author: Carleton Harris, Chief Justice. Ed. F. McFaddin, Associate Justice, Jim Johnson, Associate Justice,

text:
    Industrial Farm Home Gas Co. v. McDonald.
    5-2605
    355 S. W. 2d 174
    Opinion delivered March 5, 1962.
    [Rehearing denied April 9, 1962.]

      Frierson, Walker & Bnellgrove, for appellant.

      John Watkins, W. B. Howard and Kirsch, Cathey é Brown, for appellee.
   Carleton Harris, Chief Justice.

Ronald McDonald, appellee, a minor, was injured in a collision, between a pickup truck, driven by appellee, and a butane gas delivery truck, owned by appellant, Industrial Farm Home Gas Company, and driven by its employee, James Gathings. The collision took place on a rural road in Greene County in March, 1960, during a time when snow and ice covered the area. The impact occurred at the top of a hill where there is a right angle turn creating a blind curve. The gas truck was proceeding uphill in a westerly direction, and McDonald, 15 years of age, was approaching the curve from the north. The road, covered with snow and ice, and according to the testimony, extremely slick and dangerous, ran through a deep cut, so that the vision of each party was obscured. According to McDonald, he approached the curve at a speed of about 15 miles per hour, and according to Gathings, he (Gathings) approached at a speed of approximately five miles per hour. Admittedly, both operators were driving slowly, and, according to the testimony of each, were about 25 feet apart before they observed each other. It appears from the evidence that this distance was the approximate limit of visibility, and neither could have observed the other earlier. When the drivers came into view,. McDonald applied his brakes, and his truck began to skid, striking the gas truck a few inches behind the left headlight, and the left fender of appellee’s truck striking the left fender of appellant’s truck. According to the boy, he had gotten over to the right as far as he could go, and the gas truck was in the middle of the road at the time of the collision. McDonald was unable to say whether any part of his vehicle was across the center of the road. Gathings testified that he had gotten to his right as far as possible, and denied that he was in the center of the roadway. One thing is evident; the road (which was just a dirt, country road, with a little gravel on it) was quite narrow. No one testified as to its width, but photographs in the record establish its narrowness probably no wider than to permit two vehicles to barely pass.

Suit for personal injuries was instituted against appellant by Gladys McDonald, mother and next friend of the minor, Ronald. Appellant answered, denied negligence, pleaded contributory negligence, and asserted that the negligence of Ronald McDonald exceeded that of appellant; a counterclaim was filed seeking damages to the gas truck in the amount of $175. A third party complaint was filed against A. C. McDonald, Ronald’s father, alleging that the former was the owner of the truck, and that he was negligent in trusting the vehicle to his son, who was only 15 years of age. Judgment was sought against the father in the amount of $175. The third party defendant subsequently moved to strike so much of the third party complaint as sought relief under the provisions of the Arkansas Contribution Among Tortfeasors Act, and the motion was granted. The cause proceeded to trial, and after the taking of evidence, was submitted to the jury on interrogatories. The jury found both McDonald and appellant’s driver, Gathings, to be negligent, establishing Gathings’ negligence at 60%, and McDonald’s at 40%. Damages to McDonald were fixed at $7,000. Judgment against appellant was accordingly entered by the Court in the amount of $4,200 and costs, and the cause dismissed as to A. C. McDonald. From the judgment so entered, appellant brings this appeal. For reversal, several points are urged, and we proceed to a discussion of same.

I.

‘ ‘ The Court erred by informing the jury of the effect of answers to interrogatories on liability of appellant.”

The Court submitted the case to the jury upon interrogatories in the customary form, No. 1, inquiring if they found Gathings guilty of negligence; No. 2, if they found Ronald McDonald guilty of negligence; and No. 3 (if the answer to both questions was “yes”), the percentage of fault attributable to each. As previously stated, the jury prorated the negligence as 60% to Gathings and 40% to McDonald. After the jury had retired, they subsequently returned to the courtroom and asked the Court a question. The Court answered that question, and the record then reflects the following:

“Foreman of Jury: Another question, in making this on a percentage basis, if, on account of the boy’s injuries, do we include, stipulate the damage done W the boy?

The Court: You determine that, what you feel the weight of the evidence establishes is his damages, what you feel the total compensation should be.

The Court: Do you have another question?

Foreman of Jury: We want to know, too, if we make this settlement on a percentage basis, the hospital bills we have a record of here, is that going to be on a percentage basis or do we make it in full?

The Court: Let me give you an example, perhaps I might clarify this in an example. I am not using the facts in this ease at all. Going to use, say ‘A’ and ‘B’, who become involved in charges and countercharges of negligence as against each other, each claims to have been damaged. In my example, let us assume the jury says ‘A’ is 25 percent at fault and ‘B’ is 75 percent at fault. The jury found, in response to interrogatories, after it made that determination of 25 and 75 percent, as indicated by the interrogatories, since ‘B’ is 75 percent at fault, which is more than 50 percent, he is not entitled to recover anything, having contributed most of the fault causing the damages. ‘A’, if the jury finds his damages as established, say for example, to be $100.00, then the total amount of his recovery against ‘B’ would be $100.00 less 25 percent, which is a deduction made becaue he contributed 25 percent of the fault that brought about the particular injuries to himself.

(Note: Short conference at Bar of Court.)

The Court: At the request of counsel, in the event— go back to my example of ‘A’ and ‘B’. In the event the jury found ‘A’ 50 percent at fault and ‘B’ 50 percent at fault, in that event, since they are equally at fault, neither can recover against the other any damages and it would not be necessary to make any calculation as to damages.

The Court: Any other question.

(Note: The jury again retired to consider case.)

Mr. Walker: The defendant objects to the Court’s explanation insofar as the Court undertook to explain to the jury the effect of a finding of negligence in diminution of the damages by showing the result which would follow from a certain percentage of negligence, on the ground that this example tends to inflame the jury and prejudice them to establish a result which would not follow from a fair, unbiased answer to the interrogatories.

Mr. Howard: Let the record show, the objection was made after the jury retired, counsel stood mute at the time that the Court was instructing the jury.

Mr. Burris: The- third party defendant concurs in the objection and adopts the objection of the defendant.”

Appellant vigorously argues that the Court committed reversible error by informing the jury of the effect of answers to interrogatories. The case of Wright v. Covey, 233 Ark. 798, 349 S. W. 2d 344, is relied upon in support of this contention. In that case, we held that no error was committed because the information given the jury was already known by them, but appellant says that in the matter before us, it is obvious the jury did not-already know, nor understand, the effect of the interrogatories. Quoting from its brief:

“It is obvious that the jury did not already know what the Court told them in detail and with illustrations as to how their answers to interrogatories would determine the ultimate outcome of the case. The jury clearly did not understand the effect of the interrogatories or even how they were used and it was quite obvious that they desired to decide the merits of the matter by a general verdict according to their own notions of right and wrong. The effect of the Court’s explanation was to afford them the means of determining how to make certain that the plaintiff prevailed, even though they apparently were not convinced that such a result would follow by simple and direct answers to the plain interrogatories which were addressed to them.”

Appellant further states:

‘ ‘ Thus, the Court followed exactly the practice which was condemned in Wright v. Covey, 233 Ark. 798, at 801, 349 S. W. 2d 344, where the Court made the following statement:
‘The appellants rely upon the rule, often announced in other jurisdictions, which prohibits a trial court, in submitting a case upon special interrogatories, from informing the jury of the effect that their answers may have upon the ultimate liability of the parties. Mitchell v. Perkins, 334 Mich. 192, 54 N. W. 2d 293; Grasso v. Cannonball Motor Freight Lines, 125 Tex. 154, 81 S. W. 2d 482; Anderson v. Seelow, 224 Wis. 230, 271 N. W. 844. The reason for the rule is that the special interrogatories are intended to elicit the jury’s unbiased judgment upon the issues of fact, and this purpose might be frustrated if the jurors are in a position to frame their answers with a conscious desire to aid one side or the other.” We are unable to consider this contention for no proper objection was made. Appellant’s objection does not go to the fact that the Court’s statement informed the jury of the effect their answers would have on the ultimate liability of the parties; rather, the objection is that the Court’s explanation “tends to inflame the jury and prejudice them.” We find nothing in the Court’s statement that could be considered inflammatory, nor anything that could possibly have aroused prejudice; in fact, appellant’s own argument in the brief, heretofore quoted, is indicative of the fact that it recognizes that if any prejudice existed, it was present before the questions were asked. Since no proper objection was made, it becomes unnecessary to consider either whether the objection was made too late, or if appellant should have gone farther and moved for a mistrial.

