text:
    Little Rock Furniture Manufacturing Company v. Commr. of Labor.
    5-1120
    298 S. W. 2d 56
    Opinion delivered February 4, 1957.

      Moore, Burrow, Ghowning £ Mitchell, for appellant.

      Luke Arnett and McMath, Leatherman £ Woods, for appellee.
   Ed. F. McFaddin, Associate Justice.

This is an appeal from a judgment of the Circuit Court in two consolidated cases involving claims arising under the Employment Security Act (§ 81-1101 et seq. Ark. Stats.). The questions presented in the two cases are materially different, so we refer to the cases by the numbers in the Circuit Court.

Circuit Court Case No. 41167.

On October 14, 1953, certain employees of the appellant, Little Bock Furniture Manufacturing Company (hereinafter called “Company”), went on strike and established a picket line. Among such strikers were the fifty-five workers — hereinafter called ‘ claimants ’ ’ —■ who are appellees in this Court. C. B. Thornbrough, as Commissioner of Labor, is also an appellee. The strike was called by the Labor Union, in an effort to obtain certain desired economic benefits. So far as the record here shows, the strike was not in violation of any contract. On October 23, 1953, the Company notified all the claimants by letter that work would be resumed on November 2nd and claimants’ places would be filled by other workers on that date. The Company did resume work on November 2nd.

On November 27th the Union called off the strike; and on November 30th the strikers returned for work. Some of the strikers were used, but these fifty-five claimants were not put back to work because their jobs had been filled. Claimants then filed application for unemployment benefits accruing after November 30th, when they had sought to return to work. The claims are under the Employment Security Act, which is § 81-1101 et seq. Ark. Stats, and amendments to and including Act No. 162 of 1953 —■ but, of course, not including Act No. 395 of 1955, because the claims were filed in November, 1953. Therefore, our decision in this case is governed by the law that was in force in November, 1953.

The Company, in resisting the efforts of the claimants to obtain unemployment benefits, insisted that the claimants had voluntarily left their work when they went on strike and were disqualified from drawing benefits for ten weeks after the filing of the claims. The Company relied on § 81-1106(a), as amended by § 3 of Act No. 162 of 1953, which section, with amendment, reads:

“If so found by the Commissioner, an individual shall be disqualified for benefits: (a) if he voluntarily and without good cause connected with the work, left his last work. Such disqualification shall be for ten weeks of unemployment as defined in sub-section ‘I’ of this section. ’ ’

The Company contended that each of these fifty-five claimants, voluntarily and without good cause, went on strike and should therefore be disqualified for ten weeks from November 30, 1953, the date each sought to return to work. The supervisor of the local office of the Employment Security Division held the claimants to be so disqualified; and claimants appealed. The Appeal Tribunal (a hearing agency set up under § 81-1107 of the Employment Security Act) held that the ten weeks’ disqualification provision did not apply to a worker who went out on strike; reasoning that when such worker offered to return to work and could not obtain employment, he was entitled to the unemployment benefits without the ten-weeks’ disqualification provision applying to him. The Board of Review (§ 81-1107 Ark. Stats.) affirmed the holding of the Appeal, Tribunal; the Company sought judicial review under § 81-1107 (d) (7); the Circuit Court agreed with the administrative holding ; and the case is here on appeal. So the issue in Circuit Court Case No. 41167 is whether the ten weeks’ disqualification under § 81-1106 Ark. Stats, applies to a person who engaged in a labor dispute and later ended the strike and sought to return to work.

Wo emphasize that this case does not involve any claim for benefits during the time the workers were on strike. It involves only claims for benefits after the strike had been ended and the claimants tried to go back to work. As the law existed at the time this case arose, § 81-1106 (d) related to disqualifications in labor disputes, and 81-1106(a) related to one who voluntarily left work. Our original Employment Security Act was Act No. 155 of 1937. It has frequently been amended. Many states have comparable acts. These are listed following § 81-1101 in the Annotated Volume of Arkansas Statutes. The purpose of all of such Employment Security Acts is an effort to afford compensation under some circumstances to a covered worker who is unemployed. Section 81-1101 Ark. Stats, gives the declaration of state public policy regarding our Act, and is worthy of study. In § 81-1102 of the Act the Legislature declared its intention to provide for the carrying out of the purposes of the Act in cooperation with the appropriate agencies of other states and of the Federal Government. The Act must be given an interpretation in keeping with the declaration of state policy.

Some states hold that when a worker goes out on a strike he has “voluntarily left his work” and so is subject to the disqualification period (varying in weeks from state to state). For cases so holding, see: Walgreen Co. v. Murphy, 386 Ill. 32, 53 N. E. 2d 390; Baker v. Powhatan Mining Co., 146 Ohio St. 600, 67 N. E. 2d 714; and see also cases collected in See. 3 of the Annotation in 28 A. L. R. 2d 294.

Other states hold that the spirit of the Act is not to penalize a worker who follows the Union’s orders and goes on a strike, but to afford such worker unemployment benefits when he offers to return to work and is unable to find it. In other words, when he offers to return to work and can find no work, he then becomes involuntarily unemployed. For cases looking in this direction, see: T. R. Miller Mill v. Johns, 261 Ala. 615, 75 So. 2d 675; M. A. Ferst Ltd. v. Huiet, 78 Ga. App. 855, 52 S. E. 2d 336; Intertown Corp. v. Appeal Board, 328 Mich. 363, 43 N. W. 2d 888; and Great A. & P. Tea Co. v. New Jersey Dept., 29 N. J. Super. 26, 101 Atl. 2d 573.

A careful study of § 81-1106 Ark. Stats, convinces us that this case should be affirmed. This § 81-1106 is the section disqualifying an individual from benefits. The section consists of eight sub-divisions, lettered (a) to (h), inclusive, and we hold that each sub-division is mutually exclusive. In other words, if a person is disqualified from benefits under Sub-division (b) of § 81-1106, he cannot again be disqualified for the same conduct under Sub-division (a) of § 81-1106. In the case at bar, the claimants were disqualified under Sub-division (d) of § 81-1106, which is the section relating to labor disputes: they could not also be again disqualified under Sub-division (a) of § 81-1106 when they offered to return to work. The case of T. R. Miller Mill Co. v. Johns, 261 Ala. 615, 75 So. 2d 675, is in point. Section A of the Alabama Employment Security Act contained the provision on disqualification in labor disputes and Section B contained the provision as to disqualification of the worker ‘ ‘ if he has left his employment voluntarily without good cause connected with such work.” The Alabama Court held that one suffering disqualification under Section A was not to be further disqualified under Section B, saying:

“We note that subsection A provides that the disqualification contained therein is to continue so long as the labor dispute is in active progress in the establishment. The conclusion seems necessarily to follow that when the dispute is settled the disqualification ceases. It thus appears that it contains all of the disabilities that the legislature intended to impose because of a labor dispute. Subsection B then appears to be without the influence of the conditions of disqualification set out in subsection A and stipulates for disqualification under other and different conditions. Such seems to be the explicit holding of the Michigan case of Intertown Corp. v. Appeal Board of Michigan Unemployment Commission, 328 Mich. 363, 43 N. W. 2d 888, 890.”

When the claimants offered to return to work on November 30th, they removed themselves from the disqualification of Sub-division (d) of § 81-1106 and thereby became involuntarily unemployed and should not be subject to the ten weeks’ disqualification under Subdivision (a) of § 81-1106. So the judgment in Circuit Court case No. 41167 is affirmed.

Circuit Court Case No. 42261.

The question in this case is one of procedure: that is, which party had the burden of going forward with the proof on the issue of availability of claimants under the state of the record existing, when the Board of Review sent that issue back to the Appeal Tribunal for further determination. In an effort to clarify the situation presented, we sketch in the numbered paragraphs, I to VIII below, the procedure that was followed in this case in the handling of the unemployment claims:

I. Each worker filed a claim for unemployment benefits according to the procedure set out in § 81-1107 (b). An individual record was made for each claimant.

II. The examiner (in this case Mr. Ritchie, the supervisor of the local office of the Employment Security Division) made a determination of each claim pursuant to § 81-1107 (c). The supervisor disqualified each claimant under § 81-1106(a) (for voluntarily quitting work), as previously stated.

III. Each claimant, being dissatisfied with the determination so made by Mr. Ritchie, appealed his claim to the Appeal Tribunal, set up under § 81-1107(d) (1) & (2). Testimony was taken at the hearing before the Appeal Tribunal. A number of witnesses testified, and the hearing covered not only the disqualification under § 81-1106(a), hut also the question of each claimant being available for work under § 81-1105. A written opinion Avas delivered by the Appeal Tribunal. We refer to this hearing in the Appeal Tribunal as the “Fitzsimmons hearing,” because it was conducted before the Chief Appeals Referee, Mr. Fitzsimmons. We shall subsequently revert to this Fitzsimmons hearing, as our decision in this Circuit Court Case No. 42261 turns largely on the record made up at that hearing. The result of the Fitzsimmons hearing was (a) to reverse the supervisor’s determination as to disqualification of claimants under § 81-1106(a), and also (b) to hold that each claimant was entitled to draw unemployment benefits from November 30th. In other Avords, eligibility of each claimant was established.

IV. The Company, being dissatisfied with the results so reached by the Appeal Tribunal, appealed all the claims to the Board of Review, as provided by § 81-1107(d) (3). The Board of Review affirmed the holding of the appeal Tribunal. Here is the decision of the Board of Review:

‘ ‘ The decision of the Appeal Tribunal is hereby modified to hold that the Appeal Tribunal had jurisdiction to go into the claimants ’ availability for work since filing their claims after November 30, 1953, and the question of claimants ’ availability is remanded back to the Appeal Tribunal for further hearings and decisions. The Board holds further that the Appeal Tribunal was correct in reversing the determinations of the Agency holding claimants disqualified for voluntarily quitting their work on October 14, 1953.”

