author: MiNor W. Millwee, Associate Justice.

text:
    Hollingsworth & Frazier v. Barnett.
    5-881
    287 S. W. 2d 888
    Opinion delivered March 12, 1956.

      Hardin, Barton, Hardin & Garner, for appellant.

      Jeptha A. Evans, for appellee.
   MiNor W. Millwee, Associate Justice.

On May 4, 1954, appellee, John T. Barnett, Jr., was driving a loaded log truck to Nebo Lumber Co. at Dardanelle, Arkansas, over State Highway No. 28, when a wooden bridge collapsed resulting in injuries for which he sought compensation before the Arkansas Workmen’s Compensation Commission. His claim against appellant, James Frazier, doing business as Hollingsworth & Frazier, and the insurance carrier, was controverted on the ground that appellee was an independent contractor and not an employee of appellant Frazier at the time of injury. Hearings before one commissioner and the full commission resulted in an award in appellee’s favor which was affirmed by the circuit court. The issue here is whether there is any substantial evidence to support the commission’s finding that appellee was an employee of appellant at the time of his injury.

Appellant had a contract with Nebo Lumber Co. to cut, haul and deliver timber from certain tracts to the lumber company’s mill at Dardanelle in 1954. Appellee was 18 years old in January, 1954, wlien Ms father was engaged in skidding and hauling logs for appellant and the man doing the skidding qnit. James Frazier approached appellee about taking the skidder’s place, which was done, and appellee was carried on appellant’s books as an employee and paid by checks made directly to him. Frazier testified that, subsequently, when operations were begun on another unit of timber, he had an oral agreement with appellee’s father whereby the latter was to haul and skid logs at $18.50 per thousand feet under the same arrangement that appellant made with all other haulers and skidders. Frazier knew that appellee was working with his father and that the two jointly owned the truck and two horses used in the work and divided equally the net income after payment of maintenance and fuel costs of the truck and the bill for horse feed. Under this arrangement which existed at the time of the injury all checks in payment of the work were made to appellee’s father. Appellant made no deductions for social security or income taxes on any of the men employed by him but had a policy of workmen’s compensation insurance covering his “logging and lumbering” operations anywhere in Arkansas.

Frazier also testified that appellee and his father were hired under an oral agreement to skid and haul the logs at so much per thousand feet; that he was in the log woods practically every day supervising the work of the several cutters, skidders and haulers; that the logs would be located at different places and he would tell the skid-ders and haulers where to get the logs and what sizes to get; that he assigned certain areas for separate skid-ders and haulers and considered them his employees; and that he walked over the woods daily checking for the primary purpose of seeing that the skidders and haulers kept up with the cutters. In answer to leading questions he stated that he never told the men how to do the work but he further said he would have done so if it had been necessary to insure that the job was done in a workmanlike manner. When asked -whether he cared whether the haulers used one or four trucks, he stated that it depended npon whether they were staying behind or up with the cutters.

Insofar as the record discloses, the oral agreement under which appellee and his father worked ran for no specified time and appellant conld have terminated the employment relationship at any time without liability. While it was testified that all the workmen conld begin and quit work when they chose, it is undisputed that they went to work about 7 a. m. and did not quit until they had done a day’s work.

We have repeatedly said that no hard and fast rule can he formulated to determine whether a person undertaking to do work for another is an employee or an independent contractor, and that each case must he determined on its own peculiar facts. WTiile there are many well recognized and fairly typical indicia of the status of the relationship, the presence of one or more of them in a case is not necessarily conclusive of this status. However, such indicia are important as guides to the broader and primary question of whether the worker is in fact independent, or subject to the control of the employer, in performing the work. Parker Stave Company v. Hines, 209 Ark. 438, 190 S. W. 2d 620; 27 Am. Jur., Independent Contractors, Sec. 5; 75 A. L. R. 726; 134 A. L. R. 1029.

Another settled rule of this court is that, in determining whether one is an employee or an independent contractor, the Compensation Act is to he given a liberal construction in favor of the workman and any doubt is to be resolved in favor of his status as an employee rather than an independent contractor. Irvan v. Bounds, 205 Ark. 752, 170 S. W. 2d 764; Feazell v. Summers, 218 Ark. 136, 234 S. W. 2d 765. The power of an employer to terminate the employment at any time without liability is incompatible with the full control of the work which is usually enjoyed by an independent contractor and is a strong circumstance tending to show the subserviency of the workman. Irvan v. Bounds, supra.