II.

“The Court erred in overruling appellant’s objection to testimony of appellee’s witness, Yarvil, as to conversation with appellant’s insurance adjuster.”

Johnny Yarvil, a friend of McDonalds, was following McDonald in another vehicle at the time of the collision. Yarvil testified that McDonald had pulled out of the ruts on the right side of the road prior to the collision; that he did not see the McDonald car skid prior to the collision, and did not see the gas truck prior to the collision. On cross-examination, the witness was interrogated about a written statement which he admitted signing; this statement related that Yarvil had said that both trucks were in the middle of the road, and that the McDonald truck was skidding and hit the gas truck. The witness denied saying that both trucks were in the middle of the road. On re-direct examination, counsel for appellee stated, “Will you tell the jury, please, who, according to your best recollection, it was who took the statement?” The answer from the witness was, “I believe, it was the insurance man.” Appellant moved for a mistrial, which was overruled. The witness stated that the insurance man was representing the IFH Butane Company. Several references are thereafter made to the insurance adjuster. Appellant strongly urges that the injection of insurance into the testimony was highly prejudicial and justified a mistrial being declared. We do not agree. Our rule is that the injection of insurance coverage (to be proper) must be relevant and pertinent to some issue in the case. Let it be borne in mind that this written, signed, statement was introduced by appellant as an effort to impeach Varvil’s testimony. In Murray v. Jackson, 180 Ark. 1144, 24 S. W. 2d 960, this Court said:

“The next assignment of error relates to the admission of testimony for the plaintiff Mrs. Jackson. It had been shown in behalf of Mrs. Jackson that her injuries were permanent, and that it was necessary to keep her in the hospital for some time with special nurses and a physician attending her daily. The hospital, nurses ’ and physician ’s bills amounted to something over $1,700. The defendant then introduced a physician as a witness who testified that he examined Mrs. Jackson at the hospital, that she could walk about while there, that it was not necessary to keep her there for so long, and that her injuries were not permanent. On cross-examination counsel for the plaintiff asked for whom he made the examination, and he replied that he did not remember, but believed that it was for an insurance company, and stated further that the Southern Insurance Company asked him to make a report on the case.

A reversal of the judgment was asked on account of the admission of this testimony. The claim is made that the cross-examination of the witness as to who employed him was made for the purpose of showing that an insurance company was in reality defending the case, and that the cross-examination of the witness brought the case within the rule announced in Pekin Stave & Manufacturing Co. v. Ramey, 104 Ark. 1, 147 S. W. 83. We do not agree with counsel in this contention. The testimony of the physician introduced by the defendant tended to contradict the testimony of the physician introduced by Mrs. Jackson as to the character and extent of her injuries and as to the necessity of expending the money that was expended for her for hospital bills and attendance by nurses and a physician. The cross-examination was proper for the purpose of impeaching or contradicting the witness. The jury might have found that the employment of the physician made him biased in favor of the defendant, or at least tended to show the interest of the witness in the case.”

This is in accord with the general rule, which is expressed in 4 A. L. E. 2d, § 9, p. 782, under the title, “Showing of Liability Insurance ’ ’, as follows:

“Asa general rule, where a previously written statement is produced in court and used for the purpose of impeaching plaintiff or one of his witnesses, it is proper for plaintiff’s counsel to show that the person procuring such statement was a representative of defendant’s insurance company.”

It thus appears that when a witness is asked about a statement, previously given, and he denies making some of the remarks appearing in the writing, opposing counsel may then show who wrote the account as a matter of permitting the jury to determine whether the person who took the statement had any possible bias or interest in the matter. Therefore, if a defendant desires to impeach the testimony of a witness by interrogating him relative to a statement taken by an insurance company representative, he must be prepared for the jury to know that insurance is involved.

III.

“The Court erred in refusing appellant’s instruction on inevitable accident.”

Appellant requested the following instruction, which was refused over its objection and exceptions:

“If you find from the evidence in this case that the collision was caused solely by conditions of weather or of the road, or any other conditions beyond the control of either driver, without negligence on the part of either driver, then the collision would be an unavoidable accident which neither party would be liable, and, if you should so find, you should answer the interrogatories in this case that neither party was negligent.”

After thorough study, we have reached the conclusion that this point contains merit. There are quite a number of cases involving this question, in some of which we held the instruction proper, and contrariwise in the others. Really, whether such an instruction is justified depends upon the facts in evidence in each particular case. In St. Louis-San Francisco Ry. Co. v. Bryan, 195 Ark. 350, 112 S. W. 2d 641, we said:

“It has been frequently stated by this and other courts that in order to warrant a finding that negligence is the proximate cause of an injury it must appear that the injury was the natural and probable consequence of the negligence or wrongful act, and that it ought to have been foreseen in the light of the attending circumstances. Appellee cites the cases of Bennett v. Staten, 229 Ark. 47, 313 S. W. 2d 232, and Sullivan v. Fanestiel, 229 Ark. 662, 317 S. W. 2d 713, as authority for the fact that the instruction was properly refused. However, a reading of the opinions, as well as the transcripts, of those cases, reflects notable differences from the case at bar. In the Bennett case, this Court said that the facts did not warrant such an instruction, and we quoted from an earlier case with the comment that the statement equally applied in Bennett, as follows: “Moreover, there is no evidence in the record tending to show an unavoidable accident. ’ ’ In the Sullivan case, we upheld the trial court in refusing to instruct the jury relative to unavoidable accident, and commented that the collision was certainly caused by somebody’s negligence. There, also, both parties contended and testified that the collision was the fault of the other. This is not the situation before us. Neither the Bennett nor Sullivan cases related to situations involving unusual weather conditions, and more than that, the testimony was completely different. For instance, during the examination of McDonald, the question was asked, “How wide was the curve in the narrow part of it there?” Appellee answered, “Wasn’t very wide.” “Wasn’t?” “I don’t think room for the gas truck and my truck to pass.” Subsequently, McDonald stated that he put on his brakes and slid, and did not slide to the other side. “Q. You say you were on the right-hand side, he was on the left-hand side coming around the curve, you got over and hit him? A. I couldn’ta missed him. Q. You couldn’t miss him? A. No, sir.” Gathings, appellant’s truck driver, stated, “As near as humanly possible, it was an unavoidable accident.” Accordingly, we have both parties making statements that certainly bring into issue the question of whether the collision was an unavoidable accident. In fact, the quoted testimony of the two principals, together with the testimony about the weather conditions, and the admitted slow speed of each vehicle, was sufficient to warrant the giving of the instruction. Appellee states that the jury’s finding of negligence has the effect of rendering this question moot; however, we do not agree; we do not know what view the jury might have taken had it been instructed on inevitable accident, for the evidence was sufficient to have sustained such a finding. Really, it is difficult to visualize a case where the instruction would be more proper than in the case at bar; in fact, the strongest evidence of negligence on the part of appellant’s driver was his failure to sound his horn as he entered the curve. We are of the opinion that appellant was entitled to have this instruction given, and the court committed reversible error in failing to comply with the request.

It is also urged that the court committed error in refusing to permit appellant to prove by the witness Yarvil that McDonald had previously made a statement to Varvil that contradicted testimony given on the witness stand by appellee. Without entering into a detailed discussion of this point, suffice it to say that we find no error, since appellant had not laid the proper foundation (for asking Yarvil the question) while McDonald himself was on the stand.

For the error herein indicated, the judgment is reversed, and the cause remanded.

McFaddin & Johnson, JJ., dissent.