V. The Company then appealed from the Board of Review to the Pulaski Circuit Court (under § 81-1107 (d) (7)) from that part of the opinion of the Board of Review which held that the claimants were not disqualified under § 81-1106 (a); and that case became Circuit Court Case No. 41167, as heretofore discussed.

VI. The Board of Review sent back to the Appeal Tribunal (as per the decision previously copied) the matter of making the awards to the individual claimants. When the case went back to the Appeal Tribunal, the Company took the position that the claimants, having had the burden of establishing their claims originally, would have to come in individually and show availability. The Appeal Tribunal insisted that the testimony taken at the previous hearing before it (i. e., the Fitzsimmons hearing) was sufficient to establish prima facie the claims of all fifty-five of the claimants as to eligibility, but allowed the Company to call any or all of the claimants for cross-examination. The Company insisted that the burden was on the claimants and not on the Company. Thus there arose the procedure problem, i. e., the burden of going forward. When the Company refused to accept the burden of going forward, the Appeal Tribunal sustained the claim of each of the fifty-five claimants.

VII. The Company appealed to the Board of Review, which affirmed the holding of the Appeal Tribunal.

VIII. The Company then appealed to the Pulaski Circuit Court from the opinion of the Board of Review on this procedural matter; the Circuit Court affirmed the Board of Review in its Case No. 42261; and the case is now before us in this consolidated appeal.

A careful study of the record and of the statutes convinces us that this case should be affirmed. Section 81-1107(d) (4), (5), (6) & (7) contain the law governing these administrative hearings. The Fitzsimmons hearing mentioned in paragraph numbered III heretofore, was based on the entire record in the case, including the Agency records. In the course of the Fitzsimmons hearing, there arose the question of whether each claimant had established his availability for work. Supervisor Ritchie testified that he handled these fifty-five claims; that determinations were made on all of the claims involved on an individual basis; and that there was no disqualification of any claimant on the issue of availability to work. He testified that the only disqualification was because of voluntarily quitting the work under § 81-1106(a). The record shows that the card of each individual claimant, while not introduced in evidence, was tendered to the Company’s attorney at the time of the hearing and that the Company actually called several claimants (Agnew, Handley, and Barnes) to cross-examine them on the question of availability. If the Company had wanted to call all the other claimants it could have done so at that time. The determination by Superintendent Ritchie that each of these claimants was available for work beginning November 30th made a prima facie case and the burden of going forward to disprove that case was on the Company. When the Board of Review sent the case back to the Appeal Tribunal it was not necessary to retake the evidence. The entire record of the Fitzsimmons hearing was before the appeal tribunal on remand, and the burden was on the Company to go forward to overcome the prima facie case made by the determination of Supervisor Ritchie. We think the better reasoned cases support the following statement contained in the written opinion of the Board of Review in this case:

“It has been held that a claimant, an unemployed worker in a covered employment, is presumed to be available for work when he registers for work and files a claim for benefits, but such presumption is rebuttable. Mattey v. Unemployment Comp. Bd. of Rev., 164 Pa. Super. 36, 63 A. 2d 171; Kelleher v. Unemployment Compensation Board of Review, 175 Pa. Super. 261, 104 A. 2d 423. According to the authorities in the field, ‘It is indispensable to proper administration of unemployment insurance laws that the claimant be presumed to be available for work unless cause for doubting that availability appears.’ Williams, 8 Vanderbilt Law Review, p. 294, citing Altman, Availability for Work, Harvard Univ. Press, 1950, p. 98.”

Accordingly, tbe judgment of tlie Circuit Court in Case No. 42261 is also affirmed.

       Originally there were fifty-eight claimants, but three claims were withdrawn: these being Creed Ashley, Alberta Chandler and Robert Coates, Jr.

       By Act No. 395 of 1955, the provision found in § 81-1106 (d) was deleted from that section and the matter of labor disputes was placed in § 81-1105 Ark. Stats. The effect of this change by the subsequent legislation is not before us in this ease.

       This procedure is regulated by § 81-1107 Ark. Stats, and the rules of procedure adopted by the Commissioner of Labor pursuant to the authority contained in said section.

         Section 81-1107 (d) authorizes the taking of testimony by the Appeal Tribunal.

       He so testified before the Appeal Tribunal.

       This article by Lee G. Williams in 8 Vanderbilt Law Review, p. 286 et seq. is entitled, “Eligibility for Benefits,” and is most enlightening. It is one of a symposium of articles on unemployment problems, all contained in 8 Vanderbilt Law Review.


source: Caselaw Access Project

author: Minor W. Millwee, Associate Justice.

license: Public Domain

text:
    Berry v. Nichols.
    5-1121
    298 S. W. 2d 40
    Opinion delivered February 4, 1957.

      Charles L. Carpenter and J. Harrod Berry, for appellant.

      Byron R. Bogará and Gerland P. Patten, for appellee.
   Minor W. Millwee, Associate Justice.

This is a proceeding by an attorney for an alleged breach of his contract of employment upon a contingent fee basis when his clients summarily discharged him and employed other attorneys in the settlement of their claims for damages arising out of an automobile collision.

On October 7,1954, the appellees, Mr. and Mrs. T. H. Nichols, and their daughter, Jackie, who was then 18 years of age, were involved in a collision in North Little Bock, Arkansas, in which their automobile was struck from behind by a truck belonging to Yirgil Young, doing business as Young’s Fish Market. Jackie was merely shaken up, Mr. Nichols received minor injuries but Mrs. Nichols was more seriously hurt and their car was badly damaged.

Appellees operate a grocery store in North Little Bock and for several years prior to the collision had employed the appellant, J. Harrod Berry, in all legal matters. Appellant had previously represented Mrs. Nichols on a similar collision claim against L. M. Alexander on a contingent fee basis. He had also handled income tax and other matters for appellees as their regular attorney.

There is little dispute of the proof offered by appellant which tends to establish the following facts. The next day following the collision Mr. Nichols telephoned appellant and they engaged in an extended conversation in which it was agreed that appellant should represent appellees in settlement of their claims against Young on a contingent basis of one-third of any sums received before suit and 45% of all amounts received after suit. At the time of the conversation Mrs. Nichols was confined to her bed within a few feet of the telephone. While she denied appellant’s testimony to the effect that she joined in the conversation and consented to the employment, she subsequently accepted and acquiesced in appellant’s services and participated with him in extended negotiations over a long period without complaint.

Immediately upon his employment appellant went, to work on the claims and contacted the adverse party and his liability insurer by registered mail. He attended a traffic court hearing and held numerous conversations and conferences with appellees, their physicians and the insurer’s representative relative to the claims over a period of several months. During this period he had about 40 telephone conversations with appellees and Mr. Nichols visited his office about 20 times in regard to the case.

Appellees were first treated by Dr. J. W. Shuffield, a bone specialist, who discharged them on December 29, 1954, as completely recovered. Appellant and Mrs. Nichols conferred with the doctor in his office early in January, 1955, and she was dissatisfied with his findings as to her condition. Appellant advised that she consult her family physician, Dr. Myers Smith, and Dr. Richard M. Logue, another bone specialist, and this was done. On February 7, 1955, Dr. Logue examined Mrs. Nichols and two days later reported to Dr. Smith that she had suffered a severe whiplash injury to her neck at the time of the accident. While he did not think any permanent disability would result he recommended use of a traction halter apparatus and stated that the headaches and other pain occasioned by the injury might last for a considerable period. It was about this time that the insurer rejected appellant’s offer to settle for $3,000 and made a counter offer of $1,250 which was declined upon appellant’s advice that negotiations be suspended for a, time.

About April 1, 1955, it was agreed that negotiations for settlement should be resumed. Shortly thereafter Mrs. Nichols became unhappy when her family physician intimated that she was not in as bad shape as she thought and told her that she would feel better when the case was settled. Althoug’h she seemed to feel that appellant shared the doctor’s views, Mrs. Nichols made no complaint directly to him about the matter. During the April negotiations the adjuster made an offer to settle for $2,000 which appellant submitted to appellees and they rejected. Mrs. Nichols felt her condition had worsened and, at appellant’s suggestion, it was agreed that she would consult further with her doctors after which appellees would notify appellant to either resume negotiations or file suit. Appellant prepared a complaint, complete except for the amount of damages sought, which he left with appellees on a visit to their home on April 19, 1955, after they failed to appear at his office the day before. On that visit Mr. Nichols told appellant that Mrs. Nichols was too ill to see him but promised they would come to his office the next day and suggest a final offer of settlement to be submitted to the insurer before suit, and the amount to seek in the event suit was filed.

On April 20, 1955, appellees came to appellant’s office and stated they were discharging him and employing their present attorneys under a written contract executed earlier that day which they exhibited to appellant. This contract recognized the prior employment of appellant by appellees and provided for a contingent fee to the new attorneys on terms substantially similar to those previously made with the appellant. It further provided that appellant should receive the first $666.66 of any fees received by present counsel under their contract. Appellant advised appellees of his unwillingness to enter into such arrangement, that he stood ready, willing and able to perform his contract of employment and that any compensation paid should conform thereto. When appellant inquired whether they would make immediate payment of the fee stipulated in the new contract Mr. Nichols replied: “Why, of course not. I don’t aim to pay you anything.”

After appellant’s discharge negotiations for settlement were continued by appellees’ present attorneys. Mrs. Nichols again consulted Dr. Logue who placed her in the hospital where she remained in traction for 14 days in May, 1955. The doctor issued an additional medical report on May 25, 1955, which was made available to the insurer. Further negotiations for settlement continued without success until June 24, 1955, when present counsel filed suit against Young for damages allegedly sustained by appellees in the amount of $32,500 as a result of the collision. After the issues were joined present counsel made preparation for trial which was set for October 3, 1955, at a pretrial conference. Further negotiations with the insurer resulted in an offer to pay appellees $6,000 ($1,000 to Mr. Nichols and $5,000 to Mrs. Nichols) which was accepted and the money paid into court and impounded to await action upon appellant’s intervention in which he sought a fee of 45 °/o of the settlement under his contract. After appellees answered with a general denial it was stipulated that the intervention, together with appellant’s claim for a percentage of an out-of-court settlement with Jackie Nichols for $250, would be tried by the special judge without a jury.

