author: Conley Byrd, Justice. J. Fred Jones, Justice.

text:
    Fireman's Insurance Co. of Newark, New Jersey v. Elston Jones, et al
    4489
    431 S.W. 2d 728
    Opinion Delivered September 16, 1968
    [Rehearing denied October 14, 1968.]

      McMillen, Teague, Bramhall & Davis for appellant and appellee (Kemp).

      James E. Stein and Bernard Whetstone for appellees.
   Conley Byrd, Justice.

TMp action was tried upon the theory that the Louisiana tort-feasor’s liability insurance carrier through fraud and deceit lulled the injured parties into a sense of security until Louisiana’s one-year prescription ran on their claim. The carrier, Firemen’s Insurance Company of Newark, New Jersey, appeals from jury verdicts awarding Mrs. Zelma Jones $15,000; her daughter, Paula Jones, $1,000; her husband. Elston Jones, $1,000; and her brother, Jerry Ezell. $5,000. Elston Jones cross appeals on the basis that the $1,000 verdict in his favor is inadequate. Leo Ezell, father of Jerry Ezell, cross appeals, urging that the court erred in failing to enter judgment in his favor for the amount of the jury’s corrected verdict.

The record shows that Mrs. Jones had not more than an eight-grade education and that her parents, Mr. and Mrs. Leo Ezell, had even less education. Mrs. Jones was married at the age of fourteen and had two daughters. The older daughter, Paula, had scoliosis and was being treated by a specialist in Houston.

On July 22, 1965, Mrs. Jones, Paula and Mrs. Jones’ brother, Jerry Ezell, were on their way to Houston to have Paula’s brace adjusted. While stopped at a traffic light in Shreveport, Louisiana, their automobile was hit from the rear by Edgar F. Kemp. Kemp admits having imbibed some alcoholic beverages prior to the collision. The investigating police officer testified Kemp had been drinking. Kemp pleaded qnilty to a charge of reckless driving. Mrs. Jones described him as being drnnk. Kemp admitted liability to both Mrs. Jones and the investigating officer.

Mrs. Jones, her daughter and her brother all received hospital treatment in Shreveport. Mrs. Jones was later transferred by ambulance to a hospital in El Dorado, Arkansas. She was in the hospital again in September, October, February, March, May and July for treatment related to her July 22, 1965 injuries, according to Dr. Moore, her treating doctor.

Mrs. Jones says that while in the Shreveport hospital she was called by Mr. Maddox, one of appellant’s adjusters, who suggested that she should get any kind of medical care she needed and assured her that her bills would be taken care of.

About August 17, 1965, Mr. Williams, an employee of Chambers Claim Service, took a written statement from Mrs. Jones in the presence of her husband and her mother. Mrs. Jones testified that she also signed medical authorizations at that time for all the doctors except Dr. Moore and that she delivered one to Dr. Moore. Williams denies that the medical authorizations were signed.

The Joneses say that during Williams’ visit Mrs. Jones got to talking about the medical expenses and went to crying. Williams went over to Mrs. Jones and told her to brace up, that she knew he was going to take care of her and to let him worry about it. She had been in and out of the hospital so much that it was too early in the day to evaluate the claim, and as quick as her condition permitted they would make as early a settlement as possible. They say Williams told Mrs. Jones that with the type of injury she had it would take a year to evaluate the claim. Mrs. Jones had known Williams when he worked on the El Dorado police force.

Mr. Jones testified that when Williams asked him if he had contacted an attorney, he replied that he had only talked to Mr. Walter Brown on the telephone one time; that Williams said they didn’t need a lawyer; that he was going to take care of them; and that the Joneses only had to submit a price and Williams would take care of the rest of it.

After taking the statement from Mrs. Jones, Williams called her three or four times and Mrs. Jones called him three or four times. Her testimony is that when she would try to rush Williams up, he would tell her that they couldn’t file a claim for a year and that they had to wait a year and a day from the accident date to submit one figure to the company. The last telephone call from Williams came about two weeks before July 18, 1966, when he called to say he was going on a vacation shortly and would be passing through Little Rock, and if the Joneses could come up with a figure he would be glad to submit it to the insurance company as he went through Little Rock and perhaps he would have something for them when he came back, which would be two or three days after July 22.

About two weeks before July 22, 1966, Mrs. Jones, who acted somewhat as spokesman for all the parties, took the accumulated medical bills to Chambers Claim Service and matched them to see that Chambers Claim Service had all the bills that she had. According to Mrs. Jones, she and Mr. Whatley, a partner in Chambers Claim Service, didn’t have a whole lot of conversation, but when she left she thanked him for the kindness Williams had shown them in handling the claims, said that the year was almost up and they had survived it and appreciated what Williams had done. Whatley made no comment.

On July 18, 1966, before the running of the one-year prescription on July 22, Mr. Jones notified Mr. Chambers, the other partner in Chambers Claim Service, that they were ready to submit a figure. Chambers stated that he was tied up but would get out as soon as possible — maybe the next day. When Chambers did not contact the Joneses as promised, they called Chambers Claim Service several times without being able to reach anyone, but each time left their name and phone number. Their next contact from Chambers Claim Service was a letter dated August 22, 1966, stating that the insurance company had instructed them to close their file as there was no further need for their services. Upon telephone inquiry to Chambers Claim Service, Mrs. Jones was informed that this was the first time a file had ever been pulled from them in this manner and that they did not know what was wrong or why it had been done.

After some difficulty Mrs. Jones reached Mr. Foster, the claims manager for Firemen’s in Shreveport, and asked for an explanation of Chambers Claim Service’s letter of August 22. She informed him that she had promised to call Chambers Claim Service back and tell them why the file had been pulled out of their hands. She says that at this point Mr. Foster laughed and said she needn’t worry about calling Chambers Claim Service back, that they were instructed from the beginning and well knew what to do with that claim from the beginning up to the point of writing the letter, that the time had expired, and that the file had been forwarded to Dallas and was closed and forever void. This was the first time the Joneses and Ezells knew that the statute of limitations in Louisiana was one year. (Arkansas has a three-year statute.)

Much of the foregoing testimony was disputed by witnesses for Firemen’s.

Firemen’s file shows that it had reminded-Chambers Claim Service of the one-year prescription in Louisiana as early as February 1966. Both "Whatley and Foster admit they knew the one-year statute was going to run within two weeks from the time Mrs. Jones went to Chambers Claim Service to match up the bills. Some time in June or July Foster had talked to Whatley about the prescriptive period. His inquiry was to see, if the twelve months did go by, that their skirts were clean so they could not be accused of having led the Joneses astray. Although he says he cautioned Whatley to be careful from this point on, he subsequently corrected his testimony to say that the call was made on July 22, 1966, for the purpose of informing Chambers Claim Service that the prescriptive period had run. Mr. Foster admitted that he had the authority to waive the one-year prescription (claim), but that he was asserting that this claim was barred by prescription in Louisiana. Kemp said that the carrier got over to him the point that he could still be sued in Arkansas for two more years but not in Louisiana.

In the action against appellant, appellees joined as parties defendant the adjuster Tom Williams, and J. M. Chambers and H. R. Whatley, partners doing business as Chambers Claim Service. In the same complaint, appellees alleged a cause of action against W. R. Brown, an attorney, on the theory of malfeasance. The jury returned a A^erdict only against Firemen’s as above stated.

Firemen’s first ground for reversal is that the court erred in failing to grant its motion to dismiss at the conclusion of plaintiff’s testimony, for the reason that fraud can not be predicated on misrepresentations as to matters of law nor on opinions on questions of law based on facts known to both parties, especially when the representations are made by the avowed agent of the adverse interests.

We disagree Avith appellant’s contention because we understand a representation as to the laAV of a foreign state to be a question of fact rather than of law. See Aimot., 24 A.L.R. 2d 1039 (1952), Restatement, Torts, §545(2), Comment (e). Furthermore, under the fact situation here recited, we find no direct misrepresentation of the law of the state of Louisiana. Actually, the gravamen of the offense is the agent’s promising to settle with appellee and advising her to wait a year to evaluate her claims. She was therefore lulled into a sense of security in the state of Arkansas while remaining ignorant of Louisiana’s one-year prescription. This conduct concealed from the Joneses the fact that their claim would be barred before they knew the extent of their injuries.

Firemen’s second point is that it was entitled to a direct verdict because no proof was offered of conspiracy between Chambers Claim Service or their employee Williams and Firemen’s. But here again Firemen’s overlooks appellees’ complaint, which alleged fraud or conspiracy to commit fraud. We have consistently held that in actions against joint tort-feasors where a joint relationship is alleged, there may be a recovery against all of the defendants or against any one of them if the proof warrants a finding of his participation in the tort. Patterson v. Risher, 143 Ark. 376, 221 S.W. 468 (1920). In this case appellees were not damaged by the alleged fraud until Firemen’s, which had the option either to plead or to waive the one-year prescription, closed its file in reliance on the bar of the prescription.

The third point for reversal is that Firemen’s was entitled to a directed verdict because no testimony was introduced as to the value of appellees’ claim against Kemp in Louisiana. This alleged error is not supported by the record. There was both lay testimony and testimony of Dr. Moore about appellees’ injuries. Based upon this testimony the trial court instructed the jury in detail about the damages appellees would have been entitled to recover in a direct action against Kemp, and about the burden of proof and the defenses available. Firemen’s, by failing to argue any objections to the instructions, has waived any error in connection therewith.