Ed. F. McFaddin, Associate Justice,

dissenting. As I understand the Majority Opinion the judgment of the Trial Court is reversed solely because the Court refused to give the instruction requested by the appellant on unavoidable or inevitable accident, as copied in the Majority Opinion. Conceding, without admitting, that •the instruction was properly worded, nevertheless I insist that the Trial Court was correct in refusing this instruction because the driver of the appellant’s truck admitted that he failed to sound his horn as required by law. The violation of traffic laws directly connected with the mishap is always evidence of negligence. Mays v. Ritchie Grocer Co., 177 Ark. 35, 5 S. W. 2d 728; Browder v. St. L. SW. Ry. Co., 221 Ark. 773, 256 S. W. 2d 333. James Gathings, who was driving appellant’s truck at the time of the collision, admitted: “I was approaching a blind 90-degree curve . . . Just as I turned the 90-degree turn and topped the hill I met Mr. McDonald coming south . . . didn’t sound my horn before I went into the curve. It hasn’t been my practise to do that ... I didn’t know at that time it was prudent going into a blind situation to sound my horn. I didn’t know that was the law. I didn’t know it was the prudent thing to do. It never occurred to me. I did not sound my horn going into the curve. I knew it was narrow and dangerous there . .

These admissions by the driver of the appellant’s vehicle fairly admit the violation of § 75-653 Ark. Stats., which reads:

“The driver of a motor vehicle traveling through defiles or canyons or on mountain highways shall hold such motor vehicle under control and as near the right-hand edge of the highway as reasonably possible, and, upon approaching any curve where the view is obstructed, within a distance of 200 feet along the highwav. shall give audible warning with the horn of such motor vehicle. ’ ’

When the driver of the Gas Company truck admitted violation of the traffic law directly connected with the mishap, then the truck owner was not entitled to an instruction on unavoidable accident. It is only when all parties deny negligence that an instruction should be given on unavoidable accident. In Taggart v. Scott, 193 Ark. 930, 104 S. W. 2d 816, this Court approved the following instruction on unavoidable accident:

“The court instructs the jury that if they believe from the evidence that the injuries, if any, sustained by the plaintiff were a result of a mere accident, that is, without negligence of any one, then your verdict will be for the defendant.”

Mr. Justice Humphreys stated why the said instruction should have been given in that case:

“Appellant claimed she was not negligent. Likewise, appellee claimed he was not negligent. If neither was to blame, the collision was necessarily an accident, and it would have been error not to give this instruction. It was so decided in the case of Morgan v. Cockrell, 173 Ark. 910, 294 S. W. 44.”

Under the holding in Taggart v. Scott it is proper to give an instruction on unavoidable accident only when both plaintiff and defendant deny negligence. The admission of a violation of the traffic laws is certainly admission of facts from which the jury could find negligence. So the requested instruction in this case should not have been given.

In Am. Jur. Vol. 5, p. 939, “Automobiles” § 1100, the holdings are summarized in this language:

‘ ‘ The giving of an instruction that if the injury complained of was the result of mere accident or misadventure, without the fault of anyone, the plaintiff cannot recover, is proper only where there is something in the record tending to show that the casualty resulted from some unknown cause, and is improper where it resulted from known actions of known persons and things, . . . ”

In Blashfield’s Cyclopedia of Automobile Law, vol. 1 § 635, in discussing unavoidable accidents, the text reads:

“A mere accident being one in which neither party is at fault, the mere fact that neither driver of two automobiles colliding with each other saw the other until too late to avoid the collision is not enough to show that the accident was unavoidable, since in such a case the negligence, if any, producing the situation, determines the liability, so that if either party can avoid an accident by the exercise of proper care it cannot be said to be unavoidable. ’ ’

In 65 A. L. R. 2d 12 there is an exhaustive annotation entitled, “Instructions on unavoidable accident or the like in motor vehicle cases.” In that article the propriety of unavoidable accident instructions is considered in great detail. In Paragraph 3 of the annotation, Arkansas is listed as one of the States in which such an instruction is proper in certain cases; but I find no case which holds that the instruction is proper when the defendant has admitted violation of the traffic rules directly connected with the collision.

I maintain that the Trial Court was correct in refusing the instruction on unavoidable accident in this case; and therefore I respectfully dissent.

Jim Johnson, Associate Justice,

dissenting. I dissent. In my opinion the majority is this day doing violence to the established law on harmless error.

From at least as early as 1887 with the decision in Hames v. Harris, 50 Ark. 68, 6 S. W. 233, and as late as 1958 in Weatherford v. George, 229 Ark. 536, 317 S. W. 2d 147, this Court has consistently held that an error which does no prejudice to the complaining party is harmless and that such an error is not ground for reversal. In Weatherford v. George, supra, this Court made it abundantly clear that a failure to give a proper instruction is immaterial where the interrogatories and the jury’s answers thereto show that the matter covered by the requested instruction was actually decided by the jury. There is no valid distinction between the holding in Weatherford and that in the case at bar. In the cited case, the defendants requested an instruction to the effect that there could be no recovery if one of the plaintiffs was guilty of negligence which was the sole proximate cause of the accident and resulting injuries. The requested instruction was refused. However, this Court pointed out that the question of negligence was fairly submitted by interrogatories numbered 5 and 6. Interrogatory No. 5 read:

“Do you find from a preponderance of the evidence that Charlie George (the plaintiff mentioned in the requested instruction) was negligent and that such negligence, if any, was a proximate cause of his damages, if any, complained of by him?” (parenthesis supplied).

The jury answered this interrogatory “no”.

Interrogatory No. 6 read:

“Using 100% to represent the total negligence involved, what do you find from a preponderance of the evidence to be the amount of negligence on the part of the following:
“ Charlie George: ‘none %’
“Russ Weatherford: ‘100%’”

After setting forth the quoted interrogatories, this Court said:

“It certainly follows that if the jury found George guilty of no negligence whatever they would not have found that negligence on his part was the proximate cause of the mishap. Accordingly, even if the failure to give the instruction was error, the verdict rendered Toy the jury had the effect of healing or remission.”

In the ease at bar the term “negligence” was fully and correctly defined in Court’s Instruction No. 2 and the term “proximate cause” was properly defined in Court’s Instruction No. 3. The trial court submitted the instant case to the jury upon interrogatories.

Interrogatory No. 1 read:

“Do you find from a preponderance of the evidence that James Gathings (appellant’s admitted servant) was negligent and that such negligence caused or contributed to cause the collision herein?” (parenthesis supplied).

Interrogatory No. 1 was answered “yes”.

Interrogatory No. 2 was a verbatim copy of Interrogatory No. 1 except it inquired as to Eonnie McDonald’s negligence.

Interrogatory No. 2 was answered “yes”.

Interrogatory No. 3 read:

“What do you find is the proportion of fault, expressed in percentages totaling 100%, attributable tc James Gathings and Eonnie McDonald, is a cause of the collision?”
' ‘ James Gathings ‘ 60 % ’
‘ ‘ Eonnie McDonald ‘ 40 % ’ ”

Thus, we see that the matter of the negligence of both parties and the percentage of such negligence was fully and fairly submitted to and passed upon by the jury just as in the Weatherford case. The majority says: “We do not know what view the jury might have taken had it been instructed on inevitable accident. ’ ’ I submit that the jury did pass on this issue and their view on the matter is obvious.

The only possible distinction between Weatherford and the case at bar is that in the cited case the court refused to instruct on negligence whereas here the court refused to instruct on unavoidable accident. This, of course, is a distinction without a difference. It is inescapable that before a jury can find a person guilty of negligence they must first find that the collision was not unavoidable.

To find negligence under the definition in this case, it was necessary for the jury to find that the parties failed to exercise that degree of care which is used by ordinary prudent persons under the same or similar circumstances. Had the jury found that defendant’s servant Gathings exercised ordinary care, then their answer to Interrogatory No. 1 would have been “no”. This would, of course, have been a finding that so far as the defendant was concerned the accident was unavoidable. The same thing may be said as to the jury’s finding on the negligence of the plaintiff.

To paraphrase Weatherford: It certainly follows that if the jury found both parties guilty of negligence, they would not have found that the mishap was unavoidable.

As the Court said in Hames v. Harris, supra, “His injury by the court’s charge is therefore not real but imaginary, even if his theory of the law is right.”

