author: George Hose Smith, Justice.

text:
    Shirley Grumlin v. James Gray, et ux
    5-4892
    439 S.W. 2d 290
    Opinion Delivered April 14, 1969

      Franklin Wilder for appellant.
    (No brief filed for appellees).
   George Hose Smith, Justice.

This is a petition filed by the appellant, Shirley Grumlin, against her former husband, the appellee Janies Gray, by which Mrs. Grumlin seeks to regain the custody of their four children. Three of the children are girls, the oldest now being fourteen years old. The youngest child is a boy of seven. Mrs. Grumlin appeals from an order by which the chancellor refused to disturb an earlier order vesting custody in the father.

Our review of the record convinces us that the preponderance of the testimony is clearly in Mrs. Grumlin’s favor. Inasmuch as our decision in this case is not apt to be of marked value as a precedent, no two child custody cases being alike, we shall not attempt to narrate all the facts in detail.

The original divorce decree is not in the record. It appears, however, that the appellant was awarded the divorce in the State of Texas in 1963. The decree vested the custody of all four children in the mother. The father, either then or later on, was directed to pay $25 a week for the support of the children.

After the divorce proceeding the appellant moved to California with the children. For some time she supported the children herself, with practically no assistance from the appellee. In December of 1965, however, the appellant was afflicted with a serious disease and was no longer able to work. She had no recourse except to send the children to their father in Fort Smith, Arkansas, bat she explained in a letter to Gray that she was not giving up the children permanently and wanted to have them hack if she should regain her health and he able to take care of them.

After the children arrived in Fort Smith the appellee went to the chancello]' and obtained an order terminating his obligation to make support payments. In the same order the court, without notice to the mother, vested the custody of the children in the father. We mention the fact that there has apparently never been any judicial finding that Mrs. Grumlin is unfit to have the children in her care.

By 1967 Mrs. Grumlin liad married her present husband, had completely recovered from her illness, and had begun her efforts to regain the children. For a year or so she lived in Ohio, but her former husband was not co-operative either in permitting her to communicate' with the children or in facilitating her efforts to have them visit her. Eventually Mr. and Mrs. Grumlin moved to Fort Smith, where they apparently intend to make their permanent home. Upon the record there can be no serious suggestion that Mrs. Grumlin has abandoned her children or that her steadfast devotion to them has wavered.

At the hearing in the court below the proof indicated that it is to the best, interest of the children that their custody be transferred to their mother. The children have not fared too well while they have lived with their father and his present wife. The home, is cramped for space. Both Mr. and Mrs. Gray are employed. The four youngsters are looked after during the day by the present Mrs. Gray’s two children by a former marriage, neither of whom seems to be an ideal person to stay with the young Grays. The Gray children are also decidedly in need of dental care, one of them having eleven cavities in her teeth at the time of the hearing.

Mrs. Grumlin lives with her mother in a home that appears to be a desirable place for the children to live. At the. time of the trial Mrs. Grumlin was not working and was free to look after the children during the day. Grumlin is employed and is able to support his wife’s family. The couple attend church regularly.

We are convinced by the record before us, as we. said at the beginning, that custody should be vested in the mother. It should be added that in reviewing the case we have been greatly handicapped by having no information about the reasoning that led the chancellor to deny Mrs. Grumlin’s petition. The chancellor stated his ultimate conclusions in a letter-opinion to counsel, but lie did not detail the factual basis for his decision, lie did say — and this is perhaps a clue to his thinking— that he had talked with the children privately in chambers and had reviewed a Welfare Department report, which is not in the record. We can attach no weight, however, to undisclosed information that rests only in the breast of the trial judge. The difficulty is not only that the litigants have no opportunity to rebut such matters, but also that it is impossible for this court to review a case on any basis except the evidence in the record. Walker v. Eldridge, 219 Ark. 594, 243 S.W. 2d 638 (1951).

The decree must be reversed and the cause remanded for the entry of a decree vesting custody of the four children in Mrs. Grumlin, with reasonable visitation privileges in Mr. Gray, and for such further proceedings as may be appropriate.

Jones, J., dissents.


source: Caselaw Access Project

author: Lyle Brown, Justice.

license: Public Domain

text:
    Rose Marie McClain v. Glenn Anderson and Rose Marie McClain v. Bill J. Short
    5-4856 and 5-4857
    439 S.W. 2d 296
    Opinion Delivered April 14, 1969

      Carl M. Harness for appellants.

      Putman, Davis & Bassett for appellees.
   Lyle Brown, Justice.

These are two separate slander actions instituted by Bose Marie McClain, appellant here, against appellees Glenn Anderson and Bill J. Short. The actions were consolidated on appeal. Appellant was a teacher and appellees were members of her school board. The allegedly slanderous remarks were made during the course of a meeting between the school board and appellant. The trial court granted appellees’ motions for summary judgment on the grounds that the remarks in question were at least conditionally privileged and would require a showing of malice as a basis for recovery; and that there was no evidence from which a jury could find malice. Appellant contends that any privilege which existed is shown by the record to have been abused and sufficiently to make a jury question.

In ascertaining whether there is a genuine issue as to any material fact we view the proof in the same light as if it were a motion for a directed verdict. Russell v. City of Rogers, 236 Ark. 713, 368 S.W. 2d 89 (1963). The deposition of Mrs. McClain was considered by the trial court and we summarize the essential contents in the light most favorable to her:

She is a graduate of the University of Arkansas and her five years teaching experience has been at Greenland, Washington County. She was discharged about. April 15,1967, and consequently missed the salary checks ordinarily due under her contract for the following three months. Superintendent Watson, Mr. McClain, and the members of the school board were present at the special meeting called for the purpose of giving appellant a hearing. There the superintendent made the statement that she was being discharged; and there, followed a general discussion. Appellee Short stated Mrs. McClain had entered the superintendent’s office under false pretenses and read the minutes of the previous board meeting. Appellee Anderson stated that appellant could not take orders and also caused dissension and uproar among the teachers. Both men appeared to be angry and upset when they made those statements. Sometime prior to April 15 appellant asked the superintendent to permit her to read the minutes of the previous board meeting. He refused but he discussed with her the contents of the minutes insofar as they related to her. Subsequently and at a time when the superintendent was out of town, she went to his office and asked the secretary’s permission to use the telephoue in Watson’s private office. While using the telephone she noticed the minute book on a table and read the minutes made of the March meeting. She subsequently discussed the contents with some of the teachers. It was not uncommon for teachers to read the minutes when a question of policy arose. The teachers often used the superintendent's telephone and Mrs. McClain stated that was her real reason for entry at the time mentioned. At the board meeting she asked to express her opinion as to her conduct. She concluded from the mannerisms of the board members that they did not care to hear from her. The tempers of the board members flared, as well as her own.

Other matters before the trial court on the motions for summary judgment were the pleadings in the case and the deposition of Bill Watson, the superintendent. The complaints alleged the statements of Short and Anderson to have been false and spoken with malice; and that they were uttered with the intent of impeaching Mrs. McClain’s professional reputation and to expose her to public ridicule. She alleged compensatory and punitive damages. General denials were entered by both defendants; and thereafter each moved for summary judgment. The latter motions asserted that their statements were made during a regular meeting of the school board and were absolutely privileged, and further alleged that the statements as a matter of law did not contain slanderous words.

Superintendent Watson testified that he recommended appellant’s discharge on grounds of insubordination and creating dissension among the teachers. He said the first charge was based on her having read the school board minutes after being instructed to the contrary; and the latter charge arose from appellant’s revelation of the minutes to other teachers. It is evident that the superintendent discussed his information with the board members prior to the meeting. That fact gave ris.e to the statements made to Mrs. McClain by appellees. Watson conceded that the statements were made to Mrs. McClain in answer to her inquiry about, the reasons for her discharge.

Wo agree wit'll the trial court that the statements of the hoard members were conditionally privileged. They were, discharging a public duty in a meeting to discuss reported incidents of misconduct by Mrs. McClain. The reported incidents were germane to a decision on the renewal of her teaching contract. The same setting is found in the facts of Thiel v. Dove, 229 Ark. 601, 317 S.W. 2d 121 (1958). Thiel points out that it is a condition of the privilege that a defamatory statement should not be made by one who knows it to be untrue; also, a speaker who is motivated by malice rather than by the public interest that calls the privilege into being loses the privilege. The privilege can also be lost if the speaker goes beyond what the occasion requires. Bohlinger v. Germania Life Ins. Co., 100 Ark. 477, 140 S.W. 257 (1911) We must examine the depositions in light of those stated principles, resolving all reasonable inferences in favor of Mrs. McClain.

It certainly cannot be said of appellees that they made statements known by them to have been false. Mrs. McClain concededlv entered the superintendent’s private office in his absence; her stated purpose was to use the telephone; and she read the minutes notwithstanding Mr. Watson’s orders to the contrary. It was not unreasonable for Mr. Short to conclude that she entered the office under a pretense of using the telephone. Mr. Anderson allegedly stated that Mrs. McClain could not take orders. The only conclusion we can reach from the evidence is that he was referring to her violation of the superintendent’s direction not to examine the minutes. Anderson is said to have further stated that she "caused dissension and uproar among the teachers.” Mrs. McClain conceded that she discussed the contents of the minute book in the teachers’ lounge with other teachers and the record amply supports resulting dissension.

