author: Carleton Harris, Chief Justice.

text:
    Reynolds Metal Company v. Robbins.
    5-1921
    328 S. W. 2d 489
    Opinion delivered November 9, 1959.

      Wooten, Land <& Matthews, for appellant.

      McMath, Leatherman & Woods and James E. Youngdahl, for appellee.
   Carleton Harris, Chief Justice.

This appeal relates to the action of the Workmens Compensation Commission in awarding compensation to Vera Love Robbins, widow, and Mary Catherine Robbins, minor child of Joe Jack Robbins, deceased. Robbins died as a result of a heart attack, suffered at the Jones Mill plant of Reynolds Metals Company on the night of July 4, 1957 (death occurred about 1:30 a.m., July 5). By a 2-1 vote, the Commission found the claim compensable, and made an award for the benefit of the widow and minor child in accordance with the provision of the compensation law. On appeal, the award was affirmed by the Circuit Court of Hot Spring County, which entered its judgment in accordance therewith. From such judgment, appellants bring this appeal.

The facts, in brief, are as follows. Robbins, an electric cellman for appellants, arrived home from work on July 4, 1957, about 8:45 a. m. He went to bed about 9:30 a. m., remaining there until suppertime about 5 p. m., thereafter returning to bed until approximately 10 p. m., at which time he arose, had coffee, and left for his work about 10 -.45 p. m. According to Mrs. Robbins, her husband had never had any trouble with his heart before, and had never complained of pains in his chest. The evidence showed that Robbins arrived at the gate of the plant around 11:30, and walked from there to the bath house with a fellow employee, Fay Gnau, for the purpose of changing his clothes. Nothing was said to Gnau to indicate that he was not feeling well. He then reported to his post of duty in Section 14 of the pot line about five, minutes before 12. The “graveyard” shift, to which Robbins had just recently been transferred (this was the third night he had worked on this particular shift), commenced at midnight. The testimony reflected that before commencing actual work, Robbins remarked to a fellow worker, John Vaughn, that he felt pretty bad; that he had a choking sensation in his chest; “said it seemed like he couldn’t get his good breath”; that he was “awful white”. Vaughn testified that he helped Robbins put out one light on a pot. About 12:15 a. m., fellow employees talked Robbins into going to First Aid, and he reluctantly agreed to go. Robbins returned from First Aid around 1:30, and told fellow employees that he felt no better. When asked if he had been given anything at First Aid, he replied, “Well, they gave me a dose of soda.” Deo Henderson, who worked in an adjoining section, suggested that Robbins go home, but the latter replied he would like to “stay and make the double time at night”. Robbins then proceeded to knock down two pots, ****8 i.e., breaking np the crusts, an operation which, according to witness Vaughn, took “maybe five minutes or a little longer”. After breaking down the second pot, he hung up his rake, turned, made two steps, and collapsed. It appeared to witnesses that he was headed in the direction of a curtain wall, from which ventilation came. Death was practically instantaneous. An autopsy was performed, which disclosed an occlusion of the posterior coronary artery.

Appellants contend “there was not substantial testimony sufficient to sustain the award of the Commission”, and that the judgment of the Circuit Court should be reversed, and the case dismissed.

Appellants point out that Robbins’ work on the morning of his death consisted of his usual and ordinary duties, and that he engaged in no unusual strain or overtaxing work. In one of our earlier heart cases, McGregor and Pickett v. Arrington, 206 Ark. 921, 175 S. W. 2d 210, the widow and children of H. L. Arrington, who died while engaged in his employment as a carpenter, were given an award by the Compensation Commission. At the time of his death, Arrington was engaged in sliding a plank into place. He suddenly slumped, and was dead by the time his body could be lowered from the scaffolding, where he was at work, to the ground. Arrington was engaged in the ordinary duties of a carpenter at the time. This Court affirmed the award. The holding seems to have been somewhat qualified by later decisions, typified by Baker v. Slaughter, 220 Ark. 325, 248 S. W. 2d 106. In that case, compensation was denied by the Commission, a finding reversed by the Circuit Court, but this Court reversed the trial court with directions to affirm the Commission, which had found that Slaughter was only pursuing in the normal and usual way, the work he had been performing for some time. However, the inconsistencies of these and other cases were settled by the case of Bryant Stave & Heading Co. v. White, 227 Ark. 147, 296 S. W. 2d 436, wherein we re-affirmed the rule set out in the McGregor and similar cases, including Harding Glass Company v. Albertson, 208 Ark. 866, 187 S. W. 2d 961, wherein it was said:

“While appellants cite authorities holding to the contrary, we think the better rule, and the one supported by the great weight of authority is that a heat prostration which resulted as here, and was sustained by a workman or employee, while engaged in the employment, and which grew out of the employment, whether due to unusual or extraordinary conditions or not,' is deemed an accidental injury and compensable, and we so hold.”

Further, in that case, quoting from Schneider, Workmen’s Compensation Text, Sec. 1328:

“The majority of the American courts follow the English rule as set out in the case of Clover, Clayton & Co. v. Hughes (1910), A. C. 242: ‘An accident arises out of the employment when the required exertion producing the accident is too great for the man undertaking the work, whatever the degree of exertion or condition of health.’ ”

The Bryant opinion then concluded with this language:

“Notwithstanding anything we may have said in prior cases, we hold that an accidental injury arises out of the employment when the required exertion producing the injury is too great for the person undertaking the work, whatever the degree of exertion or the condition of his health, provided the exertion is either the sole or a contributing cause of the injury. In short, that an injury is accidental when either the cause or result is unexpected or accidental, although the work being done is usual or ordinary.”

Accordingly, the fact that Robbins was only engaged in his ordinary and usual duties at the time of his death does not bar a recovery.

The unusual part of this case relates to the fact that Robbins’ heart attack admittedly had commenced before he had actually performed any labor. The question therefore before this Court, is whether there was substantial evidence to show that Robbins ’ condition was aggravated by the work performed, as heretofore set out; or stated differently, whether his death occurred sooner than would have otherwise occurred if the work had not been performed. That is the rule as stated in Frank Lyon Co. v. Scott, 215 Ark. 274, 220 S. W. 2d 128, and Quality Excelsior Co. v. Maestri, 215 Ark. 501, 221 S. W. 2d 38. It is true that in those cases the deceased had already performed some labor before the heart attack occurred, but we see no material difference if the labor performed hastened the death. The Commission, in its opinion, stated:

“Let us now turn to a consideration of that portion of the evidence which describes the work performed by the deceased and the conditions under which that work was done. An electric cell man attends a smelting pot used in processing alumina. Heat generated by electricity is conducted through the pot and thus transforms ore placed into the pot into a molten mass. A crust frequently forms atop this molten mass and it is one of the duties of a cell man to break or dissolve this crust. In so doing, the cell man runs a metal rake weighing approximately 100#, and resting upon rollers, back and forth across the pot. This process is called “breaking down a pot”. After breaking down a pot, the cell man removes the rake and places it in a fastening device located alongside the pot. Deceased had just completed the task of breaking down a pot and had placed the rake at its assigned resting place when he fell and died. As for conditions at the plant at the time, witnesses herein testify that the weather was hot. The Weather Bureau reports, admitted to the record herein, reflect that the temperature in Little Rock at 1:00 a. m., on July 5, 1957, was slightly in excess of 80 degrees. We take judicial notice that Little Rock is only some 45 miles distant from Jones Mill. * * * The temperature at the site of the smelting pots where deceased was working is described as being in excess of outside temperatures by some 15 degrees.”

There is quite a bit of evidence relative to the heat. Witness Vaughn stated that it was much hotter inside than outside, and much hotter close to the pot than away from it . . . Witness Deo Henderson testified that many of the mcu, including Robbins, wore “long handled” underwear, as a means of protection . . . R. O. Carpenter testified that the temperature inside was at least 20 or 30 degrees hotter than outside . . . Ernest Cassidy estimated the temperature around the pots that particular night to be from 110 to 120 degrees. “You can get up on the pot, and it will scorch your clothes if you stay there.” We have several times noted the influence of heat on heart attacks. See McGregor & Pickett v. Arrington, supra, Harding Glass Co. v. Albertson, supra, and Tri-State Construction Co. v. Worthen, 224 Ark. 418, 274 S. W. 2d 352.

However, in addition to the heat angle, we think the medical testimony of the two doctors who testified, supplied evidence of a substantial nature in support of the award. Dr. Howard Dishongh and Dr. Drew F. Agar, both of Little Rock, testified, and each stated that he was of the opinion that Robbins’ work did not cause the heart attack. Dr. Dishongh testified that when Robbins complained of the indigestion and choking sensation, the acute attack had already begun. From his testimony: that he had to walk to the rest room. I have been told it took approximately ten minutes to get there. That didn’t do him any good after he had the pain. Q. You mean the first aid, Doctor? A. The first aid, I mean. The heat could have been a precipitating factor. Now, I am not saying that his work caused this coronary occlusion, but I can say that it aggravated a pre-existing condition, and it could have been that if he hadn’t had that extra work to have done, he might have survived the attack.”

“I would be foolish to state that the cause of that man’s coronary occlusion was his work. I feel that it could have happened in bed as well as at work, but I do feel that perhaps it was aggravated by the fact, first,

The Doctor testified that one who suffers a coronary occlusion should be immediately placed in bed, and that any exertion would aggravate the condition . . . that the heart tends to work faster when one is walking or taking physical exercise, and there is thereby a greater demand on the coronary artery. In answer to the question, “Wouldn’t it be your present thought that his work in that heat would have aggravated his pre-existing condition? A. A pre-existing condition? Yes.” Further, “Q. Doctor, when a man has a coronary occlusion as this man had, if he is completely immobilized, if he is diagnosed and completely immobilized immediately when the attack becomes acute, wouldn’t you say that that man would have a far better chance of surviving than if the man went ahead and performed some physical exertion? A. There is no question about that, yes. That is absolutely a fact.” On direct examination, Dr. Agar, who testified at the instance of appellants, stated that in his opinion, Robbins’ work did not cause his death; however, on cross-examination, the doctor stated that the most widely used treatment for people suffering heart attacks is to immobilize the patient, preferably bed rest. In response to a question as to whether the heat and work would contribute to the severity of a heart attack which had already commenced, Dr. Agar replied:

“* * * first, I don’t think the heat would affect it. Heat per se, but if we are to accept our theory that the best treatment is bed rest or inactivity as much as possible, after a heart attack has begun, then we would have to say that yes, that an exertion might have aggravated it, providing it had already begun. If we are to accept our first premise that bed rest is treatment, we would have to follow along with that. * * * Q. Providing it had already begun, it would aggravate it? A. Oh, yes.”

