author: Ed. F. McFaddin, Associate Justice.

text:
    Oxford v. Villines.
    5-2121
    334 S. W. 2d 660
    Opinion delivered April 25, 1960.

      Virgil D. Willis and Eugene W. Moore, for appellant.

      Walker <& Villines; and Garvin Fitton and Arnold M. Adams, for appellee.
   Ed. F. McFaddin, Associate Justice.

This case results from a traffic mishap in the City of Harrison. Appellee, Flora Belle Villines, was a passenger in the taxicab owned by appellant, Swafford, doing business as People’s Taxi. The taxicab was then operated by Swafford’s agent, Erotha Oxford, a woman. There was a collision between the taxicab and a car driven by Alta Dixon, a man, resulting in property damage and personal injuries. Flora Belle Villines sued Swafford, Oxford, and Dixon, for damages. Dixon denied liability; and cross complained against Swafford and Oxford for his damages. Swafford and Oxford denied liability to Yillines and cross complained against Dixon.

Each driver claimed to be free of negligence, and alleged the other driver to have been guilty of negligence. At the trial, the jury returned a verdict for Yillines for $10,000.00 damages; and apportioned the damages, $9,-000.00 against Swafford and Oxford, and $1,000.00 against Dixon. No damages were allowed as between Swafford and Oxford on the one side, and Dixon on the other. Prom the judgment, Swafford and Oxford have appealed against both Yillines and Dixon; and Dixon has cross appealed against Swafford and Oxford, and also against Yillines. We will refer to Oxford and Swafford as appellants; to Yillines as appellee; and to Dixon by name. When the notices of appeal were given, there was a designation of the record and a statement of points relied on, just as provided by the statute. (§ 9 of Act 555 of 1953, as found in § 27-2127.3 Ark. Stats.) Some of the points originally stated by appellants have been abandoned; but there are three that are now urged.

I. The Jury Finding That Appellants Were Guilty Of 90% Of The Negligence, And Dixon Guilty Of Only 10% Of The Negligence. The case was submitted to the jury on interrogatories. The jury answered Interrogatory No. 1 affirmatively, finding that Oxford was guilty of negligence in the operation of the taxicab, “. . . and that such negligence contributed to cause, or proximately cause, the collision”. The jury answered Interrogatory No. 2 to the effect that Dixon was guilty of negligence in the operation of his automobile, “. . . and that such negligence contributed to cause, or proximately cause, the collision”. The Court also submitted this question to the jury:

“Interrogatory No. 3: If your answers to both Interrogatories No. 1 and No. 2 are Yes, then answer this question: Using 100 per cent to represent the total negligence involved in the collision, what percentage of negligence do you find that each of the defendants, Oxford and Dixon, contributed to cause the collision?”

The jury answered the interrogatory as follows: “Defendant Oxford 90; Defendant Dixon 10% ”. Swafford was liable for the negligence of his agent, Oxford; and the Court rendered judgment, apportioning 90% against Swafford and Oxford, and 10% against Dixon.

Appellants strenuously insist that there is no evidence in the record from which the jury could find that Oxford was guilty of 90% of the negligence. Appellants urge: that the collision occurred at a street intersection in Harrison around 6:45 in the evening in March of 1959; that it was dark enough to require the burning of headlights; that Dixon did not have on his headlights; that Oxford had driven the taxicab almost out of the street intersection, whereas Dixon had only travelled seven feet into the intersection; and that the front of Dixon’s ear hit the right rear side of the taxicab. Thus, appellants contend that if Oxford was guilty of any negligence, it could not have exceeded 10% ; and that Dixon’s negligence — if not 100% — was certainly 90%. But all of these matters were questions to be submitted to and decided by the jury. The speed of the Oxford car was disputed; the speed of the Dixon car was disputed; Dixon said Oxford speeded up to get into the intersection in front of him, whereas, he slowed down; it was shown that Dixon had skidded his car several feet in order to try to stop, whereas, Oxford had speeded up the taxi. It was further shown that, after the impact of the cars, Oxford’s vehicle dragged Dixon’s car several feet before the cars disengaged and the taxicab overturned. Firemen, who went to the scene of the accident, testified that it was not dark enough to have on headlights; and other witnesses disputed such testimony.

In short, there was a bitterly disputed question of fact, between appellants and Dixon, as to which party, if either, was negligent; and in such a dispute we leave it to the jury, who saw the witnesses, heard them testify, and evaluated their testimony, to determine the degree of the negligence. There was ample testimony to support the verdict, believing some witnesses and disbelieving others, as the jury had a right to do. The jury system is the great bulwark of legal rights. As was very wisely said:

“It is this class of cases and those akin to it that the law commits to the decision of a jury. Twelve men of the average of the community, comprising men of education and men of little education, men of learning and men whose learning consists only in what they have themselves seen and heard, the merchant, the mechanic, the farmer, the laborer; these sit together, consult, apply their separate experience of the affairs of life to the facts proven, and draw a . . . conclusion. This average judgment thus given it is the great effort of the law to obtain.”

II. The Testimony Of Dr. Breit About The X-ray Films. In the collision, Oxford, the driver of the taxicab, was injured; and she sued Dixon, the driver of the other vehicle, for personal injuries and other damages. In the course of the trial, Dixon called Dr. Breit to testify about x-ray films of Oxford which Dr. Breit had examined. He sent Oxford to a technician, who took the films, and gave them to Dr. Breit, who was not physically in the room when the x-ray films were taken, but who examined the films and read them, and testified as to his findings from the films.

The objection urged was, that since Dr. Breit was not physically present in the room when the films were taken, he could not testify as to what the films showed. The Court overruled the “hearsay objection”, and permitted Dr. Breit to testify. We think the Court committed no error. Dr. Breit testified that he sent the patient to the technician to take the films; that he went to the laboratory where the films were taken, picked up the films, and read them. A logical chain of events was shown: there was no suggestion that anybody had switched films. The jury, as reasonable people, could decide whether the doctor’s testimony was worthy of credence. We think that Dr. Breit was sufficiently “present” to constitute a prima facie authentication, or verification, of the x-ray films, since no question of identity was raised. In 20 Am. Jur. 615, in discussing the preliminary proof before the admission of x-rays, the rule is stated:

“The sufficiency of the verification of the x-rays is within the discretion of the trial judge . . . It is said that the identification of x-ray plates by the physician or surgeon under whose general direction and for whose use they were made, and by whom they were used in making a diagnosis of the patient’s condition, is sufficient to admit them in evidence, although the pictures were not taken or developed in his presence, . . .”

III. Villines’ Instruction No. 1. This is the strongest contention of the appellants. The instruction told the jury that Swafford, as the owner of the taxicab, owed to the passenger, Villines, the highest degree of care; and that Dixon, as the driver of the other vehicle in the mishap, owed to Villines ordinary care. There can be no doubt about the correctness of that part of the instruction. In Black and White Cab Co. v. Doville, 221 Ark. 66, 251 S. W. 2d 1005, we said:

“In National Fire Ins. Co. v. Yellow Cab Co., 205 Ark. 953, 171 S. W. 2d 927, we said: ‘The weight of authority is to the effect that the standards of care which prevail as to common carriers, generally, apply to those engaging in the business of operating taxicabs. 4 Blashfield, Automobile Law, § 2201, p. 46.’ See, also, 37 Am. Jur. 598.”

In 37 Am. Jur. 598, the holdings are summarized in this language:

“It has been held, in cases involving the right of a passenger to recover from a taxicab company, that a company of this character, which holds itself out to serve all who apply for transportation for a fixed or agreed fare, is a common carrier of passengers, and as such is bound to exercise that high degree of care for the safety of passengers for hire that is imposed on carriers generally with respect to their passengers, that is, the highest degree of care for the safety of its passengers, consistent with the proper conduct of its business.”

The challenged instruction is not a model of rhetoric, but it is not inherently erroneous; and the only objection offered to the instruction was: “It is confusing and will confuse the jury as to the degree of negligence of the defendants ’ ’. This was nothing more than a general objection. In Emerson v. Stevens Grocer Co., 105 Ark. 575, 151 S. W. 1003, there was an objection to an instruction because it was “confusing and misleading to the jury”; and this Court, speaking by Mr. Justice Hart, said:

“If instruction numbered 4 was not satisfactory to appellants for the reason that they thought it might be confusing and misleading to the jury, in fairness to the court, they should have specifically pointed out their objections, to it to the end that the court might correct it. If they had done so, doubtless the court would have changed the verbiage of the instruction so as to meet their objection. Having failed to make a specific objection to the instruction, we do not think that the judgment should be reversed for giving it.”

This instruction told the jury that if both the taxicab operator and Dixon were guilty of negligence, then the jury would so indicate. In another instruction the Court told the jury:

“As tryers of the facts in this case, the following are issues for your determination:
‘ ‘ 1. Which, if either, of the defendants, Oxford and Dixon, was guilty of negligence, which caused, concurred in, or contributed to cause the injuries complained of.
“2. The proportion of negligence attributable to each in the event you find more than one party guilty of negligence as a cause of their injuries.
‘ ‘ 3. The extent of the damages which each suffered as a result of their injuries, if any, expressed in money values.”

When we take this instruction, along with the special interrogatories submitted to the jury, as previously copied, and see the answers that the jury made, we conclude that such answers definitely establish that tthe challenged instruction did not confuse or mislead the jury.

Finding no error, the entire judgment is affirmed and costs taxed against the appellants.

       Dixon’s cross appeal against Villines was really to protect his rights in the event of a reversal obtained by Oxford and Swafford. What we say in Topic I infra disposes of Dixon’s claim that he was not negligent.

       This is from the case of Sioux City & Pac. RR. Co. v. Stout, decided hy the Supreme Court of the United States on January 26, 1874; 17 Wall. 657, 84 U. S. 657; 21 L. Ed. 745.

       No question is raised as to the patient-physician relationship; but it is claimed that Dr. Breit could not testify about the x-ray films because it would be a violation of the hearsay rule: that is the only point.

