author: Carretón Harris, Chief Justice.

text:
    American Homestead Ins. Co. v. Denny.
    5-3379
    384 S. W. 2d 492
    Opinion delivered December 7, 1964.

      W. B. Brady, Spitzberg, Bonner, Mitchell & Hays, By: Beresford L. Church, Jr., for appellant.

      McMath, Leatherman, Woods & Youngdahl, for appellee.
   Carretón Harris, Chief Justice.

This litigation involves the construction of the language of the “air travel” clause in an insurance policy issued on the life of Ralph L. Denny. The policy is entirely an accident policy, and the company agrees to pay benefits up to $10,000.00 for loss of life or certain bodily injuries sustained by the insured. As to AIR TRAVEL, the company is liable for:

“Injury sustained in consequence of riding as a passenger, and not as an operator or crew member, in or on, boarding or slighting from, or being struck by any aircraft having a current and valid airworthiness certificate or any transport type aircraft operated by the Military Air Transport Service (MATS) of the United States or by the similar air transport service of any duly constituted governmental authority of any recognized country. ’ ’

While on temporary duty at Loose Bay Air Base, Labrador, Denny, an Airman Second Class in the United States Air Force, was struck and killed by a propellor of a KC-97L (Stratofreighter). Mrs. Pearl Denny, mother of Ralph, the beneficiary under the policy," made claim to the insurer, American Homestead Insurance Company, appellant herein. The company denied her claim on the ground that Denny was a crew member of the plane, and also on the ground that the plane was of a type excluded under the provisions of the policy. Suit was thereafter instituted, and the court, sitting as a jury, found for Mrs. Denny, holding that “Airman Ralph Denny was not a crew member of the particular plane that caused his death. Denny was not struck by an ‘aircraft having a current and valid airworthiness certificate or any transport type aircraft operated by the Military Air Transport Service (MATS) of the United States,’ but that he was fatally injured when struck by an aircraft operated ‘by the similar air transport service of any duly constituted governmental authority of any recognized country. ’ ’ ’ The judgment was thereupon entered in the principal amount of $10,000.00, together with the sum of $1,200.00 as penalty, and attorneys fees in the amount of $1,000.00. From such judgment appellant has appealed.

For reversal, appellant asserts that Denny was not covered under the policy because (1) he was a crew member of the aircraft which caused his death, and (2) Denny was struck by an aircraft of a type excluded from coverage under the policy.

Inasmuch as ive think appellant must prevail under the second contention, we see no necessity to discuss the question of whether he was a crew member of the aircraft which caused his death.

Let it first be said that it is agreed that the term, “airworthiness certificate” has no application to the facts in this case, since this certificate is only issued to civil aircraft. Likewise, it is admitted by appellee that the KC-97G plane is not a MATS aircraft (and, in fact, the court so found).

At the outset, it might be well to discuss some of the functions of MATS (Military Air Transport Service). Air Force regulations relate that the overall mission of this branch of the Air Force “is to maintain in a constant state of readiness, the military airlift system necessary to perform all airlift tasks under emergency conditions assigned by the Joint Chiefs of Staff in approved war plans and appropriate JCS and Air Force guidance documents. MATS will supervise and operate the Air Weather Service, the Air Photographic and Charting Service, the Air Rescue Service, a domestic aeromedical evacuation system, and the 1254th Air Transport Wing, Special Missions.” Additional functions mentioned, and covering several pages, include individual air transport service for the President of the United States and other government officials and foreign dignitaries, and maintaining liaison with the civil air industry. There are numerous other functions performed by MATS, which, however, are not pertinent to this litigation.

The KC-97G plane (a propeller of which struck Denny) is a part of SAC (Strategic Air Command), and the function of SAC is to bomb foreign targets in time of war. The KC-97G is a tanker plane, and is used to refuel bombers while in flight. Actually, it may be said that it serves as an airborne gasoline tank truck. Of course, there is the similarity that both a MATS plane and the KC-97G are aircraft belonging to the United States Air Force, lmt we see no other similarity that would bring this type of plane under coverage in the accident policy. A passenger automobile and a gasoline truck are also similar in that both are operated by gasoline engines, both have four wheels, and both have headlights and taillights, but it could not seriously be argued that these two types of vehicles render the same service.

It will be noted that the air travel clause provides that coverage is afforded where one is injured while being transported (also boarding, alighting from, or struck) by an aircraft operated “by the Military Air Transport Service of the United States or by the similar air transport service of any duly constituted governmental authority of any recognized country.” This last, to us, plainly means that one is covered when he is transported in, or struck by, a plane of a foreign country, which is a part of the air branch of that nation, 'the duties of which correspond to those of MATS in this country. However, the “similar [to MATS] air transport service” refemed to includes only the transport service provided by a “recognized country.” In other words, there would be no coverage if a person were riding in a transport plane belonging to Red China, even though the plane was a part of the Chinese air arm that corresponded with MATS.

Appellee argues that this last portion of the clause does not refer to a foreign country. She seems to contend that the words, “recognized country,” refer to the United States, and that SAC is a governmental authority operating planes for a purpose similar to MATS. In St. Paul Fire & Marine Ins. Co. v. Kell, 231 Ark. 193, 328 S.W. 2d 510, this court, quoting from an earlier case, said:

“It is the duty of the Courts to construe the language used by the parties and such construction is performed by considering the sense and meaning of the terms which the parties have used as they are taken and understood in their plain ordinary and popular sense.”

We think appellee’s argument is erroneous under the plain and ordinary interpretation of the words used, and we find no substantial evidence to support the judgment of the trial court.

Reversed and dismissed.

Robinson and Johnson, JJ., dissent.

       In a. letter by Colonel Paul P. Douglas, Jr.', (admitted by stipulation) it is pointed out that the Stratofreighter was not assigned to, or connected with, the Military Air Transport Service, and it was not transporting gasoline, parts or material to be used by the air transport service. Captain Richard F. Leisman stated (in a letter admitted by stipulation) that Denny was assigned to the 384th Organizational Maintenance Squadron, 384th Bombardment Wing, Little Rock Air Force Base, Strategic Air Command, and the plane involved was also assigned to the same unit.

       As a matter of interest, it might be pointed out that the policy involved is not one which, to use a comparison, provides coverage only when a person is injured “riding a one-eyed red mule on a muddy road.” Actually, the policy affords rather broad coverage for the amount of annual premium paid ($10.00). Goverage is provided for any injury sustained in consequence of driving, riding in, or being struck by an automobile, and further coverage is afforded for injury sustained while riding as a passenger, boarding or alighting from, or being struck by any aircraft holding a valid airworthiness certificate, as well as coverage under the clause quoted in this opinion. The policy provides double indemnity benefits if the injury .is sustained while one is riding as a fare-paying passenger on any public conveyance owned and operated by a common carrier, which would, of course, include commercial planes, trains, and busses.


source: Caselaw Access Project

author: Ed. F. McFaddin, Associate Justice.

license: Public Domain

text:
    Reddell v. Mo. Pac. R.R. Co.
    5-3381
    384 S. W. 2d 486
    Opinion delivered December 7, 1964.

      MoMath, Leatherman, Woods & Youngdahl, for appellant.

      William J. Smith, W. A. Eldredge, Jr., for appellee.
   Ed. F. McFaddin, Associate Justice.

This is a case brought by an employee against the railroad company under the provisions of the Federal Employer’s Liability Act, as found in United States Code Annotated, Title 45, % 51-60, inclusive. The appellant, James R. Reddell was plaintiff below; and the appellee, Missouri Pacific Railroad Company, was defendant below. For convenience we will refer to the parties as they were styled in the Lower Court. The Trial Court granted a summary judgment for the defendant and the plaintiff brings this appeal. The sole issue is whether the defendant was guilty of any negligence. If so, the judgment of the Trial Court must be reversed so that the case may be submitted to a jury.

The facts' are undisputed. They were established both by stipulation and by defendant’s answers to plaintiff’s interrogatories. Reddell was a man 33 years of age and for some time had been working as a helper on a Jordan spreader. Pictures in the transcript show the Jordan spreader to be about the size of an ordinary railroad car. It is mounted on wheels like a boxcar and rolls on the railroad track. The cab is on the front and back of the cab there are blades on each side of the car which may be retracted against the car or extended out for ditching and grading of the railroad right-of-way. The Jordan spreader is operated from a cab in the extreme front, which cab is about 90 inches long and 86 inches wide; and ingress and egress to the cab is by a doorway at the back of the cab. The floor of the cab is 12% inches lower than the floor of the platform on which a person must exit from the cab. The doorway from the cab to the platform is about 24 inches wide and about 64% inches high. Just back of and above the doorway there is an iron beam. In leaving the cab the step up to the platform is 12% inches high; and 17 inches outside of the cab door on the platform side of the equipment there is the overhead steel beam previously mentioned which is a regular part of the spreader equipment.

At about 8:20 A.M. on a clear day in April, the Jordan spreader was on the railroad track and was not in motion. Reddell was in the cab; and in attempting to leave the cab he bumped his head against the iron beam over the doorway, and received injuries, for the compensation of which he brought this action. He alleged that the railroad company was guilty of negligence in failing to furnish him a safe place to work in that the iron beam above the doorway was too low. The reason Reddell bumped his head was because when he undertook to leave the cab he either failed to stoop sufficiently to pass under the iron beam, or raised to an erect position too soon and thus bumped his head against the said overhead steel beam. He claimed that the railroad company was negligent in failing to furnish him a safe place to work because he should have been furnished a place where he could make an exit from the cab without bumping his head. On the undisputed facts the Trial Court granted the defendant’s motion for summary judgment, having reached the conclusion that the plaintiff had failed to show the defendant to have been guilty of any negligence.

