author: Ed. F. McFaddin, Associate Justice. Justices Robinson and Johnson

text:
    Walker v. State.
    5069
    371 S. W. 2d 135
    Opinion delivered October 14, 1963.

      W. Harold Flowers, for appellant.

      Bruce Bennett, Atty. General, by Jack L. Lessen-berry, Asst. Atty. Gen., for appellee.
   Ed. F. McFaddin, Associate Justice.

Appellant, George Edward Walker, was charged with, and convicted of, involuntary manslaughter; and brings this appeal. The motion for new trial contains a total of nineteen assignments, which we group and discuss in suitable topic headings.

I. Sufficiency Of The Evidence. On the night in question Walker and another man, named M. J. Hunter, Jr., were in a truck proceeding west on 13th Street in Pine Bluff. The truck approached U. S. Highway No. 79, failed to stop at the stop sign, smashed into an automobile being driven on Highway No. 79, overturned the automobile, and injured Miss Suzy Glover, a passenger in the automobile. Miss Glover died in a short time as a result of said injuries. There was substantial evidence from which the jury could have found—and did find by its verdict of guilty-—that the defendant Walker was the driver of the truck that caused the death of Miss Glover; and that Walker was intoxicated at said time. Certainly the evidence is sufficient to support the verdict. Fitshugh v. State, 207 Ark. 117, 179 S. W. 2d 173; Lewis and Wren v. State, 220 Ark. 914, 251 S. W. 2d 490; and Stacy and Rusher v. State, 228 Ark. 260, 306 S. W. 2d 852.

II. Severance Granted Hunter And Refusal To Quash The Information As To Walker. M. J. Hunter, Jr. was in the truck with the defendant, Walker, at the time of the collision, and the State named both Walker and M. J. Hunter, Jr. in the information. Hunter sought, and obtained, a severance; and Walker complains of the ruling of the Court granting the said severance and the refusal to quash the information against Walker because of the severance. There was no error in the Court’s ruling. Since both Hunter and Walker were in the truck at the time of the collision, both could be charged with the homicide, under the cases previously cited. When Hunter sought a severance it was within the discretion of the Trial Court to grant or refuse it. Ark. Stat. Ann. §43-1802 (1947). There was no abuse by the Court of its discretion. Bennett and Holiman v. State, 201 Ark. 237, 144 S. W. 2d 476; Finley v. State, 233 Ark. 232, 343 S. W. 2d 787. There was no reason to quash the information against Walker merely because of the severance.

III. Refusal To Excuse A Juror. On voir dire Paul Lucus, a member of the regular panel, stated that he was an officer in a service club in Pine Bluff; that Mr. Glover, father of the deceased, Miss Suzy Glover, had been a member of the club; that the club held its luncheons at the Hotel Pines; that Mr. Glover refused to attend the luncheons at the hotel, since the defendant Walker worked at the hotel; that a committee was appointed to see what could be done about Mr. Glover’s complaint; that Mr. Glover subsequently resigned from the club. Mr. Lucus stated that he knew nothing about the facts of the homicide. The following occurred when Mr. Lucus was being interrogated on voir dire:

“THE COURT: Have you formed or expressed any opinion as to the defendant’s guilt or innocence?

“MR. LUCUS: No, sir.

“THE COURT: Any bias or prejudice for or against bim?

“MR. LUCUS: No, sir.”

Tbe Court then asked Mr. Lucus if he could try tbe case solely on tbe law and tbe evidence; and Mr. Lucus answered in tbe affirmative. Tbe Court beld Mr. Lucus to be a qualified juror, and be served on tbe jury. There was no error in the ruling of tbe Court bolding Mr. Lucus to be a qualified juror.. Tbe fact that be bad tbe activities stated did not ipso facto disqualify bim. Tbe fact that a juror has done business with one of tbe litigating parties does not ipso facto disqualify bim as a prospective juror. Rumping v. Ark. Nat’l Bank, 121 Ark. 202, 180 S. W. 749; Becker v. Laws, 74 Ark. 286, 85 S. W. 425. Tbe vital question for tbe Trial Court to determine was whether tbe venireman would and could try tbe case solely on tbe law and tbe evidence and render a fair and impartial verdict. Tbe Trial Court so beld as regards Mr. Lucus; and we see no error committed. '

There is another, and in itself, a sufficient reason for bolding against the appellant regarding tbe juror Lucus; and such reason is because there is no evidence of any kind in tbe record to show that tbe defendant exhausted bis peremptory challenges and was thereby forced to accept Mr. Lucus as a juror. Our cases bold that a defendant cannot complain of tbe overruling of a challenge for cause unless tbe defendant exhausted bis peremptory challenges and was forced to accept tbe questioned juror. Mabry v. State, 50 Ark. 492, 8 S. W. 823; Holt v. State, 91 Ark. 576, 121 S. W. 1072; Shoop v. State, 209 Ark. 498, 190 S. W. 2d 988. Tbe defendant’s motion for new trial contained the following allegation:

“Because the Court erred in denying defendant’s motion on voir dire examination for the Court to excuse tbe prospective juror, Paul Lucus, for cause when tbe defendant bad already exhausted bis peremptory challenges.”

Tbe quoted allegation in tbe motion for new trial—about exhausting peremptory challenges—is not sustained by the record. There is no evidence of any kind in the record to show that the defendant exhausted his peremptory challenges; and a mere allegation in the motion for new trial does not constitute evidence. Shinn v. Tucker, 37 Ark. 580.

IY. Statements Defendant Made To Arresting Officer. After the collision between the truck and the car, the defendant walked across the street and sat down near a filling station. When the investigating officer arrived at the scene, he noticed the defendant had a contusion on his forehead and asked him how he got the wound. The defendant told the officer that he (the defendant) was driving the truck that was involved in the collision. Thereupon, the officer took the defendant to the hospital for dressing of the defendant’s wound; and the defendant, in the presence of others, repeated the statement that he was driving the truck at the time of the collision. It is claimed that the officer failed to advise the defendant that anything he said could be used against him; so it is urged that the statement of the defendant to the officer was a confession and was under duress. But when the defendant took the witness stand in the trial of the case, he admitted that- he told the Prosecuting Attorney on several prior occasions that he (the defendant) was driving the truck at the time, and so admitted on the witness stand. Thus, any statement that the defendant made to the officer under the circumstances above mentioned was rendered entirely harmless by the other testimony in the case. The defendant explained that the reason he admitted driving the car was because M. J. Hunter, Jr. did not have a driver’s license, and the defendant and Hunter had agreed when they started on their trip, that in case any trouble should develop, the defendant would admit being the driver. This explanation by the defendant rendered harmless any ruling of the Court regarding the testimony of the officer, even if the said testimony might have otherwise been objectionable—a matter we need not decide. The evidence showed that Hunter and the defendant had, just before the collision, consumed a considerable quantity of gin, beer, and whiskey; so that they hardly knew which one was driving the car; but disinterested witnesses testified that immediately after the collision the defendant was in the driver’s seat. Under the circumstances heretofore cited, the defendant could have been convicted of involuntary manslaughter, even if he had not been driving the vehicle.

CONCLUSION. We have examined the other assignments and find no error. Affirmed.

Justices Robinson and Johnson

concur, being of the opinion that the Trial Court should have excused the venireman Lucas, but that the failure of the record to show the exhausting of challenges made such ruling harmless.


source: Caselaw Access Project

author: George Bose Smith, J.

license: Public Domain

text:
    Urban Renewal Agency of Harrison v. Hefley.
    5-3056
    371 S. W. 2d 141
    Opinion delivered October 14, 1963.

      W. S. Walker and Bill F. Doshier, for appellant.

      John II. Shouse, J. Loyd Shouse and Eugene W. Moore, for appellee.
   George Bose Smith, J.

By this eminent domain proceeding the appellant is acquiring four tracts of land in Harrison. The jury valued the tracts at a total of $78,000, which was somewhat higher than their worth as fixed by the condemnor’s witnesses and somewhat lower than that fixed by witnesses for the owners.

Near the end of the trial the condemnor offered in evidence a county court order, entered in 1930, which purported to create a highway right-of-way across one of the tracts. The purpose of the offer was to show that the value of the tract was reduced by reason of the existence of the easement. The trial court excluded the proffered exhibit on the ground that no such easement had been mentioned in the pleadings.

This ruling was correct. Written pleadings are required so that each party may know what issues are to be tried and may thus be in a position to enter the trial with his proof in readiness. Bachus v. Bachus, 216 Ark. 802, 227 S. W. 2d 439. A failure to plead a material matter is prejudicial to the opposing party if it puts him at an unnecessary disadvantage in the presentation of his case.

That was the situation here. County court orders such as this one are entitled to a presumption of validity. Bollinger v. Ark. State Highway Comm., 229 Ark. 53, 315 S. W. 2d 889. Nevertheless we know that in a great many instances the order can be successfully attacked by the landowner. One common defect, mentioned in the Bollinger opinion and in counsel’s objections below, is the county court’s not having been legally in session upon the date of the entry of the order. Another is the fact, referred to in many of our decisions, that the enabling statute is defective in failing to provide for notice to the landowner, so that the order becomes valid only when actual notice is given, as by an entry upon the land. See Miller County v. Beasley, 203 Ark. 370, 156 S. W. 2d 791; Ark. State Highway Comn. v. Dobbs, 232 Ark. 541, 340 S. W. 2d 283; Ark. State Highway Comn. v. Cook, 233 Ark. 534, 345 S. W. 2d 632.

It is fair to suppose that the owners of the tract now in question may have been able to produce proof that the county court order was void. They were caught by surprise, however, because the existence of the asserted right-of-way was not mentioned in the condemnor’s pleadings. To the contrary, the complaint alleged, that the tract was owned by Hefley and his wife, and the parties stipulated that the allegations of ownership were correct. There was nothing in the pleadings to warn the Hefleys that the condemnor was relying upon the easement supposedly created in 1930. It would not be fair to permit the plaintiff to profit by the prima facie validity of the county court order without affording the landowners an opportunity to challenge it. We think the trial court acted within its sound discretion in refusing to allow the order to be received in' evidence.

