author: Carleton Harris, Chief Justice. George Rose Smith, Justice,

text:
    ARTHUR MURRAY, INC. v. Lorena PARRIS
    5-4241
    420 S. W. 2d 518
    Opinion delivered November 13, 1967

      John G. Ward, for appellant.

      Donald Ryan, for appellee.
   Carleton Harris, Chief Justice.

From September, 1963, to January, 1965, Lorena Parris, appellee herein, entered into seven separate contracts for dancing instruction with Samuel Osborne, who operated a dance studio in Little Rock, using the Arthur Murray course of instruction under a licensing agreement. Mrs. Parris paid a total amount of $7,745.92 for the instructions contracted for, a part of this sum constituting an advance payment for future lessons. In January, 1965, Mrs. Parris, asserting matters that she felt constituted a breach of contract, directed a written demand to the New York office of Arthur Murray, Inc., appellant herein, for reimbursement of 415% unused hours at $10.00 per hour, or a total of $4,150.00. In April, 1965, after correspondence between appellee’s attorney and the New York attorney of Arthur Murray, Inc., Murray released $2,000.00, which actually belonged to Osborne, but was being held by Murray in escrow. This money was paid to the attorney for Mrs. Parris. Subsequently, appellee filed suit against both appellant and Samuel Osborne for $2,450.00, such sum .representing the cost of the unused lessons, less the amount paid from Osborne’s escrow account. On trial, the jury found in favor of Mrs. Parris against both Osborne and appellant, and from the judgment entered in accord with the verdict, the latter brings this appeal. For reversal, it is first urged that the court erred in refusing to grant appellant’s motion for summary judgment.

The evidence reflects that counsel for appellee, on April, 1965, wrote Mr. Paul Ooonrod, general counsel and assistant secretary for Arthur Murray, Inc., advising as follows:

“Mrs. Parris has agreed to settle this matter with you on the following basis:
(A) Arthur Murray and Sam Osborne will refund a total of $4,150 to Mrs. Parris all of which is to be paid to this office.
(B) Two thousand to be paid immediately and the remaining balance of $2,150.00 to be paid at this office at the rate of $100.00 per month.
(C) The first $100.00 payment to be due and payable on or before the 15th day of each following month, the last payment to be in the amount of $50.00.
If you have any questions regarding this settlement please contact me. Otherwise, I will expect your check for $2,000.00 by return mail.”

Coonrod, on April 13, replied to the letter as follows :

“To clarify this matter I wish to advise you that Mr. gam Osborne, the licensee of the Little Rock Studio, has agreed to make the settlement of $4,150.00 to Mrs. Parris.
We are advancing Mr. Osborne the sum of $2,000.00' which he has on deposit in escrow with us in order to enable him to complete the settlement terms with you..
Accordingly, any note or agreement providing for the payment of the balance of $2,150.00 to Mrs. Parris will be executed by Mr. Osborne alone and we will not be a party to such an agreement.
Please confirm your understanding of the above as soon as possible so that I may forward you the check for $2,000.00.”

Thereafter, on April 15, counsel for appellee replied :

“As set out in your letter of April 13, 1965, I understand that Mr. Sam Osborne the licensee of the Little Rock Arthur Murray Studio is the one who has agreed to make a settlement of this matter for $4,150.00 and that you are advancing Mr. Osborne $2,000.00 by return, mail. ’ ’

On April 20, Mr. Coonrod then acknowledged receipt of this letter and stated:

“In accordance with your request, I am enclosing herewith our check payable to your order as attorneys in-the sum of $2,000.00.”

After the filing of the suit, Arthur Murray, Inc., moved for summary judgment, supported by the four letters herein mentioned, and an affidavit by Mr. Coonrod. It was asserted that there was no material issue of fact, the letters and affidavit reflecting that Mrs. Parris had entered into an accord and satisfaction with Murray. In opposing the motion, counsel for appellee likewise executed an affidavit.

We cannot agree that the letters and affidavit established an accord arid satisfaction, and we think a fact question was presented. Mr. Coonrod clearly wrote that Mr. Osborne had agreed to make the settlement, .and that appellant was advancing Osborne money (which actually belonged to Osborne) in order to enable the latter to complete the settlement. Further, it is pointed out that Murray “will not be a party to such an agreement.” Counsel for appellee then replied that he understood that Osborne was the one who had agreed to make a settlement, and the company was advancing Osborne the $2,000.00. In view of the other statements made in the letters, it is apparent that this $2,000.00 was to assist the licensee in furtherance of his settlement. It will be noted that none of Coonrod’s letters state that the $2,000.00 is being sent on the condition that appellant be released from possible liability; nor is there any statement in the letters written by counsel for appellee that can be construed as definitely releasing or discharging Arthur Murray, Inc., from any liability. There may well have been grounds for appellant to assert accord and satisfaction, but there were also grounds for appellee to contend otherwise. In other words, the letters, taken together, presented a question of fact concerning what had been agreed upon, and this was therefore a matter to properly be passed upon by the jury.

Appellant contends that there was no substantial evidence to the effect that Osborne breached the contract with Mrs. Parris. Without going into detail, let it be said that there was ample evidence to present a jury question on this point, including the fact that when Mrs. Parris began her dancing lessons, there were six or seven instructors, and in 1965 (when she ceased taking lessons), there was only one instructor qualified to teach the higher rated students. According to Mr. Hillman Johnson, a former instructor at the studio, but now employed by Southwest Truck line of Dallas, that instructor was a disabled veteran, and was suffering from arthritis. Mr. Coonrod testified that, under appellant’s agreement with Osborne, the corporation was permitted to make refunds (from the escrow account). Of course, it would appear that appellant recognized the justness of appellee’s demand for refund, since it paid to her the full amount in Osborne’s escrow account.

It is next asserted that the trial court erred in refusing to direct a verdict for appellant, it being con: tended that there was no testimony which made a jury question on the issue of whether Osborne was a direct agent of Arthur Murray, Inc. We cannot consider this contention, for, though a motion for directed verdict was made at the conclusion of appellee’s evidence (and denied), this motion was not renewed at the conclusion of all the evidence. In Granite Mountain Rest Home v. Schwarz, Admr., 236 Ark. 46, 364 S. W. 2d 306, we said:

“We are unable, under our established procedure, to consider the first point for, reversal, viz., that 4he court erred in not directing a verdict for appellant. A motion for directed verdict was made by appellant at the conclusion of plaintiff’s (appellee’s) testimony, and was denied by the court. Whether this action by the trial court was correct is of no moment, for upon the motion .being overruled, appellant proceeded to offer its evidence. We have held that when one proceeds, after the denial of such a motion, to introduce proof, he waives the error of the court in failing to grant same. [Citing cases.] * * As stated in Wigmore on Evidence, Volume 9, Third Edition, one ‘cannot take advantage of the judge’s original erroneous refusal to diréet a verdict for insufficiency at the time of the first motion if he does not renew the motion at the close of all the evidence.’ The reasoning employed, is, of course, apparent,, for if one has waived his original motion, and does not renew same, there is nothing to he passed upon by the court at the conclusion of the evidence. No error could have been committed by the court at this point — for nothing was presented.”

We also held in Granite Mountain Rest Home v.. Schwars, Admr., supra, that where no motion for an instructed verdict was requested, the point could be raised in a motion for a new trial questioning the sufficiency of the evidence, but that was not done here (nor there).

It might be added that appellant requested an instruction (which was given) relating to what appellee must prove in order to establish a breach of contract. Since the complaint against Osborne had already been disposed of by the court’s action prior to the case going to the jury, this instruction could only have been given on behalf of Murray. Of course, the liability of appellant on the agency question was predicated upon the acts of Osborne, and appellant’s sole interest in emphasizing that Mrs. Parris must prove that the contract had been breached by Osborne was due to the fact that appellant was being charged as the principal. As stated in Granite Mountain, this action waived the question of the sufficiency of the evidence on that point.

Other requested instructions by appellant related to-the question of third party beneficiary, and accord and satisfaction. The instruction relating to third party beneficiary was modified by the court and given, without objection by appellant. This instruction reads as follows :

“If you find, by a preponderance of the evidence,, that the contract provided for refunds to be made by Arthur Murray Incorporated in excess of the amount already paid to plaintiff, and that a further refund is justified under the terms of the contract, then you may render a verdict in favor of the plaintiff.
“If you find, by a preponderance of the evidence, that the terms of the contract do not contemplate refunds in excess of the amount already paid to plaintiff, or that a further refund would not be justified in this case, then plaintiff is not entitled to recover under this contract. ’ ’

The contract referred to in this instruction is the one between Murray and Osborne.

Appellant and Osborne had entered into a so-called “licensing” agreement, which provided that Osborne would, on each Friday, pay to Murray 3% of licensee’s (Osborne’s) gross receipts for the preceding calendar week, which would be held by the licensor (Murray) in escrow. The agreement provides that Murray may invest this money in any type of bond, indenture, note or other certificate of indebtedness that it deems safe, and shall not be liable to licensee for errors of judgment or anything other than bad faith or fraud in the handling of the fund. Under the agreement, this 3% is paid until the amount reaches $25,000.00, and the instrument further provides that if this fund is depleted by payments made by Murray (as will be hereafter mentioned), payments to the licensee shall be resumed until the fund again reaches that amount. Among other purposes for which this fund could be used, we find the following:

“The Licensee [Osborne] agrees that he will make refunds to his pupils for unused lessons, at the request of any pupil for a refund when and if a refund is justified.
“In the event that the Licensee fails to make such justifiable refund to any of his pupils, the Licensor [Murray], if convinced that such refund is justified, is authorized to make such reasonable refund as Licensor deems proper, and charge the amount so paid to the Licensee, and Licensee agrees to reimburse Licensor upon demand or Licensor may charge such payment against the deposits provided for in Paragraph 6. Li-censor agrees to endeavor to keep such refunds to a minimum. ’ ’

Appellant, from this clause, apparently recognizes that justifiable demands for refund might be made which are in excess of the amount of money which has been paid in by the licensee (here, Osborne), for the quoted language states that Murray may make a refund, and charge the amount to the licensee. Of course, if Murray only had in mind making refunds to pupils in an amount not to exceed the funds held in escrow, there would be no need to charge the licensee with anything, for it (appellant) would simply pay only up to the amount he had on deposit.