Whether the statements attributed to appellees were true in all respects is not controlling. It is not disputed that the information they repeated had been conveyed to them in their capacities as school board members. Even had their informants been actuated by malice, such fact would not evidence that, the board members were acting with malice. Odgers, Libel and Slander, 6th Ed., p. 282 (1929). If it be conceded that appellees showed indignation at the alleged misconduct, that fact would not be evidence that they were acting from spite or ill will. Nest., Torts, § 603 a (1938). The most that the record discloses is that Mrs. McClain disobeyed the order of the superintendent and read the minutes of the last board meeting. With the information there obtained she discussed personnel matters with other teachers and sufficient discord resulted to justify a special board meeting. The subject of that meeting was the alleged misconduct of appellant. Having given credence to the information they possessed, appellees adopted it in substance and repeated it as their opinion. The assertions having been made on a conditionally privileged occasion, appellant must then assume the burden of proving the occasion was abused. Rest., § 613 (1) (g), f.; Prosser, Torts 3d Ed. HB, p. 823.

Finally it is argued that malice should be inferred because Superintendent Watson denied appellant her lights under the Freedom of Information Act. Arid Stat. Ann. §§ 12-2801-2807 (Repl. 1968). Assuming that the incident showed malice on the part of Watson, that assumption would not, as pointed out by Odgers, be evidence that the board members acted with malice.

When we consider the matter-of-fact statements alleged are shown to have been based on substantial facts, coupled with a showing of conditional privilege, we hold it then became incumbent on appellant to come forward with evidence, of malice. The trial court held she failed in that respect and we agree.

Affirmed.


author: John A. Fooleman, Justice. Conley Byrd, Justice.

text:
    State of Arkansas v. W. L. Lawrence
    5-5394
    439 S.W. 2d 819
    Opinion Delivered April 14, 1969
    [Rehearing denied May 19, 1969.]

      Joe Purcell, Atty, Gen.; Don Langston, Asst. Atty. Gen., for appellant.

      Aubrey & Goodson for appellee.
   John A. Fooleman, Justice.

Appellee was convicted in Municipal (hurt of Texarkana, Arkansas, of the offense of selling beer to a minor and upon a plea of nolo contendere lie was fined one hundred fifty dollars and costs. Tie appealed this conviction to tlie Circuit Court of Miller County. An additional count of selling beer to a minor was filed against him by information, in the Circuit Court of Miller County. These cases were consolidated fur trial and appellee entered pleas of not guilty. (Subsequently he withdrew the not guilty pleas and entered pleas of nolo contendere. The court found appellee guilty of both charges of selling beer to a minor but refused to assess any fine or imprisonment against him. The court also refused to suspend a beer license held by appellee but which was not involved in the circumstances which resulted in Iris convictions. The court’s order in each case was:

“If is therefore by the Court considered, ordered and adjudged that said defendant is guilty as charged and in view of the financial loss of Defendant’s sale of liquor stores involved in this cause no fine, penalty or punishment is assessed by the Court in this cause.”

This appeal by the state was prosecuted by authority of Ark. Stat. Ann. § 43-2733 (Repl. 1964) which provides the procedure for appeal by the state from a judgment involving a misdemeanor.

The appellant argues that the trial court erred in refusing- to fine and sentence appellee and in refusing to revoke his permit to sell beer and intoxicating liquors after a finding of guilty on two charges of selling beer to a minor. The pertinent portions of the statutes in-’ volved are as follows:

Ark. Stat. Ann. § 48-525 (Repl. 1964) — “It shall be unlawful for a licensee, or for any agent, servant or employee of a licensee... (c) to sell, barter, furnish or giv.e away to any minor under the age of twenty-one (21) years any wine or beer ... Any violation of the provisions of this section shall constitute a misdemeanor and shall be punished by a fine of not more than five hundred ($500.00) dollars and not moro than one (1) year in jail...”
Ark. Stat. Ann. § 48-525 (Repl. 1964) — “Any person convicted of the violation of any provision of this Act [§§ 48-501 — 48-527] which violation is by this Act, defined as a misdemeanor and for which no specific punishment is in this Act provided, shall upon conviction thereof be punished as otherwise provided by law. And if any person so convicted shall be the holder of any permit issued by the Commissioner of Revenues [Department of Alcoholic Beverage Control] under authority of this Act, such permit shall from and after date of such conviction be void and the holder thereof shall not thereafter for a period of one (1) year after the date of such conviction be entitled to any permit for any purpose authorized in this Act.”

Appellant argues that upon a conviction for violation of § 48-524 the trial court is required, by virtue of § 48-525, to revoke any permit issued by the Department of Alcoholic Beverage Control to a person so convicted. Appellee argues that $ 48-525 only applies to those violations of Act No. 7 of 1933 [Ark. Stat. Ann.§§ 48-501—48-527 (Repl. 1964)] for which no specific punishment is provided and this would not include § 48-524. We do not reach the merits of appellee’s argument on this point, however, because we are of the view that the circuit court is without authority to revoke a beer permit issued by the Department of Alcoholic Beverage Control.

Act 159 of 1951 [Ark. Stat. Ann. 48-1301—48-1321 (Repl. 1964)] created the Department of Alcoholic Beverage Control and enumerated its various powers and duties. Section 13 of that Act [Ark. Stat. Ann. § 48-1312 (Repl. 1964)] is as follows:

“All proceedings for tlie suspension and revocation of licenses shall be before the Director, and the proceedings shall be in accordance with rules and regulations which shall be established by the Director and not inconsistent with law. No such license shall be revoked except after a hearing by the Director with reasonable notice to the licensee and an opportunity to appear and defend...”

The language of § 48-1312 is unmistakably clear, “All proceedings for the suspension and revocation of licenses shall be before the Director.. .No such license shall be revoked except after a hearing by the Director...” (emphasis supplied). It is apparent that § 48-1312, which gives the Director of the Department of Alcoholic Beverage Control the exclusive power to revoke or suspend beer licenses, is repugnant to § 48-525 which gives lile circuit court the same power. We said in Hickey v. State, 114 Ark. 526, 170 S.W. 562, “It is a cardinal rule of statutory construction that where two legislative acts, relating to the same subject are necessarily repugnant to and in conflict with each other, the later act controls, and, to the extent of such repugnance or conflict, repeals the earlier act whether expressly so declared or not.” We therefore hold that Ark. Stat. Ann. § 48-1312 (Repl. 1964) repeals, by implication, that portion of Ark. Stat. Ann. & 48-525 (Repl. 1964) which gives the convicting court the power to revoke a permit issued by the Department of Alcoholic Beverage Control to sell beer upon a conviction of the crime of selling beer to a minor. The circuit court, therefore, did not commit error when it refused to revoke the appellee’s beer permit, and in this respect the cases will be affirmed.

We feel, however, that the circuit court was in error when it refused to assess any punishment against appellee upon a judgment of guilty. Ark. Stat. Ann. § 43-2324 (Repl. 1964) allows a judge, upon a verdict of guilty, to postpone the pronouncement of sentence if he deems it best for the defendant and not harmful to society. Ark. Stat. Ami. § 43-2326 (Repl. 1964) gives tlie court the authority to suspend the execution of jail sentences or the imposition of fines or both in all criminal cases. However, it is beyond the authority of a trial judge, upon a judgment of guilty, to simply refuse to assess any punishment. Graham v. State, 1 Ark. 171; Lindquist v. State, 213 Ark. 903, 213 S.W. 2d 895. Since this is the effect of tlie court’s judgments and there was no attempt to either suspend or postpone the sentence, they are reversed.

Since the errors asserted on this appeal are apparent on the face of the record, no objection, exceptions or motion for new trial was required before they could be reviewed here. Williams v. State, 47 Ark. 230, 1 S.W. 149; Hayes v. Hargus, 127 Ark. 22, 191 S.W. 408; Percifull and Wife v. Platt, 36 Ark. 456; Wells v. State, 193 Ark. 1092, 104 S.W. 2d 451. See also Williams v. City of Malvern, 222 Ark. 432, 261 S.W. 2d 6; Thomas v. State, 243 Ark. 147, 418 S.W. 2d 792.

The judgments are reversed as to refusal of tlie court to assess any punishment.

Brown, J., not participating.

Byrd and Holt, JJ., dissent.

Conley Byrd, Justice.