The appellant’s other arguments have to do with the admissibility of evidence. Counsel summarizes fourteen instances in which it is said that improper proof was introduced by the landowners. In six of these instances, however, there was no objection to the testimony. In four others there was a motion to strike all of the particular witness’s testimony. In each of these four eases at least part of the witness’s evidence was admissible; so the motion to strike was correctly denied. St. Louis, I. M. & S. Ry. v. Taylor, 87 Ark. 331, 112 S. W. 745.

We find no prejudicial error in the other four instances. The witness Saunders, a real estate dealer, was familiar with one of the tracts, but at first he did not know exactly what part of it was being taken. To meet this difficulty his testimony was interrupted to allow another witness to explain that a certain number of acres were being taken. It was then proper for Saunders to state a per acre value for the land.

The testimony of Carr, another real estate dealer, is challenged on the ground that he gave no basis for his expert opinion. As we pointed out in Ark. State Highway Comn. v. Johns, 236 Ark. 585, 367 S. W. 2d 436, that opinion was admissible on direct examination. Counsel might have attempted to discredit the witness by showing through cross examination that he had no reasonable basis for his conclusions, but no such effort was made.

Hosea Hefley, in giving his opinion about the value of one tract, was allowed to detail the materials that had gone into the construction of a building upon the property. He did not try to set forth the cost of the materials. This proof was perhaps more detailed than it needed to be, but there was no real objection to the witness’s being permitted to describe the improvements in this way and thereby to explain factors that he had considered in forming his opinion about the fair value of the property.

We find no merit in the other objections that were made to the testimony.

Affirmed.


author: Paul Ward, Associate Justice.

text:
    Swift v. Lovegrove.
    5-3065
    371 S. W. 2d 129
    Opinion delivered October 14, 1963.

      John G. Moore, for appellant.

      Gordon é Gordon, for appellee.
   Paul Ward, Associate Justice.

Appellant, Robert M. Swift, owned 190 acres of land on which he operated a dairy. On March 4, 1960 he and appellee, Leroy Love-grove, Jr., entered into a written agreement (hereafter referred to as a contract) wherein appellant purported to sell and appellee purported to purchase the land, including the dairy cows and equipment. The contract, not drawn by an attorney, is crude and indefinite in its terms.

The parties however agree as to the following: (a) The price of the land was $16,500 and the price of the cows and equipment was $12,500; (b) appellee made a down payment of $2,000 and then made four other payments of $200 each; (c) there was no definite agreement as to when the balance would be paid, but appellee was to get credit for one-half of the profits from the operation of the dairy to be applied on the balance of the purchase price; and, (d) appellee was to pay one-half of the expense incident to the dairy operation. It is not disputed that the parties operated under this arrangement for only three or four months after which time it was terminated. The cause and circumstance of such termination are the issues in this litigation.

The contention of appellee (as set ont in his complaint filed in the circuit court) is (a) that an essential part of the contract and agreement was for appellant to keep a record of the dairy profits and to give him (appellee) credit each month on the purchase price but that appellant failed and refused to do so, and (b) that on July 1, 1960 it was mutually agreed to rescind the entire contract and for appellant to refund to appellee the sum of $2,800. On the other hand, it is the contention of appellant that he made no such agreement, that appellee refused to carry out his part of the contract, and therefore he was due the balance of the purchase price.

The above conflicting contentions were presented to the trial judge, sitting as a jury. After hearing the testimony of both parties and their wives, the trial court, after making extensive findings of fact and law, found the issues in favor of appellee and rendered judgment in his favor for $2,800. Among other things the court found appellee had advanced $2,800 and that there was an agreement to rescind the contract. The court further found that the parties had entered into a partnership operation or joint adventure as to the dairy operation, and that “the contract as drawn is more in the nature of a memorandum of mutual undertakings of the parties, and without oral interpretation and explanation, is ambiguous”.

The judgment of the trial court must be affirmed. It is not contended by appellant that there is no substantial evidence to support the court’s findings. It is contended, however, by appellant that the trial court had no right to find there was a rescission and that there was a partnership arrangement because it had no right to vary a written contract. Appellant cannot be sustained in either' contention.

We have many times recognized the right of parties to a contract to vary it or rescind it by mutual consent. See: Elkins v. Aliceville, 170 Ark. 195, 279 S. W. 379; First National Bank of Belleville, Illinois v. Tate, 178 Ark. 1098, 13 S. W. 2d 587; and, Scottish Union and Na tional Insurance Company v. Wilson, 183 Ark. 860, 39 S. W. 2d 303. It is equally well settled that an ambiguous contract is subject to interpretation, and “its meaning is a question of fact for the jury and should be submitted to a jury.” The above quote is taken from the case of The Travelers Indemnity Co. v. Hyde, 232 Ark. 1020, 342 S. W. 2d 295. In this case the trial court sat in the capacity of a jury.

We find no merit in appellant’s final contention that the trial court erred in refusing to grant a new trial on the ground of newly discovered evidence. Appellant’s motion was based solely on an affidavit made by appellee’s brother. The trial court was correct in refusing appellant’s motion for reasons hereafter mentioned. In the case of Missouri Pacific Transportation Company v. Simon, 200 Ark. 430, 140 S. W. 2d 129, four specific requirements for granting a new trial on newly discovered evidence are set forth. A casual reading of the affidavit reveals that none of the requirements was met in this case. It suffices here to quote what the trial court said about the one requirement of diligence:

“No diligence has been shown to show any effort to obtain the testimony of Robert Lovegrove, by subpoena or by deposition. That prior and at the time of .trial, defendant, Swift, had full knowledge of any information available to him so far as Robert Lovegrove was concerned.”

Since no error has been shown, the judgment of the trial court is affirmed.-


author: Sam Eobinson, Associate Justice. Paul Ward, Associate Justice

text:
    Ark. State Highway Comm. v. Carpenter.
    5-3028
    371 S. W. 2d 535
    Opinion delivered October 14, 1963.
    [Rehearing denied Nov. 11, 1963.]

      Dowell Anders, H. Clay Robinson and Don Langston, for appellant.

      Donald Poe, for appellee.
   Sam Eobinson, Associate Justice.

This is an eminent domain proceeding in wbicb the Arkansas Highway Commission condemned a portion of two tracts of land. It is alleged that the tract owned by appellees, C. A. and Lessie Slagle, was damaged in the sum of $850.00, and the tract owned by appellees, Allen and Joella Carpenter, was damaged in the sum of $100.00. There was a judgment for the Slagles in the sum of $3,163.00, and a judgment for the Carpenters in the sum of $2,900.00. The Highway Commission has appealed.

For reversal the appellant contends that the court erred in refusing to strike the testimony of the landowners’ value witness, alleging that he did not use a proper basis for determining the before and after value.

The appellees’ witness who testified to the value of the property was Donald M. Eoderick, a real estate dealer in Ft. Smith, Arkansas. After having stated on direct examination his opinion as to the market value before and after the taking, Mr. Roderick was asked by counsel on cross-examination exactly how he arrived at the market value after the taking. He testified that he considered loss of land taken, replacing a fence, loss of trees, replacement of shrubs and flowers, moving the house back from the right of way line, cost for replumbing and rewiring the house after it was moved, and finally the cost for a motel or hotel for a family to stay until the workmen could get the house back in livable condition after it is moved from its present location.

All the items mentioned above, with the exception of the cost required to live in a motel, are factors to be properly considered in arriving at the before and after value. We have said that there is no set formula or pattern that must be followed in arriving at before and after value. Springfield v. Housing Authority of the City of Little Rock, 227 Ark. 1023, 304 S. W. 2d 938; Ft. Smith & Van Buren District v. Scott, 103 Ark. 405, 147 S. W. 440. Consideration may be given to every element which a purchaser, willing but not obligated to buy, would consider. Pulaski County v. Horton, 224 Ark. 864, 276 S. W. 2d 706; Little Rock Junction Ry. v. Woodruff, 49 Ark. 381, 5 S. W. 792. The profits of a business, however, cannot be considered in arriving at the value. Arkansas State Highway Commission v. Wilmans, 236 Ark. 945, 370 S. W. 2d 802 (September 30, 1963).

Certainly, all the items mentioned by Mr. Roderick, with the exception of the cost of staying at a motel, are factors to aid in determining the difference in the before and after value of the property; these figures would likely be used by a buyer to determine market value. In Arkansas State Highway Commission v. Ptak, 236 Ark. 105, 364 S. W. 2d 794, we quoted as follows from Arkansas State Highway Commission v. Speck, 230 Ark. 712, 324 S. W. 2d 796; “Evidence of the cost of improvements for restoration purposes and relocation costs is proper.” But, we also said: “Let it be borne in mind that these prospective expenditures are not the measure of damages, but are only an aid in determining the difference in tbe before and after value of the property.”

The testimony-as to the cost of staying in a motel while the house is put back in livable condition cannot be considered as a factor in determining market value; but in making his objection to Mr. Roderick’s testimony, counsel asked that all Roderick’s testimony be stricken, and did not specifically point out that the cost of hotel or motel accommodations should not be considered in determining market value. The court was correct in overruling the motion to strike all of the testimony of Mr. Roderick. As recently as September 30, 1963, in Arkansas State Highway Commission v. Wilmans, supra, we said that a motion to exclude all the testimony of a witness is properly overruled if a part of it is competent.

Appellant makes the same objection to Mr. Roderick’s testimony with respect to the Carpenter property, but what we have said regarding the witness’ testimony about the Slagle land applies in a like manner to the damages sustained by the Carpenters.

Affirmed.

Paul Ward, Associate Justice

(dissenting). For the • many reasons hereafter set out, I am unable to' agree with the majority opinion.