Firemen’s cites no authority for its argument that only expert testimony could be received to show the present value of appellees’ claim against Kemp in Louisiana. We seriously doubt that such a rule prevails, but at any rate we must hold the contention without merit. In this instance appellees showed the same damages they would have proved had the case been tried in Louisiana, and under Ark. Stat. Ann. § 27-2504 (Supp. 1967) Firemen’s was entitled to* and did have the matter submitted to the jury under the law of Louisiana.

Under the fourth allegation of error, Firemen’s makes the inconsistent and contradictory argument that appellees failed to prove the basic allegation in their complaint that they lost their cause of action in Louisiana by reason of prescription. It is difficult to understand how one can make this argument while denying liability to appellees because the one-year prescription has run and while their claims agent, who has authority to plead or waive the statute, testifies that the action is barred by Louisiana law. Notwithstanding the inconsistent positions we find that the claim is barred under Louisiana’s one-year prescription. Green v. Grain Dealers Mutual Ins. Co, 144 So. 2d 685 (La. App. 1962) and Craig v. Montelepre Realty Co., 202 So. 2d 432 (La. 1967).

In the Green case, Mrs. Green alleged that while riding in a vehicle driven by her husband in Louisiana, the vehicle was struck from the rear by Mrs. Richaud. Mrs. Green, a resident of Texas, returned to her home state, where she was contacted by Crawford & Company on behalf of Grain Dealers Mutual, the liability insurer of Mrs. Richaud. Crawford & Company agents on numerous occasions advised Mrs. Green that there was no need to obtain legal assistance in asserting her claims; that she would be paid for her damages by the insurance company and would not be prejudiced by continuing to negotiate; and that she had two full years in which to file suit. Mrs. Green was ignorant of the one-year prescription statute. In denying recovery the Louisiana court pointed out that it only gave relief against the running of the prescription law to prevent the injustice of an innocent party being lulled into inaction in the enforcement of a claim by reason- of defendant’s concealment or fraudulent conduct, or of defendant’s failure to perform a legal duty, causing plaintiff to be kept in ignorance of his rights. It then pointed out that the alleged representation that Mrs. Green had two years in which to bring her cause of action was but a misrepresentation of law and not of fact, and that under Louisiana law no one can allege ignorance of the law to prevent the running of a prescriptive right. In denying recovery the court pointed up two other grounds, one that the adjuster was under no duty to advise Mrs. Green correctly on the Louisiana law of prescription, and the other that Mrs. Green had an opportunity equal to that of the adjuster to learn the Louisiana law concerning the one-year prescription in tort cases. In doing so the court recognized that other jurisdictions would permit recovery for Mrs. Green.

In the Craig case, Mrs. Craig proved damages to her dwelling from the use of both a pile driver and other heavy equipment in the construction of a hospital on adjacent land. After the pile driving had begun Mr. Montelepre assured Mrs. Craig that adjustment of damages would be made toward the end of the construction, and on occasion sent workmen to repair some of the damages when they occurred. The pile driving activity ceased on April 10, 1963, and suit was not filed until April 17, 1964. However, construction of the hospital was continuing. The trial court charged the jury as follows:

“You are charged that when a party lulls another into the belief that he will suffer no loss by his inaction, and thus induces him to refrain from claiming a debt, prescription will not begin to run until the party is undeceived.”

The court on appeal disallowed Mrs. Craig’s claim for the pile driving damages and in so doing said:

“If the jury found that the plaintiff was lulled into inaction by the assurances of Mr. Montelepre in response to the corresponding charge, and was thus entitled to damages which would otherwise be prescribed, then such a finding would be manifestly erroneous since the evidence adduced could in no wise indicate acts lulling the plaintiff into inaction so as to prevent the running of prescription. The acts of the defendant alleged to mislead the plaintiff must be such as to prevent him from knowing of his cause of action or must import of deliberate concealment, or fraud, or failure to perform a legal duty.”

Firemen’s fifth alleged error is that it was entitled to judgment notwithstanding’ the verdict because: (1) under the doctrine of respondeat superior the jury, by exonerating the adjusters, exonorated Firemen’s as their principal, since Firemen’s could act only through agents; (2) under the theory of conspiracy the exoneration of the co-conspirators exonerated Firemen’s; and (3) a corporation standing alone cannot be gulty of conspiracy when the alleged co-conspirators have been exonerated.

We find appellant’s contentions under the fifth allegation to be without merit — first, because the complaint obviously alleges joint and several liability on the part of Firemen’s, Chambers Claim Service and Tom Williams, and not necessarily on the doctrine of respondeat superior; second, because the proof shows that Firemen’s also acted through an adjuster named Maddox and its claim manager, Foster; and third, because the fraud was not complete until Foster exercised his discretionary authority to rely upon the one-year prescription. Thus obviously some of the conduct was performed by persons other than Chambers Claim Service and its agents and subsequent to their actions.

It was pointed out in John Deere Co. v. Metzler, 51 Ill. App. 2d 340, 201 N.E. 2d 478 (1964):

“It was said in Hyman v. Burmeister, 216 Ill. App. 98, If a plaintiff fail in the proof of a conspiracy or concerted design, he may yet recover damages against such of the defendants as are shown to be guilty of a tort, resulting in damages to him. The charge of conspiracy, where unsupported by the evidence, will be considered mere surplusage, not necessary to be proved to support the action.’ ”

To the same effect see Patterson v. Risher, supra.

The cross appeal of Leo R. Ezell, personally and individually in his own right, arises in this manner: Proof of medical bills for Jerry Ezell was put into evidence by stipulation, agreeing that the medical expenses had been incurred but without an agreement that they were incurred as a result of the injuries received in the accident. The form of the verdict submitted to the jury left it to the jury to find generally for appellees and then had individual interrogatories as to the damages of each claimant. When the verdict was returned the jury had found damages for all claimants except Mr. Ezell. As to him, the verdict was left blank. The foreman explained to the court that nine of the jurors had found no damages in favor of Mr. Ezell and told the court that if it preferred the word “none” it could be so written. Thereupon the word “none” was inserted and the verdict was signed by nine of the jurors. The court explained to the jurors that this trial had extended over a week and that, should the Supreme Court determine that it should have sent the jury back out to determine the damages because the verdicts were inconsistent, it would be a rather expensive trial and a waste of a lot of time. To avoid suck expense, the court again instructed the jury on the damages Mr. Ezell would be entitled to receive and sent them back out to reconsider the matter. The jury this time returned a verdict for $2,000. In drawing tlie judgment the trial court gave Mr. Ezell only bis cost money.

Mr. Ezell here argues that the court, in sending the jury out for the second verdict, must have been acting under Ark. Stat. Ann. § 27-1741.3 (Repl. 1962) and that having exercised the discretion to send the jury back out, it must enter a verdict for the amount found. With this contention we do not agree, because as we read the court’s comment it sent the jury out the second time only to avoid the cost of a new trial should this court rule that it abused its discretion in not sending them out. In other words, as we understand the court’s action, it did not determine that the first verdict was inconsistent with the evidence but was merely trying to avoid the cost of a new trial should its judgment prove erroneous.

While the record shows that Mr. Ezell incurred medical expenses upward of $2,000, there was a clear dispute as to whether they were incurred as a result of the accident. We can not say that the first verdict was not supported by substantial evidence.

Appellee Elston Jones alleges error of the trial court in failing to enter judgment notwithstanding the verdict for medical bills incurred by him for his wife in the sum of $4,317.47 and for his daughter in the sum of $560.70. Here again the amount of the medical bills was stipulated but without agreement that they resulted from the collision. Under our decisions, Fullbright v. Phipps, 176 Ark. 356, 3 S.W. 2d 49 (1928), there was substantial evidence to support the finding of the jury and we can not say the trial court’s action in entering judgment for the amount of the jury’s verdict was erroneous.

Affirmed.

Brown and Jones, JJ., dissent.

J. Fred Jones, Justice.

I do not agree with the majority opinion in this case. The statutory prescription period for bringing actions for personal injuries is one year in Louisiana. One year has expired since the collision, out of which this cause of action arose, and no suit has ever been filed by any of the appellees in Louisiana. Instead of filing their suits in Louisiana where the accident occurred and the defendant tortfeasor lived and could be served with process, the appellees brought suit in Arkansas and recovered judgments for damage against the liability insurance carrier of the Louisiana tort feasor for fraudulently causing appellees to forego the filing of a suit in Louisiana within the prescription period of one year. All of the alleged statements and acts constituting the gravamen of the alleged fraud were directed toward the appellee Mrs. Jones, but judgments were awarded to all four of the appellees.

I find no evidence in the record that appellees’ causes of action in Louisiana has expired in the light of the fraud alleged by appellees. I am unwilling to say that an insurance adjuster’s authority to waive the statute of limitations in the settlement of claims, and his election not to do so, amount to a judicial determination that a cause of action has been lost by prescription, in Louisiana or any other state, where it is provided by statute or otherwise, that the statutory period of prescription may be suspended or tolled by actionable fraud.

Consequently, I am unwilling to assume, as I feel the majority was required to do in affirming this ease, that appellees had lost their cause of action in Louisiana at the time this suit was filed in Arkansas.

There are 116 pages of the Louisiana Code devoted to causes which interrupt and suspend prescription in that state. (West’s L.S.A. Civil Code, pages 259-375). The plea of prescription in Louisiana, like the plea of limitations in Arkansas, is a matter of defense to be affirmatively pleaded by the defendant. By legislative enactment, courts cannot supply the plea of prescription in Louisiana, L.S.A. Civil Code, Article 3473. In Louisiana, prescription is a “special defense” that must be pleaded, and if a complaint states a cause of action justifying relief and the prescriptive plea is not made, the court cannot supply it, but must give judgment for the plaintiff if the demand is otherwise established. Sirmon v. Cron & Gracey Drilling Corporation, 44 F. Supp. 29. Delay does not affect plaintiff’s cause of action in Louisiana, where the defendant does not plead prescription. Sporl v. New York Indemnity Co., 176 La. 363, 145 S. 771. In Louisiana the plea of prescription is persona] to the defendant and discretionary with it. U. S. v. Mercantile Nat. Bank at Dallas, 67 F. Supp. 759.