I disagree with that portion of the majority opinion which holds that the circuit court erred in refusing to assess any punishment against the appellee upon a judgment of guilty. All of our cases hold that before this court will review an error of the trial court there must be an objection, a ruling of the court, and an exception saved, Downs v. State, 231 Ark. 466, 330 S.W. 2d 281 (1960). In the record here I fail to find any objection to the trial court’s action in failing to assess a fine against appellee. The complete record before the trial court is as follows:

“by the court:
“First, with respect to Mr. Lawrence, I find that he has been penalized enough by the economics of the situation. He has lost money by having to sell at a loss price than he could have on the open market with a reasonable time for negotiation, at a considerable loss. And I take notice that he has had expense before the Alcohol Control Board, and the Chancellor, and in the Municipal Court, and in this court. I think he has been punished far beyond the severity of the crime, and he is responsible only as an owner, and that’s by a statutory sort of respondeat superior. Would that I could remit some of that, but I cannot.
“Mr. Lurry and Mr. Campbell, I think probably they were negligent, if not .intentionally. • I see no reason to fine them, because I believe and I take judicial notice that Mr. Lawrence would have to pay out any fine that was assessed, which is a business-type thing. And certainly, I see no useful purpose in putting a 70-year-old sick man in the penitentiary or jail, or putting Lantz Lurry in jail. I don’t see that any useful purpose would be served in either instance.
“But whether their actions be intentional or negligent, I am going to keep them both out of the liquor selling business for a year. I am putting you each on probation for a year, the condition of your probation is good conduct, and no sales in any liquor stores. Mr. Campbell can continue to work for Mr. Lacy Lawrence in the present position he occupies. Are there any questions?
“by ]\jr. goodson;
“No sir. There will he a cost factor, I assume.
BY THE COURT;
“I think I wall have to impose costs against the defendants. Although I know Mr. Lawrence has suffered terrific financial loss, there has to bo something. I can’t make the county stand that. Mr. Clerk, will you submit a cost bill?
“BY MR. DENMAN ¡
“Your Honor, do I understand that the court is holding Mr. Lawrence guilty in this case?
“by the court:
“Yes, sir, I have no alternative. There is a plea of nolo contendere; that is in one sense a confession of guilt, and I am adjudicating guilt across the board.
"BY MR. DENMAN:
“I didn’t understand your statement then, sir.
“by the court:
“Yes, sir.
“by mr. denman:
“Then I would call the court’s attention to 45-525, sir, and rule on the permits of Mr. Lawrence.
“by the court:
“The permits will not be affected.
‘ ‘ BY MR. DENMAN :
“Will not be affected?
"BY THE COURT:
“No, sir.
“by mr. denman:
"Save our exceptions, your Honor.
“by the court:
‘ ‘ Very well. If there is nothing further, court will be in recess subject to call.”

The only objection I can find in the- foregoing record lias to do with Ark. Stat. Ann. § 48-525 (Repl. 1964), and the objection there was limited to the trial court’s failure to revoke the permits held by appellee.

This case is a prime example of the necessity for objections to the ruling of the trial court. Had the objection been made, the trial court could have simply assessed a one dollar fine as was done in Lindquist v. State, 213 Ark. 903, 213 S.W. 2d 895 (1948), and could have, under the majority opinion, immediately suspended assessment of the one dollar fine.

Further, I do not agree with the majority opinion that the trial court was in error in refusing to assess any punishment.- The statute here involved (§ 48-524) provides, “Any violation of the provisions of this section shall constitute a misdemeanor and shall be punished by a fine of not more than $500 and not more than one year in jail. .. .” Thus as I read the criminal statute involved the only limitation placed on the court is that the sentence not exceed $500 or more than one year in jail. The case of Graham v. State, 1 Ark. 171 (1837), relied upon by the majority, involved a statute wherein the law declared that on conviction the person convicted should pay a fine not less than $100 and- not more than $200. In holding that a fine of $30 was illegal, we said :

“To what good purpose has the Legislature defined punishment, and prescribed the quantum thereof, if the courts and juries are at liberty to disregard the former or, in their discretion, pass the limits prescribed for the latter? • Certainly not any. In this view of the subject, (and we think it is the only correct, view of it which can be taken,) it is -unimportant whether they undertake to mitigate or increase the punishment or fine: the one is as much a departure from the legal standard as the other. The former tends to favor, the latter to oppress, the person upon whom it is to operate. In either case, the law is violated, and public justice impaired or refused.”

The matter of an inadequate sentence is treated in 21 Am. Jur. 2d Criminal Law % 538, p. 518, as follows:

“A sentence of less than the minimum punishment prescribed by statute is no less improper than a sentence in excess of the permissible maximum. It has been held, however, that such a sentence is not void. It is erroneous and subject to correction, but it is not a ground for reversing the judgment on appeal. Nor is it a ground for discharging the prisoner on habeas corpus, except that when an inadequate sentence has been fully served without having been corrected the prisoner is entitled to a discharge, subject to the right of the state to move for entry of a proper sentence pursuant to the verdict of conviction.”

Therefore, even if we overlook the failure of the state to object to the nonassessment of any fine, I can find nothing illegal in the court’s conduct because the statute involved did not fix a minimum fine as was the case in Graham. As I read the record the trial court found Mr. Lawrence guilty of the offense charged and assessed court costs against him. With men of pride, a mere finding of guilt is often the severest of punishment.

The majority opinion suggests that the failure of the trial court to assess “a fine of not more than $500” is error apparent on the face of the record which does not require an objection. My search of the authorities shows that the method for correcting an inadequate sentence is by a timely motion in the trial court or by appeal from an adverse ruling on such motion, Spanton v. Clapp, 78 Idaho 234, 299 P. 2d 1103 (1956). This would appear to be the proper method or otherwise the keeper of the prisons could ignore the sentence set forth in the judgment of conviction and keep the prisoner for the minimum time set forth in the statute under which the prisoner stands convicted.

Furthermore, Ark. Stat. Ann. § 43-2736 (Repl. 1964), provides that a misdemeanor judgment “.. . shall only be reversed for errors of law apparent on the record to t lie prejudice of the appellant. ’ ’ Even if I should assume that the majority is correct in interpreting the statutory phrase of “not more than $500” as also including a minimum fine, it becomes obvious that such minimum could be as small as one cent — he. less than the cost of the postage stamp necessary to get the Attorney General’s approval, Ark. Stat. Ann. § 43-2733, (Repl. 1964). The record here shows that the trial court would be reluctant to enter more upon a remand and might even suspend the payment of that. Under the circumstances there can be no prejudice to the State which would call for a reversal.

Holt, J., joins in this dissent.


author:
J. Fred Jones, Justice.
      John A. Foureman, Justice.

text:
    The Glens Falls Group Insurance Company v. James M. Simpson
    5-4861
    439 S.W. 2d 292
    Opinion Delivered April 14, 1969
    Reinberger, Eilbott, Smith & Staten for appellant.
    Bridges, Young, Mattheius & Davis for appellee.
   J. Fred Jones, Justice.

This is an appeal by The Glens Falls Group Insurance Company from an adverse judgment of the Jefferson .County Circuit Court awarding medical payments to James M. Simpson under a medical endorsement to an insurance policy issued to Eosswood Country Club.

It was stipulated that the appellee, Simpson, and three companions had played several holes of golf at the Eosswood Country (dub when it commenced to rain. As they made their way to the shelter of the clubhouse, appellee stopped under the cover of a large tree where he was struck by lighting and sustained injuries resulting in medical expenses amounting to $186.65.

The appellee filed claim for medical expenses under the provisions of the policy. The appellant insurance company denied coverage under the policy and refused payment. The appellee filed suit in the Municipal Court of Pine Bluff where judgment was rendered for the insurance company. The circuit court, on appeal, reversed the judgment of the municipal court and rendered judgment for the appellee Simpson. On appeal to this court the appellant, Glens Falls, designates the following points for reversal:

“The injuries sustained by the appellee were not caused by accident and did not arise out of the ownership, maintenance or use of the insured premises by the Eosswood Country Club and that there is no coverage under the policy issued by the appellant.
That at the time of the incident described in the complaint, appellee was participating in a sport and such activities are clearly excluded from coverage under appellant’s policy.”

The point actually involved in this case is whether the insurance contract insured the named insured, Eosswood Country Club, against its own liability or whether it insured the members and guests of the club against medical expenses incurred because of accident arising out of ownership, maintenance or use of the club premises.

Apparently the entire insurance contract was not made a part of the record in this case and the copy of the endorsement that is before us, is on printed form obviously designed more for individuals rather than country clubs as named insureds.

Under its first point appellant argues that it properly denied coverage under the language of the insurance policy “Insuring Agreement” which states:

“The company agrees with the named insured to pay all reasonable expenses incurred within one year from the date of accident for necessary medical, surgical and dental services, including prosthetic devises, and necessary ambulance, hospital, professional nursing and funeral services, to or for each person who sustains bodily injury, sickness or disease, caused by accident and a,rising out of the oivnership, maintenance or use of premises by the named insured and the ways immediately adjoining, or operations of the named insured, subject to the following provisions.” (Emphasis supplied.)

Accident has acquired the meaning of a happening or event out of the usual order of things or not reasonably to be anticipated. Webster defines it as “an event that takes place without one’s foresight or expectation; an event which proceeds from an unknown cause, or is an unusual effect of a known cause, and, therefore, not expected”; and Bouvier defines it as “an event which, under the circumstances, is unusual and unexpected by the person to whom it happens.” Bouv. Law Dict, vol 1, p. 51. See Appleman, Insurance Law and Practice, vol. 1A, § 391, footnote 12, p. 20.

The policy endorsement does not define the term “accident” as used in the policy and injury by lightning is-not excluded. We conclude, therefore, that the trial court did not err in holding that the appellant’s injury was caused by accident.

As to the principal issue, it is noted that “the company agrees with the named insured to pay” (not the expenses the named insured is required or obligated to pay), but “all reasonable expenses incurred... to or for each person who sustains bodily injury, sickness or disease, caused by accident arising out of the ownership, maintenance or use of premises by the named insured.” (Emphasis supplied.) Did the accident here arise out of the ownership, maintenance or use of the premises by the named insured f We are of the opinion that there was some substantial evidence to support the trial court’s decision that it did.

The named insured owned, maintained and used the premises as a golf course where the appellee’s accident occurred, and there is no evidence that appellee would have been on the premises had the named insured not been using the area for a golf course. There is substantial evidence that appellee’s injury arose out of the club’s use of the premises as a golf course. There are fifteen exclusions from coverage set out in the policy endorsement and being struck by lightning is not one of them. When the endorsement is examined for coverage in the light of the specific exclusions, it is difficult to determine what is covered under the endorsement if appellee’s medical expenses are not.