We have seen that the issue of unavoidable accident was necessarily determined by the jury in making its determination as to negligence. If the issue was determined then certainly it was submitted in Interrogatories No. 1 and 2. There is no virtue in having the jury instructed in phraseology selected by the appellant rather than that selected by the court provided that the issue was presented. In Ration v. Busby, 230 Ark. 667, 326 S. W. 2d 889, we held that it was not necessary to give the converse or negative of a proposition and cited 88 C. J. S. “Trial” § 303, p. 820. In Ration, we said:

“Where the law has been clearly and adequately stated in a positive manner, ordinarily the Court need not instruct in a negative form.”

Having submitted the issue as to negligence, it was not incumbent on the trial court to submit the negative which was unavoidable accident.

One other illustration should make it absolutely clear that there was no prejudicial reror in refusing the appellant’s requested instruction. Under the interrogatories submitted, the jury could have found that the negligence of each party was zero. Had the jury so found what would this be other than a finding of unavoidable accident?

Under the “general verdict” practice, it might be error to refuse to instruct in a proper case upon “unavoidable accident”. However, where a case is submitted to the jury on interrogatories, such as those in the case at bar, such an instruction is absolutely superfluous. Of course it would be proper in any case to instruct that the mere happening of an accident creates no presumption of negligence. However, the appellant did not request such an instruction and the instruction which it did request cannot be tortured into an instruction on no presumption of negligence.

It would unduly extend this opinion to minutely analyze the host of cases holding errors such as that in the case at bar to be harmless. Suffice it to say that Arkansas Lumber Company v. Wallace, 99 Ark. 537, 139 S. W. 534, presents a striking parallel to the case at bar. In that case it was held that failure to give an instruction that defendant was not liable if plaintiff’s injuries resulted from an accident which the defendant could not foresee in the light of attending circumstances was not error where all instructions given made it essential that plaintiff prove his injuries were proximately caused by the defendant’s negligence.

An excellent discussion of “Error Cured by Verdict or Judgment” may be found in 5A, C. J. S. § 1776, pages 1284-1290. Our Court has always followed the general rules there set forth and it grieves me to think of the Pandora’s Box which we now open by turning our back on these rules.

Whether it be said that the jury verdict made the matter moot, or that failure to give the instruction was harmless because of the jury’s answers or that the subject matter of the instruction was covered, it boils down to the fact that appellant was not prejudiced by the action of the court. Therefore, to the majority’s view to the contrary, I respectfully dissent.

       After making the curve, this truck would have been proceeding north.

       The objection was not made until the jury left the courtroom.

       Subsequently, on re-direct examination, Varvil admitted that the statement was offered to him to read before he signed, but the witness testified that he could not read the writing, but was ashamed to admit it. “Seemed kinda funny to him, I couldn’t read his handwriting.”


source: Caselaw Access Project

author: Ed. F. McFaddin, Associate Justice.

license: Public Domain

text:
    Mitchell v. State.
    4950
    354 S. W. 2d 557
    Opinion delivered March 5, 1962.

      C. C. Mercer, Jr., for petitioner.

      Frank Holt, Attorney General, by Thorp Thomas, Asst. Attorney General, for respondent.
   Ed. F. McFaddin, Associate Justice.

This is an original application filed in this Court for permission to file a "Writ of Error Coram Nobis in the Union Circuit Court for inquiry as to Mitchell’s sanity at the time he was tried and convicted in that Court.

Ths is the fourth time this man Lonnie Mitchell has been in litigation in this Court. The first case was Mitchell v. State (Case No. 4950, decided September 21, 1959), 230 Ark. 894, 327 S. W. 2d 384, in which we affirmed the conviction of Mitchell for rape. The second case was Mitchell v. State (Case No. 4984, decided September 12, 1960), 232 Ark. 371, 337 S. W. 2d 663, in which we held that the Circuit Court of Union County had no jurisdiction to hear a Motion to Vacate the Judgment of Conviction in the first ease, since this Court had not reinvested the Circuit Court with such jurisdiction. The third case was Mitchell v. State ex rel Henslee (Case No. 5-2328, decided May 8, 1961), 233 Ark. 578, 346 S. W. 2d 201, in which we affirmed the judgment of the Circuit Court of Jefferson County which had dismissed Mitchell’s Petition for Writ of Habeas Corpus.

The present (fourth) case was filed in this Court on July 3, 1961, and is an “Application for Permission to File Petition for Writ of Error Coram Nobis.” This application is filed in this Court because we affirmed the first case, thereby acquiring jurisdiction; and the Circuit Court cannot hear a Writ of Error Coram Nobis in a case appealed to this Court until we grant such permission. Hudspeth v. State, 191 Ark. 963, 88 S. W. 2d 858. The said application filed herein by the attorneys for Mitchell alleges:

“2. Petitioner avers and verily believes that he was insane at the time of the commission of the offense for which he is now convicted.
“3. Petitioner avers and verily believes that not only was he insane at the time of the crime for which he was convicted and is now committed, bnt that he was insane at the time of the trial wherein he was convicted and sentenced to death, and further that he is presently insane.
“4. Petitioner did not have a mental examination prior to his trial, and has been repeatedly refused permission to have a private psychiatrist examine him, and Petitioner honestly feels that a mental examination by a private psychiatrist is absolutely necessary so as to afford appellant an opportunity to be heard.
‘ ‘ 5. Petitioner’s insanity was not known at the time of the trial, and such fact was not then suggested, or raised in issue by either of the parties hereto; Petitioner avers that he did not have the mental capacity to so apprise the trial court of his mental condition.
‘ ‘ 6. That no other remedy is available to Petitioner to review and inquire into the question of his insanity at the time that the crime was committed, and also as to his insanity at the time of the trial, except the remedy as provided by a writ of error coram nobis.”

In Jenkins v. State, 223 Ark. 245, 265 S. W. 2d 512, we held that we would not grant permission to file a Writ of Error Coram Nobis to inquire into the accused’s sanity at the time of the offense or at the time of the trial when the record on which we affirmed the conviction showed that the accused’s sanity was a matter considered at the trial when he was convicted. But we have repeatedly held, as stated in Hydrick v. State, 104 Ark. 43, 148 S.W. 541:

‘ ‘ This court has repeatedly held that after the expiration of the term at which a judgment of conviction was rendered, the court may, upon proper showing of insanity of the accused at the time of the trial, which was not suggested at the trial issue the writ of error coram nobis for the purpose of inquiring into that question, :"3

In 24 C. J. S. p, 149, “Criminal Law” § 1606, cases are cited to sustain this textual statement:

“Insanity. Where, after the expiration of a term it appears that the accused was insane at the time of the trial, which was not then known, then writ may be used to set aside and vacate the judgment.”

We have carefully checked the record in the first case {i. e., the original trial and conviction of Mitchell); and in that trial there was no mention, suggestion, or intimation of Mitchell’s insanity at the time of the offense or at the time of the trial. The present application is unverified and is not supported by any affidavits; and we were on the verge of denying it as not filed in good faith, until Mitchell’s attorneys filed in this Court on November 13,1961, their motiqn to require the Superintendent of the Arkansas State Penitentiary to permit Mitchell to be examined by a private psychiatrist. The motion alleges in part:

“2. That the petitioner, through his attorneys, has on several occasions requested permission of the Superintendent of the Arkansas State Penitentiary, the aforesaid Lee Henslee, to have the Petitioner examined by a private psychiatrist but in each instance these requests have been denied by the said Lee Henslee: the requests have extended over a period of more than a year and a half.
‘ ‘ 3. That the petitioner, through his attorneys, has retained the services of a private psychiatrist to perform the examination, which services have been on a retainer all during the period that the requests have been made, but that no examination has been given because permission has been refused by the Superintendent of the Arkansas State Penitentiary, the said Lee Henslee; that the private psychiatrist is ready, willing and able to perform the examination at any time that permission is granted. ’ ’

When the said motion was filed in this Court on November 13,1961, proper arrangements were made and Mitchell was examined by a private psychiatrist chosen by said attorneys; and they filed in this Court on February 5, 1962, the eight-page report of Dr. Elizabeth Fletcher as the private psychiatrist selected by Mitchell’s attorneys to examine him. It is a single-spaced document covering two examinations of Mitchell made by said psychiatrist: one interview was on January 20, 1962, and the other was on January 29, 1962; and the report reflects collaboration with another psychiatrist. Dr. Fletcher’s report concludes that Mitchell is without psychosis: “It is felt that he is competent and knows right from wrong. ’ ’ There is nothing in the report that tends in any way to show that Mitchell was insane, either at the time of the commission of the offense, or at the time of his original trial, or at any other time. A careful perusal of the report convinces us that Mitchell was sane at all times.