       The instruction, as finally given, reads: “You are instructed that it is not disputed that at the time of the accident here involved the Plaintiff, Flora Belle Villines, was a fare paying passenger in the taxicab of defendant, Swafford, being operated by his agent, Oxford, within the scope of her employment. You are further instructed that in that relation and circumstances that the defendant, Ward Swafford d/b/a People’s Taxi Co., owed the duty of exercising the highest degree of care for the safety of its passenger, Flora Villines. Therefore, if you find from a preponderance of the evidence in this case that defendant Swafford, d/b/a People’s Taxi Co., through his agent and employee, failed to exercise the highest degree of care for the safety of plaintiff Villines, and that such failure was the sole proximate cause of her injuries, if any; or, if such failure, combined with a concurrent failure of the defendent Dixon to exercise ordinary care, as defined in other instructions, if you so find was the proximate cause of her injuries, if any, then you will find for the plaintiff and.against the defendants, Swafford and Dixon, or either of them, in such sum as you find will reasonably compensate her for her damages, if any.”


source: Caselaw Access Project

author: George Rose Smith, J.

license: Public Domain

text:
    Massey, Trustee v. Rogers.
    5-2073
    334 S. W. 2d 664
    Opinion delivered April 25, 1960.

      Kaneaster Hodges, for appellant.

      Fred M. Pickens, Jr., Wayne Boyce, Claude M. Erwin, Judson N. Hout, and J. Vernon Ridley, for appellee.
   George Rose Smith, J.

This is a class suit brought by the appellant, as the trustee in bankruptcy for Leach-Rogers Funeral Home, Inc., to enforce what we may conveniently treat as three separate causes of action in favor of the bankrupt corporation. The question here is whether the trustee is entitled to maintain the suit as a class proceeding against ten named defendants as representatives of the Frank Leach Burial Association, an unincorporated association. The chancellor, hearing the matter upon the pleadings alone, sustained the appellees’ motion to dismiss the complaint insofar as it attempts to state a representative cause of action against the appellees as members of the burial association. "We shall discuss separately the three counts in the complaint.

I. The complaint asserts that the burial association was organized in 1937 as a mutual benefit association and has been operated through the years as an adjunct of the now bankrupt funeral home. It is alleged that in 1957 the burial association became indebted to the funeral home in the sum of $3,225.00 for merchandise and funeral services furnished by the funeral home as death benefits under certificates issued by the burial association. In seeking a money judgment for $3,225.00 the plaintiff asserts that it is impracticable to bring all 1,607 members of the association before the court and that the ten named members should be required to defend for the benefit of all. Ark. Stats. 1947, § 27-809.

This count in the complaint asserts a cause of action that may properly be maintained as a class proceeding, and the chancellor erred in holding otherwise. An unincorporated association cannot be sued in its society name; so a representative proceeding is the usual and proper method of bringing suit against such an organization. Baskins v. United Mine Workers of America, 150 Ark. 398, 234 S. W. 464; Smith v. Ark. Motor Freight Lines, Inc., 214 Ark. 553, 217 S. W. 2d 249. The judgment will determine the question of the association’s liability and, if the plaintiff recovers, will entitle the plaintiff to proceed against the common property of the association.

II. The complaint next asserts that if the trustee in bankruptcy is unable to collect the $3,225.00 account from the property of the burial association he should be awarded a personal judgment against the individual members of the association for any deficiency. The chancellor was right in holding that the personal liability of the various members is not a matter to be determined in a class proceeding. Whether the association owes $3,-225.00 for services rendered by the funeral home is, in the language of the statute, a question of common interest to all the members, Ark. Stats., § 27-809; but the liability of any particular member is a question peculiar to him, upon which he is entitled to notice and an opportunity to present his defenses. See Sturges, Unincorporated Associations as Parties to Actions, 33 Yale L. Jour. 383, where it is said: “Upon return of execution against the common property unsatisfied, supplementary proceedings . . . should be available against any or all of the sui juris members subject to process for the deficiency. Herein will the member have his day in court as to his individual responsibility.”

III. The third count involves an entirely different cause of action. Here it is asserted that Neal and Betty Rogers, who were the owners of the corporate stock of the funeral home, sold the membership lists and management of the burial association to the Dillinger Funeral Home for $3,000.00. It is charged that these lists and management rights were in fact assets belonging to the bankrupt corporation and that Mr. and Mrs. Rogers should therefore be required to account to the trustee for the proceeds of sale. This controversy is between the trustee in bankruptcy and the stockholders of the funeral home; it is of no concern to the members of the burial association. The chancellor’s order merely dismissed this count of the complaint to the extent that it seeks to assert a representative cause of action against the appellees as members of the unincorporated association. It appears that the dispute between the trustee and the Rogerses as individuals is still pending, not having been affected by the order of dismissal. The chancellor was plainly correct in holding that this portion of the complaint did not state a representative cause of action; indeed, we do not construe the appellant’s brief as asserting any contention of error in this respect.

The decree is reversed as to the first count and is affirmed as to the other two.


author: Paul Ward, Associate Justice.

text:
    Employers Liability Assurance Corporation, Ltd. v. Employers Mutual Liability Insurance Co.
    5-2106
    334 S. W. 2d 701
    Opinion delivered April 25, 1960.

      Daily & Woods, by James E. West, for appellant.

      Harper, Harper, Young & Durden, for appellee.
   Paul Ward, Associate Justice.

This is a Workmen’s Compensation case which calls for an interpretation of Arkansas Statutes § 81-1314(a) (6), in order to determine which of the two insurance carriers (either appellant or appellee) is legally bound to pay the claimant if and when it is later determined that he has a permanent partial disability caused by an occupational disease. There is very little, if any, dispute over the essential facts.

Monte D. Cotner was employed by the Eastern Metal Products Company (hereafter sometimes referred to as “Eastern”) on July 9, 1956 and worked for the same company continuously, with the exceptions hereinafter noted, until June 27, 1958 when he was discharged for violating a company rule. It is important to note that appellant, Employers Liability Assurance Corporation, Ltd., was the Compensation insurance carrier at the time Cotner began work and continued as the carrier until November 14, 1956 at 12:01 A.M., and also that on the last mentioned date and hour the appellee, Employers Mutual Liability Insurance Company, became the Compensation insurance carrier. It is conceded that Cotner became affected with dermatitis during the time that he worked for Eastern and that dermatitis is classified as an occupational disease.

When Cotner made application for compensation benefits on the ground that he was totally partially disabled it was agreed by all parties that first there would be a determination of which insurance carrier would be liable if permanent partial disability were found to exist. That is, it was agreed by all parties that the question of liability for permanent partial disability would be postponed until it was first determined which carrier would be liabile if liability is finally established. Upon the latter issue a hearing was had before the referee who fixed liability on appellant. This determination was affirmed by the Workmen’s Compensation Commission and also by the Circuit Court. From the judgment of the Circuit Court appellant prosecutes this appeal.

The answer to the question here presented depends upon the interpretation given to the statute heretofore referred to. This statute, in all material parts, reads as follows:

“Where compensation is payable for an occupational disease, the employer in whose employment the employee was last injuriously exposed to the hazards of such disease, and the carrier, if any, on the risk when such employee was last injuriously exposed under such employer, shall be liable therefor . . .” (Emphasis supplied.)

Stated very simply the question is: When was Cotner last injuriously exposed? It is undisputed that Cotner became affected with dermatitis prior to November 14, 1956, but the troublesome question is was he injuriously exposed after that time. In order to determine the question it is necessary to examine carefully the testimony relative to Ms exposures. In substance tbe record shows the following: Cotner became affected with dermatitis by reason of having been exposed to a “ degreaser” wMch contains certain oils which in turn caused a rash to break out on Ms limbs and Ms body. He began working on July 9, 1956 but was not exposed to the “degreaser” until sometime in early October. Something like ten days after Cotner was exposed he noticed a body rash, and on October 11th he was examined by Dr. Lockwood. The doctor in his written reports stated that Cotner had contracted dermatitis but that no permanent defect would result and that there was no disability. Cotner continued to work but he was still bothered with the rash and on November 6, 1956 he was examined by Dr. Glenn who was of the opinion that Cotner was sensitive to the degreasing solution used in the “degreaser”; Dr. Glenn next saw Cotner on November 14, 1956 when he found that Cotner’s condition was considerably improved and that he had no disability. Up until this time Cotner had continued to work steadily. After November 13, 1956 the record shows that on November 14, 1956 Cotner worked in the polishing and buffing department and that on November 15, 1956 he was transferred to the “basket line” where he worked for two or three days and where he was exposed to the degreasing solution, he became worse on November 18, 1956 and was sent to the hospital on November 18, 1956; on November 24, 1956 Cotner was discharged from the hospital and on the 28th day of the same month he went back to work and continued to work until December 14, 1956 when the plant shut down and Cotner was laid off for a while. On January 15, 1957 Dr. Glenn who had examined Cotner several times examined Cotner and found that he was “healed” and was dismissed from the treatment but advised to avoid the degreasing solution. About a week later, January 21, 1957, Cotner returned to work and soon had a recurrence of the rash; on January 31, 1957 Dr. Glenn saw Cotner and referred him to Dr. Shirmer. Cotner continued to work at the same place until June 27, 1958 when he was discharged for violating a company rule.