Further:

“Q. So, if this man, once the attack had begun, if he had been immobilized and if he had immediately been taken to a hospital and given oxygen, wouldn’t you say the man would have had a better chance of survival? A. I think you would have to say that, yes, although he could have gone on regardless of the treatment.”

Still further:

“* * * In the usual case, if a man begins to have a heart attack, wouldn’t you say that exertion would hasten his death? A. I think- — -well, it would aggravate the condition. Now, whether it would hasten his death I don’t know. I don’t know if he is going to die or not. Q. Well, if it aggravated his condition that certainly would be likely to hasten his death, would it not? A. I think you would have to say that, yes.”

While neither doctor stated that Robbins would have lived if he had not continued with his work after the attack commenced, contrariwise, neither doctor stated that he would have died just as quickly if the work had not been performed.

Of course, the law in this state is that workmen’s compensation cases shall be broadly and liberally construed, and that doubtful cases shall be resolved in favor of the claimant. Boyd Excelsior Co. v. McKown, 226 Ark. 174, 288 S. W. 2d 614. But there is even a stronger rule, namely, our oft repeated holding that if there is any substantial evidence to support the findings of the ■Commission, we will not disturb such findings. This is the strongest rule in compensation cases, and the one carrying the greatest weight. We are of the view that the testimony herein set out was sufficient to justify the Commission in reaching its conclusions, and the judgment of the Circuit Court upholding the award is hereby affirmed.

       His duties required him to attend electric smelting pots.

       This was a two or three minutes operation, which involved pushing a weighted rake, about 12 or 14 feet long, weighing approximately 100 pounds, back and forth on rollers, along the length of the pot to break down the crust of aluminum ore which formed on the top. Electric charges are passed through carbon along the bottoms and sides of the pot (or vat) creating high temperatures and transforming the ore into a molten mass.

       According to the evidence, a pot is a long- vat, around 20 or 22 feet long-, with a row of carbon on either side. The vat contains a bath of the general materials that are used in converting alumina into aluminum. A very high heat is maintained in the bath, and the alumina is poured over the top, and during- the course of the process, it will sometimes crust over. The rake is used to break down the crust of ore.

         Of course, it is most unusual, as in the instant case, for one to continue work after a heart attack has commenced, and cases of this nature would he extremely rare.

       Actually, the Weather Bureau report reflects that the temperature in Little Rock on July 5, 1957, at 1:00 a.m., was 82 degrees, which was the hottest 1:00 a.m. temperature recorded during the entire month of July.

       The doctor stated that, from the autopsy, Robbins suffered from “a hardening of the artery, and no doubt that had been developing for years rather than for weeks”, and the attack resulted from a hardening of the arteries rather than a thrombosis.


source: Caselaw Access Project

author: J. Seaborn Holt, Associate Justice.

license: Public Domain

text:
    Robinson v. Williams.
    5-1948
    328 S. W. 2d 494
    Opinion delivered November 9, 1959.

      Milton McLees, for appellant.

      Digby é Tanner, for appellee.
   J. Seaborn Holt, Associate Justice.

Appellee, Gertrude Williams, was divorced from James C. Fulmer (now deceased) July 18, 1929. Fulmer had no children at his death. Following the divorce, as part of a property settlement, appellee (then Gertrude Fulmer) received title to certain real property described as Lots 10, 11 and 12, Block 2, Henry’s addition to Argenta (now the city of North Little Rock). On that date, appellee conveyed said lands to James C. Fulmer for Ms lifetime, the deed containing the provision that on Fulmer’s death the land should revert to appellee. It appeared that in order to allow Fulmer to realize the full use and control of said property, to make improvements and to sell any part of it, in 1934 an agreement was reached thereto and on January 18, 1934, the following instruments were executed by the parties affecting said lands. (1) A quitclaim deed executed by James C. Fulmer to Gertrude Fulmer (the appellee), conveying the whole of the three lots described above, (2) a warranty deed was executed by Gertrude Fulmer to James C. Fulmer, conveying the fee simple title to the south half of said three lots, and (3) a will was executed by James C. Fulmer, in which he devised the south half of said three lots to Gertrude Fulmer. No consideration was paid at that time by the said James C. Fulmer to the appellee, but the agreement of the parties was that the said James C. Fulmer should execute his will, devising to the appellee the property which she conveyed to him on that date, and his will contained, among others, the following provision. “3. Having on this day entered into an agreement with Gertrude Fulmer whereby she has deeded to me the S% °f Lots 10, 11 and 12, Block 2, Henry’s Addition to the City of Argenta, now North Little Rock, Pulaski County, Arkansas, and in consideration for said deed, I hereby will and bequeath to Gertrude Fulmer the of Lots 10, 11 and 12, Block 2, Henry’s Addition to the Town of Argenta, now North Little . .

The deeds of conveyance were properly filed for reeord and the last will and testament of James C. Fulmr was delivered to the appellee and remained in her possession from January 18, 1934, when executed, until the date of his death on February 11, 1958.

During his lifetime, Fulmer sold a portion of this property which appellee concedes he had the right to -do. The record further reflects that on February 3, 1958, James C. Fulmer executed another will in which, after directing the payment of his just debts and funeral -expenses, the will further provided: “3. Being unmarried, and leaving no child or issue of a deceased child, I hereby give, bequeath and devise all the rest, residue and remainder of my estate over which I have the power of testamentary disposition, wherever located and of every kind and character, real, personal, and mixed, unto Bertha Robinson, presently residing at 4000 Pike Avenue in the City of North Little Rock, Arkansas, to have and to hold the same as her property in fee simple, absolutely and forever. 4. I hereby nominate and appoint the said Bertha Robinson, as Executrix of this, my last will and testament, and direct that she be permitted to serve without bond.” The present action was instituted by appellee, first, by petition in probate court and later by agreement transferred to chancery, in which she sought specific performance of the 1934 will as an irrevocable instrument in so far as same affected the south half of the three lots above less that portion conveyed by decedent in his lifetime.

The appellant defended on the grounds that the 1934 will was not an irrevocable instrument; that appellee did not come into court with clean hands, and that appellee had fraudulently transferred title to the property in 1934 to defeat a judgment creditor, that appellee is barred by the principle of estoppel and as an affirmative defense, appellant alleged that she was entitled to receive all of the property of the decedent and occupied the position of an innocent purchaser by virtue of an alleged agreement between the decedent and appellant to devise the property to her in consideration of her performing certain personal services and administering to him, during part of the two last years of his life.

Trial resulted in a decree in favor of appellee. The decree contained this recital: “— the court . . . doth find that the terms and provisions of the written instrument dated January 18, 1934, in the form of a will executed by James C. Fulmer, deceased, devising certain real property hereinafter described, claimed by the plaintiff, was a valid contract to convey, based upon a valuable consideration; that, as such, the same was not subject to revocation by his will dated February 3, 1958, which, has been admitted to probate; that said contract to convey to the plaintiff should be specifically enforced; and that the relief sought by the plaintiff should be granted.” This appeal followed.

For reversal, appellant lists her points relied upon as follows: (1) The decree is contrary to the proof and the equities of the case. (2) Estoppel operates to bar appellee’s claim. (3) Appellee does not seek equity with “clean hands”.

■ On the record presented we think the issues, when boiled down, consist of two points. First, was the instrument dated January 18, 1934, in the form of a will of the decedent based on a valuable consideration entitled to specific performance, and second, is the appellant, Bertha Robinson, in the position of a bona fide purchaser in regard to the property she claims in a devise from the decedent in the 1958 will, and is she correct in her contention “that the agreement which she made with decedent during his lifetime, for her future care and attention, to be given him the rest of his life, which obligation on her part was completely performed, was equally a binding ‘contract’ supported by a consideration of equal dignity as a money value, by which decedent was bound to devise to her.” We consider these two issues together.

On the first point we hold that the trial court correctly held that the 1934 will of the decedent, dated January 18, 1934, was based upon a valuable consideration and entitled to specific performance. We think that the great weight, if not practically all the testimony, supports appellee’s contention. The appellee testified that she would not have conveyed the property to the decedent except on condition that it would return to her upon his death. As indicated, the will itself recites that decedent had entered into an agreement with appellee, that in consideration of the deed of conveyance to him, that he had devised the property in question to appellee at his death. The evidence appears to be conclusive that no purchase money was paid by decedent for the conveyance to him, and that the sole consideration was his ■unconditional covenant to devise the property to appelleeat his death as evidenced by the 1934 will. It further’ appears undisputed that this 1934 will was delivered toappellee and remained in her possession for some 24 years, until after the death of the decedent on February 11, 1958, when it was submitted to the court for specific-performance. It further appears that decedent recognized the binding effect of this will by stating to a daughter of the appellee, on more than one occasion, shortly before his death, that he could not revoke this will and' make other disposition of his property. Clearly, we-think, in these circumstances decedent lacked the power to revoke his 1934 will with his subsequent will of February 3, 1958. In circumstances similar in effect to what we have here we have consistently held that the appellee was entitled to specific performance of the 1934 will which was, in effect, a binding, irrevocable contract obligating decedent to convey the property in question to-the appellee.