As we have .heretofore stated, this case was filed under the Federal Employer’s Liability Act, which is “the law unto itself”; and State courts must construe the Act as the Supreme Court of the United States has construed it. Some of the numerous cases decided by that Court involving the Act, are: New York Central & H. R.R. Co. v. Tonsellito, 224 U.S. 360, 37 S. Ct. 620, 61 L. Ed. 1194; Mo. Pac. R. v. Aeby, 275 U.S. 426, 48 S. Ct. 177, 72 L. Ed. 351; Rogers v. Mo. Pac., 352 U.S. 500, 77 S. Ct. 443, 1 L. Ed. 2d 493, and Gallick v. B. & O. R.R., 372 U.S. 108, 83 S. Ct. 659, 9 L. Ed. 2d 618. The Act has several times been before this Court. Two of our cases are: Mo. Pac. R. Co. v. Hathcock, 200 Ark. 294, 139 S.W. 2d 35; and Mo. Pac. R. Co. v. Davis, 208 Ark. 86, 186 S.W. 2d 20.. A summary judgment should never be granted against a plaintiff in a case like this one if there is any substantial evidence-on which, a jury might base a finding that the defendant had been guilty of negligence. Contributory negligence is not a defense, but may be shown only to reduce the damages. U.S.C.A. Title 45, § 53. But in order to recover, the plaintiff must show the defendant to have been negligent. Mo. Pac. v. Davis, supra. In the excellent briefs filed by both sides, many cases have been cited, some of them being: Stanczak v. Penn. Rr. Co. (7th Cir.) 174 F. 2d 43; Delevie v. Reading Co. (3rd Cir.), 176 F. 2d 496; Armenia v. Wyer (2nd Cir.), 210 F. 2d 592; Slaughter v. Atlantic Coastline, 112 U.S. App. D.C. 327, 302 F. 2d 912; Chojinski v. New York Central, 151 A. 122, 8 N.J. Misc. 576; Werner v. Illinois Central, 309 Ill. App. 292, 33 N.E. 2d 121; Smith v. Schumacker, 30 Cal. App. 2d 251, 85 P. 2d 967; Louisville & Nashville R. Co. v. Cooke, 267 Ala. 424, 103 So. 2d 791; Butler v. Gay (Fla. App.), 118 So. 2d 572; and Coleman v. Gulf, Mobile & Ohio, 17 Ill. App. 2d 220, 149 N.E. 2d 656.

After giving full consideration to the applicable statutes and the adjudicated cases, and the facts in the case at bar, we reach the conclusion that the plaintiff has entirely failed to show that the railroad company was guilty of any negligence. This Jordan spreader was a standard item of railroad equipment and there is no showing that the overhead iron beam on this spreader was different from that on any other' spreader. There is no showing that the overhead iron beam was not an essential part of the mechanism of the Jordan spreader. There is no claim that the iron beam was defective, or that this Jordan spreader was defective in any way, or that the iron beam was misplaced or lower on this spreader than on any other. Plaintiff Reddell had worked on this particular spreader for some time. His height is not shown in the record. To hold the railroad company to have been negligent in this case, would be to say that the use of this Jordan spreader by the railroad company was ipso facto negligence. Such is not shown. The plaintiff has failed to show any negligence by the railroad company in this case.

Affirmed.


author: - George Bose Smith, J. Ed. F. McF addin, Associate Justice

text:
    Ark. Foundry Co. v. Farrell.
    5-3230
    385 S. W. 2d 26
    Opinion delivered December 7, 1964.
    [Rehearing denied January 11, 1965.]

      Barber, Henry, Thurman & McCashill, House, Holmes, Butler & Jewell, John B. Moore, Jr., Owens, McHaney & McHaney, for appellant.

      Sharp & Sharp, By James B. Sharp and John D. Thiueatt, for appellee.
   - George Bose Smith, J.

This is a suit by the appellants to enforce laborers’ and materialmen’s liens arising from the partial construction of a warehouse building in the city of Brinkley. The only serious question is whether the lienors are entitled to enforce their claims against the land as well " as against the building. The chancellor held that the claimants have no lien against the land.

The trial extended over several days, producing a record comprising eleven volumes of pleadings, testimony, and exhibits. We find it unnecessary to set out the conflicting evidence in detail; for even if it should be conceded that the proof establishes the fact situation relied upon by the appellants in their brief they are still not entitled to a reversal of the decree.

The -unfinished warehouse was built by Charles Malham and. his brother upon vacant lots owned by Paul M. Farrell as trustee. Farrell (and the members of his family for whom he acted as trustee) owned a number of substantial business enterprises. Over a period of years Charles Malham had been employed by the Farrell interests as a laborer and in other positions of neglible responsiblity. Malham and Paul M. Farrell were personal friends and fellow church members. On many occasions Farrell had befriended Malham, as, by advancing funds (which were not repaid). Some two years before the building in controversy was begum Farrell had assisted Malham in entering the business of buying and selling soybeans. In this venture Farrell provided much of the needed equipment and allowed Malham to occup3r some vacant land rent-free.

In the fall of 1958 Malham proposed that he expand his operations by constructing a $45,000 grain warehouse having a storage capacity of 341,000 bushels. Malham and Farrell discussed the proposal several times. Malham planned to finance the venture, at least in part, by collecting advance storage charges from farmers who would be patrons of the warehouse. Ultimately Malham succeeded in raising more than $20,000 in this fashion and used the money in the construction.

Malham testified that Farrell agreed to help him in the project and to permit him to use the land now in dispute either rent-free or under a long-term lease that would be agreed upon later on. Farrell contradicts Malham’s testimony to some extent, but in deciding this appeal we may take Malham’s version to be correct.

In October of 1958 Malham employed a contractor and began to erect the warehouse upon the Farrell land. Farrell insisted at the trial that Malham’s entry upon the land was an out-and-out trespass, but we think it plain that Farrell consented to Malham’s occupancy of the property. There is, however, no suggestion that Farrell made any affirmative statement or took any affirmative action that might lead the laborers and materialmen to think he meant to subject the land itself to their liens. All that can be said is that Farrell stood by and allowed the construction to proceed. Eventually Malham came to the end of his resources and had to abandon the venture before the building was complete. There is evidence that Malham succeeded in finding sufficient financial .backing to enable him to offer to buy the land, but Farrell refused to sell the property “at any price.” "Within apt time the appellants sought to enforce their liens against the land as well as against the improvement.

It is recognized by the appellants that, under the statute, they must show that their labor and materials were furnished pursuant to a contract with the owner of the land or with his agent. Ark. Stat. Ann. § 51-601 (1947). In contending that this burden has been met counsel rely upon a line of cases involving leases that required the tenant to make improvements upon the premises. In that, situation the tenant is held to be the landowner’s agent.

The landmark case is Whitcomb v. Gans, 90 Ark. 469, 119 S.W. 676. There the written lease obligated the tenant to make improvements and repairs costing not less than $400. In holding that under such a lease the tenant acted as the landlord’s agent in contracting for the construction work we left open the question whether the same rule would apply if the landlord had merely consented that the tenant might, at his option, improve the property: “We need not .go so far as to hold that a lessor may make his property subject to lien merely by consenting for the lessee to make improvements. The lessor, in the present case, did more than that. She not only consented to the making of the improvements, but she bound the lessee to do so.”

The issue left open in the Whitcomb case was squarely presented in Hawkins v. Faubel, 182 Ark. 304, 31 S.W. 2d 401, where the lease did not obligate the tenant to make the contemplated improvements. In holding that in this situation the land itself was not subject to a materialman’s lien we said: “We now decide the question reserved in the case of Whitcomb v. Gans, supra, and we hold that the lessor does not make his property subject to lien merely by consenting for the lessee to make improvements.”

'That case governs this one. Counsel for the lienors candidly concede that the terms of Malham’s supposed oral agreement with Farrell were “nebulous.” Not even' under the most favorable view that might be taken of Malham’s testimony can it be said that he assumed a duty to build the warehouse. At most he had Farrell’s oral permission to enter the land and erect the warehouse if he chose to do so. The essential element of a binding obligation is wholly lacking.

It is equally plain that, under our decisions, Farrell’s conduct did not create an estoppel. In considering a similar situation in Gunter v. Ludlam, 155 Ark. 201, 244 S.W. 348, we held: “There is no element of estoppel in the present case which would bar appellants from asserting the superiority of their [vendor’s] lien. Mere knowledge on their part that labor and material were furnished for the construction of the building, or even their consent thereto, in the absence of some affirmative act which indicated a willingness to subordinate their claim to that of the subsequent lienors was not sufficient to operate as an estoppel.” Accord: Fine v. Dyke Bros., 175 Ark. 672, 300 S.W. 375, 58 A.L.R. 907.

Counsel also cite McGehee Realty & Lbr. Co. v. Kennedy, 200 Ark. 926, 141 S.W. 2d 524. There we allowed the liens because we found that the owner of the lot had given it to his son, who contracted for the construction of a house upon the property. Thus the land was lienable, for the son had ownership rather than mere possession. See Mansfield Lbr. Co. v. Gravette, 177 Ark. 31, 5 S.W. 2d 726. In the case at bar Malham’s vague testimony did include an assertion that in the preliminary discussions Farrell promised to give him the lots, but a finding that a gift actually took place would be contrary not only to Malham’s own testimony but also to many convincing-facts and circumstances in the record.

It is with reluctance that we affirm this decree. Farrell, as the owner of the lots, is alone in being in a position to bid in the property without having to substantially destroy the value of the warehouse by removing it from the land. It appears that he is using his advantage to reap a windfall at the expense of the appellants. All that can be said is that his conduct is within his strict legal rights.

There are two motions for costs. The appellants designated an abbreviated record and submitted a short printed abstract. The appellees required that the whole record be brought up and a filed a supplemental abstract of 418 printed pages. The appellants ask reimbursement for the additional record. The appellees counter with a similar request for the cost of the supplemental abstract. We grant the appellants’ motion to the extent that unnecessary pleadings were designated at a cost of $284.40. In other respects both motions are meritorious in part only. Neither side attempts to point out the exact extent to which the added expense was unnecessary. We do not consider it to be our duty to sift the complete record and the supplemental abstract to determine just what additional costs might be allowed to each side.

Affirmed.

McF addin, J., dissents.