A quick glance at the wide divergency of estimates made by different parties in this litigation emphasizes the need for strict compliance with established rules in condemnation cases wherein the taxpayers pay the bills. Appellees, Slagle, asked for $10,000 damage. for the right-of-way taken by the state; their own expert witness valued the property at only $12,840 before the taking; the state’s appraisers estimated their damage at $850; and the jury gave them $3,163. There is a well established rule in this state applicable to a case of this kind. In my.opinion this rule was not followed in this case.

The Rule. Where there is a partial taking of a landowner’s real property (as here) the following rule applies : (a) Determines the market value of the property before the taking; (b) determine the market value of the property after the taking, and (c) the difference is the amount of damages to which the owner is entitled.

Authority for the Rule. In the early case of St. Louis, Arkansas and Texas Railroad v. Anderson, (1882), 39 Ark. 167, the rule was clearly stated to be:

“The true measure of damages is the difference between the market value of the whole tract before the taking and the market value of what remains to him after such taking ...”

To my knowledge this case has never been overruled or modified but it has been cited with approval in at least eleven of this Court’s decisions, and the rule has been restated in many other decisions of this Court.

Not only has said rule been recognized and adhered to by this Court during all these years but it is recognized by all texts examined by me. Orgel, Valuation Under Eminent Domain, (1st ed. 1936), sets out three formulas —each adopted by different courts. At page 158 he defines the third formula: “Difference between the Pair Market Value of the Property before and after the Taking”. The same formula is reiterated in Orgel’s 2d ed. at page 236. The same rule is also recognized by Nichols, Eminent Domain, (3rd ed. 1962) Vol. 4 at page 509, and Jahr, Eminent Domain, ,(1957) at page 136. All these authorities recognize and point out that some states adopt a second method which is described as “Value of the Part Taken Plus Damages to the Remainder ’ ’. Our Court, of course has not heretofore seen fit to adopt this second formula.

Is there a difference between the two methods described above? It hardly seems necessary to answer this question. If there is no difference then it would appear that the above mentioned authorities and also this Court have been wasting their time. There are, of course, several differences, but it will suffice to point out only one. States that do not allow a reduction of special benefits accruing to the landowner from his damages suffered could well afford, perhaps, to adopt the second formula— value of land taken plus damages to the rest of the land. Arkansas, however, is not such a state. See: Ark. State Highway Comm. v. Snowden, 233 Ark. 565, 345 S. W. 2d 917, and cases cited therein. An example of two from the case under consideration will illustrate the point in issue: The expert witness gave as one element of damages that appellant would have to rebuild a fence which was torn down. It is possible that the fence was not an asset and that its absence did not detract from the market value of the farm. The same thing could also be said about the trees, or most any other item.

Did the Court apply the Rule? I take it that the majority admit the before and after rule was the applicable rule in this case, and we must assume they agree there is a difference between the rule and the second rule mentioned above. The only question then is, was the rule, in effect, applied in regard to the expert testimony given by Roderick. I agree that, in form, the rule was followed in the testimony given by Roderick on direct examination. He stated that, in his opinion, the property was worth $12,840 before the taking and $9,640 after the taking. From there on it was just a matter of arithmetic to determine that Slagles should receive $3,200 as damages. However, on cross-examination, Roderick, in my opinion, showed that he followed (to the letter) the second rule and not the before and after rule. The reason there can be no doubt in my mind is that the several items of damages (proper in the second rule) amounted exactly to $3,200. After detailing the several items, he said: “I have it all figured out as to costs which does total $3,200.”

One reason for writing this dissent is the hope that it might in some way help prevent confusing the rule which we have sanctioned so many times with a rule which we have never sanctioned. I think the trial attorney and judges are entitled to that for future guidance.

The Proper Objection. I cannot at all agree with the majority in holding appellant’s objection bad because part of Roderick’s testimony was true. If the method used by Roderick in arriving at $3,200 damages is incorrect, then all the testimony goes out. When the wrong figure is subtracted from a given figure the result cannot be right.

I am not impressed with the idea that Roderick could not arrive at the fair market value of the land after the taking ($9,640) without considering all the elements of damages. He didn’t have any such aids when he arrived at the figure of $12,840—the value before the taking.


author: Jim Johnson, Associate Justice. Paul Ward, Associate Justice

text:
    Ark. State Highway Comm. v. Bowman.
    5-3029
    371 S. W. 2d 138
    Opinion delivered October 14, 1963.

      Dowell Anders, H. Clay Robinson and Don Langston, for appellant.

      Donald Poe, for appellee.
   Jim Johnson, Associate Justice.

This appeal arises from eminent domain proceedings in Scott County to condemn land for highway purposes along Highway 270 near Wye City. On July 21, 1961, appellant Arkansas. State Highway Commission, filed a complaint and declaration of taking and deposited the sum of $400.00 for Tract 42 belonging to appellees Tyrus and Deen Bowman, $1,250.00 for Tract 44 (appellees W. G-. and Nova Sullivan), $350.00 for Tract 46 (appellees Garrett and Edna Shaddon), and $450.00 for Tract 47 (appellee R. D. Rose). The Scott Circuit Court entered an order giving appellant possession of the property as of July 21, 1961. On May 11, 1962, at pre-trial conference the court combined the above tracts for trial. Trial was held on June 13, 1962. After deliberation, the jury found that just compensation for Tract 42 was $2,500.00, for Tract 44 was $3,000.00, for Tract 46 was $1,750.00, and for Tract 47 was $1,300.00. From judgments on the verdicts, appellant has appealed.

This is a companion case to Arkansas State Highway Commission v. Carpenter et al., also handed down today. These cases were tried and appealed in the same week, they involved the same highway, same attorneys and many of the same witnesses. The points relied upon for reversal are substantially the same, as are the briefs. The records, of course, are not identical, and we must therefore determine this case on its own merits.

Appellant contends that the trial court committed reversible error in overruling the Highway Commission’s motion to strike the testimony of the landowner’s value witness, Donald Roderick, because the witness did not determine the just compensation due for the property on a before and after basis.

The witness testified on direct examination as to his opinion of just compensation for the partial taking of appellees’ property on a before and after basis. However, on cross-examination appellant’s attorney elicited the following testimony from the witness:

“Q. Now, Don, let me ask you this: You placed a value of $17,500 on the property before the taking. You have enumerated these elements of damage and have subtracted them from the $17,500 to get your after figure, is that correct?

A. Well, I have taken various things into consideration in doing that.

Q. But is that essentially what you have done?

A. No sir.

Q. How have you arrived at this figure then?

A. The element of damage, you mean?

Q. The after figure, what the property is worth after the taking?

A. I have had to estimate in various ways—I don’t know some of the things.

Q. Now you have enumerated these items that you’ve given me here. Have you subtracted those items from the before figure to get your after figure?

A. Yes sir.”

This testimony, standing alone, without considering it together with all of the witness’ testimony, does appear to be somewhat contradictory. However, in order to avoid any confusion, the trial court immediately gave the following admonition to the jury:

“Now, Ladies and Gentlemen, in so far as any .of these items like replacement of fence—these various specific items of damage which Mr. Roderick has enumerated, you understand, as I told you in the beginning, they in themselves—not any one of them or the sum total constitutes the measure of the just compensation to be arrived at in this case and they are only admitted to you as an aid in determining what the difference before and after would be and you are not to consider them at all unless you find that they are reasonable and where applicable are necessary and are to be considered under all the circumstances in the case. Now I want to caution you to base your verdict solely upon what you find the difference to be between the value—the market value of the land before the taking and the market value after the taking.”

Appellant forcefully contends that the witness’ testimony indicates that he determined the before value, ■estimated the damage to the property and subtracted that figure from the before value to arrive at his after value. Appellant’s contention is not substantiated by the record. Recapitulation of the witness’ damage figures compared with his before and after values, contained in appellant’s brief, clearly show that there is no such close correlation between the figures as would justify such a conclusion.

Appellant moved to strike all the testimony of this witness. This court has long held a motion to exclude all of the testimony of a witness was properly overruled if a part of it was competent. Taylor v. McClintock, 87 Ark. 243, 112 S. W. 405; St. Louis, I. M. & S. R. Co. v. Taylor, 87 Ark. 331, 112 S. W. 745; Nichols v. State, 92 Ark. 421, 122 S. W. 1003. Without detailing the testimony further, appellant admitted the qualification' of appellees’ expert, who in the past has done appraisal work for the State Highway Department. Suffice it to say, some of this witness’ testimony was competent. This being true, we find no error in the trial court’s ruling.

Appellant further contends that the jury verdict on the Rose property, Tract 47, was excessive and beyond its power. Appellee Rose did not testify in his own behalf as to the value of his property. Appellees’ value witness testified that the damage' sustained by the Rose property was $1;000.00, whereas appellant’s witnesses assessed the damages at $650.00 and $400.00. The verdict is $300.00 above any testimony, and is therefore excessive on its face as there is no evidence to support the verdict in that amount. See Dodd & Co. v. Read, 81 Ark. 13, 98 S. W. 703; Southern National Ins. Co. v. Williams, 224 Ark. 938, 277 S. W. 2d 487.

'• The judgments in favor of appellees Bowman, Sullivan and Shaddon are affirmed. The judgment in favor of appellee Rose is affirmed upon condition that a remittitur in the sum of $300.00 be entered within seventeen calendar days; otherwise the judgment will be reversed and the cause remanded for a new trial.

Ward, J., concurs.

Paul Ward, Associate Justice

(concurring). I am not dissenting in this case as I did in the companion case, Arkansas State Highway Commission v. Joella Carpenter, et al. (No. 3028), because the factual situations in the two cases are not the same.

I am concurring for the following reasons. First, conceding that the before and after rule was followed, it is immaterial that some of the elements of damages were incorrect. Second, if the before and after rule was not applied, then none of the elements of damages was pertinent and the rule announced in Taylor v. McClintock has no application.


author: Frank Holt, Associate Justice.

text:
    Wheeler, Adm'x v. Delco Ben.
    5-3060
    371 S. W. 2d 130
    Opinion delivered October 14, 1963.

      Russell d> Hurley, for appellant.