The principles of law announced in our recent case-of Janes, Executor v. Rogers, 224 Ark. 116, 271 S. W. 2d 930, apply with equal force here. In that case, the husband and wife simultaneously executed identical wills, devising all their property to the survivor for life and remainder over to their children and step-children. Rogers pre-deceased his wife and she assumed control of the property and about two years subsequent to his death, she attempted to revoke her will and substitute another. The court there held, in effect, that her first will was based upon a valuable consideration and not subject to revocation. We there said: “It is also well settled that a will is generally ambulatory until the death of the testator, and that mutual or reciprocal wills, may be revoked at pleasure unless founded on, or embodying, a binding contract.

“The fact that the parties have concurrently executed separate wills, reciprocal in terms, is not sufficient of itself, to show that the parties had entered into a contract to make such wills; but the terms of such wills afford some evidence of the contractual relation and, when read in connection with other evidence which tends to show the execution of the contract, may establish that fact. Page on Wills, Sec. 1710; Annotation on Joint, Mutual and Reciprocal Wills, 169 A. L. R. 9.

“Although it is advisable from the standpoint of good draftsmanship that reciprocal wills embody a reference to a contract for their execution, it is not essential to the establishment of such a contract. See 57 Am. Jur. Wills, Sec. 733 where the author further states: ‘An agreement to execute wills containing reciprocal bequests and provisions for the benefit of third persons may result from implication from the wills themselves, the relation of the parties, and other circumstances surrounding the parties, and the execution of the wills, all considered in combination. ’

“The case of Schramm v. Burkhard, 137 Or. 208, 2 P2d 14, involved facts similar to those in the instant ease. In upholding and enforcing the oral contract in that case the court stated: ‘It is an established rule that equity will not allow one person to receive advantage under a contract and then refuse to perform his part of the agreement, and that, where mutual wills are the result of a contract between the parties making them, which could not be rescinded without the consent of both, and one of them has died and his part of the contract has been carried into execution, equity will not permit the other to violate the agreement but will enforce the contract by declaring the executor, devisee, or other person coming into possession of the property which was the subject of the contract to be trustee for those who would have benefited had the contract been performed.’ ”

In the present case, no oral contract was relied upon. Reliance here is upon the 1934 will itself which contains all necessary recitals along with the circumstances surrounding the transaction and the parties, together with the corroborated facts.

It appears to us that appellant has utterly failed to disprove any of the circumstances attendant upon execution of the 1934 will. Neither has appellant produced sufficient testimony to warrant the revocation of this 1934 will.

As to the other issues raised by appellant, but little need be said. Her contention is that appellee did not come into court with clean hands, for the reason that, some twenty-four years earlier she had conveyed the’ property in question to her divorced husband to defraud a judgment creditor; without attempting to detail the-testimony on this issue, we hold that the burden is on the party alleging fraud to prove it by a preponderance of the evidence which is clear and convincing, which appellant in this case has failed to do.

In Biddle v. Biddle, 206 Ark. 623, 177 S. W. 2d 32, we so held. “. . . There is no rule more firmly established than the one that fraud will not be presumed,, and the burden is on the party alleging it to prove it by a preponderance of the evidence which is clear and convincing. . . . While fraud need not be shown by direct or positive evidence but may be proved by circumstances, ... it must reasonably and naturally follow from circumstances proved. . . . Circumstances of mere suspicion leading to no certain result are not sufficient grounds to establish fraud. ’ ’ Citing cases.

On the question of estoppel, again little need be said. Appellant argued that because Fulmer (decedent) had conveyed by deed a portion of his property during his lifetime, that appellee is estopped to claim the remainder of the property. We do not agree. As we have pointed out above, decedent had the right to convey or dispose of any of the property in question during his lifetime, and appellee, in fact, makes no claim to any of the property which decedent so conveyed, but she does claim, and rightly so, that she is entitled to all of the real property here involved which he owned and was undisposed of at his death.

On the whole case finding no error, the decree is affirmed.


author: Ed. F. McFaddin, Associate Justice. George Rose Smith, J.,

text:
    Fitzwater v. Harris.
    5-1929
    328 S. W. 2d 501
    Opinion delivered November 9, 1959.

      Orion E. Gates, for appellant.

      John F. Gibson, for appellee.
   Ed. F. McFaddin, Associate Justice.

This appeal necessitates a study of Act No. 53 of 1957. Tbe question posed is the correctness of the Circuit Court ruling which refused the plaintiffs a default against the defendant because of his failure to file answer within twenty-one days after service of summons.

Here is the chronological order of events:

(a) On January 22, 1958 appellants, as plaintiffs, filed action in the Drew Circuit Court against the appellee, William Harris. The complaint sought damages for plaintiffs because of an alleged traffic mishap.

(b) Summons was served on defendant, Harris, in Chicot County on January 22,1958; and on January 23rd Harris’ attorney, Mr. Gibson, wrote the Drew Circuit Clerk and obtained a copy of the complaint.

(c) On February 7, 1958 the Circuit Judge was in Drew County for the purpose of setting cases for the ensuing term of the Circuit Court which would convene on February 17,1958 (the third Monday in February, as fixed by § 22-310 Ark. Stats.).

(d) Mr. Gates, for the plaintiffs, and Mr. Gibson, for the defendant, were both present before Circuit Judge Golden on February 7th; and Judge Golden dictated the following into the record as his recollection of what transpired on that occasion:

“On February 7 the Court set the docket, including this case, and on that date the following notation was made by the Court: ‘Set for 2/17/58, to be reset’, and as I recall what transpired on that date Mr. Gibson stated that he wished to file a motion for an order to have permission to have the plaintiffs examined by some physician and that Mr. Gates immediately responded that that wasn’t necessary, that he would submit them to an examination at any reasonable time or place. That was a verbal motion.”

(e) On February 13th defendant filed his answer, which was twenty-two days after the day of the service of summons.

(f) On February 17th plaintiffs filed their motion to strike the answer and for default, since the answer was filed one day too late.

(g) The Circuit Court denied the motion to strike and the motion for default; and the correctness of that ruling is the sole issue on this appeal.

In the briefs and in the oral argument before this Court, appellants cite Act No. 49 of 1955 and insist that under the law it was mandatory on the Circuit Court to render a default against the defendant since he had failed to file an answer within twenty-one days after service; and appellants cite, inter alia, Walden v. Metzler, 227 Ark. 782, 301 S. W. 2d 439; and Pyle v. Amsler, 227 Ark. 785, 301 S. W. 2d 441. These cases were decided under Act No. 49 of 1955 and hold exactly what the appellants say; but appellants have apparently failed to attach the proper importance to Act No. 53 of 1957, which amended the said Act No. 49 of 1955. The germane portion of Act. No. 49 reads:

“Judgment by default shall be rendered by the Court in any case where the defense has not been filed within the time allowed by this Act; provided, that the Court may for good cause allow further time for filing a defense, if application for granting further time is made before expiration of the period within which the defense should have been filed.”

The quoted language of the above Act was amended by Act No. 53 of 1957; and below we emphasize the amendatory language for convenient information:

“Judgment by default shall be rendered by the Court in any case where an appearance or pleading, either general or special, has not been filed within the time allowed by this Act; provided, that the Court may for good cause allow further time for filing an appearance or pleading, if application for granting further time is made before expiration of the period within which the appearance or pleading should have been filed; and that nothing in this Act shall impair the discretion of the Court to set aside any default judgment upon showing of excusable neglect, unavoidable casualty or other just cause.”

Thus, by the Act No. 53 of 1957 the Trial Court had power to set aside a default, even if it had granted one, for either of three causes: (a) excusable neglect; (b) unavoidable casualty; or (c) other just cause. In the case at bar the Circuit Court exercised the power contained in the amendatory language because the Circuit Judge, in denying the motion for default, called attention to the fact that, if on February 7th Mr. Gibson for the defendant had filed a written motion to have the plaintiffs examined, that motion would have certainly constituted a pleading; but that Mr. Gates, by his response, made the written motion unnecessary.

Further, it is easy to see that when the parties agreed for the case to be set on February 17, 1958, subject to be reset, Mr. Gibson was certainly lulled into a feeling of security that the ease would not be tried before February 17th. Under all the facts and circumstances in this case, Mr. Gibson’s failure to file his answer until February 13th comes either under the heading of “excusable neglect”, or “other just cause”. At all events, we cannot say that the Trial Court was in error in refusing to strike the answer and in refusing to render a default.

Affirmed.

Harris, C. J., and George Rose Smith and Johnson JJ., dissent.

George Rose Smith, J.,

dissenting. The trial judge did not, as I read his opinion, make a finding of excusable neglect; his decision rested on a different ground. On February 13 the defendant had filed two pleadings, an answer and a motion to strike the complaint for want of verification. On February 17 the plaintiffs in turn filed two pleadings, a response to the motion to strike the complaint and a request for judgment by default. The trial court held that the plaintiffs, by responding to the defendant’s motion to strike, had waived the defendant’s delay in pleading to the complaint. I do not agree with the trial court’s reasoning; but it seems unnecessary to discuss the point, since the majority have not adopted the lower court’s position in the matter.

The majority opinion suggests two reasons for permitting the defendant to file his answer out of time. First, it is said that when the parties agreed for the case to be set on February 17, “Mr. Gibson was certainly lulled into a feeling of security that the case would not be tried before February 17 th.” Perhaps so, but how is that fact material? Under the statute the defense must be filed on the twenty-first day, aud it makes no difference that counsel may know with certainty that the case cannot be tried for Aveeks or even months. The date of trial has nothing to do with the time for answering the complaint. By their intimation to the contrary the majority have most unfortunately unearthed the ghost of the very statutes that were repealed by Act 49 of 1955.