At the trial the testimony of the insurance adjuster corroborated that of the appellant as to the negotiations for settlement. He denied that appellant indicated any disposition to hurry a settlement and stated that the major factors causing his company to evaluate the claims upward after April 20, 1955, were the additional medical report by Dr. Logue, the increased medical and hospital expenses and the additional claim for loss of past and future earnings to Mrs. Nichols alleged in the complaint. He raised the settlement offer to $2,500 on the date appellant was discharged.

The discovery depositions of appellees taken by appellant were introduced by the former. While appellees contradicted the testimony of appellant on a few points, their answers were so evasive and contradictory as to render their entire testimony questionable from the standpoint of reasonableness and credibility. Although they seemed to be intelligent business people, they evaded direct answers and disclaimed recollection of matters ■which the circumstances clearly disclosed to be within their certain knowledge.

The able trial judge found that the $250 settlement of Jackie Nichols was exempt from appellant’s fee claim. While he felt that appellant was only entitled to a fee of $666.66 from appellees, this sum was increased to $833.33 at the suggestion of appellees’ present counsel with $333.33 of the recovery apportioned to Mr. Nichols and $500 apportioned to Mrs. Nichols. In reaching this conclusion the court rendered an opinion in which he held it unimportant to determine whether appellant’s discharge was with or Avithout cause; that it Avas impossible to assume that appellant Avould have secured more than $2,000 had he been permitted to complete the contract without interference; and that since the increased settlement was produced by appellees’ present attorneys, it would require speculation to conclude that a like disposition Avould have resulted if appellant’s employment had continued.

The evidence sufficiently sustains the court’s finding that Jackie Nichols never authorized the employment of appellant to prosecute a claim on her behalf. However the evidence is overwhelming that appellees Avrongfully and without just cause discharged appellant thereby breaching the contract of employment. Under such circumstances, we are of the opinion that in fixing the damages the court erred in using as the sole measure thereof a percentage of the unacceptable offer of settlement made by the insurer shortly before the Avrongful discharge.

The authorities generally are not in agreement as to-the measure or basis of recovery by an attorney employed under a contingent fee contract who is discharged without fault on his part. In some jurisdictions the discharge of an attorney employed on a contingent fee basis is regarded as putting an end to the contract, so that any recovery of compensation must be exclusively upon quantum meruit. However, in perhaps a majority of jurisdictions, including Arkansas, it has been held that an attorney employed under a contingent fee contract and discharged without fault on his part may recover damages as for breach of contract. Under these cases the measure of recovery usually is the contract price abated by such sum as would in the natural course of things have been incurred if the services had been continued. See 5 Am. Jur., Attorneys at Law, Secs. 182 and 202; 7 C. J. S., Attorney and Client, Sec. 169 a(2); and cases collected in 136 A. L. R. 231.

One of the leading authorities in support of the breach of contract theory is our own case of Brodie v. Watkins, 33 Ark. 545, 34 Am. Rep. 49, where the situation was similar to that presented in the instant ease. In that case Turner was employed by Watkins to prosecute a suit upon an unliquidated claim on a contingency fee basis of 10 per cent of the amount recovered. Turner filed suit and was engaged in its prosecution when he was wrongfully discharged and other attorneys employed who recovered $10,000. In an action by Turner for breach of the employment contract the court held he was entitled to recover $800. This amount represented 10 per cent of the total recovery less $200 which the court estimated as the “probable expenditures” Turner would have incurred if his services had been continued. In reaching this conclusion the court said: “A review of all the authorities, cited on both sides, leads the mind to the conclusion that in cases of special contracts for legal services, which are wrongfully prevented by the client, and where the attorney holds himself continually ready to serve, the latter may claim the whole compensation, subject to such abatement as would, in the natural course of things, have been incurred if the services had been continued. The value of the legal services proper, will not be apportioned; but whilst, upon one hand, the attorney will not be put upon the quantum meruit, he ought not to recover more than he would have made if he had gone on with the case. His time, however, does not be-, long wholly to his client, and no deduction can, in ordinary cases, be justly made on the presumption that it was wholly occupied in other professional business.”

The rule announced in the Brodie case has been followed in several later decisions including Bockman v. Rorex, 212 Ark. 948, 208 S. W. 2d 991, where we again approved the following statement by Judge Eakin in the Brodie case: “Legal services . '. . cannot be apportioned either by time, or the amount of physical labor expended in drawing papers, attending courts, and oral arguments. It is the attorney’s judgment, his learning, his responsibility and advice, which is relied upon, and which gives the peculiar value to legal services. Perhaps the most difficult and valuable services of the attorney may be rendered in considering his client’s ease, and giving him confidential information, before any visible act is done. These are general considerations, to show that the professional services of an attorney cannot justly be apportioned by the plain and obvious mode indicated above for cases of other classes.” The court also observed that while it might be supposed that the first attorney would have done as well as those who actually made the recovery, it could not be presumed that he would have done better. By the same token it should not be presumed that he would not have done as well.

Insofar as this record discloses appellant faithfully, diligently and competently discharged his duties and responsibilities to appellees under the employment contract. Since it is clear that his discharge was wrongful, he is entitled to recover 45 per cent of the recovery of $6,000 less the probable expenditures he would have been required to make if his services had been continued. While we recognize the impossibility of rendering an accurate account of such expenses, we think a deduction of $300 would be proper under the circumstances. The judgment is accordingly modified by increasing appellant’s fee to $2,400 and, so modified, the judgment is affirmed.


author: George Rose Smith, J.

text:
    Long Prairie Levee District v. Wall.
    5-1149
    298 S. W. 2d 52
    Opinion delivered February 4, 1957.

      R. L. Searcy, Jr., and Graves & Graves, for appellant.

      Keith, Clegg ds Eckert and McKay, Anderson & Crumpler, for appellee.
   George Rose Smith, J.

This is a bill in equity by which John W. Wall and J. B. Arnold, Jr., seek to quiet their title to an undivided fifteen-fortieths interest in the oil, gas, and other minerals underlying a forty-acre tract. The appellant levee district is the principal defendant and bases its claim of ownership upon its purchase of the forty acres in foreclosure suits brought for the collection of delinquent levee assessments. The chancellor held that the improvement district sales did not affeet the plaintiffs’ interest in the minerals; the decree granted the relief sought.

On December 24, 1938, Wall and Arnold purchased an undivided fifteen-fortieths mineral interest from F. R. Redden, who then owned the forty acres in fee simple. The deed was recorded two days later and is the basis for the appellees’ claim of title.

Later on the appellant brought suit to collect delinquent levee district assessments for the years 1937, 1938, 1939, and 1940. In that suit “F. R. Redding” was designated as the owner of the land, which was correctly described as the northeast quarter of the southwest quarter of Section 3, township 20 south, range 26 west. Wall and Arnold were not named in the suit; the district’s officers testify that they had no actual knowledge of the mineral deed that was then on record. The district obtained a decree of foreclosure in 1944 and was the purchaser at the commissioner’s sale. In like manner (except that Redden’s name was correctly spelled) the district foreclosed its lien for the 1941 and 1942 assessments and again bought the land at the commissioner’s sale, in 1946. After the expiration of the time for redemption the commissioner deeded the forty acres to the district, on September 13, 1948. When the district subsequently sold the land to third persons it reserved a half interest in the oil, gas, and other minerals. ■ That reserved title constitutes the appellant’s present claim of ownership.

We lay aside the district’s contention that it should not have been required in the court below to elect to rely either upon the first foreclosure sale or upon the second, for in the view we take this issue is immaterial. Inasmuch as both sales appear to have been regularly conducted the question is whether the foreclosure proceedings affected the outstanding mineral interest that was owned by Wall and Arnold.

It cannot be doubted that the foreclosure sales ostensibly vested in the district the fee simple title to the forty acres, including the minerals. The land, as we have said, was accurately described, and such an unqualified description includes the minerals as well as the surface. Osborn v. Ark. Ter. Oil & Gas Co., 103 Ark. 175, 146 S. W. 122; Maloch v. Pryor, 200 Ark. 380, 139 S. W. 2d 51.

Nor, apart from a statute to be mentioned in a moment, can it be doubted that the district obtained a good title despite its failure to name Wall and Arnold in the foreclosure proceedings. The district was created by Act 106 of 1905, which defines the foreclosure procedure and then provides: “Such proceedings and judgment shall be in the nature of proceedings in rem, and it shall be immaterial that the ownership of said land be incorrectly alleged in said proceedings . . .’’In construing this identical language in other improvement district statutes we have repeatedly held that the district’s failure to designate the true owner of the land does not affect the validity of the foreclosure sale. Ballard v. Hunter, 74 Ark. 174, 85 S. W. 252, affirmed 204 U. S. 241; Pinkert v. Lamb, 215 Ark. 879, 224 S. W. 2d 15; Stith v. Pinkert, 217 Ark. 871, 234 S. W. 2d 45, appeal dismissed, 341 U. S. 901. Here the district was mistaken in naming Redden as the sole owner of the land; but, under the rule of property established by the many decisions on the point, the error did not invalidate the sale.

The appellees insist, however, that the district had constructive notice of their recorded mineral deed and was therefore required by statute to make on its own initiative a separate assessment of benefits against the mineral interest. The statute relied upon was originally enacted in 1897 and now reads: “When the mineral rights (and) or timber rights in any land shall, by conveyance or otherwise, be held by one or more persons, and the fee simple in the land by one or more other persons, it shall be the duty of the assessor when advised of the fact, either by personal notice, or by recording of the deeds in the office of the recorder of the county, to assess the mineral rights (and) or timber rights in said lands separate from the general property therein. And in such case a sale of the mineral rights (and) or timber rights for nonpayment of taxes shall not affect the title to the land itself, nor shall a sale of the land for nonpayment of taxes affect the title to the mineral rights (and) or timber rights. When any mineral rights (and) or timber rights assessed as above set out, become forfeited on account of nonpayment of taxes, same shall in all things be certified to and redeemed in the same manner as is now provided for the certification and redemption of real estate upon which taxes duly assessed have not been paid.” Ark. Stats. 1947, § 84-203.