The facts that the employment contract was for no specified time and could be terminated at will by appellant without liability, and that he reserved the right to make suggestions as to how the work should he done, are indicative of the relationship of employer-employee between appellant and appellee. The commission also might have wondered why appellant should have bothered about compensation insurance if he really thought he would not be responsible for any loss due to injuries of any of the workmen connected with his logging operations. In our opinion the commission’s finding that ap-pellee was the appellant’s employee at the time of injury is supported by substantial evidence. We also agree with the circuit court’s determination that the fact that appel-lee and his father were partners in carrying on the work did not preclude a finding of the employer-employee relationship. In reaching this conclusion, the court correctly relied upon the holding in Hiebert v. Howell, 59 Idaho 591, 85 P. 2d 699, 120 A. L. R. 388. In that case the Idaho Court, under a similar state of facts, held the fact that the persons engaged in skidding and hauling the logs with equipment owned by them jointly were, as between themselves, partners did not prevent them from becoming ordinary employees of one who hires them to skid and haul timber for him.

The judgment is affirmed.


source: Caselaw Access Project

author: G-eorge Rose Smith, J.

license: Public Domain

text:
    Self v. Wisener.
    5-851
    287 S. W. 2d 890
    Opinion delivered March 12, 1956.

      Bailey, Warren & Bullion, for appellant.
    No brief, for appellee.
   G-eorge Rose Smith, J.

This is a suit by the ap-pellee to enjoin picketing by Local No. 700, International Brotherhood of Electrical Workers. The complaint alleges that the union has picketed Wisener for the unlawful purpose of forcing him to compel his employees to join the union. Ark. Const., Amendment 34; Ark. Stats. 1947, § § 81-201 — 81-205. The union denies this charge and asserts that the picketing is for the single purpose of protesting the fact that Wisener pays substandard wages to his employees. The chancellor found the issues in favor of the plaintiff and permanently enjoined the union from picketing the plaintiff in any manner whatever.

There is little conflict in the testimony. Wisener had been a member of the union for eight years when he went in business for himself in 1949. For the next two years Wisener continued his membership and conducted his shop under a union contract. In 1951 a dispute arose between Wisener and the local, the details of which are unimportant in this case, and the contract was terminated. When this suit was filed in 1954 Wisener had three employees, none of whom had ever been a member of the union.

The prevailing union wage for electricians in Fort Smith is $2,625 an hour. Wisener pays one of his men $2.00 an hour and the other two $1.50 an hour. In addition he gives them a bonus at the end of each year, this bonus having amounted in 1953 to less than five cents an hour. Wisener also provides certain medical and hospital benefits. Although the value of these benefits is not shown, it is clear that Wisener’s wage scale is substantially below the established union rate.

Before the present controversy arose the union’s representative, T. F. Self, had requested several business concerns not to employ Wisener for their electrical work. Self testified that he told these concerns that he wonld appreciate their “using our members and our people and particularly the people that paid the recognized wage rate — fair wage rates.” In most instances the firms complied with Self’s request and discontinued Wisener’s employment. Such a protest was ineffective, however, with reference to work upon a building that was being constructed in Fort Smith, and the union picketed the job.

The picketing was entirely peaceful. There is no suggestion that it was accompanied by threats, intimidation, violence, or other unlawful conduct. Hence the trial court’s decree can be sustained only if the picketing was for an illegal purpose. Although the appellee has not filed a brief in this court, there appear to be two possible arguments against the legality of the appellants’ conduct.

First, the complaint alleges, and the chancellor found, that the purpose of the picketing was to force Wisener’s men to join the union. The weight of the evidence does not support this charge. There is no testimony having a direct tendency to establish the allegations of the complaint. Wisener merely testifies that, since the pickets’ signs charged unfairness to the union, he supposed that the union wanted his employees to become members. Wisener does not base his supposition on anything except the bare fact that a picket line existed. He and his three employees all state that there was never any request that the men join the union. The defense testimony is to the same effect. Unless the union’s illegal purpose can somehow be deduced from the naked fact of picketing, there is no proof affirmatively establishing the allegations of the complaint.

