text:
    CONTINENTAL CASUALTY CO. v. J. D. COBB
    5-5347
    459 S. W. 2d 67
    Opinion delivered October 26, 1970

      Rose, Barron, Nash, Williamson, Carrol <b Clay, for appellant.

      Charles A. Walls and Moses, McClellan, Arnold, Owen b• McDermott, for appellee.
   J. Fred Jones, Justice.

This is an appeal by Continental Casualty Company, hereinafter referred to as “the company,” from a judgment of the Lonoke County Circuit Court entered on a jury verdict in favor of J. D. Cobb for $9,600 on a health and accident insurance policy. Under the policy the company agreed to pay Mr. Cobb monthly sickness indemnity as follows:

“TOTAL DISABILITY AND CONFINEMENT. When, as the result of sickness and commencing while this policy is in force, the insured is wholly and continuously disabled and prevented from engaging in each and every duty pertaining to his occupation, the Company will pay periodically the Monthly Indemnity stated in the Schedule for the period the Insured is so disabled and necessarily and continuously confined within the house, not to exceed the Maximum Period Confining Sickness Indemnity stated in the Schedule as the result of any one sickness. Confinement shall not be terminated by reason of the transportation of the Insured, at the direction of his doctor, to or from a hospital or a doctor’s office for necessary treatment.
TOTAL DISABILITY AND NON-CONFINEMENT. When, as the result of sickness and commencing while this policy is in force or immediately following a period of disability for which indemnity is payable under Paragraph A of this Part, the Insured is wholly and continuously disabled and prevented from engaging in each and every duty pertaining to his occupation although not confined within the house, the Company will pay periodically the Monthly Indemnity stated in the Schedule for the period of such disability not to exceed the Maximum Period of Non-Confining Sickness Indemnity stated in the Schedule, as result of any one sickness.”

Mr. Cobb suffered a severe heart attack on November 26, 1965, and was hospitalized for several days. He was paid under the confinement clause, II A, of the policy until August 16, 1966. Each time a monthly payment was sent to Mr. Cobb he filled out and returned a form statement as to his then condition. Upon receipt of the August statement from Mr. Cobb advising that he had not been confined to the house since his last report, the company stopped payments under the II A clause of the policy, but continued payments under the “total disability and non-confinement” clause, II B, of the policy. Payments were continued under this clause until January, 1967, the last check being dated January 6, 1967. On February 8, 1967, the company wrote to Mr. Cobb as follows:

“A representative of our company attempted to call on you at your home, January 26, 1967. When he arrived at your home he was advised by your wife that you were at the office. At that time, he briefly discussed your claim with your wife and it appears now that your health has improved now to the point that you can now perform the lighter duties of your occupation.
Since your policy, with our company, provides benefits only during the period of time that you are totally disabled, unable to perform each and every duty of your occupation, it appears at this time, that your claim would not qualify for further benefits.”

No payments were made after January 6, 1967, and on February 8, 1969, Mr. Cobb filed his complaint setting out his insurance contract and alleging that on or about November 26, 1965, he suffered a heart attack and has been totally and permanently disabled and confined within the meaning of his policy since that date, and that the company owes him $9,600 in monthly benefits. He prayed judgment for that amount.

In its answer, the company admitted the issuance of the policy but denied that Mr. Cobb was totally disabled within the terms of the policy. The jury returned a verdict for Mr. Cobb for $9,600 and judgment was entered thereon. On appeal to this court the company relies on the following point for reversal:

“The trial court erred in refusing to direct a verdict in favor of the appellant and against the appellee on the separate issue of whether appellee was necessarily and continuously confined to his house within the meaning of the law, since there was no substantial evidence upon which a jury verdict in favor of appellee on this issue could be supported.”

At the trial Mrs. Cobb testified that prior to his heart attack, Mr. Cobb got up around 4:00 or 5:00 o’clock and went to work; that he would return to the house for breakfast about 7:30 a.m. and then leave and return for lunch and go back to work until 6:00 or 6:30. She testified that now, on a normal day, Mr. Cobb gets up around 7:30, eats breakfast and leaves the house from around 9:00 to 9:30. He returns at noon and rests in bed for two or three hours; he then leaves about 3:00 and returns about 5:00 or 5:30.

We deem it unnecessary to detail all of the testimony relating to Mr. Cobb’s activities. He drives his automobile, attends various corporate board meetings, attends church and attends football games. Mr. Cobb testified that he attended regular monthly board meetings of Commonwealth Federal Savings & Loan Association in Little Rock and doesn’t think he missed any of the regular meetings during 1967. Mr. Cobb visited relatives in Houston, Texas and in Milton, Florida, and took one Carribean cruise driving to New Orleans and back for that purpose. As a matter of fact all the evidence is to the effect that Mr. Cobb is completely unrestricted as to when, how, and where he goes. He is only restricted in what he does and the manner in which he does it. He can walk as far as four miles but walks slowly. He goes to his office regularly but does no work. He visits his farm operations but gives no orders. He avoids heat, strenuous exercise, excitement and worry.

The company does not question Mr. Cobb’s proof of total disability within the provisions of clause II B of the policy, it only questions the sufficiency of the evidence as to house confined disability under II A of the policy. At the close of the testimony, the company moved for a “directed verdict in its favor on the issue of house-confining disability for the reason that there is no evidence in the record from which the jury could reasonably determine that the plaintiff has been house confined within the meaning of the law,” and the motion was denied. The company then requested a jury instruction requiring the jury to find for the company on the issue of house confinement and this requested instruction was refused. The appellee Cobb then requested an instruction as follows:

“Plaintiff J. D. Cobb, has the burden of proving by a preponderance of the evidence, that from the onset of his sickness in December 1965 he has been wholly and continuously disabled and prevented from engaging in each and every duty of his occupation and that he has been necessarily and continuously confined within the house as those provisions have been explained to you. If you find from a preponderance of the evidence that he has met this burden you must award him the amount to which you find he is entitled.”

The court refused this instruction as requested, and gave instead the company’s requested instruction No. 11 A as follows:

"Under the law, the phrase ‘necessary and continuously confined within the house,’ as contained in the policy sued on, does not literally require the plaintiff to continuously remain within the house in order to recover. It is possible for a person to be necessarily and continuously confined within the house even though he goes outside his house, for limited periods of tíme, to take a reasonable amount of exercise, to subject himself to fresh air and sunshine, or to engage in non-strenuous activities on a limited and reasonable basis, if these activities are part of a prescribed course of therapy suggested by his physician. In addition, a person may go outside his house for the purpose of obtaining necessary medical treatment and still be considered ‘necessarily and continuously confined within the house,’ under the law.
If you find from a preponderance of the evidence that in any of the months in question the plaintiff’s activities did not differ from or exceed the type of activities just mentioned, and if those activities or events were only performed occasionally, and not on a regular and systematic basis, then those activities or events would not prevent you from finding that the plaintiff was necessarily and continuously confined within the house.”

We agree with the appellant that there is no evidence in the record that Mr. Cobb is confined to his home and there is no medical, or other, evidence that he should be. We conclude, therefore, that the court should have granted the company’s motion for a directed verdict in its favor on the issue of house confinement. We do not say what conclusion we may have reached prior to our decision in Michigan Life Ins. Co. v. Hayes, 231 Ark. 614, 332 S. W. 2d 593 (1960), but in that case we practically issued a caveat as to future cases involving confinement clauses in insurance contracts when we said:

“To state our position, we simply say that this Court is unwilling to further extend or further liberalize the interpretation given the confinement clause in the Sammons case, [224 Ark. 31, 271 S. W. 2d 922] i. e., that case represents the ultimate peak of liberal construction which we have approved — or will approve in future cases. Of course, appellee asserts that this case calls for no more liberal construction than the Sammons case. As stated, we disagree with this assertion; but if it be correct — then we are modifying our previous interpretation.”

In Michigan Life Ins. Co. v. Hayes, the activities of Dr. Hayes, the appellee insured, were not as varied as those of Mr. Cobb in the case at bar. Dr. Hayes fished, deer hunted, played checkers at the Elks Club, visited with friends and sometimes drove his automobile. He sat in a chair on a deer stand when hunting deer, and when he became tired he lay down in his nearby automobile or jeep. He had someone else carry the boat motor to and from the boat and pull the boat from the water when fishing. All of Dr. Hayes’ activities were recommended as therapeutic measures by his attending physician, and Mr. Cobb’s activities were approved by his physicians in the case at bar. Like Mr. Cobb in the case at bar, Dr. Hayes went to his office and opened his mail. He no longer practiced his medical profession, and like Mr. Cobb, he was totally disabled. In reversing a judgment for Dr. Hayes in that case, this court said:

“We have reached the conclusion that this judgment must be reversed. In doing so, we are not unmindful of the fact that the literal language of the confinement clause in the Sammons case, and other cases cited in that opinion, was violated by each respective insured, and yet recovery was allowed. Arkansas had consistently given a liberal construction to confinement clauses, but we think even liberality has its limits. Of course, it would be ridiculous to hold an insured to the very letter of the clause, for, as has been pointed out by other jurisdictions, such an interpretation would prevent his leaving the house during danger of flood, fire, or destruction. So, it is apparent that a reasonable construction should, and must be given, rather than interpreting the contract from a strict, literal view. Certainly it is reasonable for one to go outdoors for fresh air — to visit with friends — to walk for exercise — to pick up mail — to sometimes engage in other activities for pleasure, and to even engage in occasional work. We think the evidence in this case goes far beyond such activities, for the activities of Dr. Hayes seem to be regular and systematic; in fact, one would almost gain the impression that the doctor is away from his home as much as he remains in it. In fact, we do not see a great deal of difference in his routine and that of one who has retired because of age or length of service.
To affirm this judgment would actually mean that there can be no such contract in Arkansas as provided in the confinement clause, and that a confinement clause has the exact and identical meaning as total disability, i. e., if an individual is unable to perform all the substantial and material acts necessary to the prosecution of his business or occupation in a customary and usual manner, he is totally disabled — and confined. Not only would such a construction be completely unfair to an insurance company, but it could also have the result of preventing this coverage from being available for persons who would qualify, for a company might well withdraw this provision from contracts sold in states giving so liberal construction.”