This was a general verdict, and we do not know the basis upon which the jury reached this decision. Though arguing that it is liable neither under the theory of agency nor the theory of third party beneficiary, it is interesting to note that appellant recognizes that it can be liable to the pupils of licensee. In Section 6 we find the following language:

“* * * Upon termination of this agreement [between Murray and Osborne] (or any renewal or extension hereof) or the termination of the relationship contemplated hereby between Licensor and Licensee (or their respective assigns) or in the event that Licensee’s school shall be permanently discontinued, Licensor shall account to Licensee within two (2) years after the happening of either of such events for the fund remaining in Licensor’s hands, if any, and shall pay to Licensee the amount remaining on hand after deducting: (1) all debts and obligations due Licensor; (2) all sums due Licensor or Licensor’s other Licensees for redemption of lessons sold by Licensee to Licensee’s pupils; (3) any payments Licensor may have made or expenses or liability incurred as a result of claims or litigations against Licensor arising out of Licensee’s conduct of the enterprise contemplated hereby. [Our emphasis.]”

It makes but little difference what we call the relationship between these three parties; the fact remains that appellant recognized that, under its agreement with Osborne, it could become liable, inter alia, because of refunds due pupils for unused lessons, and the jury found such liability.

For the reasons herein set out, the judgment is affirmed.

It is so ordered.

George Rose Smith and Brown, JJ., dissent.

George Rose Smith, Justice,

dissenting. I think that Murray’s motion for a summary judgment should have been granted, on the basis of the letters that were exchanged between the lawyers representing the parties.

On April 8, Mrs. Parris’s attorney offered to settle the case if “Arthur Murray and Sam Osborne will refund a total of $4,150 to Mrs. Parris,” with $2,000 to be paid in cash and the rest in monthly installments of $100. Murray promptly rejected that suggestion of joint liability by making this counteroffer: “Mr. Sam Osborne has agreed to make the settlement of $4,150.00 to Mrs. Parris. We are advancing Mr. Osborne the sum of $2,000.00 which he has on deposit in escrow with us in order to enable him to complete the settlement terms with you. Accordingly, any note or agreement providing-for the payment of the balance of $2,150.00 to Mrs. Par-ris will be executed by Mr. Osborne alone and we will not be a party to such an agreement. Please confirm your understanding of the above as soon as possible so that I may forward you the check for $2,000.00.”

By return mail Mrs. Parris’s lawyer hastened to say: “I understand that Mr. Sam Osborne ... is the one who has agreed to make a settlement of this matter for $4,150.00.” (My italics throughout.) Upon that assurance Murray’s counsel forwarded a check for $2,000.

Mrs. Parris now contends that the exchange of letters may be construed to mean that the parties did'not intend for Osborne alone to be responsible for paying the remaining $2,150 that was involved in the settlement. In other words, the argument is made that Murray would still have forwarded the $2,000 even if Mrs. Par-ris’s final letter had said: “We will accept your offer of a check for $2,000, but please be warned that we are not releasing you from liability and will expect you to pay the remaining $2,150 if Osborne fails to do so.” In my opinion the exchange of correspondence is not fairly susceptible of the interpretation that the majority are placing upon it. I would reverse and dismiss.

Brown, J., joins in this dissent.

      The record as to Osborne is here confusing. On Page 83 of the transcript, there is a recitation that Osborne, “not appearing or offering any defense, the court has entered a default judgment against him for the amount of $2,450.00, as prayed by the complaint.” The judgment itself recites that the court “directed a verdict in the amount of $2,450.00 against defendant Samuel L. Osborne.”

      For compensation, Section 2 provides that the licensee shall shall pay the licensor, so long as the dancing school is operated, 5% of the gross receipts for the preceding calendar week.


source: Caselaw Access Project

author: Carleton Harris, Chief Justice. Conley Byrd, Justice,

license: Public Domain

text:
    ARKANSAS STATE HIGHWAY COMMISSION v. Roosevelt MORGAN Estate, et al
    5-4323
    420 S. W. 2d 525
    Opinion delivered November 13, 1967

      Robert H. Hall, for appellant.

      John Walker, for appellee.
   Carleton Harris, Chief Justice.

In June, 1966, the Arkansas State Highway Commission, appellant herein, filed a condemnation complaint in the Circuit Conrt of Faulkner County, condemning all of a tract of land owned by the Roosevelt Morgan estate, in contemplation of construction preparations for Interstate Highway 40. In September, 1966, appellee (through Mrs. Georgiana Morgan) filed a petition in which it challenged the taking of 6.19 acres lying outside the physical right-of-way (referred to as Tract No. 444R-2) for Interstate 40, and asked that the court strike that portion of the complaint and declaration of taking relating to 444R2. On trial, the Faulkner County Circuit Court dismissed the complaint and declaration of taking as to 444R-2, and, from the judgment so entered, appellant brings this appeal-. For reversal, it is simply asserted that the trial court’s judgment was wholly unsupported by the testimony.

The proposed right-of-way for Interstate 40 includes 2.62 acres belonging to the Arkansas Children’s Colony, and the highway department, in condemning Tract 444R-2, intended exchanging this tract for the 2.62 acres belonging to the Colony. Admittedly, Tract. 444R-2 is not needed for the right-of-way, and Mr. Donald H. Martin, Assistant Chief of the Right-of-Way Division of the Arkansas Highway Department, testified that if the Colony had owned the Morgan property (444R-2), the state would have had no need of it. The sole purpose of this condemnation was for exchange. The statutory authority for the condemnation is found in Ark. Stat. Ann. 76-532 (Repl. 1957). This section reads as follows:

“The State Highway Commission is hereby authorized to acquire real or personal property, or any interest therein, deemed to be necessary or desirable for State highway purposes, by gift, devise, purchase, exchange, condemnation, or otherwise. Such lands or real property may be acquired in fee simple or in any lesser estate. State highway purposes shall include, but are not limited to the following:
(a) Por present and future rights-of-way, including those necessary for urban extensions of State highways within municipalities.
(b) For exchanging the same for other property to be used for rights-of-way, if the best interest of the State will be served and right-of-way costs reduced thereby.
(c) For rock quarries, gravel pits, sand or earth borrow pits, or related purposes, not being commercially operated.
(d) For offices, shops, storage yards, or other necessary or auxiliary facilities.
(e) For roadside areas or parks adjacent or adjoining or near any State highway.
(f) For the culture and support of trees and shrubbery which benefit any State highway by aiding in the maintenance and preservation of the roadbed, or which aid in the maintenance and . promote the attractiveness of the scenic beauties associated with any State highways.
(g) For drainage in connection with any State highway, or for cuts and fills, or channel changes, or maintenance thereof.
(h) For the maintenance of an unobstructed view . of any portion of a State highway so as to promote the .safety of the traveling public.
(i) For the construction and maintenance of stock frails and cattle passes.
(j) For the elimination of public or private crossings or intersections at grade, on any State highway.
(k) For the protection of the State highway system from both physical and functional encroachments of any kind.”

The Highway Commission relies on Subsection (b) in this litigation. It is appellant’s contention that the burden was on the appellee to establish that the best interest of the state would not be served, and right-of-way costs would not be- reduced by the exchange of properties. Prom its brief:

“The trial court found that the burden of proof was on the appellee to show that the Commission had acted arbitrarily or that the taking was not for a public purpose. Since the Commission condemned tract number 444R-2 for the stated purpose of exchanging it for tract number 440, the appellee, in order to prevail, would have to show that (1) the taking was not in the public interest and that (2) the right-of-way cost would not be reduced by the taking.
“The evidence in this record fails to show that either of these requirements were met by the appellee.
“Since the appellee must positively show the absence of one or both of these conditions in order to prevail, and since he failed to establish the absence of either of the conditions by a preponderance of the evidence, the court was in error in granting the defendants motion striking the complaint and declaration of taking on tract number 444Ñ-2.’ ’

Appellant points out that this court has repeatedly held that one, who challenges the scope of a condemnation, takes on the burden of proving that the condemnor has abused its discretion. Several Arkansas cases are cited to that effect. Appellant is correct in stating the holding in the cases cited — but those cases do not apply in the case before us. It might be here stated that the trial court, though finding for appellee, actually erred in its holding that the burden of proof was on the ap-pellee. The citations given by appellant refer to cases where the property condemned was to be used for the purpose for which it was condemned. In the highway case cited,' the property condemned was to be used for the right-of-way. Here, of course, this is not true. Subsection (b), relied on by appellant, states:

(b) For exchanging the same for other property to be used for rights-of-way, if [our emphasis] the best interest of the State will be served and right-of-way costs reduced thereby. ’ ’

This subsection has never been passed on before by this court, and the italicized word is the key to the answer in this litigation. It will readily be seen that the commission is authorized to exchange property (it condemns) for other property to be used for right-of-way only under certain conditions — those conditions being if the best interest of the state will be served and right-of-way costs reduced thereby. Obviously, the highway department does not have this right until it establishes the italicized phrase. Unless that is established, the right of exchange does not exist. Accordingly, the burden is on the Arkansas Highway Commission to establish those two facts. After all, would not logic itself dictate such a course? How could a landowner normally show that the best interest of the state would not be served, and right-of-way costs not reduced? Only the department knows the right-of-way costs, and whether same could be reduced by exchanging other property for that right-of-way, instead of paying the right-of-way owner. Only the department is in possession of the facts that could demonstrate that the best interest of the state would be served. Requiring the landowner to make the showing would not only be placing an almost impossible burden upon him, but would clearly be contrary to the statute itself. Evidence taken at the hearing (testimony of Mr. Martin) reflects that the highway department had not even appraised the value of the Colony’s property that was within the right-of-way, i, e., the department did not know the value of the property that it was getting for right-of-way use in return for the property it desired to give in exchange, viz., 444R-2.