On the other hand, there is positive proof supporting the appellants’ contention that the picketing was a protest against the payment of low wages. Self testified that when he first came to Fort Smith the wage scale was 87.5 cents an hour. Over a period of years the pay has risen to its present level of $2,625. It cannot be doubted that the efforts of organized labor have been partly responsible for the increase or that the union members have a direct interest in maintaining the wage level. It is shown that from time to time the United States Department of Labor ascertains the prevailing wage scale in every area. Federal construction contracts require that this prevailing wage be paid by the contractor, and a similar provision is sometimes inserted in private building contracts. Wisener admits that his wage payments are reported to the Department of Labor; presumably they are considered in the determination of the prevailing wage for the locality. Thus every electrical worker has a pecuniary interest in the matter. This is the situation in which the appellants elected to call the public’s attention to the appellee’s wage scale. When the appellants’ affirmative proof is contrasted with the ap-pellee’s failure to produce affirmative proof it cannot be said that the asserted violation of the state constitution and statutes has been established by a preponderance of the evidence.

Second, it might be argued that picketing as a protest against the payment of substandard wages is illegal in Arkansas. We do not regard such an argument as sound. The legislature has not attempted to forbid such picketing. In the absence of statute the judiciary may announce the state’s public policy in accordance with the common law, Sheet Metal Workers Int. Ass’n v. E. W. Daniels etc. Co., 223 Ark. 48, 264 S. W. 2d 597, but we are aware of no common law principle that condemns picketing of the kind involved in this case. The fact that no labor dispute existed between Wisener and his employees does not in itself render the picketing unlawful. Local No. 802 v. Asimos, 216 Ark. 694, 227 S. W. 2d 154. When it is realized that the appellants were financially affected by the comparatively low wages being paid by Wisener, there is no valid reason for branding as unlawful the appellants’ desire to publicize their grievance.

Reversed.


author: Paul Ward, Associate Justice.

text:
    Slavens v. State.
    4831
    287 S. W. 2d 892
    Opinion delivered March 12, 1956.

      Eugene Coffelt, for appellant.

      Tom Gentry, Attorney General, and Thorp Thomas, Asst. Atty. General, for appellee.
   Paul Ward, Associate Justice.

Appellant, Maud Rawlins Slavens, was charged with the illegal possession of intoxicating liquor for the purpose of sale in dry territory, and was convicted after a jury trial.

Por a reversal appellant sets forth six separate assignments of error, hut these assignments may he grouped and are argued by appellant under two headings, viz: (a) there is no substantial evidence to support the verdict of the jury, and (b) the court erred in permitting the state to prove prior convictions for like offenses.

Testimony on the part of the state: On June 24, 1955 the sheriff and a city officer searched appellant’s home and found 12 or 13 half pints of liquor. The sheriff first found 2 bottles and then appellant went into another room and returned with the other bottles saying “This is all I’ve got. To save you time in searching, this is all I’ve got here,” but when the sheriff told her he was going to arrest her for the possession of liquor for sale appellant said the liquor belonged to her husband; The city officer, who was with the sheriff when appellant’s home was searched on June 24, 1955, stated that in September of 1954 he searched her home and found 15 half pints of liquor; A state policeman testified that on August 4, 1954 he searched appellant’s home and found some 40 or 50 half pints of liquor; The Mayor of Siloam Springs testified that appellant was convicted on December 1, 1950, for possessing more than one gallon of liquor for sale; A police officer of Siloam Springs .testified that on September 15, 1954 he searched appellant’s car and found one gallon of liquor in half pint containers, and that in January 1955 he searched appellant’s car and found 8 half pints of liquor; The manager of a grocery store in Siloam Springs, located a block and a half from appellant’s home, stated that he had seen people going in and out of her home; The Circuit Clerk testified that appellant pleaded guilty on September 17, 1951 to the possession of untaxed liquor for sale in dry territory, and that she pleaded guilty to three liquor charges on April 3, 1951, and; Several witnesses testified that appellant had the reputation of dealing in the illicit sale of liquor. Appellant’s husband testified that the liquor which was found on June 24, 1955 belonged to him, and several witnesses testified that appellant had a good reputation.

(a) The above testimony, we think, constituted substantial evidence to support the verdict of the jury. This same conclusion was reached, on somewhat similar facts, in Freeman v. State, 214 Ark. 359, 216 S. W. 2d 864, and Huffman v. State, 222 Ark. 319, 259 S. W. 2d 509.

(b) The court did not commit error in allowing the state to prove that appellant had been previously convicted for similar offenses. This point is fully covered and is controlled by the opinion in Thompson v. State, 225 Ark. 1059, 287 S. W. 2d 465, and the cases cited therein.

Affirmed.


author: Sam RobiNSON, Associate Justice.

text:
    Forest Park Canning Company v. Coler.
    5-860
    287 S. W. 2d 899
    Opinion delivered March 12, 1956.