The rule “contra non valen tern agere nulla currit praescripto” is also applied in the state of Louisiana to prevent the injustice of an innocent plaintiff being lulled into a course of inaction in the enforcement of bis right by reason of concealment or fraudulent conduct by the defendant, or because of his failure to perform a legal duty whereby plaintiff has been kept in ignorance of his rights. Kennard v. Yazoo & M.V.R. Co., 190 So. 188.

As I view this case, it was submitted to the jury on hearsay evidence and the assumption that Edgar F. Kemp, the Louisiana tort-feasor, would have had no defense, even in mitigation of damages, under the Louisiana law if the suit had been filed and tried in that state. Aside from Mrs. Jones’ own testimony, I find no evidence of actionable fraud in this case. The dramatic nature of Mrs. Jones’ testimony adds nothing to its quality as substantial evidence in my opinion.

Mrs. Jones testified that she had observed Kemp driving out from a beer tavern and following her automobile; that he was lying over on the steering wheel and was weaving his automobile from side to side while driving behind her; that she had been stopped for the traffic light a few seconds when Kemp ran into the rear of her automobile, knocking it through the intersection and to the second parking meter beyond the intersection; that her neck was injured to the extent that she was unable to hold her head up; that when she got out of her automobile, it was necessary for her to take hold of her hair with one hand in order to hold her head up while talking with Kemp; that Kemp admitted that the accident was all his fault, that he had $100,000 insurance on his automobile, and that she had nothing to worry about. She testified that Kemp was obviously drunk; that he fell to one knee and then to the other knee and finally had to pull himself up and brace himself against an automobile while talking to her. She testified that she “passed out” soon after a traffic officer arrived; that she was taken to a hospital in Shreveport where Mr. H. Gr. Maddox, a claims representative for Kemp’s liability insurance carrier, Firemen’s Insurance Company, called on her and advised her not to worry about anything, to make all the long distance telephone calls necessary and that the company would assume full responsibility for all necessary bills.

The fraud Mrs. Jones complains of primarily had to do with a Mr. Williams. She testified that after returning to her home in El Dorado, Arkansas, she was advised by Mr. Williams, an employee of the Chambers Claim Service, to whom the matter had been referred by the insurance company, that no settlement of her claim could be made for a period of one year. The effort required to elicit this testimony from Mrs. Jones also detracts from its quality as substantial evidence of fraud insofar as I am concerned. .

“Q. * * * Did you discuss any other subjects down there ? Did you ask him any questions or discuss any other subjects?
A. Well, I asked him — He told me that he would take care of the claim and that we would have to arrive at the amount; that it was too early yet; that this kind of claim would have to run its course, was, I believe, the way Mr. Williams stated it to me, as best I remember now, and in telling this I’ll say, so the jury can understand this, that I didn’t know anything about it then, not anything whatsoever. I didn’t know the difference between a claim or none of — Still don’t know what to call it, as you can see. I knew a little bit more when these depositions were taken and know a little bit more about all of it now than I did then, but I didn’t know anything about it and I believe that he said it had to run its course. It was too early in the game to do anything then, but at the end of the year or the period of a year, that we would have to tell him the figure. He’d handle everything for us in the claim except the figure; that we’d have to tell him what we wanted, the insurance company, what we wanted to negotiate over the figure and start that and I was asking —
Q. Now did he say anything else with reference to this twelve month period?
A. Well, I don’t think I asked him a lot. Well, that did upset me and I said. ‘You don’t mean it’s going to be that long?’ and he said, ‘Well, this is something yon just can’t estimate overnight’. ‘It’s something that your condition could vary from, from time to time’, and I don’t remember how he consoled me with that right now. It’s been too much passed since then, but he did tell me that it would be that length of time before it would be anything done.
Q. Did he comment further why it had to be that length of time? Anything else? Any further comments about the twelve months period?
A. Not that I can remember, Mr. Whetstone. He just said that it was a twelve month waiting period to evaluate a claim of this type.
Q. Well, did he explain what he means by Waiting period’?
A. I can’t remember.
Q. Well, what did you say when he said about waiting the twelve month period?
A. Well, that upset me. I knew that I had already had two hospital bills and wondered what more it was going to run into and I didn’t know what to evaluate this claim meant and I didn’t know anything about it, what it meant or what to expect or nothing and he said that he would go ahead and get everything together and for me to get the authorizations on to Dr. Moore and that he would take those and get the information from Shreveport and that it was a time waiting period.
Q. What do you mean ‘time waiting period’? Did he explain that to you?
A. He said you just can’t evaluate a claim like this until after a year, a whiplash case. He said he had handled a lot of them and it just took time to evaluate them; that you couldn’t tell whatever injuries you had at the end of a period would be; that that’s what he had understood, I believe was the explanation that he left me with.
Q. Did you. try to hurry him up any on the thing?
A. Yes, sir, I asked him wasn’t there anything that he could do.
Q. And what did he say?
A. He said no; that there wasn’t anything could be done. We just had to wait; that the insurance — there wasn’t anything to worry about; that it was a liability case; that they would pay it; that it was an open and closed or open and shut case, was the way he said it. It wasn’t anything to worry about. The man hit me from the rear. He was drinking and I was sitting still and it wasn’t any fault of mine and the insurance company was going to pay off, just don’t worry about that, but we just had to be patient with them and wait until this waiting period — this —
Q. What was this waiting period all about?
A. Well, it was just a twelve month waiting period. I knew they was going to pay us and knew it would be just the first day or the next day after the twelve months.
Q. Where did this twelve month business ever come in? Where was that ever introduced into the conversation between you and him? Who ever mentioned that?
A. Mr. Williams told me that.
Q. When did he first tell you that?
A. Just after he had finished taking the statement from me, I believe.
Q. Did he mention it any other times?
A. "Well, every time I talked to him on the telephone.
Q. And you’d try to rush him up or shorten the twelve months?
A. Yes, sir, and he would ask me had we arrived at a figure yet and did I have any medical bills and whatnot and I’d tell him yes, I had a few and that we still hadn’t arrived at a figure to submit to the insurance company and he’d tell me, well, that if I did to call him and let him know, but don’t worry about it; that we had plenty of time; that he had to wait, but in case I did arrive at a figure to let him know.”

Mrs. Jones testified that she relied on this information and these representations and made no effort to settle her claim against Kemp until a year had passed, at which time she was advised that the prescription period in Louisiana was one year; that the year had run out and that the insurance company had closed its file on her case.

This suit was filed in Union County Circuit Court against Kemp, Chambers and Whatley, d/b/a Chambers Claim Service, Tom Williams, their employee, Firemen’s Insurance Company, and also attorney Brown, who had represented Mrs. Jones in settling her claim for medical benefits under the provisions of her own automobile insurance policy. The complaint contained eighty-six paragraphs and prayed judgments against Kemp, on account of his negligence and misconduct, for $46,000 in favor of Elston Jones; for $10,000 in favor of Paula Jones, a minor; for $100,000 in favor of Mrs. Jones; for $20,000 in favor of Leo B. Ezell; for $20,000 in favor of Jerry Ezell, a minor, and for $250,000 punitive damages. The complaint alleged conspiracy between Kemp and his liability insurance carrier and its agents and employees, and alleged fraud on the part of all of them in causing appellees to delay bringing an action in Louisiana for the recovery of damages for personal injuries until after the prescription period had run in that state, and in the alternative the complaint prayed judgment against all the defendants in the same amounts prayed against Kemp.

The cause was submitted to the jury on the issue of fraud and the jury found in favor of all the defendants except the insurance company, and rendered a verdict in favor of the four appellees against Firemen’s Insurance Company in amounts totaling $23,000.

At the trial Mrs. Jones testified that Williams told her, when she visited him in Texas, that the insurance company had specifically directed him to lull her into a sense of security until the . Louisiana prescription period had run. Such statement was emphatically denied by Williams, who was no longer employed by the Chambers Claim Service. As a matter of fact, all of Mrs. Jones’ testimony was emphatically denied, except as to the occurrence of the accident. Kemp appeared specially and testified that Mrs. Jones told him, at the scene of the collision, that she was not injured. The police officer who investigated the collision testified that the automobile driven by Mrs. Jones was 'knocked forward about the length of the automobile from the point of impact. Mr. Maddox testified that he made several attempts to take a statement and obtain medical authorizations from Mrs. Jones while she was in the hospital at Shreveport, but that she would not see him and that he never did see her at all. This testimony was confirmed by Mr. Foster, claims manager for Firemen’s, and Mr. Maddox’s supervisor. Mr. Maddox and Mr. Foster also testified that efforts were continued through the Chambers Claim Service; in El Dorado to obtain medical authorizations from Mrs. Jones so that the claims could be evaluated; that Mrs. Jones would only submit medical bills but would not sign medical authorizations so that the company could determine the nature and extent of her alleged injuries, and the validity of the medical bills submitted.

In Craig v. Montelepre Realty Co., 202 So. 2d 432, cited by the majority, the question of prescription was permitted to go to the jury under an instruction, as follows:

“You are charged that when a party lulls another into the belief that he will suffer no loss by his inaction, and thus induces him to refrain from claiming a debt, prescription will not begin to run until the party is undeceived.”