      Wright, Lindsey, Jennings, Lester & Shults, for appellee.
   Frank Holt, Associate Justice.

The appellant, Mrs. C. C: Wheeler, brought this action individually and as administratrix of her husband’s estate to recover damages resulting from his death in a traffic mishap. The issues were submitted to a jury which resolved them in favor of appellant and assessed damages at $2,500.00. From this judgment appellant brings this appeal.

For reversal appellant relies on three points. The first two points we discuss together since they relate to a hypothetical question. Appellant contends that the hypothetical question was improper in that it was not based on facts then nor later in evidence and not within the knowledge of the physician.

While appellee’s counsel was propounding the hypothetical question appellant’s counsel objected, stating: “Mr. Lindsey says there is no evidence of contusion to the chest area and I beg to differ there is evidence.” Thereupon appellee’s counsel stated: “Let me rephrase that and eliminate that . Since no objection was made to the hypothetical question when rephrased, we find no merit in this contention. We cannot consider an objection to a hypothetical question when raised for the first time on appeal. Southwestern Gas & Electric Co. v. Halter, 200 Ark. 244, 138 S. W. 2d 793; Chapman v. Finkbeiner, Inc., 230 Ark. 655, 324 S. W. 2d 348. A review of the testimony in this case convinces us that it fairly supports the content of the hypothetical question. Therefore, a renewal of the objection to the hypothetical question would be of no avail to the appellant in this case. Also, the remedy was available upon the cross-examination to supply any missing facts considered essential in the question. Shaver v. Parsons Feed & Farm Supply, Inc., 230 Ark. 357, 322 S. W. 2d 690.

The appellant next contends that it was error for the Court to permit the introduction of two photographs into evidence without the proper foundation being laid. One of these photographs purported to depict the damage to the front end of the vehicle driven by appellee and the other photograph represented the rear end of decedent’s vehicle following the collision. The appellant objects to the validity of these photographs because the witness did not take the pictures nor was he present when they were taken. He testified, however, that he observed the condition of the vehicle following the accident and that the pictures fairly represented the condition and damages following the accident. The driver of the third vehicle involved in the accident also verified the accuracy of the photograph of the damages to decedent’s vehicle. The test of whether photographs are admissible into evidence depends upon the fairness and correctness of the portrayal of the subject. Lee v. Crittenden County, 216 Ark. 480, 226 S. W. 2d 79; Ark. State Highway Comm. v. Webster, 236 Ark. 491, 367 S. W. 2d 233. We think the test was met in this ease. Further, the admissibility of photographs addresses itself to the sound discretion of the Trial Judge. We do not disturb his ruling unless there is an abuse of discretion. McGeorge Contracting Company v. Mizell, 216 Ark. 509, 226 S. W. 2d 566. Certainly there was no abuse of discretion in the case at bar.

We must affirm the judgment in this case for the further reason that the alleged errors were rendered harmless by the verdict of the jury. In Thomas Cox & Sons Machinery Company v. Forshee, 96 Ark. 156, 131 S. W. 454, we said: £ ‘ * * * It is the settled rule of this Court that a reversal will not be granted for errors which are not prejudicial to the rights of the complaining party.” Also, see Browne-Brun Wholesale Gro. Co. v. Hinton, 179 Ark. 831, 18 S. W. 2d 369; Sutton v. Nowlin & Sons Company, 232 Ark. 223, 335 S. W. 2d 292. In the case at bar the purpose of the hypothetical question was to establish that death resulted from natural causes rather than the accident. The pictures were also offered to bolster this contention. Since tbe jury rendered a verdict in favor of appellant on tbe issues on which recovery was sought, the errors argued by the appellant were eliminated and rendered harmless by its verdict.

Affirmed.


author: Carleton Harris, Chief Justice.

text:
    Pellerin Laundry Mach. Sales Co. v. Cheney, Commr.
    5-3053
    371 S. W. 2d 524
    Opinion delivered October 21, 1963.

      Rose, Meek, House, Barron, Nash & Williamson, for appellant.

      Lyle Williams and Henry Ginger, for appellee.
   Carleton Harris, Chief Justice.

The question in this litigation is whether laundry and dry cleaning machinery and equipment are manufacturing or processing equipment and machinery within the meaning of the Arkansas Compensating (Use) Tax Act as set out in Ark. Stat. Ann. § 84-3106(d) (Eepl. I960) as amended by Act 140 of 1961 [Ark. Stat. Ann. § 84-3106 (d) (Suppl. 1961)].

Appellant, Pellerin Laundry Machinery Sales Company, Inc., of Louisiana, contends that the heavy machinery it sold to Arkansas customers prior to April 1, 1961, is exempt under the following language from Subsection (d) of Section 84-3106:

“There are hereby specifically exempted from the taxes levied in this act: * * * Tangible personal property used by manufacturers or processors or distributors, including ginners of cotton, and including the artificial drying of rice, for further processing, compounding or manufacturing; * ® *”

The contention is then made that sales subsequent to April 1, 1961, are exempt from the tax under the following exemptions sot out in Act 140 of 1961:

“(D) MANUFACTURERS AND PROCESSORS. Tangible personal property in the form of raw materials or component parts for further processing, manufacturing, or assembling when such goods, Avares and merchandise goes into and becomes a recognizable, integral or component part of a manufactured or processed part of a manufactured or processed article or end-product for sale either Avithin or AAÚthout the State of Arkansas.

“Manufacturing or processing machinery, replacement parts, materials, and supplies used directly in the manufacturing or processing operation provided; such materials, machinery, supplies, and equipment are not available within this State by reason of not being manufactured or produced Avithin Arkansas; or are not available from instate sellers’ or suppliers’ stocks in trade within this State. It is the intent of this subsection to exempt only such equipment, machinery, materials, or supplies that constitute the primary facility engaged in the direct production, processing or manufacturing of articles of commerce at industrial and processing plants in Arkansas and AAdiich are not aAmilable from the seller’s regularly maintained stock in this State.

“The terms ‘manufacturing’ and ‘processing’ as used herein, refer to and include those operations commonly understood Avithin their ordinary meaning and shall include mining, quarrying, refining, and the production of natural resources, cotton ginning, and rice drying. ’ ’

Willis Pellerin of NeAV Orleans, President of the aforementioned company, which has its principal place of business in NeAV Orleans, testified that his company had been in the business of selling laundry machinery since around the first of May, 1956. 34An exhibit was offered depicting the washing machines, which are not suitable for home use, but are designed for commercial type laundry operations. The machines weigh from 567 to 1,450 pounds. Mr. Pellerin described the advantages of the machines and stated that they were suitable for chemical procedures that would produce sterile washing. He described bacteriological tests made and stated that “■washing is more than simply rubbing clothes together. It is a processing procedure that has the objective of going beyond cleaning clothes only.” Pictures of other machines were exhibited which the witness stated could be used for several purposes in addition to the laundry business. Though he mentioned some other uses for the various machines, all are primarily used in laundry establishments, and appellant in this argument (that the equipment is exempt from the payment of the tax) makes no effort to distinguish, or separate, those machines used solely for laundry purposes, and those occasionally sold for other use. The contention that these machines are “processing” machinery is set forth in Mr. Pellerin’s testimony as follows:

“The process is actually one of taking a clean material-soiled material or shirt and making it clean through the process of washing, drying and ironing. The ironing is in fact a re-shaping of the garment to return it to the original condition that it was when it was completed by the manufacturer. * “ *

“The principle of ironing is nothing more than shaping, a reshaping. Remember when you wash material you lose even the fibers, and the fibers go in all directions reflecting light in every direction. You get a very rough looking appearance. When you put the damp garment on a pressing machine, the first thing that occurs is stringing and in the process of restringing that garment, the fibers are all laid in one direction giving light reflection that gives you the flat finish that you like on your collars and cuffs for example. * * *”

Pellerin stated, “You get a much better, closer, tighter finish with a garment that has been processed commercially, a more acceptable, a more desirable product.” He testified that the principal customers of his company were “laundries, followed by the dry cleaners, followed by motels and hotels, institutions, and linen supply and diaper plants, etc.”

After the Commissioner of Revenues, following a hearing, held that the Pellerin Company was not entitled to the exemption claimed, appellant instituted suit in the Chancery Court, contending that all equipment it sold to Arkansas consumers was manufacturing or processing machinery and equipment, and that such machinery was exempt from the tax here in question. Prom an adverse decree by that court, appellant brings this appeal.

Appellant’s argument seems to be that the process of laundering a dirty shirt is actually a re-manufacturing process. In its brief, the company argues that it is not logical for the commissioner to exempt from the tax, equipment which is purchased for use in a shirt manufacturing plant, but refuse such exemption for machinery which is purchased by a laundry “to re-manufacture a soiled and wrinkled shirt into its former clean and wearable shape.”

Appellant states that “the laundry and dry cleaning plant transforms one form of garment, not ordinarily usable by the ordinary customer, into a clean, correctly shaped garment which can be worn and used by the ordinary customer.” Since the soiled or dirty garment is given “new form,” appellant contends that the reshaped appearance is the result of a manufacturing operation. We completely disagree. In the first place, in determining whether a particular operation constitutes manufacturing or processing within the terms of an exemption statute, the courts of various jurisdictions have tended to follow the popular meaning of the words in question, and we also follow this rule. See Morley v. E. E. Barber Construction Company, 220 Ark. 485, 248 S. W. 2d 689 (1952). Neither do the three other Arkansas cases on the subject afford appellant’s argument any support. Certainly, the popular conception of manufacturing or processing does not come to mind when a shirt is laundered or a suit is cleaned. Eather, we view the manufacturer as one who produces or fabricates the shirt, or suit of clothes, such as the makers of Arrow shirts, or the Hart, Schaffner and Marx Company. These companies, and other clothing manufacturing concerns, sell a product; the laundry and dry cleaning establishment sells a service.