It is plain that this statute was intended to apply to the assessment of property for general taxes rather than to an assessment of benefits by an improvement district. The statute refers to the nonpayment of “taxes,” to mineral rights “forfeited” for such nonpayment, and to the “certification” of those rights. This language is appropriate to the field of general taxation but not to that of improvement district assessments. The duty to make the separate assessment is imposed by the statute upon the county assessor, who ordinarily has nothing to do with improvement district assessments and does not even have custody of the books in which the assessed benefits are recorded. The legislature certainly did not mean to impose upon the county assessor a duty which that officer would be altogether unable to perform.

The appellees point out that as a matter of fairness the owner of constructively severed minerals should not be required to pay for benefits received by the land as a whole; it is said that the justice of this assertion was recognized in Lewis v. Delinquent Lands, 182 Ark. 838, 33 S. W. 2d 379. Doubtless this is true, but the legislature provided a complete remedy by Act 359 of 1925: ‘ ‘ The assessing officers of any improvement district may make a reassessment of the benefits annually, and in any such reassessment they may correct defective descriptions, and where tracts of land have been assessed as a whole such tract may be divided according to their ownership at the time of the reassessment.” Ark. Stats., § 84-1209. Instead of applying for relief under this section of the statutes the appellees stood by for more than ten years and permitted the land to be sold to the district and the period of redemption to expire. Their title to the mineral interest has now vested in the appellant.

The decree is reversed, and, since the title to land is involved, the canse will be remanded for the entry of a decree dismissing the complaint for want of equity.

McFaddin, J., dissents.


author: Paul Ward, Associate Justice.

text:
    Hestand v. Erke.
    5-1156
    298 S. W. 2d 44

    Opinion delivered February 4, 1957.

      Lem G. Bryan and Chas. A. Beasley, for appellant.

      Kincannon & Kincannon, for appellee.
   Paul Ward, Associate Justice.

This appeal deals with the proper retirement pay for a Lieutenant in the Police Department of the City of Fort Smith, Arkansas.

After 20 years of service in the police department appellee, Oscar Erke, at his own request, was permitted, by the Board of Trustees for the Policemen’s Pension and Belief Fund, to retire, and his retirement pay was fixed at $135.75 per month. The Board arrived at the above amount as follows: appellee’s regular monthly salary as a Lieutenant at the time of retirement was $271.50 as fixed by City Ordinance No. 2195, and Ark. Stats. § 19-1809 provides for a pension of “half pay” in event of retirement.

Appellee filed a Petition for a Writ of Mandamus in the circuit court, directed against the members of the said Board, asking the court to compel the Board to fix appellee’s retirement pay at $166.95 per month out of the funds held in trust for that purpose. It was. appellee’s contention before the trial court that his salary or pay at the time of retirement was $333.90 per month. The trial court held in favor of appellee, and ordered his retirement pay fixed at one-half of the above amount or $166.95 per month. The Board has appealed.

The matter was submitted to the trial court on An Agreed Statement of Facts, the material portions of which, in addition to those already mentioned, are as follows: Appellee served as a member of the police department in excess of 20 years and had risen to the rank of Police Lieutenant when he was retired; He was eligible for retirement under Ark. Stats. § 19-1809; In accordance with the provisions of Act No. 78 of 1955 appellee did sufficient extra work as a policeman to boost his monthly pay in 1955 as follows — July $277.37, September $321.42, and October $333.90; The last pay received by appellee as a Lieutenant in the police force was for the month of October 1955, and; Appellee contributed 2 per cent of all extra pay to the Pension and Relief Fund.

It is our conclusion that, under the above situation, the Board in this instance was correct in fixing appellee’s retirement pay at $135.75 per month. Appellee’s salary was fixed by Ordinance No. 2195 of the City of Fort Smith and not by Act No. 78 of 1955. The purpose of the latter Act was to limit the hours and days for police personnel to work and not to fix salaries or pay. It is true that said Section 19-1809 provides for retirement “at half pay.” However a careful study of the provisions of the above section together with the related sections convinces us that the word “pay” as used above relates (under the facts of this ease) to the word “salary” as used in the Ordinance mentioned above.

General Act No. 250 passed in 1937 provides for the Policemen’s Pension and Relief Fund. This Act, as later amended, now comprises Ark. Stats. Sections 19-1801 to 19-1821 inclusive. Section 19-1801 authorizes a millage tax on all property in cities of the first class for the benefit of a pension fund for policemen. Section 19-1802 provides for other funds, one of which is 2 per cent of the “monthly salary” of each member of the police department. Likewise Section 19-1809 makes mention of “monthly salary.”

According to Webster’s International Dictionary the word “salary” denotes payment at regular intervals or “fixed compensation regularly paid, as by the year, quarter, month or week.” Black’s Law Dictionary, Fourth Edition, defines the word as “a stated compensation, amounting to so much by the year, month, or other fixed period, . . .”

In this case the extra pay which appellee received for the three months specified above was for additional hours he worked when and as called upon to do so under the provisions of Section 19-1712. The very fact that different amounts were paid for each of the three months negatives the idea that they were “regular” payments or “fixed compensation regularly paid.”

This entire matter must also be considered from another standpoint which confirms the view we have taken. Pensions have to be paid with money, and the money in this case has to come partly from an assessment on the salaries of the various policemen. It must have been contemplated that such an assessment over a period of many years would produce a substantial and stable fund. No such results however could have been expected from an assessment on remuneration received for brief and irregular extra work such as relied on here by appellee. If appellee’s contention is correct the entire pension program could be endangered simply by giving a large amount of extra work to a policeman for only one month before he was subject to retirement. Manifestly this could be unfair to other policemen who have a right to expect to receive full retirement compensation in the future.

The learned judge in an able opinion relied largely upon the holding in the case of State ex rel. King v. Abbott, et al., 43 Del. 472, 48 A. 2d 745, but the facts in that case distinguish it from the case under consideration. There the policeman, at the time of retirement, was drawing base pay at the rate of $170 per month and in addition thereto he was drawing, under legislative enactment, $15 each month under a “State Police Compensation Plan” and $15 each month to compensate for the increased cost of living. The court properly held that all of the above payments constituted salary, holding that the policeman was entitled to a pension of $100 per month, or one-half of his salary. The $15 payments mentioned above met all of the requirements of the definition of a “salary” as stated above ■ — ■ said payments constituted fixed compensation paid at regular intervals over an extended period of time.

Because of the disposition which we have made of this case it is unnecessary to consider appellant’s first contention that the action of the Board of Trustees of the Policemen’s Pension and Belief Fund in this matter was not subject to review by the courts. The Board acted properly in offering to refund to appellee the 2 per cent assessments he has paid on the amounts received for additional work.

Beversed.


author: Sam Robinson, Associate Justice.

text:
    Griffin v. Mo. Pac. Rd. Co.
    5-1168
    298 S. W. 2d 55
    Opinion delivered February 4, 1957.

      M. V. Moody, for appellant.

      Pat Mehaffy and W. A. Eldredge, Jr., for appellee.
   Sam Robinson, Associate Justice.

In this appeal, the appellant states his points as follows: “1. This appeal is taken by appellant for tbe sole purpose of determining whether or not the trial court had the right to arbitrarily take from the appellant’s attorney the right to qualify the Jury on voir dire examination; the right to examine the jury as to disqualification; challenge for cause and peremptory challenge and to examine them individually or in groups of three. 2. To determine ■whether the trial court erred in not allowing appellant’s attorney the privilege of reading before the jury and into the record that part of his complaint touching upon ‘The Federal Employers’ Liability Act’ and the ‘Safety Appliance Acts.’ 3. To determine if the trial court had the right and power to permit the appellant’s wife to testify in behalf of the appellee to impeach or discredit her husband’s testimony.”

There is no abstract of the voir dire examination, and no abstract of the testimony or of the opening statement. Hence, from appellant’s brief, we cannot determine whether there was error. It has been pointed out repeatedly that this court will not search the record; that it is wholly impractical for the seven members of this court to read the one record. Commissioner of Labor C. R. Thornbrough v. Danco Construction Company, 226 Ark. 797, 294 S. W. 2d 336.

Affirmed.


author: Per Curiam

text:
    Leslie Miller, Inc. v. State.
    4807-8-9-10
    298 S. W. 2d 44
    Opinion delivered February 4, 1957.
   Per Curiam

opinion conforming to mandate of U. S. Supreme Court.

CONFORMING OPINION

These are the same cases as Miller v. State (4807-4810, inc.) reported in 225 Ark. 285, 281 S. W. 2d 946.

In our former opinion we affirmed the convictions of the appellants. They appealed to the United States Supreme Court; and on December 17, 1956, that tribunal reversed our decision. See Miller v. Arkansas, 352 U. S. 187; 1 L. Ed. (2) 231; 77 S. Ct. 257. The United States Supreme Court made tbis directive:

“Tbe judgment of tbe Supreme Court of Arkansas is reversed and tbe cause is remanded for further proceedings not inconsistent with tbis opinion.”

Tbe Mandate of tbe United States Supreme Court was filed in our Court on January 21, 1957; and in accordance with said Mandate, we now deliver tbis conforming opinion, towit:

Tbe judgment of tbe Pulaski Circuit Court in each of these cases is hereby reversed, annulled and set aside and tbe appellants are awarded all costs therein expended.


author: Carleton Harris, Chief Justice.

text:
    Ward Body Works, Inc. v. Smallwood.
    5-1169
    298 S. W. 2d 332
    Opinion delivered February 11, 1957.

      Huie and Huie, for appellant.

      Loohadoo, Gooch <& Loohadoo, for appellee.
   Carleton Harris, Chief Justice.