The Craig case was an action for personal injury and property damage caused by vibrations from a pile driving operation. The instruction was not held erroneous as a matter of Louisiana law. The Louisiana court simply held that had there been a finding that the plaintiff had been lulled into inaction and therefore entitled to damages under the charge, such finding would be erroneous under the facts of that case because the evidence only showed that the defendant had promised to make final adjustments toward the end of the operation. The operation continued on for some time after the vibrations ceased, and the defendant had repaired some of the damage from time to time as it occurred. In connection with the instruction, the Louisiana court said:

“If the jury found that the plaintiff was lulled into inaction by the assurances of Mr. Montelepre in response to the corresponding charge, aud was thus entitled to damages which would otherwise be prescribed, then such finding would be manifestly erroneous since the evidence adduced could in no wise indicate acts lulling the plaintiff into inaction so as to prevent the ruiming of prescription. The acts of the defendant alleged to mislead the plaintiff must be such as to prevent him from knowing of his cause of action or must import of deliberate concealment, or fraud, or failure to perform a legal duty. This is illustrated by the cases cited by both the plaintiffs and the defendant. Odoberto v. Virgin, Pletier’s Orl. App. No. 7986.
Kennard v. Yazoo and M.V.R. Co. La. App., 190 So. 188 (La. App. 1939).” (Emphasis supplied.)

When a complaint in Louisiana shows on its face that the prescription period has run, it appears to he incumbent upon the plaintiff to allege acts of the defendant, such as to prevent him from knowing of his cause of action or that import of deliberate concealment or fraud, or failure to perform a legal duty.

Kennard v. Yazoo & M.V.R. Co., supra.

Instead of filing suit in Louisiana and determining in the courts of that state, whether they had actually lost their cause of action by prescription, the appellees apparently assumed that their right to maintain an action in a Louisiana court expired when they were advised by an insurance adjuster that the claim file had been closed because of the expiration of the period of prescription in Louisiana. As I see it, the appellees filed the present damage suit in Arkansas alleging loss of their cause of action in Louisiana because of the same fraud they might well have alleged in Louisiana to show that they had not lost their cause of action in that state.

Appellees have suffered no damage, and they claim none, merely because the prescription period has run in the state of Louisiana. The damage they have suffered, if any, and the damage they claim, is for the loss of their right to maintain a lawsuit in Louisiana, because the prescription period has run in that state. I find no proof in the record that such fraud as appellees allege, caused them to lose their cause of action in Louisiana. Such fraud as appellees allege in this case is the very fraud that may have suspended prescription in the state of Louisiana.

The majority say that the fraud in this case was not complete until Foster exercised his discretionary authority to rely upon the one year prescription. It seems to me that the majority is elevating the decision of a claims adjuster, in the exercise of his discretion in handling of claims, to the decision of a judicial tribunal that is final and binding. An insurance claims adjuster, or claims representative, may exercise his discretionary authority to offer only a specified sum in settlement of a claim, but certainly such exercise of discretion has little to do with the outcome of a lawsuit. It is entirely possible that the appellant insurance company, through competent attorneys, would have taken an entirely different view toward a complaint filed in the proper court in Louisiana, than the claim agents took toward the adjustment of the claims of appellees. It is entirely possible that the appellant, on advice of counsel, would not have pleaded prescription as a defense to a complaint filed late because of such fraud as is alleged in this case. Certainly there is no actionable fraud in a statement by a claims agent that his employer will plead prescription or rely on the statute of limitation in event a suit is filed. Actionable fraud relates to a past existing fact and not to future events or occurrences. Crider v. Simmons, 192 Ark. 1075, 96 S.W. 2d 471.

The majority seem to hold that a statement made by an insurance adjuster, as to the Louisiana statute of prescription, if made in Louisiana, would be a statement of law and not actionable in fraud, but if the adjuster steps across the state line and makes the same statement in Arkansas, it becomes a statement of fact and is actionable. Be that as it may, the most severe acts of fraudulent conduct complained of here, consisted of alleged statements made by Mr. Williams, an Arkansas adjuster, and made in Arkansas and Texas, pertaining to the Louisiana law. It would at least be interesting to know how the Louisiana courts would have treated the matter had it been presented to the courts of that state.

The case of Green v. Grain Dealers Mutual Ins. Co., 144 So. 2d 685, cited by the majority, is no authority for how the Louisiana courts would have treated the fraud alleged by the appellees in the case at bar. In the Green case the claim agent told the plaintiff that the prescription period in Louisiana was two years and that the insurance company would pay her. In the case at bar Mrs. Jones says that Williams told her that there was a waiting period of one year on this type of claim and then later told her that the insurance company had specifically instructed him to lull her into inaction until the statutory period had run. Williams denied making such statements, but if a Louisiana court had heard the testimony, and had believed Mrs. Jones, it undoubtedly would have considered such statements as more than mere statemets of Louisiana law. As vague as - appellee Jones’ testimony is as to what Mr. Williams told her about a one year waiting period, such information of itself should have put appellee on such notice as to cause her to at least make inquiry of an attorney. If, however, a Louisiana court had excused Mrs. Jones of her own lack of diligence, such court might have even found that Mrs. Jones was led to believe that she had no cause of action at all for a period of one year from the date of the accident, and that the appellant had fraudulently concealed her actual cause of action.

In my opinion the appellees showed no diligence whatever in presenting their cause of action against Kemp in Louisaina. A charge of fraud must he established by evidence that is clear. Crider v. Simmons, supra. If appellees lost their causes of action by prescription in Louisiana, I am convinced that they did so through their own delay, and not because of fraud practiced upon them by the appellant. If the alleged fraud prevented the appellees from filing suit in Louisiana within the year following the accident in that state, I am of the opinion that the courts of Louisiana, and not the courts of Arkansas, should say whether appellees have lost their cause of action in Louisiana.

I would reverse the judgment of the trial court.

Brown, J., joins in this dissent.


source: Caselaw Access Project

author: Conley Byrd, Justice. Lyle Brown, Justice.

license: Public Domain

text:
    Brandt Poore, Executor v. Floyd Slaughter, et al
    4612
    431 S.W. 2d 837
    Opinion Delivered September 16, 1968
    [Rehearing denied October 21, 1968.]

      Mahoney & Yocum for appellant.

      Don Gillaspie for appellees.
   Conley Byrd, Justice.

Appellant, Robert H. Poore, appeals from a decree directing specific performance of an oral contract for the conveyance of timber. The trial court held that the payment of the consideration and the partial performance by appellees, Floyd Slaughter and Larry Don Slaughter,' d/b/a Slaughter & Son, was sufficient to take the oral contract out of the statute of frauds, Ark. Stat. Ann. § 38-101 (Repl. 1962).

For:-reversal,’ Poore-contends, that the; testimony was insufficient to establish an oral contract and that there was no part performance. Since we find that the record is insufficient to establish the oral contract by clear and convincing evidence, we do not reach the issue of partial performance.

The record shows that Mr. Floyd Slaughter, a resident of Union County, on January 20, 1966, phoned Bobert H. Poore, Sr., at his home in Council Bluffs, Iowa, to buy timber on 500 acres of land owned by Poore in Union County, Arkansas. Slaughter does not contend that an agreement was reached that day, but that Poore said he would have to contact his cousin, Wesley Poore, of El Dorado, Arkansas. Slaughter testified that, following telephone conversations between appellant Poore and Wesley Poore and Slaughter, he and Poore on the 21st day of January entered into a binding contract for the purchase of all pine above eight inches and all hardwood above twelve inches except in the areas around the home place and the deer camp. According to Slaughter, the price of $4,000 was agreed upon, the time for cutting the timber was for one year from January 21, 1966, and both parties understood the area to be cut.

On January 21, 1966, Slaughter wrote to Poore:
“Enclosed you will find two copies of the timber deed; Sign and return one copy—
Also enclosed, a check for four thousand.
Appreciate getting the timber and will look •forward to meeting you in person.”

• On January 24, 1966, Slaughter commenced cutting the timber.

■ On January 26, Poore phoned Slaughter that he had received the check but not the deed. Slaughter suggested to Poore that the check be sent on through.

On January 27, Slaughter mailed' to Poore a form deed, filled in to describe the timber to be cut as “all the Pine & Hardwood timber standing, growing and being eight inches in diameter and over at the stamp ...” (Slaughter had discovered that the deed had been omitted from the January 21 transmittal through his secretary’s error.)

On January 29, Poore called Slaughter to tell him that someone was trying to buy the land from him but that the man didn’t want to buy the land without the timber. When Slaughter told Poore’ that he was a little late, because he had already started cutting, Poore told Slaughter that he had “jumped the gun.” Slaughter continued to cut the timber until he was served with a restraining order on February 18.

Poore’s version of the January 21 conversation is that he and Slaughter both knew what land was covered, but with reference to the other essential facts he testified on cross examination as follows:

“Q. Was there any doubt as to how much money he was offering you for the timber on it?
A. He offered $4,000 for it.
Q. And if you were going to deal you would accept that $4,000 if you were going to sell it to him?
A. I would accept when my attorney checked into it.
Q. If he approved the form of the timber deed?
A. If he approved the timber deed.” ■
* *
“Q. And in this conversation on the 21st, did you not agree that it was to be eight inches on the pine and twelve inches on the hardwood?
A. That seems to be the direction.
Q. That is pretty well .standard, isn’t it?
A. Yes. ...
Q. Then, all this timber deed was going to do, Mr-Poor e, all it was going to be, wasn’t it, was just a reduction of your agreement to writing, you all had agreed he was going to purchase the timber, eight inches on pine and twelve inches on hardwood on all the 500 acres, you all knew which, for four thousand dollars, and he was going to have one year from January 21st, 1966, to cut it?
A. It all depended on how my attorney looked at it.
Q. If your attorney approved- the form of', the deed?
A. If he agreed to the timber deed.
Q. But you all had agreed as to all the terms included in that deed?
A. Yes. .
Q. And all he had to do was approve the form and then you would sign- it and send it back and take the money and he would have the timber?
A. Yes, as soon as the timber deed was approved, that is what we wanted, a written agreement, a timber deed.”