Appellant emphasizes the word, “processing,” but in interpreting the pertinent statutes, we do not consider “manufacturing” and “processing” as two distinct operations. It will he noted in reading a portion of the statute that the terms are defined together, and reference is made to the ordinary meaning of the words. From the statute:

“The terms ‘manufacturing’ and ‘processing’ as used herein, refer to and include those operations commouly understood within their ordinary meaning and shall include mining, quarrying, refining, and the production of natural resources, cotton ginning, and rice drying. ’ ’

As stated in Scurlock, Comm. of Rev. v. Henderson, 223 Ark. 727, 268 S. W. 2d 619,

“ ‘Considering the meaning of the word “manufacturing” in connection with our consideration of the meaning of “processing,” it must be plain that the word “processing” has reference only to' some stage or process of manufacturing. ” * ”

In fact, this court held as far back as 1914, in State ex rel. v. Frank, 114 Ark. 47, 169 S. W. 333, that a laundry was not a manufacturing establishment. While the question in that litigation did not relate to tax exemptions, the court did have occasion to state whether a laundry was a manufacturing concern. In an opinion by the late beloved Justice Prank Smith, it was said:

“The question has several times been before the courts of various States as to whether a laundry was a manufacturing establishment or not, and so far as we are advised it has been uniformly held that it is not. In the case of Downing v. Lewis, et al., 76 N. W. 900, 56 Neb. 386, it was contended the sale of a laundry and an agreement entered into between the parties with reference thereto violated the anti-trust law of that State which prohibited any combinations or agreements where persons are engaged in the manufacture or sale of any article of commerce or consumption, or for any persons so engaged to enter into any combination or agreement relating to the price of any article or product of such manufacture, and the court there decided that a laundry was not a manufacturing establishment, and in so deciding that question it was there said: ‘It seems perfectly plain that a laundry, the business of which is to wash and iron linen, and other articles of wearing apparel and domestic use, which have become soiled in the service for which they were fabricated, is not a manufacturing establishment, within the meaning of the section quoted. In the common understanding, the function of a laundry is to make clothes clean, rather than to make clean clothes. ’

“In Commomvealth v. Keystone Laundry Co., 52 Atl. 326, where a law of the State of Pennsylvania which exempted from taxation so much of the capital stock of a manufacturing corporation as was invested in the carrying on of manufacturing was under construction, a laundry company claimed the exemption of that act. It was held that the laundry company was not a manufacturing company, even though it manufactured soaps and dyes as incidental to its business; the court there used the following language: ‘Its principal business, as properly stated by the court below, is washing and ironing, and in carrying on the business it needs soaps and dyes, and even if it does manufacture these two articles for its own use, instead of buying them, such manufacture does not make the “washing and ironing” concern a manufacturing plant and business as defined by statute, lexicon or judicial utterance.’ ”

In Muir v. Samuel (Ky.), 62 S. W. 481, the Kentucky Court of Appeals said:

“The validity of this claim depends upon the question as to whether the laundry is a manufacturing establishment under the statute. The only business of a laundry is to transform soiled into clean linen. It is true that this is done largely by means of machinery, and requires the use of an engine and boilers, and other appliances ordinarily used in manufacturing establishments; but, after all, nothing new is produced. ’ ’

It follows, from what has been said, that we find no merit in appellant’s contention that laundry and dry cleaning machinery are manufacturing or processing equipment within the meaning of the Arkansas statutes herein discussed.

Affirmed.

       Act 487 of 1949.

       Pellerin, Inc., manufactures nothing, but purchases such equipment for resale to industrial type plants. ■ Pellerin Milnor Corporation manufactures industrial type washing machines and is one of the suppliers of Pellerin Laundry. This type of machinery is not manufactured or sold in Arkansas.

       Among others, extraction machines, and ironers, the latter weighing as much as 32,000 pounds, and selling for $26,000 to $30,000.

       For instance, the witness mentioned that fifteen pressing machines are being used at the Jack Winters Manufacturing Co. in Marianna and ten at the garment plant in Lepanto. Also, Pellerin stated that extraction machines can be used by potato chip manufacturers for the purpose of removing “surplus water prior to frying after the potatoes have been cut.” Further, according to the witness, extractors have been sold to the sugar industry for the purpose of refining sugar. No Arkansas sales for the last two purposes were mentioned.

       On January 23,1962, ¿n agreement was entered into to the effect that all assessments, as well as compensating (use) taxes on future sales would be paid under protest, and all of said sums would be refunded if Pellerin’s claim of an exemption should be sustained by the court.

       In the same case, we held that a tax exemption must be strictly construed “and to doubt is to deny exemption.”

         These cases are Morley v. Brown & Root, Inc., 219 Ark. 82, 239 S. W. 2d 1012 (1951) (relating to certain equipment which was purchased for the construction of Bull Shoals Dam, such as locomotives, tracks, conveyors, cranes, bull dozers, etc.) ; Teague v. Scurlock, 223 Ark. 271, 265 S. W. 2d 528 (1954), (wherein the court declined to hold that commercial poultry feed was used by growers in processing or manufacturing broilers); Scurlock v. Henderson, 223 Ark. 727, 268 S. W. 2d 619 (1954), (wherein it was argued that ginning machinery was’ used in the processing or manufacturing of cotton). The court held that cotton becomes a commercial commodity when it is ginned and is not ready for processing or manufacturing until after the ginning process.


author: Ed. F. McFaddin, Associate Justice.

text:
    Miller v. Miller.
    5-3036
    371 S. W. 2d 511
    Opinion delivered October 21, 1963.

      Spitzberg, Bonner, Mitchell <£ Hays, by Steel Hays and Allan W. Horne, for appellant.

      Lookadoo, Gooch & Lookadoo, by J. Hugh Lookadoo and Agnes F. Ashby, for appellee.
   Ed. F. McFaddin, Associate Justice.

This litigation involves (a) the will of Sam Miller; and (b) his marital status. Sam Miller departed this life, a citizen and resident of Clark County, Arkansas, in 1958, at the age of 78 years. In due time his will was admitted to probate by the Clark Probate Court, and his son, Marvin Miller, named as executor, proceeded to act under the will. Within the period permitted by law (Ark. Stat. Ann. § 62-2114 [1947]) the appellants objected to the will and questioned the marital status of the deceased, Sam Miller. The probate court ruled against the appellants on all points; and this appeal ensued.

Until 1919 or 1920, Sam Miller lived in Kentucky, and was married to the appellant, Dinah Miller in 1901. Three children are the issue of that marriage, being the appellants herein, Casper Miller, Frances Miller Speak, and Mary Miller Barraco. In 1919 or 1920 Sam Miller left his wife and three children in Kentucky and moved to Arkansas; and on July 11, 1920, he married Ethel Dodd in Garland County, Arkansas; and four children are the issue of that marriage, one of whom is the appellee, Marvin Miller, executor of the will of the deceased, Sam Miller. Mrs. Ethel Dodd Miller departed this life a few years ago; and Mr. Miller did not thereafter remarry. From 1922 until his death in 1958 Sam Miller lived in Gurdon, Clark County, Arkansas. His will was executed October 23, 1958; and he died on November 28, 1958. We proceed to consider the two issues on this appeal.

I. The Validity of the Will of 8am Miller. In the will Mr. Miller left his entire estate to his four children who were the issue of his second marriage. He named his Kentucky children in the will by using this language:

“I am not unmindful of the fact that I have three children by a previous marriage, namely Casper Miller, Frances Miller, who is now married to someone I do not know, and Mary Miller, who is also married to someone I do not know. I direct that they shall have nothing from my estate.”

The Kentucky children do not claim as pretermitted heirs: rather, their claim is based on the assertion that Mr. Miller was under the complete influence and domination of his son, Marvin Miller, and that the will was the result of duress exercised by Marvin Miller on his father. The evidence entirely fails to substantiate such attack on the validity of the will. It was shown that Mr. Miller had executed a will in 1957 in which he did not name the Kentucky children; that when he showed this will to his son, Marvin Miller, to discuss with him the duties of an executor, Marvin Miller pointed out that the Kentucky children, not being named in the 1957 will, would take as pretermitted heirs. Mr. Miller thereupon contacted his attorney and the 1958 will was prepared. Mr. Miller took the 1958 will from his attorney and went, alone and unassisted, to the First National Bank in Gurdon; and there, in the Bank, called on Mr. Willard Tarpley and Mrs. Joe Davis to attest his will. These parties called as witnesses testified that Mr. Miller signed the will in their presence, and asked them to he attesting witnesses, and they signed the will as such witnesses in his presence and in the presence of each other. Each witness testified that Mr. Miller knew what he was doing and that he was not accompanied by any person. There is no evidence of any duress exerted by Marvin Miller on Mr. Sam Miller: the positive evidence is entirely to the contrary. The Probate Court was correct in sustaining the validity of the will of Mr. Miller.

II. The Denver Claim of Mrs. Dinah Miller. Mrs. Dinah Miller claimed that she and Sam Miller were lawfully married in Kentucky in 1901; that they were never legally divorced; and that she was entitled to dower. It was stipulated that Sam Miller and Dinah Miller were married in Rockcastle County, Kentucky, on April 26, 1901; that there was no record of any divorce proceedings between Sam Miller and Dinah Miller in the court records of Rockcastle, Harlan, or Bell County, Kentucky, or in the court records of Garland or Clark County, Arkansas, or in Windsor, Ontario, Canada. Mrs. Dinah Miller testified that she and Sam Miller were lawfully married in Kentucky; that they lived together as husband and wife for nineteen years and had three children (being the Kentucky children previously named); that they all the time lived in the State of Kentucky; that in 1920 Sam Miller went to Hot Springs, Arkansas, for treatment of an illness and remained there about a month; that when he returned to Kentucky the marital relationship was resumed; that he stayed at home about a month; that they had a general store and a farm of about 112 acres; that she joined with Sam Miller in a deed and other instrument in disposing of these properties ; that he left and deserted her in 1920 and never came back; that she remained in Kentucky until 1923; that he never contributed anything to her support after 1920; and that she never received any notice of any kind that Sam Miller had instituted any divorce proceedings against her in any place. Mrs. Dinah Miller was corroborated by some of the other parties as to the fact that Sam Miller left in 1920, and was also corroborated on some other points.