This case arose out of a traffic mishap which occurred a short distance south of Arkadelphia, on highway 67. Appellant, W. E. Bolding, was driving south on said highway delivering a new school bus to a customer of Ward Body Works. He attempted to pass appellee, Cecil R. Smallwood, who was also proceeding south in a tractor belonging to him, and to which was attached a trailer, belonging to United Transport, loaded with new automobiles. While he (Bolding) was in the process of passing, a car came over the hill from the opposite direction, moving rapidly, and appellant, thinking he was clear of appellee, pulled back into the right lane. The right rear corner of the school bus collided with the left front of Small-wood’s tractor, which overturned. Smallwood filed this action against Bolding and Ward Body Works to recover for property damage and physical injuries.

At the trial, appellee contended that Bolding cut in too quickly, while appellants contended that appellee should have decreased his speed when the approaching car was observed, in order to permit Bolding to completely pass the tractor. The jury found that Bolding was guilty of negligence, and that the total amount of damages sustained by appellee was $12,000 personal injury and $1,500 property damage. The jury also found appellee guilty of negligence, and further found that the total negligence causing the collision should be prorated 75(1 to Bolding and 25% to Smallwood. This resulted in a judgment for Smallwood in the amount of $9,000 for personal injuries and $1,125 property damage, or a total of $10,125. From such judgment comes this appeal, the sole point raised by appellants being that the verdict of the jury was excessive. Appellee cross appeals, contending that there was no evidence that Small-wood was guilty of any negligence at all, and lie should have the full amount of recovery.

First, we dispose of the cross appeal. Appellee insists there is no evidence of negligence on his part, and that the jury was in error in making this finding. It is true that the only direct evidence, as to negligence of appellee was presented in the testimony of Bolding, who stated as they started down the hill (at which time he was endeavoring to pass appellee) the tractor picked up speed, and that if Smallwood had slowed the tractor down, appellant would have been able to clear the vehicle before cutting back in. Other evidence also indicated that Bolding may well have been trying to pass appellee for a distance of about four-tenths of a mile. We think the testimony of Bolding was sufficient to raise a jury question, and it was within the province of the jury to determine whether or not appellee was guilty of negligence. Accordingly, we hold there is no merit in the cross appeal.

We come then to the claim that the verdict is excessive. Appellee contends that the cervical part of his spine has been injured; that it causes pain when he turns his head; that he has extreme pain in the lower part of his back, and that at times when driving, he takes trembling spells which almost cause him to black out. He testified that he formerly worked a 70 hour week, but that he is presently not able to put in more than 60 to 65 hours, which extend over the entire week (instead of concluding in five days, six hours), and instead of taking an eight hour rest period, it has become necessary to rest from 10 to 14 hours before resuming his duties. He also complains of extreme nervousness; states that he has to frequently stop and rest on his trips, and that he has undergone much mental pain and worry through fear that he will not be able to continue in his work, and, accordingly, not be able to support his family. The record discloses that he spent one day in the hospital immediately following the collision, lost 35 days from work, and has visited several physicians for examination or for treatment.

Two physicians, Dr. Richard M. Logne, orthopedic surgeon of Little Rock, and Dr. R. E. Rowland of Pine-ville, Louisiana, testified for appellee. Dr. Logue stated that he saw the patient three times, first in October, and last on March 26th, 1956. He found tenderness over the mid-portion of the neck, particularly on the right, and x-rays revealed a narrowing of the inter-space between the fifty and sixth vertebrae. This, according to Dr. Logue, indicated an injury at some prior time, said injury causing this narrowing because of damage to the intervertebral disc space. It was his opinion that this narrowing could have been caused by the injury received by appellee on July 28th. He stated that pain is a natural accompaniment of such an injury. “With the complaints that Mr. Smallwood exhibits and in spite of the dearth of physical findings, it is my feeling in cases such as these, that pain arises from the strains associated with the accommodation of the body to the narrowing of the space and this in turn produces tensions in the neck which can result in his headaches. Because of my experience in seeing a number of these injuries, and in many without even x-ray evidence present, I feel that it is accepted among orthopedists that such injuries do cause some degree of permanent disability. In Mr. Small-wood’s ease I feel this does not exceed 10% to the body as a whole.” Dr. R. E. Rowland examined appellee on October 15th, 1955, and this examination was entirely neurological and psychiatric. From his testimony ; “Neurological examination: he had a decided facial tremor; in other words, he was shaking and nervous — tremors on both sides. The fold — the nasal laval fold — running from his cheek to the corner of his mouth on the right side is exaggerated; tremor of lips, tremor of tongue on extension; tremor of fingers on extension — his hands were shaking — both upper extremities showed slight increased motor activity on reflexes, more pronounced on the right; slight exaggerated reflex of patellae; left achilles exaggerated; tremor of the voice; missed finger to nose test; positive Rhomberg.” Dr. Rowland related the patient was suffering from traumatic neurosis, was very nervous, and in his opinion, the nervous condition resulted from the wreck on July 28th. He also examined appellee April 22, 1956 (one day before the trial). His testimony relative to such examination was that he considered the patient disabled at that time because of high tension, that Small-wood was extremely nervous, and he did not know how long this condition would exist, but “the nervous tissue is the highest tissue we have in the body, and the last to repair itself.” He considered the patient disqualified vocationally, e. g., that he would be unable to use good judgment and would become frustrated; that the dizzy spells and blackouts would certainly disqualify him from driving, and that Smallwood needed rehabilitation or revocationing because “those black-spells are certainly serious. ’ ’

Dr. Kenneth Jones, orthopedic surgeon of Little Rock, Dr. Robert Watson, practicing neurological surgeon of Little Rock, and Dr. Andrew Crenshaw, orthopedic surgeon of Campbell’s Clinic, Memphis, Tennessee, all testified on behalf of appellant. Dr. Watson saw the patient on January 6th, 1956, and testified he found no physical evidences to prohibit appellee from returning to work, and was of the opinion that there were no indications for further medical treatment. Dr. Jones found no evidence of physical injury, but in his report stated the patient ‘ ‘ appeared to be emotionally unstable and might well be suffering from a traumatic neurosis.” Dr. Crenshaw (whom Smallwood first visited for treatment by his own choice) first treated appellee in August, 1955. He testified that his examination revealed tenderness over the mid-portion of the neck, and restriction of neck motion 50 to 75% normal. Examination of the back proved negative except for the fact that' pressure over the right 10th and 11th ribs posteriorly (behind) caused a clicking sensation in the right lower front part of the chest, which caused the patient to jump with pain. Appellee complained that this was the type of pain he had in his back while driving the truck, and that it usually came when he hit a bump in the road. Dr. Crenshaw also found a narrowing of the disc space between the fifth and sixth cervical vertebrae (bones in the neck). He advised staying away from work for two weeks and the use of hot packs. Dr. Crenshaw again saw appellee during the latter part of September, at which time most of the neck discomfort had disappeared, and also most of the back discomfort. Examination of patient’s back still revealed the clicking sensation in the ribs (previously described) in front, when pressure was applied from behind. It was the opinion of Dr. Crenshaw that appellee would eventually be completely free of the symptoms, though this might not occur for more than a year. He stated that the patient would be able to work, although he would have discomfort. The doctor did not know how long a truck trip appellee might be able to make in comparison to previous truck trips.

Appellants further contend that with the exception of the months of August, September, and November, appellee’s earnings have been higher than before the wreck. This is true with the exception of January, 1956, but appellee states that his base pay had been raised about 3c a mile subsequent to the accident.

As stated in East Texas Motor Freight Lines, Inc. v. Buck, 213 Ark. 640, 212 S. W. 2d 13, “It is not the province of the appellate court — in considering whether a verdict is excessive — to determine as between the credibility of the various sets of medical experts. On appeal we are required to give the evidence supporting the verdict its highest probative value. * * * So, here, we must take the substantial evidence showing the greatest amount of injuries, and then, — based on such injuries — determine whether the verdict is excessive.” The case of Golenternek v. Kurth, 213 Ark. 643, 212 S. W. 2d 14, 3 A. L. R. 2d 593, quotes with approval the earlier language of Mr. Justice Kirby in St. L. S. W. Ry. Co. v. Kendall, 114 Ark. 224, 169 S. W. 822. “There is no market where pain and suffering are bought and sold or any standard by which compensation for it can be definitely ascertained and the amount actually endured determined, and compensation therefor must be considered on a reasonable basis, and the jury cannot give any amount they please, although the amount of damages must be left largely to the reasonable discretion of the jury.” * * * Applying the standard as herein set out, we are of the opinion that the verdict awarded appellee for personal injuries was excessive, and should be reduced to $9,000.

Appellants also contend that the judgment for damage to the tractor was excessive by about $400. William Earl Smith, a witness for appellant, testified that the tractor could be repaired for $795.76. He did not profess to know the market value of the tractor before the wreck occurred. Appellee testified the fair market value of the tractor to be $2,000 before the wreck, and the fair market value afterwards to be $300. W. O. Duce, automobile dealer in Arkadelphia, testified that he was familiar with appellee’s tractor (in fact, he had seen it the day before the wreck) and a fair market price for the tractor would be from $1,850 to $2,100; that he would estimate the value of same after the wreck at $300 to $400. On cross-examination, he reduced this figure to some extent, but we are of the opinion that the evidence was sufficient to justify the judgment of the jury for $1,500 property damage.

Summarizing, the jury awarded Smallwood $12,000 personal injuries, and $1,500 for property damage. We feel that the judgment for $12,000 is excessive, and should be reduced to $9,000. The jury also found Small-wood guilty of negligence, and that such negligence should be prorated 75% to appellant and 25% to appellee. Accordingly, under the reduction herein ordered, and after prorating the negligence as found by the jury, appellee is entitled to personal damages in the amount of $6,750, property damage in the amount of $1,125, or a total judgment of $7,875.