As to appellant’s second point, exclusion (b) under the endorsement provides as follows: This insurance do.es not apply:

“to bodily injury, sickness, disease or death sustained by any person practicing, instructing or participating in any physical training, sport, athletic activity or contest, unless this exclusion is specifically stated to be inapplicable.”

The appellee did not sustain his injury while practicing, instructing or participating in any physical training, sport, athletic activity or contest, he sustained Ms injury while standing under a tree. He was not struck by a golf ball he was struck by lightning. He had been participating in a golf game, otherwise he would not have been under the tree on the premises owned, maintained and used by the club as a golf course. We find appellant’s second point without merit.

Liability insurance is distinguished from accident insurance in 44 C.J.S. 474 as follows:

“... [Liability insurance is a variety of accident insurance, but it is distinguishable from accident insurance in that accident policies, strictly speaking cover accidents happening to the person of insured. While liability policies cover accidents to others than insured, provided insured stands in such relation to the person accidentally injured or killed as to be legally liable for the result of the accident.” (Emphasis supplied.)

The law is well settled in Arkansas that ambiguities in, and uncertainties as to the meaning of, the terms used in insurance policies will be interpretated most favorably to the insured and against the insurer who drew the contract. Hope Spoke Co. v. Maryland Casualty Co., 102 Ark. 1, 143 S.W. 85 and the numerous other cases listed in 10A West’s Ark. Digest. 146.6.

The judgment of the trial court is affirmed and appellee’s attorney is awarded an additional fee in the amount of $300.00.

Affirmed.

Harris, C.J., not participating.

Pogleman, J., dissents.

John A. Foureman, Justice.

I readily agree with {lie majority that appellee’s having been struck by lightning was caused by accident. I feel that the majority have totally ignored the fact that them is an additional requirement to bring an accident within the coverage of the policy. The injury must have been ‘ ‘caused by accident and arising out of the ownership, maintenance or use of premises by the named insured and the ways immediately adjoining, or operations of the named insured ...” The majority does not explain how being struck by lightning arises from the ownership, maintenance or use of the premises by Rosswood Country Club or the operations of Rosswood Country Club, nor does it cite any authority, even though it says it finds substantial evidence that it did. If appellant had been struck by a golf ball or if he had been struck by a golf cart propelled by a fellow golfer, I could readily say that he had suffered injuries caused by an accident and that they had arisen out of the use of the premises or the operations conducted thereon by Rosswood Country Club. I am incapable of understanding how it can be said that the lightning bolt, or its striking Simpson while lie was on the golf course, arose in a manner to bring this claim within the coverage of the policy.

An accident arising out of the ownership, maintenance or use of premises or operations certainly contemplates an accident immediately identifiable with ownership, maintenance or use of the premises or operations by the named insured. "While I do not know of any case in which we have treated the particular question in Arkansas, it has been treated in other states. The logic of my position is so well stated in some of these cases that I prefer to refer to some of them, rather than to further' expound upon the subject.

In National Union Fire Insurance Company of Pittsburgh v. Bruecks, 179 Neb. 642, 139 N.W. 2d 821 (1966), the driver of an automobile was injured by the accidental discharge of a loaded gun in the hands of a minor passenger who was being transported home after a hunting trip. The insurance policies in question afforded coverage for “* * * bodily injury * * * arising out of the ownership, maintenance or use * * * of the * * * automobile.” The following are excerpts from the opinion in that case:

‘ ‘ * * * The gun did not discharge as a result of being in the vehicle or for any reason even remotely connected with the vehicle. It seems clearly apparent that the tort action is not premised upon any connection with the automobile in which the shooting occurred, except as describing the situs of the act.
* * * It seems patent, however, that some causal relation must exist between the injury and the use of the vehicle to come within the ambit of ‘arising out of the use of a vehicle.’ Many courts have found a causal relation to exist if the use was connected with the accident or the creation of a condition that caused the accident. The proximate cause of the injury here was the discharge of the gun. Was the discharge of the gun during the use of the automobile a sufficient connection with its use to be within the coverage provided by the ‘ arising out of the use ’ clause of the Allstate and St. Paul policies? To put it another way, we must determine whether the fact that Scott Campbell was riding in the automobile at the time of the accident, making the automobile the situs of the accident, constitutes the accident one ‘ arising out of the use of ’ the automobile, or, if not, whether it constitutes the creation of a condition that caused the accident within the terms of the policy. In this connection, it may be pertinent to observe that the injury could never have happened if Scott Campbell had not had a loaded gun in his possession in the automobile. The accident could just as readily have happened in the Bruecks’ living room if Scott Campbell had carried the gun into the Bruecks’ home. * * *
* * * The words ‘arising out of the use’ are very broad, general, and comprehensive terms, and are ordinarily understood to mean originating from growing out of, or flowing from. See Schmidt v. Utilities Ins. Co., 353 Mo. 213, 182 S.W. 2d 181, 154 A.L.R. 1088.”

In London & Lancashire Indemnity Company v. Duryea, 143 Conn. 53, 119 A. 2d 325 (1955), the Supreme (hurt of Errors of Connecticut said:

“ * * * By the plain terms of the policy, the plaintiff agrees to pay on behalf of its insured all sums which the insured may become obligated to pay by reason of the liability imposed upon her by law for damages ‘because of bodily injury, including death at any time resulting therefrom, sustained by any person or persons, caused by accident and arising out of’ the hazard covered in the policy. That hazard is defined as the ‘ownership, maintenance or use’ of the described premises for a restaurant which includes, though it is not expressly so stated, the sale of intoxicating liquor. The decisive words are ‘caused by accident and arising out of.’ It seems obvious that these words modify ‘bodily injury, including death * * * resulting therefrom. ’ The bodily injury must be ‘caused by’ accidental and intentional means. 7 Appleman, op. cit., § 4312. So far as the instant case is concerned, it must arise out of the sale of intoxicating liquor. The words ‘‘arising out of” mean ‘caused by.’ Larke v. John Hancock Mutual Life Ins. Co., 90 Conn. 303, 309, 97 A. 320, 322 L.R.A. 1916E, 584; Jacquemin v. Turner & Seymour Mfg. Co., 92 Conn. 382, 384, 103 A. 115, L.R.A. 1918E, 496; Allen v. Travelers Indemity Co. 108 Vt. 317, 323 187 A. 512.”

I can add nothing to the clear expressions of these two courts.

I find no ambiguity. I agree with the rule of construction of insurance policies against the insurer where there is an ambiguity. I do not believe that the courts can import an ambiguity for the purpose of construing the policy against the insurance company. T would reverse the judgmeut of the circuit court and dismiss the cause.


author: Conley Byrd, Justice.

text:
    Wilson Wood d/b/a Ola Milling Company v. Yates-American Machine Company, et al
    5-4868
    439 S.W. 2d 307
    Opinion Delivered April 14, 1969

      Parker & Parker for appellant.

      Lmos & fíchulge for appellees.
   Conley Byrd, Justice.

Appellant Wilson Wood doing business as Ola Milling Company appeals from a circuit court order refusing to set aside a default judgment. for unavoidable casualty. The record shows that the default judgment was signed by the trial court April 25, 1968, dated April 26, and filed with the clerk on May 9. On August 13, 1968, appellant filed a motion for new trial alleging that the judgment was entered without notice and at a time when his counsel was ill. The verified motion also set up that appellant had a valid defense and counterclaim. Appellees’ unverified response merely denied that appellant was without notice of the trial date and denied that appellant’s counsel was prevented from being present or having a representative present by unavoidable casualty.

The trial court’s order of August 29, 1968, recites the matter came before the court on the motion and the response. From the motion and response, the trial court found that appellant had notice of the hearing, that his attorney had notice of the hearing and was not prevented from being present at the hearing because of unavoidable casualty. We find nothing in the record to support the findings of the trial court nor docs appellee point to any portion of the record which would sustain such findings. We pointed out in Thweatt v. Knights & Daughters of Tabor, 128 Ark. 269, 193 S.W. 508 (1917), that the illness of a party’s only counsel constitutes unavoidable casualty or misfortune for purposes of preventing a default under Ark. Stat. Ann. § 29-506(7) (Repl. 1962).

To avoid the effects of the Thweatt case appellees contend that the appeal is not filed within the time limited by Ark. Stat. Ann. § 27-2106 (Repl. 1962), and that because of appellant’s failure to properly respond to a request for admissions, appellant now has no valid defense, counterclaim or cross-complaint.

Appellees’ contention that the appeal is out of time because of Ark. Stat. Ann. §§ 27-2106.3—27-2106.6 (Supp. 1967) is without merit. See Old American Life Ins Co. v. Lewis, 246 Ark. 321, 438 S.W. 2d 22 (1969).

The record with respect to the request for admissions shows that appellees served on appellant’s attorney a request for admissions dated Sept. 22, 1967. The request for admissions was not answered until appellees moved for a summary judgment on Oct. 20, 1967, at which time answers were filed over the signature of appellant’s counsel. The request for admissions here, like the request for admissions in B. & P., Inc. v. Norment, 241 Ark. 1092, 411 S.W. 2d 506 (1967), failed to specify the time within which the request was to be admitted or denied

In B. & P., Inc. the trial court accepted the facts set forth in the request for admissions as admitted, and we held that this was a matter within his discretion, although it was pointed out that under certain circumstances a trial court did not abuse its discretion in permitting the request to be verified by the party before trial. See Kingrey v. Wilson, 227 Ark. 690, 301 S.W. 2d 23 (1957).