Ed. F. McF addin, Associate Justice

(dissenting). I cannot bring myself to vote to affirm this case because I am thoroughly convinced that a great injustice is being done, and that Mr. Farrell is being allowed to unjustly enrich himself at the expense of the appellants. The equity courts came into existence to relieve against the rigors and/or injustices of the law; and this case comes to us on appeal from' an equity court. I think it is our duty to mold a remedy for these appellants to prevent Mr. Farrell from unjustly enriching himself at their expense. I like this language from the Supreme Court of Florida:

“Its first maxim is that equity will not suffer a right to he without a remedy. ... In a changing world marked by the ebb and flow of social and economic shifts, new conditions constantly arise which make it necessary, that no right be without a remedy, to extend the old and tried remedies. It is the function of courts to do this. It may be done by working old fields, but, when it becomes necessary, they should not hesitate to ‘break new ground’ to do so.”

Our Court spoke out in like manner in Renn v. Renn, 207 Ark. 147, 179 S. W. 2d 657, wherein we said:

“. . . equity must always be as astute in preventing fraud as corrupt minds are in conceiving it. A court of conscience must keep the granted relief abreast of the current forms of iniquity. We would never naively refuse relief against fraud simply because there is no similar instance of such fraud in the books.”

I am willing to “break new ground” to prevent Mr. Farrell from being unjustly enriched at the expense of these appellants. The Majority Opinion recognizes that affirmance is unjust, when it says:

“It is with reluctance that we affirm this decree. Farrell, as the owner of the lots, is alone in being in a position to bid in the property without having to substantially destroy the value of the warehouse by removing it from the land. It appears that he is using his advantage to reap a windfall at the expense of the appellants. All that can be said is that his conduct is within his strict legal rights.”

I would build an estoppel against Mr. Farrell and not permit him to be heard to say that he had not given— or leased for a long number of years — the land to Malham on which the warehouse was • situated. Heretofore we have molded the remedy to grant relief when the equities demanded it. Quality Excelsior Coal Co. v. Reeves, 206 Ark. 713, 177 S. W. 2d 827. I think the same thing- should apply here. We could at least require that Farrell would receive a reasonable annual rent, for the use of the land on which the building was situated, for a period of ten years. That would be somewhat in line with the cited case that we have mentioned above.

In Keylon v. Arnold, 213 Ark. 130, 209 S. W. 2d 459, a son refused to care for his mother in her declining-years and, remaining silent, knowingly allowed her to convey the land to the appellee for the purpose of caring for the lady. We held that the son by his silence created an equitable estoppel against himself and that he could not, after his mother’s death and after appellee had fully performed the contract, be heard to assert that he (the son) owned the land; and we said in that case:

“It is well settled that equitable estoppel may arise by silence or inaction. In 19 Am. Jur. 661 this appears: £An estoppel may arise under certain circumstances from silence or inaction as well as from words or actions. Estoppel by silence or inaction is often referred to as estoppel by “standing by”, and that phrase in this connection has almost lost its primary significance of actual presence or participation in the transaction and generally covers any silence where there are a knowledge and a duty to make a disclosure. The principle underlying-such estoppels is embodied in the maxim “one who is silent when he ought to speak will not be heard to speak when he ought to be silent”.’
Trapnall v. Burton, 24 Ark. 371, is an opinion prepared by Albert Pike. In that opinion there is this classic language: ‘If a person who has the claim to, or is the owner of property real or personal, stands by and permits it to be sold, without giving notice of or asserting his right, he is estopped from setting up his claim or title, against the purchaser. Shall v. Biscoe, 18 Ark. 142; Corbett v. Norcross, 35 N.H. 99; Storrs v. Barker, 6 C.J.R. 344. “There is no principle,” said Chancellor Kent, in Wendell v. Van Renssalaer, 1 J.C.R. 354, “better established in this court, nor one founded on more solid considerations of equity and public utility, than that which declares, that if one man, knowlingly, though he does it passively, by looking on, suffers another to purchase and expend money. on land, under an erroneous opinion of title, without making known his claim, he shall not afterwards be permitted to exercise his legal right against such person. It would be an act of fraud and injustice; and his conscience is bound by this equitable estoppel”.’ ”

In Keylon v. Arnold, a person who claimed the land sat still and remained silent; and we held that he was estopped to later assert his claim after he had seen others in good faith act on the assumption that the person with whom the others were dealing was the actual owner of the land. I think that principle applies here. The Majority Opinion says that to reach such conclusion we would be doing violence to a number of our cases, some of which are: Hawkins v. Faubel, 182 Ark. 304, 31 S. W. 2d 401; Gunter v. Ludlam, 155 Ark. 201, 244 S. W. 348; and Fine v. Dyke Bros., 175 Ark. 672, 300 S. W. 375, 58 A.L.R. 907. But I distinguish the case at bar from those cases because there are facts here present which show that Mr. Farrell was in bad faith in letting these materialmen furnish the material. Here are portions of Farrell’s own testimony regarding his conduct with Malham:

“Q. Well, did he talk to you about putting a building on your property?
“A. He mentioned it in conversations. . . .
“Q. Did you tell him he could not build on your property? ,
“A. No, sir; I never did .tell him not to build.
“Q. Well, did you give him permission to build?
“A. No, sir; I never gave him permission to build.
“Q. Well, what did you do when you noticed construction was proceeding on your property?
“A. I called my attorney, Mr. James Sharp, and had him come down to my office, and asked him what to do.
‘ ‘ A. All right, sir.
“Q. We thought about going down there and stopping him. But we figured this would entail a lawsuit or damages, because the boy was dreaming about a $50 thousand a month profit. . . .
“Q. Did you forbid him to build a building on that 'property?
"A. No, sir; I never told him not to build it.
‘£ Q. Then the question asked you was what caused you to fear a lawsuit should you stop him from building on your property?
££A. Because he was so worked up, and was in trouble, and if anybody had stopped him at that time — • especially me — he would have sued for future profits. . .
‘1Q. What factual basis did he have, or did you fear he had, against you?
££A. Nothing. Only he would have thought I would have been stopping him from making a lot of money.
££Q. And you took that position after seeking the advice of counsel.
££A. Yes, sir.
£ £ Q. Can you be any more specific as to what caused you that fear, other than your thinking this man was dreaming?
££A. No, sir.
££Q. Did your attorney advance any other ground?
££A. Not that I remember.
££Q. That is a rather unusual basis for an attorney to render a legal opinion on, is it not?
A. Yes, sir. But I have forgotten what he said, if he said anything else.
££Q. But he did tell you not to touch that man; to let him alone Is that right?
££A. That’s right.
££Q. Did you not see them pouring concrete at the site of that building?
£ £ A. I saw them pouring concrete when the building was nearly finished.
££Q. All right. What did you tell him about going on with that building. Did you forbid him to go on with it?
££A. No, sir.
££Q. All right. What was the arrangement after he finished the building? He had it ahnost done, you said-.
££A. We did not have any arrangement of any kind.
££Q. Did you have any understandingn at all?
££A. We had no understanding of any kind.
££Q. Were you going to let him use your property rent free?
££A. Yes, sir. We had no agreement about rent, lease, or the purchase of the property. And no money, or any amount of money was ever mentioned in any way.
££Q. Well, did you lead him to believe that after he got his project done you would let him use that property?
££ A. Well, if he could have built the project I would have probably let him use it free.
££Q. Well, you led him to believe he could lease it there, didn’t you? You weren’t going to make him move it. were vou?
“A. No, sir.
“Q. No, sir, what?
“A. I never said I would make him move it.
“Q. And you led him to believe you wouldn’t make him move it, did you not?
“A. What is the question?
“Q.. I said you led him to believe you would not make him move his building after he got it built?
“A. Well, yes, sir.”

To quote further from the testimony of Mr. Farrell would only tend to unduly prolong this dissent. I maintain that he is estopped to claim against these appellants. TTis testimony clearly established: .(a) that Farrell allowed Malham to erect the building with the understanding that it would not have to be moved; and (b) that Farrell knew that materials were being furnished to build a $30,000.00 building on his land, and he never uttered a word of warning to the material furnishers or to Malham. I maintain that Mr. Farrell acted in bad faith. In Trapnall v. Burton, supra, Justice Albert Pike quoted Chancellor Kent: “ ‘. . .if one man knowingly, though he does it passively, by looking on, suffers another to . . . expend money on land, under an erroneous opinion of title, without making known his claim, he shall not afterwards be permitted to exercise his legal right against such person.’ ” That situation fits Mr. Farrell in the case at bar; and I maintain that on the basis of Mr. Farrell’s conduct, equity should allow the purchaser of the building on the land to have the use of the land rent free for a sufficient period of time to amortize the cost of the building.

There is another significant fact in this case that should be mentioned; and it is that Mr. Farrell made a trade with the local laborers in the course of this litigation, the effect of which was, that if they lost their labor lien claims in this litigation he would pay them in full the amount of such claims. This was almost equivalent to buying their silence. The result is that the local laborers are paid and the materialmen are defeated, and Farrell reaps a wonderful reward. In a case on an entirely unrelated factual situation, Judge John E. Miller said: ‘ ‘ The facts here require the application of the principle that equitjr will not permit one to unjusttly enrich himself at the expense of another.” (E. L. Bruce Co. v. Bradley Lbr. Co., 79 F. Supp. 176.) I would not permit Farrell to unjustly enrich himself at the expense of these materialmen. I would distinguish the case at bar from our previously adjudicated eases on the basis of Mr. Farrell’s bad faith, and I would hold that Mr. Farrell is in equity estopped from claiming the use and possession of the land on which this building is located for a period of years sufficient to allow the building to sell for a reasonable purchase price. I think that is equity. The old maxim is: “Equity will not suffer a wrong to be without a remedy.” Mr. Farrell remained silent when he should have spoken, and he cannot now be heard to speak and claim that the building on the land must be removed at the time of the purchase. I would carve out a remedy in accordance with the facts, just as was done in the case of Quality Excelsior Coal Co. v. Reeves, 206 Ark. 713, 177 S.W. 2d 827.

For these reasons I dissent from the Majority Opinion, which affirms the Chancery decree and gives Farrell a windfall profit.