Mr. Charles Acuff, Superintendent of the Arkansas Children’s Colony, likewise, was unable to place a value on the 2.62 acres owned by. the Colony, and he stated that he did not know whether the Colony property was worth more or less than the property owned by the Morgan estate, which is under consideration in this litigation.

We have held that the burden was on the commission to establish that the best-interest of the state would be served, and right-of-way costs reduced thereby. It is apparent that this showing was not made, and, for that matter, it is not argued otherwise. The only point argued by appellant is that the burden of proof rested, upon appellee, and same was not met. This litigation is thus disposed of, and it becomes unnecessary to pass upon other issues that might arise under the statute, i. e., the constitutionality of the provision (which is not raised) or the scope of the power of exchange granted to the commission.

Affirmed.

Byrd, J., concurs.

Conley Byrd, Justice,

concurring. I concur in the result reached by the majority. In my opinion, Ark. Stat. Ann. § 76-532 (Repl. 1957), insofar as it authorizes the taking of property by eminent domain not necessary for highway purposes in order to exchange it for property that is to be used for highway purposes, is unconstitutional and void. Ark. Const. art. 2, § 22. Ozark Coal Co. v. Pennsylvania Anthracite Rd. Co., tg Ark. 495, 134 S. W. 634 (1911).

      The sum of $18,350.00 was deposited into the -registry of the court as estimated just compensation, appellees in their answer denying that said amount was adequate. The adequacy of the amount has nothing to do with this litigation, and is not discussed herein.

      Owned by the Colony..

      The same relief was asked as to Tract No. 444R-1 (1.1 acres) lying outside the physical right-of-way, but the highway department amended its complaint and declaration of taking dismissing the condemnation of that tract.

      For instance, apparently, under appellant’s interpretation of the statute, the State Highway Commission would have the authority to condemn property to the extreme west of Little Rock for the purpose of exchanging it for a right-of-way to be used to the extreme east of Little Rock, the western property being miles away from the proposed highway. We emphasize that the power of the commission to make such an exchange of property is not touched upon in this opinion.


author: George Rose Smith, Justice.

text:
    Carl W. WIDMER v. Roy G. WOOD et ux

    5-4248
    420 S. W. 2d 828
    Opinion delivered November 13, 1967
    (Original opinion delivered September 18, 1967)

      Carl W. Widmer, for appellant.

      Hardin, Barton, Hardin & Jesson; By: William Powell Thompson, for appellees.
   George Rose Smith, Justice.

On October 19, 1961, the parties to this suit entered into a written agreement by which the appellees, Wood and his wife, agreed to sell certain lands in Oklahoma to the appellant, Widmer. For reasons not now important the agreement was never fully executed, and eventually the Woods resumed possession of the property. In 1964 Widmer, acting pro se, brought this action at law, asserting a number of causes of action based upon tbe theory that the Woods had breached the contract and that Widmer was the equitable owner of the lands. This appeal is from a judgment striking one count in the plaintiff’s amended complaint, for misjoinder, and dismissing the other count for failure to state a cause of acton.

During the pendency of the case Widmer filed several separate sets of requests for admissions of fact. The defendants answered some of the requests and filed objections to others. At a hearing upon the objections the court stated at the outset that before he could pass upon the objections it was necessary to determine whether the complaint was based upon a breach of contract or upon a tort — either deceit or trespass or both. Widmer stated that, his cause of action was for treble damages under Ark. Stat. Ann. § 50-105 (Supp. 1965). The court accordingly struck the other counts in the complaint.

Widmer next filed an amendment to his complaint, asserting (1) a cause of acton for treble damages for the destruction of trees and crops on the lands and (2) a cause of action for the recovery of rents paid to the Woods by tenants. The court struck the second count for misjoinder and sustained a demurrer to the first count.

The court was right. Widmer does not deny that a misjoinder existed, but he insists that the defendants waived that defect by filing an answer to the original complaint instead of a motion to strike. Ark. Stat. Ann. §§ 27-1302 and -1303 (Repl. 1962). Perhaps Widmer might have pressed home that point in the first instance, but he failed to do so. Instead, he acquiesced in the court’s ruling by confining his cause of action solely to the treble damage statute. When he later attempted a second misjoinder by amendment to his complaint the defendants promptly filed an appropriate motion to quash. There was certainly no waiver with, respect to the amended complaint.

Moneywise, Widmer’s principal canse of action was stated in his first count. That count asserted a right to treble damages under Section 50-105. That statute, however, cannot be applied extraterritorially to a cause of action arising in Oklahoma. Ordinarily statutes have no effect except within the state’s own territorial limits. Meekins v. Meekins, 169 Ark. 265, 275 S. W. 337 (1925). That principle is peculiarly applicable to injuries to land, which are governed by the law of the place where the land is.

Widmer is mistaken in thinking that his contention is supported by our decision in Reasor-Hill Corp. v. Harrison, 220 Ark. 521, 249 S. W. 2d 994, 30 A.L.R. 2d 1213 (1952). That case dealt only with the matter of jurisdiction. We recognize that our courts might entertain an action for damages to land in Oklahoma, but the only contention urged by Widmer in the trial court and in this court is the extraterritorial application of the treble damage statute. We hold that contention to be without merit.

The appellant also argues that the Woods, by failing to answer, admitted certain of his requests for admissions. The statute, however, permits the filing of written objections, Ark. Stat. Ann. § 28-358, and in each instance the defendants either responded to the requests or filed objections. That the objections did not include a notice for a hearing thereon was not, in our judgment, a defect so fatal as to result in the defendants’ admission of the truth of the requests.

Affirmed.


author: Paul Ward, Justice.

text:
    PIKE COUNTY POULTRY CO. v. Ann E. KELLEY
    5-4344
    420 S. W. 2d 523
    Opinion delivered November 13, 1967

      Phillip Carroll, for appellant.

      G. W. Lookadoo, for appellee.
   Paul Ward, Justice.

This is a Workmen’s Compensation case. This appeal by the employer, Pike County Poultry Co., challenges two specific findings of the Referee which, in turn, were upheld by the Commission and the circuit court. Some of the background facts are set out below.

Ann Kelley, appellee, was injured on August 11, 1965 while in the employment of appellant. Appellant, on November 29, 1965 made a payment of $371.80 to appellee to cover the healing period up to that date. Following this date appellee continued to see appellant’s doctor (Dr. Durham) until February 7, 1966 when the doctor discharged her, allowing 5% disability to the body as a whole for permanent partial disability. During all this time and for sometime thereafter ap-pellee was also treated by her own doctor (Dr. Haris-ton). In June, 1966 appellee complained, by letter, to tbe Commission for not having received further payments. Later appellee contacted her attorney who, on July 1, 1966, filed a claim with the Commission stating, among other things, appellee was not receiving payments for part of the healing period, and requesting a date be set for the purpose of determining all issues. The Commission then fixed July 27, 1966 for a hearing before the Referee.

A hearing was held, with all parties and their attorneys present, at which time testimony was heard and reports by the two doctors were filed. On August 29, 1966 the Referee made, in substance, the following findings :

(a) Appellee’s healing period ended February 7, 1966. (Not Nov. 29, 1965 as appellant contended.)
(b) Appellee “suffered a disability of 5% to the body as a whole, and that respondent controverted this finding”.
(c) The cost of medical services rendered by Dr. Hariston are not compensable.
(d) Respondent “controverted temporary total disability benefits from November 30, 1965 to February 7, 1966”.
(e) An Award was made accordingly, and appel-lee’s attorney was allowed a fee.

As previously stated, the above findings were appealed, to, and approved by, the Commission and the circuit court. Appellant appeals only from findings (a) and. (e), presented in that order.

One. Attorney Fee. It is our conclusion that this item was properly allowed. The pivotal issue in this connection is whether there is substantial evidence to show appellant controverted appellee’s claim in whole or in part, on which an award was made. The pertinent portion of Ark. Stat. Ann. § 81-1332 (Repl. 1960) reads:

“Whenever the Commission finds that a claim has been controverted, in whole or in part, the Commission shall direct that fees for legal services be paid by the employer or carrier in addition to compensation awarded . . .”

Applying the well established rule that we affirm the Commission on substantial evidence, and also on the rule (announced in Fagan Electric Company v. Green, 228 Ark. 477, 308 S. W. 2d 810) that we must weigh the testimony in its strongest light in favor of the Commission’s findings, we are unable to say the Commision erred in finding appellant did controvert part of ap-pellee’s claim. Appellee was justified in employing an attorney because appellant was not furnishng needed medical treatment and she had received no payment in thirty weeks and her time for action was running out.

Two. The Healing Period. Likewise, it is our opinion that the Referee was justified in finding the healing period ended on February 7, 1966 (as contended by appellee) and not on November 29, 1965 (as contended by appellant). Appellee testified in substance, that after November 29, 1965; she went to her doctor for treatment several times because she was suffering with her back; she was not able to work, and is not able to work now. Dr. Hariston, in a letter dated July 14, 1966 (in the Record) stated that appellee “still has trouble with her back and probably will until she is operated”. It is not denied that the above testimony (and more of the same purport) was controverted by appellant.

Under the liberal rules previously mentioned, we are unwilling to say there was no substantial evidence to support the findings of the Referee, the Commission and the circuit court.

Affirmed.


author: Lyle Brown, Justice.

text:
    Vickie Ruth POWELL, a minor by her Mother and Next Friend, Helen Reynolds v. Kenneth Allen POWELL
    5-4330
    420 S. W. 2d 528
    Opinion delivered November 13, 1967

      Brockman & Brockman, for appellant.

      Charles S. Goldberger, for appellee.
   Lyle Brown, Justice.

Vickie Ruth Powell, appellant, filed suit for divorce against Kenneth Allen Powell. She being a minor, suit was brought by her mother as next friend. After Vickie had testified in her own behalf, the chancellor dismissed her complaint, holding that she had “failed to make a showing of what this court conceives to be adequate grounds for divorce.” The request of Vickie’s counsel to produce three other witnesses was denied.