CONCLUSION: If, within fifteen juridical days, a remittitur be entered in keeping with this opinion, then the judgments will be affirmed as so reduced. If such remittitur be not entered, tbe judgments will be reversed and tbe cause remanded.

Justices Ward and Robinson think the case should be affirmed in all respects.

         See Act 191 of 1955.

       The collision which is the subject of this litigation occurred on July 28,1955.


author: J. Seaborn Holt, Associate Justice.

text:
    Kincade v. C. & L. Rural Electric Coop. Corp.
    5-1097
    299 S. W. 2d 67
    Opinion delivered February 11, 1957.
    [Rehearing denied March 18, 1957.]

      V. J. Brocato, Clarksdale, Miss.; Brockman & Brockman, for appellant.

      T. S. Lovett, Jr., and J. W. Barron, for appellee.
   J. Seaborn Holt, Associate Justice.

Some phases of the present case have been considered and determined in the two former cases of C&L Rural Electric Co-operative Corporation v. McEntire, 216 Ark. 276, 225 S. W. 2d 941 and C&L Rural Elec. Coop. Corp. v. Kincaid, 221 Ark. 450, 256 S. W. 2d 337.

On June 19, 1947, appellants (to whom we shall refer as Delta) were engaged under a contract with C&L Rural Electric Co-operative Corporation (to which we shall refer as C&L) in construction of additional electric distribution lines (or extension lines) for C&L to be tied in with some 1,200 miles of C&L’s existing system which had been constructed in 1945 and energized in 1946. Dickinson and White were the project engineers employed by C&L and they let the contract for C&L with Delta, and supervised the construction. Dickinson and White employed, with C&L’s approval, W. A. Ramsey as construction supervising engineer over the project. On June 18, 1947 Ramsey prepared and issued clean-up order 314 for work on a number of poles on the new construction project including pole 249, which he gave to Paul Strode, Delta’s superintendent, who worked in cooperation with Ramsey. The next day, June 19, 1947, Strode gave this clean-up order to McEntire, Delta’s employee, and directed him to do certain work on pole 249. McEntire, with but two months’ experience at the time, proceeded to the pole, and in attempting to perform the work required came in contact with a wire carrying 7,620 volts and was so severely injured that it was necessary to amputate both of his hands. McEntire then sued C&L, Dickinson and White and Ramsey (engineers) and secured a judgment for $40,000. The judgment was affirmed in C&L v. McEntire. 216 Ark. 276, 225 S. W. 2d 941. Dickinson and White’s insurance carrier paid $5,000 (the extent of its policy liability) on the judgment. C&L had liability coverage with Employers Mutual Liability Insurance Company (appellee) and his company paid $25,000 on the judgment (the limit of its policy liability), plus its pro raia share of the interest and cost. C&L paid the balance of $10,000 together with its share of interest and cost. Under the terms of its policy Employers Mutual was subrogated pro tanto to the rights of C&L, and has joined C&L in the present suit against Delta on Delta’s indemnity agreement with C&L which was a part of the 1947 new construction contract. Delta demurred to appellees’ complaint and the trial court sustained its demurrer. On appeal here from the order dismissing appellees’ complaint, we reversed (221 Ark. 450, 256 S. W. 2d 337) and remanded with directions to overrule the demurrer and in that case we pointed out: “We must point out that the extent of Delta’s liability to C&L on Delta’s Indemnity Contract with C&L would be measured by, or depend upon, its degree of negligence, if any, in contributing to McEntire’s injury and prorated accordingly.” On a trial the court instructed the jury “If you find from a preponderance of the evidence that the defendant, Delta Construction Co., or its agents or employees were negligent and that such negligence, if any, either proximately caused the injury to McEntire or contributed to cause the injury, then you will answer the following question: Using 100% to represent the total or combined negligence of C&L and Delta, if you find Delta was negligent, in causing the injuries to McEntire, what percent of negligence do you find from the evidence is attributable to each of them? In this connection you are instructed to find that C&L was negligent in some percentage, • — • whatever the evidence may show.” The jury returned a verdict finding that Delta was guilty of negligence and assessed its part of the whole at 60%. From the judgment appellant has appealed and appellee has cross-appealed from that part of the judgment denying interest to them from the date they satisfied the McEntire judgment.

Appellant first argues that to establish Delta’s liability under its indemnity contract with C&L that C&L must show "that Delta was in control of Pole 249 and the electric transmission lines attached thereto on June 19, 1947, at the time McEntire went upon said pole and was hurt . . . that Delta, its agents or employees, committed some act of negligence, while in control, that caused or contributed to McEntire’s injury. ’ ’ In short, says appellant, "was the work called for to be done on Pole 249 part of the contiact Delta was bound to perform?” We have concluded that the jury could so find. The construction contract defines Project as follows: "The term ‘Project’ shall mean the rural electric distribution system, or portion thereof, described in the Plans and Specifications, construction drawings and maps attached hereto. Article, 7, 1(e), Construction Contract.” The indemnity contract, upon which the present suit is based, provides: "(g) The Project, from the commencement of work to completion, or to such earlier date or dates when the Owner may take possession and control in whole or in part as hereinafter provided shall be under the charge and control of the Contractor and during such period of control by the Contractor all risks in connection with the construction of the Project . . . shall be borne by the Contractor . . . The Contractor shall hold the Owner harmless from any and all claims for injuries to persons or for damage to property happening by reason of any negligence on the part of the Contractor or any of the Contractor’s agents or employees during the control by the Contractor of the Project or any part thereof.”

Article 8, 1 (f) defines completion as follows: "The term ‘Completion’ shall mean full performance by the Contractor of the Contractor’s obligations under this contract and all amendments and revisions thereof. A certificate of Completion stating the date of completion, signed by tbe Engineer and approved in writing by tbe Administrator, shall be the sole and conclusive evidence as to the fact of completion and the date thereof. Portions of the Project shall be deemed to be completed, within the meaning of this provision when they have been completely erected, and have been inspected and accepted in writing, by the Engineer on behalf of the Owner. Thereafter snch completed sections may be energized in accordance with the provisions of Article IV, Section 3, at which time the Contractor’s liability for maintaining them will cease.” It appears undisputed that Pole 249, on which McEntire’s injury occurred was constructed by Delta under its 1945 contract with C&L, and was a part of C&L’s existing system of distribution lines on June 19, 1947, when McEntire received his injuries. It also appears to us equally clear that the control required under the 1947 contract, hereinafter considered, was on the project which included Pole 249, on which McEntire was injured, and on which clean-up work was required under the contract before the project was completed.

The record reflects that shortly before McEntire received his injuries Delta had dead-ended a new tie-in line from the South to Pole 249, and this particular line was deenergized (or cold) when McEntire was injured. It further appears that the line had not been accepted by C&L, nor was it in service when the injury occurred. The evidence further shows that on the day before the injury to McEntire, Eamsey handed to Strode (Delta’s superintendent) certain clean-up notes which required certain clean-up work to be done on Pole 249 as a result of the construction of the new tie-in line before this line would be accepted and put in service, or before the project was completed. To do this work it was necessary for McEntire to climb to near the top of Pole 249, lower a down guy, which was on the south side of the pole and move it to the north side. The work also required the completion of an A-6 assembly, which meant to put proper insulators on either side of the pole so that the new tie-in line could be connected with the existing primaries, and finally to anchor the pole. While on the pole McEntire contacted the live primary wire, which came from the north, carrying 7,620 volts resulting in his injury. It appears undisputed that C&L owned the hot primary wire which extended to the north from Pole 249. The work, however, that McEntire was doing under the clean-up sheet given to him by Strode (Delta’s man) was work necessary to be done in order to complete the project under the 1947 contract, and we think the evidence shows that the tie-in line was still under the control of Delta at the time its superintendent, Strode, sent McEntire up on the pole, without first having inspected the pole. It appears that the work sheet which Bamsey handed to Strode, and which work sheet Strode in turn gave to McEntire, directed McEntire to do the clean-up work on Pole 249 but it did not show that the pole was energized, or hot. The evidence further shows that Delta made no inspection of the pole before directing its employee, McEntire, to ascend the pole and do the work required, but appears to have relied upon what the work sheet alone showed. It further appears that Strode had never seen Pole 249, but located it from a plate or a map of the project.

Lynn Thomasson, C&L’s manager, testified that the new tie-in line from the south was constructed about two weeks before McEntire’s injury and that it was dead-ended into Pole 249 and that this tie-in line had not been turned over to C&L at the time of the injury, that there still remained work to be done on it and it was Delta’s line until the project was completed. W. S. Kincade, one of the appellants, testified: “Q. This tie-line we have been talking about running south from pole 249 hadn’t been completed at the time McEntire was hurt, was it? A. No, sir. Q. There remained further work to be done on it by the Contractor, namely, Delta Construction Company, didn’t there? A. On? Q. On the tie-line. A. On the tie-line, that is correct. Q. That is correct so that being the situation, Delta had positive control over that tie-line? A. Yes.” In these circumstances we think there is ample evidence that additional work remained to be done in connection with the tie-in line before it could be accepted by the engipeers of C&L and that Delta had control over it within the meaning of the contract provision calling for indemnity, and that the jury was warranted in finding that Delta was negligent and in fixing its degree of fault at 60%.

Next appellant says that our decision in C&L Rural Elec. Coop. v. McEntire, supra, is the controlling doctrine of law in this ease. We do not agree. The law of the case can only apply where the parties are the same. In the original McEntire case the parties were not the same as in the present case. Stare decisis has no application here for the reason that the subject matter in the McEntire case is not identical with that in the present case. The McEntire case was a suit in tort for personal injuries and this case being one on contract for indemnity. “The doctrine of the law of the case has no application in cases where the parties are not the same; but the doctrine of stare decisis requires the decision on a former appeal in a case between different parties, but involving the same subject matter, be followed, unless there be in the former case palpable error,” Western Union Telegraph Co. v. Byrd, Adm’x., 197 Ark. 152, 122 S. W. 2d 569.