There is left only the majority’s second suggestion, that Mr. Gates waived a compliance with the statute by agreeing that his clients might be examined without the necessity of the defendant’s filing a written motion for such an examination. It seems plain enough that the defendant’s oral motion would not alone have prevented a default judgment, because (a) our practice does not recognize oral pleadings, Bachus v. Bachus, 216 Ark. 802, 227 S. W. 2d 439; and (b) Act 53 of 1957 refers to the filing of an appearance or pleading, which undoubtedly contemplates a written instrument. It follows, then, that the sole basis for a finding of excusable neglect is the fact that Mr. Gates said that a written motion for a physical examination would be unnecessary. I find it impossible to believe either that Mr. Gates intended by his statement to grant an extension, which must have been indefinite as to time, for the filing of an answer, or that Mr. Gibson could excusably treat the statement of his adversary as an assurance that the defendant’s answer need not be filed within the time allowed by law.

It is with regret that I record my disagreement with the majority; we all have an understandable aversion to holding that a litigant should suffer a default judgment on account of his lawyer’s failure to file an answer promptly. But the defense offered no testimony whatever in response to the plaintiffs’ motion for a default judgment. Thus there is nothing to show that the neglect was excusable, and in these circumstances I am not willing to say that the plaintiffs should be penalized because their attorney extended a commonplace professional courtesy to his opponent.

Harris, C. J., and Johnson, J., join in this dissent.

       After the denial of the motion to strike and the motion for default, the case was tried to a jury and resulted in a verdict and judgment for the defendant; but plaintiffs preserved their objections to the order denying the motion to strike and the refusal of the default, and thus the issue reaches this Court.

         The Act No. 49 of 1955 has been mentioned or referred to in a number of our cases, some of which are: Howell v. Van Houten, 227 Ark. 84, 296 S.W. 2d 428; Walden V. Metzler, 227 Ark. 782, 301 S.W. 2d 439; Pyle v. Amsler, 227 Ark. 785, 301 S.W. 2d 441; Cummings v. Lord’s Art Galleries, 227 Ark. 972, 302 S.W. 2d 792; Douglas v. Douglas, 227 Ark. 1057, 304 S.W. 2d 947; West v. Page, 228 Ark. 13, 305 S.W. 2d 336; Stokenbury v. Stokenbury, 228 Ark. 396, 307 S.W. 2d 894; Flippin v. McCabe, 228 Ark. 495, 308 S.W. 2d 824; Lambert V. Lambert, __ . Ark........, 316 S.W. 2d 822; and Burton v. Sanders,........ Ark. ......, 321 S.W. 2d 209.


author: George Rose Smith, J.

text:
    Missouri Pacific Railroad Company v. Nichols.
    5-1934
    328 S. W. 2d 856
    Opinion delivered November 9, 1959.

      Pat Mehaffy and W. A. Eldredge, Jr., for appellant.

      John Harris Jones, for appellee.
   George Rose Smith, J.

Tbe appellee recovered a judgment for $3,500 for personal injuries and property damage suffered when his car was struck by one of the appellant’s trains at a railroad crossing in the city of Pine Bluff. Since the judgment must be reversed on account of an erroneous instruction it becomes necessary to discuss only that instruction and the sufficiency of the evidence to make a case for the jury.

The accident happened at about seven o’clock upon a November evening in 1956. Nichols, who was familiar with the crossing, says that he stopped his car at a point about 52 feet from the tracks, looked both ways, and did not see the approaching train, though it must have been within view. He proceeded slowly forward without again looking in either direction and was hit when he had almost crossed the tracks. The defendant’s train was traveling at about ten miles an hour, with its headlights burning, but there is evidence that no whistle was sounded nor any bell rung. Upon these facts the appellant insists that it was entitled to a directed verdict, citing as conclusive our holding in Mo. Pac. R. Co. v. Dennis, 205 Ark. 28, 166 S. W. 2d 886.

The case was properly submitted to the jury upon the issue of comparative negligence. The Dennis case is not controlling, for it was decided under the original railroad comparative negligence statute, by which the plaintiff was precluded from a recovery if his negligence exceeded that of the railroad company. That statute was repealed by Act 191 of 1955, which governs the present case. St. Louis S. W. Ry. Co. v. Robinson, 228 Ark. 418, 308 S. W. 2d 282; Chism v. Phelps, 228 Ark. 936, 311 S. W. 2d 297. Under the 1955 act the appellee is entitled to a proportionate recovery if the appellant’s negligence contributed in any degree to the cause of the collision, even though the appellee’s negligence was the greater of the two. Since the jury might have found that the carrier’s failure to give the statutory signals was a contributing cause of the accident the evidence presented a question for the jury.

The court erred, however, in giving this instruction at the plaintiff’s request: “If you believe from the preponderance of the evidence in this case that reasonably prudent operation of a train in a heavily populated residential area requires the use of locomotives equipped with brakes which can be operated by the fireman as well as the engineer, then the failure of defendant to use such a locomotive in this case would constitute negligence.”

The complaint did not allege that the defendant was negligent in not using a locomotive with brakes that could be operated by the fireman as well as by the engineer. There was nothing in the pleadings to put the defendant on notice that any such question would be an issue in the case. The proof indicates that this train was traveling in interstate commerce, but it is not suggested that the locomotive’s brakes did not meet the requirements of the Federal Safety Appliance Act or the regulations thereunder, which are for the benefit of the traveling public. 45 USCA §§ 1 and 9; Fairport etc. R. Co. v. Meredith, 292 U. S. 589.

The only testimony on the point arose almost by chance during the cross examination of the defendant’s fireman. This witness stated that he did not have access to the brakes “on this particular engine.” Upon being questioned further he said that there are some classes of engines, a newer type, that have a valve by which the fireman can operate the brakes. This meager testimony, narrowing down to the bare statement that some of the more modern locomotives have dually controlled brakes, could not enable the jury to make an intelligent and informed determination of the question submitted to them. Compare Miller v. Fort Smith L. & T. Co., 136 Ark. 272, 206 S. W. 329. Without passing upon whether the challenged instruction is in all respects a correct declaration of law we are of the opinion that in this case the instruction provided the jury with a roving commission to make a finding of negligence without any substantial or relevant proof to support that determination.

Reversed.


text:
    Great American Indemnity Co. v. State, ex rel. Ark. Bitumuls Co.
    5-1942
    328 S. W. 2d 504
    Opinion delivered November 9, 1959.

      Moses, McClellan, Arnold, Owen £ McDermott, By Jack Young, for appellant.

      Mehaffy, Smith £ Williams, By Pat Mehaffy and Robert V. Light, for appellee.
   George Rose Smith, J.

In 1957 the State Highway Commission awarded a paving contract to T. P. Scholes of Arkansas, Inc., and the contractor executed a performance bond with the appellant as surety thereon. Ark. Stats. 1947, § 76-217. The appellee, Arkansas Bitumuls Company, furnished the contractor with asphalt to be used upon the paving job. The contractor failed to pay the materialman’s account, and the appellee brought this action against the contractor and its surety to recover a principal debt of $45,318.96. The defendants at first denied the claim, but three days before the date of trial they amended their answer to admit liability for the full amount sued for. The surety, however, resisted the plaintiff’s right to recover the statutory 12% penalty and attorney’s fee. Ark. Stats., § 66-514. The trial court allowed the penalty and an attorney’s fee of $6,000, and this appeal questions those allowances.

The appellant’s principal contention is that it was never in default, for the reason that it was not required to make any payment as surety on the performance bond until the Highway Commission had first certified that all sums owed to the State under the bond had been paid. Ark. Stats., § 76-217. It is conceded that the Highway Commission has not made the certification mentioned in the statute, but the appellee insists, and the trial,court held, that this requirement was repealed by Ark. Stats., §§ 14-604 and 14-606. "We have concluded that the trial court was correct, the issue being governed by our decision in Consolidated Ind. and Ins. Co. v. Fischer Lime & Cement Co., 187 Ark. 131, 59 S. W. 2d 928.

The statute relied upon by the appellant was <§ 53 of Act 65 of 1929. The provisions relevant to this case were (a) that performance bonds should be required for highway construction contracts in excess of $1,000, (b) that payment of claims for labor or material under such a bond should be postponed until the Highway Commission had certified that all sums due the State had been paid, and (c) that all such claimants should, as a condition to bringing an action upon their demands, file their claims with the Highway Commission within thirty days after the completion of the work.

Later in the same session of the legislature there was passed Act 368 of 1929, upon which the appellee relies. This statute provided that all bonds required by public officers or agencies should be construed to cover certain specified items of labor and material, whether or not the language of the particular bond included the enumerated items. The act also provided that suits to enforce claims under such a bond should be commenced within six months from the date of the final estimate to the contractor.

;In the Fischer case the claimants had not filed their claims with the Highway Commission in accordance with what we have designated as provision (c) of the earlier statute. We examined the two acts in detail and found that several clauses in the later act were contrary to the provisions of the earlier act. It was our conclusion that Act 368 had impliedly repealed the requirement that claims be filed within thirty days after the completion of the work. ‘ ‘ The only condition upon the right to sue under act 368 is that the suit shall be commenced within six months from the date of final estimate to the contractor.”

We are unable to distinguish that case from this one. What we have set out as provision (a) of Act 65 is a substantive requirement that the performance bond be given. But provisions (b) and (c) are procedural clauses having to do with the claimants’ remedy upon the bond. The Fischer case holds in effect that in enacting Act 368 the legislature covered the matter of procedure anew and laid down the limitation of six months as the only condition upon the claimants’ right to sue. It follows that provision (b), with reference to the Highway Commission’s certificate, was also impliedly repealed, for there is no sound basis for treating one of the procedural clauses differently from the other one.