The effect of the trial court’s ruling was to hold that the complaining spouse must first make a prima facie case by his or her testimony before any other evidence could be produced on behalf of the plaintiff. We know of no statutory or case law which supports that theory. In fact we can conceive of more than one situation where the appearance of the complaining spouse on the witness stand might be merely perfunctory. That would be more particularly true when the spouse is a girl of immature years.

Secondly, this young couple lived together for the better part of five months. She testified that she was physically abused on a number of occasions; that her husband had a violent temper and would curse her; that he would not keep a job; that his misrepresentations to their landlady caused them to be expelled from their apartment; that their parents had to help support them; that he constantly told her falsehoods; that Ms abuses were- frequently in the presence of relatives and friends and those experiences were embarrassing to her; that, she had no love or respect for him because of the recited indignities and wanted a divorce.

As pointed out by the chancellor, the plaintiff did not categorically state that the condition to which she testified made her married life unbearable. But from her testimony it could have been reasonably inferred. In that connection we think the immaturity of this girl should be taken into consideration; she should not be held to the same technical requirements as might be required of a person of maturity and experience. Furthermore, Vickie’s mother was around the couple during a considerable portion of their cohabitation. She might well have supplied the court with enlightenment as respects the effect of the indignities on VicMe. She was one of the three witnesses whom the court declined to hear.

Unless a full-scale hearing refutes Vickie’s testimony, or unless her credibility be discounted by that hearing, we hold she may well he entitled to a divorce. She need not be corroborated on every assertion. The purpose of requiring corroboration “is to prevent the procuring of divorces through collusion and when it is plain there is no collusion, the corroboration may be comparatively slight.” LaGasse v. LaGasse, 234 Ark. 734, 354 S. W. 2d 274 (1962). Kenneth Allen Powell filed an answer and appeared for trial in person and by counsel. Collusion was not even suggested.

The chancellor permitted counsel for plaintiff to introduce into the record affidavits of the three proffered witnesses. However, the chancellor did not consider them in rendering his decision. We therefore see no need, especially in view of a possible trial, to comment on them.

Reversed and remanded.


author: John A. Fogleman, Justice.

text:
    C. H. THOMAS v. Marion McELROY et al
    5-4324
    420 S. W. 2d 530
    Opinion delivered November 13, 1967

      James R. Howard, for appellant.

      Edgar R. Thompson, for appellees.
   John A. Fogleman, Justice.

Appellant seeks to reverse a judgment entered against him March 3, 1967. The only point for reversal is the contention that this was actually a modification of a decree of the court entered March 25, 1966, a day of an earlier term of the court.

Appellees brought suit against appellant and another, asserting a landlord and tenant relationship, a liability of appellant to appellee for rent, a right to recovery of certain personal property remaining and a right to an accounting for personal property which they alleged came into the possession of appellant under a lease agreement. On March 25, 1966, the trial court, after having heard testimony offered by both parties, entered what was labeled “Decree.” This instrument set out the appearances of the parties, enumerated the components of the record upon which the ease was heard and made certain findings. In summary form, these findings were:

1. That the complaint should be dismissed as to one of the defendants.
2. “That a contractnal relationship has existed from month to month from December 9, 1963, until July 8, 1965. A Rental of $40.00 per month should have been paid by the defendant C. H. Thomas, to the plantiffs herein.”
3. “On motion of the defendant, C. H. Thomas, the said contractual relationship is hereby terminated as of this date.”
4. That Thomas shall permit appellees to remove certain personal property from the leased premises.

These findings were followed by a separate paragraph which reads: “IT IS SO ORDERED,” after which appeared the signature of the chancellor. Nothing further appears to have been done until the entry of the judgment from which this appeal was taken. It is entitled “JUDGMENT ON DECREE.” It recites, the hearing of the cause on March 25, 1966, and quotes finding number 2, as set out above. This language follows:

“IT IS THEREFORE by this Court, Considered, Ordered and Adjudged that the plaintiffs do have and recover of and from the defendant, C. H. Thomas, the sum of Seven Hundred Sixty and No/100 ($760.00) Dollars, together with interest at the rate of six percent (6%) per annum from the 25th day of March, 1966, from all of which garnishment and execution may issue immediately as on a Judgment at Law.”

One full term of the court intervened between the two court actions. If appellant were correct in his analysis, the last action would constitute an unauthorized modification of a judgment, since none of the statutory grounds for such action is asserted.

Decision of this appeal, then, depends entirely upon the determination of the character of the first court action. Formal requirements for a judgment in Arkansas are few. It is the final determination of the rights of parties in an, action. Ark. Stat. Ann. § 29-101 (Repl. 1962). The amount of the judgment must be computed, as near as may be, in dollars and cents. Ark. Stat. Ann. § 29-415. A judgment must specify clearly the relief granted or other determination of the action. The few basic requirements must be met and the judgment must clearly show that it is the act of the law, pronounced and declared by the court upon determination and inquiry. Baker v. State, 3 Ark. 491. While a rather technical application was made of this-rule in the cited case, strict formality in language used to express the adjudication of the court is not necessary and a “judgment” will be tested by its substance not its form. Melton v. St. Louis I. M. & S. R. Co., 99 Ark. 433, 139 S. W. 289. The name by which it is called by the court is not controlling. State v. Donohue, 11 Wis. 2d 517, 105 N. W. 2d 844. We have held that the designation or title given a pleading is not controlling, but that its effect, character and sufficiency are to be determined by its substance regardless of what it is called. Rinehart & Gore v. Rowland, 139 Ark. 90, 213 S. W. 17; Craft v. Armstrong, 200 Ark. 681, 141 S. W. 2d 39; Askew v. Murdock Acceptance Corp., 225 Ark. 68, 279 S. W. 2d 557; Stroud v. M. M. Barksdale Lbr. Co., 229 Ark. 111, 313 S. W. 2d 376; Parker v. Bowlan, Executrix, 242 Ark. 192, 412 S. W. 2d 597. There is no reason we should not apply the same rule to a court order. See, also, 49 C.J.S. 29, Judgments, § 5.

When we apply the test of substance to the “decree” of March 25, 1966, in the light of the basic statutory requirements for a judgment, we find it lacking in basic essentials. It has more of the characteristics of written findings and conclusions than of a judgment. The factors demonstrating this are:

1. The numbered paragraphs purport to be findings of the court.
2. While the court found that the complaint should be dismissed as to a codefendant, there is no final disposition of appellees’ prayer for a judgment against- defendant for past due rents or for personal property alleged to have been removed and destroyed.
3. While the court found that a contractual relationship existed between appellant and appellees for a period of 19 months and that a rental of $40.00 per month should have been paid by appellant to appellees, there was no declaration of the amount actually due or remaining unpaid, nor was there any dismssal of the action as to Thomas.

The only items which could possibly be said to hare been disposed of in the original order are the dismissal of a party and the delivery of certain personal property. Insofar as appellant was concerned, these were subsidiary matters. There was no dispute about appellees’ right to possession of the property. The finding that the other defendant was not a party to the action might have been a corollary to the statement that a contractual relationship existed between appellees and appellant.

The decisions, opinions, and findings of a court do not constitute a judgment or decree. They merely form the bases upon which the judgment or decree is subsequently to be rendered and are not conclusive unless incorporated in a judgment or a judgment be entered thereon. Ex Parte Niklaus, 144 Neb. 503, 13 N. W. 2d 655; Employers Ins. Co. v. Brooks, 250 Ala. 36, 33 So. 2d 3 (1947); Gouger v. Sarpy County, 151 Neb. 207, 36 N. W. 2d 775 (1949); Gilpin v. Burrage, 188 Tenn. 80, 216 S. W. 2d 732 (1949); Hays Trucking Co. v. Maxwell, 261 P. 2d 456 (Okla. 1953); Crowe v. DeSoto Consolidated School Dist., 246 Iowa 38, 66 N. W. 2d 859 (1954); In Re Lounsberry’s Estate, 149 Cal. App. 2d 857, 309 P. 2d 554 (1957). They are more in the nature of the verdict of a jury and no more a judgment than such a verdict. State, Ex Rel Work v. Brown, 44 Ind. 329 (1873); Galiger v. McNulty, 80 Mont. 339, 260 P. 401 (1927); Central Republic Bank & Trust Co. v. Bent, 281 Ill. App. 365 (1935).

A judgment is distinguished from an order in that the latter is the mandate or determination of a court on some subsidiary or collateral matter arising in an action not disposing of the merits but adjudicating a preliminary point or directing some step in the proceedings. 49 C.J.S. 29, Judgments, § 5.

In treating similar situations, other courts have found actions such as that first taken in this cause not to be such final determinations as to constitute judgments. In Alvord v. McGaughey, 5 Colo. 244 (1880), the court entered a finding that the defendants were indebted to the plaintiffs in the sum of $202.00. The court said that while a strict compliance with form was not essential, the record must not only indicate that an adjudicatic took place, but the entry must have been intended as the entry of a judgment in order to constitute a final judgment. The Court of Appeals of Georgia held that a statement in a court’s order on certain demurrers with reference to an agreement of the plaintiff to pay the defendant $467.00 if certain cases were settled, was not a judgment but a mere statement of a reason for a conclusion it had reached as to a part of the case. Aiken v. Richardson, 80 Ga. App. 591, 56 S. E. 2d. 782 (1949). A finding by a court in a divorce case that there was due and owing by a plaintiff to a defendant the sum of $275.00 per month for a period commencing January 1, 1947, and ending January 1, 1950, was held not to have the force and effect of an adjudication disposing of the subject matter in a manner sufficient to constitute a judgment. Taliaferro v. Taliaferro, 178 Cal. App. 2d 146, 2 Cal. Rep. 719 (1960). A final judgment or decision is one that finally adjudicates the rights of the parties, putting it beyond the power of the court which made it to place the parties in their original positions. Crowe v. DeSoto Consolidated School Dist., 246 Iowa 38, 66 N. W. 2d 859 (1954). It must be such a final determination as may be enforced by execution or in some other appropriate manner. Wilson v. Corbin, 241 Iowa 266, 40 N. W. 2d 472 (1950); Crowe v. DeSoto Consolidated School Dist., supra.