Here, however, as distinguished from B. & P. Inc., supra, the record does not show that appellant has had an opportunity to explain why the answers to the request for admissions were signed by his counsel instead of himself or an opportunity to make the request for personal verification that was permitted in Kingrey v. Wilson. All that we hold here is that on this record we cannot rule that the facts are admitted until such time as the parties have had an opportunity to be heard and the trial court has made an actual ruling on the request for admissions.

Since there are no facts in the record to sustain the trial court’s finding that both appellant and his counsel had notice of the hearing and that appellant’s counsel was not prevented from being present because of illness, we reverse and remand the matter to the trial court for hearing upon appellant’s motion for new trial.

"Reversed and remanded.


text:
    Arkansas State Highway Commission v. T. Q. French
    5-4875
    439 S.W. 2d 276
    Opinion Delivered April 14, 1969

      Thomas B. Keys & Virginia Tack el for appellant.

      Guy TI. Jones & Phil Strati on for appellee.
   Conley Byrd, Justice.

The Arkansas State Highway Commission appeals front a Chancery Court order holding that appellee T. Q. French is the owner of a strip of land 10 feet in width, adjacent to the east side of Highway 65 in the town of Bee Branch, Arkansas. The Highway Department claims the land by virtue of a 1928 county court condemnation order fixing the right of way 40 feet in width either side of a center line. For reversal, the Highway Department relies upon the following points:

1. The trial court erred in not dismissing French’s injunction action because the undisputed testimony showed that , he had knowledge of the Highway Department’s claim for more than one year (Ark. Stat. Ann. § 76-917) ;

2. The trial court was in error in ruling that French had no notice of the taking by the county court order;

3. The trial court erred in ruling that French was not estopped by his' acquiescence and actions indicating acquiescence in the state’s claim to the strip of ground upon which the state acted to its detriment in letting a contract for construction.

The record shows that subsequent to the county court condemnation order the Highway Department graded and graveled Highway 65 through Bee Branch, pursuant to job no. 843. Sheets no. 8 and 9 of the plans for job no. 843 show a right of way 40 feet in width either side of a center line up to station 608 and 30 feet either side of a center line from station 608 to approximately station 623 plus 88.7. Quitman Road is shown as being at station 610 and the post office, at that time, as being between stations 615 and 620. French’s store is between station 608 and the post office. The paving of Highway 65 in Bee Branch was done in 1934, job no. 8178. Sheet no. 23 of job no. 8178 shows right of way 40 feet in width either side of a center line up to station 608! The right of way from station 608, to the post office, the latter being at station 619+26.8, is shown as being 30 feet either side of a center line except for the portion immediately in front of the post office which is shown as being 26 feet west of the center line. The latter sheet also shows that the pumps on the G. W. French filling station are located on the highway right of way as drawn by the plan.

Thomas Q. French testified that he was 64 years of age and that he was -working for his father when Highway 65 was put through in 1928 — that his father had been in business there ever since 1900 and that the gasoline pumps were put in before the highway was graveled. According to Mr. French there was an ¡existing road through the town of Bee Branch at the time the highway was graveled in ’28. Following the paving of the road in 1933 or ’34, he built a concrete apron in 1938 out to the roadway. About a year before the filing of the suit the highway department notified him that his pumps were on the right of way and requested him to move the same. In answer to questions by the court he testified as follows:

“Q. Now you have stated that Mr. Elledge’s letter to you dated June 19, 1967 represented substantially what you and he had discussed, you did then at one time agree with him that you would move these two independent pumps farther east?
“A. 1 told him I would, but I never did say when, I didn’t tell him exactly when.
££Q. Bid that have anything to do with one of the inducements for the Highway Department to make a decision to keep the highway going through town rather than having it bypass town?
££A. You mean—
££Q. Was that an inducement to the Highway Department to help them decide to go through town?
££A. Not at that time, they had already decided.
“Q. Well, what did you imply by your agreement with the Highway Department that you would move these two pumps east? What were your intentions about it?
“A. "Well, I was trying to liold them there and see what I could do. I didn’t know whether they owned the right of way they were talking about and I finally cheeked that they didn’t.”

Mr. French said he did not know about the county court condemnation order until two months before the trial nor was he aware of any entry ever having been made on his property.

Witnesses on behalf of the Highway Department testified that Mr. French had promised to move the pumps and that in reliance thereon they let a contract to McGcorge Construction Company in which they obligated federal funds, after certifying that the right of way had been cleared of all obstructions. The State’s witnesses did not contend that notices had been served in connection with the entry of the county court condemnation order or that claims for compensation had been filed by Mr. French or his father, a predecessor in title. These witnesses also testified that the highway was originally programed to bypass Bee Branch but, at the request of the citizenry through appellee’s present counsel, then an employee of the Highway Department, a meeting was held at Bee Branch. At that time the I Eighway Director explained that the only way the highway could be changed to come through Bee Branch was for the people to pay for the removal of all utilities, building's and all right of way. Following that meeting, however, the ITighway Department worked out an arrangement whereby the highway would go through Bee Branch and all the additional right of way required for the construction would be taken from the west side of the highway. Pursuant to this plan, an additional 20 feet was acquired on the west side of the highway and the Highway Department admittedly paid for acquisition of this property and removal of the obstructions therefrom.

'Subsequently another meeting was held between Mr. French and Mr. Gray, an employee of the Highway Department, at the home of Iluten McKim. Air. A'fcKim says that the discussions centered around a service station on the west side of the road belonging to a Air. Ethridge. AVith reference to the meeting at Air. ATcKim’s home, Air. Gray testified as follows:

“AA'ell, like 1 say this meeting was at his house and then in relation to this other service station as Air. McKim related, but vTe had worked out a method that was acceptable to the Bureau of Public Roads and our planning division, wherein if we could bring the alignment a little bit further to the west and take the right of way from the west and maintain the right of way that we had on the east that we would construct it through the town with the curb and gutter section, so that is what T went up to discuss with them, and the people involved on the. west side we. contacted as many of them as we could that day and told them what our proposition would be and I talked to Air. French and told him how the situation would affect him and I advised Air. French that his pumps were encroaching and that they would have to be set off of the right of way. Air. French advised me that he understood that and that wasn’t any concern if we were going to get the Highway through Town because he was planning at that time to acquire additional property and he was concerned about the 92 that came in there because he had plans for some sort of business there.”

Mr. French acknowledges the meeting with Air. Gray at the McKim home and in answer to a question as to what they talked about, said:

“AA'ell, he was trying to get a right of way through Bee Branch, and he wanted to take ten feet on each side, he said, of the highway. AVell, he couldn’t rlo any good on the east side getting people to go along with him, so lie came up there aud said £T have decided to take twenty feet on the west side of me and pay all of the property owners for their properties.’ ”

POINT 1. Appellant argues that French knew more than a year prior to the filing of the injunction suit that the Highway Department was claiming the right of way involved and that because of this knowledge French is barred by the one year statute of limitations set out in Ark. Stat. Ann. § 76-917 (Repl. 1957). We find this contention to be without merit. See Greene County v. Hayden, 175 Ark. 1067, 1 S.W. 2d 803 (1928), and Hot Spring County v. Fowler, 229 Ark. 1050, 320 S.W. 2d 269 (1959). As we read these decisions the one year statute of limitations does not begin to run against a property owner until he is served with notice by legal process or until an entry is made by the condemning agent.

POINT 2. In Arkansas State Highway Commission v. Anderson, 234 Ark. 774, 354 S.W. 2d 554 (1962), we pointed out that property could not be condemned without first giving the land owner notice so that he could have his day in court on the issue of compensation. We there held that the burden of proving that proper notice was given was upon the condemning agency.

Under the record here there was no evidence of any notice by legal process served upon Mr, French or his father. TTnder these circumstances the Highway Department had the burden of showing an entry upon the French property which would amount to notice. TTnder the proof here we believe that the Highway Department failed to sustain its burden of proof. The record shows that Bee Branch in 1928 was a town with stores on both sides of the street and with the street running from porch to porch. The further proof is that the pumps in issue here were in existence at the time the highway was constructed and that use of the pumps was not interfered until by the highway construction.

Furthermore the county court condemnation order is typical of the orders entered at that time. The right of way was described as extending from station to station and for a certain distance on either side of the center line, and is unintelligible to any one, except perhaps an engineer, -without the aid of the plans and specifications on file in the Highway Department. Had Mr. French seen plans prepared in connection with the jobs 843 or 8178, he would have found that the right of way in front of his business was only 30 feet in width on either side of the center line instead of the 40 feet now claimed by the State. Upon the whole record the evidence preponderates in favor of the Chancellor’s findings that Mr. French had no notice either hv legal process or through entry.

POINT 3. Under this point, the State argues that appellee along with the other citizeus of the town of Bee Branch made overtures to representatives of the Highway Department to secure the routing of the highway through the town instead of around the town as planned by the Highway Department. They contend that at these meetings Mr. French was present, was aware of the State’s claim of right to the 10 foot strip, acquiesced in the State’s claim and permitted the State to rely upon such acquiescence until the State acted to its detriment by issuing a contract for the highway construction through Bee Branch. In Watson v. Murray, 54 Ark. 499, 16 S.W. 293 (1891), he held that the burden is upon one who relies upon an estoppel to establish the facts relied upon as creating it.

