pleaded. Previous to the voir dire examination, appellant’s attorney requested in Chambers that he be permitted to ask the following questions of the jury panel during such examination.

‘ ‘ One. Have you ever been in the employ of a liability insurance company? Two. Do you own any stock in a liability insurance company at the present time? Three. Are you insured with a mutual benefit liability company where your premiums are determined upon the size of judgments given in personal injury actions for the previous year?”

The court ruled that counsel could ask the first two questions, but sustained an objection to the third. After returning to the courtroom, the court made a statement to the panel, explaining the general nature of the case, and interrogated the prospective jurors relative to their knowledge of the cause, representation by any of the attorneys, any relationship to any of the attorneys, and whether there was any reason why any juror could not try the case impartially if selected. The following colloquy then took place:

“Mr. Moody: (Counsel walks to pleading bar and turns and directs his question to counsel for the defendant sitting close by). ‘What is the name of that insurance carrier that has the coverage on your client’s automobile?’ Mr. Sharp: ‘Your Honor, I want to be heard on that. ’

Thereupon, Counsel for both parties approached the bench and an off-record discussion was had between the Court and counsel for the respective parties.

The Court: ‘Ladies and gentlemen, are any of you connected with or do yon own any stock in the Preferred Eisk Insurance Company, an Arkansas corporation, or do any of you have any close relatives that are employed by or owns stock in that company?’

Thereupon, Mr. Sharp, counsel for the defendant, returned to his seat at the counsel table and Mr. Moody, counsel for the plaintiff, approached the pleading bar and questioned the jury, as follows: * * *”

Here, appellant’s counsel interrogated the panel relative to any employment by that company at any time in the past, any representation or business dealings with appellee’s attorneys, and whether any of the prospective jurors had ever been either plaintiffs or defendants in a personal injury suit. Upon submission of the case, the jury returned a verdict for appellee. For reversal, appellant relies upon two points.

I.

The Court erred in refusing permission to plaintiff’s attorney to interrogate prospective jurors on the voir dire respecting their interest in or connection with liability insurance companies.

II.

The Court erred in refusing permission to plaintiff’s attorney to interrogate prospective jurors on voir dire as to their ownership of stock or employment with any liability insurance companies, and as to mutual benefit insurance determined by judgment given in personal injury actions for the previous year.

These will be considered together in our discussion.

The exact questions, heretofore mentioned, were approved in Dedmon v. Thalheimer, 226 Ark. 402, 290 S. W. 2d 16. In that case, the trial court refused to allow any of the questions to be asked; here, the court ruled that the first two might be propounded, but not the third. Appellant complains that he was effectively deprived of even asking the first two questions, because the court took over the interrogation, and did not ask the questions in the manner in which they had been requested. We have searched the record and find nothing therein which indicates that the court, in any manner, prohibited counsel from asking the first two questions. Counsel had been informed in Chambers that the two questions could be asked, and the record discloses no further remarks by the trial judge to the jury panel, or to the attorneys, other than those heretofore mentioned. We accordingly are unable to agree that the court’s action in asking the questions relative to ownership of stock, or close relatives in the Preferred Bisk Insurance Company, amounted to “taking over” the interrogation, or precluded appellant’s counsel from requesting the information in questions one and two. In fact, as previously shown, other questions were asked, and counsel’s examination of the jury appears to have been entirely unhampered (except as to the third question). While we said in the Dedmon case, supra, that the question excluded was proper, we do not see that, under the circumstances, appellant was prejudiced by the refusal of the court to permit the question. The court questioned the panel specifically in regard to the Preferred Bisk Insurance Company. These questions certainly would convey the impression that if an insurance company were interested, it was this company. Mutual companies return dividends to their policy holders in the form of a credit to be applied upon premiums that become due. This credit is, of course, affected by the size of judgments given against the company in the previous twelve month’s period. There being no answer to the court’s questions relative to the Preferred Bisk Insurance Company, it is apparent that no prospective juror held a policy with that company. Since any holder of a mutual policy on the panel would have recognized that his or her company was not involved, they would likewise have known that their dividend credit would not he affected by the outcome of the litigation.

Actually, the court’s interrogation resulted in the jury obtaining information relative to insurance which they should not have properly received, and which, under usual circumstances, could have been expected to inure to the benefit of appellant. In fact, under our holding in Delong v. Green, 229 Ark. 100, 313 S. W. 2d 370, such a statement by the court, if properly objected to by appellee, would have necessitated a reversal, had appellant obtained a judgment. At any rate, it would appear, that when the court asked these questions, counsel was apparently satisfied as far as any examination relating to insurance was concerned, for he did not even proceed to ask the two questions for which permission had already been obtained. We are persuaded that appellant’s contentions are not well taken, and that no reversible error was committed by the court.

The judgment is affirmed.

       The three questions were included as one.


author: J. Seaborn Holt, Associate Justice.

text:
    Shipp v. Tanner.
    5-1701
    318 S. W. 2d 821
    Opinion delivered December 22, 1958.