The big question in this case is whether the appellant, Mrs. Dinah Miller, has offered sufficient proof to overcome the presumption of the validity of Sam Miller’s marriage to Ethel Dodd in G-arland County, Arkansas, on July 11, 1920. The marriage certificate, with the return of the officiating minister thereon, and the recording by the County Clerk, was duly introduced in evidence. TTith the marriage to Ethel Dodd in 1920 being established, there is a presumption that it was a valid marriage, and the burden was and is on Mrs. Dinah Miller to prove that marriage to be void if Mrs. Dinah Miller is to receive any dower interest in the estate of Sam Miller. She attempted to prove the invalidity of the 1920 marriage to Ethel Dodd by proving (a) her own valid marriage to Sam Miller in Kentucky in 1901; and (b) the complete negation of any divorce granted Sam Miller from her or to her from him. The Trial Court held that Mrs. Dinah Miller had failed to offer sufficient proof to overcome the presumption of the validity of the second marriage; and the correctness of that holding is the issue on this appeal.

TVe have several cases bearing on the question presented, some of which are: Estes v. Merrill, 121 Ark. 361, 181 S. W. 136; Lathan v. Lathan, 175 Ark. 1037, 1 S. W. 2d 67; Spears v. Spears, 178 Ark. 720, 12 S. W. 2d 875; Gray v. Gray, 199 Ark. 152, 133 S. W. 2d 874; and Shaw v. Brewer, 234 Ark. 898, 356 S. W. 2d 17. Throughout all of our cases the rule is reiterated (as stated in Gray v. Gray, supra) :

“The law is well settled that, where a second marriage is established in form according to law, a presumption arises in favor of its validity as against a former marriage, even though the husband or wife (as the case may be) of the former marriage is living at the time the second marriage is brought into question. It has been said by this court that the presumption of validity attending the second marriage is not overcome by the presumption of law in favor of the continuance of the first marital relation, coupled with the testimony of the former spouse that he or she has not obtained a divorce.”

In Lathan v. Lathan, supra, Justice McHaney reviewed our earlier cases and showed the strength of the rule by this quotation from Estes v. Merrill, supra-.

‘So strong is the presumption and the law is so positive in requiring the party who asserts the illegality of a marriage to take the burden of proving it, that such requirement obtains, even though it involves the proving of a negative, and although it is shown that one of the parties had contracted a previous marriage, and the existence of the wife or husband of the former marriage at the time of the second marriage is established by proof, it is not sufficient to overcome the presumption of the validity of the second marriage, the law presuming rather that the first marriage has been dissolved by divorce, in order to sustain the second marriage.’ ”

In Spears v. Spears, supra, Justice Mehaffy indicated how great a burden was placed on the party attacking the second marriage. There, as here, the first wife claimed the subsequent marriages were invalid and that she had introduced sufficient proof to overcome the presumption of the validity of the subsequent marriages; and Justice Mehaffy said:

“However, the proof does not show that Spears did not obtain a divorce in some county in Florida besides the one whose records were searched; it does not show that he did not get a divorce somewhere in Tennessee in some county other than Shelby or Tipton, and the proof does not show that he did not get a divorce in some county in Arkansas. While the law requires a residence in a State for a certain length of time, it is not required that the party bringing the suit reside in the county where he brings the suit for this length of time. One might reside in Jefferson County, Arkansas, a year or more, and then establish a residence in Cleveland County, or some other county in Arkansas, where he could obtain a divorce, and then move his residence back to Pine Bluff. . . .

“We think the presumption that the marriages of Spears were innocent is also strengthened by the conduct of appellee and her people. . . . Her conduct, as well as the conduct of her people, is a very strong circumstance tending to show that she had no claim on Spears, and it supports the presumption that Spears’ conduct was not unlawful, but that he had obtained a divorce somewhere, and that his marriages in Pine Bluff were lawful. ’ ’

Applying the rule of the foregoing cases to the case at bar leads us to the conclusion that the Chancery decree was correct. Sam Miller left Kentucky in 1919 or 1920. His mother continued to live with Mrs. Dinah Miller for a short time. Later, in about 1922 or 1923, Sam Miller’s mother moved from Kentucky to G-urdon, Arkansas, and lived there with Sam Miller until her death several years later; and her body was returned to Kentucky for burial. It was stipulated that Mrs. Dinah Miller knew of the whereabouts of Sam Miller and his family since 1922; and it was further stipulated that the character, veracity, and integrity of Sam Miller was good. In 1944 some of his Kentucky children came to G-urdon, Arkansas, to visit him, and he subsequently corresponded with them. They knew of his marriage to Ethel Dodd Miller, and met and knew some of the children of that marriage. Yet the record fails to show that Mrs. Dinah Miller ever made any claim on Sam Miller in any way from the so-called desertion in 1920 until after his death. From 1920 to 1958—for 38 years—Sam Miller claimed he was legally married to Ethel Dodd Miller, and during all those 38 years neither Mrs. Dinah Miller, nor anyone for her, saw fit to question such marriage. Mrs. Dinah Miller had signed a deed or other instrument with Sam Miller in 1920 disposing of the lands in Kentucky; but no copy of that instrument was introduced by her to show the capacity in which she signed; that is, as wife or divorced wife.

It was stipulated that the court records in certain of the counties in Kentucky, as previously named, showed no divorce proceedings between Sam Miller and Dinah Miller; but that stipulation did not negative the possibility of divorce in any of the other counties in Kentucky. In Johnson v. Johnson, 12 Bush 485 (1877), and in Tudor v. Tudor, 101 Ky. 530 (1897), the Supreme Court of Kentucky held that the defendant in an action for divorce, by failing to plead or object to the jurisdiction on account of the suit not being in the county of the residence of the female defendant, waives the jurisdiction of venue, and the court will have complete jurisdiction to hear and determine the case on its merits. One or the other of these early Kentucky cases has been cited with approval in many subsequent Kentucky cases, some of which are: Gorin v. Gorin (1942), 292 Ky. 562, 167 S. W. 2d 52; Smith v. Smith (Ky. 1951), 242 S. W. 2d 860; and Jones v. Jones (Ky. 1959), 320 S. W. 2d 124. We mention this to show that the mere fact that no divorce proceedings were in three of the counties in Kentucky did not negative in any way the possibility of divorce proceedings in other counties in Kentucky. Of course, any divorce granted would have to be a valid divorce Orsburn v. Graves, 213 Ark. 727, 210 S. W. 2d 496; but if Sam Miller and Mrs. Dinah Miller had a divorce proceeding in any county in Kentucky and she did not raise any question of jurisdiction or venue, then the divorce would be valid. The burden resting on Mrs. Dinah Miller to show the entire absence of any legal divorce was not discharged by the stipulations and proof in this case.

It would unduly prolong this opinion to further detail the evidence. We conclude that the Chancery decree was correct and it is in all things affirmed.

       We will sometimes hereinafter refer to the appellants, who are children of Mrs. Dinah Miller, as “the Kentucky children.”

       Our cases are in accordance with the holdings generally. See 35 Am. Jur. p. 322, “Marriage” § 216; and see annotation, “Presumption as to validity of second marriage,” in 14 A.L.R. 2d p. 7.


text:
    Brock v. State.
    5087
    371 S. W. 2d 539
    Opinion delivered October 21, 1963.

      Loive, Moore & Webber, for appellant.

      Bruce Bennett, Attorney General, by Jack L. Lessenberry, Asst. Atty. General, for appellee.
   George Bose Smith, J.

This is an appeal from a judgment upon a verdict finding the appellant guilty of second degree murder and fixing his punishment at imprisonment for eighteen years. Counsel for the accused present a number of contentions for reversal.

Audie Brock, the appellant, and John Morgan O’Neal, Jr., the deceased, lived about half a mile apart on the same road. On September 5, 1962, Brock and a helper were attempting to clean out a culvert in front of O’Neal’s property. When a dispute arose about the disposal of the trash Brock went home and returned with a loaded shotgun. Upon a renewal of the argument Brock shot and killed O’Neal while the latter was standing in his front door. O’Neal also had a weapon, but whether Brock acted in self-defense was a disputed question of fact for the jury.

According to the testimony Brock fired one time only. There was some proof, however, that as many as a dozen buckshot were found in O’Neal’s body and in the door facing. One of the jurors, W. C. Storey, worked in a hardware store. Counsel for the accused, in a supplemental motion for a new trial, offered to prove by Storey himself that during a recess in the trial Storey had obtained and taken to the jury room a printed card indicating that shotgun shells of a certain brand contain only nine buckshot. It is argued that the jury may have concluded, to Brock’s prejudice, that Brock testified falsely when he said he fired only once.

The application for a new trial was properly denied, because the only testimony offered—that of Storey—was incompetent. In a criminal case a juror cannot be examined to establish a ground for a new trial except to show that the verdict was reached by lot. Ark. Stat. Ann. § 43-2204 (1947); Post v. State, 182 Ark. 66, 30 S. W. 2d 838. The policy of the statute, which affords the jurors the protection of secrecy in their deliberations and also gives stability to verdicts, needs no defense.

Counsel seek to avoid the effect of the statute by urging us to follow certain cases from other' jurisdictions, holding that it is permissible to impeach a verdict by proving misconduct that occurred outside the jury room. In the first place, the cited cases were decided at common law and did not involve a prohibitory statute like ours. Secondly, the important point is not that Storey obtained the card at his place of business but that the matter was discussed by the jurors. Hence whatever misconduct there may have been occurred in the jury room; so even under the cases cited Storey’s testimony was not admissible.