In Hudspeth v. Thomas, 214 Ark. 347, 216 S.W. 2d 389 (1949), we pointed out that one seeking to take an oral contract for conveyance of land out of the statute of frauds through partial performance has the burden of proving by clear and convincing evidence both his oral contract and his partial performance thereunder. Here the proof of the oral contract is not. clear and convincing. Poore’s testimony is that he wanted the. deed to secure his attorney’s approval. It is-here that perhaps some the testimony could be read as saying that the only purpose of submitting the deed to' the attorney was tó get his approval of form only, but when such testimony is considered in the light of Poore’s conduct in holding the check until he received the deed, we do not find it to be sufficiently clear and convincing to show Poore’s assent to the alleged contract.

For the reason stated we are reversing the decree of specific performance and remanding the same to the trial court with instructions to enter an injunction and judgment for damages to which Poore is entitled. .

The record contains some evidence on the damages sustained by Poore, but under the record here presented we prefer that the matter be considered first by the chancellor.

Reversed and remanded.

Ward, Brown & Fogleman, JJ., dissent.

Lyle Brown, Justice.

The record contains the chancellor’s ‘‘Findings of Fact and Conclusions of Law.” Specifically, it was found that an oral contract was entered into on January 21 which showed a meeting of the minds on every point. Included were these items: The date was fixed on which cutting was to begin; the contract was for one year; the diameter was eight and twelve inches; the price was four thousand dollars; Slaughter was to send Poore a deed which would be corrected as required by Poore’s attorney to reflect the oral agreement; the certainty of the area of the timber conveyed was clearly understood; and, pursuant to the agreement, Slaughter sent a check and deed, entered into possession, and cut timber throughout the tract. The trial court found that Poore knew, on January 26, that Slaughter was well into the cutting operation. Finally, lie concluded that the reason Poore tried to rescind the contract was the receipt of what Poore considered a better offer.

I am convinced, as was the chancellor, that the execution of the deed was a mere formality which would (1) reduce the agreement to writing, which was good business, and (2) enable the transaction to be recorded. Yet it is evident to me that the sale would not have been affected if Poore had decided he would not go to the expense of revising the deed because the transaction was already complete as between the parties.

Poore and Slaughter were the only witnesses to the January 21 conversation. Naturally the credibility of these witnesses was vital. The weakness in Poore’s credibility lies in the fact that he first insisted that the discussion on January 21 never occurred! Plere is his initial version: Slaughter called Poore on January 20; the men talked only in general terms; Poore told Slaughter to send a timber deed and a check for $4000, which would prove Slaughter meant business; there was no subsequent call to him by Slaughter; the next contact was by Poore when the check arrived without the deed; and that there was no agreement of any kind as to specifics because he was waiting for the deed. The foregoing is gleaned from Poore’s discovery deposition. Then when the case was tried, Slaughter produced his telephone bill showing his having called Council Bluffs on January 21. That evidence seemed to refresh Poore’s memory and on cross-examination he conceded the conversation and the meeting of the minds on every phase of the transaction as recited by the chancellor. His one reservation was that he at no time intended to consummate the sale until his lawyer had examined and approved the deed. The evidence appears to be clear and convincing. Certainly I cannot agree that the trial court, from his vantage point, erred in so finding.

It is insisted that the majority opinion cannot stand the light shed by Harrison v. Oates, 234 Ark. 259, 351 S.W. 2d 431 (1961). The facts in Harrison, which were approved as supporting an oral sale of lands, are not nearly so clear and convincing as the facts in the case at bar.

I would affirm.

Ward and Fogleman, JJ., join in this dissent.


author: Carleton Harris, Chief Justice.

text:
    Oran James Priddy and Delphine Priddy v. Moses Wood and Jessye Lynn Wood
    4636
    431 S.W. 2d 744
    Opinion delivered September 23, 1968

      Gaughan, Laney, Barnes & Roberts for appellant.

      Streett & Plunkett for appellee.
   Carleton Harris, Chief Justice.

This case concerns a disputed boundary line. Appellants, Oran James Priddy and wife, purchased Lots 1 and 2, Block 1, and property immediately south of Lot 1, all in Linebarier Subdivision in Ouachita County, Arkansas. The property was purchased from Lloyd and Mildred Bumpass in May, 1967, the Bumpasses having owned the property for some 20 years. Moses Wood and wife, appellees herein, own the adjoining property to the east of appellants’ property, having likewise owned same for a long number of years. Shortly before the sale of the property, Wood and Bumpas discussed the making of a' survey for the purpose of determining the true boundary line. The survey was made by the County Surveyor, and he found that the line extended over and onto the property which the Bumpasses had been using as their own. Subsequently, Wood started construction of a fence on the line established by the surveyor, to which the Priddys objected. The result was litigation in the Chancery Court between appellants and appellees relative to the ownership of the property. On trial, the court held as follows:

“ * * * that in July of 1967 it was agreed between Plaintiffs’ and Defendants’ predecessors in title that Grover Perry, the duly elected, qualified and acting County Surveyor for Ouachita County, should be employed for the purpose of making a survey and determining the location of the boundary line; that said Surveyor was so employed and thereafter made such survey and established said boundary line; that the Plaintiffs and Defendants herein, together with Defendants’ predecessors in title, knew of the survey and the location of the boundary line as established thereby.
“The Court finds that all of the aforementioned parties mutually agreed upon, and established as between themselves, the boundary line, as established by the aforesaid survey, as the boundary line between the property owned by the Plaintiffs and Defendants; that afterwards the parties herein occupied and used their property according to such boundary line * * *
The court then ordered:
“That the lawful boundary line between the lands owned by Plaintiffs and Defendants is the boundary line established by the survey of Grover Perry and agreed upon by the parties; and that each party shall own up to the agreed line as fully as if their respective deeds called for it.”

From such decree, comes this appeal. For reversal it is simply asserted that the court’s findings are against the law and the evidence.

The proof reflects that the Woods and the Bum-passes had lived on these adjoining properties for a long number of years without any dispute as to the property line. According to Grover Perry, County Surveyor for Ouachita County, he was first contacted by Mr. Bumpass to make the survey. Subsequently, this survey was made, and both Mr. Wood and Bumpass were present and assisted in making it. As a result, the property line was moved 20 feet to the west, taking that amount of the land now contended for by Priddy. Perry stated that there was no disagreement between the two men. According to the witness, Bumpass helped measure the line and placed the stobs; both accepted the survey. Perry stated that he had subsequently viewed the premises, and the fence posts had been placed by Wood on the section line, and in accordance with the survey.

Wood testified that the Bumpasses had been using the 20 feet as long as he had lived there. “We were neighbors and I told them to feel free to use it. Mr. Bumpass and I never had any dispute and I told him he could use my property anytime.” The witness said that Bumpass stated that he (Bumpass) was not claiming anything except what his deed called for; the two agreed to have the survey made, and Bumpass said that he would accept the Perry survey as the true line. Bumpass, according to Wood’s evidence, indicated no dissatisfaction, and accepted the line as established. He said that when the Priddys moved onto the Bumpass property, the stakes marking the line were visible; that he (Wood), welcomed the Priddys as neighbors, and told them that they were welcome to use the property as the Bumpasses had done; a few days later, the stake that he had set in the driveway was pulled up, and he was subsequently interfered with in erecting a fence along the line. According to the survey, the Bumpass garage was partly on the Woods’ property, and this garage was moved farther over on the Bumpass land. Wood took possession of the property 15 or 20 days later.

Mr. Bumpass did not testify, but Mrs. Bumpass stated that she and her husband had occupied the disputed strip since living on the premises; that she had planted flowers and fruit trees in this area; that Mr. Bumpass had placed a fence on what they had considered to be the line, and this fence had separated the Bumpass and Wood properties for 7 or 8 years. As to the survey, she told the court:

“My husband told me that Mose had gone over to the First Federal and told them that the garage was on his property. My husband went out to the fence and asked Mose about it and my husband said to Mose, I understand you are claiming part of this land over here and Mose said, yes. Then Mose told him that he would like to have it surveyed because he didn’t think our fence was on the section line and my husband told Mose that if he was willing to pay for the survey to go ahead. My husband said if you are willing to pay for the survey and it don’t cost me anything, then I am willing to move my fence if I don’t lose any land.”

The Priddys also offered evidence that the Perry survey was in error. However, we think other facts are controlling in tlie litigation, and there is no need to discuss this testimony.

Certainly, appellants cannot rely upon adverse possession by Bumpass to establish a claim to the land, for the evidence does not substantiate such a claim. Wood testified that Bumpass stated that he did not want any land except “what his deed called for,” and this statement was not denied by Bumpass. In addition, the testimony of Wood as to the agreement relative to the survey is supported by Perry. This evidence was not disputed by Bumpass. Of course, if Bumpass had been making a claim to the disputed 20 feet by adverse possession, he would never have agreed to accept the survey line (even with the provision that Mrs. Bumpass said her husband made). It is very noticeable that both Mr. and Mrs. Bumpass were willing for their garage to be moved because the survey showed a portion of the Bumpass garage protruding upon the disputed strip; this was also known by the Priddys; in fact, the garage was moved before the appellants occupied the Bumpass property, and was placed in a location approved by the Priddys.