      Shaver, Tackett S Jones, for appellant.

      Thomas S. Arnold <& Arnold & Arnold, for appellee.
   J. Seaborn Holt, Associate Justice.

Proceeding under our Workmen’s Compensation Law, (Secs. 81-1301— 1349 Ark. Stats. 1947) appellant, Shipp, sought an award of compensation for an alleged injury while in the employ of H. G. Tanner, now deceased, and while in the course of such employment. On a hearing before a referee of the commission, his claim was disallowed. It was again denied on appeal to the full commission and this action of the full commission was affirmed on appeal to the circuit court. This appeal followed.

For reversal appellant contends that: “ 1. The trial court erred in refusing to rule that appellant received an accidental injury in the course of his employment. 2. The trial court erred in ruling that appellant failed to give sufficient notice of his injury. ’ ’

Since we have concluded, after a careful review of all the testimony, that the commission, and the circuit court on appeal, correctly found that there was no substantial evidence that Shipp (the claimant) had received any accidental injury arising out of, and in the course of his employment, it becomes unnecessary to consider appellant’s second contention above. “Since the enactment of our Workmen’s Compensation Law, we have consistently held that we do not try compensation cases here de novo, we are, therefore, not concerned with where the weight of the evidence may lie. When we find any substantial evidence to support the findings of the commission, we must affirm. We said in the recent case of Grimsley, Adm’x. v. Manufacturers Furn. Co., 224 Ark. 769, 276 S. W. 2d 64: ‘Findings of fact by the Workmen’s Compensation Commission are given the same verity as attach to the verdict of a jury and this applies on appeal to the circuit court as well as to the supreme court from the judgment of the circuit court . . . On appeal, the supreme court must view testimony in its strongest light in favor of the commission’s findings . . . Where the commission acting upon sufficient evidence sustains or rejects an award, such findings will not be disturbed on appeal,’ ” McKamie v. Kern Trimble Drilling Co., 229 Ark. 86, 313 S. W. 2d 378. “. . . there is no prima facie presumption that the claim comes within the provisions of the law ’ ’ (Workmen’s Compensation Act), Duke v. Pekin Wood Products Co., 223 Ark. 182, 264 S. W. 2d 834.

Shipp claims that he experienced a pain in his chest, a heart attack, on February 3, 1956, while he was delivering gasoline to Easley Service Station, the pain became worse, and he went to the office of Dr. Kittrell, who sent him to Dr. Baskett for an electrocardiogram. He was sent home for rest. He states his contention in this language: “It is our contention that Mr. Shipp was suffering from a heart or other condition more than a year prior to February 3, 1956, and that because of the undue strain and hardship due to his fellow employees being off from work placing the burden on him which he hadn’t been used to carrying, because of his nervous condition, his mental condition and physical exertion, that it brought about this eventual heart attack on February 3, 1956, it being our contention that he was suffering from an ailment prior to that time, and that heavy work contributed to the eventual heart attack. ’ ’

We think the testimony clearly supports the following findings of the commission: “The facts in this case disclose that claimant had previously suffered at least one incident which led him to suspect that he suffered a coronary involvement. We find the evidence supports the conclusion that claimant’s breakdown stems from natural progression of disease as opposed to the result of strain or debilitating working conditions. The facts also disclose that claimant suffered at least one coronary episode subsequent to date of alleged injury, and this while he was at rest. The most that can be said relative to events of February 3, 1956, the date claimant alleges the suffering of accidental injury, is that claimant was beset by chest pains and as a result thereof quit work that morning and sought medical advice. The history on onset of these pains, even in the light of subsequent coronary developments, was not such as to cause testifying physicians to associate claimant’s work with his disability on other than a speculative possibility. We do not deem such to be evidence of a character which will sustain a finding that a casual relation actually exists between claimant’s breakdown and his work. ’ ’

Dr. Goesl, a practicing physician who specialized in diseases of the heart (appellee’s witness) testified: “I have heard the testimony with respect to the particular situation of Mr. Shipp. I believe that his employment had nothing to do with the development of the infarct, and I believe his condition would have developed in spite of the particular employment.” Two other doctors testified (witnesses for claimant Shipp) and both were not in material disagreement with Dr. Goesl. For example, Dr. Baskett testified:

“Q. Can you say with medical certainty what caused Mr. Shipp’s condition? A. No.” Dr. Kittrell, who treated Shipp, also testified to the same effect, and further that most attacks of this nature occurred after a big meal or what would be called rest, which would indicate that probably exertion played no part in the development of these conditions. He also testified: “Q. In your opinion, would that heavy exertion contribute to the condition which he was suffering and aggravate it? A. I wish I could answer it but I don’t think I could answer it honestly. I don’t think anybody would know.”

It appears that Shipp did suffer some heart damage about March 9, 1956 and again in July 1956, however, he was not working for Tanner at either time and was in fact resting on both occasions. Prior to his July attack he had begun working for another employer. As indicated, we hold there was substantial evidence to support the judgment and accordingly it is affirmed.

Mr. Justice McFaddin concurs.