Both a regular panel and a special panel of veniremen had been prepared by the jury commissioners. In supplementing the regular panel the trial judge had the special list opened and selected seven of the twenty-five veniremen. These seven were not the first seven on the list; they were numbers 6, 8,10,15,17, 19, and 24. When this method of selection was later questioned by counsel for Brock the court explained that he had chosen the ones who in his opinion would most likely be available for service. Later on, when it became necessary to supplement the panel again, the court passed over the names of two men, one because he lived in a remote section of the county and the other because he was over sixty-five and had twice claimed his exemption. It is now insisted that the court’s failure to have the veniremen summoned in strict numerical order entitles the accused to a new trial.

We find no prejudicial error. The statute does not affirmatively direct that the special panel be summoned in exact numerical order. Ark. Stat. Ann. § 39-221 (Repl. 1962). In Sullivan v. State, 163 Ark. 11, 258 S. W. 643, we recognized the trial judge’s wide discretion in the matter and pointed out that he may properly avoid unnecessary delay or unnecessary expense. Hence it is often proper for the trial judge, for good cause, to pass over the name of a particular venireman. On the other hand, we do not approve the procedure, followed below, by which the trial judge selected seven veniremen without regard to numerical order and for reasons known only to the judge himself. It does not appear, however, that the accused was compelled to accept any juror who was not qualified and impartial. Inasmuch as it is not shown that Brock’s right of peremptory challenge was exhausted he is not in a position to complain of the method that was used. Rogers v. State, 133 Ark. 85, 201 S. W. 845.

The court’s instructions are attacked upon a number of grounds, but we think they correctly stated the law. The jury were properly told that if the killing had been proved beyond a reasonable doubt the burden of proving circumstances of mitigation devolved upon the accused. Hogue v. State, 194 Ark. 1089, 110 S. W. 2d 11. The case at bar is unlike Mode v. State, 231 Ark. 477, 330 S. W. 2d 88, for here the court did not require that the defense be proved by a preponderance of the evidence. The concluding portion of the court’s charge on self-defense is challenged, but its language was substantially similar to that approved in McKinney v. State, 140 Ark. 529, 215 S. W. 723. The other attacks upon the instructions are not sufficiently meritorious to require discussion.

Affirmed.


text:
    Hardy v. Ross.
    5-3068
    371 S. W. 2d 522
    Opinion delivered October 21, 1963.

      Arnold é Hamilton, for appellant.

      James A. Ross, for appellee.
   Paul Ward, Associate Justice.

This appeal, involving the probation of a will, presents a unique legal question in this state. The pertinent facts are not in dispute.

■ On September 8, 1910 Ruth Harris, eighteen years of age and unmarried, executed her will leaving the bulk of her property (real and personal) to her mother. Soon thereafter she became mentally incompetent and remained in that condition the rest of her life. Upon the death of Ruth in 1960 her will was admitted to probate over the objections of appellants who would have inherited part of the property had there been no valid will.. Appellees are the heirs of Ruth’s mother and, if the will is sustained, will get the property, amounting to some $20,000 in realty and some $40,000 in personalty.

The ground on which appellants objected to probation of the will and on which they seek a reversal is set out below.

In 1910 (when the will was executed) a woman who was under 21 years of age had no power to execute a will conveying real property. The applicable statute on that date was Ark. Stat. Ann. % 60-102 (1947)—enacted in 1835. About eleven years before Ruth Harris died the law was changed by statute to provide that “any person of sound mind eighteen years of age or older may make a will”. This statute was passed in 1949 and is now Ark. Stat. Ann. § 60-401 (Supp. 1961). It appears to be conceded by the parties (and we so hold) that if the 1835 statute governs the validity of the will this case must be reversed, but that it must be affirmed, if the 1949 statute governs.

It seems to be the contention of appellants that the statute in effect when a will is executed always governs its validity. To sustain their position appellants point out that § 60-401 (a section of Act 140 of 1949) was held not to be retroactive in the case of Adams v. Hart, 228 Ark. 687, 309 S. W. 2d 719. That opinion, where this Court-was concerned with jurisdiction of heirship, said that Act 140 is not retroactive. On the other hand appellees appear to contend that, in determining the validity of a will, the applicable statute in force when the testator dies is always controlling. In support of their position appellees quote from Wilson v. Greer, 50 Okla. 387, 151 Pac. 629, 129 ALR 864:

“A will is ambulatory during the life of its maker. It is, in effect, reiterated as his testament at each moment of his life after its execution, including the last moment, and is governed by the law existing at the time it takes effect, which is at the time of the testator’s' death.” They also quote from Wakefield, Ex’r. v. Phelps, Appt., 129 ALR 864, 37 N. H. 295, this statement:

“A will does not take effect, nor are there any rights acquired under it, until the death of the testator; and its construction and validity depend upon the law as it then stands.”

They also quote to the same effect statements found in 57 Am. Jur. Wills § 61 and 68 C. J. Wills § 252.

After careful consideration of the scant authority we have been able to find bearing on the issue here presented, we have reached the conclusion that the governing statute (the one in force when the will is executed or the one in force when the testator dies) depends upon the factual situation of each particular ease.

In reaching the above conclusion we approve the reasoning used and the result reached in the case of Hoffman v. Hoffman, et al., 26 Ala. 535 (1855). The basic facts in the cited case were: Jacob Hoffman executed his will in 1848 with two attesting witnesses when the law in effect at that time required three witnesses. Before Hoffman died the law had been changed to require only two witnesses. The Supreme Court, in holding the will valid under the law in effect at the date of death of the testator, made the following statements:

“The Legislature unquestionably have the power to prescribe rules for the execution of wills, before a right has been vested in the devisee, legatee, or heir, by the death of the testator; and it was, therefore, entirely competent for them to fix the number of witnesses which were essential to the validity of any will, whether made before or after the passage of the statute; and in this aspect, the question is one of statutory construction simply.

*

“If the statute had increased the number, and thus superadded a condition, we should then say, as the Court of King’s Bench said in relation to the statute of Car. II, that it applied only to wills made after its passage but when its object is, not to abridge, bnt to enlarge the-privileges of the testator, and to give effect to his will,, then it falls within the principle by which devises, made-in words which, by Legislative construction alone, include lands subsequently acquired, are extended to wills; made before the law took effect. ’ ’

In line with the above, the rule is well stated in 57 Am. Jur. Wills § 230:

“Since no rights in property disposed of by will vest in others prior to the death of the testator, changes in the statutory requirements in respect of the method of the execution of a will may be made applicable to the will, previously executed, of a testator living when the amendatory statute became effective, without violating constitutional provisions protecting vested rights. ’ ’

We are in complete agreement with the statement contained in the first quotation from the Hoffman case above and when applied to the facts in the case under consideration we find it unnecessary to hold (as suggested by appellants) that § 60-401 operates retrospectively to amend § 60-102. Eather, we are merely applying § 60-401 to a situation that arose only when Euth Harris died—i.e. after said, section was enacted. The above situation is one where it is proper to apply the statute in force when the testator dies.

The last quotation from the Hoffman case above refers to a situation where it would be proper to apply the statute in force when the will was executed. If a will is executed in compliance with all requirements of the statute then in effect it obviously would be unreasonable and against the public interest for such will to be invalidated by a subsequent statute. In no event should such result be sanctioned unless the subsequent statute specifically provides that all preexisting wills (made in accordance with the former statute) are void. Any other conclusion would make the validity of all existing wills subject to the whim of every convening legislature.

In conformity with what we have previously said, we conclude that Ruth Harris’ will was valid under the provisions of said % 60-401, and that the trial court correctly admitted said will to probate.

Affirmed.


author: Sam Robinson, Associate Justice.

text:
    Moss v. El Dorado Drilling Co.
    5-3070
    371 S. W. 2d 528
    Opinion delivered October 21, 1963.
    [Rehearing denied Nov. 26, 1963.]

      Brown, Compton & Preivitt, for appellant.

      Shackleford & Shackleford, for appellee.
   Sam Robinson, Associate Justice.

On November 25, 1960, appellant, Jerry Moss, while working as a roughneck (laborer in drilling oil wells) for the El Dorado Drilling Company, received an injury to his back. He was awarded workmen’s compensation benefits for loss of time to April 3, 1961. Further compensation was denied by the Workmen’s Compensation Commission on the ground that he had fully recovered from the injury sustained. Moss has appealed contending that he is still disabled. The issue is whether there is substantial evidence to sustain the finding of the Commission.. Incidentally, in its opinion the Workmen’s Compensatioii Commission states: “. . . The Full Commission finds that the Referee’s Opinion is supported by substantial evidence and should be and is hereby affirmed.” We take this occasion to point out that it is the duty of the Commission to make a finding according to a preponderance of the evidence, and not whether there is any substantial evidence to support the finding of the Referee. Chicago Mill & Lumber Co. v. Fulcher, 221 Ark. 903, 256 S. W. 2d 723; Stout Construction Co. v. Wells, 214 Ark. 741, 217 S. W. 2d 841.

Appellant is 28 years of age, is married, and has two children. From the evidence it appears that he has been working and making his own living since he was 15 years of age. He worked as a roughneck in the oil fields in 1949. In 1951 he joined the Army and served therein for four years. After his discharge from the Army in 1955, he again went to work in the oil fields and worked as a roughneck until he was injured on November 25, 1960, while working for appellee.

The occupation of roughneck is hard work; it requires heavy lifting, twisting, turning, bending, and climbing oil derricks. On the day he was injured, Moss was working up in a derrick about 55 feet from the ground. Some of the pipe used in connection with the drilling operation was standing upright within the framework of the derrick. A large pulley block struck the side of the derrick causing the pipe to. fall. Around his waist appellant had a safety belt which was secured to the derrick by a rope. The pipe fell against this safety rope giving appellant a violent jerk and threw him against the derrick. The safety rope, one end fastened to the derrick and the other to appellant’s'safety belt, was supporting the heavy pipe. Other roughnecks climbed tbe derrick, released appellant, and lowered him to the ground by means of an elevator. The accident occurred about 5:45 a.m. Although suffering pain in his back, appellant stayed on the job on the ground until the end of the shift which ended about 45 minutes later, at 6:30 a.m.