The appellant also insists that the amount allowed as an attorney’s fee is excessive. On this point one of the appellee’s attorneys made a sworn statement about the services that had actually been rendered, but this statement has not been brought into the record. In testimony which the trial court regarded as advisory two disinterested attorneys stated that a reasonable fee would be from $7,500 to $8,750, while a third thought the amount should fall between $3,700 and $4,500. Owing to the fact that some of the proof is not before us the trial court was in a better position to fix a reasonable fee than we are, and we cannot say that his allowance is excessive. We do hold, however, that the appellee’s request for an additional fee for services upon this appeal should be denied.

Affirmed.


author: Paul Ward, Associate Justice.

text:
    Robbins v. Robbins.
    5-1938
    328 S. W. 2d 498
    Opinion delivered November 9, 1959.

      Willis V. Lewis, for appellant.

      Langston & Walker, for appellee.
   Paul Ward, Associate Justice.

The questions involved on the appeal relate to the amount of child support and the rights of visitation in a divorce action.

Appellant and appellee were divorced May 16, 1957. There were two children, ages at the time approximately three and five. The decree granting appellee a divorce provided that appellant should pay $25.00 a week for support of the minor children, $45.00 per month to pay installments on the residence in Little Rock, and gave custody of the children to appellee with the right of appellant to visit them on each Tuesday or Wednesday between 2:00 P. M. and 6:00 P. M. There was no appeal from the above decree.

On September 25, 1957, on petition of both parties the trial court issued an order in which it was noted that appellant had given to appellee a quitclaim deed to the residence mentioned above. The order relieved appellant of the $45.00 monthly payments heretofore mentioned and reduced the child support from $25.00 a week to $20.00 a week. No appeal was taken from this order.

Sometime after the divorce appellant remarried but he did visit the children generally on Wednesday afternoons, and once in a while he was allowed to keep them on Saturday nights. After appellant’s remarriage it appears that some friction developed between him and appellee and on one occasion at least a fight took place between appellant and appellee’s father at her residence.

On November 17, 1958, appellee filed a motion in the original divorce action seeking to restrain appellant from visiting her home and from molesting her and the children, asking that appellant’s visitation rights be discontinued and asking that appellant be required to pay $100.00 per month for support of the minor children and also pay certain medical bills and court costs including an attorney’s fee. On the same day appellant also filed a petition in the same case in which it was stated that he and appellee had formerly agreed that he should pick up the children each Saturday at 8:00 A. M. and keep them overnight; that appellee was prejudicing the children against him since his remarriage and also refusing to let him visit the children on Saturday. The prayer in appellant’s petition was that appellee be required to show cause why she should not be held in contempt of court, and that she be restrained from interfering with his visitation rights with the children.

Upon the above motion and petition a hearing was had and on February 27, 1959, the trial court denied appellant’s petition and also denied appellee’s motion to discontinue appellant’s rights of visitation. The trial court did, however, fix appellant’s visitation rights to every other Saturday from 9:00 A. M. to 5:00 P.M.; and ordered appellant to pay $25.00 each week for support of the two minor children, to pay $78.00 medical bill for the children, to pay $69.20 court costs, and to pay a $75.00 attorney fee for appellee.

Appellant has duly prosecuted an appeal from the above decree and seeks a reversal on three separate grounds, namely: One, the court erred in changing appellant’s visitation rights; Two, the court erred in ordering appellant to pay $25.00 each week for the support of the minor children; and, Three, the court erred in ordering appellant to pay certain costs including an attorney’s fee. We are unable to agree with appellant on any of the grounds set forth above and our reasons therefor are set out below.

One. We think it was in the sound discretion of the court to fix reasonable visitation rights for appellant and we are unable to say that its discretion was abused in this instance. In the original decree it was provided that appellant should have the right to visit his minor children on each Tuesday or Wednesday between 2:00 P. M. and 6:00 P. M. for a total period of four hours each week. Under the order appealed from appellant is given the same number of visitation hours but they are to be used between 9:00 A. M. and 5:00 P. M. on each alternate Saturday. The record discloses several things which might have prompted the trial court in making this change. It appears that one of the children is now of school age and it seems reasonable that the hours formerly fixed might easily cause a conflict. It also appears that there has been friction between appellant and appellee, at one time resulting in a fight as before mentioned. There is also testimony in the record given by Dr. N. T. Hollis from which the court could have found that appellant’s demeanor was not what it should have been. As in all child custody cases, the trial court retains jurisdiction to make any change in visitation rights which future circumstances might dictate. We cannot, therefore, say that the trial court abused its discretion under the facts and circumstances above set forth.

Two. Likewise we see no merit in appellant’s contention that the trial court erred in increasing the child support from $20.00 to $25.00 each week. Appellant contends that he and appellee had agreed on the lesser amount and that the court was bound thereby. In the first place the record does not establish that any such agreement was ever made. At least it was not set forth in the court’s decree and the court was, therefore, not bound by it. Moreover, the matter of child support is something over which the trial court has continuing jurisdiction and it cannot be bartered away even by the parents. Also, the amount of support is a matter within the sound discretion of the trial court under the facts of each case. See Johnson v. Johnson, 165 Ark. 195, 263 S. W. 2d 379; Martin v. Martin, 225 Ark. 677, 284 S. W. 2d 647; and Childers v. Childers, 229 Ark. 12, 313 S. W. 2d 75.

Three. Likewise, we are unable to agree with appellant’s contention that since appellee did not succeed on her motion relative to a discontinuance of appellant’s visitation rights he should not have been required to pay for appellee’s depositions, court costs, and attorney’s fee. While it is true that appellee in her motion filed November 17, 1958, asked that appellant’s visitation rights be cancelled and while it is true this was not done, it is also true that appellant did not get what he asked for in his petition filed on the same day. As to the rights to cost of the deposition, appellant’s contention is fully met by our holding in Hardy v. Hardy, 228 Ark. 991, 311 S. W. 2d 761. Again it was within the sound discretion of the trial court to decide who should pay the court costs and the attorney’s fee as well as the doctor bill for the treatment of the minor children. In each instance the amount of the allowance appears to be reasonable and we are unable to see in what way the trial court abused its discretion.

Affirmed.

Robinson, J., not participating.


author: Sam Robinson, Associate Justice.

text:
    Coogler v. Dorn.
    5-1960
    328 S. W. 2d 506
    Opinion delivered November 9, 1959.

      George Howard, Jr., for appellant.

      James C. Cole and Ed F. McDonald, for appellee.
   Sam Robinson, Associate Justice.

This is an appeal from an order dismissing appellant’s petition for determination of heirship.

Grant Monts, a Negro resident of Grant County, Arkansas, died in February, 1926, at the age of 45. At death he owned 120 acres of land in Grant County upon which he was living. Following his death one Adoria Ludiway Monts, who allegedly was Grant Monts’ widow, continued to live on said land until her death on September 4, 1957.

Shortly after Adoria’s death, Veltee Cole, a granddaughter of Adoria, filed a petition for appointment as administratrix of the estate of Grant Monts, stating that appellees, Jethrow Dorn and James Davis, were the sole surviving heirs of Grant Monts. This was based on the allegation that appellees are the sons of Torpelia Monts Davis, deceased daughter of Grant and Adoria Monts. Thereafter Henry Mays, Veltee Cole’s father, filed a petition for appointment as administrator in succession to Veltee Cole, which was granted.

Subsequently Veltee Cole, through her father as guardian, filed a claim in the amount of $7,280 against the estate, alleging she had an agreement with appellees as sole heirs of Grant Monts whereby she would be paid by the estate for earing for Adoria, Grant Monts ’ widow.

On April 28, 1958, this claim was allowed in the amount of $2,000. In allowing same the court found that appellees were the legal heirs of Grant Monts and as such they entered into the alleged agreement with Veltee Cole to care for Adoria Monts as Grant Monts’ widow.

On May 13, 1958, appellant Donnie Coogler filed a petition for determination of heirship as provided in Ark. Stat. § 62-2914. He alleged that he was a nephew of Grant Monts and as such was the sole surviving heir; that appellees claim to be heirs of Grant Monts; that decedent owned certain land in Grant County; and that the net value of the estate was approximately $5,000. The petition asked that the court set a hearing for same in order that notice thereof could be given under paragraph (c) of Ark. Stat. § 62-2914 and that appellant be declared the lawful heir of Grant Monts. After two hearings on the petition, the court took the case under advisement and on February 6, 1959, entered an order dismissing appellant’s petition.

Three grounds are argued for reversal:

■ First, it is contended that the court erred in dismissing appellant’s petition. Appellant’s principal argument is that Grant Monts and Adoria Ludiway Monts were never married and for that reason appellees would not be the grandchildren and legal heirs. Testimony showed that Grant Monts came to Arkansas from South Carolina about 1906. Adoria came to Grant County about 1910. They lived together as man and wife from the time of Adoria’s arrival until Grant’s death. Following his death Adoria lived on the land and exercised all the rights of a widow, with the knowledge of both the appellant and appellees. There was testimony offered by appellant to the effect that Adoria arrived in 1910 with four children, the youngest of whom was appellees’ mother; that these were the children of Adoria and not of Grant; that the children started using the name Monts when they started in school; that both Grant and Adoria had admitted on several occasions that they were not married; and that acts of ownership of the land by Adoria after Grant’s death were done only after permission of appellant had been obtained.

There is strong evidence of a marital relationship in the record. First of all, before coming to Arkansas both Grant and Adoria lived in South Carolina, where common law marriage is recognized. Ex parte Romans, 78 S. C. 210, 58 S. E. 614; Jackson v. United States, 14 F. Supp. 132. When Adoria and children arrived from South Carolina, they were met at the train by Grant and went home with him. From that moment on Grant and Adoria lived together as husband and wife for sixteen years. During this time the children went by the name Monts and Grant cared for them and held them out to be his own. Several instruments were introduced regarding mortgaging and leasing of the land, where Adoria executed same as Grant’s wife and relinquished dower. One instrument, an oil and gas lease on this same land, was executed on July 1, 1942, by Adoria Monts as widow and Torpelia Monts, daughter of Grant Monts, deceased. Where there is cohabitation apparently matrimonial, a strong presumption of marriage arises which increases with the passage of time, during which the parties lived together as husband and wife, especially where the legitimacy of a child is involved. This rule was recognized by this Court in Martin v. Martin, 212 Ark. 204, 205 S. W. 2d 189; see also Locket v. Adams, 212 Ark. 899, 208 S. W. 2d 428. The burden is on one claiming otherwise to prove there was no such marriage. See Bruno v. Bruno, 221 Ark. 759, 256 S. W. 2d 341, at page 764, and cases cited therein.