Keeping in mind that neither of the two insurance carriers involved will be liable unless it is later established that Cotner has been permanently partially disabled, it seems to follow that the judgment of the trial court must be reversed. Although it may be conceded .that Cotner became affected with dermatitis prior to November 14,1956, there is no evidence that he was permanently affected. On the other hand the evidence is all to the effect (as heretofore set out) that he was not permanently affected. Therefore, the only logical conclusion deducible is that, if the claimant is later found to be permanently affected, he became so after November 14th. All authorities appear in agreement that the date of the first recognized appearance of symptoms of an occupational disease does not necessarily coincide with the date of the last “injurious exposure”. In some instances, we can conceive, the dates might coincide but this fact would have to be shown by competent evidence — a thing that was not done in the case before us. Any other view, it seems to us, would have to be based on the assumption that an occupational disease (dermatitis in this instance) is an incurable disease and that the first injurious exposure always results in a permanent disability. If that were the case, however, then Section 81-1314(a) (6) would be unintelligible because it speaks of a last injurious exposure. If there can be a last exposure then there can also be a first exposure. The case of Textileather Corp. v. Great American Indemnity Co., 108 N. J. L. 121, 156 A. 840, recognized that an occupational or industrial disease is not always permanent or incurable by the statement that “Sometimes a patient makes a complete recovery, sometimes it is only an apparent one.”

Most authorities seem to agree that the date which determines liability is not the date when the symptoms of the disease first appear but rather the date when some kind of disablement (such as cessation from work) occurs.

In Underwriters at Lloyd’s, London v. Alaska Industrial Board, (D. C. Alaska), 160 F. Supp. 248, the Court used this language: “In occupational disease cases there is generally a long period of exposure without any disability and the date of contraction of the disease is not ascertainable. Therefore, there has been difficulty in determining the moment when an employer and insurer become liable. The solutions which have been worked out are discussed by Larson in the second volume of his Workmen’s Compensation Law. Section 95.21 says that most frequently liability is assigned to the carrier who was on the risk when the disease resulted in disability, if the employment at the time of disability was of a kind contributing to the disease.” (Emphasis supplied.) In the case of Masco v. Barnett Foundry & Machine Co., 53 N. J. Super. 414, 147 A. 2d 579, where the Court had under consideration the question similar to the one here presented, it is stated: “. . . full liability for permanent disability (fastens) upon that insurer which was on the risk at the time the employee ceased work, absolving any prior insurers regardless of the extremity of progression of the disease, short of cessation of work . . .” In that case the Court assigned the reason for so holding in saying that: “Because the development of occupational diseases is characteristically gradual, but variable in different diseases and with different persons, the earlier stages being frequently undetectable, the only rule which would insure the benevolent legislature objective of recovery in every meritorious case was one which would fix liability at the single and easily determinable point when there was inability to work or death. ’ ’ (Emphasis supplied.)

In the case under consideration it is admitted that Cotner lost no time from work prior to November 14, 1956 when appellant ceased to be the insurance carrier. It is also admitted that after said date Cotner worked for Eastern, that he was exposed to the degreasing solution, and that for the first time he quit work and went to the hospital.

Appellee contends that the case of Hixson Coal Co. v. Furstenberg, 225 Ark. 568, 284 S. W. 2d 120, is authority for the affirmance of the judgment of the trial court, hut we do not agree. Our attention is directed to the circumstance that the claimant contracted silicosis in that case while in the employment of Hixson but that his disability did not commence until he was working for a subsequent employer. This is true but it also appears from a careful reading of that case that the claimant was not ‘ ‘ exposed” during his subsequent employment to anything that would cause silicosis. It further appears from the Hixson opinion that the claimant not only suffered symptoms of silicosis while he was in the employment of Hixson but that “he was bothered with breathlessness; it progressed to such an extent that he could not walk out of the Hixson Mine without resting, and finally got to the point that it became necessary to ride out, being unable to walk.” The opinion further reflects that the claimant had formerly made a statement in 1949 to the effect that he was compelled to terminate his employment with the Hixson Company due to the fact that his physical condition had progressed to a point where he was unable to perform his work. As we read the Hixson case, supra, therefore, we construe it to confirm rather than refute the conclusion which we have heretofore reached.

From the above it follows that the judgment of the trial court must be, and it is hereby, .reversed and remanded for further proceedings consistent with this opinion.

Reversed and remanded.


author: Sam Robinson, Associate Justice.

text:
    Brown v. Cheney, Commr.
    5-2117
    334 S. W. 2d 666
    Opinion delivered April 25, 1960.

      D. D. Panich, for appellant.

      Ivie G. Spencer, Glenn F. Walther, of Counsel, for appellee.
   Sam Robinson, Associate Justice.

This action was filed by appellants under the provisions of the Declaratory Judgment Act (Ark. Stats. § 34-2501, et seq.) against the Arkansas State Revenue Commissioner to determine the validity of Act 120 of 1959.

The complaint alleges that: Appellant Brown is the owner of Tia Wanna Club in Little Rock and owns in connection therewith one music vending machine, or “juke box”, which is operated by a coin slot device; appellant Farr, a resident of Texarkana, Texas, does business as Central Music Company and owns and leases several music vending machines, all located in the State of Arkansas; both appellants have attempted to purchase privilege tax stamps for each machine as required by Ark. Stats. § 84-2604, but appellee has refused to sell them same because appellants have not complied with the provisions of Act 120 of 1959.

The Act in question declares the owning, operating or leasing of coin operated machines such as those owned by appellants to be a privilege and requires, before the issuance of a license, that applicant must, among other things, pay an annual fee of $250, procure a surety bond of $3,000, be above 21 years of age, and be a resident of the State of Arkansas for at least one year prior to the date of application. At least one-half of any partnership or corporation applicant must be owned by an Arkansas resident who has been such for at least one year prior to the date of application.

There are a number of other provisions of the Act relating to requirements for issuance of a license and regulatory features thereafter, which need not be detailed here. Appellants ’ petition alleges that the provisions of the Act are “arbitrary, capricious and discriminatory and are confiscatory in their purpose” and violate the Arkansas Constitution, particularly §§ 2, 3, 18, 19 and 29 of Article 2, and are a denial of equality of privileges and authorize the creation of a monopoly and are a restraint of trade.

Appellee filed a demurrer to the petition on the ground it does not state facts sufficient to constitute a cause of action. The chancery court sustained the demurrer, and hence this appeal.

For reversal appellants make a number of arguments in addition to those alleged in their petition, but it is not necessary to set them out here. The petition alleges that Act 120 of 1959 is arbitrary, capricious, discriminatory and confiscatory, in violation of the Arkansas Constitution. Whether or not these allegations are true is a question of fact which if proved could render the statute unconstitutional. The provisions of the Declaratory Judgment Act set forth the manner by which determinations of issues of fact shall be made. Ark. Stat. § 34-2508. The decree must therefore be reversed with directions to overrule the demurrer and for further proceedings not inconsistent herewith.


author: Jim Johnson, Associate Justice.

text:
    Martin v. Hickey.
    5-2102
    334 S. W. 2d 667
    Opinion delivered April 25, 1960.

      J. Kenton Cochran, for appellant.

      Williams & Gardner, for appellee.
   Jim Johnson, Associate Justice.

This appeal seeks to determine whether Chancery Court has jurisdiction to hear a petition to challenge the sufficiency of a joint petition of independent candidates to place their names on the ballot for a general election to be held in an incorporated town.

The appellants are ten qualified electors and taxpayers of the incorporated town of London, Pope County. They filed in the Pope County Chancery Court a petition to challenge the joint petition of a slate of independent candidates who sought the elective offices in the town of London. The challenge was filed under the provisions of Ark. Stats., § 3-839, (Act 352 of 1955). There was no primary election conducted by any political party. Appellants allege that the independent candidates did not comply with the Arkansas Statutes, including the payment of filing fees, and the petition is a nullity. The appellants further seek to restrain appellees, the Board of Election Commissioners, from certifying the election results based upon the joint petition of the independent candidates.

Upon demurrer by appellees, the Pope County Chancellor held that the Chancery Court did not have jurisdiction to hear the challenge. This appeal followed.

The only point relied upon by appellants for reversal is that the Chancery Court erred in refusing to accept jurisdiction.

Section 3-839, Ark. Stats, reads as follows:

“Challenge of Petition. The sufficiency of any petition filed under the provisions of this Act (Sec’s. 3-836 —3-840, same being Act 352 of 1955), may be challenged in the same manner as provided by law for the challenging of initiative and referendum petitions.”

The manner provided by law for the challenging of initiative and referendum petitions is set out in Ark. Stats., § 2-314, (Act 4, Sec. 13 of 1935). This section expressly confers upon any ten qualified electors and taxpayers of the county the right to contest the returns and certification of the vote cast, said contest to be brought in the Chancery Court within sixty (60) days.

Appellants’ petition charging serious defects and irregularities in appellees’ petition for the nomination of independent candidates appears on its face to have been filed in the proper court in compliance with the terms of Act 352 of 1955. Without further research we would have no choice but to agree with appellants’ contention that Chancery Court had jurisdiction to hear the challenge. However, upon further research we find that this Court had occasion to pass upon the applicability of the Act here in question in the case of Moorman v. Taylor, 227 Ark. 180, 297 S. W. 2d 103. There the Court said:

“. . . Any uncertainty that exists is completely dispelled when the legislative history of the 1955 act is examined. As originally introduced in the legislature, the bill which became Act 352 applied to city offices as well as to those of the State, a county, or district. Before its final passage the bill was amended to delete the word ‘city’ wherever it appeared. House Journal, 1955, p. 394. We certainly should not read into the act by implication a provision that the legislature itself expressly eliminated. Mayo v. American Agricultural Chem. Co., 101 Fla. 279, 133 So. 885; Grasso v. Cannon Ball Motor Freight Lines, 125 Tex. 154, 81 S. W. 2d 482.”

Our research further revealed that Act 352 of 1955 was amended by Act 205 of 1957. We are unable to find anything in this amendatory act that would indicate the legislature intended to include cities in the terms of the act. Therefore, since this Court has expressly held that Act 352 of 1955 does not apply to cities or town and since jurisdiction with respect to challenge or contest of municipal offices is not expressly or by implication placed elsewhere, the Circuit Court, under Art. 7, Sec. 11 of the Constitution has residuary jurisdiction. See: Whittaker v. Watson, 68 Ark. 555, 60 S. W. 652; State v. Tyson, 161 Ark. 42, 255 S. W. 289; and Wood v. Miller, 154 Ark. 318, 242 S. W. 573.