Without deciding whether the facts upon which the State relies would create an estoppel, we point out that French denied that he knew the Highway Department was claiming the disputed strip. Under this state of the record we are unwilling to hold that the. Chancellor’s finding contrary to the State’s position is against the preponderance of the evidence.

Affirmed.


author: Prank Holt, Justice . George Rose Smith, J.,

text:
    Charles Parrott v. State of Arkansas
    5-5393
    439 S.W. 2d 924
    Opinion Delivered April 14, 1969
    [Rehearing denied May 12, 1969.]

      Drew & Holloway for appellant.

      Joe Purcell, Atty. Gen.; Don Langston, Asst. Atty. Gen., for appellee.
   Prank Holt, Justice .

The appellant was charged by information with the crime of robbery. A jury found him guilty and assessed his punishment at 12 years imprisonment in the State Penitentiary. Prom the judgment on that verdict comes this appeal. On appeal appellant first questions the validity of all proceedings preliminary to his trial of the alleged offense.

At about 10 a.m. on February 15, 1968, the bank in Hartford, Arkansas was robbed of approximately $5,-000 by two masked gunmen. While in the bank their general appearance was observed' by two women employees and a male official of the bank. When the two robbers left the bank, one -was observed to walk with a noticeable, peculiarity or a “dragging” of his right foot. Their “get-away” car was parked on the street near the bank. Their departure was observed through the bank window. An accurate description of the automobile and its license number were noted. Tbe appellant was observed as tbe driver of tbe car. Tbe witnesses in the bank were able to see his profile and features since the masks were removed after entering the car. The “getaway” ear was found a short time later, abandoned and burning' a few miles from tbe scene of the robbery. The robbery was reported immediately to the law enforcement. officials, together with a description of flie robbers and other incidental circumstances. The prosecuting attorney secured from the local justice of the peace a warrant of arrest for the appellant. Late in the afiernoon of the same day of the robbery the appellant was arrested, based upon this warrant of arrest, in Oklahoma, a distance of approximately 90 miles from the scene of the robbery. At the time of his arrest for this alleged offense, the appellant was in the Adair County Jail on a traffic violation for which he had just been arrested. He was then held in that county jail with the. charge of bank robbery placed against him. The next day he was arraigned before a magistrate of Adair County and released upon $5,000 bail. Appellant refused to waive extradition. He was extradited, after a hearing, to the State of Arkansas and placed in the Sebastian County Jail at Fort Smith on March 19, or about a month after his arrest. At the time he was incarcerated in the Sebastian County Jail, his bail was set at $25,000. On March 22, the prosecuting Attorney filed an information direct in the circuit court charging the appellant with the alleged offense. On March 25, the appellant was arraigned in circuit court and bail was set at $50,000. The court later reduced the bail to $35,000 upon appellant’s motion. The trial court then refused to approve the tendered bail on the basis that the bondsman had not complied with the court’s rule which it had promulgated pursuant to Ark. Stat. Ann. § 43-732 (Kepi. 1964). After two hearings before this court, appellant was permitted to make the proffered bail in the sum of $35,000. It appears that he was released on bail pending trial of the case in July.

Appellant has not demonstrated to us any prejudicial error. We find no merit in his contentions relating to the invalidity of any preliminary proceedings. Certainly there was sufficient evidence, and we have only detailed a part of it, as a basis for probable cause in the issuance of the warrant of arrest. Appellant was properly arraigned before, a local magistrate in Oklahoma and bail granted and made the day following his arrest. The proper procedure was followed in the extradition proceeding. On the date he was extradited and placed in the Sebastian County Jail a bail was set. The prosecuting attorney then filed a direct charge of robbery against the defendant. This procedure is so well established that it requires no citation of authority to support its validity. In the circumstances, appellant was arraigned within a reasonable time before the circuit court and bail was set. When the trial court refused to recognize his surety, the appellant was admitted to bail after application to this court.

The appellant next argues that the court erred in overruling his motion to suppress and quash a “lineup identification.” Appellant urges that his constitutional rights were violated by this procedure and cites several federal cases, including United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967); Stovall v. Denno, 388 U.S. 293, 87 S. Ct. 1967, 18 L. Ed. 2d 1199 (1967); Gilbert v. California, 388 U.S. 263, 87 S. Ct. 1951, 18 L. Ed. 2d 1178 (1967). In the case at bar, appellant’s then counsel was notified of the proposed lineup and was present during the “lineuY) identification” procedure. It appears that certain objections to the arrangement of the lineup were made by appellant’s counsel and the state, made corrections accordingly. We find no violation of appellant’s constitutional rights in the instant case. Further, it appears that this out-of-court identification was not offered by the state. See, Steel v. Slate, 246 Ark. 75, 436 S.W. 2d 800 (1969).

The appellant argues that the testimony of certain witnesses was erroneously permitted and that their teslimony was immaterial and “designed to reflect guilt by inference” and prevented the appellant from obtaining a fair trial. We cannot agree with the appellant. A review of the testimony of these witnesses reflects that it is relevant to the issues in the case. The testimony of these witnesses was clearbg permissible to establish the identity of the appellant and to show circumstances and events that tended to connect him with the commission of the alleged crime. Such evidence has been approved bv us manv times. Keese & Pilgreen v. State. 223 Ark. 261, 265 S.W. 2d 54-2 (1954); Williams, et al v. Stole, 237 Ark. 569, 375 S.W. 2d 375 (1964); Harris v. State, 239 Ark. 771, 394 S.W. 2d 135 (1965); Kurd v. State, 242 Ark. 742, 415 S.W. 2d 61 (1967).

The appellant asserts that the court erred in permitting the introduction and exhibiting of the contents of appellant’s billfold which was taken by search and seizure in violation of his constitutional rights. The appellant complains that it was prejudicial to admit in evidence a receipt found in his billfold which reflected the alias of “Joe Longshore” and indicated that he had paid a traffic fine in that name. This billfold was first taken from the appellant when he was placed in the Adair County Jail for a traffic violation. It was shortly thereafter, and while he was still in jail, that the appellant was arrested on the Arkansas warrant for robbery. We find no error in the introduction into evidence of this receipt since it was incidental to and a product of a lawful arrest Ward v. State, 243 Ark. 472, 420 S.W. 2d 540 (1967). There was competent evidence by witnesses that the appellant had on occasions used the name “Joe Longshore” and the us.e of this name tended to connect and identify him with the commission of the alleged crime of robbery.

The appellant contends that the court, erred in permitting the prosecuting attorney to interrogate the witness, Pat Leatherwood, about her knowledge of appellant robbing two other banks before the alleged robbery of the Hartford bank. The witness stated that she did not know the answer to the question. The trial court sustained appellant’s objections and denied appellant’s motion for a mistrial. We have often held that it is within the sound discretion of the trial court Lo deny a motion for a mistrial and that such discretion will not be disturbed on appeal unless there is a showing of abuse. Briley v. White, 209 Ark. 941, 193 S.W. 2d 326 (1946); Jackson v. State, 245 Ark. 331, 432 S.W. 2d 876 (1968). In the case at bar, the trial court thoroughly admonished the jury to disregard the questions propounded by the prosecuting attorney. We find no abuse by the trial court in the exercise of its discretion. There is yet another reason for a lack of merit to this contention. We have consistently held that an objection must be made, exceptions saved, and the point presented in a motion for a new trial. Keese & Pilgreen v. State, supra; Randall v. State, 239 Ark. 312, 389 S.W. 2d 229 (1965). There is no showing of full compliance with these requirements.

It is appellant’s further contention that the trial court erred in refusing to grant a mistrial because of improper statements made by the prosecuting attorney in his opening and closing remarks. We do not agree. We have reviewed these statements and in our view the state’s attorney fairly outlined in his opening remarks the evidence that would be offered and he then produced it. The closing argument of the prosecutor appears to us to be within the bounds of permissible argument and fairness. The trial court has a wide discretion in supervising the arguments of counsel before juries. Stanley v. State, 174 Ark. 743, 297 S.W. 826 (1927); Bethel & Wallace v. State, 180 Ark. 290, 21 S.W. 2d 176 (1929). In the case at bar the trial court supervised the argument of counsel in a manner of fairness and permitted no manifest prejudice to appellant.

The appellant also asserts that he was prevented from having a fair trial because of “courtesies extended to the jury by the prosecuting attorney, which amounted to undue influence” upon the jury. This argument is directed to the fact that the prosecuting attorney arranged a place for the jurors to eat during the trial. We find no merit in this argument. The town of Greenwood had recently been almost destroyed by a tornado. There was no public eating place available. Nearby was the Greenwood Recreation Hall. These facilities were made available upon inquiry by the prosecuting attorney and the jurors were transported there for lunch on two separate days in the company of the bailiffs. This was done only after the trial court carefully inquired if there were any objections to this procedure and none were voiced. There is no showing whatsoever that the jurors, under these circumstances, were in any manner influenced by this procedure.

The appellant contends that he was prevented from having a fair trial because of the mingling of the witnesses and numerous law enforcement officials among the jurors during recesses of the trial proceedings. The courthouse had been totally destroyed by the tornado and the trial was held in an improvised courtroom in the cafeteria of a school building. The “band room” was used as a witness room since witnesses were placed under “the rule.” The trial court carefully considered the contention of jury misconduct contained in appellant’s motion for a new tidal. The testimony of the jurors was taken on this issue and we agree with the trial court that there was no evidence of any misconduct on the part of the jurors or any of the witnesses or other parties.