A judgment or decree for money should state the amount which the defendant is required to pay and the date from which interest is to be computed. Aldrich v. Sharp, 3 Scammon (Ill.) 261; Park v. Holmes, 147 Pa. 497, 23 Atl. 769 (1892); Emig v. Medley, 69 Ill. App. 199 (1896); Spoor v. Tilson, 97 Va. 279, 33 S. E. 609 (1899); Marteeny v. Louth, 206 Ill. App. 158 (1917). Even if it could be argued here that the court’s findings indicated that appellees should have a money recovery from appellant, such findings would not have given the clerk any guide as to the amount of the judgment or the date from which interest would have run for the purpose of issuing execution. As a further indication of uncertainty of the amount, the prayer of the complaint was for $520.00. It might well be that the appellees would have been limited to that amount of recovery had the question been raised.

Clearly, the action of the court on March 25, 1966, was deficient as a final determination of the rights of the parties. It is also inadequate in computation of the amount of the judgment and specification of the relief granted. Thus, the judgment of March 3, 1967, was the first actual judgment in the case. Accordingly, it is affirmed.

      In view of their significance on appeal, items two and three are copied verbatim.


author: J. Fred Jones, Justice. Conley Byrd, Justice,

text:
    Donald Wayne WARD v. STATE of Arkansas
    5298
    420 S. W. 2d 540
    Opinion delivered November 13, 1967
    [Rehearing denied December 4, 1967]

      Jack Rose and James E. Shoffley, for appellant.

      Joe Purcell, Attorney General; Don Langston, Asst. Atty. Gen., for appellee.
   J. Fred Jones, Justice.

Donald Wayne Ward was convicted in the Sebastian County Circuit Court on charges of burglary and grand larceny. He was sentenced to three years in the penitentiary on the burglary charge and to two years on the larceny charge, and has appealed to this court relying upon the following point for reversal:

“The Appellant contends that the keys taken from his person after his arrest were prejudicial and inadmissible, because the Appellant was actually arrested when he was originally detained, and that the arrest was without probable cause, and that the Trial Court erred in not so finding and in not suppressing this evidence.”

About 4:00 a.m. on September 27, 1966, appellant was a passenger in an automobile driven by a Mrs. Anderson in the City of Fort Smith when the automobile was stopped by two police officers for driving too fast on Towson Avenue. Mrs. Anderson was charged with driving without a driver’s license and since the automobile bore an Oklahoma license, she was required to go to the police station and post bond. One of the officers drove Mrs. Anderson’s automobile to the station while the other .officer drove the patrol car, and Mrs. Anderson and appellant rode to the police station with a police captain who had been called to the scene. The Fort Smith Police Department had had a pickup order on the automobile and a warrant had been issued in connection with the purchase of the automobile in Arkansas with worthless checks by Mr. Anderson. The details of this transaction are not important here, but after arriving at the station, in order to prove ownership of the automobile, Mrs. Anderson permitted the police officers to search the automobile. The officers found a payment receipt and a title certificate in the automobile and in addition they found under the front seat of the automobile a motel pillowcase containing over Sixty Dollars in quarters and small change, and also found some men’s leather gloves and ladies canvas gloves, a pry bar, a screwdriver, some wire pliers and a jumper cable. Mrs. Anderson and appellant were advised that they were under arrest for investigation for burglary and grand larceny. Appellant was then searched and the contents of his pockets, including some keys, were removed and he was placed in a jail cell.

The officers then retraced with Mrs. Anderson, the route she followed into Fort Smith, and near the place where Mrs. Anderson said she had taken a nap while appellant went for cigarettes, the officers found a pool hail that had been burglarized. The door of the building had been pried open, keys had been taken from an open cash register and money taken from pool tables and a music machine. The owner of the pool hall later identified two of the keys taken from the appellant, as being two keys taken from his cash register. The identification was made by comparing the keys, and the serial number on the keys, taken from appellant, with a duplicate set retained in the possession of the owner’s wife. These keys were offered in evidence at the trial and this appeal is based on their admission in evidence.

Prior to the trial of this case, appellant filed a motion to suppress evidence and alleged in his motion as follows:

“2. That the defendant has reason to believe that certain items of his personal belongings consisting of keys and other personal property, which are now in the possession of the State of Arkansas, will be introduced as evidence against him at said trial; that all items found as a result of search of defendant’s person at the time or immediately subsequent to his arrest should be excluded as evidence, for the reason that there was not probable cause nor warrant for defendant’s arrest, and hence said arrest was an illegal one; that said arrest and search violated defendant’s constitutional rights under the constitution of the United States of America and the State of Arkansas.”

A separate hearing was had on this motion, at which time the appellant, as well as the police officers, testified. The trial conrt overruled the motion to suppress and admitted the keys in evidence.

The evidence is clear in this case that appellant did not part with possession of the keys until after the officers had ample grounds to believe that a felony had been committed. Appellant denied that he parted with possession of any keys at all. He testified that he emptied his pockets at the officer’s request, but insists that the officers only took some finger nail clippers and handed back his keys. The officers testified that after the appellant was charged with burglary and grand larceny, they searched him and removed the keys from his pockets. There is no discrepancy in the testimony that this incident occurred after the automobile had been lawfully searched and the money in the pillowcase and the other items were found and removed from the automobile.

Appellant contends, however, that he was actually arrested when the automobile was first stopped by the officers and the driver, Mrs. Anderson, was given a citation for driving without a driver’s license, and he contends that he was still under this arrest when taken to the police station. It is appellant’s contention that his arrest was without probable cause or legal right and that if any keys were taken from his possession without a search warrant, they were obtained through an unlawful search and seizure and were inadmissible in evidence against him. Appellant argues that such search and seizure violates his constitutional rights guaranteed to him under Amendment 4 of the Constitution of the United States, and under Article 2, Section 15 of the Constitution of the State of Arkansas, which is as follows :

“The right of the people of this State to be secure in their persons, houses, papers and effects against unreasonable searches and seizures shall not be violated; and no warrant shall issue except upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the person or thing to be seized.”

The appellant very properly points out in his brief that “the law in the field of arrests, searches and seizures has been a dynamic one in federal courts and other states in this connection,” and appellant cites several federal court decisions in support of this statement. Appellant also cites our own case of Clubb v. State, 230 Ark. 688, 326 S. W. 2d 816, which involved evidence obtained in the search of a house trailer without a search warrant. Appellant urges that under the caveat announced in that case, we should adopt the federal rule that all evidence obtained by searches and seizures in violation of the Federal Constitution is inadmissible in the trial of a criminal case in a state court. We have not deviated far from the caveat announced in the Clubb case in 1959, and we do not do so now. Since the 1961 decision of the United States Supreme Court in the case of Mapp v. Ohio, 367 U. S. 643, we have recognized the rule that where an accused is unlawfully arrested without cause, and searched without a warrant as a result of such unlawful arrest, the search would also be unlawful and keys or anything else seized as a result of such search, could not be used in evidence against him at his trial on a criminal charge unless waived by the accused. See Cabbiness v. State, 241 Ark. 898, 410 S. W. 2d 867. This is true not merely because of Amendment 14 and Section 15 of Article 2, supra, but because the use of such evidence so obtained, would force the accused to be a witness against himself as prohibited by Amendment 5 of the United States Constitution and in Section 8 of Article 2 of the Constitution of Arkansas.

We do, however, still measure the reasonableness of a search, and determine the lawfulness of any seizure made as a result of it, by the facts of the case before us. It might well be urged in this case that the 4th Amendment to the United States Constitution, as well as Article 2, Section 13 of the State Constitution, protects the security of keys in the owner’s cash register where théy belonged, as well as in the appellant’s pocket where they were found, but that is not the question on this appeal.

We now come to the question of whether, or not the search of the appellant was unreasonable and the seizure of the keys was unlawful in this case.

We are of the opinion that the police officers had a right to stop the automobile in which appellant was a passenger. The officers testified that the automobile was speeding when they first observed it and this is not denied. As to whether or not the officers had reasonable grounds for arresting the appellant when the automobile was first stopped, and whether or not the appellant was actually placed under arrest at that time, the evidence is not clear. If the police officers had a warrant for the arrest of Mr. Anderson and had reasonable grounds for believing that the appellant was Mr. Anderson, no one could seriously question their authority in detaining appellant long enough to determine whether or not he was Mr. Anderson.

The record indicates that there was some question in appellant’s own mind as to whether he was arrested before the money was found in the automobile .he occupied.

“Q. Did they ever say any words such as ‘You’re under arrest’?
A. To Miss Anderson. They said that she was under arrest for driving without a license, and I just, more'or less, took it that I was under arrest for something.
# # #
At the time they brought us to the station, I knew that Mrs. Anderson — they was supposed to file a no driver’s license on her, and I, more or less, figured some charge would be filed against me.”

Neither the appellant nor Mrs. Anderson had a driver’s license and Captain Walker was called to where the automobile had been stopped in connection with driving the automobile- to the police station, and he testified at the hearing on the motion to suppress, as follows :

"Q. 8 * * Did you know whether they were under arrest when you- went to get them, Captain Walker?
A. The only thing — they didn’t have any kind of identification, they had a car. I had had a pickup on a car.”

At the hearing on the motion, Officer Balch testified:

"We proceeded up to the car, asked the lady driving if we could see her driver’s license. She stated she didn’t have any, that she had lost her purse between here and Hot Springs somewhere at a service station. At that time I asked her to step out of the car and asked the other party to step out of the car, asked him for identification and he said he didn’t have any identification either, that he had lost his billfold that day somewhere, he didn’t know where.
* # *
"I issued Patricia Anderson a summons for no driver’s license and we put them in Captain Walker’s car and brought them to the PD, and I drove the police car and Officer King drove the ’66 Ford with her permission.
# * #

“We had had a pickup on a car like this but it had a different license number than this car, and the detective were called in to investigate the car.