Just as soon as he got home, Moss phoned his employer and told him that he thought he should go to a doctor. The employer referred him to Dr. A. D. Cathey. He went to see the doctor about 7 o ’clock a.m. that same morning. Dr. Cathey treated him for several days, but at the end of that time appellant did not feel that he was any better. He then went to see Dr. G-. D. Murphy, who treated him until January 11, 1961, at which time Dr. Murphy wrote to the insurance carrier as follows: ‘ ‘ The above captioned individual has failed to respond to treatment given him for back injury. It is my recommendation that he see an orthopedist in Little Rock, Arkansas for consultation and evaluation. I would like to make an appointment for him to see Dr. Elvin Shuffield in Little Rock at an early date.”

Appellant was then referred to Dr. Shuffield in Little Rock. He treated appellant at various times, and finally, on March 27, Dr. Shuffield wrote to Dr. Murphy and among other things stated: “He [appellant, Moss] was discharged from the Arkansas Baptist Hospital on February 24, 1961, at which time the shape of his spine was found to be good. His muscle spasm was gone, and he had a very good range of motion. I do not think there is any doubt but what this man does have a congenital malformation of the lumbosacral spine. I think he has had a temporary period of total disability because of aggravation of a pre-existing condition. I think that has now improved to where he should be given a trial of work, to see for sure whether or not he is going to have any permanent disability. If you can get close to this man and re-assure him that he is not badly hurt, I think it will go farther toward helping him than anything I know of. He seems to have the utmost confidence in you, and what you have done for him, but I believe we are going to have a real problem in getting this man back to heavy construction work. I am of the opinion that his back is structurally weak from the congenital malformation, and his back is such that it will be easily injured, and when it is injured it will be slow in making recovery. ’ ’

Just three or four days after the date of Dr. Shuffield ’s letter recommending that appellant “be given a trial of work to see for sure whether or not he is going to have any permanent disability”, Dr. Murphy “discharged the patient as cured” on March 31, 1961. Dr. Shuffield did not say the man had recovered, he merely recommended that Dr. Murphy should endeavor to get him to return to work to see whether his back would stand up to the job.

The insurance carrier cut off the compensation as of April 3, 1961. Moss went back to appellee drilling company for which he was working at the time he received the injury, but appellee company would not put him back to work because the driller considered that he had not recovered sufficiently to do the work of a roughneck.

Since compensation had been stopped and appellant had a wife and two children he had to do something, so he moved in with his brother-in-law in Haynesville, Louisiana, and applied to the Wheelis Drilling Company for a job without mentioning his disability. He was put to work as a roughneck. Later, the Wheelis people said that if they had known about his disability they would not have put him to work. The very first day he worked for Wheelis, and the first time he attempted to lift anything heavy, as he was required to do as a roughneck, his back gave way and he could no longer continue on the job.

At the time of the hearing before the Eeferee, appellant was again referred to Dr. Shuffield for an examination. Dr. Shuffield reported: “It is my opinion that. this man apparently has had a new injury while lifting a muffler on April 29, 1961, while working for Wheelis Drilling Company. At this time I do not find any evidence of any permanent partial disability, and I think this man is capable of doing his work. However, in view of the congenital malformation of the lumbosacral spine, I do not think he should try to do any extremely heavy lifting, because his spine is notorious for being the type that will not hold up under heavy work. I recommend that he contact the Vocational Rehabilitation program,, and try to learn some trade where he can make a living without having to do heavy lifting and straining.”

It will be noticed that Dr. Shuffield states his opinion to be that appellant is able to do “his work”. “His work” is that of a roughneck in the oil fields—a job which requires hard manual labor such as the lifting of heavy objects; and yet, Dr. Shuffield also states that he does not think the man should “do any extremely heavy lifting” because of the congenital malformation of his lumbosacral spine. It does not appear that the congenital malformation of appellant’s spine had disabled him in any manner whatever prior to the time his back was injured while working on the derrick November 25, 1960.

Appellant was 28 years of age at the time he was injured; he had been making his living by hard manual labor since he was 15; he had served four years in the Army, and it is a matter of common knowledge that the training and duties of a soldier are not too easy on the back. Moreover, he had worked as a roughneck in the oil fields regularly for about five years at the time he was injured. There is not a scintilla of evidence that he ever had any trouble with his back prior to the injury. All the evidence is to the contrary.

After appellant received his second injury—the one he received the first day he worked for Wheelis, April 29, 1961—he went to Dr. George Byram of Haynesville, Louisiana. After examining appellant and making S-ray studies of his back, Dr. Byram referred him to “The Orthopedic Clinic” at Shreveport. Dr. Byram reports that in his opinion, appellant has a back injury secondary to a possible premature return to work following the first injury and to a congenital defect in the lumbar spine.

Dr. Carson R. Reed, Jr. of the Orthopedic Clinic reported: “It is thought that he [appellant] had not recovered from his initial injury when he again aggravated his lumbarsacral region by lifting.” Dr. Reed further stated that appellant was totally disabled for heavy work at that time, May 25, 1961. In December, 1961, Dr. J. B. Wharton of El Dorado reported that in his opinion the original injury received by appellant in November, 1960, was the greatest cause of the aggravation of the pre-existing deformity of the lumbar spine.

We do not believe that Dr. Murphy’s opinion that appellant had made a complete recovery on March 31, 1961, as shown by his report to the insurance company, can be said to be substantial evidence to sustain the finding of the Commission in view of all the other evidence in the case. It will be recalled that Dr. Murphy had referred appellant to Dr. Shuffield, and only three days before Dr. Murphy states that the appellant had fully recovered, Dr. Shuffield had suggested to Dr. Murphy that he endeavor to get appellant to work on a trial basis to see whether he had recovered.

True, at a later date, in July, 1961, Dr. Shuffield gave a statement to the effect that in his opinion appellant was able to do “his work”, but in the same breath Dr. Shuffield says he should not attempt to do heavy work. The only work appellant knew how to do was heavy work; he had done that kind of work all his life. It toas “his work”.

Now as to the applicable law. The fact that appellant has a congenital malformation of the spine—a weak back—is not in itself a valid defense to his claim for compensation, since such condition was aggravated by the injury he received on November 25, 1960, according to the undisputed testimony, for which injury he was paid four months compensation. Quality Excelsior Coal Co. v. Maestri, 215 Ark. 501, 221 S. W. 2d 38; Starrett v. Namour, 219 Ark. 463, 242 S. W. 2d 963; Bryant Stave and Heading Co. v. White, 227 Ark. 147, 296 S. W. 2d 436; Hamilton v. Kelley-Nelson Const. Co., 228 Ark. 612, 309 S. W. 2d 323.

Next we come to the question of whether the disability is to be attributed to the first injury where there was a second injury, as in the case at bar. In Aluminum Co. of America v. Williams, 232 Ark. 216, 335 S. W. 2d 315, this court quoted with approval from 99 C.J.S. 607, as follows: “ ‘If the employee suffers a compensable injury and thereafter suffers further disability which is the proximate result of the original injury received, such further disability is compensable. Thus, where an employee suffers a compensable injury and thereafter returns to work and as a result thereof his injury is aggravated and accelerated so that he is further disabled than before, he is entitled to compensation for his entire disability. ’ ’ ’ And the court further quoted from Larson on Workmen’s Compensation Law, Yol. 1, § 13.00: “ ‘When the primary injury is shown to have arisen out of and in the course of employment, every natural consequence that flows from the injury likewise arises out of the employment, unless it is the result of an independent intervening cause attributable to claimant’s own negligence or misconduct. ’ ’ ’ And from 58 Am. Jur. 775 : “ ‘ A subsequent incident, or injury, may be of such a character that its consequences are the natural result of the original injury and may thus warrant the granting of compensation therefor as a part of that injury.’ ”

In 99 C.J.S. 605, it is said under the heading of “Dual Contributing Causes”: “To authorize a recovery of compensation, it is not sufficient to show that the injury resulted from one of two causes, but the claimant must show that the proximate cause was one for which the employer would be liable; and as between two accidents, the question whether a disability should be attributed to the first or second, depends on the circumstances of the case.”

It is firmly established by the great weight of authority that if the second injury is a recurrence of the original injury, compensation therefor must be paid by the employer and insurance carrier at the time of the first injury. See annotation 102 A.L.R. 790, and the many eases cited therein.

In Quinn v. Henry Becker & Son, 21 A. 2d 617, the court said: “Where a primary industrial accident causes a fracture which does not unite or results in poor boney union and therefore a weakened condition exists so that a secondary or subsequent event causes the disability to be prolonged, the original accident is responsible for the ultimate resultant condition.”

In Kennedy v. Alaska Industrial Board, 138 F. Supp. 209, the employee received an injury to his back while working in San Francisco in 1949. Subsequently, he worked for several different concerns. On April 14,1952, while employed by Sullens & Hoss Timber Company at Rocky Bay, Alaska, the applicant and another man were lifting a part of a planer weighing approximately 400 pounds when applicant felt something snap in his low back. An operation followed with a spinal fusion. There, it was held that disability was due to the injury he received while working for the Koenig Lumber Company in San Francisco three years previously.

There is no question about appellant receiving an injury to his back on November 25, 1960 while working in the due course of his employment as a roughneck for appellee, El Dorado Drilling Company. There is no question about appellee being disabled by reason of such injury to March 31, 1961. There is no question about appellant hurting his back again on April 29, 1961 when he was helping lift a muffler while working for Wheelis. The only question is whether the disability suffered while working for Wheelis was a new injury, or was it an aggravation of the injury he received while working for appellee, El Dorado Drilling Company. All the circumstantial evidence and the testimony of appellant, along with the testimony of Dr. Byram, Dr. Reed, and Dr. Wharton, tends to prove that the disability of the claimant is due to the first injury. As heretofore pointed out, there is no substantial evidence to the contrary.

The judgment is reversed with directions to the Circuit Court to refer the matter back to the Workmen’s Compensation Commission for further proceedings not inconsistent herewith.