        State ex rel, Watkins v. Fernandez, 106 Fla. 779, 143 So. 638, A.L.R. 240.


author: Paul Ward, Associate Justice. Ed. P. MoFaddin, Associate Justice

text:
    Safeway Stores v. Shwayder Brothers.
    5-3389
    384 S. W. 2d 473
    Opinion delivered December 7, 1964.

      Wright;Linclsey, Jennings, Lester & Shults, for appellant.

      Fulk, Wood, Lovett & Parham and 8. Hubert Mayes, Jr. for appellee.
   Paul Ward, Associate Justice.

Two issues are raised on this appeal. One, is there an appealable order? Two, is Act 101 of 1963 constitutional as appellant seeks to apply it to the facts of this case? The facts necessary to an understanding of these issues are as hereafter briefly set forth.

On November 17, 1962 John E. Chronister'was in one of the stores belonging to Safeway Stores, Inc. and sat down on a metal chair manufactured by Shwayder Brothers, Inc. (hereafter called appellee). The chair collapsed and Chronister was severely injured by the ensuing fall. On July 19, 1963 he filed suit against Safeway Stores (hereafter called appellant). On August 21, 1963 appellant answered and also cross-complained against appellee, a non-resident corporation, not authorized to do business in Arkansas. Appellant, after alleging acts of negligence on the part of appellee, stated that if appellant “is found to be liable in any degree to the plaintiff (Chronister), then this defendant (appellant) is entitled to have judgment over and against” appellee for indemnity or contribution as provided by Ark. Stat. Ann., § 34-1001 (Repl. 1962) et seq., being the Uniform Contribution Among Tortfeasors Act.

Appellant obtained service on appellee under the provisions of Act 101 of 1963, Ark. Stat. Ann., §§ 27-2501 —27-2507 (Supp. 1963), known as the Uniform Interstate and International Procedure Act. There is no contention that the form or manner of service, as required by the Act, was defective. Appellee entered a special appearance to file a motion to vacate, quash, and set aside the said “purported summons and purported service”. This motion was sustained by the trial court, and it is from this action of the trial court that appellant prosecutes this appeal.

One. Appellee makes an able argument that there is no appealable order in this case, and that therefore the appeal should be dismissed. To sustain this argument appellee relies heavily on Avhat we said in a per curiam opinion in the case of Robberson v. Steele Canning Co., 233 Ark. 988, 349 S.W. 2d 814. While that case appears on casual examination to be controlling in this case, we think a valid and logical distinction exists. In the Robberson case it will be observed that we said the trial court quashed the “service of summons”, and that we also said: ‘‘we think the better practice is to require him either to stand upon the sufficiency of his service and permit a final order to be entered, or to have the return amended to conform to the rulings of the court”. (Emphasis added.) In the cited case we think the court had in mind that it Avould be a A\mste of time, money and effort to perfect an appeal to this Court only to learn it was necessary “to have the return amended” and then perhaps start again on the long and expensive cause of perfecting another appeal. In other Avords, in the Robberson case, the trial judge Avas in effect saying to the appellant: AAdien you amend your sendee I am ready to hear your case. The above situation Avas not, avo think, the situation in the case here under consideration. Here, the trial court did not quash the “purported summons” because of any defect in the way it was served — that is, a defect which could be amended. To the contrary, the trial court “held the attempted retroactive application of Act 101 . . . relating to service of summons on nonresident defendants is unconstitutional and void”; That holding by the court amounted in fact to a judgment on the merits of the real issue raised by this appeal. Not only so, but the trial court also said “this court is without jurisdiction as to” appellee. This certainly makes it clear that appellant would not be allowed under any circumstances to try its case against appellee. "We must conclude therefore that the only relief available to appellant wTas to appeal to this Court. In that respect the trial court’s order was final and appealable.

T-ivo. As previously indicated, appellant’s contention is that the trial court erred in holding said Act 101 unconstitutional as applied to appellee — a non-resident corporation. Putting it another way, appellant says: “The trial court erred in granting appellee’s motion to quash on the ground that Act 101 of 1963 cannot apply retroactively”. In other words, the decisive issue here, as appellant sees it, is whether said Act 101 deals with procedure or with the substantive rights of appellee. In our opinion the Act deals only with procedure (in this case), as contended by appellant, and is therefore governed by our decision in the case of Harrison v. Matthews, 235 Ark. 915, 362 S.W. 2d 704. There, in construing Act 54 of 1961 Ark. Stat. Ann. § 27-339 (Repl. 1962), we held service pursuant to the Act was good in ‘ ‘ a case involving a cause of action that antedated the statute”. In so holding we quoted with approval the following from State ex rel. Moose v. Kansas City & M. Ry. & B. Co., 117 Ark. 606, 174 S.W. 248:

“The strict rule of construction contended for does not apply to remedial statutes which do not disturb vested rights, or create new obligations, but only supply a new or more appropriate remedy to enforce an existing right or obligation. These should receive a more liberal construction, and should be given a retrospective effect whenever such seems to have been the intention of the Legislature.”

In the Harrison case wo also said:

“Act 54 did not create new substantive rights. "Whatever cause of action this appellant now has was already in being when the statute was adopted. Its only effect was to permit a plaintiff to obtain personal jurisdiction in the courts of this state over a nonresident defendant. The act is procedural in nature, merely providing in this instance a new forum for the enforcement of existing rights. Being procedural, the act applies to all cases filed after it became effective. ’ ’

It is of course conceded that Act 101 was enacted some months after Chronister was injured by the alleged negligence- of appellee, but it did not, in our opinion, affect any substantive rights of appellee. It was remedial only and therefore must be construed restrospcctively in this case.

Appellee makes the further contention that the aforementioned Act 54 is distinguishable from Act 101, and, based thereon, astutefy argues that the Harrison case, supra, furnishes no sound basis for holding that service under Act 101 is constitutional as applied to a nonresident defendant. "We recognize a difference in the two acts and have given consideration thereto. Act 54 is limited (insofar as we are here concerned) to a situation wherein the tortfeasor was domiciled in Arkansas at the time the cause of action arose. This is not true of Act 101, but we do not consider the distinction is one vital to the issue of constitutionality. It was pointed out in the Harrison case that the tortfeasor was a non-resident at the time of service, just as appellee was a non-resident in this case. The Court’s significant language in the Harrison case regarding “domicile” was this: “"When a tort occurs in Arkansas, as it did here, this state has a sufficient connection with the controversy to justify basing jurisdiction upon domicile . . .”, meaning of course “domicile” when the cause of action arose. Having so held, we think it is even more reasonable and logical to say the state has a sufficient connection with the controversy in this cáse to justify basing jurisdiction upon the fact that appellee, though a non-resident, unqualified to do business in Arkansas, was nevertheless doing business in this state, using our markets, and deriving profits therefrom.

Appellee’s contention that this case is controlled (in its favor) by Gillioz v. Kincannon, 213 Ark. 1010, 214 S.W. 2d 212, has been sufficiently answered in the Harrison case, supra.

The order- of the trial court is accordingly reversed, and the cause is remanded for further proceedings consistent with this opinion.

Reversed and remanded.

McFaddin, J., dissents.

Ed. P. MoFaddin, Associate Justice

(dissenting). The Majority Opinion says: “Two issues are raised on this appeal. One, is there an appealable order? Two, is Act 101 of 1963 constitutional as appellant seeks to apply it to the facts of this case?”

The Majority Opinion then proceeds to decide both points. 1 never reach the second point because I am thoroughly convinced that there is no appealable order in the record in this case. Here is the order (copied in full) from which the appeal was attempted to be taken:

‘ ‘ Comes on for hearing the Special Appearance and Motion to Quash of Schwayder Brothers, Inc. and upon hearing before the Court, arguments and briefs of counsel and other matters appearing before the Court, it is BY THE COURT CONSIDERED, ORDERED, AND ADJUDG-ED that the attempted retroactive application of Act 101 of the Acts of Arkansas for 1963, relating to service of summons on non-resident defendants is unconstitutional and void; that no sufficient service has been made on Schwayder Brothers, Inc.; that this Court is without jurisdiction as to Schwayder Brothers, Inc.; that Special Appearance and Motion to Quash of Schwayder Brothers, Inc. be and the same is hereby granted and the purported Summons and purported service thereof on Schwayder Brothers, Inc. be and same is hereby vacated, quashed, set aside and held for naught; that the exceptions of defendant Safeway Stores, Iixcorporated be and the same are hereby specifically preserved.”

There was never any statement by the appellant that it stood on the above order; and there was never any order of dismissal. In short, 1 find no final order from which an appeal could be taken. The case of Robberson v. Steele Canning Co., 233 Ark. 988, 349 S.W. 2d 814, involved an order quashing service of summons, just as in the case at bar; and we held in Robberson v. Steele Canning Company that the order quashing the service was not final and appealable. I cannot distinguish that case from the case at bar. The decision in Bobberson v. Steele was not new law; it followed previous decisions of this Court. See Harlow v. Mason, 117 Ark. 360, 174 S.W. 1163; and Yocum v. Okla. Tire & Supply Co., 191 Ark. 1126, 89 S.W. 2d 919. I see no reason to depart from these cases. In Nunez v. O.K. Processors, 238 Ark. 346, 381 S.W. 2d 754, we allowed the appellaxxts to go back to the Tidal Coxxrt and obtain a final order so tlxe case would xxot have to be rebriefed. Ixx the ease at bar, we are not even requirixxg that to be done. I xnaixxtaixx that there is no final axxd appealable order in the case at bar axxd therefore I dissexxt from the Majoxdty holding oix that poixxt. I never reach the second poixxt.


author: Sam Robinson, Associate Justice.

text:
    Dickson v. Harpole.
    5-3387
    384 S. W. 2d 472
    Opinion delivered December 7, 1964.

      Trantham S Knauts, for appellant.

      Bryan J. MeCallen & Dennis L. Berry, for appellee.
   Sam Robinson, Associate Justice.