# * #
“Q. Did you have information as to anyone else or just the car ?
A. The car and a Marion Anderson had purchased this car in Paris, Arkansas, and had written a hot check, two hot checks to buy the car.
at # *
“Q. Did you talk to anyone on your iadio, and someone on the radio told you that that pickup had been cancelled?
A. No, sir, we hadn’t had a cancellation on it.
# # •
“Q. * * * Were you advised to bring both to the Police Station to post bond?
A. Yes, sir, we/on an out-of-state ticket they must post bond.
“Q. Now, why both? Why did you bring the defendant down to the station?
A. He was with her and he had no identification on him, and we didn’t know whether he was Marion Anderson or not.”

At the trial of the case, Officer Balch testified unequivocally that Mrs. Anderson was given a citation for driving without a driver’s license, and that he only asked appellant to step out of the automobile. He denied that the appellant was at any time under arrest prior to his arrest in the police station. He testified that appellant voluntarily went along with Mrs. Anderson to the police station. No effort was made to impeach Officer Balch’s testimony at the trial.

Certainly the officers had ample grounds for a reasonable belief that appellant had committed a felony when he was “booked” and the keys taken from his possession at the police station. Appellant does not contend that the evidence is not sufficient to sustain the conviction even if the keys had not been introduced.

We are of the opinion that the trial court did not err in denying appellant’s motion to suppress the evidence under the facts and circumstances of this case, and that the judgment of the trial court should be affirmed.

The trial court is to be commended in not only seeing that appellant received a fair trial and the service of a competent counsel, but in seeing that appellant also recognized that he had received a fair trial and the benefit of competent counsel.

Affirmed.

Brown, J., not participating.

Byrd, J., dissents.

Conley Byrd, Justice,

dissenting. I dissent from the majority view that the keys were properly introduced into evidence — i. e. that appellant was not placed under arrest at the time the car was stopped.

Captain Walker of the Fort Smith Police Department testified that appellant and a girl named Anderson were turned over to him by officers Balch and King to take to the police station from the place where they had been stopped at Towson and Rogers Avenues. On cross-examination he testified:

“Q. Well, I’m asking you did you feel like he was told to come by the other officers and did you tell him to come with you?
A. I just told him to get in the hack and he did.
Q. He did under your orders?
A. Yes, sir.”

Officer Baleh testified on cross-examination:

“We were advised to bring both parties to the station, because on an out-of-state ticket, they must post bond. The reason I brought the defendant was because he was with her, and he had no identification. We did not charge him with anything when we brought him down. We just brought him down because he was in the car. We did not tell him he was free to go. We would not have let him go when we stopped the car, because he had no identification on him. We did not issue a ticket for speeding, even though the speed attracted our attention, because it was not speeding when we got behind it. We did not get a clock on it to be fair enough to issue a summons for speeding, but we stopped them anyway, because we wanted to talk to her about her speed. We had known about a warrant, but it was a different license number. We did not stop the car on the strength of any warrant, but stopped it on account of speed. We did not issue a ticket for speeding, but did for no driver’s license. Yes, I told the defendant he would have to come to the Police Department with us so we could establish who he was. He gave us his name, was not driving the car, and was not breaking the law at the time we stopped him, but a person must have an ID card on him at all times. Officer King and myself talked to Captain Walker from the scene of the arrest, and nothing was mentioned about a warrant at that time. We told 'Captain Walker that we had stopped the car to talk to her about speeding. The reason I stopped the car was not because of any warrant; it was because I wanted to talk to the party driving about her speed. The reason I arrested the defendant was because be was a passenger in a car being driven by a person without driver’s license, and he himself had no identification.”

Under the facts, I cannot agree with the majority that there was no arrest of appellant at the scene where the automobile was stopped. Under the authority of Beck v. Ohio, 379 U. S. 89 (1964), the evidence concerning the keys is inadmissible because of the arrest without probable cause. In Beck it was pointed out:

“An arrest without a warrant bypasses the safeguards provided by an objective predetermination of probable cause, and substitutes instead the far less reliable procedure of an after-the-event justification for the arrest or search, too likely to be subtly influenced by the familiar shortcomings of hindsight judgment.”

I would reverse and remand for new trial.


author: Carleton Harris, Chief Justice.

text:
    REYNOLDS METALS CO. et al v. Carmon CAIN
    5-4339
    420 S. W. 2d 872
    Opinion delivered November 20, 1967

      McMillen, McMillen & Turner, for appellant.

      McMath, Leatherman, Woods & Youngdahl; By: Silas Brewer, for appellee.
   Carleton Harris, Chief Justice.

This is a Workmen’s Compensation case. Carmon Cain, 52 years of age, was an employee of Reynolds Metals Company, working at the Jones Mills plant near Malvern. On April 3, 1964, Cain was tightening electric bar nuts on an ore pot in the plant when he began to experience pain in his chest and arms, finally being forced to stop the work which he was doing. He continued to experience pain during the night, and consulted a physician the next day, following which he was hospitalized for three weeks. On August 31, Cain returned to work, and remained on the job until September 22, when, because of chest pains, he was forced to quit. A claim for benefits was filed, but the referee held, that, though the claimant was disabled, the disability did not arise out of his employment. Upon appeal to the full commission, the referee’s decision was reversed, and the commission awarded disability benefits for permanent and total disability. On appeal to the Hot Spring County Circuit Court, the judgment was affirmed, and from that judgment, appellant brings this appeal. It is urged that there is no substantial evidence to support a finding of an accident arising out of and in the course of the employment, and that there is no substantial evidence, to support the finding that claimant’s present disability is a result of the employment.

It is appellant’s contention that appellee’s attack was due to pre-existing arteriosclerotic heart disease, and his work had nothing to do with precipitating the attack. It is true that Cain was suffering from arteriosclerosis, and there is no dispute in the medical testimony on that point. The test, however, is whether the work that appellee was doing aggravated the pre-exist-ing condition to the extent that it (the work) was a factor in bringing on the attack. Reynolds Metals Company v. Robbins, 231 Ark. 158, 328 S. W. 2d 489. Numerous cases hold in like manner. The commission set out pertinent facts, as follows:

‘ ‘ The claimant testified that on the two days preceding April 3, 1964, he had been running a jack hammer and that he experienced pain during this two day period. On the morning of April 3rd, he was tightening electric bar nuts on an ore pot located on the production line when he again experienced pain in his chest and arms which forced him to stop work.”

The record supports the above statement.

Dr. Philip Cullen, who had examined the claimant and taken an electrocardiogram, testified that on the basis of the electrocardiogram, the history, and other physical findings, Cain suffered a myocardial infarction in April, 1964. He stated that the exertion on the job placed demands upon Cain's heart which could not be met by the diseased arteries. The doctor, in a letter of January 30, 1965, stated that the myocardial infarction “was aggravated and precipitated by his activities that day [April 3]. A pre-existing relative coronary insufficiency might well have been aggravated by this type of activity involving a high energy cost. In this case there would be a definite connection between his job activities and the occurrence of an acute myocardial infarction in Api’il of 1964.” Dr. Cullen testified that the blood delivered'by the narrowed artery vras adequate for rest, but not for hard work.

“Well, it would have to be that he was there on the job performing certain duties because I think his arteries at that time were good enough for him to be home sitting in a chair and I don’t think if he had he would have experienced the trouble on that particular day at that particular time.”

The witness testified that an infarction implies permanent damage to the heart muscle itself, and that the attack suffered on April 3 was a component of the present disability. He stated that at the time he examined Cain (January, 1965), appellee had about “70% to the body as a whole permanent partial disability.” He attributed 50% of this to the infarct.

Dr. Walter O’Neal, a Little Rock internist, who examined Cain, took a history, did an electrocardiogram, and made other tests, stated that Cain had “pre-existing arteriosclerotic heart disease and that he was working at strenuous activity at the time that his last coronary occurred and that it was my opinion that there was a direct causal relationship between this activity and his myocardial infarct. * * *

“Well, to put it simply, physical stress requires more nutrition to the heart muscle by the way of blood flow than does the heart at rest. If the heart is inadequately supplied, then there occurs an area of ischemia, that is, an inadequate blood supply. This, in turn, produces an irritable area and the blood vessel itself, of course, which is ischemic will go into spasm.’’

Dr. Alfred Kahn, Jr., disagreed, being of the opinion that Cain’s exertion did not have any effect on the underlying arteriosclerosis. He stated that he did not believe that the work activity contributed to the occlusion, though it was conceivable.

It can readily he seen that there was substantial evidence to support the finding by the commission, and, of course, that means we will not disturb the commission ruling. Reynolds Metals Company v. Robbins, supra. Actually, appellant’s brief appears to he mainly directed to a criticism of past holdings in heart cases. Appellant states:

“Apparently, the Court now interprets the Act to include as accidental, within the meaning of the quoted provision, any heart attack which occurs on the job.”

Of course, we do not know how a doctor would be able to say that the same result would have occurred— or would not have occurred— if the worker happened to he loading his boat with heavy equipment for a fishing trip. But here, Dr. Cullen did state that this man’s work aggravated — and thereby hastened — the occlnsion. Certainly, we have not held that any heart attack occurring on the job is compensable. For instance, only a few weeks ago (October 16, 1967), in Ottenheimer Brothers Manufacturing Company v. Casey, we denied compensation in a heart attack case, the claimant testifying that the attack occurred on the job. A reading of that case will disclose important distinctions from the case at bar.

However, in a long line of cases, too numerous to recite here, we have constantly held that we will not reverse the commission if there is substantial evidence to support its findings. This is an established rule (and the general rule over the nation), and, if it is to be changed, legislative action by our General Assembly will be required.

In line with the reasoning herein set out, the judgment of the Hot Spring County Circuit Court is affirmed.

      Additional medical evidence was presented to the full commission, viz., depositions of Dr. Leeman H. King, Dr. Walter H. O’Neal, Dr. Philip T. Cullen, and Dr. Alfred Kahn, Jr.

      He also testified that the coronary artery disease became evident in June, 1956, with the onset of an acute myocardial infarction.