Appellants also contend that: “The tie-line constructed in May, 1947, was a part of and was included in the construction contract entered into between C&L and Delta on July 14, 1945, and the cause of action thereunder, if any, arose February 13, 1950, . . . and is therefore barred by the five-year statute of limitations. ’ ’

It appears from ample testimony that Delta received notice in a letter (dated May 17,1948) from C&L by registered mail of the McEntire tort suit against C&L; that Delta was offered the opportunity to take over and defend that suit, but that it refused to do so. Another registered letter (dated December 21, 1948) was mailed to Delta informing it of the judgment against C&L in the McEntire case, and a return receipt postmarked December 23, 1948 was received by C&L; also a letter from Delta dated January 24, 1949, in response to the December 21st letter, stating “We would, like to advise you that we are disclaiming any liability on this judgment. ’ ’ There was also in evidence the contract C&L entered into with Delta in 1947 authorizing, in effect, the construction and completion of a certain tie-in power line to connect with Pole 249. We think, after reviewing the testimony, that there was substantial evidence that the work was done under the 1947 contract, which was designated Arkansas 21M Lincoln, ■ — ■ Lynn Thomasson so testified. The work calling for the clean-up notes resulted from the stringing of the new tie-in line to Pole 249 from the South. Becords of C&L tended to show that part of work order 314 was performed under an amendment to the 1947 contract and Thomasson identified that part as being the tie-in line in question. W. S. Kincade, one of the appellants, admitted he had signed many construction orders showing that work order 314 was at least in part performed under the 1947 contract. One of these orders which he signed was designated Arkansas 21M Lincoln, and when asked whether this designation meant the 1947 contract, he testified: “Q. This is the copy of the 1947 contract, Mr. Kincade, introduced in evidence, is that correct? A. Yes. Q. ’How is it entitled? A. BE A Project Arkansas 21M Lincoln. Q. . . . How is line 314 entitled here (referring to the construction order signed by Kincade) ? A. You mean this? Q. Yes, sir. A. Project. Q. Project What? A. Arkansas 21M Lincoln. Q. Who signed it? A. I signed all of them.”

We hold, without detailing more of the testimony, that there was substantial evidence that the work was done under the 1947 contract and, therefore, the cause of action was not barred by the five-year statute of limitations.

Appellants further contend that: “An indemnity agreement is to be construed as written, and when ambiguity exists, it must be construed against the indemnitee in favor of the indemnitor. ’ ’ Most of appellants argument on this point has been answered, adversely to it above — that is, its contention that C&L was in control at the time of the injury and the work was being done under the 1945 contract. Nor can we agree that there is any ambiguity in the indemnity contract above, in question here. On this point appellant also argues, in effect, that if the work was done under Amendment No. 1 to the 1947 contract, then there was no liability because this amendment was never approved and, therefore, no contract, and that McEntire’s injury occurred prior to the amendment and was not covered by it. We do not agree. The indemnity contract above provides in no uncertain terms that “The term ‘Completion’ shall mean full performance by the Contractor of the Contractor’s obligations under this Contract and all amendments and revisions thereof . . .” So, clearly, the indemnity provision applied to all amendments or revisions of the contract. The record shows that this Amendment No. 1 to the 1947 contract was denominated: “Project — -21M Lincoln Request for Construction Contract Amendment No. 1 Date — July 14, 1947. It is addressed to the Administrator of the REA in Washington. It commences: ‘The following changes in material and labor cost in the Construction Contract dated February 20, 1947, are hereby submitted for your approval.’ It then sets out the data on the original contract, together with the data on the proposed amendment, such as the mileage, signed consumers and costs. It is signed on behalf of C&L by its president. There is a written approval of Dickinson & White, engineers, and also contains the signature of Delta as follows: ‘Accepted: Delta Construction Company (Contractor) by W. S. Kincade.’ Attached to this Amendment No. 1 is a contract dated December 1, 1947, between C&L and Delta which recites: That Owner and C&L had entered into a contract dated February 20, 1947, for the construction of approximately 265 miles of distribution lines financed by the REA. That the Contractor has commenced the construction of an additional 125 miles of distribution lines without securing the approval of the Administrator.” It thus clearly appears that Amendment No. 1 was made a part of the 1947 contract, so that the 1947 contract, affecting the obligations of the parties, was made a part of this Amendment No. 1 and as pointed ont the indemnity agreement applied not only to the 1947 contract bnt to all amendments and revisions.

Another contention of appellants is that: “The Court erred in admitting imcompetent testimony on behalf of the plaintiff; and rejecting competent testimony on behalf of the defendant.” We think there is no merit to this contention. It suffices to say that we have reviewed the record and find no prejudiced error in the trial court’s actions in permitting or refusing the introduction of evidence.

Errors were also alleged in the giving and refusing to give certain instructions. It would unduly extend this opinion to enter upon a discussion of them. We have, however, considered them all and find no error. Other alleged errors have not been overlooked, but on consideration we find all to be untenable. Accordingly, the judgment is affirmed on direct appeal.

On appellees’ cross-complaint we have concluded that their contention that the trial court erred in denying them interest at 6% on the McEntire judgment from the date they paid it, February 13, 1950, must be sustained. It is unquestioned here that appellees paid the McEntire judgment, and on that date Delta became liable to them on the indemnity agreement. The jury determined that Delta was liable for 60% of the money that appellees paid from their own money for Delta, so Delta has had the use of appellees’ money, and fairness and justice demand that Delta pay interest (6% the legal rate) on this money of which appellees have been deprived. The fact that we are dealing with an unliquidated demand is not controlling. “As a necessary part of his damages an indemnitee may recover against his indemnitor interest . . .” 27 Am. Jur. Indemnity, § 27, p. 473. Miller v. Robertson, 266 U. S. 243, 257, 69 L. Ed. 265, 45 S. Ct. 73: “Compensation is a- fundamental principle of damages, whether the action is in contract or in tort . . . One who fails to perform his contract is justly bound to make good all damages that may accrue naturally from the breach; and the other party is entitled to be put in as good a position pecuniarily as he would have been by performance of the contract.” Loomis v. Loomis, 221 Ark. 743, 255 S. W. 2d 671, “Yet when the defendant is actually in default there are many instances in which interest is allowed even though the precise extent of his liability is not determined until the trial. For example, a defendant’s liability for breach of a contract to pay a definite sum of money may be uncertain, for the default may have saved the plaintiff the expense of full performance on his own part, and that saving may be a matter for the jury to determine. In spite of this uncertainty interest is recoverable from the date of the breach.” Public Market Co. of Portland v. City of Portland, et al., 171 Or. 522, 138 P. 2d 916, 918, “. . . We are of the opinion, moreover, that the fact that the damages are unliquidated is not necessarily a bar to the allowance of interest, and that ‘no right reason exists for drawing an arbitrary distinction, between liquidated and unliquidated damages.’ . . . The tendency of modern authority is to disregard such a distinction. ’ ’ American Law Reports, Annotated, 27 A. L. R. 2d, Annotation, § 8, p. 1276, “Interest from the date of payment of a joint judgment has been held properly allowable to a tortfeasor on the outlay thus made on behalf of the other joint tortfeasors.” 42 C. J. S. § 13 c. Interest, p. 585, “As a general rule an indemnitee who has been compelled to pay a debt or liability against which he is indemnified is entitled to recover interest on the amount paid, from the time of payment or, as it has been held, from the date of the judgment against him, from the time the loss was definitely settled, or from judicial demand . . . ”

So, on appellees’ cross appeal the judgment in so far as it denies interest will be modified so as to allow interest and as so modified it is affirmed.

Justice George Rose Smith not participating.


author: Ed. F. McFaddin, Associate Justice.

text:
    Smith v. State.
    4845
    299 S. W. 2d 52
    Opinion delivered February 11, 1957.
    [Rehearing denied March 18, 1957.]

      James E. Stein, Floycl E. Stein and John F. Gibson, for appellant.

      Tom Gentry, Attorney General; Thorp Thomas, Asst. Attorney General, for appellee.
   Ed. F. McFaddin, Associate Justice.

Appellant, B. N. (“Bill”) Smith, was convicted of murder in the first degree for the homicide of Buck Layne; and the jury fixed the punishment at life imprisonment. The motion for new trial contains forty-one assignments, which we group and discuss in topic headings:

I. Sufficiency Of The Evidence. Viewing the evidence in the light most favorable to the verdict, the facts appear as herein recited. On October 29, 1955, the badly decomposed body of Buck Layne was found in a secluded section of woodland near the “old Ben Thomas place” off of Highway No. 8 in Dallas County. There was evidence of an injury to the skull. Tracks indicated a vehicle had backed from the road to the place where the body was found. It was the opinion of the state medical examiner, after performing an autopsy, that death had been caused by the force of a blunt instrument striking the head and that the date of the death was about October 20, 1955, with a possible variance of 24 hours earlier or later.

The last day that Layne was seen alive was on October 19, 1955, and the last person seen with Layne was the appellant, Bill Smith, who was frequently interrogated before he was arrested. Blood was found on the leather boots that Smith admitted that he wore on October 19th. Buck Layne and Bill Smith were long time acquaintances, and each was engaged in some phase of the livestock business. Layne was working on a profit-dividing basis with L. H. Campbell, who was furnishing the money for their operations. On October 17, 1955 Layne and Smith went together to Eastern Arkansas to fix Layne’s truck. They spent Tuesday night, October 18th, at Marvell, Arkansas, and then proceeded to Fordyce on October 19th in Smith’s truck, with Layne’s horses and mules and saddle in the truck.

While in Fordyce they purchased some Vodka and Layne became intoxicated. He unloaded his livestock at Barner’s Stockyard, but was unable to make a sale. Layne and Smith then reloaded the livestock into Smith’s truck in the late afternoon and Smith and Layne were last seen together in Smith’s truck in Fordyce.