Title to a 40 acre tract of land is involved in this litigation. There are 93 pages of testimony and exhibits in the record. The decree shows that the court took such evidence into consideration in reaching the decision. The decree states:

£ £ This case, having been submitted to the Court heretofore by agreement of counsel, is now considered and tried upon its merits upon plaintiff’s complaint, plaintiff’s amended complaint, plaintiff’s addendum to amended complaint, plaintiff’s second amended complaint, the separate answer of defendant, L. H. Woolard, guardian and administrator of the estate of Minerva Parlie Harpole, deceased, the plea of L. H. Woolard as administrator, the answer and cross-complaint of defendants, William P. Harpole and Odis Harpole, the response of plaintiff to the cross-complaint of defendants, William P. Harpole and Odis Harpole, the return of the sheriff of Clay County, Arkansas, reflecting personal service of summons upon defendant, Ernest Pringle, the deposition of plaintiff and the deposition of Herbert H. Johnson on behalf of plaintiff, the deposition of O. B. Byes, Almons Niswonger, Ernest Pringle with Exhibit ££A” thereto, William P. Harpole with Exhibit ££A” thereto, and Odis Harpole on behalf of defendants, William P. Harpole and Odis Harpole, and three copies of right-of-way grants to Mississippi River Fuel Company, a certificate of the Clay County Court Clerk as to tax payment, copy of funeral record of Martin Luther Harpole, and copy of marriage license of Martin L. Harpole and Pearlie Gibbs all introduced on behalf of defendants, William P. Harpole and Odis Harpole, . .

Many times we have pointed out that it is wholly impractical for the seven members of this court to examine oue record in order to determine the facts. The appeal must be affirmed because of the failure of appellant to abstract the evidence. Vire v. Vire, 236 Ark. 740, 368 S.W. 2d 265; Reeves v. Miles, 236 Ark. 261, 365 S.W. 2d 460; Allen v. Overturf, 236 Ark. 387, 366 S.W. 2d 189; Farmers Union Mutual Insurance Co. v. Watt, et ux, 229 Ark. 622, 317 S.W. 2d 285; Anderson v. Stallings, 234 Ark. 680, 354 S.W. 2d 21; Weir v. Hill, 237 Ark. 922, 377 S.W. 2d 178.

Affirmed.


author: Jim Johnson, Associate Justice.

text:
    Ellis v. Ferguson.
    5-3388
    385 S. W. 2d 154
    Opinion delivered December 7, 1964.
    [As amended on denial of Petition for Rehearing January 18, 1965.]

      Barrett, Wheatley, Smith & Deacon, for appellant.

      Carmack Sullivan for appellee.
   Jim Johnson, Associate Justice.

This appeal questions the sufficiency of evidence to support a judgment under the Guest Statutes.

On April 18, 1961, appellee Shelby C. Ferguson was a guest in an automobile driven by appellant H. M. Ellis and owned by Bon McCourtney. They were proceeding south from Hardy toward the Udell Motel for the purpose of attending, as attorneys, á criminal hearing to be held at the motel. As appellant approached the motel, he slowetl down and turned left across the highway toward the motel driveway, when his car was hit by one driven by J. L. Tyner.

Ellis and McCourtney filed suit against Tyner for personal injuries and property damage in the Northern District of Sharp County Circuit Court. Tyner asserted a claim' against Ellis and McCourtney. Ferguson filed an intervention, seeking to recover for personal injuries against Tyner, Ellis and McCourtney. All the various claims were settled except Ferguson’s claim against Ellis and McCourtney under the Guest Statutes. This was tried before a jury on March 31, 1964. The court directed a verdict for McCourtney at the close of appellee’s evidence. The jury returned a verdict for Ferguson against Ellis in the sum of $6,000.00. From judgment on the. verdict comes this appeal.

For reversal appellant states that the trial court erred in refusing to direct the jury to return a verdict for him, contending that the evidence was insufficient as a matter of law to justify submission of the case to the jury.

The evidence on negligence is simply this: appellant slowed down to about ten miles an hour preparatory to making the left turn into the motel driveway.- Appellant testified that he did not see the Tyner vehicle until a split second before the collision, although it is undisputed that he looked south. It was also undisputed that appellant’s view to the south was impaired by a Ioav spot in the road. Appellee testified that he saAv Tyner’s car both before it entered and after it emerged from the Ioav spot, assumed that appellant also saw it, and gave no Avarning of the car’s approach.- Appellee testified that Tyner was traveling sixty to seventy miles an hour, Avhereas Tyner testified that his speed Avas about fifty miles an hour. Testimony Avas disputed as to AAdiether. appellant had his turn signal on.

We have consistently held that AAdiether an automobile is being operated in such a manner as to amount to wanton or .Avillful conduct in disregard of the rights of others must be determined b3r-the facts and circumstances in each individual case. Splawn v. Wright, 198 Ark. 197, 128 S. W. 2d 248.

Wantoimess is essentially an attitude of mind and imparts to an act of misconduct a tortious character, such conduct as manifests a “disposition of perversity.” Such a disposition or mental state is shown by a person, when, notwithstanding his conscious and timely knowledge of an approach to an unusual danger and of common probability of injury to others, he proceeds into the presence of danger, with indifference to consequences and with absence of all care. Jenkins v. Sharp, 140 Ohio St. 80, 42 N.E. 2d 755.

It is equally well settled that one who willfully and wantonly, in reckless disregard of the rights of others, by a positive act or careless omission exposes another to death or grave bodily injury, is liable for the consequences, even if the other was guilty of negligence or other fault in connection with the causes which led to the injury. It is not necessary to prove that the defendant deliberately intended to injure the plaintiff. It is enough if it is shown that, indifferent to consequences, the defendant intentionally acted in such a way that the natural and probable consequence of his act was injury to the plaintiff. There is a “constructive intention as to the consequences, which, entering into the willful, intentional act, the law imputes to the offender, and in this way a charge which otherwise would be mere negligence, becomes, by reason of a reckless disregard of probable consequences, a willful wrong.” Baines v. Collins, 310 Mass. 523, 38 N.E. 2d 626, 138 A.L.R. 1123.

Viewing the facts in the case at bar in the light most favorable to the jury verdict, and applying the foregoing-rules which are as liberal as can be approved short of judicial repeal of the Guest Statutes, we cannot escape the conclusion that while there was evidence here which would have sustained a finding of simple negligence there was no substantial evidence of the willful and wanton misconduct denounced in Ark. Stat. Ann. §§ 75-913 and 75-915.

Reversed and dismissed.


author: Prank Holt, Associate Justice.

text:
    Harris v. State.
    5120
    284 S. W. 2d 477
    Opinion delivered December 7, 1964.

      Bon McGourtney & Associates, Bjr: II. M. Ellis and Claude B. Brinton, for appellant.

      Bruce Bennett, Attorney General, Bir: Richard, B. AdJdsson, Assistant Attorney General, for appellee.
   Prank Holt, Associate Justice.

On the night of December 20,1963, the home of Leonard Dover was destroyed by fire. The bodies of Leonard Dover, his wife, and four of their children were found in the ruins. Two other children escaped. The appellant, Frank Harris, was subsequently convicted and sentenced to life imprisonment for the murder of Leonard Dever. That case is not before us. In the case at bar the appellant was charged by an information with the joint crimes of the murders of Mrs. Martha Dever and her four children, Nelle, Joanne, Sharon and Janette Dever, while in the perpetration of or the attempt to perpetrate arson and/or robbery. A jury found the appellant guilty of murder in the first degree and fixed his punishment at death in each of the five cases. From these judgments the appellant brings this appeal.

For reversal appellant urges several points; and wo have also considered every objection made at the trial as we do in capital cases. Ark. Stat. Ann. § 43-2723 (Repl. 1964) and Hays v. State, 230 Ark. 731, 324 S.W. 2d 520. The point that gives us most serious concern is the admissibility of the testimony of six-year-old Mary Dover. We are of the view that prejudicial error was committed in holding, over the objections of the appellant, that her testimony was competent.

It is the appellant’s theory of the case that when he wont to the Dever home to purchase whiskey an altercation ensued between him and Dever; that as a result, Dever struck the defendant, shot Mrs. Dever, set fire to their house, shot at appellant as he escaped and then Dever killed himself. According to the State’s theory, the appellant, armed with a twenty-gauge shotgun, went to the Dever home, where he was known, for the purpose of robbing Dever who was reported to carry large sums of money; that appellant shot and robbed Dever, shot Mrs. Dever, and then set fire to the house resulting in the death of the four children other than Ronald and Mary Dever who escaped. The State presented both Mary and Ronald as witnesses to corroborate its case.

At common law and by statute in our State a child below ten years of age is never a competent witness in a civil action. Ark. Stat. Ann. § 28-601 (Repl. 1962). However, this is not the rule in criminal cases. We have held many times that in criminal cases there is no precise age at which a child, is, or is not, competent to testify and, further, that the trial court is given wide discretion in making the determination of competency and also in the absence of clear abuse, such judicial discretion is not disturbed upon appeal. Needham v. State, 215 Ark. 935, 224 S.W. 2d 785; Ramick v. State, 212 Ark. 700, 208 S.W. 2d 3; Guthrie v. State, 188 Ark. 1081, 70 S.W. 2d 39; Hudson v. State, 207 Ark. 18, 179 S.W. 2d 165; Yother v. State, 167 Ark. 492, 268 S.W. 861; 8 Ark. Law Rev. 100.

Although we have recognized no age limitation in criminal cases, we have consistently held that in order for a child-witness to be competent the child must meet certain qualifications. In Batchelor v. State, 217 Ark. 340, 230 S.W. 2d 23, we repeated these requirements saying:

« =* if cbild-witness, when offered, has capacity to understand the solemnity of an oath and to comprehend the obligation it imposes, and if in the exercise of a sound discretion the trial court determines that at the time the transaction under investigation occurred the proposed witness was able to receive accurate impressions and to retain them to such an extent that when testifying the capacity existed to transmit to fact-finders a reasonable statement of what was seen, felt or heard,— then, on appeal, the Court’s action in holding the witness to be qualified will not bo reversed.”