The evidence before the lower court established the presumption of a valid marriage between Grant and Adoria Monts. The necessary result is the relationship of the appellees as grandchildren of Grant Monts. In order to disprove appellees’ right to inherit, appellant had the burden of overcoming the presumption of marriage. We cannot say the probate judge erred in finding that appellant had not discharged this burden.

Next the appellant says the court erred in permitting appellees to file a response to appellant’s petition and to offer testimony. This contention is based on the fact that notice of the date of hearing was received by appellee James Davis, by registered mail on May 17, 1958. Appellees appeared at the hearing on June 20, 1958, without having filed a response, and at a second hearing on July 16, 1958, the court allowed appellees to dictate a response into the record over the objection of appellant.

Appellant argues that according to Ark. Stat. § 62-2004(e), Ark. Stat. § 27-1135 controls the time within which an answer to the petition should have been filed. Under % 27-1135 the appellees would have been allowed only 20 days to answer. However, the first sentence of § 62-2004(e) is as follows: “Procedure and rules of evidence in probate court, except as in this Code otherwise provided, shall be the same as in courts of equity.” Ark. Stat. § 62-2914, setting forth the procedure in petitions for determination of heirship, at paragraph (c), states: “Upon the filing of a petition, the court shall fix the time for the hearing thereof, notice of which, shall be given to . . .” and then follows the persons to whom the notice should be sent. In addition, Ark. Stat. § 62-2011, which pertains to the general provisions governing all probate matters, is as follows: “An interested person, on or before the day set for hearing, may file written objections to a petition previously filed. Upon special order or general rule of the court, objections to a petition must be filed in writing as a prerequisite to being heard by the court.” Under these sections all persons desiring to be heard would have the right to appear at said hearing, as did the appellees in the instant case, unless by order or general rule the court required a written response. The record contains no such order or rule.

Finally appellant maintains the court erred in sustaining the objection to certain testimony. Appellant challenges the ruling of the court in not allowing testimony offered by two of his witnesses to the effect that Grant and Adoria were not married. There is ample unchallenged evidence in the record on this same point. We try appeals from probate court de novo and consider the competent testimony regardless of the ruling of the trial court on the above evidence. Suits v. Chumley, Administrator, 218 Ark. 488, 236 S. W. 2d 1001; Walsh v. Fairhead, Executrix, 215 Ark. 218, 219 S. W. 2d 941; Morris v. Arrington, Administratrix, 215 Ark. 564, 221 S. W. 2d 406.

Affirmed.


author: Jim Johnson, Associate Justice.

text:
    St. Paul Fire & Marine Insurance Co. v. Kell.
    5-1963
    328 S. W. 2d 510
    Opinion delivered November 9, 1959.

      Wright, Harrison, Lindsey & Upton, for appellant.

      D. Leonard Lingo & Harry L. Ponder, for appellee.
   Jim Johnson, Associate Justice.

Appellant, St. Paul Fire & Marine Insurance Company, issued to appellee, J. R. Kell, a combination auto policy for the period July 7, 1956, to July 7, 1957, providing liability, collision, comprehensive, and medical payments.

By endorsement, the policy also provided for a $10,000 indemnity for the death of J. R. Kell as a result of an automobile accident and a weekly indemnity of $50 during the period of total disability suffered by J. R. Kell as a result of an automobile accident.

On May 15, 1957, (during the policy period) J. R. Kell was injured in an automobile accident while driving to work in his Dodge pickup truck. He was totally disabled for a period of twenty-one weeks. Appellee gave notice of claim and executed a proof of loss, claiming $1,050 under the total disability indemnity provision of the policy. The claim was denied by appellant and this suit followed. The case was tried before the Court sitting as a jury and resulted in judgment in favor of appellee in accordance with the relief prayed for in the complaint.

Appellant relies upon an exclusion which is part of the endorsement under which claim was made and which reads as follows:

“This insurance does not apply: (a) to bodily injury or death sustained in the course of his occupation by any person while engaged (1) in duties incident to the operation, loading or unloading of, or as an assistant on, a public livery conveyance or commercial automobile . . .”

Appellant argues that the undisputed testimony reveals that J. E. Kell was operating a commercial automobile in the course of his occupation at the time of the accident of May 15, 1957, and that the trial court should, therefore, have entered judgment in favor of appellant.

The initial policy of insurance contains the following language under Item 8:

“. . . (a) The term ‘pleasure and business’ is defined as personal, pleasure, family and business use. (b) The term ‘commercial’ is defined as use principally in the business occupation of the named insured as stated in Item 1, including occasional use for personal, pleasure, family and other business purposes . . .” (Emphasis supplied).

The endorsement also contains the following provision :

“The company agrees with the named insured, in consideration of the payment of the premium and in reliance upon the declarations and subject to the limits of liability, exclusions, conditions and other terms of this endorsement and of the policy . . .” (Emphasis Supplied).

It is a well settled rule of this Court that in construing contracts of insurance, where a provision of an insurance policy is susceptible of two equally reasonable constructions, one favorable to tbe insurer and the other to the insured, the latter will be followed: Industrial Mutual Indemnity Co. v. Hawkins, 94 Ark. 417, 127 S. W. 457; Wolff v. National Liberty Ins. Co. of America, 191 Ark. 146, 83 S. W. 2d 836; Phoenix Assurance Co. v. Loetscher, 215 Ark. 23, 219 S. W. 2d 629; Washington Fire & Murine Ins. Co. v. Ryburn, 228 Ark. 930, 311 S. W. 2d 302.

In the case of Travelers Protective Association of America v. Sherry, 192 Ark. 753, 94 S. W. 2d 713, this Court also said:

‘ ‘ In all contracts of insurance of dubious or doubtful meaning, the construction should be placed upon them most favorable to the insured; but where the provisions are unambiguous they must be construed according to their plain meaning.”

The endorsement attached to the policy of insurance plainly states that the endorsement is “subject to the limits of liability, exclusions, conditions and other terms of this endorsement and of the policy.” This is an unambiguous statement and the policy itself defines “commercial automobile” as one used principally in the business occupation of the named insured.

The Courts do not rewrite the contract into which the parties have entered. The law does not permit the Courts to add to, subtract from, or substitute for the language employed in the policy. 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. State Farm Mutual Automobile Ins. Co. v. Belshe, 195 Ark. 460, 112 S. W. 2d 954.

The undisputed testimony of appellee, J. R. Kell, is as follows:

“I used my truck for practically everything, you know run around and stuff like that. "When we were working in a neighboring town I took Carl and Darrell Colburn to work when I took my truck. We went about half of the time with another bricklayer who lived in Walnut Ridge, and rode in his car. I used the truck like I would a car or anything else for my transportation anytime that I had some where to go. I used the truck part of the time when I was going out with my wife and child for social affairs. I went fishing in my truck about as much as work.”

Appellant concedes that a pickup truck is susceptible to a variety of uses and can be used for noncommercial purposes. The test must necessarily be whether the pickup truck was a commercial vehicle as defined by the terms of the policy.

The only testimony indicating that the truck was ever used in appellee’s employment was that appellee did need his truck when he changed jobs in order to move his mortar boards and box. It is undisputed that at the time this accident occurred appellee was using the vehicle for transportation to the job site the same as he would a private automobile and was not using the truck to perform any duties incident to his occupation.

From the above, we cannot say that the pickup truck in question was a commercial vehicle used principally (or primarily) in the business occupation of appellee. Therefore, following our rule that where a jury is waived and the case is tried before a judge sitting as a jury, his finding on a question of fact is as conclusive on appeal as a jury verdict and will not be disturbed if supported by any substantial evidence. Pate v. Fears, 223 Ark. 365, 265 S. W. 2d 954. We conclude that there is an abundance of substantial evidence to support the finding of the trial court.

Affirmed.

We have decided that appellee’s attorneys are entitled to a combined additional fee of $150.


text:
    Davis v. Adams.
    5-1912
    328 S. W. 2d 851
    Opinion delivered November 16, 1959.

      J. Wesley Sampler, for appellant.

      Floyd L. Rees, for appellee.
   Carleton Harris, Chief Justice.

This is an appeal from an order of tbe Probate Court removing appellant as administratrix in succession of ber deceased husband’s estate, and subsequently appointing another administrator in succession.

W. K. Davis died testate in Benton County on March 12, 1951, leaving his entire estate to his widow, Vida Smith Davis, appellant herein. The record before us reflects that on August 26, 1955, the said Yida Smith Davis filed a petition requesting that she be appointed personal representative; however, she never qualified, and was never issued Letters Testamentary. On January 17, 1957, William Linton Davis, a son of the deceased, was appointed Administrator With the Will Annexed, posted bond, and received Letters Testamentary. On April 11, 1957, appellant obtained the discharge of William Linton Davis by virtue of his disqualification (Davis was a non-resident of this state). Appellant was appointed administratrix in succession on said date, but did not make bond ($1,000 bond was required), never received letters of administration, has filed no reports, nor taken any action as administratrix.