Appellants devote one paragraph to arguing that Mrs. Bumpass was the actual owner of Lot 1, and that she made no agreement. From appellant’s brief:

“With regard to the evidence, Mildred Bum-pass the owner of Lot 1 of the Linebarier Subdivision and the lot most affected by the movement of the boundary line in question, testified that she at time made any agreement with appellee Moses Wood relative to the movement.of the boundary line and that she owned the property in her own name and at no time authorized anyone to make any agreement with the appellees.”

We are not impressed with this asseveration. It is obvious from her testimony, heretofore quoted, that she knew about the survey, and certainly she knew that the garage was moved on account of the result of that survey. This was apparently done with her permission; at least, the record does not disclose any objection upon her part. These actions, coupled with the pertinent Arkansas Statute, prevent any conclusion of merit on the contention. Ark. Stat. Ann. § 55-412 (1947) provides that where a married woman permits her husband to have the custody, control, and management of her separate property, there is a presumption that the husband is acting as the agent of the wife. Also, see Fletcher v. Dunn, 188 Ark. 734, 67 S.W. 2d 579. ’ In the present case, the arrangements for the sale to the Priddys were apparently handled by Mr. Bumpass, including (according to Perry) the participation of Bumpass in obtaining the surveyor and assisting in running the line.

The record reflects that Mr. Priddy was entirely aware of the survey and the location of the stobs on the survey line before he moved onto the property. He was also cognizant of the moving of the garage. Prom the record:

“Q. When did you and your family first move onto this property?
A. It was sometime in July.
Q. Had the garage been moved prior to that time, Mr. Priddy?
A. Yes.
Q. Did you know beforehand that it had been moved?
A. Yes.
Q. Did you or your wife or anyone on your behalf instruct where to move that garage, where it should be placed?
A. Yes.
Q. Did you object to Mr. Wood or anyone else about moving- the gar age?
A. No.”

He subsequently said that lie “never did recognize the stobs as a boundary line,” and that he had.no objection to the garage being moved as he had not intended to use it as a garage.

To summarize, it is evident that there was uncertainty as to the true location of the boundary line. There was sufficient evidence of an agreement between the parties to support such a finding by the Chancellor, and finally, Wood took possession of the strip in controversy. The fact that the survey was made and the agreement reached only a short time prior to the dispute is of no importance. In Smith v. Mefford, 243 Ark. 561, 420 S.W. 848, we upheld the Chancellor in finding that a boundary line had been agreed upon though appellant, after entering into an agreement, changed his mind two days later and “called off” the agreement.

We are unable to say that the Chancellor’s holding, in defining the boundary lines to which the deeds extended, was against the preponderance of the evidence.

Affirmed.

      Actually, to make the purchase, appellants applied for a loan to the First Federal Savings and Loan Association, but the latter would not approve a loan until the land was surveyed.

      Suit was filed by appellees.

      No deeds to establish ownership were introduced into evidence.

      This presumption, of course, can be overcome by evidence.


author: George Rose Smith, Justice.

text:
    David Bone v. Capital Welding Supply Company
    5-4645
    431 S.W. 2d 752
    Opinion delivered September 23, 1968

      J. Harrod Berry for appellant.
    Wright, Lindsey & Jennings for appellee.
   George Rose Smith, Justice.

In 1962 the appellant, then seventeen years old, suffered, the loss of his right index finger while operating a welding machine at Mountain Home. He brought this action against the appellee, Capital Welding Supply Company, upon the theory that the company had negligently failed to repair a defect in the welding machine, with the result that the plaintiff was injured. The plaintiff was the only witness who testified at the trial. At the conclusion of that testimony and before the plaintiff had rested his case the trial court directed a verdict for the defendant, on the ground that the plaintiff had assumed the risk of the defect that caused his injury. The correctness of that ruling is the main issue on appeal.

During the week preceding his injury the plaintiff, David Bone, had been working for his uncle at Malvern. They were using a portable gasoline-powered welder. The gasoline engine ordinarily idled at a slow speed, but when the operator began the welding process the engine was supposed to accelerate to a speed sufficient to provide the electric current needed for welding metal. At Malvern, however, it was found that the engine did not always automatically “rev” up to high speed. The operator could accelerate the engine by shaking a rod that was located within a few inches of a metal fan.

On the weekend after the completion of the Malvern job David’s uncle left the welding machine at the appellee’s shop in Little Rock for the necessary repairs. On Monday David and his uncle picked up' the machine and drove to Mountain Home to work on another job. They discovered that the machine was still not working properly, but the eider Bone was unwilling to take the time to return the equipment to Little Rock. On Thursday, while David was attempting to accelerate the engine manually, his hand in some way came in contact with the fan, which severed his finger.

We think the trial court erred in directing a verdict, especially in view of the fact that the plaintiff had not yet completed his proof. Counsel for the appellee rely upon our holding in Spradlin v. Klump, 244 Ark. 841, 427 S.W. 2d 542 (1968), but there are two significant differences between the cases. There the plaintiff was a mature experienced workman; here David was an inexperienced boy. There Spradlin fully appreciated the risks that he was taking; here David’s testimony, construed most favorably to him, would have justified the jury in finding that owing to his inexperience lie thought that the particular method by which he tried to accelerate the machine involved no danger to him. In fact, he stated that he would not have done what he did if he had thought that there was any possibility of getting his hand into the fan. Under such decisions as Everton Silica Sand Co. v. Hicks, 197 Ark. 980, 125 S.W. 2d 798 (1939), there was an issue of fact for the jury.

A subordinate issue involves the use of David’s discovery deposition. On cross-examination counsel for the defendant read a number of questions and answers from that deposition and elicited David’s admission of their accuracy. On redirect examination the court refused to allow counsel for the plaintiff to clarify those answers by referring to other parts of the deposition. In fairness to the plaintiff the proposed clarification should have been permitted. As we construe the statute, the defendant in effect offered part of the deposition in evidence, thereby entitling the plaintiff to bring in other relevant excerpts that were admissible under the rules of evidence. Ark. Stat. Ann. §28-348 (d) and (d,4) (Eepl. 1962).

Reversed.


author: Lyle Brown, Justice.

text:
    Edward Waterman v. Jim Walter Corporation, et al
    4639
    431 S.W. 2d 748
    Opinion delivered September 23, 1968

      Edward H. Patterson for appellant.

      Hardin, Barton, Hardin & Jesson for appellees.
   Lyle Brown, Justice.

This suit steins from a vehicular .collision between appellant Edward Waterman, and a driver for Jim Walter Corporation. The latter had leased a vehicle from Southern Auto Leasing Company. Jim .Walter, sued Waterman for damages, and Southern was later permitted to join in the case as a plaintiff. Jim Walter and Southern recovered judgment. Waterman appeals,, questioning the right of Jim Walter, the lessee, to bring the suit. Secondly, Waterman questions the right of Southern to be made a party plaintiff since Southern is a foreign corporation having no office in Sebastian County.

The case was tried to a jury but the appeal is based on a partial record which incorporates only the pleadings, motions, orders thereon, and judgment.

When Jim Walter filed suit for damages to the vehicle, it alleged ownership. Other pertinent allegations are that Jim Walter is authorized to do business in Arkansas; that its principal • office is in Sebastian County; that the accident occurred in Johnson County, the residence of Waterman; and that Waterman’s negligence was the sole cause of the collision. Actually, Jim Walter sued Waterman and his father, alleging young Waterman to have been the agent of his father; however, the jury found against the plea of agency, from which there was no appeal.

The Watermans filed an answer and cross-complaint. They denied Jim Walter owned the damaged vehicle forming the basis of the complaint. However, the Watermans alleged some type of lease agreement between Jim Walter and Southern Auto Leasing Corporation.

Jim Walter subsequently filed a “Motion to Allow Plaintiff to Amend Complaint.” By that pleading it was sought to make Southern a party plaintiff in view of the Watermans’ allegation of ownership. That motion was granted on the day of filing. The next day an amendment was filed, alleging ownership of the car in Southern and asserting that Jim Walter was in possession under a lease agreement. A copy of that amendment was served on the Watermans’ counsel.

Six months later the Watermans moved to dismiss the amendment. The thrust of the argument was (1) that they had no notice of the filing of the motion to amend, (2) that Jim Walter was never legally in court because it did not own the automobile as alleged in the original complaint, and (3) that Jim Walter had no residence in Sebastian County. That motion was overruled and the action went to trial.

First, it is here contended that Jim Walter’s original complaint did not state a cause of action in that Jim Walter’s asserted ownership was a misstatement. However, by amendment, Jim Walter asserted a bailee interest which allegedly entitled it to recover for damages to the automobile. A copy of the amendment was received by Waterman’s counsel. Permission was granted Jim Walter to amend without notice to Waterman, but, without present reference to that part of the amendment making Southern Leasing a party plaintiff, we see no prejudice. Jim Walter merely changed its position from that of alleged owner to lessee and reasserted its right to recover. Appellant contends, and for the first time on appeal, that the lease was not- attached to the pleadings. That attachment was not necessary to state a cause of action.

Appellant next asserts that the pertinent venue statute does not include the right of the lessee to bring this suit. Ark. Stat. Ann. § 27-611 (Eepl. 1962) permits the suit to be brought in the county of the residence .of the owner of the property. It is true Jim Walter was not the owner of the property but it did assert such an interest as might give it a right to recover for damages to the vehicle. Assuming, without deciding, that Sebastian County was not the proper venue, the Water-mans waived any defect in venue when they filed their answer and cross-complaint. Further, in announcing ready for trial, the Watermans made no objection to venne.