In the words of the Court in Purdy v. Glover, 199 Ark. 63, 132 S. W. 2d 821, we held that:

“Since the contest was not instituted in the Court having jurisdiction of the subject matter, the demurrer to the complaint was properly sustained.”

Affirmed.


author: Carleton Harris, Chief Justice.

text:
    Wheatley v. Warren.
    5-2108
    334 S. W. 2d 880
    Opinion delivered May 2, 1960.
    [Rehearing denied May 30, 1960]

      R. Julian Glover; Wootton, Land db Matthews; Wood, Ghesnutt S Smith, for appellant.

      Richard W. Hobbs, for appellee.
   Carleton Harris, Chief Justice.

This is an appeal from a judgment of the Garland Circuit Court wherein the action of the County Judge, H. C. Warren, in dismissing the board members of the Ouachita General Hospital of Garland County, was upheld. The record reflects that Judge Warren assumed office as County Judge of Garland County on January 1, 1959, and attended a meeting of the Board of Governors on January 2d, at which meeting the Judge presided. At that time, Judge Warren asked for the resignation of all members of the board, stating that certain members had not conducted themselves properly, and that he would be unable to work with certain members of the board. No resignations were submitted, and Judge Warren obtained the appointment of a “Citizens Committee” to investigate conditions at the hospital. One member was appointed by the City Council, one by the Chamber of Commerce, one by the Garland County Medical Association, and one was appointed to represent the Quorum Court, Judge Warren being the fifth member. This committee went to the hospital, together with Judge Warren’s attorney, and there heard testimony from various witnesses, mostly persons who held complaints against the hospital. No member of the board was present during the taking of testimony. Subsequently, a report was prepared by Judge Warren’s attorney, setting forth the findings of the committee, and making the recommendation that the board should resign, but this report was not signed by any member of the committee. Thereafter, Judge Warren notified the members of the board that a hearing would be conducted for the purpose of determining whether the members should be removed from the board. Following the filing of various motions, such hearing was conducted, and on April 29, 1959, Judge Warren directed the following letter to the board:

“April 29, 1959
Board of Governors
Ouachita General Hospital
Hot Springs, Arkansas
Gentlemen:
This is to advise you that based upon the Citizen’s Committee Beport; facts developed at the hearing held as a result of my request that each of you tender your resignations, and based upon the Statutes of Arkansas relative to the duties placed upon members of the Board of Governors of county hospitals and the general law of Arkansas, I find that each of you should be removed from your present position as a member of the Board of Governors of the Ouachita General Hospital, and this action is taken for the general betterment of the operation of the hospital.
According to the evidence and testimony presented at the hearing, it does not appear that all of the members of the present Board of Governors were aware of certain conditions that existed and of certain transactions that transpired, bnt that, in my opinion, does not excuse those members as it was the duty of each member to acquaint himself with all aspects of the operation of the Ouachita General Hospital.
You are hereby relieved from your duties as of the 1st day of May, 1959.
(signed) H. C. Warren
H. O. (Dusty) Warren,
County Judge”

Appellants filed a “Petition for Review” with the Circuit Court of Garland County, and on October 6th, 1959, that court affirmed the action of the County Judge in dismissing the board. From such judgment comes this appeal. For reversal, appellants assert three points, as follows:

“I.

The Board of Governors of Ouachita General Hospital were never informed of the causes of their removal and the letter of IT. C. Warren, County Judge of Garland County, Arkansas, dated April 29, 1959, notifying the Board of Governors of their removal did not specify any of the causes or grounds for removal upon which the action was predicated.

II.

The causes for removal cited in the order of the Circuit Court of Garland County, Arkansas, of October 7, 1959, affirming the action of the County Judge in removing the members of the Board of Governors of Ouachita Hospital do not show sufficient grounds for removal.

III.

The hearing by H. C. Warren as County Judge of Garland County, Arkansas, conducted in connection with the removal of the Board of Governors did not meet the requirements of due process or of Justice and fair dealing. ’ ’

In view of the conclusion we have reached, only points one and three will be discussed, and will be considered in reverse order.

At the outset of the proceeding, appellants moved that Judge Warren disqualify himself from presiding at the hearing, alleging that he was personally and politically biased and prejudiced against the members of the board, was personally interested in the outcome of the hearing, and had individually instituted actions in the Chancery Court against members of the Board. Judge Warren ignored this motion to disqualify, and the Circuit Court refused to grant a petition for a writ of mandamus requiring Warren to disqualify. This Court, in a Per Curiam order of March 23,1959, denied petition for writ of mandamus and for a stay order, holding that the county judge “is not disqualified to act in what is essentially an administrative matter.” As a basis for the motion, appellants point out that Judge Warren requested the resignation of the board almost immediately upon being inaugurated as county judge, and that this fact clearly showed that his mind was already made up that the board should be removed, prior to conducting the hearing. Evidence also reflected that during the political campaign of 1958, Judge Warren ran a political advertisement wherein Hill Wheatley, chairman of the board, was accused of active political interest in behalf of Judge Warren’s opponent; in their brief, appellants further state:

“. . . that at a so-called ‘Citizens Committee’ hearing which drafted the report, the meeting was presided over by appellee, the witnesses were provided by him and that no member of the Board was called or asked to appear before the Committee; that appellee’s mind had been made up prior to the hearing and that he had a personal interest in the outcome of two lawsuits pending in the Chancery Court of G-arland County, Arkansas. ’ ’

Of course, though the hearing was essentially administrative, it was “Quasi-judicial” in nature, and appellants cite authority from McQuillin on Municipal Corporations and American Jurisprudence to support their contention that appellee should have disqualified. For instance, in 42 American Jurisprudence, § 137, p. 479, it is stated:

“. . . An administrative hearing in the exercise of judicial or quasi-judicial powers must be fair, open and impartial. The right to such a hearing is an inexorable safeguard and one of the rudiments of fair play assured to every litigant by the Fourteenth Amendment as a minimal requirement. There can be no compromise on the footing of convenience or expediency, or because of a natural desire to be rid of harassing delay, when that minimal requirement has been neglected or ignored. The breadth of administrative discretion places in a strong light the necessity for maintaining in its integrity the essentials of a fair and open hearing. When such a hearing has been denied, the administrative action is void. The requirements of fairness are not exhausted in the taking or consideration of evidence, but extend to the concluding parts of the procedure as well as to the beginning and intermediate steps.”

At page 311, § 21:

“An administrative officer exercising judicial or quasi-judicial power is disqualified or incompetent to sit in a proceeding in which he has prejudged the case, or in which he has a personal or pecuniary interest, where he is related to an interested person within the degree prohibited by statute, or where he is biased, prejudiced, or labors under a personal ill-will toward a party. ’ ’

We agree that this correctly states the law; however, there is an exception, which is mentioned in § 22. That exception occurs where the authority of the administrative officer is exclusive, and no legal provision for calling in a substitute is provided. In Corpus Juris Secundum, Vol. 67, § 66, p. 277, a concise, though thorough statement relating to disqualification is found.

“A board or official assuming to try charges against an officer or employee must establish its jurisdiction to do so when challenged, since there is no presumption as to its power in this respect. While it is sometimes provided that the trial or hearing may he conducted by the head of the department in which the person charged is serving, ordinarily it is necessary that the hearing be before an unprejudiced official, where a hearing before such a person can be had without disregard of the terms of the statute providing for the hearing and without defeating its purpose. Where the statute dearly requires the hearing to be held before a designated administrative officer, and no other officer can hold the hearing, the language of the statute may not be disregarded, or the legislative intent defeated, by holding that the designated officer is disqualified.

Mere prejudice or alleged prejudice on the part of an official authorized by statute to remove does not affect his right to remove an officer or employee in conformity with statutory proceedings where no provision is made for a hearing before another official in such a case; and the fact that a superior officer authorized to try his subordinates on charges preferred had previously reprimanded or disciplined them does not per se, in the absence of statutory mandate prohibiting it, disqualify him from trying them on charges preferred. The power of removal is not confined to matters with respect to which the officer conducting the hearing has no personal knowledge or as to which charges have not been made or instigated by him, and such superior officer may make charges on his own knowledge and remove the officer or employee charged if, after a hearing, he determines that such charges are sustained. ’ ’

Our statute, relative to the appointment of county hospital boards, is § 17-1502, Ark. Stats. Anno., and provides that the board of governors shall consist of seven members, qualified electors of the county wherein the hospital is located, and who shall be appointed by the county judge for staggered terms from one to seven years. Further:

“All appointments made to fill vacancies caused by-expiration of terms or by death shall be for a period of seven (7) years and such method shall be followed in making such appointments until each member of the board shall be appointed for a term of seven (7) years. The duty to appoint the initial members of this board and to fill vacancies in case of death, resignation, expiration of terms, or for any other reason shall be that of the County Judge. In the event of misconduct or refusal to act, any member of the Board may be removed for cause.”

Since, under our statute, the sole authority to appoint and remove is placed in the County Judge, hearings for determination of whether board members should be removed are exclusively within his jurisdiction, and appellants ’ contention for disqualification cannot be sustained.

We come now to a consideration of appellants’ listed point No. 1. Generally, proceedings for removal are commenced by furnishing an officer or employee with a notice or statement setting forth the reason or grounds for discharge or proposed discharge. In some states, there is a statutory requirement that this be done. Our statute makes no such requirement, but this Court has held that the authority to remove officials “for cause” carries with it the implied restriction, that upon accusation being made, the cause must be stated, with leave to the accused to present his defense. See Williams v. Dent, 207 Ark. 440, 181 S. W. 2d 29. Written charges were not preferred in the instant case; however, pursuant to a request by appellants’ counsel, the attorney for Judge Warren, a few days prior to the hearing, directed a letter to appellants’ attorney, specifying certain charges, as follows : a violation of Act 481 of 1949, as amended, which requires the submission of monthly reports of the hospital operations to the county judge and quorum court; the awarding of the laundry contract of the hospital to a member of the board; disagreement between personnel of the hospital and the Welfare Department, which had resulted in the latter’s refusal to send patients to the hospital; refusal of the Board of Governors and Administrator to pay several thousand dollars due the Southwest Blood Banks; refusal to permit patients in the hospital to leave that institution until proper arrangements had been made for payment of their bills; and the use of $15,000 of hospital funds for the purchase of real estate, and the taking of the deed in the name of the hospital rather than the county. Evidence relating to these charges was presented at the hearing, and evidence was also presented relative to alleged misconduct, not specifically included in counsel’s letter; for instance, testimony was offered to the effect that state welfare patients, whose medical expense had been paid in full by the State Welfare Department, had received additional bills from the hospital.