      Rex W. Perhins and Jeff Duty, for appellant.

      Eugene Coffelt and Vol T. Lindsey, for appellee.
   Sam RobiNSON, Associate Justice.

Appellant Forest Park Canning Company filed suit against appellee M. C. Coler, a farmer, seeking a judgment in the sum of $3,462.84 alleged to be due on an open account for seed beans and fertilizer sold by appellant to appellee; there was a judgment for Coler. At the trial, it was admitted by Coler that he obtained seed beans and fertilizer of the value stated in the complaint, but it was contended that he had an agreement with Cecil Nail, agent of the canning company, that the beans and fertilizer were to be paid for out of the bean crop only; that Coler was liable for the purchase price only to the extent of the value of the bean crop. Two crops of beans were planted, but due to a prolonged drouth neither crop matured and no beans were gathered or sold. The canning company denies that Coler’s liability for the purchase price was contingent on the production of a bean crop. Without abstracting the testimony here, suffice it to say that the evidence is sufficient to give rise to a question of fact as to the terms agreed upon when the merchandise was sold; it was an issue of fact to be resolved by the jury,

The appellant canning company complains of Instruction No. 6 given by the court. This instruction must be read in connection with Instruction No. 5 which, along with a colloquy between a member of the jury and the court, is as follows:

INSTRUCTION NO. 5

‘ ‘ The merchandise was received and it is not a question. It is all or nothing. That’s the testimony in this case. Nine or more concurring can return a verdict. If unanimous, just one of you sign it as foreman. If it is not unanimous but nine of you concurring must each individually sign the verdict. Any other instructions ?

Juror Hefner: Judge, can the jury decide that Nail is agent of the canning company without your giving us the law of agency?

The Court: I can give yon one.

Mr. Hefner: I would like to have it.

The Court: I am going to change that. I don’t believe the question of agency is a question of fact in this case. I will direct yon that agency has been alleged and stated and I don’t believe that there is any proof to the effect that there wasn’t an agency relationship. So I’ll take that question away from you.

Mr. Hefner: In other words, we are not to determine the question of agency?

The Court: That is correct. I am saying that that is not to be determined, that agency has been established sufficiently, so the only question is what the understanding was in the sale of the merchandise.”

The appellant objected to the giving of Instruction No. 5, and over appellant’s objection, the court then gave Instruction No. 6, as follows: “It is further stated here that the plaintiff is responsible for the acts of his agent, any action on the part of the agent is within the scope of his authority carries over to the plaintiff. ’ ’ This instruction was erroneous; by it the jury were told, in effect, that, as a matter of law, the principal was responsible for the acts of the agent; notwithstanding, such acts may not have been within the authority, or apparent authority, of the agent.

Nail was not just an ordinary employee of the canning company; the seed beans were bought in St. Louis- and charged to Nail; in fact, he has paid for the merchandise, and the canning company, in turn, owes him. The canning company has actually paid out only $650.00 on merchandise valued at more than $3,000.00; Nail paid the balance to the St. Louis people from whom the merchandise was purchased. There was testimony to the effect that Nail was to get a commission from the canning company for buying the matured beans from Coler, and, also, he was going to make a profit out of hauling the beans. Mr. Groff, president of the canning company, testified that Nail had no authority to make a contract on behalf of the company which required Coler to pay for the beans only in the event he made a crop sufficient to pay the account.

In view of the evidence, it cannot be said that, as a matter of law, the agreement which Coler contends Nail made was within the scope, or apparent scope, of Nail’s authority as agent; in the circumstances, it was a question of fact for the jury to decide. This court said, in Firemen’s Fund Insurance Company v. Leftwich, 192 Ark. 159, 90 S. W. 2d 497: “In an unbroken line of opinions we have consistently held that the question of agency, and the extent of its power and authority is always a question of fact to be determined from the testimony adduced.” See also Bradley Adv., Inc., v. Froug Stores, Inc., 193 Ark. 639, 101 S. W. 2d 789, and Thompson v. Hollis & Company, 194 Ark. 1, 104 S. W. 2d 1065.