Approximately a week before obtaining her own appointment (April 5, 1957), and while William Linton Davis was still serving as administrator, appellant entered into a written contract, in her own individual capacity, with A. Y. Adams, wherein it was agreed “that seller has- sold and agrees to convey” certain described real estate located in Benton County to A. V. Adams and wife (two-thirds interest), and Sophia Eckert (one-third interest). The agreement sets out the purchase price as $7,000, acknowledges that the buyer has paid the sum of $300, (which sum entitles the buyer to the use of the land for a term of one year in the event that the seller should fail to tender within a reasonable time the deeds and abstract of title, and buyer should elect to terminate the agreement) and contains the following provisions:

“It is understood between the parties that the lands herein agreed to be conveyed by the Seller were the property of W. K. Davis, now deceased, who was the husband of the seller, and whose estate is now in process of administration in the Probate Court of Benton County, Arkansas, and that the buyer shall not be required to accept a conveyance of said title until said administration is closed and the title to said real estate is conveyed to the buyer and the other person or persons to whom buyer has agreed to convey the same by the person or persons in whom the title to said real estate is vested. It is understood that to meet these requirements, a period of some eight months may be required. In the meantime, the buyer shall be permitted to occupy and use said land without payment of rent other than the said sum of $300.00, and seller shall not be considered to be in default while said necessary delay occurs to wind up the administration of said estate. But seller shall he required to comply with her agreement within a reasonable time after the close of the administration of said estate.” On November 6, 1958, Adams filed a petition in the Benton County Probate Court praying that the court issue an order directing Mrs. Davis to appear to show cause why she should not be removed as administratrix and attaching a copy of the contract entered into between appellant and Adams. Mrs. Davis responded, denying that any cause existed for her removal, and further alleging that petitioner was not “an interested person” within the meaning of the provisions of § 62-2003, of Ark. Stats. (1947) Anno., and accordingly had no right to file the petition. A second petition was filed by Adams on November 13th, enlarging upon the original petition. On December 12th, the “show cause” citation came on for hearing, at which time counsel for the administratrix requested that the hearing be continued because the administratrix was physically unable to attend court. The matter was continued until December 18th, at which time the attorney for the administratrix appeared with a written statement from Dr. C. S. Wilson, M.D., wherein it was stated that Mrs. Davis was in ill health, and that she “is also a subject of the worry type to a degree that a call to ‘Court’ is a hazard to her health.” The court found that Mrs. Davis should be removed as “Administratrix in Succession with Will Annexed of the Estate of W. K. Davis, because she has failed to furnish bond and qualify as such Administratrix as required by law and for the further reason that her health would be impaired if she was required to appear in Court or perform the other duties pertaining to the administration of said estate”; entered its order removing Mrs. Davis, directed her to file an accounting to that date, and subsequently appointed James T. McDonald of Rogers as administrator in succession. From the order removing Mrs. Davis as administratrix, and the order naming McDonald administrator in succession, appellant brings this appeal. For reversal, appellant relies upon two points, as follows:
“Point 1.
The Probate Court is not the appropriate forum, and these are not the appropriate proceedings, whereby the Appellee may enforce whatever rights he may have acquired, by Contract, against the Appellant as an individual and not against her as the Personal Representative of this Estate.
Point 2.
Even though the Probate Court has the power, on its own motion, to remove Vida Smith Davis as the Administratrix of this Estate, on technical grounds, still no useful purpose could be served, at this late date, by her removal and the appointment of an Administrator in Succession, to go through the idle motions, at considerable expense, of formally winding up the Estate and delivering the assets thereof, to Vida Smith Davis, the sole beneficiary under the Will, there being no claims pending, and the time for filing claims having long since expired, and the heirs of the deceased having agreed to the provisions of the Will.”

We proceed to a discussion of each point in the order named.

I.

We, of course, agree that the Probate Court is not the proper forum to enforce contractual rights, but this Probate proceeding was apparently instituted only as a necessary preliminary to the commencement of a Chancery suit for specific performance. The contract provides “but seller shall be required to comply with her agreement within a reasonable time after the close of the administration of said estate.” Accordingly, any present suit to enforce specific performance might well be met with the defense that administration had not been completed on the estate; in such event, any alleged rights of Adams under the contract might well “dangle” indefinitely, for Mrs. Davis, if she desired to avoid performance of the contract, or for any other reason wanted to keep the estate open, would certainly be in a position to do so. It would appear that the closing of the estate is a condition precedent to any action seeking to enforce alleged rights under the agreement.

II.

Appellant points out that there are no creditors; the time for filing claims has expired, and the heirs have agreed to the provisions of the will; in other words, there is no necessity for administration. It is further pointed out that this will was not admitted to Probate until more than five years after the death of the deceased. Prom appellant’s brief: “Now the appointment of William Linton Davis was nearly six years after the death of the testator on March 12, 1951, at which time it was too late, under Ark. Stat. 62-2125, for the Will to be admitted to Probate. ’ ’ These contentions cannot be here maintained, for the propriety of opening the estate has never been questioned by any pleading, or objection, to the Probate Court. The petition of William Linton Davis seeking probate of the will recites: “The wife of W. K. Davis has heretofore filed her petition to be appointed administratrix of the estate but over a year has elapsed since said petition was filed and no action has been taken upon it. Vida Smith Davis is now 78 years of age and is too feeble to administer said estate. Your petitioner is a son of the decedent and wishes to be appointed administrator in order that he may conserve the estate for his mother and her heirs after her death.” The order admitting the will to Probate, which found “there is need of administration being had”, and naming William Linton Davis as Administrator with the Will Annexed, was apparently uncontested. On April 11th, appellant filed her petition in which she alleged that William Linton Davis was a non-resident and asked that she be named administratrix in succession. It is noted that none of the matters now contended were raised in that petition. She did not allege that the estate was improperly opened; that there were no creditors; no-need for administration, and certainly, it does not appear there was any more need of administration at that time than at present. To the contrary, appellant invoked the aid of the court, asking that she be permitted to serve-as administratrix of the estate. Having requested the-court to appoint her, appellant cannot now be heard to-complain that the court was without power to make such-appointment. This is in accordance with general principles of estoppel. As stated in Corpus Juris Secundum,. Vol. 21, § 108, page 162. “Save where the court is completely without jurisdiction of the subject matter, a party will be estopped to question the court’s jurisdiction if he invokes it, * * * or accepts benefits resulting from the court’s exercise of jurisdiction.”

A substantial part of appellant’s brief, and oral argument before the court, relates to her contention that Adams is not “an interested party” as provided by § 62-2003k, Ark. Stats. (1947) Anno.; that he is accordingly without right or authority to maintain this action. The section provides as follows:

“k. ‘Interested persons’ includes an heir, devisee, spouse, creditor or any other having a property right or interest in or claim against the estate being administered, and a fiduciary. ’ ’

While this Court has never had occasion to define the term “interested party” under this section of the Probate Code, i.e., construe the phrase “any other having a 'property right or interest in”, we are of the opinion that this litigation does not present the appropriate set of facts to enable, or require, the formulation of a clear-cut definition. If Mrs. Davis had qualified by making the required bond — if her physical competency to serve had been established — and she had thereafter been removed as a result of the petition by Adams — the question would be squarely before tbe Court. Likewise, if tbe Probate Court had not removed Mrs. Davis, and Adams had perfected the appeal — the question would be properly before us. But those conditions do not exist. The trial court removed appellant because she had failed to furnish bond and qualify; further, because the court found that her health would not permit her to perform the duties pertaining to the administration of the estate. While, of course, the matter was called to the attention of the court by Adams, the trial court had full authority to remove Mrs. Davis on its own initiative. The record before us clearly justifies this removal. In fact, the court might well have been derelict in its duty if it had not removed her, for § 62-2218 provides:

“If at any time a personal representative fails to give a bond as required by the court, or, if no bond be required, fails to file written acceptance of his appointment within the time fixed by the court, some other person shall be appointed in his stead. If letters have been issued, they shall be revoked.”

Section 62-2203 also sets forth grounds for removal, including “unsuitable or incapable of discharging his trust,” or “failed to perform any duty imposed by law or any lawful order of the court * * *.” It is undisputed that Mrs. Davis did not make bond as required by the court, and has not qualified to receive Letters. Since we have concluded that the court’s order of removal was entirely justified, it makes little difference as to what prompted the court to make the inquiry, or enter the order. The court could have taken this action upon being informed by the clerk that Mrs. Davis had never qualified, or by ascertaining in any other manner that its order had not been complied with. Our views in this connection, are somewhat expressed by the Supreme Court of Massachusetts in the case of Quincy Trust Co. v. Taylor, 317 Mass. 195, 57 N. E. 2d 573. There, Jane Taylor was appointed executrix of the will of her deceased husband. There was no creditor other than the Quincy Trust Oomnany, which held four mortgage notes. The company filed a petition for the removal of the executrix on the ground, among others, that she was ‘ ‘ evidently unsuitable for the discharge of said trust.” The executrix filed a motion to strike the appearance of the Quincy Trust Company on the ground that it had been paid and was no longer a creditor. The trial court refused to grant the motion, and removed the executrix. In affirming the action of the trial court, the Supreme Court said:

“We see no need to decide upon this record whether the Quincy Trust Company was a creditor at the time when the present petition was filed. Even if it was not, no error is shown in the decree for removal. The denial of the motion to strike out the appearance of the Quincy Trust Company was of no practical consequence.
Ordinarily courts properly remain inactive unless and until judicial action is required by some party in accordance with recognized practice. But courts have a wide inherent power to do justice and to adopt procedure to that end. * * * Where a court has once taken jurisdiction and has become responsible to the public for the exercise of its judicial power so as to do justice, it is sometimes the right and even the duty of the court to act in some particular sua sponte. * * *
Especially appropriate for the exercise of judicial power sua sponte is a case in which an appointee of the court to a position of trust is found to be unworthy or unsuitable. A simple illustration will suffice to show the necessity of that power. Suppose a Probate Court should learn that an administrator has embezzled money and has become thoroughly untrustworthy. The persons entitled as distributees, let us suppose, are residents of a distant country, are without experience in affairs, and have no counsel or representative here. In such case it would be a reproach to the law if the Probate Court were compelled to remain inactive until some interested person should appear and file a petition for removal.
The question whether the Quincy Trust Company had a private right to appear and petition becomes immaterial in view of the result to which we have come as to the legality of the decree of removal.”