Testifying at the hearing were Jerry Poe, Chamber of Commerce member of the Citizens Committee, Dr. Lon E. Reed, Citizens Committee representative of the Garland County Medical Society, Kenneth P. Cain, committee representative from the City Council, Fred Shelton, County Clerk of Garland County, Richard Hobbs, Judge Warren’s attorney, George C. Allen, Secretary to the County Judge, Mrs. Iva Harris, Juvenile Probation Officer, Mrs. Gladys Ridgeway, Director of Public Welfare in Garland County, Harry Keaton, Certified Public Accountant, S. T. Whitworth, Administrator of the Hospital, DeVere Dierks, member of the board, J. Muriel Reed, member of the board, Hill A. Wheatley, member of the board, Mose Holiman, member of the board, and J. M. Lowrey, former County Judge. The “Citizens Committee” report was offered in evidence, though the testimony of the three committee members was not entirely in accord with the report. Various alleged offenses were included in the testimony, and the four board members, along with certain of the above witnesses who testified in their behalf, offered testimony in defense of the charges against them.

It is at once obvious, from a study of the transcript, that some of the accusations made at the hearing, even though sustained, would not justify removal. We are unable to determine whether the Judge was justified in ordering the removal of the board, for we do not know which charges and proof he relied upon.

This Court has emphatically stated upon two occasions that in removing an official from office, the specific charges upon which the removal was based, must be stated. In Williams v. Dent, supra, we said:

“It is not enough, in the affirmative language of a resolution, to throw a cloak of anonymity over the cause and arbitrarily assert that cause exists. * * * It may have been that purely personal dislike, or incompatibility not associated with official duties, animated the final result. If this were the basis of removal there was no cause within the meaning of the statute.”

In Martin v. Cogbill, Commissioner, 214 Ark. 818, 218 S. W. 2d 94, this Court stated:

“The record in this case is a voluminous one and the review of all the testimony would require an opinion of interminable length, but it is certain that all the charges were not sustained and it is doubtful if any of them were. It cannot be known therefore whether Cog-bill was removed upon testimony legally sufficient to support a charge constituting cause of removal. * * * Nevertheless the order of the Council in ordering Cog-bill’s removal imputes the finding that his presence and continued service on the board is inimical to the public welfare, or that he is unfit to occupy that position. He was entitled therefore to know upon what specific finding he was ordered removed.
It may also be said that testimony was offered as to certain alleged derelictions not specified in the petition to the Council praying Cogbill’s removal, and for aught we know from the record before us the Council’s action may have been based upon that testimony, and if so that action was unauthorized. See Williams case, supra.”

The latter paragraph might well apply in this case, for testimony was offered at the hearing in regard to certain alleged practices at the hospital which, if true, were inimical to the welfare of the institution.

It will be noted in reading Judge Warren’s letter of dismissal to the Board, heretofore set out in full, that no specific reasons were given for removing the board. They are only told that the dismissal is “based upon the Citizen’s Committee Report; facts developed at the hearing as a result of my request that each of you tender your resignations, and based upon the Statutes of Arkansas relative to the duties placed upon members of the Board of Governors of county hospitals and the general law of Arkansas * * This covers a multitude of matters and alleged infractions, and we are, of course, unable to determine the particular acts relied upon by the County Judge to sustain his action.

The judgment of the Garland Circuit Court is therefore reversed, but without prejudice to appellee’s right to proceed in a manner not inconsistent with this opinion.

McFaddin, J., not participating.

       Emphasis supplied.

       Emphasis supplied.

       See Warren v. Reed, 231 Ark. 714, 331 S. W. 2d 847.

       See Warren v. Wheatley, 231 Ark. 707, 331 S. W. 2d 843.


author: J. Seaborn Holt, Associate Justice. Paul Ward, Associate Justice,

text:
    Erhart v. Hummonds.
    5-2054
    334 S. W. 2d 869
    Opinion delivered May 2, 1960.
    [Rehearing denied May 30, 1960]

      Jacob Sharp, Jr., J. W. Barron, for appellant.

      Martin, Dodds & Kidd; Gordon <& Gordon; Howell, Price & Worsham, for appellee.
   J. Seaborn Holt, Associate Justice.

This appeal comes from a judgment against appellants, architects, on a jury verdict awarding substantial damages to one injured workman and to the representatives of three other workmen who were killed. The record reflects that the Seventh & Main Street Realty Company, owner of the premises at Sixth and Main Street, entered into an agreement with J. C. Penney and Company to erect a building suitable for Penney to house and sell merchandise. Pursuant to this agreement, Seventh & Main Street Realty Company negotiated with the architectural firm of Erhart, Eichenbaum & Rauch to design and draw the necessary plans for a suitable building. This was done and a contract was let by Seventh & Main Street Realty Company to the J. A. Jones Construction Company of Shreveport, Louisiana. After this contract was let, it developed that Penney was not going to furnish supervision of the construction work, contrary to the owner’s prior understanding that they would. Seventh & Main Street Realty employed the present appellants, architects, to guard its interest by supervising construction of the building, in addition to their architectural duties. For this additional work, appellants were to receive an additional fee over and above their architectural, fee. Work under the contract proceeded and the Jones Construction Company subcontracted the excavation to one Claude Machen. Due to the depth of the excavation and because of danger to adjacent buildings and workmen, the plans for the excavation were set out in some detail in the contract. As the excavation proceeded in depth, it became necessary to shore the walls to prevent sliding and caving of the earth. Serious questions were raised by the field supervisor of the architects, Vance A. Davenport, as to the adequacy of the shoring on the east wall, then seventeen (17) feet deep and perpendicular. Comments by Davenport were to the effect that the shoring of this wall was no better than a “whitewash” and “it wasn’t worth a d — .” With some dispatch, a call was placed by Mr. Eichenbaum, one of the architects, to the general office of Jones Construction Company at Shreveport, requesting that a new job superintendent be brought to the job at once; otherwise, they would ask the owners to stop work on the job immediately, as allowed under the contract. The next day, Friday, the new superintendent arrived on the job and promised to make shoring of the east wall the first order of business Monday morning. There was evidence that a slow drizzle of rain fell over the weekend causing the excavation walls to soften. Monday morning, as Vance Davenport, appellants’ supervisor and superintendent, drove his automobile [which weighed 1,600 lbs.] into the alley near the edge of the east embankment wall, this wall caved in killing three employees and seriously injuring a fourth. It was stipulated: “It is further stipulated and agreed by the defendants Erhart, Eichenbaum & Rauch that Vance Davenport was their agent, servant, and employee and acting within the scope of his employment on the J. C. Penney Company job site at the time of the accident and prior thereto.”

Suit was filed by the injured workman on behalf of himself and by the personal representatives of the three estates of the three workmen who were killed alleging, in effect, that appellants, architects, were negligent in failing to inspect and direct the erection by the contractor of the necessary protection for the workmen according to the plans and specifications, in failing to require compliance in accordance with Little Eock Ordinance No. 2801 and that the negligence of the agent and supervisor, Vance A. Davenport, in driving his automobile through the alley above the excavation when he knew vibrations therefrom might cause the wall to fall, was imputable to them, and that appellants were negligent in failing to stop the work under their powers set forth in the contract until the dangerous conditions had been corrected. Appellants answered, in effect, with a general denial.

Upon a trial of the issues, as indicated, the jury found in favor of appellees and the following judgments rendered accordingly:

“Benjamin Hummonds — $10,000.00
Monteen Criswell— 48,000.00
Lucy Lewis— 48,000.00
Vernie Lowman — ■ 12,000.00”

The points for reversal may be summed up as follows: (1) The appellees have no cause of action on the basis of contract provisions (2) The architects did not breach any contractual duty to the owner (3) There is no substantial evidence that the presence of the Davenport car in the alley caused the cave-in (4) That numerous instructions given by the court and numerous instructions refused by the court were error (5) The verdicts are excessive.

Appellants’ contention under point one has been settled adversely to them in our recent case of Hogan v. Hill, 229 Ark. 758, 318 S. W. 2d 580. Hogan, a contractor, entered into a contract with the Arkansas Highway Commission to do certain work. Hogan violated the safety clause contained in a provision of the contract and as a result, Hill, not a party to the contract, was injured. We there stated: “It will be noted that Hill’s complaint states a cause of action in tort based not only on the common law of negligence, but based also on Hogan Company’s failure to comply with the regulations in the contract relative to public safety. This, we think, he had a right to do. See Prosser on The Law of Torts, 1955, 2d Ed. § 81, p. 478 and 482; Ann. Cas. 1913C, p. 217; Pugh v. Texarkana Light & Traction Co., 86 Ark. 36, 109 S. W. 1019; Hill v. Whitney, 213 Ark. 368, 210 S. W. 2d 800, and Collison v. Curtner, 141 Ark. 122, 216 S. W. 1059, 8 A. L. R. 760.”