The report of Dr. Elizabeth Fletcher is the only material of any kind tendered by the petitioner and his attorneys and, as aforesaid, this report tends to negative all of the allegations in the original motion filed herein on July 3, 1961. In Jenkins v. State, 223 Ark. 245, 265 S. W. 2d 512, in denying a motion for leave to file a petition for writ of error coram nobis, we said: “. . . we reach the conclusion that the supporting affidavits fail to disclose sufficient facts to warrant the conclusions of the affiants. The meager facts stated are woefully insufficient to sustain the conclusions of insanity alleged; and the attack made on the judgment is therefore lacking in merit.” In the case at bar, there is absolutely no evidence to support the allegations made in the application for permission to file a petition for writ of error coram nobis; and the leave to file said petition is hereby denied.

       The petition also contains allegations that he is presently insane; but those allegations should be considered in a proceeding under § 43-2622 and not by Writ of Error Coram Nobis.

       If Mitchell is presently insane, as the application alleges, then the proceedings should probably be by a next friend for him, as was done in Hydrick v. State, 104 Ark. 43, 148 S. W. 541; but we treat Mitchell’s present attorneys as his next friends in order to reach the petition without further delay.

       For subsequent cases see Hodges v. State, 111 Ark. 22, 163 S. W. 506; Cunningham v. State, 149 Ark. 336, 232 S. W. 425; Kelley v. State, 156 Ark. 188, 246 S. W. 4; Sease v. State, 157 Ark. 217, 247 S. W. 1036; and Hardwick v. State, 220 Ark. 464, 248 S. W. 2d 377; Black v. State, 216 Ark. 805, 227 S. W. 2d 629; and Leggett v. State, 231 Ark. 13, 328 S. W. 2d 252. There are also annotations in 10 A.L.R. 213, 30 A.L.R. 1416, and 145 A.L.R. 818.

       This statement in the said motion is misleading. The petitioner may not have been examined by a private psychiatrist, but he was examined by the Staff of the State Hospital pursuant to law and there is in the files in this case a four-page report, dated January 5, 1960, which discloses that Mitchell was examined by the Staff of the State Hospital and found “without psychosis.” This report recites that the examination was made because one of Mitchell’s present attorneys requested the Superintendent of the Penitentiary to have Mitchell examined.


text:
    Shinley v. Ricks, Excx.
    5-2600
    354 S. W. 2d 547
    Opinion delivered March 5, 1962.

      Van Chapman, for appellant.

      J. B. Reed, for appellee.
   Ed. F. McFaddin, Associate Justice.

This appeal involves a claim by a minor against the estate of his guardian. Roy E. Shinley was born on August 14, 1940. In 1946, he became the adopted and only child of A. R. Shinley and Mrs. Mary Lou Shinley, who then lived in the State of Colorado. A. R. Shinley died intestate in Colorado in 1951, and a guardian for the estate of said minor was appointed in Colorado. Mrs. Mary Lou Shinley and the minor son moved to Searcy, Arkansas; in 1952 Mrs. Shinley was appointed by the White County Probate Court as guardian of the estate of her minor son, Roy Shinley; and as such guardian she received from the Colorado guardian the sum of $7,136.04 in cash for her ward. Mrs. Shinley made a bond with personal sureties, who were cited to appear in the present proceedings in the Probate Court. After Mrs. Shinley was appointed guardian by the White Probate Court and received the said amount in 1952, she never filed any petition, report, accounting, or other paper at any time in the White Probate Court as said guardian. Some time prior to June 27, 1960, Mrs. Shinley departed this life testate, and Mollie Ricks was appointed executrix of Mrs. Shinley’s estate.

On June 27,1960, Wilma J. Shinley, as wife and next friend of the minor, Roy Shinley, filed a petition in the White Probate Court suggesting the death of the former guardian, praying that a guardian in succession be appointed for the Estate of Roy E. Shinley: that an accounting be made and judgment rendered against Mollie Ricks, as Executrix of the Estate of Mrs. Mary Lou Shinley, for the amount owed the minor ward. Later, the sureties on the guardian’s bond were brought into the litigation. A guardian in succession was appointed, answers and other defensive pleadings were filed, and in due time, the White Probate Court heard the evidence and rendered a judgment on June 20, 1961, for the estate of the minor and against Mollie Ricks, Executrix of the Estate of Mary Lou Shinley, for the sum of $1,788.06. From that judgment the next friend of the minor (and now the former minor who is of age.) prosecutes this appeal, claiming that a much larger amount is due than the award which was made. Three topics are presented by the appellants, which we combine and discuss in Topic II, infra.

I. Motion To Dismiss. As a preface to her brief filed in this Court on January 6, 1962, the appellee, Mollie Ricks, suggests that the appeal should be dismissed as moot; and she claims that on December 13,1961, the Probate Court of White County entered an order closing the Estate of Mary Lou Shinley and discharging the Executrix. The motion to dismiss is not properly filed here, being only in the printed brief and not otherwise; but even if it had been properly filed, we would deny the motion for several reasons: (a) there might be some question of the personal liability of Mollie Ricks for closing an estate with this appeal pending; (b) the estate may be reopened in accordance with § 62-2912 Ark. Stats.; and (c) if the Estate of Mary Lou Shinley is liable to the appellant, then the sureties on her guardian’s bond are liable to the appellant, and they were before the Probate Court. So there is a real need to settle the issues on this appeal.

II. The Amount Due The Minor. We come, then, to the real question on this appeal, which embraces all three of appellant’s points. A careful review of the record convinces us that the Probate Court was extremely liberal in allowing the minor any amount of recovery; but, since there is no cross-appeal, we cannot reduce the amount awarded. The minor was the only witness in the case. After the death of Mrs. A. R. Shinley, Mrs. Shinley moved to Searcy where the minor attended Searcy Public School in 1952, and entered Harding Academy in 1953, from which he graduated in 1957. As can well be imagined, Mrs. Shinley was a most indulgent mother since this adopted boy was her only child. She purchased a car for the boy at a cost of $2,325.00. He wanted to become an aviator; so she paid for flying lessons for him. The boy determined he would marry, which was against the wishes and better judgment of the mother, but she went with the minor and his fiancee to Mississippi and consented to the wedding, which occurred on November 14,1957. Thereafter, the minor enlisted in the United States Air Force; and on December 14, 1957 (one month after he had married) the boy and his mother had what purported to be a final settlement of the mother’s account as guardian. The minor wrote out a list of the expenses that his mother had paid for him from his estate during her entire period of guardianship. In the record before us it is a four-page typewritten instrument and concludes with these words: £ £ This Statement, prepared by me, Roy A. Shinley, is to certify that I received my legal share of the Estate of A. R. Shinley, my father, deceased.”

The mother must have concluded (though erroneously) that as a matter of law the marriage emancipated the minor in all respects and that the signed receipt cleared her of all liability. But after Mrs. Shinley died, the son, using his wife as his next friend, filed this proceeding against his mother’s estate, evidently because she left him only $5.00 in her will. Of course, the boy was a minor when he signed the receipt and cannot be bound by it; and, of course, the guardian should have complied with the law and obtained prior authorization to expend any portion of the corpus of the estate and should also have filed regular reports of expenditures, all as provided by the Probate Code. (See 57-632 and 57-642 Ark. Stats.) However, in Robinson v. Hammons, 228 Ark. 329, 307 S. W. 2d 857, we decided, that even though under § 57-632 Ark. Stats., the guardian should have obtained prior authorization from the Court before expending for the ward any portion of the corpus of the estate, nevertheless, if the guardian did expend on the ward the corpus of the estate without prior authorization, the Probate Court could approve the expenditures even after they had been made if the guardian could establish to the satisfaction of the Probate Court that such expenditures were reasonable and proper and were actually expended for the ward.