      This refers to Ark. Stat. Ann. § 81-1302 (d) (Repl. 1960), defining “injury.”


author: George Rose Smith, Justice. John A. Fogleman, Justice,

text:
    BRADLEY COUNTY et al v. Samuel ADAMS
    5-4343
    420 S. W. 2d 900
    Opinion delivered November 20, 1967

      Smith, Williams, Friday & Bowen; By: Boyce B. Love, for appellants.

      Paul K. Roberts, for appellee.
   George Rose Smith, Justice.

The Workmen’s Compensation Commission entered an award granting compensation to the appellee for ten weeks of total disability, together with medical expenses, attributable to a heart attack suffered in the course of his employment by Bradley County. The circuit court affirmed the award. The only question here is whether there is substantial evidence to support the Commission’s conclusion that there was a causal connection between the claimant’s work and his disability.

On the morning of June 7, 1966, Adams assisted the foreman of the county bridge crew in dismantling a bridge made of heavy timbers. The day was hot, and the work hard. Shortly before noon Adams suffered chest pains that proved to be the onset of his disabling heart condition. That afternoon Adams quit work early and was taken by his wife to a hospital, where he was treated by Dr. Whaley, the only medical witness who testified.

Dr. Whaley’s deposition was taken on interrogatories. Counsel for the claimant propounded a detailed question which, summarized Adams’s activities just before his illness and asked whether in Dr. Whaley’s opinion those activities had been a contributing factor in the onset of the attack. Dr. Whaley answered: “The term used by doctors in this sort of case would be that the physical exertion is a precipitating factor, a term very close to the word contributing.”

A cross-interrogatory asked if it isn’t “highly unlikely that work on the day of the occurrence of the chest pains had any causal relation to the pains?” The answer: “No. The basic lesion had to develop slowly, but it is 'entirely possible that the precipitating event was a more vigorous heart action and flow rate through the diseased artery due to increased workload on the day in question.”

The final cross-interrogatory read: “From all you know about this case, in your opinion, did the work on the day in question have any causal relation to the incomplete blockage of coronary blood flow?” Dr. Whaley answered: “As a simple matter of fact, I do not know, and to state an opinion on that basis would be foolish. I understand that the Commission has to determine one way or the other, but there is no clear medical reason for me to have an opinion.”

Dr. Whaley’s testimony is evidently open to two interpretations. On the one hand, he expressed the opinion that the claimant’s work was a precipitating factor in the onset of the attack. Dr. Whaley twice underlined the the word precipitating. Webster’s Second New International Dictionary defines precipitate as “to hasten the occurrence of; as, to precipitate a journey, or a conflict.” That is plainly the sense in which the witness used the word.

It is true that Dr. Whaley also declared that, as a simple matter of fact, he did not know whether the required causal connection existed. But the Commission J were at liberty to take that statement to mean merely that the doctor was unwilling to express complete certainty about a matter not admitting of such an inflexible view. We considered a similar situation in American Life Ins. Co. v. Moore, 216 Ark. 44, 223 S. W. 2d 1019 (1949), where we said:

“Appellant insists that Dr. Monroe’s testimony is speculative, since he admitted the possibility that death was due to some other cause. But medicine, like the law, is not an exact science. If mathematical certainty were required, a surgeon would act at his peril in advising his patient to undergo an operation. The law does not compel adherence to a standard so precise. The effect of Dr. Monroe’s testimony is that in his opinion the most probable cause of death was a pulmonary embolism attributable to the fractured leg. . . No alternate theory has been proposed by appellant. We are unwilling to say that Dr. Monroe’s testimony is conjectural merely because his opinion did not preclude every other possible cause of death.” In the case at bar the Commission was also justified in considering the fact that Adams’s attack occurred under circumstances strongly indicating that it was work-connected.

We have held, in cases too numerous to mention, that it is not our province to decide contested issues of fact in compensation cases, that it is the responsibility of the Commission to draw inferences when the testimony is open to more than a single interpretation, and that the Commission’s findings have the force of a jury verdict. Those principles demand that the Commission’s decision in the case at hand be upheld.

Affirmed.

Brown and Fogleman, JJ., dissent.

John A. Fogleman, Justice,

dissenting. In view of! the testimony in this case, I am compelled to register! my dissent from the action of the majority.

There is no presumption that a claim for compensation benefits comes within the provisions of the workmen’s compensation law. Duke v. Pekin Wood Products Co., 223 Ark. 182, 264 S. W. 2d 834. In reiterating previous holdings that the burden is on the claimant to show a causal connection between an employee’s heart attack and his work, this court has said that any change in that rule is a matter for the legislature and not the judiciary. Auto Salvage Company v. Rogers, 232 Ark. 1013, 342 S. W. 2d 85. I fear that the action of the majority in this case very nearly abrogates that position and amounts to a virtual change by this court. If the claimant actually still bears this burden, then I cannot see how the judgment in this case can be affirmed. The only testimony by which claimant sought to meet this burden was that of Dr. William C. Whaley. If his testimony does not constitute substantial evidence to support the finding of the Workmen’s Compensation Commission, we should reverse. His testimony on the causal connection is as follows:

INTERROGATORIES PROPOUNDED TO DR. W. C. WHALEY
“No. 16: What did you diagnose his illness as being on June 7, 1966?
Answer: Possible coronary occlusion.
* # #
No. 18: Will you please define what coronary insufficiency is?
Answer:- Coronary insufficiency means a reduction of blood flow through the coronary arteries usually caused by narrowing of the lumen of the vessel as a result of arteriosclerosis. Clinically, this results in substernal chest pain intermittently. There is also an alteration of the ECG pattern from the normal. In other words, there is INCOMPLETE* blockage of the coronary artery blood flow.
# # #
No. 21: Do you have an opinion based upon reasonable medical certainty as to the cause of Mr. Adams’ trouble?
Answer: Coronary arteriosclerosis.
No. 22: In your opinion, was the coronary insufficiency caused by an insufficient amount of blood being brought to the heart or was it some other cause ?
Answer: Yes
No. 23: Is it true that a person engaged in physical activity requires more circulation or more oxygen brought to his heart?
Answer: Yes
No. 24: Could you determine from your examination whether Mr. Adams had a narrowing of any artery or any other pre-existing condition which would make him susceptible to symptoms of coronary insufficiency if Mr. Adams engaged in any strenuous work?
Answer: By inference only, one assumes that an atheromatous lesion must have existed in the walls of Mr. Adams coronary arteries before the actual attack, because these plaques grow slowly as a gradual accumulation; they do not suddenly appear. [Emphasis mine. #Emphasis by witness.]
No. 25: Will you state what drugs or treatments you prescribed for Mr. Adams and what result the drugs or treatments were intended to bring about?
Answer: Mr. Adams’ primary treatment was in the form of a vasodilating drug to try to enlarge the functional capacity of his coronary arteries in carrying blood to the muscle of the heart.
No. 26: You, as Mr. Adams ’ physician, know more about Mr. Adams’ physical condition before June 7, 1966, and after June 7, 1966, than any other person I know. Therefore, I would like to ask you this question: Assuming that a man who is 57 years of age and who is in Mr. Adams’ physical condition as on June 7, 1966, were to engage, with the help of one more laborer, in the carrying of pieces of lumber weighing from 100 pounds each, and upward, for a distance of 20 feet, from approximately 8:30 o’clock, A.M., to 9:00 or 9:30 o’clock, A.M., and the weather was abnormally hot, and this worker would sustain an attach of coronary insufficiency during the carrying of the lumber or immediately after, would this activity having been engaged in by the worker, in your opinion, be a contributory or contributing factor in the onset of the attach of coronary insufficiency ?
Answer: The term used by doctors in this sort of case would he that the physical exertion is a PRECIPITATING* factor, a term very close to the word contributing.” [Emphasis mine. ^Emphasis by witness.]

CROSS-INTERROGATORIES PROPOUNDED TO DR. W. C. WHALEY

1. ‘‘After reading your answers to the Interroga-, tories propounded by the claimant, it is my under- , standing that it is your opinion that his chest pains were caused by an incomplete hlochage of the coro-: nary artery blood flow and that this blockage was : a product of Arteriosclerosis, which is a condition • that occurs over a long period of time. Is this cor- i rect?
Answer: Yes.
2. If this is correct, then since the problem was caused by long, gradual accumulation, isn’t it highly unlikely that work on the day of the occurrence of the chest pains had any causal relation to the pdinsi-
Answer: No. The basic lesion had to develop slowly, bnt it is entirely possible that the PRECIPITATING* event was a more vigorous heart action and flow rate through the diseased artery due to increased work load on the day in question. [Emphasis mine. ^Emphasis by witness.]
3. Isn’t it true that Mr. Adams gave you a history of doing work on the day in question which was no different than his normal work and that, in fact, on the day in question, he had completed the heavy work, eaten his lunch and was engaged in driving a truck, a relatively easy task, when he experienced the pain?
Answer: Yes.
4. From all you know about this case, in your opinion, did the work on the day in question have any causal relation to the incomplete blockage of coronary blood flow?
Answer: As a simple matter of fact, I do not know, and to state an opinion on that basis would be foolish. I understand that the Commission has to determine one way or the. other, but there is no clear MEDICAL* reason for me to have an opinion.” [Emphasis mine. *Emphasis by witness.]

It is notable that Dr. Whaley nowhere expresses any opinion that claimant’s heart attack was caused by his work. As a matter of fact, the conclusion ’seems inescapable that he carefully and deliberately avoided doing so. When he first mentioned physical exertion as a “precipitating factor,” he avoided answering the question as to his opinion whether claimant’s work activity was a contributing or contributory cause of the onset of an attack of coronary insufficiency. That coronary insufficiency is not a damage to the heart, but is a result of arteriosclerosis evidenced by pain, is shown by the doctor’s answer to the request for a definition. So whatever construction be put on the doctor’s answer, he has never stated any opinion that the claimant suffered a disabling heart attack caused by his work. While he did say that he diagnosed Adams’ trouble as “possible cor-onar y occlusion,” [Emphasis mine.] he gave his opinion that coronary arteriosclerosis was the cause. This certainly is a cause other than the work and is a condition ' that is not and cannot be brought on by work. It occurs ' over a long period of time. There can be no question , about this in view of the doctor’s answer to cross-inter-, rogatory no. 1. His answer to cross-interrogatory no. 2 simply establishes that it is not unlikely that the work had something to do with claimant’s chest pains. Here,! again, the chest pains are not a disability, nor did they cause any disability. I cannot help but believe that the-doctor understood all the questions and studiously avoided giving any answers except those he believed to be medically correct, but these do not establish any causal connection. If there was no clear medical reason for the doctor to have any opinion as to causal relation, how' could the Commission make any finding of causation, not just of coronary blood flow, but of heart damage? The doctor was not only reluctant to express complete certainty, or to indicate a probable cause, he was positively unwilling to express any opinion at all.