Assignment two presents the question of whether the architect breached any duty to the owner, and further the issue if there was a duty whether it did not arise until the excavation was completed. The issue here, we think, is not whether the architect breached any duty to the owner, but whether there was a breach of duty owed to the workmen by the architect arising out of the safety provisions of the contract. In the Hogan case above, Hogan did not breach any duty to the highway commission, but did breach a duty which it owed to the traveling public and for whom the safety provisions were intended. In the case here presented, we hold that there was substantial evidence that appellants, architects, breached a duty owed to the workmen whom the safety provisions of the contract specifically named. Appellants were further obligated to inspect the excavation upon completion and prior to the commencement of concrete work. Section 1-02 (d) of the contract, dealing with inspection and excavation, provides: “Upon completion of excavation, and prior to commencement of concrete work, excavations will be inspected by the Architect to insure that suitable earth foundation conditions have been obtained, and that compliance with the requirements of the specifications and the drawings have been maintained. No concrete shall be placed until this inspection has been made and approval of the Architect has been obtained.”

Mr. Davenport, appellants’ employee and supervisor, testified that the east wall footings were poured Friday afternoon before the accident on Monday; that he was the architects’ inspector or supervisor to see that the plans and specifications were followed; that he did not approve making a vertical cut on the wall, that it was a dangerous thing to do and dangerous to workmen underneath; that the vibrations of any vehicle in the alley would be a contributing factor to the cave-in; that he was familiar with the effect of rain on the banks of an excavation, that the dirt around the excavation was saturated with rain which created a greater tendency for cave-ins; it was his opinion that the wall was dangerous and the shoring inadequate and that one should have people trained to detect a dangerous wall like that, that it would not be noticeable to the average layman or citizen. Section 2801 of the Little Rock Building Code provides: “All excavations for buildings and excavations accessory thereto shall be protected and guarded against danger to life and property.”

As indicated, the architects were paid, in addition to the fee for preparing the plans and specifications, $12,000.00 by the owners to see to it that the terms of the contract between the owners and the contractors were complied with. The contract provides that the general contractor “shall erect such protection as may be required, or as directed by the architect, maintain same, and maintain any existing protections, all in accordance with the governing laws, rules, regulations and ordinances. ’ ’ And, further, the ‘ contractor shall do all shoring necessary to maintain the banks of excavations, to prevent sloughing or caving, and to protect workmen.” The contract further provides: The architect “shall have general supervision and direction of the work —. He has authority to stop the work whenever such stoppage may be necessary to insure the proper execution of the contract.” It was a question for the jury as to whether the architect was negligent in failing to stop all work until the shoring on the east wall was made safe for the workmen.

Under appellants’ third assignment they argue that there is no substantial evidence that the presence of the Davenport car in the alley caused the cave-in. We do not agree. Without detailing the testimony here, so as not to unduly extend this opinion, we hold that there was substantial testimony from which the jury could have found that the east wall, where the cave-in occurred, was dangerous; that the rain had saturated the ground, giving it a greater tendency to cave-in, that vibrations caused by motor vehicles in the alley above the east wall would have a tendency to cause the wall to fall. In Missouri Pacific Railroad Company v. Henderson, 194 Ark. 884, 110 S. W. 2d 516, we stated our oft quoted rule as follows: “The rule is, and has always been, that where there is any evidence of substantial nature, which, by positive statements or reasonable inference, when given its strongest probative value, tends to support the finding of the jury, that finding will be sustained, although from the record presented to this court it might seem to be against the preponderance of the evidence.” In the case of Lavender, Adm., v. Kurn, et al, Trustees, et al, 327 U. S. 645, 66 S. Ct. 740, 90 L. Ed. 916, the rule is announced in this language: “It is no answer to say that the jury’s verdict involved speculation and conjecture. Whenever facts are in dispute or the evidence is such that fairminded men may draw different inferences, a measure of speculation and conjecture is required on the part of those whose duty it is to settle the dispute by choosing what seems to them to be the most reasonable inference. ’ ’

The fourth assignment of error is the refusal, and giving of numerous instructions over both general and specific objections of the appellants. In answer it suffices to say that we have carefully examined all instructions and objections thereto and find no prejudicial or reversible error in any of them.

The fifth assignment is that the verdict is excessive. Again we do not agree. The extent of injuries is always for the jury and when supported by any substantial evidence, the verdict should not be set aside or disturbed. In Sinclair Refining Company v. Fuller, 190 Ark. 426, 79 S. W. 2d 736, we said: “While the discretion of the jury is very wide, it is not arbitrary or unlimited discretion, but it must be exercised reasonably, intelligently and in harmony with the testimony before them. The amount of damages to be awarded for breach of contract, or in actions for tort, is ordinarily a question for the jury; and this is particularly true in actions for personal injuries and other personal torts, especially where a recovery is sought for mental suffering. # # *

“The amount of recovery in a case of this sort should be such, as nearly as can be, to compensate the injured party for his injury.” And in Cohen v. Ramey, 201 Ark. 713, 147 S. W. 2d 338, we said: ‘‘ The extent of injuries like any other fact is for the jury and when supported by any substantial testimony the verdict should not be set aside or reduced. * * * It is just as much the province of the jury to determine the extent of one’s injuries, and the amount of damages, as it is to determine the question of liability. His injury, pain and suffering are purely questions of fact, and should be left to the jury to determine.”

A local physician, a Dr. Dishongh, who in his official capacity as coroner viewed the bodies of the three decedents to ascertain the cause of death, testified that decedent Abe Lowman sustained only a fracture of the left elbow; that Nathaniel Criswell sustained no bodily injuries whatsoever, and Anderson Lewis apparently sustained a chest injury and he fixed the cause of death of each as suffocation. Here the lips of the victims are sealed and it would be difficult to prove by direct testimony the extent of the decedents’ conscious realization and understanding of the impending peril, agony and horror surrounding their death by suffocation — it could only be shown by circumstantial evidence. Appellants also argue that the awards were excessive for the reason that the jury awarded $12,000.00 to Lowman for conscious pain and suffering and awarded amounts greatly in excess of $12,000.00 to Lewis and Criswell. Jury verdicts do not have to be consistent. Here the jury no doubt took into consideration the fact that Criswell and Lewis each had several dependents, while Lowman had none. We cannot say that the award of $12,000.00 to Lowman for conscious pain, mental anguish and suffering was excessive.

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

Harris, C. J., and George Bose Smith, J., not participating; Ward, J., dissents.

Paul Ward, Associate Justice,

dissenting. It is my best judgment that the cause of action should be reversed and remanded for a new trial. My reasons are briefly hereafter stated.

The trial court submitted to the jury two theories upon which to find appellants liable: (a) one was that appellants’ agent, Davenport, was negligent in driving his automobile close to where the excavation gave way knowing that the ground was soaked by reason of excessive rains and, therefore, liable to cause the high, steep bank to collapse; (b) the other was that Davenport was negligent in not stopping all work until the defect was remedied.

(a) I agree with the majority that the trial court correctly submitted this issue to the jury, and further agree that there is substantial evidence in the record to support the jury’s finding that Davenport was negligent.

(b) A careful reading of all the record convinces me that there is no substantial evidence in the record justifying the trial court’s submission of this issue to the jury. Summarily stated, set out below are the facts and circumstances relative to this issue.

On Thursday afternoon Davenport detected the unstable condition of the excavation, inquired of the contractor’s representative whether or not he had obtained the approval of the Safety Department of the Department ■of Labor, expressed his disapproval, and then very promptly telephoned Mr. Pugh, Vice President of the Prime Contractor at Shreveport, Louisiana. Davenport told Mr. Pugh of the condition and advised immediate action on his part. The result was that Mr. Pugh sent their regular Superintendent to Little Bock, arriving on the following morning (Friday) to take over the management of the job. At that time there had been no collapse. The new representative of the Prime Contractor (a Mr. Wright) immediately conferred with an agent of appellant who pointed ont the defects of the work, and Mr. Wright promised to take care of the situation. The following day, Saturday, no work was done on the excavation, and none was done on Sunday. On Monday morning, at 8 o ’clock, work was resumed under the supervision of Mr. Wright who had all the shoring removed without telling Davenport. A short time later that morning, about the time Davenport appeared on the scene, the wall caved in on the workmen.

What I cannot understand, and the majority do not point out, is how any negligence can be imputed to Davenport or the appellants. The majority do point out that appellants were paid a substantial fee and thereby appear to infer that Davenport should have taken over the operation, but in this connection two other things must be considered. One is that appellants had many other duties to perform under its contract of employment. The other is that the Prime Contractor, under the terms of its contract, was specifically charged with the duties which the majority would impose on appellants. In part this contract reads: “Each contractor shall be responsible for his own work and every part thereof, and all work of every description used in connection therewith. He shall specifically assume, and does assume, all risk of damage or injury from whatever cause to property or persons. . .” (Emphasis supplied.) Not only so, but a witness for appellees (the Chief Safety Engineer for the Arkansas Department of Labor) stated that he looks to the Prime Contractor to make the job safe and not to the architects or a subcontractor.

Since there is no substantial evidence in the record to contradict the above factual situation it was, in my opinion, error for the trial court to permit the jury to base a finding of negligence on this point. Since there is no way for this court to determine on what ground the jury based its verdict, the cause should be reversed and remanded for a new trial.


text:
    City of Ft. Smith v. Mikel.
    5-2111
    335 S. W. 2d 307
    Opinion delivered May 2, 1960.
    [Rehearing denied June 6, 1960]

      Pettus Kincannon; HeartsiU Bagon; Hugh Bland; G. Byron Dobbs, for appellant.

      8am Sexton, Jr., John G. Holland, Lawrence 8. Morgan, for appellee.
   Ed. F. McFaddin, Associate Justice.

In this suit, brought by the City of Fort Smith seeking to quiet title to certain lands, there have been developed some very interesting matters, involving both the early history of the Fort Smith area, and also the location of a portion of the western boundary of the State of Arkansas. It is a great temptation to lose sight of the legal issues in stating the matters of historical interest; but the applicable and governing rule of law is that stated by Mr. Justice Battle in Chapman & Dewey v. Bigelow, 77 Ark. 338, 92 S. W. 534, to the effect that a plaintiff seeking to quiet title must prove his own title and recover on the strength of his own title and not on the weakness of the title of his adversary.