It was in keeping with this holding in Robinson v. Hammons, supra, that the Probate Court proceeded in the hearing in the case at bar. The Court considered all of the expenditures made by Mrs. Shinley from the time of her appointment until the time of her demise and determined which items were proper and reasonable for the minor, disregarding the receipt that the minor had signed. The Court considered reasonable charges for groceries, clothing, board, tuition, drug and doctor bills, band lessons, cash for personal expenditures — -all of these and other items — and the conclusion was reached that the estate of Mrs. Shinley was still indebted to the then minor in the sum of $1,788.06.

It thus appears that the Probate Court gave the minor every penny to which he was entitled, and the judgment is affirmed.

       He was a minor on June 20, 1961, when the case was tried and judgment rendered from whence comes this appeal.

       She had remarried and had become Mrs. Lytle, but we will continue to refer to her as Mrs. Shinley for convenient identification.

       Under § 57-103 Ark. Stats., minority for a male continues until age 21 is attained. Under § 57-643 Ark. Stats., marriage terminates the guardianship of the person but not of the estate of the ward, except with respect to the ward’s earnings for personal services. Mrs. Shinley was the guardian of the estate of the minor, Roy E. Shinley. For the benefit of these interested in the question as to the extent, if any, that marriage may emancipate a minor, attention is called to Harrod v. Myers, 21 Ark. 592, 76 Am. Dec. 409; Watson v. Billings, 38 Ark. 278, 42 Am. Rep. 1; Pace v. Richardson, 133 Ark. 422, 202 S. W. 852; Miller v. U.S., 123 F. 2d 715. See also 31 C.J. 1008 “Infants” § 38; 43 C.J.S. 91 “Infants" § 29; 39 C.J.S. 63 “Guardian & Ward” § 43; and 27 Am. Jur. 748 “Infants” § 5.


author: George Rose Smith, J.

text:
    Ingram v. Life Ins. Co. of Georgia.
    5-2622
    354 S. W. 2d 549
    Opinion delivered March 5, 1962.

      Bernard Whetstone, for appellant.

      Crumpler S O’Connor and Jabe Boggard, for appellee.
   George Rose Smith, J.

This is an action at law by tbe appellant as tbe beneficiary of a $1,400 policy of accident insurance issued by tbe appellee to Charles Amos Ingram, the appellant’s son. The complaint asserted that tbe insured died as a result of having been accidentally shot on November 12, 1960. Tbe defendant denied liability on tbe ground that tbe policy did not cover a loss due to injuries intentionally inflicted upon tbe insured. This appeal is from a judgment entered upon a directed verdict for tbe defendant.

Tbe policy provided an indemnity for death occurring as tbe result of bodily injuries sustained through external, violent, and accidental means. A later exception, however, excluded coverage for “any loss resulting from . . . injuries intentionally inflicted upon tbe insured either by himself or any person other than burglars or robbers.”

Tbe proof shows that tbe insured was shot by Eobert Lee White. Tbe appellant first contends that tbe quoted clause is ambiguous and should be construed to mean that coverage is excluded only if tbe insured intentionally killed himself or intentionally induced someone else to do so. Since it is not shown that this decedent persuaded bis assailant to fire tbe fatal shot tbe appellant argues that tbe appellee did not prove its defense.

This contention is not well-founded. An insurance contract is to be construed strictly against the insurer; but where the language is unambiguous, and only one reasonable interpretation is possible, it is the duty of the courts to give effect to the plain wording of the policy. Southern Surety Co. v. Penzel, 164 Ark. 365, 261 S. W. 920. This contract states, as clearly and unmistakably as the English language permits, that there is no liability for a loss resulting from injuries intentionally inflicted upon the insured either by himself or any persons other than a burglar or robber. There is nothing whatever to indicate that the action of the third person must have been induced by the insured. We are not at liberty to rewrite the contract by inserting words that simply are not there. Moreover, the suggested construction is not a reasonable one, for the possibility that an insured might succeed in persuading someone else to murder him is so remote that the exclusionary clause would in practical effect be rendered meaningless.

The appellant’s other contention is that the defendant’s proof was not sufficient to justify the court’s action in directing a verdict. At the trial neither party made any real effort to prove the details of the homicide. The decedent’s father, testifying for the plaintiff, was the only witness. On direct examination he merely stated that he was present when his son was shot and killed on November 12, 1960. On cross-examination the witness stated that White shot the decedent, who in turn shot White in the shoulder after he had first been hit himself. There was also this testimony on cross-examination:

‘ ‘ Q. He was shot though, intentionally, you say, by Robert Lee White, is that right?
“A. I guess he was, he was shooting that way and he hit my boy.”

This meager proof was insufficient to call for a peremptory instruction. The insurer had the burden of proving an affirmative defense based upon an exception in the policy. Willis v. Denson, 228 Ark. 145, 306 S. W. 2d 106. The testimony must be viewed favorably to the appellant, against whom the verdict was directed. It merely shows that White was shooting in the decedent’s direction and hit him. The witness had not previously said that the shooting was intentional, but in response to the question we have quoted he said that he “guessed” it was. We are unable to say that the evidence is so clear and positive that no fair-minded man could find that the defendant had not sustained its burden of proof. It follows that the directed verdict was not proper.

Reversed and remanded for a new trial.


author: Paul Ward, Associate Justice.

text:
    Ark. State Highway Comm. v. Anderson.
    5-2636
    354 S. W. 2d 554
    Opinion delivered March 5, 1962.
    [Rehearing denied March 26, 1962.]

      Dowell Anders, W. B. Thrasher and Thomas B. Keys, for appellant.

      Cooper Jaeoway, for appellee.
   Paul Ward, Associate Justice.

Prior to May 19,. 1961 appellant, the Arkansas Highway Commission, pursuant to a condemnation order entered bj? the County Court of Pulaski on October 24, 1935, began widening' and reconstructing Highway No. 10. The county court order provided that all claims for land taken or damages done must be filed within one year or they would be forever barred. On the date first mentioned nine affected property owners filed a complaint in the Chancery Court of Pulaski County to enjoin appellant from going on their lands or attempting to use the same for the purpose of widening Highway No. 10. Appellant, in its answer, alleged that it was proceeding to widen the highway under authority of the said county court order and asked to have the complaint dismissed. After a hearing, at which much testimony and many exhibits were introduced, the trial court granted the landowners the requested relief.

Pertinent Facts. The portion of the highway involved, generally speaking, runs west and northwest from Hughes street for a distance of approximately one-fourth of a mile through White City addition to Little Eock and (apparently) along the south side of Plunkett’s subdivision of Forrest Park. Abutting the highway on the south side: Kraftco Building Supply, Inc. owns lots 3, 4, 5 and 6, block 3, White City addition; D. H. Garner and his wife own lots 4, 5 and 6, block 2, White City addition. Abutting the highway on the north side: James G. Ealph and Travis V. Talley own lot 1, block 1, White City addition; Tony Anderson and his wife own lots 2, 3 and 4, block 1, White City addition; William L. Humphries owns lots 5 and 6, block 1, White City addition; Eobert F. Wallace and his wife own lot 10 and part of lot 9, block 1, White City addition; Carl D. Smith owns, a parcel of land, approximately 50 feet by 100 feet,, described by metes and bounds and (apparently) a part, of Plunkett’s subdivision of Forrest Park; Bert E. Hubbard owns the east 90 feet of block 5 in the subdivision last mentioned above. The above named persons are the appellees and the affected property owners.

It is not disputed: that for many years (dating prior to 1935) there has been a public highway running by the above described properties along the present location of Highway No. 10; that the right-of-way was 40 feet wide; that the road was graveled or paved to a width of approximately 18 feet; that appellant for many years has graded the shoulders on both sides of the gravel or pavement to the extent of approximately five feet; and, that all the appellees acquired their property several years ago, but no one of them acquired his property prior to 1935. It is likewise undisputed that the 1935 court order purported to condemn a strip of land ten feet wide along each side of the original right-of-way.