Having carefully reviewed all of appellant's assignments of error and finding no merit in them, the judgment is affirmed.

Georue Rose Smith, J., concurs.

George Rose Smith, J.,

concurring. The judgment is rightly subject to affirmance on the merits, but at tlie same time tlie ease presents an appropriate occasion for us to call attention to an aspect of Rule 9 tliat is not infrequently overlooked by counsel. Rule 9 (d) requires that the appellant’s abstract consist of a condensation of such material parts of the record as are necessary to an understanding of the ease. An abstract that is a mere reprint of the record, or of a substantial part of it, may be such a violation of the Rule as to preclude the court from reversing the judgment on its merits. Gray v. Ouachita Creek Watershed Dist., 239 Ark. 141, 387 S.W. 2d 605 (1965).

This case falls in that category. The appellant’s “abstract” includes about 200 printed pages of testimony reproduced verbatim, in question and answer form. Even though the appellant in a felony case is not required to abstract the record, Rule 11 (f), if he undertakes to do so he is expected to comply with our rules. It would be impossible for us to keep our docket current if we were compelled to read mere reprints of the records in the eases submitted for decision. I think that in the long run it would be a disservice to the bar for us not to call attention occasionally, especially in affirming a judgment on the merits, to such a clear-cut violation of Rule 9 as that which occurred in this instance.


author: Carleton Harris, Chief Justice.

text:
    Sentry Insurance Company v. Betty Dean Stuart, et al
    5-4877
    439 S.W. 2d 797
    Opinion Delivered April 21, 1969

      Bet hell, Stocks, Callaway & King for appellant.

      Putman, Davis & Bassett for appellees.
   Carleton Harris, Chief Justice.

This appeal questions the corrections of the ruling of the Washington County Circuit Court in sustaining a demurrer to the complaint of appellant, Sentry Insurance Company, which had filed a suit against Betty Dean Stuart, appellee herein, and Anita D. Peterson, the company’s insured, under a subrogation agreement. Mrs. Peterson Held a policy of automobile insurance with appellant company which provided, inter alia, payment to her for any medical expenses incurred as a result of a motor vehicle collision up to the sum of $1,000.00. Both Mrs. Peterson and Betty Dean Stuart were residents of Fayetteville in Washington County at the time of the events hereinafter set out.

Oil May 17, 1966, in the state of Oklahoma, appellee was driving an automobile in which Mrs. Peterson was riding as a passenger. According to the allegations of the present complaint filed by appellant, Mrs. Stuart, driving into a service station, struck two men, and ran her automobile into a building, resulting in injuries to Mrs. Peterson, who was hospitalized as a result of such injuries, and underwent surgery. The complaint further sets out that Oklahoma has no guest statute, and it is asserted that, under the laws of that state, Mrs. Peterson had a cause of action against Mrs. Stuart for ordinary negligence. Acts on the part of Mrs. Stuart constituting negligence which were the proximate cause of the injuries and medical expenses to Mrs. Peterson, are then set forth with the allegation that appellant’s insured sustained medical and hospital expenses in the sum of approximately $2,713.13.

Pursuant to the provisions of the policy heretofore mentioned, Sentry Insurance Company paid to its insured, Mrs. Peterson, the sum of $1,000.00. Under the policy, Sentry is subrogated to the rights of Mrs. Peterson as to her cause of action for recovery against any person who might be liable for the medical expenses; further, the policy provides that the insured should do nothing after loss to prejudice subrogation rights.

It is further asserted in the complaint that Mrs. Stuart and her insurance carrier, Safeco Insurance Company, were notified by Sentry of its subrogation rights by letter, dated April 6, 1967; thereafter, on August 8, 1967, Mrs. Peterson entered into a settlement with Safe-co, and, as a part of such settlement, Mrs. Peterson executed a general release to Mrs. Stuart. The settlement was effectuated without the entry of a court judgment or the filing of a suit. Sentry prayed that it have judgment against Mrs. Stuart in the sum of $1,000.00, together with costs; in the alternative, the company sought judgment against Mrs. Peterson in the event that it should ho determined that any action on her part destroyed appellant’s right of subrogation against Mrs. Stuart. After filing a separate motion to quash the summons, which was denied by the court, appellee filed her separate demurrer, asserting:

“ (1) That the complaint of the plaintiff does not state facts sufficient to state a cause of action against this separate defendant.
(2) That there is a defect in the parties plaintiff and parties defendant.
(3) That this Court has no jurisdiction over this separate defendant.”

Subsequently, the court entered its order, sustaining the demurrer, finding:

“* * ® that the Oklahoma law applies in this case as reflected in the case of Lowder versus Oklahoma Farm Bureau Insurance Company, decided December 12th, 1967.”

Appellant was given 15 days to plead further, but elected to stand upon the complaint, and the court entered its judgment dismissing appellant’s complaint. From the judgment so entered, Sentry Insurance Company brings this appeal.

■ Appellant asserts that the court erred in its determination of Oklahoma law, and also contends that the present litigation is governed by Arkansas law, rather than Oklahoma law. As to the law in our sister state, appellee concedes that the Oklahoma courts have not yet squarely decided the question of whether, under Oklahoma law, an insurance company can bring a subrogation action against a third party tortfeasor to recover medical payments it has made to its insured. We think the Washington Circuit Court was in error in relying upon Lowder v. Oklahoma Farm Bureau Mutual Insur anee Company, 436 P. 2d 654, as authority for its holding, because the holding in Loivder was predicated on the rule in Oklahoma against splitting a single cause of action.

It is not necessary to determine Oklahoma law to decide this litigation, for it appears that the question of what constitutes splitting a cause of action and its permissibility is a question of procedure, rather than substantive law, and is thus governed by the law of the forum.

I)r. Robert A. Leflar, Distinguished Professor of Law, and a former member of this court, comments on this question in “The Law of Conflict of Laws,” § 61, p. 110:

“There are a number of rules of law which are without much doubt treated as procedural. The question of what is the proper court in which to bring an action, for example, as between courts of law and equity, is always governed by the law of the forum. The same is true of the form of action l.o be brought, the sufficiency of pleadings, the effect of splitting a cause of action, and who are proper or necessary parties to the action.”

In other words, the Oklahoma decision in Loivder was not based on substantive law.

Though we have not passed squarely on the issue of whether the insurance carrier may bring a subrogation ad ion to recover medical payments paid to its insured, the case of Shipley v. Northwestern Mutual Insurance Company, 244 Ark. 1159, 428 S.W. 2d 268, as acknowledged by appellee, clearly indicates that such an action would be permissible. There, this court said:

“In the contract of insurance before us the insured and the insurance company entered info an agreement whereby tlie insurer would be subrogated to any right possessed by the insured to reimbursement of medical expenses from a third party, in this instance a tort-feasor; the contract contained the usual cooperation clause; and it provided that tlie insured would do nothing after loss to prejudice the insurer’s interest under subrogation. In view of those provisions, together with the fact that full medical compensation has been paid by the tort-feas- or, Mrs. Baldwin, the Shipleys are precluded from recovering from Northwestern. [Citing cases.]”

The question has been passed upon by numerous other jurisdictions. An annotation on the subject, “Insurer — Rights Against Third Person,” is found in 92 A.L.R. 2d 97. It is pointed out that subrogation is a normal incident of indemnity insurance, and that no act of the insured releasing the wrongdoer from liability can defeat the insurer’s rights when a release is given without the knowledge or consent of the insurer, and when the wrongdoer has full knowledge of the insurer’s right of subrogation under the contract. Twenty-one states are listed as holding that the insurer’s right of subrogation is not destroyed by the insured’s giving a release upon settlement of the claim. In DeCespedes v. Prudence Mutual Casualty Company of Chicago, Illinois (Florida), 193 So. 2d 224, the court said:

“The plaintiffs argue that the subrogation clause amounts to an attempt to assign a claim for personal injuries, such an assignment being invalid under the common law and not expressly sanctioned by statute. * * *
“The concept of subrogation is distinct from that of a mere assignment. Subrogation is a ‘ creature of equity having for its purpose the working out of an equitable adjustment between the parties by securing the ultimate discharge of a debt by the person who in equity and good conscience ought to pay it * * * a wrongdoer who is legally responsible for the harm should not receive the windfall of being absolved from liability because the insured had had the foresight to obtain, and had paid the expense of procuring, insurance for liis protection; since the insured has already been paid for his harm, the liability of the third person should now inure for the benefit of the insurer.’ 16 Couch, Cyclopedia of Insurance Law, § 61:18 (2nd Ed. 1964).
# * #
“Subrogation serves to limit the chance of double recovery or windfall to the insured, and, when exercised, tends to place the primary liability upon the tortfeasor, where it belongs. See 3 Apple-man, supra, § 1675. So long as subrogation, as applied to this medical pay provision, serves to bar double recovery, it should be upheld.”

In Cleaveland v. Chesapeake & Potomac Telephone Company, 169 A. 2d 446, though the question of an independent action on a subrogation claim was not involved, the Maryland Court of Appeals recognized the general rule as follows:

“The cases and text writers generally take the position that where third parties, who may be liable to an insured for a loss, effect a settlement with the latter and obtain a release from all liability with knowledge of the fact that an insurer has already paid the amount of its liability to an insured, the settlement and release will not bar the assertion of the insurer’s right of subrogation. The reasoning seems to be that such release is a fraud on the insurer and constitutes no defense against it in an action to enforce its right of subrogation.”