In Guarantee Trust Life Ins. Co. v. Koening, 240 Ark. 650, 401 S. W. 2d 216, cited by the appellee, the trial court refused a requested instruction on house confinement and we held that such refusal was error under the undisputed facts of that case. The substan-tiality of the evidence as to house confinement was not an issue in Koening.

We recognize that this court has long been committed to the rule that a verdict should not be directed against the plaintiff if there is any substantial evidence to support a finding in favor of the plaintiff, (Sanders v. Keenan and Merritt, 244 Ark. 585, 426 S. W. 2d 399) but when the evidence in the case at bar is considered in the light most favorable to Mr. Cobb, there is no substantial evidence that he was confined to his house because of his heart attack after August 26, 1966, when Mr. Cobb reported to the company that he was no longer confined to the house. On July 26, 1966, Mr. Cobb reported that he had been confined to the house from June 26 to date. His monthly reports thereafter stated that he had not been confined to the house except in the December report dated January 4, 1967; he stated he had been confined to the house “some” since the last report.

It must be remembered that there were two separate provisions clearly set out in the contract under which Mr. Cobb was entitled to $400 per month while he was totally disabled. These two provisions have to do with the extent of his total disability. Under the first provision, II A, he was entitled to $400 per month indefinitely so long as his total disability was such that he was necessarily and continuously confined to the house. Payments were made under this provision as long as Mr. Cobb reported that he was so confined, and until he reported that he was no longer so confined, in August, 1966.

Under the second provision, II B, as we read the contract, Mr. Cobb was entitled to $400 per month for a period of one year after his total disability was no longer such that he was necessarily and continuously confined to the house. Under this provision Mr. Cobb was paid $400 per month from August, 1966, to January 6, 1967, at which time payments were stopped by the company on the theory that Mr. Cobb was no longer totally disabled. The record indicates that the company is satisfied with the proof of total disability under clause II B of the policy, and that it stands ready to pay any amount it owes under that provision.

The state of the record is such that we do not attempt to fix the exact amount of money judgment to which Mr. Cobb is entitled under clause II B of his policy, so we remand this case to the trial court for that purpose.

Reversed and remanded.


source: Caselaw Access Project

author: Frank Holt, Justice.

license: Public Domain

text:
    INTERNATIONAL HARVESTER CO. v. HENDRICKSON MFG. CO.
    5-5325
    459 S. W. 2d 62
    Opinion delivered October 26, 1970

      Wright, Lindsey ir Jennings, for appellant.

      Cockrill, Laser, McGehee, Sharp & Boswell, for appellee.
   Frank Holt, Justice.

This is an appeal by International Harvester Company from a court order granting appellee Hendrickson Manufacturing Company’s motion to quash summons and dismissing a third-party complaint against it.

Appellee, an Illinois corporation, is not qualified to do business in Arkansas and has no local agent for service. It manufactured and sold to appellant, a Delaware corporation authorized to do business in this state, a torque rod assembly which appellant utilized in the out-of-state construction of a truck. The truck was subsequently sold to Earl Pike by Burks Motors, Inc., an Arkansas corporation and distributor of appellant’s products. Because of certain malfunctionings, the truck was returned three times to Burks Motors for servicing and repairs within the first few months after purchase. Finally an accident occurred on an Arkansas highway, allegedly caused by a defect in the torque rod assembly of the truck, which resulted in serious injury to Pike and property damages to his truck.

Appellant and Burks Motors were named co-defendants in a suit instituted by Pike. Subsequently, a third-party complaint was filed by appellant as third-party plaintiff against appellee as third-party defendant; and, thereupon, Pike amended his initial complaint to include appellee as a party defendant. Appellee appeared specially to contest jurisdiction. To facilitate a determination of that issue, appellant and appellee stipulated, in pertinent part, as follows:

# # #
3. Hendrickson Manufacturing Company has not directly or by any agent transacted or solicited any business in the State of Arkansas, had an interest in, used or possessed any real property in the State of Arkansas; or contracted in the State of Arkansas to supply services or things.
4. The torque rod assembly on the tractor of Earl Pike that was involved in the accident out of which this litigation arises was sold by Hendrickson Manufacturing Company to International Harvester Company with knowledge on the part of Hendrick-son Manufacturing Company that it would become a part of a completed vehicle.
5. A substantial number of trucks that are sold and used in the State of Arkansas contain component parts designed and manufactured by Hen-drickson Manufacturing Company and this situation has existed for a number of years. Hendrickson Manufacturing Company derives revenue from the sale of component parts used in the manufacture of trucks by International Harvester Company and other manufacturers.

From these facts the trial court found that appellee was entitled to have its motion to quash summons granted and dismissed the third-party complaint. Hence this appeal.

For reversal appellant asserts that the stipulated facts bring appellee well within the jurisdictional ambit of our “long arm” statute, Ark. Stat. Ann. § 27-2502 (Supp. 1969). We must agree. Subsection C. 1. (d) of § 27-2502 provides:

A court may exercise personal jurisdiction over a person, who acts directly or by an agent, as to a (cause of action) (claim for relief) arising from the person’s * * *
(d) causing tortious injury in this State by an act or omission outside this State if he regularly does or solicits business, or engages in any other persistent course of conduct in. this State or derives substantial revenue from goods consumed or services used in this State;

The stipulation specifically states that for the past several years a substantial number of trucks that are sold and used in Arkansas contain component parts designed and manufactured by appellee. From this it cannot be argued persuasively that appellee is not subject to extrastate service of process under the last quoted disjunctive condition for jurisdiction — i. e., appellee derives substantial revenue from goods consumed in this state.

Appellee, however, insists that it has not established those “certain minimum contacts” with this forum so as to be subject to its jurisdiction without offending “traditional notions of fair play and substantial justice.” International Shoe Co. v. State of Washington, 326 U. S. 310 (1945). This contention cannot be maintained. Our “long-arm” statute (§ 27-2502) is a component of the Uniform Interstate and International Procedure Act adopted by the legislature in 1963. It was specifically designed to authorize extrastate service of process in a manner consistent with the requirements of the due process clause of the federal constitution. See Leñar, Act 101 — Uniform Interstate and International Procedure Act, 17 Ark. L. Rev. 118 (1963). The various conditions for extrastate jurisdiction which this statute outlines certainly do not raise any due process doubts.

Appellee calls attention to an express restriction in the rationale of International Shoe Co. v. State of Washington, supra, and McGee v. International Life Ins. Co., 355 U. S. 220 (1957) — i. e., that before a state can exercise such jurisdiction it is essential that there be a showing that the non-resident defendant purposefully availed itself of the privilege of conducting activities within the forum state. See Pennsalt Chem. v. Crown Cork & Seal, 244 Ark. 638, 426 S. W. 2d 417 (1968). However, see In Personam Jurisdiction Over Nonresident Manufacturers in Product Liability Actions, 63 Mich. L. Rev. 1028 (1965), where it was incisively observed:

[T]he fortuities of product migration do not always permit an automatic association of product location with a deliberate act of the manufacturer within the forum state. The movement of the product may have been effected by the consumer or by independent middlemen. Or, it may have resulted from the distribution of a secondary manufacturer who purchased the defendant’s product as a component for his goods, the component proving to be the defective item, since the manufacturer over whom personal jurisdiction is sought may have had no control over the process by which his product reached the forum, the attribution to the nonresident of a purposefully instituted relationship becomes less meaningful. The language of McGee [McGee v. International Life Ins. Co., supra] and Hanson [Hanson v. Denckla, 357 U. S. 235 (1958)], which speak of contacts emanating directly from the defendant, seems inapposite where such intimacy is lacking. Therefore, fairness to the nonresident, within the meaning of International Shoe [International Shoe. Co. v. State of Washington, supra], must be formulated with reference to broader considerations when the presence of the product stems from a more circuitous route than direct shipment.

The rapid development of communication and transportation, the marked increase in specialization of commercial activity, and the growing interdependence of business enterprises have resulted in a redefining of due process with emphasis upon adequate notice and opportunity to defend rather than upon territorial limitations. See Metal-Matic, Inc. v. Eighth Judicial Dist. Court, 415 P. 2d 617 (Nev. 1966) and Gray v. American Radiator & Standard Sanitary Corp., 22 Ill. 2d 432, 176 N. E. 2d 761 (1961). Today, manufacturers rarely deal directly with consumers. Their products are often designed for sale and use in whatever markets may be found for them. Such nationwide markets make it likely that consumer injuries will occur in states far removed from the manufacturer’s place of business. It has therefore been suggested that the use of such products in the ordinary course of commerce is sufficient contact with the forum wherein the injury occurred to justify its exertion of jurisdiction. Gray v. American Radiator & Standard Sanitary Corp., supra. See, also, Anderson v. National Presto Industries, Inc., 257 Iowa 911, 135 N. W. 2d 639 (1965). In other words, the criteria for jurisdiction should be the more practical considerations of justice, convenience, and reasonableness in the particular case. It must be remembered that the standard of “fair play and substantial justice” is not to be utilized solely for the benefit of nonresident defendants, but rather it is an equal guarantee to consumer-plaintiffs of a just, convenient and reasonable forum in which to try their suit.

Reversed and remanded.


text:
    ARKANSAS STATE HIGHWAY COMM’N v. Alma Summers WALLACE
    5-5334
    459 S. W. 2d 812
    Opinion delivered October 26, 1970
    [Rehearing denied December 14, 1970.]

      Thomas B. Keys and Billy Pease, for appellant.

      Gordon, Gordon ¿r Eddy, for appellee.
   Frank Holt, Justice.