The Issues. It is undisputed that the 1935 court order was not published. A thorough search of the county records fails to reveal any claims that might have arisen under the order were ever presented or paid. Essentially it is the contention of appellant that the 1935 order was a lawful order of condemnation of the extra ten feet of land on each side of the old right-of-way and that the work it did in improving the road and grading the shoulders constituted notice to appellees, and that all claims are barred because they were not filed within one year after such notice. It is also contended by appellant that the burden was on appellees to show they did not have notice of the 1935 condemnation order, and that they failed to meet that burden.

We are unable to agree with appellant in either of the above contentions. The first contention was resolved against appellant in the case of Arkansas State Highway Commission v. G. A. Dobbs, et al, 232 Ark. 541, 340 S. W. 2d 283, and, therefore, need not be discussed at length. In the cited case the condemning order (unpublished) was made in 1929 and the Highway Commission undertook to widen the existing street in 1959. There, since 1933 the Highway Department had improved and surfaced the street but had done nothing to indicate it was claiming control over any of claimants’ property. We held there that such acts were not sufficient to constitute an entry on the part of the Highway Department and did not constitute notice to the land owners. On rehearing we, after careful consideration, again affirmed our original holding. We think the facts in the Dobbs case are SO' similar to the facts in this case as to call for an affirmance of the trial court. We do not understand appellant, to contend there is any material difference between the factual situations in the two cases except in two respects, noted hereafter.

One. Appellant points out that in the Dobbs case the road ran through an incorporated town while here the affected property lies outside the corporate limits of the City of Little Rock. We cannot see, and it is not pointed out, how this difference is material as bearing-on what constitutes reasonable notice. Certainly theDobbs opinion was not based on that theory. Moreover,, the property affected here is located in platted additions that show lots, blocks and streets.

Two. Appellant relies on the testimony of a Mr. Efird to show he had notice of an actual taking of his land by appellant. Efird, of course, is not a party to this, suit and we are unable to understand how any notice to him in 1935 or later can be construed as notice to appellees in the absence of proof to that effect. We find no such proof in the record.

Burden of Proof. We do not agree with appellant, that under the facts in this case, the burden was on appellees to prove they had no notice of the 1935 order or no notice later of an entry on or taking of their property. Article 2, Section 22 of our Constitution forbids appellant from taking appellees’ land “without just compensation therefor”. In Ark. State Highway Commission v. Cook, 233 Ark. 534, 345 S. W. 2d 632, this Court, in discussing the condemnation of property by a county court order, said: “Notice is essential, however, for the landowner is entitled to a hearing upon the issue of compensation.” The corollary of what we have just said is that the Highway Commission cannot take appellees’ property without first giving them notice so they can have their day in court on the issue of compensation. If appellant prevails in this case it will amount to taking appellees’ property without compensation. So, for appellant to prevail, it must show appellees had notice of taking. Therefore we are driven to the conclusion that the burden is on appellant to show proper notice was given, and not on appellees to show notice was not given.

Appellant says that all the points decided by the trial court adversely to it in this matter were decided clearly and concisely by this Court in the Cook case, supra, copying about two pages from the middle portion of the opinion. The pertinent question there presented was whether Mrs. Cook had sufficient notice of the full extent of the taking by the Highway Department. The essence of the opinion insofar as it deals with the question here involved is set forth in a paragraph following the portion copied in appellant’s brief. It reads:

“Here it is shown by undisputed proof that the department actually entered the appellee’s land in 1940 and built a road. To put the matter beyond any possibility of doubt it also appears by the appellee’s own admission that she filed a claim for crop damage. Thus she had actual notice of the proceeding in the county court and is as fully bound by the order as if she had been served with a summons or had entered her appearance. Her right to compensation was lost by her failure to file a claim within the one year allowed by the statute.”

It cannot be contended that any such notice, or notice of such import, was given to appellees in this case.

The decree of the trial court is accordingly affirmed.

Affirmed.

Bohlinger, J., not participating.


author: Sam Robinson, Associate Justice.

text:
    Hobbs, Admr. v. Collins.
    5-2596
    354 S. W. 2d 551
    Opinion delivered March 5, 1962.

      Carlos B. Hill, for appellant.

      Rex W. Perkins and David J. Burleson, for appellee.
   Sam Robinson, Associate Justice.

John Edward Gayler, age 68, died on the 9th day of August, 1960. During his lifetime he had accumulated bank deposits and government bonds of the value of about $40,000.00. Gayler had no wife and no children.

Appellee, Winnifred Preston Collins, whom Gayler had known since she was a little girl, claims that during his lifetime Gayler gave to her the money in the banks and the bonds. Appellant, E. A. Hobbs, Administrator of the Gayler Estate, concedes that Gayler gave the bonds to Mrs. Collins, but denies that he gave her the money in the banks. The Probate Court found that Gayler gave the money in the banks to Mrs. Collins and the Administrator has appealed.

Appellee, Winnifred Collins, first filed in the Probate Court a claim in which she alleged that she is the owner of the money in the banks and the bonds. This was before an inventory was filed in the Gayler estate, and she stated that she did not know whether the Administrator would claim ownership of the money and bonds. Later, the Administrator filed an inventory in which he listed the money and bonds as assets of the estate. Appellee filed exceptions to the inventory in which she alleged that Gayler, the deceased, had given her the money in the banks and the bonds and that she is the owner thereof. Appellant, Administrator, filed a response to the objections to the inventory and prayed that the Probate Court deny the objections and that Winnifred Collins take nothing thereby and for all other proper orders.

First the appellant contends that the Probate Court did not have jurisdiction to determine the ownership of the money. No objection to the jurisdiction of the Probate Court was made until the cause reached this Court on appeal.

The Probate Court was not without jurisdiction of the subject matter. Carlson, Administrator v. Carlson, 224 Ark. 284, 273 S. W. 2d 542, Thomas v. Thomas, 150 Ark. 43, 233 S. W. 808, King v. Stevens, 146 Ark. 443, 225 S. W. 656, Ark. Stats. § 62-2409. If appellant had not wanted to submit the issue of the ownership of the property to the Probate Court, objection should have been made before a full scale trial was had and then appellant would have been in a position to raise the question on appeal. It appears, however, that the Administrator voluntarily submitted to the jurisdiction of the Probate Court. This can be done. Park v. McClemens, 231 Ark. 983, 334 S. W. 2d 709.

The evidence fully sustains the Court’s finding that Gayler gave the money in the bank to Winnifred. All the bank books were left by Gayler with Mrs. Preston, the mother of Winnifred, to be kept for her with a large number of U. S. bonds, purchased by Gayler and made payable to himself and Winnifred Collins. When some of the bonds were first turned over to Mrs. Preston for Winnifred, they did not have Winnifred’s name on them. This was called to Gayler’s attention and he returned the bonds to the government and had them reissued in both names. Thereafter, all bonds purchased by Gayler were made payable to himself and Winnifred. Mrs. Preston was also keeping for Winnifred an insurance policy purchased by Gayler on his own life with Winnifred as the sole beneficiary. One of the bank deposits was in the joint names of Gayler and Winnifred.

The Probate Court is fully sustained by the evidence in finding that Gayler had made the statement numerous times that he had given everything to Winnifred and that he actually gave the money in the bank, represented by the bank books, to Mrs. Preston for Winnifred. The only question is whether Gayler’s intention to make the gift, coupled with the delivery of the savings bank books to Mrs. Preston for Winnifred, and Winnifred’s intention to accept the money as a gift is sufficient in law to constitute a valid inter vivos gift. Our conclusion is that the Probate Court was not in error in holding that there was a completed gift.

To sustain the contention that there was no completed gift, appellant cites such cases as Stiffts v. Worthen, 176 Ark. 585, 3 S. W. 2d 316, Neal v. Neal, 194 Ark. 226, 106 S. W. 2d 595, Krickerberg v. Hoff, 201 Ark. 63, 143 S. W. 2d 560, and Bennett v. Miles, 212 Ark. 273, 205 S. W. 2d 451, but in all of those cases there was a finding that there had been no delivery of the alleged gift.