Burke Hodnett testified that shortly after five o’clock in the afternoon of that day, he saw a truck driving on old Highway No. 8. Hodnett, driving his own car, followed the truck until it turned off on a small road leading toward the ‘£ old Ben Thomas place. ’ ’ Hod-nett testified that the truck looked like Smith’s truck because of the unusual construction of its bed.

When Layne failed to return to Little Rock with the livestock on October 19th, his business associate, L. H. Campbell, went in search of him, and when Campbell reached El Dorado on October 20th he found that Bill Smith had sold Layne’s horses and mules in El Dorado and still had Layne’s saddle. Smith’s explanation as to how he came into possession of the livestock was, that he cancelled a $125.00 debt which Layne owed him and, in addition, had given Layne ££fifteen $20.00 bills” for the livestock. As to the saddle, he said that Layne failed to take it when Layne left him to go off with a white man named Henry and an unnamed Negro in the late afternoon of October 19th. Smith was entirely unsubstantiated as to the identity or the existence of Henry or the Negro. Smith also had deposited, to his own account in an El Dorado bank, a $50.00 check that Layne had endorsed.

An El Dorado policeman, Monroe Taylor, testified that on August 27, 1955, Smith came to the police station shortly after midnight and told Taylor that Smith was having trouble with his wife; that he had just seen his wife and Layne on the highway, but their car had eluded him. Taylor testified that Smith told him that he would “take care” of Layne later. The jury viewed the place where the body of Layne was found, and also viewed Smith’s truck and certain tools that were said to have been in the truck.

We have sketched enough of the evidence to clearly demonstrate that it was sufficient to take the case to the jury and to support the jury verdict. For some of our cases involving circumstantial evidence see: Edmonds v. State, 34 Ark. 720; Butler v. State, 63 S. W. 46 ; Hogue v. State, 93 Ark. 316, 124 S. W. 783, 130 S. W. 167; and Osborne v. State, 181 Ark. 661, 27 S. W. 2d 783.

II. Defendant’s Requested Instruction On Circumstantial Evidence. The appellant claims that the Trial Court committed reversible error in refusing defendants requested Instruction No. 2 on circumstantial evidence. The Court refused the said Instruction No. 2 because the Court gave its own Instruction No. 21 on circumstantial evidence, which reads:

“You are instructed that evidence is of two kinds, namely, direct or positive, and circumstantial, and that any fact in the case or any element of the crime charged may be proved by either kind or by both kinds of evidence ; and if any fact in this case or any element necessary to constitute the crime charged, has been established to your satisfaction beyond a reasonable doubt by either direct or circumstantial evidence, or by both kinds, then such fact or element has been sufficiently proved, and if upon a consideration of all the facts proved in the case you believe beyond a reasonable doubt that the defendant is guilty as charged, it is your duty to so find.”

The Court also instructed the jury as to: (a) burden of proof; (b) reasonable doubt; and (c) presumption of innocence. In Trammell v. State, 193 Ark. 21, 97 S. W. 2d 902, we cited the earlier case of Jones v. State, 61 Ark. 88, 32 S. W. 81, and then affirmed this language:

“It is not error to refuse an instruction that, before the defendant can be convicted of murder upon circumstantial testimony, the jury must find that the circumstances proved establish the guilt of the defendant to the exclusion of every other reasonable hypothesis, if the jury were properly instructed as to the burden of proof resting upon the State and as to reasonable doubt.” The Trial Court committed no error in refusing the defendant’s requested Instruction No. 2. See also Cranford v. State, 156 Ark. 39, 245 S. W. 189; Osborne v. State, 181 Ark. 661, 27 S. W. 2d 783; and Cooper v. State, 215 Ark. 732, 223 S. W. 2d 507.

III. Separation Of The Jury. The trial began on January 9th and the jury verdict was not returned until January 13th. During the course of the trial, and before the case' was finally submitted to the jury, the Court permitted the jurors to separate and in some instances the appellant’s counsel objected, asking that the jury be kept together and the jurors not allowed to go to their homes at night.

We find no error in the rulings of the Trial Court allowing the jurors to separate. The Court duly and properly admonished the jury before each separation. Section 43-2121 Ark. Stats, says in part: “The jurors, before the case is submitted to them, may, in the discretion of the court, be permitted to separate . . .” See Hamilton v. State, 62 Ark. 543, 36 S. W. 1054; and Borland v. State, 158 Ark. 37, 249 S. W. 591.

IV. Prejudice ancl Bias Of The Trial Court. Appellant’s counsel grouped incidents to support the argument on this matter. We quote the pertinent portions of the record in regard to each incident.

(a) When the State (Prosecuting Attorney, Mr. Linder) was examining the witness, Paul McDonald (State Policeman), on direct examination regarding what the defendant, Bill Smith, was reported to have said to the witness, the following occurred:

“Q. How many occasions beside that time did you ask him if he was on Highway 8 on that day?

A. My first contact with Bill Smith a few days before his arrest he was asked those questions and after his arrest he was again asked with the same answers.

Q. And you have told this jury that he said he was never on Highway 8 and that nobody else was in possession of his truck that day?

BY MB. STEIN: If we would stop the repetition of asking the witness a question and having the witness answer it and then go back over it it would save time.

BY THE COUBT: If you will quit interfering.

BY MB. STEIN: I have a right to make my objections.

BY THE COUBT: All right, you sit down.

BY MB. STEIN: I want to object to the remarks of the Court as prejudicial to the defendant and state further that I have a right to make objections at such times as I think necessary and that it is embarrassing to me and it is prejudicial to reprimand me before the jury for making an objection.

BY THE COUBT: No reprimand has been made. Proceed.

BY MB. LINDEB:

Q. Did you ask him any questions concerning whether or not he and Buck Layne were together on October 19, 1955?

A. Yes, sir.

Q. What was his answer to that?

A. He stated that they were together all during that day.”

Appellant’s counsel in their brief object most vigorously to the Court’s words: “All right, you sit down.” These words, standing alone and out of context, might either be a violent command or a polite agreement, depending on the tone of voice and manner of speaking. But in the record here before us, with the full surroundings shown — as we have by the excerpt — it is clear that there was no reflection on counsel and no reprimand. In fact, the language of the Court — “No reprimand has been made. Proceed.” — removes any inference of a reflection toward appellant’s counsel.

(b) Again, near tbe end of 27 pages of cross-examination by appellant’s counsel of tbe State’s witness, Hodnett, the following occurred:

“Q. And you are relying upon her memory in fixing this date as Wednesday and not your own, isn’t that correct, Sir? You are telling this jury here this afternoon (interrupted)

BY THE COURT: Don’t make a speech, Mr.' Gibson. Ask the gentleman a question and let him answer.

A. (By Mr. Gibson: — ) (continues) that you saw a truck on Wednesday, but isn’t it a fact that the only way that you know this day, whether it was Wednesday or Thursday, is by what your wife told you?

A. I saw the truck on Wednesday.

Q. But you didn’t know whether it was Wednesday or Thursday, you have told me that too, haven’t you?

A. That’s right.”

The Court said: “Don’t make a speech, Mr. Gibson. Ask the gentleman a question and let him answer. ’ ’ This was just another way of asking counsel to rephrase the question so as to make it less argumentative. That the remark of the Court ivas not considered at the time by counsel to be any kind of reflection is shown by the fact that no objection was saved.

(c) Again, in the testimony of the defendant, Bill Smith, regarding his efforts in repairing Layne’s truck over in Eastern Arkansas on October 17th, the following occurred:

“Q. How long were you fixing the truck?

A. We got there about 12 and left about dark. After I drove this axle out, in driving this axle out it swelled the housing, it was stuck to the housing, and stuck to the housing where the bearing wouldn’t — this bearing-had to go jam up against it, and this bearing wouldn’t slip up on the housing and I had to file that housing down enough that that bearing would go on and then that housing run hot and the nuts didn’t want to go back on the housing.

BY THE COURT: I want to know what the nuts up there have to do with this trial.

DEFENDANT OBJECTS TO THE STATEMENT OF THE COURT.

BY MR. STEIN:—

Q. Go ahead.

A. While I was filing this housing I asked them to run these nuts up on this housing. While I was sitting there filing this housing where those nuts would screw up easy enough I could screw them with my hand, and then had to use the big Stillson wrench, and I was working this Stillson wrench and Buck was holding the nut, and at that time Buck skinned his hand a little bit, let the wrench slip.

Q. Was his hand bleeding?

A. Yes, and I was sitting down on it and Buck said, ‘I am not going to work any more.’ And he said, ‘If you can fix it, fix it, and if you can’t, let it go.’ I said, ‘I am going to fix it. I have come to fix it for you.’

Q. How long did you work on it?

A. Started about 12 and got it going just about dark that night.”

It is urged by the appellant’s counsel that the prejudice and bias of the Court is shown by the Court’s statement, as above copied, “I want to know what the nuts up there have to do with this trial.” We think the question by the Court was beneficial to the appellant’s case. Because of the question, the defendant went on to state that because the nuts were hard to adjust on the housing, Buck Layne skinned his hand; and this offered an explanation for the presence of blood. Furthermore, the fact that the nuts were difficult to adjust, also tended to explain the time consumed in repairing the truck on October 17th.

We cannot see any bias or prejudice on the part of the Trial Court by reason of any of the three remarks which we have copied into the opinion; and these are the only three instances of bias and prejudice that appellant’s counsel have argued in their brief. We have dwelled in considerable detail on this point of bias and prejudice because we emphasize that Courts and Judges must always see that every person receives a fair and impartial trial before a fair and impartial jury. The Courts are the last bulwark of freedom and justice; and Judges must always act fairly and impartially. We conclude that the appellant received a fair and impartial trial.

V. Other Assignments. We have carefully considered all of the other assignments in the appellant’s motion for new trial and find none which would justify reversal of the judgment.

Affirmed.

       This is the rule on appeal in eases such as this. See Allgood v. State, 206 Ark. 699, 177 S. W. 2d 928, and cases there cited.

       This case is not officially reported. See 69 Ark. 659.

       The record is voluminous, containing more than 650 pages.