This case, before us for the second time, is a condemnation proceeding in which appellant acquired a strip of land, 750 feet long and 150 feet wide (2.55 acres), from appellee’s 143-acre tract. The acquisition was needed for the construction of approaches to a new bridge on Highway No. 9 across the Arkansas River near Morrilton. The acquired strip severs appellee’s property, leaving 129.75 acres on the east side. The western residual, upon which the headquarters, barns and other improvements are all located, consists of only 10.7 acres.

Upon first appeal we reversed on direct and cross-appeal. Arkansas State Highway Commission v. Wallace, 247 Ark. 157, 444 S. W. 2d 685. On remand, each of appellee’s two expert value witnesses testified that the highest and best use of the property was for residential development, one placing just compensation at $26,250 and the other estimating damages at $26,425. Appellant’s only appraiser testified that just compensation would be $7,000. The jury awarded $20,000. From that judgment comes this appeal.

Appellant first contends for reversal that the trial court erred in denying its motion to strike that portion of the testimony of C. V. Barnes, one of appellee’s expert value witnesses, regarding damage to farm buildings. Barnes testified that because the dairy barns and related buildings were all located on the small western sector after severance of the property, their utility was impaired for any future use in the dairy operation, thus damaging appellee in the amount of $3,500. Appellant argues that since Barnes had previously stated that the highest and best use of the property was for residential purposes and had substantially derived his estimate of damages from that premise, his subsequent testimony concerning damage to the farm buildings was improper inasmuch as those buildings could not have contributed anything to the value of the property for urban development.

Appellant, however, is overlooking a decisive consideration — i. e., the use of the property as a continuing or interim dairy farm is not inconsistent with its gradual conversion into a residential area. While an owner is not entitled to double recovery by separately proving and then compounding the values of the different uses to which his land 'was adaptable in arriving at the sum of his due compensation [see Nichols on Eminent Domain, 3d ed., Vol. 4, § 12.314, and 27 Am.'jur. 2d, Eminent Domain, § 314], nonetheless, where the various uses attested to are not inconsistent, estimated values of such uses constitute properly admissible damage evidence. See Arkansas State Highway Comm. v. Brewer, 240 Ark. 390, 400 S. W. 2d 276 (1966); Ft. Smith & Van Buren Dist. v. Scott, 103 Ark. 405, 147 S. W. 440 (1912).

In the case at bar, witness Barnes substantiated his estimates with competent testimony as to the value, nature and use of the property as a dairy farm and, also (as shall be discussed in appellant’s next point for reversal) sufficiently demonstrated an increasing demand for the property as a residential development site. Certainly a future purchaser of the Wallace property might well desire to continue the interim use of the dairy operation to offset any costs and interest charges that might exist during the piece-meal process of housing development. There is nothing incompatible about or inconsistent in these two uses of the property.

Appellant next asserts that the trial court erred in not granting its motion to strike witness Barnes’ value testimony since it was founded upon the premise that the property had a different highest and best use (residential development) than its use at the time of taking without a showing of sufficient demand for the different highest and best use. A similar issue was raised in Arkansas State Highway Comm. v. Leavell, 246, Ark. 1049, 441 S. W. 2d 99, wherein we noted that although compensation must be based on present market value and not upon speculative anticipation of future development, nonetheless it does not necessarily follow that present usage is the most adequate or conclusive criterion for determining that market value. In the instant case, despite the fact that the land is presently used as a farm, its demonstrated suitability for prospective building purposes at the time of taking undoubtedly had an effect on its market value. Witness Barnes cogently substantiated his conclusion, as did the expert witnesses in the Leavell case, that the highest and best use of the property is for urban development. He testified that the town is already expanding toward it; that it is adjacent to another area recently developed for residential purposes; that its topography is very appropriate for housing construction; that all utilities are available to the property; that it has good access to a paved thoroughfare; that it is a mile and a half from the central business district of Morrilton; and that it is conveniently located to a neighborhood church, school, theatre and shopping facilities.

In its third point for reversal, appellant argues that the trial court erred in not striking all of witness Barnes’ testimony because it allegedly contained a non-compensable element of damages which was neither distinguishable nor separable from the total estimated damges. The asserted non-compensable element is the lessened accessibility from one side to the other of ap-pellee’s severed property which was taken into consideration, without a specific designation of monetary damage, by witness Barnes in his overall appraisal of just compensation. However, we do not consider this to be a non-compensable element of damages. Appellant acquired its strip of land in fee simple. Such a taking necessarily affected appellee’s right of ingress and egress and thereby effected a depreciation in the market value of her property. This constitutes a compensable element of damages even though it is impossible to ascribe to it a certain monetary figure. See Arkansas State Highway Comm. v. Wallace, supra. There we observed:

[CJertainly an informed prospective buyer, in noting the fee taking, would realize that his access to the highway would surely be subordinated to the needs of the highway department and those political subdivisions or utilities utilizing the untraveled portion of the right-of-way.

Since the taking in fee and resulting limited right of ingress and egress constitute a compensable element of damages, it necessarily follows, in the case at bar, that appellee’s lessened accessibility from one side of her property to the other, directly caused by her limited right of ingress and egress over appellant’s acquired fee simple strip which severs her property, is also com-pensable. Witness Barnes’ testimony in this regard was therefore permissible.

In its next point for reveral, appellant again urges that the trial court erred by refusing to strike all of witness Barnes’ value testimony in that it contained still another non-compensable and inseparable element of damages. Appellant insists that Barnes’ consideration of damages resulting from the property abutting both sides of the highway was impermissible. Support for this position is asserted by citing Campbell v. Ark. State Highway Comm., 183 Ark. 780, 38 S. W. 2d 753 (1931), wherein we held that a property owner should not recover compensation “* * * for noise, dust and matters of that sort, which, in varying form, are incidents to living upon a public highway or street and, as such, must be borne by all owners of abutting property.” In the case at bar, however, Barnes’ estimated damages in this regard were premised upon the special depreciation for residential purposes in the value of the lands which are immediately adjacent to the highway (a fee simple acquisition with multiple incidental usages), and not upon the noise or dust nuisances resulting therefrom. Since the highest and best use of the property is said to be for residential development, the lessened value of those lands abutting the highway is certainly a consideration which a prudent purchaser would take into account. The depreciation factor, rather than the elements of nuisance, is what was attested to; and, as such, it was properly admitted into evidence.

Finally, appellant contends t that the trial court erred in refusing to instruct the jury that appellee, as an abutting property owner, has an easement in the non-controlled access highway for purposes of ingress and egress which exists even though appellant’s acquisition is in fee simple. Upon the first appeal of this case [Arkansas State Highway Comm. v. Wallace, supra], we found error in the court’s giving of a similar instruction. In effect, the appellant now asks that we recede from our disapproval of such an instruction and hold “that where a landowner abutting a highway has reasonable access, then he is entitled to no compensation from the Commission for the taking of that access until such time as it is substantially impaired” by the taking in fee. We unhesitatingly adhere to our view that “a fee simple taking under Act 419 places the predominant control of all lands within the right-of-way in the Commission; that the utilization of the acquired property for highway purposes and for such purposes as are delegated to political subdivisions and utilities will as a matter of law take precedence over all other uses; and that Mrs. Wallace’s use of the highway for going in and out of her property can reasonably expect to be affected.”

Affirmed.


author: Richard H. Mays, Special Justice.

text:
    Joe WILLIAMS et al v. PULASKI COUNTY ELECTION COMM’N et al
    5-5487
    459 S. W. 2d 52
    Opinion delivered October 23, 1970

      John Langston and Dave Witt, for appellants

      Hubert Mayes, Jr., Jack Lessenberry and Joe Kemp, for appellees.
   Richard H. Mays, Special Justice.

This is an appeal from an action filed in Pulaski County Circuit Court by Joe Williams, a citizen and elector of the City of Little Rock, Pulaski County, Arkansas, against the Pulaski County Election Commission and the potential seven candidates for the office of Municipal Judge of Little Rock, Arkansas, to be voted upon in the forthcoming general election. Williams alleged in his Complaint in the trial court that none of the potential candidates for Municipal Judge were qualified because they had not filed a Political Practice Pledge with the Pulaski County Clerk under the provisions of Act 27 of 1970 at the time of the filing of their Petitions for Nominations with the Little Rock City Clerk. Williams asked for a declaratory judgment declaring which candidates had legally qualified as a candidate for Municipal Judge and that the Pulaski County Election Commission be enjoined from placing the names of any candidate for Municipal Judge on the ballot who had not complied with the provisions of Act 27 of 1970.

The trial court entered an order temporarily enjoining the Pulaski County Election Commission from printing the ballots for the office of Municipal Judge, and all of the potential candidates for the office filed Answers to the Complaint denying that they were required to file a Political Practice Pledge on the basis that the provisions of Act 27 of 1970 did not apply to candidates for that office, with the exception of Carl Langston, a potential candidate for the office, who filed, a Separate Answer and Cross Complaint in which he alleged that he filed a Political Practice Pledge under the provisions of Act 27 of 1970 within the time provided for by law and that he was the only qualified candidate for Municipal Judge. He requested the trial court to declare him to be the only qualified candidate and to enjoin the Pulaski County Election Commission from placing any other names on the ballot for Municipal Judge except his. The City of Little Rock intervened and alleged that potential candidates for its Board of Directors who are to be elected in the November 3 general election had not filed a Political Practice Pledge in accordance with said Act 27 of 1970, and requested that the trial court declare the candidates for directors to be qualified.

At the hearing before the trial court, it appeared that only candidate Carl Langston had filed his Political Practice Pledge with the County Clerk. In addition, it appeared that the remaining candidates for the office of Municipal Judge had made inquiry of the City Clerk and the City Attorney at the time of their Petitions for Nomination as to whether any additional filing would be required and were advised by the City Clerk and City Attorney that no other filing was necessary. The remaining candidates for the office of Municipal Judge subsequently filed Political Practice Pledges with the County Clerk, although such filings would not have been within the time required by Act 27 of 1970, if it applied to that office.