See, also, 58 Am. Jur., Witnesses, § 129 and 97 C.J.S., Witnesses, § 63b.

With this well settled rule in mind, we review some of the pertinent portions of Mary Lever’s testimony. When asked her age, she held up six fingers. She stated God would punish her if she didn’t tell the truth. She testified that all she knew about God or the Bible was what someone had recently told her; that she had never been to church and she had never been taught about God by anyone before this time. In support of the State’s theory she related that appellant shot Lever, then required Mrs. Dever to remove a billfold from his body and hand it to him.

She also testified on direct examination by the State:

“Q. What did Frank [appellant] say?
A. Frank said ‘I am going to shoot you.’
Q. Did he shoot your mama?
A. (Witness nodded in the affirmative)
Q. Before Frank shot your mama, did he ask your mama for anything?
A. (Witness shook her head in the negative)
Q. After he shot your mama, you say he got some matches ?
A. (Witnesses nodded in the affirmative)
Q. Did he get anything else besides the matches?
A. Fuel.
* % *
Q. ’What did he do with theh fuel after he got it?
“A. Burned up the house.”

On cross-examination by appellant she testified:

“Q. What was your Mama pointing the gun at your Daddy for?
A. She said, ‘if you don’t stop that talk, I am going to shoot your head off.’
* * *
Q. When your mama drew the gun on your daddy and told him to quit cursing, didn’t your daddy knock your mama over on the bed?
A. Yes.
Q. And that is when your daddy shot your mama before she fell on the bed?
A. Yes.”

On redirect examination by the State the child-witness repeated practically what she had related on direct examination.

Then on recross-examination, in support of appellant’s theory, of the case, she again contradicted what she had said on direct and redirect examination. For instance, she testified in part as follows:

“Q. Mary, you remember testifying a while ago that your daddy knocked your mama over on the bed and shot her after she threatened to blow his head off? That is true, isn’t it?
A. (Witness nodded in the affirmative)
Q. But Uncle Burke [brother of Leonard Dever] didn’t tell you to say that ?
A. No.
. Q. But Uncle Burke did tell you to say Frank shot your daddy and your daddy was laying on the floor?
A. Ye.s.
Q. Uncle Burke didn’t tell you to tell your daddy run Frank out of the house and shot at Frank outside, did he?
A. No.
Q. And that'is the truth, isn’t it?
A. Yes.
Q. But Uncle Burke did tell you to tell Frank poured fuel oil on the floor and on the bed?
A. Yes.
Q. Uncle Burke told you to swear to that?
A. Yes.
Q. After your daddy shot your mother and you testified Frank ran out, your daddy ran after him, your daddy came back but Frank didn’t come back any more?
A. No.
Q. Didn’t you see your daddy pouring fuel oil after Frank left?
A. Yes.”

She also stated that her father had poured fuel oil on the bed and floor, and in answer to the query, “Where else did he put it?”, she answered, “On the windows”.

Thus there were not merely inconsistencies but irreconcilable conflicts in her testimony bearing on the essential elements of the alleged crimes. We cannot approve such contradictory versions on these vital issues. We are of the view that this child either did not receive accurate impressions of the events transpiring that tragic evening, or if she did, she did not have the capacity or intelligence to retain the impressions to the required extent so as to transmit to the jurors in .a reasonable, clear, and coherent manner what she saw, heard, and felt.

In Mary’s testimony there are other examples of her inability to recollect. For example:

‘ ‘ Q. When your house burned down, do you remember that?
A. (Witness shook her head in the negative)
# *
Q. Do you remember when there was a fire at your house ?
A. (Witness shook her head in the negative)
* * * [The house had burned six months previously]
Q. Were you here at the courthouse yesterday?
A. (Witness nodded in the affirmative)
Q. Where were you at the courthouse yesterday?
A. I wasn’t here.
Q. Where were you yesterday? (question repeated)
A. I forgot.
Q. Huh?
A. I forgot.
Q. You forgot where you were yesterday.
A. (Witness nodded in the affirmative)
# # *
Q. What school do you go to? Do you remember when you started to school?
A. (Witness shook head in the negative)
Q. Do you know where you are going to school?
A. My brother does.
Q. But do you know where you are going to school?
A. (Witness shook head in the negative).”

In State v. Ranger, 98 A. 2d 652, the Maine Supreme 'Court held inadmissible the testimony of children ages ten and eight saying:

“* # # The proposed child witness should know the difference between truth and falsehood, and apparently must be able to receive accurate impressions of facts, and be able to relate truly the impressions received. * * * Although many ancient proverbs indicate that some of our ancestors believed that only truth could come from childhood lips, we know through modern psychology that protective imagination is a common attribute of most children * * *.”

In Crosby v. State, 93 Ark. 156, 124 S.W. 781, the accused was convicted of murder in the first degree. There we reversed and remanded for a new trial because the examination of the ten-year-old witness was not comprehensive enough to establish that he had a sufficient sense of the purity of truth or the sanctity of an oath.

We think the trial court in the case at bar is governed by the standard we set in Payne v. State, 177 Ark. 413, 6 S.W. 2d 832, as to when the testimony of a child-witness is subject to exclusion. There we said:

“It is, of course, the duty of the trial court to follow closely the examination of a witness about whose competency there is a serious question on account of his youth, and if, during the course of the examination, it appears that the witness does not appreciate the questions asked him and the relevancy of the answer given, because of his youth, it would be the duty of the trial court to exclude the entire testimony of the witness, although his preliminary examination apparently indicated that the witness understood the obligations of an oath”. [Emphasis added]

It appears that at the time of Mary Dever’s preliminary examination it might have been thought that she was a ©onrpetent witness. However, her subsequent testimony with its major inconsistencies and irreconcilable conflicts on material issues, some of which we have detailed, convinces us her testimony was subject to exclusion.

As previously stated, we do not think she was capable of receiving and retaining accurate impressions sufficiently to truly relate them to the fact-finders in a reasonably coherent statement. Therefore, we must hold it was error for the trial court-not to remove her from the witness stand and exclude her testimony when it appeared that she did not meet the requirements reiterated in Batchlor v. State, supra, governing child witnesses in criminal cases. According to the record in the case at bar it must also be said that upon the proper objection being made, the testimony of Ronald Dever, nine years of age,, was subject to challenge for the same reasons.

We deem it unnecessary to discuss the other matters relied upon by appellant for reversal. It is with great reluctance that we feel compelled to exclude this child’s testimony as an instrument of justice when we consider the competent evidence. However, we feel there is no alternative in the proper administration of justice since the character of her testimony constitutes reversible error.

Accordingly, the judgments are reversed and the causes remanded.


author: Carleton Harris, Chief Justice.

text:
    Sunray DX Oil Co. v. Thurman.
    5-3395
    384 S. W. 2d 482
    Opinion delivered December 14, 1964.

      Keith, Clegg & Eckert, M. Damvin Kirk, J. P. Greve and Ben Ilatcher, Tulsa, Olda., for appellant.

      Chambers & Chambers, for -appellee.
   Carleton Harris, Chief Justice.

Appellee was the owner of a certain forty-acre tract located in Columbia County. On September 15, 1958, Shell Oil Company, which held an oil and gas lease covering said land, assigned the lease to Sunray DX Oil Company, appellant herein. The lease recites that it is given to the lessee “for the purposes of investigating, exploring, prospecting, drilling and mining for and producing oil, gas and all other minerals, laying pipe lines, building tanks, power stations, telephone lines, and other structures thereon to produce, save, take care of, treat, transport and own said products and for dredging and maintaining canals, constructing roads and bridges, and building'houses for its employees, and, in general, for all appliances, structures, equipment, servitudes and privileges which may be necessary, useful or convenient to or in connection with any such operations conducted by lessee thereon, * * *” • On May 21, 1963, appellee instituted suit against the company, seeking damages in the amount of $6,500.00 ($4,000.00 actual and $2,500.00 punitive), alleging that her land had been permanently injured because of the fact that appellant had deliberately, and by negligent acts, dumped salt water and waste oil on the land, and had permitted salt water to flow upon it, with full knowledge that the salt water was a poinsonous substance, and would kill and destroy vegetation; that these substances did destroy all vegetation. Appellant answered, denying the allegations of the complaint, and denying any improper use of appellee’s land. It was further asserted that if appellee had any cause of action, such cause was barred by the statute of limitations. The case proceeded to trial, and at the conclusion of appellee’s evidence, appellant moved for a directed verdict, contending that the evidence was insufficeint to establish a cause of action, and further, that the action was barred by the three-year statute of limitations. The court overruled the motion, and appellant declined to offer any evidence, standing on the motion for a directed verdict. After receiving instructions, the jury retired, and returned a verdict in the amount of $2,000.00, with interest at 6% per annum. From the judgment entered in accordance with the verdict, appellant brings this appeal.

During the oral argument, it was pointed out that the testimony reflected that producing oil wells had been located and developed in the center of each of the ten-acre tracts of the forty acres. The four wells were operated from a unit located in the center of the forty-acre tract, and the fluid content from each of the four wells was pumped to a large metal tank (called separator) near the center of this forty acres. The salt water was “Weeded” from the tank to an earthen pit, which had been dng also near the center of the tract. Salt water was then pumped from the pit to a disposal well located on another tract of land.

According to appellee’s evidence, the earthen pit was low in one place, which permitted the salt water to overflow, and this overflowing particularly occurred when it rained. Appellee ?s contention was, and is, that the salt water overflowed from the pit to the surrounding land, destroying valuable timber, and making the land unfit for further agricultural use.