As aforesaid, the City of Fort Smith brought this suit to quiet its title to certain described lots and also to all of the area lying between such described lots and the Arkansas and the Poteau Rivers on the west. The lots were Lots 1 to 19, in Block 3; Lots 1 to 16, in Block 4; and Lots 1 to 7, in Block 6, of West Fort Smith, an addition to the City of Fort Smith, Arkansas. Appellee Mikel asserted no title to the 42 lots, but asserted title to the area between the described lots and the two rivers. The Chancery Court rendered a decree quieting the title of the City of Fort Smith to the 42 lots, but refusing to quiet the title to the area between the said described lots and the two rivers; and from that decree the City of Fort Smith brings this appeal.

The facts developed, plus those known judicially, present the following picture: By the Act of June 15, 1836, the Congress of the United States admitted Arkansas as a Sovereign State, “on an equal footing with the original States in all respects whatever”; and this Act of Admission defines the western boundary of Arkansas, as beginning at the southwest corner of the State of Missouri, ‘ ‘ and from thence to he hounded on the west to the north bank of the Bed Biver by the lines described in the first article of the Treaty between the United States and the Cherokee Nation of the Indians, west of the Mississippi, made and concluded at the City of Washington on the 26th day of May, in the year of our Lord one thousand eight hundred and twenty-eight; ??

The Arkansas Constitution of 1836, and each subsequent Constitution, contains similar language for the western boundary of the State. But this western line boundary, ignoring natural boundaries such as water courses, proved unsatisfactory; so the Congress of the United States, by Act of February 10, 1905, gave Arkansas authority to extend its western boundary. The Act of Congress reads:

“The consent of the United States is hereby given for the State of Arkansas to extend her western boundary line so as to include all that strip of land in the Indian Territory lying and being situate between the Arkansas State line adjacent to the city of Fort Smith, Arkansas, and the Arkansas and Poteau Rivers, described as follows, namely: Beginning at a point on the south bank of the Arkansas River one hundred paces east of old Fort Smith, where the western boundary line of the State of Arkansas crosses the said river, and running southwesterly along the south bank of the Arkansas River to the mouth of the Poteau; thence at right angles with the Poteau River to the center of the current of said river; thence southerly up the middle of the current of the Poteau River (except where the Arkansas State line intersects the Poteau River) to a point in the middle of the current of the Poteau River opposite the mouth of Mill Creek, and where it is intersected by the middle of the current of Mill Creek; thence up the-middle of Mill Creek to the Arkansas State line; thence northerly along the Arkansas State line to the point of beginning: Provided, That nothing in this Act shall be construed to impair any right now pertaining to any Indian tribe or tribes in said part of said Indian Territory under the laws, agreements, or treaties of the United States, or to affect the authority of the Government of the United States to make any regulations or to make any law respecting said Indians or their lands which it would have been competent to make or enact if this Act had not been passed.”

The Arkansas Legislature accepted the additional territory by Act No. 41 of 1905, which, without the preamble, may now be found in § 5-101, Ark. Stats.; and the validity of such extension of boundary has been upheld by this Court. State v. Bowman, 89 Ark. 428, 116 S. W. 896; and Bowman v. State, 93 Ark. 168, 129 S. W. 80. The Act of Congress and the Act of Arkansas transferred the said territory to Arkansas, but did not affect the title of the Indians or others owning any of the ceded territory. In 1904 John J. Fisher had platted the “Town of West Fort Smith, Choctaw Nation Indian Territory”; and this town was immediately west of the then western boundary of Arkansas and east of the Arkansas and Poteau Bivers. It was a strip approximately 5,400 feet north and south, and varying, east and west, from nothing to a width of approximately 635 feet. This town consisted of a number of lots, contained in thirteen blocks, which were numbered 1 to 13 from north to south. In 1909 the City of Fort Smith annexed the theretofore platted “Town of West Fort Smith, Choctaw Nation Indian Territory” to the City of Fort Smith, Arkansas. In 1908 town lot patents were issued from the Choctaw and Chickasha Nations to various individuals; and the City of Fort Smith claims title to the 42 lots by mesne conveyances from the said individuals.

The Chancery Court, in the present case, quieted the title of the City of Fort Smith to the 42 lots and abutting streets and alleys, but refused to quiet the title of Fort Smith to the area lying between the said lots and the Arkansas and Poteau Bivers. Such refusal resulted in this appeal. As stated in the early portion of this opinion, the law is well established that a plaintiff seeking to quiet title must prove his own title and recover on the strength of his own title and not on the weakness of the title of his adversary. The learned Chancellor delivered an excellent opinion, applying this rule. The opinion is in the transcript and has proved of benefit to us. We consider now Fort Smith’s claim to title to the area between the platted lots and the rivers.

I. The City of Fort Smith claims that the 1904 Fisher plat of “West Fort Smith, Choctaw Nation Indian Territory”, showing the lots and blocks, was intended to cover all of the area between the Arkansas boundary and the two rivers; and therefore the lots owned by Fort Smith extend to the two rivers.

The basis of this contention is the statement of the surveyor on the plat, which says that he has surveyed and staked the town, ‘ ‘ comprising the strip of land lying between the City of Fort Smith and the Arkansas and Poteau Bivers”. The appellant contends that the word, “comprising”, necessarily means all of the land. However, the surveyor did not say it was comprising “all”-, and it could, and did in fact, comprise less than all. We cannot shut our eyes to obvious facts. The size and width of each lot, block, and alley in the Town of West Fort Smith is given in definite footage on the plat, and such measurements on the plat must prevail. See Beardsley v. Nashville, 64 Ark. 240, 41 S. W. 853.

Furthermore, there was introduced in evidence, without objection, a survey made in 1958, which showed that there is an area lying between the platted lots and the Arkansas and Poteau Rivers, and that this strip varies in width from a few feet to as much as 200 feet. It was clearly established by plaintiff’s witnesses that the strip could not be the result of any accretions because the strip had a rock outcropping on the banks of the Arkansas and Poteau Rivers. There are still present iron rings fastened into this rock ledge, and history students tell us that these rings were used for boats to anchor many, many years ago. In Chapman & Dewey v. Bigelow, 77 Ark. 338, 92 S. W. 534, Mr. Justice Battle, speaking for the Court, quoted extensively from Horne v. Smith, 159 U. S. 40, 15 S. Ct. 988, 40 L. Ed. 68, to the effect that when a map shows a given distance in footage, the area cannot be extended to a distant water course far beyond the stated distance. That rule is applicable here. So we must — under the facts — hold that the 1904 plat by Fisher did not cover the entire area between the Arkansas boundary and the two rivers to the west.

II. The City of Fort Smith claims: “The undisputed evidence shows that any land that might exist between the Arkansas and Poteau B,ivers to the westerly lot lines in West Fort Smith has been used by the public for many years, and a title has been acquired by the City by prescription”. The use by the public could have created a prescriptive right in the public, but not in the City of Fort Smith as distinct from the public; and the City has offered no evidence of its own adverse possession so as to establish any sort of title as distinct from the public. In Packet Co. v. Sorrells, 50 Ark. 466, 8 S. W. 683, there was involved the use by a municipality for warehouse purposes, of a portion of a dedicated street. Mr. Justice Battle stated: “. . . land dedicated by the owner as a street to the use of the public cannot lawfully be used for any other purpose; . . . the authorities of the town or city in which the same is situate cannot lawfully appropriate or divert it to uses and purposes foreign to those for which it was dedicated;. . . ” Those statements are applicable here. If the area between the described lots and the rivers became a public way by prescription, then the City cannot use the public way for any purpose foreign to the public way. Certainly the City would acquire no proprietary rights distinct from the public. In short, no claim of “prescription” can give the City title to the area west of the lots.

III. Finally, the City of Fort Smith claims that since it owns the lots which abut on the public area to the west, and since the area has not been developed, there is, therefore, an abandonment of the area, the same as the abandonment of a street or alley; and that the City’s title, therefore, extends to the rivers. But this contention overlooks entirely the fact that the plat made in 1958, and introduced in this case without objection, shows a street or roadway existing in 1958 and being between the platted lots and the area to the west. Furthermore, the City showed by its own witnesses that the river front area has been from time immemorial used as a landing place; so no abandonment has been shown. Use by the public, originally established by showing the rings imbedded in the stone ledge for boat landings, is never shown to have been abandoned. So the City can claim no title through abandonment.

CONCLUSION

We are tremendously impressed by the public spirit that has activated the citizens of Fort Smith to acquire title to the entire area, originally known as “Belle Point”, but later identified by the name of “Coke Hill”. Outstanding citizens of Fort Smith have made a detailed study of the project; and it is hoped that when title to the full area has been acquired, Belle Point will be made into an historic monument and the old 1817 Fort will be restored. It is a splendid historic undertaking; and we are impressed by the zeal of the Sebastian County Bar, which undertook to clear the title. But the Chancery Court correctly applied the applicable law, which is, that a plaintiff seeking to quiet title must prove his own title and recover on the strength of his own title and not on the weakness of the title of his adversary.

The City of Fort Smith was unable to show any title to the area between the platted lots and the rivers; and, therefore, the Chancery decree was correct to that extent. But when we hold — as we do — that the City cannot quiet title to such area, it does not follow by any means that the appellee Mikel is entitled to the area. Mikel’s attorneys admitted in the oral argument before this Court that it was not the intent of the decree of the Chancery Court to quiet Mikel’s title. There is a sentence in the decree — which probably came in by inadvertence — that, as between Mikel and Fort Smith, Mikel succeeded to the title. It was never intended by this to quiet Mikel’s title; and we modify the decree by striking out the said Finding No. 15 and the portion of the decree incorporating it; but in all other respects the decree of the Chancery Court is affirmed. It is not for us in this case to decide whether Mikel owns the land, which the City may undertake to acquire by eminent domain, or whether the title to the disputed area is still in the Indian Tribes, which title the City may undertake to acquire by negotiation. These matters are beyond the purview of the present litigation: all we now hold is, that the Chancery decree was not in error in refusing to quiet title in the City of Fort Smith to the area lying between the platted lots and the two rivers.