The trial court entered its judgment declaring all of the potential candidates for Municipal Judge and Board of Directors of Little Rock to have been duly qualified, and held that Act 27 of 1970 did not apply to these municipal elections. It is our opinion that the judgment of the trial court should be affirmed.

The history of the considerable legislation relative to this case has been well presented by the excellent briefs of the parties in this case. The City of Little Rock has, since 1957, operated under a city manager form of government, which form of government was authorized by the General Assembly by Act 99 of 1921, and amended by Act 8 of 1957, the same being codified as Arkansas Statute 19-701 et seq. Arkansas Statute 19-705 sets forth the procedure for nomination of candidates to the Board of Directors of a city operating under a city management form of government. Essentially, the candidate must file a Petition with the City Clerk or Recorder bearing no less than 50 signatures of qualified voters of the city during a period of time not more than 60 days nor less than 40 days prior to the election. After certifying as to the sufficiency of the Petitions for Nomination, the City Clerk or Recorder certifies the names of candidates who have duly qualified to the County Election Commission who places their names on the ballot and conducts the election.

Act 38 of 1968 provided that a city with a city management form of government may, by ordinance, provide for the election of Municipal Judges in that city at biennial general elections, in which event the candidates for such office shall be nominated and elected in accordance with the applicable provisions of Arkansas Statute 1.9-704 and 19-705. The City of Little Rock adopted such an ordinance in 1968.

In 1969, the General Assembly enacted Act 465 (Ark. Stat. 3-101 et seq.) which compiled and revised many of the election laws of the State of Arkansas into a comprehensive election code. Act 465 deals primarily with party primary, general and special election procedures and specifically repealed a large number of previously existing statutes. Arkansas Statute 19-704 and 19-705 were not included within those statutes which were specifically repealed by Act 465 of 1969.

Section Three of Article 11 of Act 465 of 1969 (Ark. Stat. 3-1103) provided for the filing of a Political Practice Pledge in writing by candidates for state, district, county, municipal or township offices. This pledge was to be filed not later than 12:00 o’clock noon on the third Tuesday of June before the preferential primary election, except in the case of a write-in candidate, who is to file such pledge at the time he files notice to be a write-in candidate. This section was amended by Act 27 of 1970 which added a proviso that persons nominated as independent candidates for municipal or township offices for which no political primary is held shall file such Political Practice Pledge at the same time he files his Petition for Nomination as provided in Section 13 (j) of Article 1 of Act 465 of 1969 (Ark. Stat. 3-113 (j) ).

Section 13 (j) of Act 465 (Ark. Stat. 3-113 (j) ), provides that Certificates of Nomination shall be filed not more than 55 nor less than 45 days prior to the day fixed by law for the election of the persons in nomination.

We are of the opinion that Act 27 of 1970 does not apply to candidates who file for office in cities operating under a city manager form of government.

Arkansas Statutes 19-701 et seq. are statutes dealing specifically with the subject of city manager form of government, and the method of nomination and election of officials in that form of government. Act 38 of 1968 is amendatory to those statutes, dealing specifically with the method of nomination and election of Municipal Judges in a city with a city management form of government. These statutes set forth with clarity and specificity the times within which Petitions for Nomination for the offices of Board of Directors and Municipal Judge in such cities may be filed.

On the other hand, Act 465 of 1969 covers generally the field of party primaries, general and special elections. It was intended to consolidate in one comprehensive code most of the laws of the State relative to such elections, and to modernize some of. these laws. We do not believe that it was intended by the legislature to repeal and replace all laws of the State dealing with elections and qualification for candidacy to office. This interpretation is strengthened by the expressed purpose of the Act as set forth in the Emergency Clause, which provides: “It is hereby found and declared by the General Assembly of the State of Arkansas that the present election laws are ancient and outdated in part and have caused and are causing much confusion and controversy and that there are particular problem areas in the present law which need immediate legislation in order to resolve same...”

A general law does not apply where there is another statute governing the particular subject, irrespective of the dates of their passage. Acme Brick Co. v. Arkansas Public Service Commission, 227 Ark. 436, 299 S. W. 2d 208; Faver v. Golden, Judge, 216 Ark. 792, 227 S. W. 2d 453; Lawyer v. Carpenter, 80 Ark. 411, 97 S. W. 662; Abbott v. Butler, 211 Ark. 681, 201 S. W. 2d 1001; Drum v. McDavid, 215 Ark. 690, 222 S. W. 2d 59; Johnson v. Darnell, 220 Ark. 625, 249 S. W. 2d 5. We find this to be of particular application in this case, as the General Assembly had enacted Act 38 of 1968 only one year prior to enactment of Act 465 of 1969, and presumably were aware of Act 38 and its specific application to the election of Municipal Judges in the city management form of government. If the legislature had intended to repeal Act 38, it could have easily done so by specifying it in the list of statutes specifically repealed.

Appellant contends that Ark. Stat. 19-705 and Act 38 of 1968 were modified or amended by Act 27 of 1970. We cannot agree. In Penney v. Vessells, 221 Ark. 389, 253 S. W. 2d 968, this court held that amendments of legislation by implication, like repeals by implication, are not favored, and will not be upheld in doubtful cases. The various acts here involved are not repugnant, and it is by no means clear that the legislature intended to amend or repeal the special acts relative to nomination and election of officials in a city manager form of government. See also Arnold v. City of Jonesboro, 227 Ark. 832, 302 S. W. 2d 91; Aday v. Chimes School District, 209 Ark. 675, 191 S. W. 2d 963.

In addition, to make the provisions of Act 27 of 1970 applicable to candidates filing for positions in a city management form of government would defeat the purpose of Act 465 of 1969, which Act 27 amended. Act 465 was enacted, in part, (according to the language of the emergency clause of said Act) due to the confusion which existed in regard to the election laws of this State. However, Arkansas Statute 19-705 clearly sets forth the time limits within which candidates for the offices here involved must file their Petitions for Nominations. If Act 27 applied to these offices, then it would indirectly, by reference to Section 13 (j) of Article 1 (Ark. Stat. 3-113 (j) of Act 465, shorten the time limits within which such candidates have to file their Petitions for Nomination by one-half of the time set forth in Arkansas Statute 19-705. This creates, rather than clarifies, a most confusing situation, and one which we do not believe was intended by the General Assembly.

Act 27 of 1970 amended Section 3 of Article II of Act 465 of 1969, which required the filing of a Political Practice Pledge, because there was some confusion as to whether persons running as “independent” candidates were required to file such pledges under the language of said Section 3. Act, 27 added the proviso that persons nominated as independent candidates for municipal or township offices for which no political primary is held shall file a Political Practice Pledge at the time he files his Petition for Nomination as provided in Section 3 of Article II of Act 465 of 1969. We are of the opinion that the “independent” candidates covered by Act 27 do not include candidates for Board of Directors of Municipal Judge in a city having a city manager form of government. The concept of an “independent” candidate as used elsewhere in Act 465 apparently means a candidate running without political affiliation, but who may be opposed in an election by a person running as a nominee of a political party. This is not the case in races for the offices of Board of Directors or Municipal Judge in a city with a city management form of government, as all candidates run without political affiliation and are merely the candidates for the respective offices. As Act 27 of 1970 is amendatory to Act 465 of 1969, we assume that the General Assembly intended the concept of an “independent” candidate as used in those two acts to be consistent. American Workmen Ins. Co. v. Erwin, 110 S. W. 2d 487, 194 Ark. 1149.

It is unnecessary, as a result of our holding, to discuss appellees’ contention that they substantially complied with the provisions of Act 27 of 1970.

The judgment of the Pulaski Circuit Court is affirmed.

Jones and Holt, JJ., not participating.

Oliver Clegg, Special Justice, joins in the opinion.


author: Carleton Harris, Chief Justice.

text:
    W. B. WYLIE et al v. Lerlean H. WYLIE
    5-5329
    459 S. W. 2d 127
    Opinion delivered November 2, 1970

      Jake Brick and Rieves ir Rievcs, for appellants.

      Hale ir Fogleman, for appellee.
   Carleton Harris, Chief Justice.

A. B. Wylie, 68 years of age, a resident of Crittenden County, whose first wife died in March 1957, married Lerlean Hun-saker, appellee herein, who was 54 years of age, on November 29, 1958. They had been engaged to be married for about two months prior thereto, and a few days before the wedding, Mrs. Hunsaker came down to Arkansas from New York. On the day before the ceremony, Wylie told appellee that he desired that she sign a document and they went to his attorney’s office late that afternoon. There, an antenuptial agreement was signed. Under the terms of the contract, appellee agreed that upon the death of Wylie, she would receive $50,000 which would be in lieu of all claims, rights, or interests of any nature she might have against the estate of Wylie. They lived together until February 3, 1968, at which time Wylie died testate, leaving his wife surviving him, two brothers, a sister, and several nieces and nephews. Various relatives, together with a foster daughter and her husband, and also some of his first wife’s relatives, were beneficiaries under the terms of his will. The will was admitted to probate and appellee exercised her option to take against the will. Suit was instituted attacking the validity of the antenuptial agreement and seeking to have same held void and of no effect. After a rather lengthy trial, the court, stating that the evidence reflected that Wylie’s net worth at the time of the agreement was in excess of $476,500.00 found the agreement void, and canceled, set aside, and held it for naught. From the decree so entered, appellants, who include the executors of the estate, and several beneficiaries, bring this appeal. For reversal, it is simply asserted that the decision of the court was contradictory to the law, and that it was not supported by the preponderance of the evidence.

The law in this state on this subject, which is in accord with the general rule, has been settled for a long number of years. In Davis v. Davis, 196 Ark. 57, 116 S. W. 2d 607, we said:

“So it will be seen that the principle is announced in all of our cases, that in order for antenuptial contracts to be valid, they must be freely entered into, must not be unjust or inequitable and they must not be tainted with fraud. It appears to us that the contract in this case fails to meet these requirements in that it is an unjust and inequitable agreement.”