Likewise, under onr conclusion that the administratrix was properly removed, the question of whether A. V. Adams had a right to appear and petition becomes immaterial.

Affirmed.

       The Will did not designate an Executor or Executrix.

       The Court’s Order, with reference to this proceeding, found “That on December 12,1958, the attorney for said Administratrix appeared in open Court and requested that said hearing be continued because the said Administratrix was too nervous and physically unable to attend Court, and introduced evidence by Catherine Key Davis, a daughter of said Administratrix to the effect that the citation into Court had caused said Administratrix to become very nervous and sick for several days, and that the Administratrix was physically unable to be present in Court on said date.”

       Emphasis supplied.

       Emphasis supplied.

       The Court also, in this Opinion, gave an interesting discussion on the word “unsuitable”, as follows: “The statutory word ‘unsuitable’ gives wide discretion to a probate judge. Past maladministration of a comparable trust, bad character, misconduct, neglect of duty, or physical or mental incapacity, warrants a finding that an executor or administrator is unsuitable. Such a finding may also be based upon the existence of an interest in conflict with his duty, or a mental attitude toward his duty or toward some person interested in the estate that creates reasonable doubt whether the executor or administrator will act honorably, intelligently, efficiently, promptly, fairly, and dispassionately in his trust. It may also be based upon any other ground for believing that his continuance in office will be likely to render the execution of the will or the administration of the estate difficult, inefficient or unduly protracted. Actual dereliction in duty need not be shown.”


text:
    Cox v. Wentz.
    5-1966
    329 S. W. 2d 413
    Opinion delivered November 16, 1959.
    [Rehearing denied December 21, 1959]

      James R. Hale, Lovell <$> Evans, for appellant.

      John H. Joyce, O. E. Williams, for appellee.
   J. Seaborn Holt, Associate Justice.

This action grew out of the Republican Primary held in Washington County in the summer of 1958.

September 6, 1958, appellee, Keith Wentz, filed a petition in Washington Circuit Court for a writ of mandamus to compel appellants, R. B. Cox, chairman, U. A. Lovell, (later succeeded by E. A. Maestri) secretary, of the Republican Central Committee of that county to certify him as the duly elected central committeeman from Ward Two, Springdale, Arkansas, on August 12, 1958, and further to issue to him a certificate of election, alleging that he had received a majority of the votes cast for the office; further alleging that it was their duty to issue a certificate of election to him but they had refused to do so, thus depriving him of said office. The notice required under Section 33-105 Ark. Stats, was duly served on U. A. Lovell and R. B. Cox. Cox and Lovell filed a motion to quash service of summons which the court overruled. Appellants then filed a demurrer to the petition, which was overruled by the court, with the rights of the parties specifically reserved. Appellants then filed an answer alleging that petitioner was not a qualified elector, did not receive a majority of the votes cast, did not file a corrupt practice pledge, attempted to file for State Committeeman, Precinct Committeeman and Delegate to the County Convention, failed to pay his fee as provided by law, wrongfully and unlawfully caused an alleged ballot form to be used which was inserted in the ballot box in lieu of the official ballot prepared by the secretary and that he tried for two positions on the ballot and the official ballot shows that petitioner was not a candidate for precinct committeeman, alleged that the central committee, as required by statute, on petition of John Rose, a valid candidate for precinct committeeman, threw ont the results of the election in Ward Two, Springdale, and certified the rest of the ballots.

Following a hearing on October 31, 1958, the trial court granted the petition for writ of mandamus requiring Cox and Maestri to certify appellee, Wentz, as the central committeeman of Ward Two, City of Springdale. The order contains this recital: “The Court finds that the law and Rules of the Party were substantially complied with and petitioner was duly elected as Central Committeeman of the Republican Party of Washington County, Arkansas, in and for Ward 2, Springdale, and should now be given a certificate of election by the present Secretary, E. A. Maestri, who has since succeeded Ulys A. Lovell as Secretary. The Court finds that the former Secretary of the Committee, Ulys A. Lovell, who was Secretary at the time the election was held, had the duty under the law of preparing and printing the ballot for said primary election, and that he accepted and used the substituted ballot and said Respondents are now es-topped from objecting to same. And now, the Court having taken said matter under advisement, on this 13th day of January, 1959, it is Ordered and Adjudged by the Court that the Respondents, R. B. Cox and E. A. Maestri, as Chairman and Secretary, respectively of said Republican Central Committee of Washington County, Arkansas, be and they are hereby commanded and required within ten days hereafter, to execute and deliver to said petitioner, Keith Wentz, a certificate of election as Central Committeeman of the Republican Party in and for Ward 2 (2), Springdale, Washington County, Arkansas,”. This appeal followed.

For reversal appellants rely on three points which we consider in the order presented. “Point I — The court erred in overruling respondent’s special appearance and motion to quash.” In support of this contention, appellants strongly rely on Section 27-306 Ark. Stats., which has to do with “summons”. We do not agree that this section has any application here since we are dealing with a petition for mandamus and in this situation, notice of a hearing on the petition must be served in the manner set out in section 33-105 Ark. Stats. (.MANDAMUS AND PROHIBITION in PROCEEDINGS) which provides: “Notice of hearing upon any such petition shall be served in writing upon the officer or persons against whom the relief is sought, for such time in such manner as may be prescribed by the court having jurisdiction. Such notice shall state the style of the court, the docket number of the action or proceeding, the date and place of hearing, and the relief sought. The sufficiency of the notice shall be a question for the court.” Obviously this section specifically applies to mandamus and provides that notice shall be served in writing upon the person or officer against whom relief is sought for the time and in the manner as may be prescribed by the court and the sufficiency of the notice shall be a question for the court. We later point out that appellants were officers. We are not here concerned with a summons as required in Section 27-306 above, but with a notice which we think was properly served on appellants in compliance with Section 33-105 above. The trial court so found and overruled appellants’ motion to quash in this language: “I. That the notice issued by Lloyd McConnell and served by the Sheriff of Washington County, Arkansas, dated the 14th day of October, 1958, and the notice issued by Lloyd McConnell and served by the Sheriff of Washington County, Arkansas, dated the 6th day of September, 1958, were issued and served according to the laws of the State of Arkansas. II. The Court further finds that Friday, October 31st, 1958, at 9 A. M. is a proper and appropriate time to hear the cause set forth by petitioner in his Petition for Writ of Mandamus.

“IT IS, THEREFORE, ORDERED AND ADJUDGED that special appearance and motion to quash of R. B. Cox, Ulys A. Lovell and E. A. Maestri, respectively, be and are hereby overruled, to which action of the Court each respondent specifically objects and excepts.

“IT IS FURTHER ORDERED OF THE COURT that hearing on the petition of Keith Wentz for Writ of Mandamus is set for hearing Friday, October 31st, 1958, at 9 A. M., said respondents being present in open court on this date and are accordingly notified to which action of the Conrt respondents severally object and except.” We hold that appellants’ motion to quash was properly overruled.

“Point II. The court erred in overruling respondent’s demurrer for the reason that the petition stated no cause of action against the respondents. Point HE. The court erred in overruling respondent’s demurrer for the reason that a writ of mandamus will not lie where any question of fact must be determined.” We consider these contentions together.

As we view this record, it is in no sense an election contest as appellants seem to contend. The facts appear to ns to be undisputed and show that appellee, Wentz, and John R. Rose opposed each other and Rose was defeated. Rose received 7 votes and Wentz 11. Rose did not contest the election, he is not a party here in which Wentz seeks by mandamus to require appellants, as chairman and secretary of the Republican Central Committee of Washington County, to perform the purely ministerial duty of issuing to him a certificate of election to which we think he is clearly entitled. Mandamus petitions may be heard in either the circuit or chancery courts. Sec. 33-101 Ark. Stats, provides: “Jurisdiction of circuit and chancery courts. — The Circuit and Chancery Court shall have power to hear and determine petitions for the writ of mandamus and prohibition, and to issue such writs to all inferior courts, tribunals and officers in their respective jurisdictions.” Thus it is clear that these courts have the power to issue the writ of mandamus to these officers, Cox and Maestri, appellants.

Section 3-221 Ark. Stats., makes all chairmen and secretaries of county central committees officers within the meaning of Section 33-101 above and subject to mandamus. Sec. 3-221 provides: “Members of county central committee declared officers. — The members of the various County Central Committee and the chairman and secretary of each committee are hereby declared to be officers within the meaning of section 7020, Crawford and Moses’ Digest (Sec. 33-101). (Acts 1929, No. 116, Sec. 3, p. 568; Pope’s Dig., Sec. 4716.)”

In Irby v. Barrett, 204 Ark. 682, 163 S. W. 2d 512, where it appears that a candidate for state senator sought a writ of mandamus requiring the chairman and secretary of the Democratic State Committee to certify him as a candidate for the office of state senator, this court, in holding that mandamus was the proper remedy, said that Rule 58 of the Democratic Party “requires the chairman and secretary to certify the names of all candidates ‘who have complied with the rules herein prescribed.’ The fact stands undisputed that the petitioner has complied with these rules and, having done so, no duty rests upon, nor is there any power vested in, the chairman and secretary of the committee except to perform the ministerial duty of certifying the names of petitioner and all others who have complied with the party rules.”

So here, as indicated, we think that appellee has complied with the rules of the Republican Party and the law, if not fully — then substantially so, and having done so, no duty rests upon, nor is there any power vested in the appellants, the chairman and secretary of the committee, except to perform the ministerial duty of certifying the name of appellee in this case. We have not overlooked the authorities primarily relied upon by appellants, but we think they are not in point here for the reason that practically all of them involved election contests and not mandamus proceedings.

On the whole case, finding no error the judgment is affirmed.

      Emphasis ours.