Regarding the right of a bailee to bring suit for damages to the bailed vehicle, we think the right is well settled. Ferguson & Son v. White, 197 Ark. 183, 121 S.W. 2d 894 (1938); 9 Blash. Auto § 5857 (1955); 8 Am. Jur. 2d, Bailments § 247.

The status of the judgment in favor of Southern Leasing is different from that of Jim Walter. Southern Leasing was made a party plaintiff without notice to the Watermans; no summons was ever served on the Watermans by Southern Leasing; and the Watermans never filed any pleading against Southern Leasing which would waive their rights. In the first place, Southern Leasing had no semblance of statutory authority to sue the Watermans in Sebastian County because it was a foreign corporation and maintained no office in Arkansas. The trial court should have granted the Water-mans’ motion to dismiss Southern Leasing from the case.

Affirmed as to Jim Walter, reversed and dismissed as to Southern Leasing.


author: John A. Fogleman, Justice.

text:
    Josie Railey Mays v. Eule Miller & Geneva Miller
    5-4642
    431 S.W. 2d 750
    Opinion delivered September 23, 1968

      Paul K. Roberts for appellant.

      Tom Haley for appellees.
   John A. Fogleman, Justice.

This appeal involves-the question whether the finding of the' trial judge that ■ appellees were innocent purchasers for value of certain real property is against the preponderance of the evidence.

Appellant, Josie Bailey Mays, was the owner of Lots 6 and 7 in Block 8 .of Lincoln Park Addition to Warren on March 6, 1958 when she executed a warranty deed conveying it to Dr. H. H. Bhinehart. Appellant had previously applied for and obtained from Dr. Bhinehart an amount of money sufficient to retire an indebtedness secured by deed of trust conveying this property. The chancellor’s finding that, as between the parties, this deed was a mortgage is amply supported by the evidence. '

Dr. Bhinehart filed his deed for- record April-,8, 1958. On September 12, 1959, he conveyed the lots to appellees by warranty deed recorded on the same date. Bhinehart died in 1960. This suit was brought on August 17, 1966 by appellant to cancel appellees’ deed, and the deed that she executed to Dr. Rhinehart. After hearing all the evidence, the chancellor found that appellees were innocent purchasers for value who had no notice, actual or constructive, that appellant was claiming an interest in the land. He dismissed the action.

In February 1959, after execution of the deed to Dr. Rhinehart, appellant was called to Arizona because of the illness of members of her family and remained there until 1965, except for two visits to Warren in 1960. Her husband remained in her home on the property in question, but he subsequently surrendered it to Dr. Rhinehart. Appellant was advised of this development by her sister in Warren. Upon her first return visit she asked Dr. Rhinehart why he sold her property and furniture, but he gave no reply.

Eule Miller testified: He first found out about the property when he saw a “For Sale” sign on the porch of the house one Sunday while he and his wife were out driving. He then talked to his employer, George Smith, who made arrangements for him to borrow money to purchase it. He testified that he paid $1,300 for the place and spent $300 on the bathroom and $50 on the roof. When he moved in about two weeks after borrowing the money, there was furniture nailed up in a room, but Dr. Rhinehart asked to let it remain there for a few days. About two weeks later someone he did not know came and got the furniture. He did not know to whom the furniture belonged. He cannot read, but his wife read the “For Sale” sign. Dr. Rhinehart said that he owned the property and Mr. Smith had the title checked. He did not know appellant or know that anyone else claimed the lots until this suit was filed. No one had objected to his living in the house.

Miller’s wife corroborated his testimony. She denied knowing appellant or having any knowledge that appellant claimed the property before the suit was filed.

Tax receipts exhibited show that appellees paid the taxes on the lots in the years 1958 through 1964.

Appellant relies on three propositions developed in the testimony to sustain her contention that appellees were not innocent purchasers without notice. They are:

1. Although Eule Miller testified that he saw the “For Sale” sign on the house and told his wife that it was for sale, he admitted on cross-examination that he could not read and that his wife read the sign.
2. There is no showing that appellees examined the record title.
3. The furniture appellees found in one room of the house should have put them on notice of an adverse claim.

None of these facts, singly or in combination, would have been sufficient to show either actual or constructive notice to appellees of appellant’s claim. The slight discrepancy in Eule Miller’s testimony was explained by him. This had to do with a matter that was not significantly material to any issue. "While it might have had some bearing on his credibility or the weight to be given his testimony, it certainly did not constitute evidence of notice. Obviously, the chancellor, who saw and heard the witness, did not feel that Miller’s credibility was destroyed, and we cannot say that he was in error.

While the failure to make any examination of title might constitute a circumstance to be considered in determining a purchaser’s good faith, Miller’s statement that his employer caused the title to be examined is undisputed. The fact that a bank made a loan secured by this property tends to corroborate this testimony. An examination of the title would not have indicated that Rhinehart’s recorded deed was in fact a mortgage. There is no reason to say that the Millers’ explanation that they thought the fourniture belonged to Dr. Rhine-hart is not plausible and reasonable, or that the mere presence of the furniture and its subsequent removal at a time consistent with Rhinehart’s suggestion, by a person unknown to them, was sufficient to have provoked any inquiry by appellees. Apparently Dr. Rhinehart’s actions were consistent with his ownership of these items because appellant found her bedspread on his bed and asked him why he sold her furniture.

Appellant argues that Dr. Rhinehart could convey no title to appellees because he had none to convey. It is well settled that one who purchases property in good faith and pays a valuable consideration without notice of secret equities becomes the owner thereof. Beloate v. Smith, 214 Ark. 884, 218 S.W. 2d 361.

.One who conveys land to another upon a fraudulent representation by the latter may not have relief against a subsequent purchaser for value without notice of the fraud. Davidson v. Davidson, 42 Ark. 362.

The findings of the trial judge are supported by a dear preponderance of the evidence. Consequently, there was no reason for him to consider defenses of laches, estoppel or the statute of limitations.

The decree is affirmed.

      The note evidencing the loan was dated September 16, 1959.


author: J. Fred Jones, Justice.

text:
    Insured Lloyds v. Mary Beth Ahrend
    4661
    431 S.W. 2d 740
    Opinion delivered September 23, 1968

      R. H. Mills for appellant.

      Williams & Williams for appellee.
   J. Fred Jones, Justice.

The appellee, Mary Beth Ahrend, is an individual resident of Benton County, Arkansas, and the appellant, Insured Lloyds, is an insurance company doing business in Arkansas. Mrs. Ahrend sued Lloyds in the Benton County Circuit Court to recover the value of a jeep station wagon insured by Lloyds against accidental loss by fire under the terms of a policy issued to Mrs. Ahrend by Lloyds. Lloyds defended on the theory that the loss was not an accidental loss by fire, as defined in the policy, and that the loss was not covered by the insurance contract. A jury trial resulted in a judgment in favor of Mrs. Ahrend for $1,650.00, and Lloyds has appealed designating the following points for reversal:

“1. Appellee’s testimony as to Blue Book values is incompetent, hearsay, without proper foundation and completely untrustworthy, and the Trial Court committed reversible error in admitting such testimony as evidence.
“2. Appellee’s testimony as to why she is suing for less than Blue Book value is incompetent, ■ ■ immaterial, irrelevant, without relationship to the issues in this case, and the admission of such testimony by the Trial Court is prejudicial error and grounds for reversal.
“3. The Trial Judge’s comments in the presence and hearing of the Jury amounted to comments upon the weight and sufficiency of the evidence preventing Appellant from receiving a fair trial and the Court’s refusal to grant Appellant’s Motion for Mistrial constitutes reversible error.
“4. Appellee’s trip to Oklahoma and the mechanical difficulties experienced at Prairie Grove, Arkansas, were material for the purpose of impeaching Appellee’s testimony, and for the further purpose of establishing a true, actual cash value of appellee’s vehicle prior to any fire loss, and the Court’s exclusion of such testimony as well as the Court’s remarks as to the weight and sufficiency thereof, amounted to prejudicial error and grounds for reversal.
“5. The testimony of the witness, Bill Frost, as to the value of Appellee’s vehicle prior to any loss by fire was admittedly speculative and a wild guess, was immaterial and without any foundation in fact, and the Trial Court committed reversible error in allowing same to be admitted as evidence.
“6. The Trial Court committed reversible error in refusing to give the Jury Defendant’s Instruction No. 1 as to circumstantial evidence.”

The appellant has désignated the entire record on appeal, and the transcript contains 114 pages of testimony. All of the points relied on by the appellant have to do with the admissibility of testimony, bnt the appellant has failed to abstract the testimony in its brief, as required by Rule 9 (d) of this court.

Rule 9 (d) is as follows:
“The appellant’s abstract or abridgment of the record should consist of an impartial condensation, without comment or emphasis, of only such material parts of the pleadings, proceedings, facts, documents, and other matters in the record as are necessary to an understanding of all questions presented to this court for decision. The abstract shall contain full references to pages of the record. When testimony is abstracted the first person rather than the third person shall be used. The Clerk will refuse to accept a brief that is not abstracted in the first person. Whenever a map, plat, photograph, or other exhibit must be examined for a clear understanding of the testimony, the appellant shall reproduce such exhibit by photography or other process and attach such reproduction to the copies of the abstract filed in this court and served upon the opposing counsel, unless this requirement is shown to be impracticable and is waived by the court upon motion.”