Quoting an Illinois case, Achilles v. Achilles, 151 Ill. 136, 37 NE 693, we stated:

“But, in the absence of clear and satisfactory proof, it is not to be presumed that she would, with full knowledge of all the circumstances, have entered into such a contract. Parties to an antenuptial contract occupy a confidential relation toward each other, (citing cases) While they may lawfully contract with each other where there is full knowledge of all that materially affects the contract, yet where the provision secured for the intended wife is disproportionate to the means of the intended husband, it raises the presumption of designed concealment, and throws the burden upon those claiming in his right to prove that there was full knowledge, on her part, of all that materially affected the contract, (citing cases) The burden here was, therefore, upon appellants to prove, by satisfactory evidence, that appellee had knowledge of the character and extent of her husband’s property, and of the provisions and effect of this instrument, or, at all events, that the circumstances were such that she reasonably ought to have had such knowledge at the time this instrument was executed.”

This holding was reiterated in Burnes v. Burnes, Administrator, 203 Ark. 334, 157 S. W. 2d 24. The rule is thus stated, and the only matter for determination is whether the proof offered in this case supports the finding of the chancellor. Without any hesitation whatsoever, we hold that the evidence is more than ample to support the view taken by the trial court, viz, that the value of Mr. Wylie’s properties, and his financial status, were far in excess of the figures given to the present Mrs. Wylie at the time the antenuptial agreement was entered into; that she had no knowledge to the contrary and fully depended upon the statement of her husband-to-be in consenting to enter into the agreement. Since the law controlling the issues presently before us has long been in effect, this opinion has no value as a precedent, and since we are of the view that the evidence overwhelmingly supports the position of ap-pellee, there is no need to greatly detail the evidence. Appellee had lived at Marion for a short time, teaching school there from 1926 to 1928. In subsequent years, she would see the Wylies on short visits to Marion during the summer. Sometime after the death of Mrs. Wylie, appellee visited a friend in Crawfordsville, stopped by Wylie’s office to speak to him, and he invited appellee and the persons whom she was visiting to have dinner with him. Appellee and Wylie exchanged Christmas cards and subsequently he called and asked if she would come down to Marion during the summer. Appellee was living in New York at the time, employed by the American Petroleum Institute. Wylie frequently called over the phone and they became engaged to be married. According to Mrs. Wylie’s testimony, she returned to Arkansas for the wedding, and on the day before this event, he asked if she would sign a document and they went to the office of his attorney. She stated that the attorney did not represent her, had never drafted any document for her, and she had not given him any information with reference to her own property. This property consisted of $692.00 worth of stock in Massachusetts Investors Trust. The witness said that she had no idea of how much real estate Mr. Wylie owned, nor did she have knowledge as to the personal property he owned in the way of investments, or which might be held in banks or lock boxes. She testified that she accepted entirely his statement that his total worth was $200,000; she had been out on the main farm, had seen the store buildings, gin, and cattle, but had no idea of the value of these properties; there were some farms that she had not seen. According to the testimony, Wylie gave her approximately $300.00 a month for household expenses and bills; he was generous to her, to members of his family, and to relatives of his first wife, making both large and small gifts. At the time of his death, she had not the slightest idea as to the value of his properties, nor the extent of his holdings, and it was only after his death that she learned that he was actually worth a great deal more than she had thought.

There is no testimony to the effect that Mrs. Wylie had knowledge of her husband’s actual worth, and the only evidence of any figure except the $200,000, was given by Mollie Naylor, who at the time the agreement was entered into, was employed as secretary to Mr. Wylie’s attorney. This witness testified that after the contract had been executed, and the Wylies and her employer were standing near her desk, the latter stated that the $200,000 was an estimate of Wylie’s worth, but he might be worth nearer $300,000. Mrs. Wylie said that if such a statement were made, she did not hear it.

It is argued by appellants that appellee signed the agreement with full understanding of all relevant facts, and to say otherwise would ignore her education, her business qualifications, her acquaintance with the decedent for a number of years prior to the marriage, her acquaintance with people who knew him and his business connection, and the general reputation he bore in the community. We do not agree that there is merit in this argument for we find nothing in her education or business qualifications that would qualify her to make a determination of the value of the Wylie properties, even if she had full knowledge of the properties he owned. There is not one line of evidence in this record that she either knew, or made inquiry, about his financial worth or business connections and, as stated by appellee, appellants could have painted a dark picture of Mrs. Wylie, if she had discussed, or inquired, as to the extent and value of his holdings with neighbors and acquaintances. For a discussion of the argument that she should have known, from circumstances, the extent of his wealth, see In Re Flannery’s Estate 173 A. 303. In fact, the absence of any proof by appellants along this line strongly supports her position that she entered into the marriage and agreement in good faith. Admittedly, she had no doubts concerning his ability to support her, and knew that he had lived comfortably, and had a substantial livelihood. But, of course, this evidence is really of no value in determining whether she was acquainted with his actual worth, even if she had considered him “wealthy”, for to many persons, probably the vast majority, a man worth $200,000 is “wealthy”.

Other circumstances indicate that Mr. Wylie did riot act in good faith with appellee, and endeavored to prevent her from knowing his actual worth. While only circumstances, they do contribute to the overall picture. For instance, though Wylie had been conferring with his attorney for about two months while the instrument was being drafted, several drafts being made, at the time the Wylies went to the office of his attorney, she was first left in the reception room for “a while” during which time he went in and conferred with the lawyer; also, when Mr. Wylie was a patient at the Baptist Memorial Hospital in Memphis in 1960, the evidence reveals that Mr. Wylie sent for his attorney and his secretary and requested them to come to the hospital relative to preparing a will. When they arrived, Mrs. Wylie was present, but her husband required that everyone be out of the room except the lawyer and secretary while he discussed the will with them. Appel-lee never saw the will nor had knowledge of its contents until after his death. It was also established that during the marriage, large gifts of cash were made to relatives, but no checks were given for these amounts, thus clearly supporting appellee’s contention that Mr. Wylie transacted a lot of business with cash, in fact, Wylie’s own accountant testified that Wylie’s total withdrawals from banks for the year 1961, 1962, and 1963, were less than the amounts of gifts made by cash, the amount of withdrawals in 1961 being $2,314.00, $2,-150.00 in 1962, and $1,877.00 in 1963, and nothing is shown for normal day to day living expenses for Wylie and appellee.

What was the proof as to Wylie’s actual worth at the time of the execution of the agreement? C. B. Senhausen of West Memphis, a resident of Crittenden County, since 1941, who had been engaged in real estate appraisals and insurance since that time, testified on behalf of appellee. Mr. Senhausen had been employed for the purpose of making an appraisal of the real estate owned by Wylie. The testimony of this witness is very impressive, leaving one with the definite impression that he was thoroughly familiar with most of the Wylie property; he seemed entirely fair, and in fact, somewhat conservative, in the values reached. Sen-hausen testified that there were six separate farms of various acreages, a gin plot on which a gin was located, a home in Marion, a dwelling in Memphis, and three vacant lots in Marion. The witness expressed his familiarity with the type of soil, land drainage, and other characteristics of the land pertinent to a proper evaluation. He testified in detail concerning all of these properties, and mentioned numerous sales of real estate that he found comparable to the lands under investigation. He described the improvements with thoroughness and, as stated, was impressive in his apparent knowledge of the facts mentioned. Senhausen estimated the value of the farm lands with improvements, the gin stock, the gin company, the house and lots, the house in Memphis, and the vacant lots in Marion to be worth $454,986.96 in 1958, the year that the antenuptial agreement was executed.

Harry F. Dodge, a certified public accountant for sixteen years, also testified on behalf of appellee, and he carefully detailed the results of his investigation of the records of Wylie, the assets reflected in the records, and assets otherwise established as belonging to Wylie. He analyzed the records to show, in his opinion, the actual totals of funds available to Wylie for living expenses, and the amount of increase in the estate from the date of the antenuptial contract until Wylie’s death. Dodge testified that Wylie’s net worth in 1958 was $580,096.05.

Raymond L. House, a public accountant pf Memphis, not a certified public accountant, testified on behalf of appellants and stated that he first started keeping books and records for Mr. Wylie in 1957, and continued doing so until Wylie’s death. From 1964 until the time of his death, Wylie was House’s sole employer, and thereafter, his sole employer was the Wylie estate. It might be said that the testimony of this witness was not nearly so impressive as that of the persons heretofore mentioned, and the basis of his values is somewhat questionable. For instance, it appears that he had been entirely willing to make or change book entries with no more reason than the oral instructions given to him by Wylie. Some of his testimony relative to exhibits prepared at the request of appellants is rather confusing, and he took his real property evaluation from tax records, though the person who furnished these records, A. E. Miller, testifified that he (Miller) didn’t think that the records represented the market value of the Wylie lands in 1958. House testified that Wylie’s net worth in 1958 amounted to $277,581.66. The testimony of the witness was somewhat weakened by his misrepresentation of his qualifications. Although House was requested by his attorney (at the behest of appellee’s attorney who wanted to further cross-examine House) to return to court, he never did do so.

A. E. Miller, County Assessor, testified that the appraised value of the lands and improvements in 1958 was $114,770.00. As previously stated, the witness said that he did not believe that this appraisement represented the fair market value of the property at that time, it being his feeling that the figure was too low.

Summarizing, the law requires that a man and woman, as they enter into the status of husband and wife, employ frankness and candor in dealing with each other. This, of course, is as it should be, for in the very nature of things, the successful marriage is based upon complete confidence and trust between the parties. We agree with the Chancellor that the evidence shows that this course was not followed by Mr. Wylie at the time of the execution of the antenuptial agreement. We likewise agree that other facts and circumstances support this conclusion, and we are in accord with the Chancellor in finding the evidence presented by appellee relative to Mr. Wylie’s worth, to be more convincing, more understandable, and more reasonable.

The decree of the Crittenden County Chancery Court is thus affirmed.

It is so ordered.

Fogleman, J., disqualified.