Appellee contends that appellant cannot take advantage of the alleged error in the giving of Instruction No. 6 because all the instructions are not abstracted. Prior to January 10, 1954, when Rule No. 9 adopted by this court became effective, we had held that an alleged error in the instructions would not be considered unless all the instructions were abstracted. Hall v. Stover, 215 Ark. 485, 221 S. W. 2d 41. But now, Rule No. 9(d) prevails; it provides: “The appellant’s abstract or abridgment of the record should consist of an impartial condensation, without comment or emphasis, of only such material parts of the pleadings, proceedings, facts, documents, and other matters in the record as are necessary to an understanding of all questions presented to this court for decision . . .” (e) “. . . If the appellee considers the appellant’s abstract to be defective, he may, at his option, submit with his brief a supplemental abstract. When the case is considered on its merits the court may impose or withhold cost to compensate either party for the other party’s noncompliance with this rule.” If the appellee is of the opinion that an error in the giving of an instruction, or failure to give a requested instruction, is cured by the giving of other instructions, it is the duty of appellee to point out such other instructions to the court. Here, there is no other instruction that cures the error in Instruction No. 6.

Appellant also maintains that the court erred in refusing to admit, as evidence, proffered testimony of trade usage in the community pertaining to the making of contracts for the sale of seed and fertilizer, and cites as sustaining the point Sharpenstein v. Pearce, 219 Ark. 916, 245 S. W. 2d 385. In the case at bar, the proffered evidence related only to transactions made by Nail with others, and not to a trade usage in the community; hence, the evidence does not justify the application of the trade usage rule discussed in the Sharpenstein case.

For the error in the giving of Instruction No. 6, the cause is reversed and remanded for a new trial.

Mr. Justice Millwee dissents.


author: Lee Seamster, Chief Justice.

text:
    Rhea v. State.
    4827
    288 S. W. 2d 34
    Opinion delivered March 19, 1956.

      Kenneth G. Goffelt, for appellant.

      Tom Gentry, Attorney General and Thorp Thomas, Asst. Atty. General, for appellee.
   Lee Seamster, Chief Justice.

The appellant, Keith Dale Rhea, was charged by information July 2, 1955, with the crime of grand larceny. He was tried in the Saline Circuit Court, convicted and his punishment was assessed at one year in the State Penitentiary.

For reversal, the appellant contends that “The Court erred in refusing to instruct the jury as a matter of law, that State’s witness, Johnnie Smith, was an accomplice to the alleged crime, and in permitting the jury under instructions to make a finding of fact on this question.” The appellant, Keith Dale Rhea, is 19 years of age and did not testify in the trial of this case.

The witness, Johnnie Smith, testified to the following effect, that he was 16 years of age, a resident of Benton, Arkansas, and knew appellant; that at approximately 5 p. m., on June 18, 1955, he left his place of work and accidentally met the appellant at the Country Club Drive-In at Benton, Arkansas; that appellant was driving a green 1955 Ford car at this time.

He further testified that about 8 p. m. that night they stopped on River Street and got some gas from a tractor and traveled through Hot Springs to Mt. Ida, whereby, they sold the spare tire for $6.40; that the appellant told him that he (appellant) took the automobile off of Edmondson’s car lot in Benton, Arkansas and he knew that appellant did not own a car; that they traveled to Walla Walla, Washington, where they removed the radio from the car and he sold it; that they returned to Arkansas whereby, the left front tire on the car blew out near Lonsdale, Arkansas, and they drove on the rim for about 8 miles and abandoned the car on a side road, arriving home about 12 o’clock on Wednesday night.

The evidence reveals that Johnnie Smith informed the Sheriff of Saline County about the car and took him to the place where the car had been abandoned. He also showed the Sheriff where he and appellant had stowed the items that they had removed from the car, including a siphon hose, a gas can and some clothing.

The Sheriff of Saline County, James Steed, testified that the witness, Johnnie Smith, and his mother came to his office on Monday between 12 and 1 p. m. The evidence is not clear on this point, but we presume this was the Monday after the witness returned home on Wednesday night. The Sheriff testified that Rufus Ed-mondson identified the abandoned car as the one that was stolen from his lot.

The evidence in this case is undisputed and we think that it is sufficient to make the witness, Johnnie Smith, an accomplice as a matter of law to the crime with which appellant was charged. Mankey v. State, 192 Ark. 901, 96 S. W. 2d 463.

Over the objection of the appellant, the court submitted the question to the jury as to whether the witness, Johnnie Smith, was an accomplice in the case. This court has held that an accomplice is one who in any manner participates in the criminality of an act, whether he is considered, in strict legal propriety, as a principal or merely as an accessory before or after the fact. This court has also held that where there is a question of fact as to whether the witness is an accomplice, the fact should he submitted to the jury unless it is shown, as a matter of law, that he is an accomplice. Jackson v. State, 193 Ark. 776, 102 S. W. 2d 546; Redd v. State, 63 Ark. 457, 40 S. W. 374.