We thoroughly agree with the reasoning of the cases cited, and hold that appellant’s cause of action, arising from the subrogation agreement, was not terminated by the release given by Mrs. Peterson.

Appellee apparently recognized that this court might well take the view herein expressed, for her principal argument is directed to the fact that a correct decision of a trial court will not be reversed on appeal even though erroneous reasons may have been given for such a ruling. This is an accurate statement of the law, and we have so held on numerous occasions. Reeves v. Ark-La Gas Company, 239 Ark. 646, 391 S.W. 2d 13. Appellee then points out that, in her demurrer, she raised the objection that there was a defect in the parties plaintiff and defendant, and that, since the issue of whether all necessary parties are before the court is one of procedure, rather than substance, the law of Arkansas determines whether there was a defect in the parties. From her b rief:

“Appellee submits that under Ark. Stat. 27-802 the insured, as assignor of a cause of action not permitted by statute, was a necessary party to this suit and since she was not made a party, appellee was entitled to have the complaint dismissed.”

As mentioned by appellee, in Motors Insurance Corporation v. Coker, 218 Ark. 653, 238 S.W. 2d 491, we held that the insured had not been made a party plaintiff as required by Ark. Stat. Ann. § 27-802 (Repl. 1962), and that it was necessary that this be done before appellant’s suit could be properly maintained.

Appellee overlooks the fact that this defect cannot be reached by a demurrer. Ark. Stat. Ann. § 27-1115 (Repl. 1962) sets out that “the defendant may demur to the complaint where it appears on its face either: * * * [Here the five grounds for filing a demurrer are set out].” The defect relied upon by appellee does not appear upon the face of the complaint. In fact, Mrs. Peterson was named a defendant, and she is mentioned several times throughout appellant’s pleading. The record does reflect, however, that Mrs. Peterson was not served with summons, the docket sheet simply showing “n. serv.” on this defendant. Consequently, appellee’s contention is without merit.

In accordance with the views herein expressed, we hold that the trial court erred in sustaining the demurrer to-appellant’s complaint; the judgment is reversed, and the cause remanded for further proceedings not inconsistent with this opinion.

      The annotation, at Page 147, states:
      “Although voicing some disagreement as to the application and effect of the rule where an element of damage is the subject of insurance, the courts in cases factually within the scope of this annotation topic have generally held that whatever the rule may be in other situations, and even if the rule against splitting a cause of action is applicable to a settlement by the insured short of judgment for a portion of the loss, nevertheless, where a tortfeasor chargeable with notice of an insurer’s rights makes a compromise settlement with the insured to which the insurer is not a party, the tortfeasor either waives his right to invoke or is es-topped to rely upon the rule as a defense to an action by the non-consenting insurer as subrogee. Under such circumstances the settlement is regarded as having been made subject to and with a reservation of the rights of the insurer, and the tortfeasor is deemed to have consented to a separation of the rights of the insured and the insurer, although such rights may originally have been part of a single indivisible cause of action.”
      Seven jurisdictions are listed as supporting this principle. Footnote 17, in part, at Page 148, sets forth:
      “The scope of the present annotation is limited to cases in which an insurer sought to assert subrogation rights against a tortfeasor who had entered into a settlement with the assured. Cases where the insured prosecuted a suit against the tortfeasor to final judgment are excluded, but cases where after settlement a judgment was entered by agreement by way of compromise are included.”

      “27-802. Action by assignee — When assignor must be party. —When the assignment [of a thing in action] is not authorized by statute, the assignor must be a party as plaintiff or defendant.”

      Emphasis supplied.


author: George Rose Smith, Justice.

text:
    Arkansas State Highway Commission v. W. D. Freyaldenhoven et ux
    5-4889
    439 S.W. 2d 791
    Opinion Delivered April 21, 1969
    [Rehearing denied May 19, 1969.]

      Thomas B. Keys and Kenneth R. Brock for appellant.

      Gordon, Gordon & Eddy for appellees.
   George Rose Smith, Justice.

In this eminent domain proceeding the appellant is condemning a right-of-way for Interstate 40 across the appellees’ 300-acre farm, effectively cutting it in two. The jury fixed the landowners’ compensation at $20,000. The only argument for reversal is the Commission’s contention that there is no substantial evidence to sustain the landowners’ claim for severance damages, which necessarily made up the greater part of the jury’s verdict.

The controversy narrows down to the adequacy of an underpass which the condemnor constructed for the landowners’ cattle to use in traveling from one side of the divided highway to the other. There are pastures on both sides. It is an undisputed fact that in the landowners ’ cattle-raising operation the animals must be transferred from one pasture to the other several times a year. If the cattle can be induced to use the underpass, then the severance damages will fall far short of the amount of the verdict. But if the landowners must load their livestock in trucks and transport them to an overpass half a mile away, then the verdict is not excessive.

AVe must uphold the verdict. The landowners requested an underpass ten feet high and ten feet wide, but the highway department engineers merely enlarged a proposed concrete drainage culvert to dimensions of five feet by five feet. This tunnel is 165 feet long and according to the proof is decidedly dark throughout much of its length. AVitnesses for the landowners observed snakes and mud in the tunnel. Freyaldenhoven himself, an experienced cattle raiser, testified that his livestock refused to enter the underpass, which had been completed before the trial. He roped a gentle cow and attempted to pull her through the tunnel, but the animal balked. The jury was shown a photograph depicting that unsuccessful effort. Another cattleman, the witness Grisswood, testified that in his opinion it. would not be possible to force cattle to use the underpass. Two real estate appraisers also expressed that opinion.

The highway department countered that testimony with the opinions of two other real estate appraisers •who thought that the underpass would serve its intended purpose. The department also offered the testimony of a cattle raiser who had a similar tunnel on his property in Clark county. He testified that his cattle had readily learned to use the underpass, though the jury may have doubted his further statement that he had a 1,200-pound work horse that customarily went through the tunnel “even though he had to squat just a little.” From what we have said it is evident that the decisive issue was that of weighing the conflicting testimony of experienced witnesses, all of whom were worthy of belief. IIpon such an issue the verdict is conclusive.

Affirmed.


text:
    Rosalie Tarvin Harris v. Gerald Wayne Tarvin
    5-4884
    439 S.W. 2d 653
    Opinion Delivered April 21, 1969

      Robert I). Ridgeway for appellant.

      Gladys Milham Wied for appellee.
   Lyle Brown, Justice.

To the union of Rosalie Tarvin and Gerald Wayne Tarvin, appellant and appelloe respectively, was born a son, age seven years at the lime of the hearing from which this appeal stems. The parents were divorced in 1964 and the mother was awarded custody of the child, subject to certain visitation rights of the father. On petition of Herald IVayne Tarvin in 1968, the court enlarged his visitation rights and the mother, now Rosalie Tarvin Harris, appeals. Hhe contends (1) that visitation rights cannot be changed without a showing of change in circumstances which would justify a change .of custody; (2) that a change in the visitation period was not pleaded; and (3) that the court abused its discretion in refusing to hear the mother’s testimony.

The father’s 1968 petition asked for a change in custody, alleging changed circumstances and seeking full custody for himself. Alternatively, he asked that he l>e given custody during the school term with the child going to the mother during the three months vacation.

When the father rested his case the mother’s attorney moved that the father’s petition be dismissed for failure to show changed circumstances. Before ruling on the motion the court declared a twenty minute recess. When court reconvened the chancellor announced that the custody order would not he modified hut that the child would be permitted to visit the father for two months during the summer and one week during the Christmas holidays. That ruling constituted a substantial enlargement of the father’s visiting privileges. At that point the mother had not rested her case and she immediately requested that she be permitted to present her evidence. That request was denied.

We can perceive that during the recess period the chancellor may have been advised of the nature of the evidence the mother would introduce; and since he believed that her evidence would not alter the chancellor’s conclusion, he elected not to hear it. Tet if our perception of the occurrence is correct, still we cannot give weight to it because it is not in the record. Absent a valid and recorded reason for refusing to permit the mother to put on her proof we have no alternative but to hold that the court erred. In her pleadings the mother controverted all the allegations made by the father; she announced ready for trial; and she was entitled to the opportunity to produce her evidence. According to the record that right was denied and without an opportunity to make proffer of proof.

Another of appellant’s points is that the modification of visitation rights is not permitted unless there is sufficient change in circumstances to warrant change of custody. With that argument we cannot agree. Visitation rights may be modified upon a proper showing that it is a change to which the petitioning parent is reasonably entitled because of changed circumstances pertinent to visitation; and also, that the welfare and best interest of the child dictate a change. A number of cases approving that rule are found in the 1968 cumulative supplement to Nelson on Divorce, § 15.27 (Rev. 1961).

Finally it is argued that the modification of visitation rights was improper in that the father did not make a specific plea therefore. lie pleaded alternatively that custody be changed to the father and that the mother have the child during summer vacation. That plea placed the visitation privilege in issue. Secondly, the primary consideration of the court is the welfare of the child and its best interest cannot be thwarted by a minor technical error in a pleading, if in fact it did exist.

Appellant inquests this court to award attorney’s foe and costs incident to this appeal. The amount is fixed at $150.00. To enforce his visitation rights in 1968 the father was compelled to sue out a writ of habeas corpus in Gilmer, Texas. Certainty that expense could have been avoided had the mother cooperated. For that reason we have not fixed the amount at a sum which would have been otherwise justified.

For the error indicated the decree is reversed and the cause remanded.