Harris, C. J., and Ward, J., dissent.

       This is the Act of June 15, 1836, found in 5 U.S. Statutes at Large 50, Chapter 100; and also may be found on Page 297 of Vol. 1 of the Arkansas Statutes Annotated of 1947. The said Cherokee Treaty of May 26, 1828, may be found on Page 1011 et seq. of Volume 8 of the Laws of the United States of America, as published in 1835; and Article 1 of that treaty reads: “The Western boundary of Arkansas shall be, and the same is hereby defined, viz: A line shall be run, commencing on Red River, at the point where the Eastern Choctaw line strikes said river, and run due north with said line to the River Arkansas, thence in a direct line to the southwest corner of Missouri.”

       Reference is made to Vol. 1 of Ark. Stats. Anno, of 1947: the Constitution of 1836 is on Page 239; the Constitution of 1861 is on Page 253; the Constitution of 1864 is on Page 264; the Constitution of 1868 is on Page 279; and the present Constitution of 1874 is on Page 23.

       This Act may be found in 33 U.S. Stat. at Large 714, Chapter 571; and may also be found on Page 302 et seq. of Volume 1 of Ark. Stats. Anno. 1947.

       The interesting fact is, that the site of the old original 1817 fort was located in this strip.

         Heretofore we have cited Chapman & Dewey v. Bigelow, 77 Ark. 338, 92 S.W. 534, as stating the rule. We have many other cases to the same effect: See Mason v. Gates, 82 Ark. 294; 102 S.W. 90; Sanders v. Boone, 154 Ark. 237, 242 S.W. 66, 32 ALR 461; and the scores of other cases collected in West’s Arkansas Digest, “Quieting: Title”, Key No. 10.

       This is Item 15 in the decree, and reads as follows: “The Court finds that as between Mikel and the City of Fort Smith by virtue of the aforesaid deed to William J. Ray in 1918 and 1919, William Mikel succeeded to title to any land lying west of the lot lines of West Fort Smith as platted by John F. Fisher, and east of the Arkansas River and Poteau River to the mean highwater mark on the Arkansas River, and to the center of the Poteau River insofar as it bounds the lands in controversy.”

       See Packet Co. v. Sorrells, 50 Ark. 466, 8 S. W. 683.


author: George Rose Smith, J. Paul Ward, Associate Justice,

text:
    Baxter v. Baxter.
    5-2137
    334 S. W. 2d 714
    Opinion delivered May 2, 1960.

      Clinton B. Barry; D. L. Grace, for appellant.
    No brief filed for appellee.
   George Rose Smith, J.

This suit, although in form an adversary proceeding, is in substance an ex parte petition by which the appellant seeks a declaratory judgment finding that her first husband is dead and that her marriage to her second husband, the appellee, is valid. The chancellor refused to grant the requested relief, on the ground that the petitioner had not adduced sufficient proof to give rise to the statutory presumption of death.

The petition is based upon Ark. Stats. 1947, § 62-1601: “Any person absenting himself beyond the limits of this State for five years successively shall be presumed to be dead, in any case in which his death may come in question, unless proof be made that he was alive within that time.” A related section, also part of the Revised Statutes, provides that where any husband abandons his wife and resides beyond the limits of the State for five years, without being known to his wife to be living during that time, his death shall be presumed, and any subsequent marriage entered into by the wife after the end of the five years shall be valid. Ark. Stats., § 55-109.

The petitioner, then 18 or 19, and Frank Bussell, then 36, were married in 1919 in Fort Smith, where they both resided. Except for a brief visit to Oklahoma soon after their marriage the couple continued to live in Fort Smith until Bussell left his wife in about 1923. Mrs. Bussell, without having sought a divorce, appears to have married Baxter in 1936. The present petition, which names Baxter as the sole defendant, was filed in 1959. It alleges that the federal Social Security Administration has refused to allow the petitioner’s claim to benefits as the wife of the defendant. Baxter entered his appearance and in effect supported his wife’s petition.

Owing to illness the petitioner was unable to appear in court to give her evidence. The chancellor, in an effort to develop the facts, appointed a master to visit the petitioner’s home and take her testimony. Under questioning by the master Mrs. Baxter revealed no information that might be of value in an attempt to locate her first husband. Although she and Bussell lived together for about four years she says that she did not know where he was brought up, that he never mentioned any of his relatives and that she knew nothing about them, and that Bussell had no friends as far as she knew. She could not remember the name of the minister who performed the marriage ceremony. She said that Bus-sell did not work at all, that she took in washing and made the living while Bussell stayed around the house. Bussell at times expressed a desire to go to Oklahoma, but apparently that was before their actual trip to that state soon after their wedding. "When Bussell deserted her he did not tell her that he was leaving nor indicate where he was going. She heard nothing from her husband after his departure.

"We find it unnecessary to decide whether, in the circumstances of this case, a declaratory judgment proceeding may be employed in lieu of a suit for divorce, for we are unwilling in any event to say that the chancellor was wrong in holding that the petitioner did not offer sufficient proof to justify the granting of her petition. Under this statute it is settled that neither the fact of death nor that of absence from the state can be inferred from the bare fact of a disappearance. Metropolitan Life Ins. Co. v. Fry, 184 Ark. 23, 41 S. W. 2d 766; Metropolitan Life Ins. Co. v. Williams, 197 Ark. 883, 125 S. W. 2d 441. Hence the petitioner had a burden of producing evidence from which the court might fairly conclude that Bussell had lived continuously outside Arkansas for at least five years before the petitioner’s remarriage in 1936.

In our prior cases the finding that the missing person had left Arkansas was based either upon evidence indicating that he intended to leave or upon proof of a diligent but unsuccessful search for him. Those were contested cases, with the safeguards inherent in any adversary proceeding. Here the ex parte request for a declaratory judgment is unsupported by comparable testimony that might take Frank Bussell’s whereabouts out of the realm of pure speculation. In Wilks v. Mutual Aid Union, 135 Ark. 112, 204 S. W. 599, we stressed the fact that the missing person had not been heard from by relatives, friends, or neighbors, “those who would naturally make inquiry concerning his whereabouts and who would most likely receive communication from him and be in a position to know whether or not he was living. ’ ’ Here the petitioner’s testimony effectively shuts the door to any such inquiry, as she professes complete ignorance of her first husband’s family and friends. There is no adversary to whom the burden of going forward with the evidence might be shifted. We do not feel compelled to lay down a rule that would leave to the chancellor, when confronted with a record like this one, no choice except to grant relief on the basis of testimony that he considered, conscientiously and with reason, as being improbable and unsatisfactory.

The decree must be affirmed.

Ward, J., dissents.

Paul Ward, Associate Justice,

dissenting. Assuming without deciding that it was proper to bring this proceeding for a declaratory judgment, it is my best judgment that the Order of the trial court should be reversed.

It is fairly deducible from the record that appellant married Frank. Russell in 1919; that Russell deserted her in 1923; that the best information shows that he went to the State of Oklahoma; that he has not been heard of since; and that appellant married her present husband in 1936 and has lived with him ever since.

Bearing in mind that the question of appellant’s 1936 marriage was not a controversial issue in the opinion, I am of the opinion that certain presumptions of the law fully sustain the position I have taken.

Because of the fact that appellant has lived with her present husband for approximately a quarter of a century the law presumes a legal marriage as stated in Phillips v. Phillips, 182 Ark. 206, 31 S. W. 2d 134. Also in view of the factual situation as set out above it must be presumed, under Ark. Stats. § 62-1601, that appellant’s first husband was dead in 1936, having been absent from the State and unaccounted for at that time for a period of approximately 13 years.


text:
    Cobbs v. Speights.
    5-2110
    334 S. W. 2d 886
    Opinion delivered May 2, 1960.
    [Rehearing denied May 30, 1960]

      George E. Snuggs, for appellant.

      Melvin E. Mayfield, for appellee.
   Paul Ward, Associate Justice.

On August 26, 1957 appellant, G-. E. Cobbs, filed a Complaint in Ejectment against appellees, Marvin E. Speights and wife, alleging that he was the owner of certain lots in the Town of Smackover and tracing his title thereto through conveyances from two successive predecessors dating back to 1946. It was further alleged that appellees had unlawfully erected and were wrongfully maintaining a fence on his land over his repeated demands for possession. The prayer was that appellees be evicted.

To the above Complaint appellees filed a general Demurrer, which the trial court treated as a motion to make more definite and certain and granted appellant twenty days to comply.

On November 5, 1957 appellant filed an Amended and Substituted Complaint to which appellees filed an Answer containing a general denial on January 8, 1958. On January 13, 1958 appellant filed a Motion to Strike said Answer because it was not filed in the time allowed by statute. The trial court overruled this motion and ordered appellees to file further defensive pleadings within thirty days.

On February 17, 1958 appellees filed an Answer alleging seven years adverse possession, and also asked that appellant’s Complaint be dismissed. To that pleading appellant filed a Motion to Dismiss on the ground that it was not filed within the statutory time or within the time allowed by the trial court. Later appellant filed a Motion for Judgment and for a Finding of Facts and Declarations of Law, whereupon appellees filed an Amended and Substituted Answer. On August 20, 1959 appellant filed a Motion to Strike the above mentioned pleadings and the trial court again overruled appellant’s Motion.

On September 5, 1959 appellant filed a Petition for Judgment on the Pleadings which the trial court once more overruled.

It will be noted from the above that at no time did the trial court dismiss appellant’s Complaint or cause of action, nor was appellant prevented from proceeding to a final decision on the merits. In other words the trial court made no final order from which an appeal will lie to this Court. The law in this respect was well settled in the case of Arkansas State Board of Architects v. Larsen, 226 Ark. 536, 291 S. W. 2d 269, and the numerous decisions cited therein.

In view of the above the appeal must he dismissed as premature.

Appeal dismissed.