       House testified that he was a public accountant, and that there was no difference in a public accountant and a certified public accountant in Tennessee; that each had to pass the same examination. He stated that he took the examination, and specifically said that he was not admitted on a waiver. Subsequently, appellee offered into evidence a certified copy of House’s application for license to practice as a public accountant, submitted by House to the State Board of Accountancy. This exhibit reflects that House was admitted by waiver of examination provided for under Section 19, Chapter 231, Public Acts of 1955 (Tenn.), this legislation containing provisions commonly referred to as a “Grandfather Clause”.

       Appellants’ counsel was told by the witness that his wife’s father had died, and that he (House) was under the care of a doctor. Appellants’ attorney suggested taking the deposition of the witness on Monday morning, and he told the court that he was under the impression that House had agreed to that time. House called during the afternoon and stated that it was impossible for him to be there since he had already made other arrangements, and no different time was suggested. Counsel stated that House had indicated that he was under a doctor’s care, and “was highly emotional in regard to the prolonged cross-examination”. Counsel also stated that Mrs. House had said that her husband was anemic and was being given sedation or treatment of a type that affected his thinking. Under these circumstances, the attorney agreed that a discovery deposition, which had been taken from House could be offered, insofar as it was applicable to impeachment or contradiction.


text:
    Willie O. THOMAS v. Hiram L. HENSON et al
    5-5335
    459 S. W. 2d 124
    Opinion delivered November 2, 1970

      Terral, Rawlings, Matthews ér Turtle, for appellant.

      Hartje & Hartje and Wright, Lindsey ér Jennings, for appellees.
   Carleton Harris, Chief Justice.

A collision occurred on U. S. Highway 65 in Greenbrier, on September 12, 1968, between a 1966 Rambler automobile owned by Rev. Willie O. Thomas, appellant herein, and driven by his father, Nathan W. Thomas, and a tractor trailer rig owned by Earl L. Jackson and driven by Hiram Henson, appellees herein. The Thomas vehicle was making a left turn into a driveway at the Nazarene Church in Green-brier and the tractor was endeavoring to pass at the same time. Willie O. Thomas instituted suit for damages to his automobile, and his father sought damages for personal injuries. Jackson filed suit against the two Thomases seeking property damage and Henson intervened seeking damages against Thomas and his father for personal injuries allegedly sustained. The cases were consolidated for trial. On trial, the jury rendered a verdict awarding damages to both Jackson and Henson against both Thomas and his father. This appeal is from the judgment entered in accordance with the verdict and is brought solely by Willie O. Thomas. None of the other three parties have appealed. For reversal, several points are asserted, but all really relate to the contention that the verdict is against the law and the evidence, and appellant asserts that the court should have directed a verdict in his behalf as to the complaints against him.

On behalf of appellees, Henson testified that he was employed by, and drove the tractor trailer for, Earl L. Jackson at the time of the accident. He said that when his vehicle wás within about 200 feet of the Thomas Rambler that he (Henson) blew his air horn and pulled out in the left lane to pass; that he blew the horn again in about 50 feet and at that time the driver of the automobile made a left turn without any signal; though he applied the brakes, the collision could not be avoided. M. L. Tester, a Trooper with the Arkansas State Police, testified that he investigated the accident, and talked with Henson and Nathan Thomas, the driver of the Rambler, at a residence near to the scene of the accident. The officer said that, as far as he could determine Thomas could not hear him talking; he was not really positive whether Thomas was wearing a hearing aid, though his first statement was that Thomas was not wearing this appartus at that time. Nathan Thomas testified that he was driving the Rambler and was wearing a hearing aid at the time; that the force of the accident “knocked my hearing aid out and covered it up with dirt.” He said that before the collision, he saw, through the rear view mirror, the truck coming, but thought he could make his turn before the vehicle reached him. “I looked back and seen him and told my wife, ‘that truck is really coming. I better get out of the way.’ I speeded up a little and said, ‘surely, I will get to the turnoff before he gets there.’ He hit me just as I started to turn”. Thomas stated that he received a broken jaw in the collision; that he and his wife had been fishing and had used the son’s, (appellant), automobile. He did not ask appellant for the use of the car on this particular occasion but had used it at numerous times in the past; the witness added that he never asked. “When I visit them, if they have got a car loose, I get it and go fishing”. He said that he had been driving “Ever since T-Models” and had “Never had a wreck in my life”.

Violet Lee Thomas, wife of Nathan, said she heard his signal light blinking before the turn was made and could see the light blinking on the dash board. Mrs. Thomas said that when they wanted to use the car, they used it, and had done so on other occasions when they visited appellant; appellant knew that it had been used at those times; that he had no objection. She stated that her husband had been wearing a hearing aid for five or six years; that he had it on at the time of the accident and, with the use of the hearing aid, could hear normally; that she carried on a conversation with him in the automobile before the wreck; that it was a normal conversation and he could hear. She testified that the hearing aid was knocked out of his ear at the time of the collision and was found in the dirt the next morning after the accident. Mrs. W. O. Thomas, wife of appellant, testified that her father-in-law had been wearing a hearing aid for about five years and that he wore it at all times during his waking hours; that it had been knocked out of his ear because of the impact. The witness said that she raised no objection to his use of the car, which belongs to her husband. Willie O. Thomas, appellant, testified that he had no knowledge that his father was in the automobile on the date of the accident since he (appellant) was attending a business meeting in the southern part of the state. He was aware of the fact that the elder Thomas had used the car on other occasions. The witness testified that his father was a competent driver. At the conclusion of the evidence, appellant and appellees moved for directed verdicts, which motions were overruled by the court. Appellant then objected to the giving of two instructions, the first being AMI 609, and the second, plaintiffs requested instruction No. 3, reading as follows:

“You are instructed that if you find from the evidence that Nathan W. Thomas was deaf, or that his hearing was impaired to such an extent that he could not hear audible signals from motor vehicles upon the highway, and that his inability to hear said signals was the proximate cause of the collision herein complained of, then your verdict will be for Hiram L. Henson and E. L. Jackson and against the defendants W. O. Thomas and Nathan W. Thomas.”

This was objected to by appellant as follows:

“Save our exceptions. We further object generally and specifically to Plaintiff’s Requested Instruction No. 3. This amounts to a comment on the evidence, and it is not an accurate statement of the law. Also, it further would be a binding instruction and bind the jury to hold that Nathan W. Thomas was guilty of negligence which proximately caused the accident if he could have heard the horn. * * * It further requires them to find negligence which proximately caused the accident based solely upon hearing.”

This was an erroneous instruction under the evidence offered, but we think the court should have directed a verdict for the appellant, on the complaints of appellees for the reason that there is not one iota of evidence that Willie O. Thomas entrusted the operation of his automobile to one that he knew, or should have known, was an incompetent driver. The proof in this case is sufficient to establish that Thomas permitted his father to operate the vehicle, though he was away from home in the present instance when his father took the car, and there is no evidence that he knew in advance of his father’s use of the vehicle on this occasion. However, there was evidence that he had consistently permitted the elder Thomas to use his automobile in the past, and we have held that this pattern of conduct is sufficient to show the permission of the owner. Chaney v. Duncan, 194 Ark. 1076, 110 S. W. 2d 21. But the evidence earlier set out certainly does not establish that the father was a known incompetent driver. Testimony of the State Policeman is only to the effect that Thomas apparently could not hear when he talked to him. The two women testified that his hearing was normal with the use of a hearing aid, the testimony relating that the hearing aid had been knocked out of his ear at the time of the collision and later being found in the dirt at the scene of the accident. Appellant testified that his father was a competent driver. It is true that we have held that the testimony of interested parties and witnesses cannot be considered as undisputed or uncon-tradicted. Old Republic Insurance Company v. Alexander, 245 Ark. 1029, 436 S. W. 2d 829, Sykes v. Carmack, 211 Ark. 828, 202 S. W. 2d 761. But if we completely ignore the testimony of these witnesses on this point— there is still not one line of testimony that Nathan Thomas had, prior to this accident, ever, in any manner, demonstrated his incompetence as a driver. He testified that he had never had a wreck, and this was undisputed (except by law). Certainly, we are not willing to say that the fact a driver uses a hearing aid makes him ipso facto, an incompetent driver. Doubtless, there are numerous drivers with substantially normal hearing when using this device. Thomas testified that he saw the tractor trailer approaching, but thought he could reach his turning off place before it passed him. So, according to the evidence, the accident was not occasioned by a lack of hearing — but a lack of judgment. Even though we consider that as a matter of law this testimony stands disputed, or even though it be found that Thomas’s method of driving at the time of this occurrence was reckless, still, there is no evidence that he has ever previously driven in an incompetent manner. It follows that the court erred in not directing a verdict for appellant Willie O. Thomas.

While not really argued, appellant does mention he should have recovered damages for the loss of his car, stating:

“It is apparent that both drivers were negligent and if properly instructed the jury would have found in favor of appellant for his damages. Therefore, if the court does not see fit to assess the undisputed damages to appellant the case should be remanded with directions for the lower court to do so or in the alternative order a new trial for appellant.”

We do not agree. The court submitted five verdict forms, viz, a finding for appellant against appellees fixing his damages; a finding for Henson against Nathan Thomas fixing damages; a finding for Jackson against Nathan Thomas fixing damages; a finding for Jackson against W. O. Thomas and Nathan Thomas fixing damages, and a finding for Henson against appellant and Nathan Thomas fixing damages. The case was submitted on comparative negligence instructions, and it is apparent from the jury verdict that they found the wreck was caused solely by the negligence of Nathan Thomas. It follows that there is no merit in this contention.

In accordance with what has been said, the judgment against Willie O. Thomas, appellant herein, is reversed, and the cause, as to him, dismissed. In all other respects the judgment is affirmed.

It is so ordered.


author: George Rose Smith, Justice.

text:
    J. Lester BOOKER et ux v. GREENVILLE GRAVEL COMPANY
    5-5344
    459 S. W. 2d 408
    Opinion delivered November 2, 1970

      Mayes, McClellan, Arnold, Owen ir McDermott, for appellants.