In the case cited by the majority the doctor testified that the most probable cause of insured’s death was pulmonary embolism attributable to a fractured leg. He clearly stated and reiterated an opinion that the death resulted from pulmonary embolism caused by accidental injury, even though he admitted on cross-examination that there are cases known to the medical profession in! which pulmonary embolism has been caused other than; by accidental injury or surgery. If that decision is the I yardstick by which the sufficiency of the evidence is to I be measured, Dr. Whaley’s testimony still comes up considerably short. It was recognized in W. Shanhouse & Sons v. Sims, 224 Ark. 86, 272 S. W. 2d 68, that questions such as those presented here are peculiarly within the realm of scientific knowledge. It follows that, in order to meet the burden of proof, claimant’s contention must be supported by medical testimony. Otherwise, the Commission members must sit as medical experts themselves and arrive at their own independent medical conclusions. In the Shanhouse case, this court said that they should not do so.

I recognize that we are not bound by decisions from other jurisdictions. It is obvious though that the great weight of authority supports my position on this testimony to such an extent that there is little dissent. It is the general rule that where evidence of causation of an injury or disease is required in cases where laymen have insufficient knowledge to enable them to say with any degree of certainty that the condition was caused or aggravated by the incident' involved, a claimant fails to meet the burden of proof by merely showing by medical testimony that the incident “could have,” “might have” or “possibly” caused the condition, but an issue of fact may be made only by evidence that the condition was “probably” or “to a reasonable certainty” the result thereof. As a corollary, testimony as to the “possibility” is not substantial evidence to support a finding of fact. See Annot., 135 ALB 516. Among the cases declaring this rule since the publication of the above annotation are:

Illinois: Panepinto v. Morrison Hotel, 71 Ill. App. 2d 319, 218 N. E. 2d 880 (1966).
Kansas :* Bearman v. Prudential Ins. Co. of America, 186 F. 2d 662 (10th Cir. 1951).
Missouri: Leavitt v. St. Louis Public Service Co., 340 S. W. 2d 131 (Mo. 1960) [Not sufficient to justify instruction authorizing award of damages for permanent injury]; Welker v. MFA Central Cooperative, 380 S. W. 2d 481 (Mo. 1964) [Admissible, but not substantial evidence]; Bertram v. Wunning, 385 S. W. 2d 803 (Mo. 1965).
North Carolina: Gillikin v. Burbage, 263 N. C. 317, 139 S. E. 2d 753 (1965).
Oregon:* Henderson v. Union Pac. R. Co., 219 P. 2d 170, (Ore. 1950); Hawerton v. Pfaff, 425 P. 2d 533, (Ore. 1966).
Ohio: Brandt v. Mansfield Rapid Transit, Inc., 153 Ohio St. Rep. 429, 92 N. E. 2d 1 (1950).
Oklahoma:* Cohenour v. Smart, 240 P. 2d 91 (Okla. 1951).
South Carolina:* Hines v. Pacific Mills, 214 S. C. 125, 51 S. E. 2d 383 (1949); Windham v. City of Florence, 221 S. C. 350, 70 S. E. 2d 553 (1952).
Utah: Moore v. Denver & Rio Grande Western R. Co., 4 Utah 2d 255, 292 P. 2d 849 (1956).
Washington:* Arthurs v. National Postal Transport Asso., 49 Wash. 2d 570, 304 P. 2d 685 (1956); Bland v. King County, 55 Wash. 2d 902, 342 P. 2d 599 (1959).
Wisconsin:* Meyer v. Fronimades, 2 Wis. 2d 89, 86 N. W. 2d 25 (1957).

Not only did this court indicate recognition of the rule in Chapman v. C. Finkbeiner, Inc., as pointed out in the footnote, but it has further indicated its concurrence when it approved the following conclusion of law stated by the Workmen’s Compensation Commission: “The claimant is not required to establish proof of the cause of the death to a mathematical certainty, but when the probable cause of death is established to a reasonable certainty, the burden of proof has been discharged.” Quality Excelsior Coal Co. v. Maestri, 215 Ark. 501, 221 S. W. 2d 38. [Emphasis mine.]

While we are not triers of fact, we should not shirk our responsibility to look behind the finding of the Workmen’s Compensation Commission to determine whether it is supported by evidence. In this case, not only is the evidence of cause insubstantial, it is nonexistent. If we go traipsing down the path opened in this case, workmen’s compensation will become general industrial insurance in heart cases, covering not only uheart attacks” but arteriosclerosis.

I would reverse the trial court and the Commission.

I am authorized to state that Brown, J., joins in this dissent.

      In considering medical testimony, this court has recognized the significance of the use of the word “possible” rather than “prob- i able” to describe the likelihood of causal connection. Chapman v. C. Finkbeiner, Inc., 230 Ark. 655, 324 S. W. 2d 348.

      These states were not listed as supporting the general rule in the annotation.


text:
    George CHECK v. Joyce MEREDITH et al
    5-4374
    420 S. W. 2d 866
    Opinion delivered November 20, 1967

      House, Holmes & Jewell, for appellant.

      Cockrill, Laser, McGehee, Sharp & Boswell, for appellees.
   George Rose Smith, Justice.

Two of the appellees, Joyce and Robert Meredith, were injured in a traffic accident involving their mother’s car, in which they were riding, and a car being driven by the appellant. This action for personal injuries and property damage was brought by Joyce, by Mrs. Meredith as the next friend of Robert, a minor, and by Mrs. Meredith in her own right. The jury returned verdicts of $6,000 for Joyce, $3,500 for Robert, and $1,500 for Mrs. Meredith. For 'reversal the appellant questions the court’s instructions to the jury and the amount of the awards.

We think theccourt erred in instructing the jury that Joyce was entitled to recover the present value of any earnings reasonably certain to be lost in the future. AMI 2201 and 2206. At the time of the accident Joyce was working in Little Rock at a salary of $200 a month. Her injuries disabled her for several months. At the time of the trial, almost two years after the collision, she was employed at a salary of $250 a month, with guaranteed raises in amounts not shown by the testimony.

The trouble is that although there is proof that Joyce may have suffered a loss of earning capacity, AMI 2207, there is no evidence to assist the jury in fixing the amount, in dollars and cents, of earnings reasonably certain to be lost in the future. Dr. Murphy esti: mated that Joyce’s cervical spinal injuries had resulted in a permanent disability of 5 percent to the body as a whole. Joyce had been back at work for more than a year before the trial. She testified that she experienced dif-ficiilty in working, in that “about the middle of the day my neck will start hurting and I’ll have to stop my work and rest for a period of time in order that it would stop hurting, and I can go hack to work. ’ ’ Her statement that her employer understood her condition doubtless implied that he was willing to make allowances for her inability to work steadily all day.

Where there is proof that the plaintiff, at the time of the trial, is still unable to work or is unable to earn as much as he did before he was injured, an instruction upon the loss of future earnings is proper. Holland v. Ratliff, 238 Ark. 819, 384 S. W. 2d 950 (1964); Abraham v. Jones, 228 Ark. 717, 310 S. W. 2d 488 (1958). Here that essential proof is absent. There is no indication that Joyce missed even a day’s work for some fourteen months immediately preceding the trial. No witness testified that it was either probable or possible that she would be unable to continue working regularly. Hence the jury had no basis, except pure guesswork, for estimating earnings reasonably certain to be lost in the future. The judgment in favor of Joyce must be reversed.

We find no error in the court’s refusal to give AMI 2214 in its entirety. That instruction would have told the jury that it is an injured person’s duty (a) to determine whether medical treatment is needed, (b) to obtain medical treatment, and (c) to follow the instructions of his physician. There was some testimony pertinent to element (c): The orthopedists who testified thought that both Joyce and Robert should have followed their instructions to the letter instead of going to a chiropractor for treatment. But even with respect to that element the proof doqs not disclose to what extent their failure to follow instructions resulted in an enhancement of their damages. Moreover, there is no proof touching upon elements (a) and (b) in the requested instruction. In the circumstances the court correctly refused to give the charge.

The verdicts in favor of Robert and his mother were not excessive. Robert suffered a permanent disability of at least 5 percent to the body as a whole. At the time of the trial he was still suffering pain, almost two years after the accident. He attributed to the accident a blurring of his eyesight that seriously interfered with his studies and with his efforts to become an architectural engineer. Far from being excessive, Robert’s award of $3,500 seems to us to be rather modest.

With respect to Mrs. Meredith the state of the record is rather odd. She sued for medical expenses incurred by her for both children and for damages to her car. It was stipulated that Robert’s medical expenses amounted to $710.27, that Joyce’s amounted to $682.55and that the damage to the car was $600.00. The court, however, included the children’s medical expenses as items of damage in AMI 2201 — which was properly given twice, once for Joyce and once for Robert.

There was no instruction whatever with respect to Mrs. Meredith’s measure of damages, either for the' medical expenses or for the car. Nevertheless the court apparently gave the jury a separate form of verdict for each of the three plaintiffs. There was no objection by the defendant either to the court’s failure to give AMl'i 2201 with regard to Mrs. Meredith’s damages or to thej submission of a form of verdict in her favor. In view; of these facts we cannot say that the appellant suffi-j ciently preserved his record to be in a position to ques-j tion the amount of Mrs. Meredith’s recovery. We should add, however, that upon the merits of this issue we not consider the verdict to be excessive.

Affirmed as to Robert and his mother; reversed as to Joyce.

Byrd, J., dissents as to the reversal.