For reversal, it is first asserted that appellee’s claim is barred by the three-year statute of limitations. In raising this point, appellant makes a two-pronged attack. First, it is pointed out that if the pit were of a permanent character, and its construction and continuance were necessarily an injury, the damage was original, i.e., the very nature of the construction made evident the fact that damage would occur, and compensation should have been sought at once. If such were the case, the statute of limitations began to run upon the construction of the pit, and suit was not instituted within the statutory period. Appellant has stated the law correctly, and we have so held numerous times. See St. Louis Iron Mountain & Southern Railway v. Biggs, 52 Ark. 240, 12 S.W. 331; St. Louis Iron Mountain and Southern Railway Company v. Anderson, 62 Ark. 360, 35 S.W. 791; and Brown v. Ark. Central Power-Company, 174 Ark. 177, 294 S.W. 709. These holdings are not applicable to the case before us, However, nor does appellant vigorously argue that this type of construction was such as to constitute an injury from the time the pit was originally dug on the premises. The pit itself was not the cause of the alleged damage sustained; rather, the fact that it overflowed, spilling the salt water onto the lands, occasioned appellee’s complaint. But appellant does argue with vigor that the statute of limitations began to run more than three years before the institution of the suit. The complaint was filed by appellees in May, 1963, and appellant, in making its argument, refers to the fact that there was testimony of damage to the lands in question in 1959. It is true that there was some testimony that damage was discovered in 1959. W. H. Thurman, son of appellee, testified that every time it rained, the pit overflowed, the salt water spreading in every direction, except south, killing timber and vegetation near the center of the forty acres; that damage occurred in 1959, and increased in 1960. W. E. Thurman, a grandson of appellee, testified that the salt water began to damage the land around the pit in 1959. “Then it started easing on out * * * every time it would rain more it would go on out further * * *.” H. D. Thurman, another son of appellee, testified that while there was damage in 1959, it constantly grew worse, “along about ’61, along through the winter was when the pits overflowed so and the summer of ’61 was when it killed so much vegetation there.” Kennith Gray stated that in 1959 he noticed some leaves dying, that the damage grew successively worse, and * * it had got to where several of the big trees were dying. ” It is thus evident that there was testimony as to damage in 1959, 1960, and 1961. It was a jury question as to when the land in question was permanently damaged. Missouri Pac. R. Co. v. Horn, 121 S.W. 2d 102; Moore v. Charles F. Luehrmann Hardwood Lumber Company, 82 Ark. 485, 102 S.W. 385. In the latter case, we said:

“The next alleged error is as to the statute of limitations. There was a dispute as to whether the timber was cut in 1901 or 1900. That issue was properly sent to the jury, and its finding is conclusive. ’ ’

In H. F. Wilcox Oil & Gas Co. v. Juedeman, 101 P. 2d 1050, the Oklahoma Supreme Court stated:

“It seems well settled that in an action for damages for permanent injury to real estate caused by continuing salt water pollution the limitation begins to run at the time when it becomes obvious that a permanent injury has been suffered.”

It- is next asserted that there is insufficient proof of wrongful operations, and no proof of negligence. Appellant contends that it had the right to go on the land and do all things necessary and incidental to drilling, operating, and maintaining the wells for the production and marketing of oil, and that it is only liable for wanton or negligent destruction, or liable only for damages to that portion of the land that was not reasonably necessary for the oil operations. Prom appellant’s brief:

‘ ‘ Plaintiff nowhere alleges that defendant used more land than was reasonably necessary to do the things defendant had a right to do under its lease. Plaintiff complains of salt water and Avaste oil being dumped or permitted to floA\r upon her land. Plaintiff does not allege that said salt water or waste oil traveled beyond the areas necessarily required by defendant for its oil operations under said lease. Plaintiff does not allege specific acts of negligence. Plaintiff does not allege how many acres of land Avore injured, or how many acres were reasonably required for defendant’s operations. Plaintiff does not specifically allege Avhat defendant could have done to correct the situation, or whether it Avas possible, under the existing circumstances, to have made such correction. Plaintiff also failed to supply such deficiencies by proof.”

We do not agree AArith this argument. Appellee’s testimony showed that an area consisting of five or six acres in the center of the forty Avas damaged. We are unable to understand appellant’s statement: “Plaintiff does not allege that said salt water or toaste oil traveled beyond the areas necessarily required by defendant for its oil operations under said, lease.” Appellant seems to indicate by the italicized statement that, as a part of its normal operations, it was entitled to permit the salt Avater to travel over some part of appellee’s lands, but we do not concur with this view. Was it necessary that the salt water travel over the land at all? How did it help appellant’s oil operations for the salt water to overflow the pit? We cannot agree with appellant’s statemeiit that negligence has not been shown, for the evidence reflected that one side of the pit was low (whether from faulty construction or erosion is not shown), and this permitted the salt water to overflow, and, particularly so, during rainy periods. There was also evidence that the percentage of salt water continued to increase, until, in fact, the wells were shut down. Nonetheless, appellant apparently made no repairs to the pit, and the damage continued to increase.

The Arkansas Legislature of 1957' recognized the dangers of salt water by enacting Act 381 of 1957. That ■act (Ark. Stat. Ann. 53-211 and 212 [Supp. 1963]) makes it “mandatory that salt water produced from any newly discovered oil and/or gas field, commencing with July 1, 1957, be disposed of by the producer of said salt water by either putting it in pits or re-cycling it back into the proper sand.” A fine ranging from $100.00 to $1,000.00 is provided for those who violate the provisions.

Finally, it is asserted that appellee has not properly established her damages. W. H. Thurman testified that he went over the property in May, 1960, and he valued same at $4,000.00. He then testified that the sale value of the property in May, 1963, was $2,000.00. Fred W. O ’Bier, a real estate dealer, testified that he was familiar with appellee’s property, and had handled property sales in the general area; that, in his opinion, the forty acres would have been worth $200.00 an acre in May, 1960, or a total of $8,000.00, but was only worth $100.00 an acre in 1963, or a total of $4,000.00. We have held that where there is permanent damage to real property, the measure of damages is the difference in market value before and after the injury. See Benton Gravel Company v. Wright, 206 Ark. 930, 175 S.W. 2d 208, and cases cited therein. See also Volume 4, Summers Oil and Gas, Chapter 21, Section 658, Page 88. Appellant contends that the witnesses should have testified more specifically, and in more detail, as to how they reached these figures, but these facts could have been ascertained on cross-examination. Counsel did not interrogate Thurman on this point, and did not cross-examine 0 ’Bier at all. Of course, damages of this nature are difficult to establish to an exactness, but the testimony reflected that the five or six acres in the middle of the forty-acre tract were permanently damaged, all vegetation and timber dying, and the witnesses appeared qualified to express an opinion as to the effect the damage to this acreage had on the entire forty.

Affirmed.

       As previously stated, appellant introduced no testimony.

       This act, of course, has no application to the instant case, since this oneration commenced before the effective date of the act.


author: Ed. F. McFaddin, Associate Justice. Jim Johnson, Associate Justice,

text:
    Young v. Young.
    5-3396
    384 S. W. 2d 469
    Opinion delivered December 14, 1964.
    [Rehearing denied January 18, 1965.]

      Bridges, Young & Mattheios and Coleman, Gantt-, Ramsay & Cox, for appellant.

      Gregory & Clayeomb, for appellee.
   Ed. F. McFaddin, Associate Justice.

The appellee, Mrs. Dema Young, filed this suit against the appellant, Baymond A. Young, to enjoin him from selling — during her lifetime — the home in which she was living, and also to require him to pay her one-third of the amount for which he had sold the business, known as Young’s Laundry and Cleaners, in Pine Bluff, Arkansas. Mrs. Young claimed that in 1945 Mr. Young made an oral contract with her, which she was seeking to enforce in this suit. Mr. Young denied any such contract, and pleaded the statute of frauds (Ark. Stat. Ann. § 38-101 [Bepl. 1962]). Trial in the Chancery Court resulted in a decree awarding partial relief to Mrs. Young. Prom that decree Mr. Young has appealed, claiming that Mrs. Young was entitled to no relief; and Mrs. Young has cross appealed, claiming she was entitled to more relief than the chancery Court awarded her.

The appellant lists three points, which we consider together. They are:

“I. An oral contract to make a will or convey an interest in land must be established by clear, cogent and convincing evidence.
“II. Performance to take an oral contract out of the statute of frauds must consist of extraordinary services and constitute a sacrifice.
“III. The proof does not establish the oral contract alleged by appellee.”

The rule has been many times stated by us: an oral contract to make a will or to convey an interest in land must be established by evidence that is clear, cogent, and convincing. Watts v. Mahon, 223 Ark. 136, 264 S.W. 2d 623; Crowell v. Parks, 209 Ark. 303, 193 S.W. 2d 483; Jensen v. Housley, 207 Ark. 742, 182 S.W. 2d 758. Here, we have evidence of possession taken by Mrs. Young under the alleged contract, and also part performance by her; and snch evidence, if believed, is sufficient to take the contract out of the statute of frauds. State Bank v. Sanders, 114 Ark. 440, 170 S.W. 86; Ferguson v. Triplett, 199 Ark. 546, 134 S. W. 2d 538; Harper v. Albright, 228 Ark. 760, 310 S.W. 2d 475. But the question still remains as to whether Mrs. Young offered the quantum of evidence required i.e., “clear, cogent, and convincing”, which was said in one of our cases to be “ substantally beyond a reasonable doubt.” (Crowell v. Parks, supra.) To answer that question requires a study of the evidence.

Mr. Young appears to have owned several pieces of real property in Pine Bluff, and also to have owned and operated a rather profitable business known as Young’s Laundry and Cleaners. Mr. and Mrs. Young were married in 1927. Mrs. Young had been working in the business before the marriage, and continued to do so thereafter, being practically the manager of the cleaning portion of the business. In 1941 the parties were divorced; and Mrs. Young moved to Little Bock, where she obtained employment in a cleaning establishment. In 1945 Mrs. Young returned to Pine Bluff and resumed employment in Young’s Laundry and Cleaners. The terms and conditions under which this happened are in great dispute and give rise to the present litigation.

Mrs. Young testified that in 1945 Mr. Young came to her and said he needed her to assist in the management of the laundry and cleaning business, and orally agreed with her that if she would return to Pine Bluff and assist in the management of the business, he would not only pay her a good salary, but would also give her a home in which to live for her entire lifetime, and would make a will leaving her one-third interest in the laundry and cleaning business. She testified that she faithfully performed her part of the contract, and that he had breached his contract by selling the business without paying her anything and was-threatening to breach the remainder of the contract by moving her out of the house where she was living. Mrs. Young testified positively' and unequivocally as to the 1945 contract with Mr. Young, and she was corroborated, in whole or in part, by a number of witnesses, some of whom were not related to either of the parties.