      James M. Barker, for appellee.
   George Rose Smith, Justice.

In the circuit court of Ashley county the plaintiff-appellee, Greenville Gravel Company, sued out a writ of garnishment upon a $2,-961.20 judgment it had obtained against Jerry L. Stanley. The writ of garnishment was purportedly served upon the appellants, J. Lester Booker and his wife, who failed to answer the writ within the time allowed by law. After a default judgment had been entered against the garnishees they filed a motion to quash the service and to set aside thi default judgment, on the ground that they had not b^en properly served with process. This appeal is from the circuit court’s order refusing to quash the service or to set aside the default judgment.

The facts, as far as they have been developed, are not in dispute. The writ of garnishment was directed to the sheriff of Saline county. Wayne Sullivan, a Saline county deputy sheriff, signed a return stating that the writ and the accompanying interrogatories “were served by the undersigned on J. Lester Booker and Mrs. J. Lester Booker, a partnership d/b/a J. Lester Booker Company, the Garnishee herein on the 2 day of December, 1968.” The default judgment against the garnishees was entered on March 17, 1969. On the following April 8 Greenville Gravel obtained a writ of execution directed to the sheriff of Pulaski county, which appears to be the Bookers’ place of residence.

On April 21, 1969, the Bookers filed their motion to quash the writ of garnishment and to set aside the default judgment, for want of proper service of process. On September 3 the attorney for Greenville Gravel gave notice to the Bookers that the Bookers’ motion to quash would be presented by Greenville Gravel to the Ashley circuit court for a hearing on September 12. The final order now under review, dated March 19, 1970, recites that on September 12, 1969, the argument of counsel was considered and the cause was submitted to the court with each party being given a reasonable time for the submission of a brief.

In October of 1969, while the cause was under submission, the Bookers filed an amended sheriff’s return, signed by John Stitt, a Saline county deputy sheriff, stating that the writ and interrogatories were actually served on Mrs. Gertrude Harper rather than upon either Mr. or Mrs. Booker personally. The Bookers also filed two affidavits. The first, signed by the Bookers and by Mrs. Harper, stated that the Bookers had not been personally served and that the service had been upon Mrs. Harper, who appears to be an office employee of the Booker partnership, in Saline county. The second affidavit, signed by the two Saline county deputy sheriffs who handled the writ, was to the same effect.

Upon the undisputed proof in the record the circuit court was in error in sustaining the default judgment. We have no statute providing a distinct procedure for the service of process upon a partnership. Mr. and Mrs. Booker were being sued as individuals. Hence the deputy sheriff should have served them personally, either by delivering or offering copies of the writ to them or by leaving copies at their usual place of abode with a member of their family over the age of fifteen. Ark. Stat. Ann. § 27-330 (Repl. 1962). The deputy’s failure to comply with the statute rendered void the attempted service upon the garnishees. Nutrena Mills v. Parsons Feed & Farm Supply, 234 Ark. 1058, 356 S. W. 2d 421 (1962). Where the sheriffs return is false, its prima facie verity may be contradicted by proof of the truth. Hirsch v. Perkins, 211 Ark. 388, 200 S. W. 2d 796 (1947). That contradicting proof appears not only in the deputy’s amended return but also in the two affidavits mentioned above.

Despite the deputy sheriff’s noncompliance with the statute, Greenville Gravel argues that the ataended return and supporting affidavits were not properly before the trial court, because they were filed after the cause had been taken under submission. It is plain enough, however, that the documentary proof was available to the trial judge. Not only was it on file in the clerk’s office; it was specifically referred to in the Bookers’ trial brief, which was filed in the trial court on October 24, 1969, and is included in the record now before us.

It does not appear, however, that an evidentiary hearing was actually held upon the Bookers’ motion to quash the writ and set aside the default judgment. Such a hearing should have been held, to afford both sides an opportunity to develop their contentions by proof. We are unwilling to render a final judgment upon the basis of ex parte affidavits that may or may not prove to be true in the light of evidence produced at an adversary hearing. For that reason we reverse the present judgment and remand the cause for further proceedings.

Reversed.


text:
    Thomas R. STOVER, Acting Commissioner of Labor v. Shirley Jean DEERE et al
    5-5367
    461 S. W. 2d 393
    Opinion delivered November 2, 1970
    [As modified on denial of rehearing January 25, 1971.]

      Herrn Northcutt, for appellant.

      McMath, Leatherman, Woods ir Youngdahl and John F. Foster, Jr., for appellees.
   George Rose Smith, Justice.

This is an unemployment compensation case in which the four appellees, employees of Warwick Electronics, Inc., each filed claims for one week of benefits. The claims were uniformly denied by the local office, the Appeals Tribunal, and the Board of Review, on the ground that the claimants had all received vacation pay for the week in question. Ark. Stat. Ann. § 81-1106 (f) (3) (Supp. 1969). The circuit court, however, reversed the administrative rulings and ordered that the benefits be paid. The acting Commissioner of Labor brings the case to this court.

The controversy calls for a construction of the statute in the light of the union contract between the employer and the local union to which the appellees belong. That contract empowers the employer to fix a vacation period during the months of June, July, or August, and if it is deemed advisable, to shut down the plant during that period. All vacations may be scheduled for that period, except for employees who are required to work during the shutdown. To be eligible for vacation pay an employee must have worked for at least 40 weeks during the preceding work year, measured from May 1st to May 1st. All such eligible employees are divided into three classes: (1) Those having up to two years of service with the company receive as vacation pay 2% of their total wages during the preceding year, with a guaranteed minimum amounting to 40 hours’ pay. (2) Those having from two to ten years of service receive 4% with a guaranteed minimum of 80 hours’ pay. (3) Those having over ten years of service receive 6% with a guaranteed minimum of 120 hours’ pay.

In 1968, the year in question, the employer elected to shut down the plant for two weeks. The four claimants fell within the first class of employees, having less than two years of service with the company. Each one of them received vacation pay that did not actually exceed the guaranteed minimum of 40 hours’ pay. Forty hours being the equivalent of one week’s, work at straight time, the appellees filed claims for unemployment compensation for the second week of the shutdown.

The statute, cited above, provides that a person shall be disqualified for unemployment compensation benefits for any week with respect to which he receives vacation pay. For reversal of the circuit court’s judgment the Commissioner argues that under the contract the claimants received vacation pay in a predetermined amount for the entire two-week shutdown. Hence, argues the Commissioner, the claimants all received vacation pay for the two weeks, albeit at a weekly rate amounting to only half of their regular working scale.

We express no opinion about what might be the merits of the Commissioner’s argument if the union contract had specifically provided that the annual shutdown should be for exactly two weeks. That was not the case. The contract allowed the employer, within its uncontrolled discretion, to fix a vacation period during the months of June, July, or August, and to shut the plant down during that period. Thus the company might, in 1968 or any other year, have fixed a vacation far in excess of two weeks and have shut the plant down for such a period. The Commissioner’s argument would then deny benefits to these claimants, even though they might have received vacation pay amounting to one week’s regular remuneration for a shutdown lasting, say, for six weeks.

Upon the actual facts of this case we think our decision to be governed by principles laid down in two earlier cases. In Harmon v. Laney, 239 Ark. 603, 393 S. W. 2d 273 (1965), we held that employees who received no vacation pay while the factory was shut down pursuant to the union contract were not voluntarily unemployed within the meaning of the statutory disqualification. That decision indicates that these ap-pellees were not voluntarily unemployed, had such a contention been made by the Commissioner.

In the Harmon case the idled employees received no vacation pay, while here the appellees each received the equivalent of a week’s pay. In that respect the present case is similar to Thornbrough v. Gage, 234 Ark. 15, 350 S. W. 2d 306 (1961), where the claimants received substantial dismissal pay when the plant was shut down permanently. We held the employees to be disqualified for the length of time for which their regular wages would have equalled their dismissal pay. Dismissal payments and vacation pay are treated alike in the statute. Section 81-1106 (f) (1) and (3). We therefore hold, as the circuit court did, that the appellees’ vacation pay constituted a disqualification for only one week.

The Commissioner suggests in his reply brief that the claimants failed to prove that they had registered for work and were available for work during the week in question. Ark. Stat. Ann. § 81-1105 (b) and (c). At the oral argument counsel also argued that the week in question might be a waiting period during which benefits were not payable. Section 81-1105 (d).

We cannot approve that contention, which would allow the case to be tried piecemeal. The statute requires that in the first instance both the monetary and the nonmonetary determinations be made “promptly.” Ark. Stat. Ann. § 81-1107 (c) (1) (A) and (B). Similarly, notice of those determinations must be given “promptly” to the claimant. Id., (c) (3) (A) and (B). We are unwilling to allow the Commissioner to raise at this late date an issue that should have been promptly decided in the first instance or that should at least have been unmistakably reserved in the original determination. The claimants cannot now be fairly required to start all over again in their quest for benefits under the statute.

Affirmed.


author: Lyle Brown, Justice.

text:
    CITY OF LITTLE ROCK v. Lester HALL
    5-5345
    459 S. W. 2d 119
    Opinion delivered November 2, 1970

      Joseph C. Kemp, for appellant.

      Gene Worsham, for appellee.
   Lyle Brown, Justice.

Police officer Lester Hall, ap-pellee, was discharged by the Little Rock Chief of Police for slapping a suspected felon. On appeal to the City Civil Service Commission the discharge was upheld. The circuit court found Hall guilty of violating the regulations but concluded that the punishment should be reduced to a thirty-day suspension. The sole issue raised on appeal by the City of Little Rock is whether the circuit court had a right to reduce the punishment notwithstanding the circuit court confirmed the civil service commission’s finding that Hall had violated the regulations.