Appellant argues its points separately under the heading “Brief, Abstract of Testimony and Argument,” and the only testimony abstracted at all, is that portion which appellant quotes in support of its argument and consists only of isolated portions of the testimony lifted verbatim, in question and answer form, from the trans-script. Had the testimony been abstracted, these excerpts from the testimony might serve the purpose of emphasizing the arguments advanced on the points involved, but such excerpts from the testimony serve no purpose at all in acquainting the members of this court with exactly what this case is all about.

We appreciate the expense involved in preparing records for appeal to this court and we do not like to dismiss appeals without reaching the merits. We are forced to take such action, however, when the appellant fails to abstract such portions of the record that will enable us to understand the questions presented for decision. There are seven individual members of this court who must form separate individual opinions on the merits of each case before us on appeal. The litigants, as well as the trial court and practicing attorneys, are entitled to the separate and independent consideration by each member of this court of the questions presented on appeal, and this can only be accomplished by separate and independent inquiry into the facts submitted and by separate inquiry into the law applicable to the facts in each case. The work load of this court does not permit each of the seven members the time that would be necessary to glean the facts and issues in a case on appeal from a single, and usually disorganized, transcript of the record from a trial court. That is the reason for multiple copies of briefs on appeal and is the reason for appellate procedure Rule 9 (d).

The principal errors alleged here are the admission in evidence of testimony that should have been excluded and the exclusion of testimony that should have been admitted. Without examination of the original transcript, it is impossible for us to determine whether the appellant is right or wrong in its contentions.

As we have said many times before, we are unab]e to consider this appeal on its merits since appellant has failed to comply with Rule 9 (d). (Vire v. Vire, 236 Ark. 740, 368 S.W. 2d 265; Love v. State Farm Mutual Auto Ins. Co., 241 Ark. 161, 407 S.W. 2d 118; Allen v. Overturf, 236 Ark. 387, 366 S.W. 2d 189; Routen v. Van Duyse, 240 Ark. 825, 402 S.W. 2d 411; Walden v. Mendleson, 240 Ark. 1019, 403 S.W. 2d 745; Holt v. Moody, 234 Ark. 245, 352 S.W. 2d 87; Anderson v. Stallings, 234 Ark. 680, 354 S.W. 2d 21; Tucker v. Haskins, 243 Ark. 826, 422 S.W. 2d 696).

The judgment of the trial court is affirmed.


author: Conley Byrd, Justice.

text:
    M.F.A. Mutual Ins. Co. v. Arnell J. Wallace, Special Administrator
    4606
    431 S.W. 2d 742
    Opinion delivered September 23, 1968

      Wright, Lindsey & Jennings for appellant.

      Hall & Tucker and John F. Lovell, Jr. for appellee.
   Conley Byrd, Justice.

Appellant, MFA Mutual Insurance Company, issued simultaneously to' Arnell J. Wallace its two separate automobile liability policies, one being policy 3STo. 3-1-876871-001 on a 1962 Pontiac automobile, and the other No. 3-1-876871-002 on a 1960 Buick automobile. Both policies contained uninsured motorist coverage in the amount of $10,000. Mary Ann Wallace, an insured under the policies, was injured in an uninsured automobile owned by Jerry W. Franklin resulting in her death. tier medical bills exceeded $12,000. After suit was filed but prior to trial MFA paid the $10,000 under the uninsured motorist coverage on policy No. 2, but denied liability on the other policy because of the “other insurance clause.” The trial court held that the “other insurance clause” was contrary to Ark. Stat. Ann. § 66-4003 (Repl. 1966) and awarded judgment against MFA for $10,000 on policy No. 1 in favor of Arnell J. Wallace, Special Administrator of the Estate of Mary Ann Wallace, deceased.

The “other insurance clause” in MFA’s policy provides :

“5. Other Automobile Insurance in the Company — With respect to any occurrence, accident, death, or loss to vdrich this and any other automobile insurance policy issued to the named insured or spouse by the Company also applies, the total limit of the Company’s liability under all such policies shall not exceed the highest applicable limit of liability or benefit amount under any one policy.”
Ark. Stat. Ann. § 66-4003 provides:
“No automobile liability insurance, covering liability arising out of the ownership, maintenance, or use of any motor vehicle shall be delivered or' issued for delivery in this State with respect to any motor vehicle registered or principally garaged in this State unless coverage is provided therein or supplemental thereto, in not less than limits described in section 27 of Act 347 of 1953 [§ 75-1427], as amended, under provisions filed with and approved by the Insurance Commissioner, for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles because of bodily injury, sickness or disease, including death, resulting therefrom; provided, however, that the coverage required under this section .shall not be applicable where any insured named in the policy shall reject the coverage.”

Section 27 of Act 347 of 1953 as amended (Ark. Stat. Ann. § 75-1427 [Supp. 1967]) is that portion of the Motor Vehicle Safety Responsibility Act requiring minimum limits of not less than $10,000 because of bodily injury to or death of one person in any one accident and not less than $20,000 because of bodily injury to or death of two or more persons.

In Varvil v. MFA, 243 Ark. 692, 421 S.W. 2d 346 (1967), we gave full effect to the “other insurance clause” here involved, as applied to funeral benefits under two automobile liability policies issued by MFA. Appellee concedes that the “other insurance clause” Avould equally apply here were it not for the statute quoted above.

The cases interpreting uninsured motorist statutes go both ways on the issue of stacking multiple policies covering the same accident or injury, Safeco Insurance Company v. Robey, 399 F. 2d 330, (8th Cir. 1968). However, in looking at the terms and purpose of our statute, Ave find that the “other insurance clause” is not repugnant to Ark. Stat. Ann. § 66-4003, supra. Here MFA furnished uninsured motorist coverage “in not less than limits described . . .” in the Safety Responsibility Act. Furthermore, since the purpose of the statute is “for the protection of persons insured . . . who are legally entitled to recover damages from owners or operators of uninsured motor vehicles ...” it is obvious that the statute was not designed to provide the insured Avith greater insurance protection than would have been available had the insured been injured by an operator AAdth a policy containing the minimum statutory limits required by the Motor Vehicle Safety Responsibility Act, Ark. Stat. Ann. § 75-1427 (Supp. 1967). See Maryland Casualty Company v. Howe, 106 N.H. 422, 213 A. 2d 420 (1965).

Reversed.


text:
    Joseph Van Duyse, Jr. v. Guy E. Fleming
    4650
    432 S.W. 2d 10
    Opinion delivered September 23, 1968
    [Rehearing denied October 28, 1968.]

      Terral, Rawlings, Matthews & Purtle for appellant.

      Patten & Brown for appellee.
   Conley Byrd, Justice.

Appellant Joseph Van Duyse, Jr., and Appellee Guy E. Fleming are adjoining landowners. Fleming maintains an earthen dam on his property. The water from the dam drains across appellant’s property. Van Duyse sought an injunction to abate the maintenance of the pond and for damages. Appellee asked for the enforcement of a prior decree between his predecessor in title and appellant. Both parties have appealed.

The record shows that in 1958 Van Duyse filed an action, #110,320, against H. F. Hall, et ux, appellee’s predecessor in title, involving the same subject matter. The trial court there found that the pond drained into a natural drainageway that existed at a point 457 feet West of the East corner of the common boundary; that Van Duyse had erected a levee on his property which obstructed the drainageway; and directed the removal of Van Duyse’s levee.

The water from appellee’s dam drained in a southerly direction across appellee’s property, to the common boundary and then southerly across appellant’s property into Ink Bayou. This was the natural drainageway which the trial court found had been obstructed by the levee appellant had built hill to hill across his north boundary. At a subsequent hearing, it appears that appellant had filled in the low area (where the drainageway had been) and was using it for pasture. East of the original drainageway on appellant’s land is a swale which runs south across Van Duyse’s land into Ink Bayou. At the subsequent hearing, the trial court modified the order in #110,320, directing Van Duyse to excavate a ditch along his north boundary line from the point where his levee dammed the natural drainage-way eastward to a point just north of the swale where appellant had installed drain tile. Appellant was also ordered to install larger drain tile through the levee, sufficient to carry the normal flow of water through the swale into Ink Bayou.

The testimony shows that Van Duyse did construct the larger drain through the levee, but did not excavate the ditch. After Fleming purchased the property from Hall, Van Duyse got Fleming to construct a ditch from the pond drain southeast to the point of the drain through Van Duyse’s levee. Subsequently, because of complaints from Van Duyse, the parties by agreement closed the new ditch. Later Van Duyse went upon Fleming’s property and opened the new ditch with notice to Fleming.

The Chancellor in the present litigation denied Van Duyse’s request for an injunction; denied any damage? because of silting; directed Van Duyse to comply with the decree in #110,320 and to maintain the swale across his property in snch manner as to remove the flow of water from Fleming’s property; and ordered Fleming to maintain the new ditch dug hy him.

Yan Duyse here claims that he has a right to fend off surface water, that the decree in cause #110,320 is not conclusive of the issues, the trial court erred in ordering him to maintain the swale to Ink Bayou to remove the flow of water from Fleming’s land, and in denying him damage caused by the silt.

We hold that all of the issues, except the claimed damages are concluded by the decree in cause #110,320. An existing final judgment or decree is conclusive of rights, questions and facts in issue as to the parties and their privies, Baumgartner v. Rogers, 233 Ark. 387, 345 S.W. 2d 476 (1961). As to the silt damages, we cannot say that Chancellor’s denial thereof upon the ground that the damage was invited is contrary to the weight of the evidence.

The proof is that the new ditch constructed by Fleming will not be necessary when Yan Duyse constructs the drainage ditch along his levee. Furthermore, Yan Duyse complains of the silting from the ditch. Under the record we find that the Chancellor erred in requiring Fleming to maintain the new ditch.

Affirmed on appeal and reversed on cross-appeal.