In the case at bar, the great preponderance of the evidence is that Gayler gave the money in the savings deposits, represented by the bank books, to Mrs. Preston for Winnifred. In Carter v. Walker, 200 Ark. 465, 139 S. W. 2d 233, the Court quoted from Lowe v. Hart, 93 Ark. 548, 125 S. W. 1030, as follows: “To constitute a valid gift inter vivos, the donor must have been of sound mind, must have actully delivered the property to the donee, and must have intended to pass title immediately, and the donee must have accepted the gift.” In Williams v. Smith, 66 Ark. 299, 50 S. W. 513, the Court said: “If the gift be intended in presentí, and be accompanied with such delivery as the nature of the property will admit, and the circumstances and situation of the parties render reasonably possible, it operates at once, and, as between the parties, becomes irrevocable. Such delivery may be made to a bailee as effectually as to a donee in person.” (Our italics). In McCoy’s Administrator v. McCoy, 126 Ky. 783, 104 S. W. 1031, the Court said: ‘ ‘ The authorities hold, almost without exception, that the delivery of a pass or deposit book in a savings bank transfers the money on deposit to the donee.” Citing numerous cases. To the same effect are the cases of Goodson v. Liles, 209 Ala. 335, 96 So. 262, Brodrick v. O’Connor, 271 Mass. 240, 171 N. E. 479, and Dellepaine v. Hynes, 83 Cal. App. 604, 257 P. 180.

The Probate Court’s finding that all the requisites for a valid inter vivos gift are present in the case at bar is not against the preponderance of the evidence. The judgment is therefore affirmed.


author: Jim Johnson, Associate Justice.

text:
    Cecil v. Cline.
    5-2597
    354 S. W. 2d 553
    Opinion delivered March 5, 1962.

      D. B. Bartlett, Edward H. Patterson and Mark E. Woolsey, for appellant.

      Marvin Holman, Wiley W. Bean and Gordon S Gordon, for appellee.
   Jim Johnson, Associate Justice.

This appeal is a sequel to the case of Mills v. Patton, 233 Ark. 755, 346 S. W. 2d 689. After the decision of this Court in that case, appellee herein, as plaintiff in the trial court, filed his complaint against appellant as defendant alleging that he, the appellee, was alderman from Ward 3 of the City of Clarksville, a city of the first class, and that appellant, as an usurper, was in possession of, and holding the office without legal right thereto.

Upon a trial, the trial court made and entered its judgment ousting appellant from the office and reinstating appellee therein. From that judgment comes this appeal.

Notwithstanding the excellent briefs which were filed and the interesting arguments advanced by both the appellant and appellee in this case, the record is clear that the term of office over which the controversy arose expired on December 31, 1961. Therefore, the questions presented for our consideration are moot. This being true, and since the questions raised are not of such practical importance to the public as to come under the rule laid down in Cain v. CarlLee, 171 Ark. 155, 283 S. W. 365, we have no choice but to follow our well settled rule that:

“It is the duty of this Court to decide actual controversies by a judgment which can be carried into effect and not to give opinions upon abstract propositions or to declare principles of law which cannot affect the matter in issue in the case at bar.” Kays v. Boyd, 145 Ark. 303, 224 S. W. 617.

Appeal dismissed.


author: Neill Bohlinger, Associate Justice.

text:
    American Ins. Co. of Texas v. Neal.
    5-2630
    354 S. W. 2d 741
    Opinion delivered March 5, 1962.
    [Rehearing denied April 2, 1962.]

      Percy G. Fewell, Dallas, Texas, and Paul K. Roberts, for appellant.

      Clint Huey, for appellee.
   Neill Bohlinger, Associate Justice.

The appellee brought this action to recover from the appellant a sum of money which she alleged was due under a 1955 insurance policy for expenses incurred by her in connection with hospital confinement and surgery in October, 1960.

The appellant, insurer, answered and denied liability on the grounds that the physical conditions which required hospitalization and surgery did not originate after October 20, 1955, which was six months after the effective date of its policy. The clauses under which this defense is interposed are as follows:

“PART A HOSPITAL EXPENSE BENEFITS
(c) Sickness, the cause of which originates more than six months after the effective date of this policy and which requires surgery; * * *
EXCEPTIONS REDUCTIONS WAITING PERIODS
WAITING PERIODS. 3. Loss, fatal or otherwise, resulting directly or indirectly from, or by, Tuberculosis, High or Low Blood Pressure, Heart Trouble, Cancer, Hernia or Rupture however caused, Rheumatism, Appendicitis, Rectal or Colon Trouble however caused, Adenoids or Tonsilitis, shall be covered only if the cause of the disease originates after this Policy shall have been in continuous force and effect for a period of six months from effective date. Loss due to any surgical operation, except in connection with accidental injury, shall be covered only if the cause of the disease necessitating such surgery originates after this Policy shall have been in continuous force and effective for a period of six months from effective date.”

The proof in this case discloses that an operation was performed on the appellee for anterior and posterior perineal repair; that appellee filed a claim for hospitalization; and that appellee signed two forms in regard to her claim which were her Claimant’s Statements — Hospital Coverage, and Individual Hospital Insurance Form, in which she designated the date of her first symptoms as July, 1947. It is evident that in 1947 the appellee underwent some treatment for the relief of certain complications. We are indebted to the appellant for an enlightening dissertation on the ills of women instant to childbirth, but whatever the 1947 treatment was designed to relieve seems to have been effective for the appellee states that she had not been troubled with the condition for which an operation was required until “the tomato season of 1960”, which we interpret as July, 1960, at which date the policy was in force.

We think the facts in this case bring it squarely within the rule announced in State National Life Insur ance Company v. Stamper, 228 Ark. 1128, 312 S. W. 2d 441, wherein we had the following facts:

“In July, 1955, a little over a year after Mrs. Stamper purchased the policy of insurance, she began to suffer pain in her neck and shoulders. At first she thought it was caused by her teeth, and had her teeth pulled, but this did not give relief. During most of her life she had a small bony growth or knot on the back of her head. Prior to July, 1955, she had suffered no ill effects whatever from this growth, but in August, 1955, it was determined that the bony growth had increased in size to the point where it was causing the pain suffered by Mrs. Stamper. According to the undisputed evidence the bony growth had not caused any trouble whatever until more than a year after the issuance of the policy of insurance, and it is apparent from the evidence that if the growth actually did cause Mrs. Stamper’s trouble it did so because of increase in size subsequent to the time the policy was issued.”

The decision in the above case was in line with the decided weight of authority that the condition should be deemed to have had its inception either at the time it became active, or when sufficient evidence existed to allow a reasonably accurate diagnosis even though disease germs, infection, or physical condition might have been present in the body prior to the excluded time if the condition was latent, inactive, and perhaps undiscovered.

We think the question as to the date of the direct or contributing cause of the condition for which surgery was required was properly submitted to the jury under plaintiff’s instruction number two. The instruction was as follows:

“You are further instructed that if you find from the preponderance of the evidence that the direct or contributing cause of the condition for which the plaintiff had surgery originated after October 20, 1955, then you will return a verdict for the plaintiff, unless you find for the defendant under other instructions of this case.”

Under this instruction and the evidence in the case the jury could have found either way but the question as to the origin of the condition was fairly submitted to the jury and its finding we do not disturb.

Appellant contends that the appellee “having recovered judgment for less than she demanded and sued for is not entitled to the penalty and attorneys’ fee awarded by the judgment in this case.” This contention is without merit.

The original complaint filed by appellee prayed for judgment in the sum of $285.50 but prior to trial the appellee amended the complaint and asked for $235.50, penalty and attorney’s fee. This amended complaint the appellant answered and faced the court on a prayer for only $235.50. This amount the appellee recovered and she is therefore entitled to penalty, costs, and attorney’s fee. The trial court allowed appellee’s attorney the sum of $150.00 and counsel asks an additional fee on this appeal. Taking into consideration the fact that this case necessitated two trials, one in the municipal court and one in circuit court, we think the sum of $150.00 attorney’s fee reasonable and an additional fee of $75.00 is allowed on this appeal.

The judgment is in all things affirmed.