We have no hesitancy in concluding that the circuit court had jurisdiction to modify the punishment fixed by the civil service commission, notwithstanding the circuit court agreed with the commission that the officer violated the regulations. (Of course the trial court’s actions must be supported by substantial evidence, and we shall later discuss that feature of the case.) The right of appeal is set out in Ark. Stat. Ann. § 19-1605.1 (Repl. 1968). That section reads in part:

The Circuit Court shall review the Commission’s decision on the record and may in addition hear testimony or allow the introduction of any further evidence upon the request of either the City or the employee, provided such testimony be competent and otherwise admissible. A right of appeal is also given from any action from the Circuit Court to the Supreme Court of the State of Arkansas, and such appeal shall be governed by the rules of procedure now provided by law for appeals from the Circuit Court to the Supreme Court.

Under the recited statute and the section which preceded it (Acts 1949, No. 326, § 2) we have consistently held that the proceedings in circuit court are de novo. Petty v. Pine Bluff, 239 Ark. 49, 386 S. W. 2d 935 (1965); Little Rock v. Newcomb, 219 Ark. 74, 239 S. W. 2d 750 (1951). Additionally, the appeal statute does not specifically restrict the power of the court relative to determining guilt or punishment.

In evaluating the propriety of the circuit court in reducing the punishment fixed by the civil service commission our procedure is spelled out by the statute, § 19-1605.1. There it is specified that the appeal “shall be governed by the rules of procedure now provided by law for appeals from the Circuit Court to the Supreme Court.” In Petty we said that the quoted language means that we determine “whether the verdict or trial court’s finding of fact is sustained by substantial evidence.” Petty points up certain ambiguities created by dicta in other cases which have given rise to the argument that the supreme court reviews the appeal as in chancery cases. In fact that argument is made by appellant in the case before us. It is for that reason that we reiterate the substantial evidence rule as discussed in detail in Petty.

We come now to the evidence in the case. It is not necessary to this appeal to detail the voluminous record. Lester Hall slapped Charles Ester Billups while the latter was being questioned at police headquarters about a residential mail theft. Two blows were administered to the head with the open hand, and appellant introduced testimony that another blow was inflicted with a policeman’s “slapper.” Sergeant Hall described the blows as having been rendered in self-defense. He also contended that provocative acts by the prisoner contributed to cause the blows. Evidence as to both defenses was much in conflict, and the trial court found that Sergeant Hall’s action was unjustified. Those findings are not really questioned on appeal.

The evidence which undoubtedly persuaded the trial court to reduce the punishment was given for the first time when the case was heard on appeal. The exemplary police record and the general good conduct of appellee toward prisoners were detailed by a host of witnessess. In the some eight years appellee had been in the police service he had compiled a file of good commendations, particularly in felony investigations. It was shown that on previous occasions he had had experiences with Billups without unusual event. In fact, Billups testified for the first time in circuit court. On the controverted issue of whether appellee used a “slapper,” Billups testified that he saw nothing in appellee’s hands. That testimony, together with the fact that Bill-ups suffered no abrasions or bruises, gave credence to appellee’s insistence that he struck the prisoner only with open hands. Without further detailing the evidence we find that the court’s findings of fact thereon are supported by the testimony. He expressed those conclusions in these words:

Lester Hall has served in the Little Rock Police Department for more than eight years, during which time he has received numerous letters of commendation, many of which suggest unusual bravery in exposing himself to danger beyond the normal requirement of duty. It is apparent that Lester Hall has the respect of his superiors and fellow officers as attested to by their testimony in this case. It is noteworthy that in all the voluminous testimony adduced in this case, there is no indication that this officer has ever been accused of abusing or mistreating a prisoner. All of the evidence in this case indicates that except for the incident in question,

Lester Hall has been an exemplary officer and above average in dedication to duty.

Affirmed.


text:
    Winthrop ROCKEFELLER et al v. Charles D. MATTHEWS et al
    5-5484
    459 S. W. 2d 110
    Opinions delivered November 2, 1970

      Wright, Lindsey & Jennings; By: Ronald A. May and Terry L. Matthews, for appellants.

      Joe Purcell, Attorney General; Rodney Parham and Mike Wilson, Asst. Attys. Gen., for appellees.
   Lyle Brown, Justice.

The sole question determinative of this litigation is the constitutional validity of a provision in the 1969 Election Code requiring a run-off election following the general election for certain designated State officials. Ark. Stat. Ann. § 3-806 (b) (Supp. 1969), which comes from Acts 1969, No. 465, art. 8, § 6 (b), p. 1268. Section 3-806 (b), to validly stand, must square with that provision in our constitution covering the election of the same officials, art. 6, § 3. The appellants are Winthrop Rockefeller, Maurice Britt, and Odell Pollard; and the appellees are Charles D. Matthews, Joe Purcell, Kelly Bryant, Jimmy “Red” Jones, Mrs. Nancy Hall, and Sam Jones. Collectively the parties constitute the State Board of Election Commissioners. Appellants (movants below) alleged that appellees, in their capacities as election commissioners, intended to follow § 3-806 (b) and “certify names of two candidates receiving the highest number of votes where no candidate receives a majority of votes cast” at the general election on November 3. It was further asserted that such action would be in violation of Ark. Const, art 6, § 3. Appellees responded that there was no conflict between the constitutional and statutory provisions. Each side asked for a declaratory judgment sustaining its position. The trial court held, that § 3-806 (b) was constitutionally proper, hence legally requiring a majority vote for the election of any of the constitutional officers named in art. 6, § 3 of the constitution. Article 6, § 3 of our constitution is as follows:

Election of executive officers — The Governor [Lieutenant Governor], Secretary of State, Treasurer of State, Auditor of State, and Attorney General shall be elected by the qualified electors of the State at large at the time and places of voting for members of the General Assembly; the returns of each election therefor shall be sealed up separately and transmitted to the seat of government by the returning officers, and directed to the Speaker of the House of Representatives, who shall, during the first week of the session, open and publish the votes cast and given for each of the respective officers hereinbefore mentioned, in the presence of both houses of the General Assembly. The persons having the highest number of votes for each of the respective offices shall be declared duly elected thereto; but if two or more shall be equal, and highest in votes for the same office, one of them shall be chosen by the joint vote of both houses of the General Assembly, and a majority of all the members elected shall be necessary to a choice. [Italics supplied.]

The last sentence, which we have italicized, is unambiguous and complete. It provides that the person receiving the highest number of votes (a plurality) shall be declared elected; then the draftsmen took care of any conceivable situation wherein, in a race involving any number of candidates, and in which two or more had the “equal and highest’’ number of votes, only those having the equal and highest votes would remain in contention. The use of the phrases “highest number of votes” and “equal and highest” number, along with the absence of the phrase “majority of the votes” makes it clear to us that the framers of the constitution were dealing in terms of plurality. We therefore hold that the requirement of § 3-806 (b), which provides for a special election in case no candidate receives a majority of the votes cast in a particular race, contravenes the plurality provision of art. 6, § 3, and is therefore void.

Appellees argue that the language, “highest number of votes” in art. 6, § 3, “means no more than this, that the person with the lowest number of votes may not be declared elected.” Of course we cannot agree. Not only does the phrase have a definite connotation— it is distinctly different, when considered in light of the constitutional provision before us, from the phrase, “majority of the votes cast.” Article 5, § 5 of the Indiana constitution is very similar to our art. 6, § 3, in that it provides that the persons receiving the highest number of votes cast for governor and lieutenant governor shall be elected. In State v. Swift, 69 Ind. 505 (1880), it was appropriately stated that, “This difference in language between the highest number of votes and a majority of all the votes is not the mere accident of composition; the words are used advisedly.” Also, see In re Todd, 193 N. E. 865 (Ind. 1935), wherein it was held that the phrase “highest number of votes” meant a plurality, thus precluding the Legislature from fixing a different standard.

In the same connection we think it is significant that both the phrase “highest number of votes” and the word “majority” are used in art. 6, § 3. In providing for the exigency of a tie vote it is prescribed that one of the tying candidates shall be elected to fill the office by a majority vote of all the members of the General Assembly. Had the framers of the constitution intended that the majority rule would apply in the popular election certainly they would not have substituted the phrase “highest number of votes.” Additionally, the requirement for the certification of the returns is indicative that the framers intended for the election to be settled on the general election date (except of course in case of a tie). We refer to the requirement that the elec-don returns be sealed separately and transmitted to the speaker of the house and opened and published by the speaker during the first week of the session. So if the returns are going to be kept under seal from the time of the general election until the Legislature meets some two months thereafter, it would be impossible to conduct a second election two weeks after the general election.

Appellant relies strongly on Vance v. Austell, 45 Ark. 400 (1885). Article 13, § 3, with which Vance was concerned, reads:

Change of county seats — Conditions—New counties —No county seat shall be established or changed without the consent of a majority of the qualified voters of the county to be affected by such change, nor until the place at which it is proposed to establish or change such county seat shall be fully designated. Provided, that in formation of new counties the county seat may be located temporarily by provisions of law.

In Vance we held the constitutional provision to be susceptible of two interpretations; and that it meant to prohibit a change in a county seat except by a majority vote of those voting at the election, rather than a majority of all the electors of the county. It was further held that the recited section prescribed the minimum vote necessary to effect a removal; and that the Legislature could extend a higher condition for removal without violating the constitution. In the first place there is no ambiguity in art. 6, § 3; secondly, the latter provision is not stated in the negative, as is art. 13, § 3. In art. 6, § 3 we find an affirmative mandate that the person receiving the highest number of votes "shall be declared duly elected.”

Finally, appellees argue that the run-off election contemplated by § 3-806 (b) "is no more than a continuation of the general election and part of it, made necessary by reason of the possible failure of any candidate to receive a majority vote.” The answer to that argument is that art. 6, § 3, authorizes the election to the named offices by plurality vote, making no mention of popular election by majority vote. To add the majority requirement we would have to read into the section something that is not present, even by implication. We cannot add the majority vote requirement to art. 6, § 3, because there is nothing in the context of the phraseology to indicate that intent.

Reversed, with immediate mandate to issue.