It was shown — and admitted by Mr. Young — that ever since Mrs. Young returned to Pine Bluff in 1945 she had lived, rent free, in some house owned by Mr. Young, and was so living at the time of the litigation. It was also shown that in addition to her salary for working in the business, Mr. Young had also given her annual bonuses. Several witnesses — unrelated to the parties —testified that they had heard Mr. Young say. that Mrs. Young would own a one-third interest in the business at his death and that she would have a home as long as she lived. One witness testified that before Mrs. Young returned to Pine Bluff in 1945, Mr. Young said to Mrs. Young in the presence of said witness: “I want you to be a part of the business and 1 would like to furnish you a home for the rest of your life, and you can have a job as long as you want it and a third of the business in my will at the time of my death.”

Mr. Young admitted that Mrs. Young had lived, rent free, in a house of his ever since 1945; but he claimed that he let several of his employees have free house rent. He testified at length in denial of the alleged 1945 contract; and two other of his former employees testified that they had never heard of the alleged 1945 contract. The Chancellor heard the evidence ore tenus. He saw the witnesses and observed their manner of testimony. If Mrs. Young and her witnesses are to be believed, then she certainly offered the required quantum of evidence as to the 1945 contract. A study of the printed page inclines us to the view that their evidence had the ring of sincerity, reasonableness, and honesty; and we affirm the degree on direct appeal.

Mrs. Young’s Gross Appeal. In July 1961 Mr. Youngsohl the laundry and cleaning business for $60,000.00 and that sale precipitated this litigation. The Chancellor "awarded Mrs. Young the equivalent of a life estate in the home where she was then living, and also awarded her what amounted to a one-third interest in the balance still remaining unpaid by the purchaser for laundry and cleaning business, and this amount so awarded her was approximately $12,000.00. On her cross appeal Mrs. Young claims that she is entitled to a judgment for $20,000.00, being one-third of the total sale price of the business. She claims that Mr. Young’s act in selling the business, in effect, matured the contract to will her one-third of the business, and she cites this statement from Corpus Juris Secundum, Vol. 17A, p. 649, “Contracts” § 470: “The act of a party in voluntarily placing it out of his power to perform a contract on his part does not. relieve him of liability for non-performance; but constitutes a breach of the contract, for which an action may be brought although the time for performance has not yet arrived under the terms of the contract.” She also cites this statement from Corpus Juris Secundum, Yol. 94, p. 894, ‘‘Wills,’’ § 125e: “In an action for damages for breach of contract the measure of damages is what the promisee has lost by the promisor’s failure to keep his agreement, which is ordinarily the value of the property agreed to be bequeathed or devised ...”

We are cited to no Arkansas case involving a situation exactly like the one here, and our search has failed to disclose such a case. This is an action for breach of contract to make a will before the death of the person who was to make the will. In addition to the text and cases cited in 94 C.J.S. p.. 894, supra, we call attention to the text in 57 Am. Jnr. p. 166, “Wills” § 189, and to the annotations in 69 A.L.R. 81 and 106 A.L.R. 751, on the subject, “Decedent’s agreement to devise, bequeath, or leave property as compensation for services.” It will be observed that these annotations relate to a situation arising after the death of the promisor, whereas here we are dealing with a situation that arose while the promisor was' still living. In 57 Am. Jur. 166, “Wills” § 189’, the text reads: “There is a conflict of opinion in reference to the measure of damages recoverable for a breach of contract to devise specific property in consideration of services.” We prefer to leave open the question of the measure of damages in a case like this one; and because of the state of the present record, we affirm the Chancellor’s findings as to Mrs. Young’s damages. Certainly the $20,000.00 claimed by Mrs. Young should be reduced to its present cash value; and the life expectancy of Mr. Young is not shown. Again, the value of the business is subject to some question. Mr.' Youug owned, and still owns the buildings and he is renting them to the purchaser. "Whether the price of the business was made high or low on account of a favorable rent contract, is not shown. There was no testimony independent of the sale price as to the real value of the business. The Chancellor also gave consideration to the fact that Mrs. Young delayed for about two years after the sale before filing the present suit; and she could well have been waiting to see if sufficient of the purchase price was paid to prevent a return of the business to Mr. Young for any reason. AYe have mentioned several factors that might have entered into the Chancellor’s assessment of the damages.

To conclude the matter, we also affirm the decree on Mrs. Young’s cross appeal; but the costs of the entire appeal are adjudged against the appellant.

Harris, C.J., not participating.

George Rose Smith and Johnson, J.J. dissent.

(Supplemental opinion on denial of Petition for Rehearing P. 929.)

Jim Johnson, Associate Justice,

(dissenting). I do not agree with the majority view. A careful study of the entire record before us impels me to the conclusion that the testimony in this case amounts to no more than a swearing match between partial witnesses. To say that the caliber of evidence here presented rises to the dignity of being so clear, cogent and convincing so as to-be “substantially beyond a reasonable doubt,” Crowell v. Parks, 209 Ark. 803, 193 S.W. 2d 483, obliterates the sacred rule heretofore required to be followed to prove the existence of an oral contract to make a will.

For the reasons stated I respectfully dissent.

George Rose Smith, J., joins in this dissent.

       Mr. Young had authorized the National Bank of Commerce of Pine Bluff to act as his Agent and Attorney to collect the rents on his real estate and the payment due him for the sale of the laundry business, so the said Bank was joined as a party defendant, and is also a party appellant here. But the real litigation is between Mr. Young and Mrs. Young, and we will rnfer to them as though they were the only litigants.


author: George Rose Smith, J.

text:
    Bridges v. Stephens.
    5-3403
    384 S. W. 2d 490
    Opinion delivered December 14, 1964.

      Knox Kinney, for appellant.

      Fletcher Long, for appellee.
   George Rose Smith, J.

On April 7, 1963, Katliryn Stephens was killed while riding in a car that was owned and was apparently being driven by the defendant-appellant, Granville Bridges. Kathryn was twenty-one years old. Although she had never been married, she was survived by a four-year-old son. This action for wrongful death was brought by the administrators of Kathryn’s estate. The verdict and judgment awarded the administrators, in addition to the funeral expenses, the sum of $17,500 to compensate the child for the loss of his mother’s care, support, and nurture.

Kathryn was a guest in the car. The appellant first contends that he was entitled to a directed verdict, on the ground that the plaintiffs failed to proved either that he was driving the car when the accident occurred or that he was guilty or willful and wanton misconduct. Ark. Stat. Ann. §§ 75-913 and -915 (Repl. 1957).

Whether the appellant was driving the car was an issue of fact. The accident, a collision with another car, took place on Sunday evening at about seven o’clock. During the afternoon Kathryn had been riding around with the appellant and Herbert Lee, who was also killed. The appellant testified that he went to sleep in the back seat while the car was temporarily parked at about 5 -.30 and that he remembered nothing until he awoke in a hospital the next day. There was proof, however, that a man was driving the car when the collision occurred and that Herbert Lee, the other man in the vehivle, could not drive. Bridges admittedly owned the automobile and had been driving it earlier in the afternoon. It was for the jury to decide who was driving at the time of the accident.

The issue of willful and wanton misconduct was also a question of fact. Just before the collision the Bridges car was traveling north at 30 or 35 miles an hour on a county road that was crossed by U.S. Highway 70. A stop sign required Bridges to stop before entering the highway, but he ignored the sign and attempted to drive across the highway without stopping. Another automobile coming down the highway at great speed struck Bridges’ car and caused the death of both his companions.

There was substantial evidence to show that Bridges had been drinking beer during the afternoon and was intoxicated when the collision occurred. We adhere to the view unanimously expressed in Cooper v. Calico, 214 Ark. 853, 218 S.W. 2d 723, that one who drives under the influence of intoxicants may be found to be chargeable with willful and wanton misconduct. In the Cooper case a majority of the court did not think there was sufficient proof of the driver’s intoxication, but that is not the situation in the case at bar. We think it goes without saying that one who drives a car while he is drunk may fairly be lield to be engaging in misconduct — criminal misconduct —that is both willful and wanton. (In the case at hand it is not contended that Kathryn Stephens assumed the risk of her host’s drunken driving.)

We find no error in the trial court’s refusal to give a requested instruction which included a statement that willful misconduct means something more than gross negligence. In other instructions the court had read the guest statute to the jury and had given an acceptable definition of willful misconduct. There was no need for the court to refer also to ‘‘‘gross negligence.” That phrase does not actually appear in our guest statute. Moreover, the requested instruction did not define gross negligence; so the jurors would have been left in doubt about the meaning of the court’s language.

Counsel’s final argument is that the $17,500 verdict for Kathryn’s infant son is excessive. This contention is based in part upon the erroneous premise that the statutory reference to “pecuniary injuries” limits the measure of damages to the present value of the financial-support that Kathryn would have provided for her child during his minority. Ark. Stat. Ann. § 27-909 (Repl.-1962). This interpretation of the statute is too narrow. The award may also include compensation for the loss of parental love, care, supervision, and training. Mo. Pac. R.R. v. Creekmore, 193 Ark. 722, 102 S.W. 2d 553; Strahan v. Webb, 231 Ark. 426, 330 S.W. 2d 291.

Soon after the birth of her son Kathryn, who was living with her parents, obtained employment and applied most, of her earnings to the support of her son. Later on, it is true, she was committed for a time to the State Hospital as a result of drug addiction. Long before her death, however, she had been released and had returned to her parents’ home. The jury could have found that during the remaining seventeen years of this fatherless child’s minority he wordd be dependent upon his mother not only for financial support but also for all the loving care that a child ordinarily receives from both his parents. We cannot believe that an award of $17,500 for this tragic loss demonstrates that the jurors were motivated by passion or prejudice.

Affirmed.