The appellant objected to the instruction as given by the court and saved his exceptions thereto. The appellant also offered the following instruction: “You are instructed that the witness, Smith, under the law and facts as developed in this case is an accomplice.” In a case almost identical to the one at bar, Smith v. State, 144 S. W. 2d 896, the Court of Criminal Appeals of Texas held that it was reversible error to refuse to instruct a jury that a witness was an accomplice as a matter of law, where the evidence shows that such witness was, in fact, an accomplice to the crime charged.

There are other errors complained of by the appellant, but we think that they would be avoided by the court on a retrial of this case. We hold that it was reversible error for the court to refuse to instruct the jury, as requested by the appellant, that witness Smith was an accomplice to the crime charged against appellant, as a matter of law, and in submitting an instruction to the jury, leaving this question for the jury to determine.

The case is reversed and remanded.


author: J. SeaborN Holt, Associate Justice.

text:
    Norwood v. Norwood.
    5-844
    288 S. W. 2d 39
    Opinion delivered March 19, 1956.

      Rex W. Perhins and E. J. Ball, for appellant.

      Price Dickson, W. B. Putman and Suzamie Ghalfant Lighton, for appellee.
   J. SeaborN Holt, Associate Justice.

This appeal involves the right of a second mortgage holder, who was a constructively summoned non-resident defendant, to set aside a foreclosure decree, within the two-year period [§ 27-1907 Ark. Stats. 1947].

Appellee, Mae E. Norwood, held a first mortgage on land in Washington County to secure an indebtedness of $4,725.16. C. C. Norwood, appellant, held a second mortgage to secure an indebtedness of $4,500.00. February 14, 1954, Mae Norwood filed suit to foreclose against Bryan Norwood, Mortgagor, personally. She later amended her complaint making C. C. Norwood a party, defendant. He was a non-resident of Arkansas and service was had upon him by publication. Bryan Norwood and C. C. Norwood did not appear in the cause and a default decree of foreclosure was entered against them August 16, 1954. Sale of the property was had September 17, 1954, and Mae Norwood purchased the property for $3,500.00. The sale was subsequently confirmed. Thereafter, December 17, 1954, C. C. Norwood filed petition to set aside the foreclosure decree above and sought the right to redeem the property, alleging, in effect, that while the foreclosure proceedings were pending Mae Norwood (appellee) agreed with them: “. . . not (to) pursue further her complaint for foreclosure . . . and that the said Mae E. Norwood, Bryan Norwood and C. C. Norwood would endeavor to sell the premises subject to the first mortgage of Mae E. Norwood and the second mortgage of petitioner, and that from the said proceeds of the sale of said premises Mae A. Norwood would be paid in full for his claim, and that the balance, if any, would be paid to Bryan Norwood . . . Petitioner further states that he is ready, willing and able to pay the claims due and owing to Mae E. Norwood, and that he tenders into Court the sum of $5,140.97 to cover all of said claim. (Tr. 41) . . . that the sum of $342.56 should be disallowed as a claim of the said Mae E. Norwood for the reason that she is not entitled to an allowance for attorney’s fees; that the sum of $306.56 be disallowed for the reason that said sum was not expended on the property described in said foreclosure proceeding.”

He further alleged that appellee’s actions were in effect a fraud on the court and he had a meritorious defense. Prom a decree of March 4, 1955, dismissing appellant’s petition for want of equity, is this appeal. For reversal appellant argues the one point that: ‘ ‘ The foreclosure decree should be set aside under Arkansas Statute 1947 (Sec. 27-1907). The trial court erred in holding to the contrary.”

It appears undisputed, as indicated, that Mae Nor-wood procured a default foreclosure decree, the sale of the real property in question under that decree and the confirmation thereof. It is also not disputed that C. C. Norwood, the second mortgagee, was constructively summoned, and that the foreclosure proceedings were had in default of his appearance in said case. It also appears that appellant’s petition to set aside the default decree was filed approximately 44 days after it was rendered.

Section 27-1907 Ark. Stats. 1947 provides: “New trial where defendant constructively summoned — Time —Power of court on new trial. ■ — -Where a judgment has been rendered against a defendant or defendants constructively summoned and who did not appear, such defendants or any one or more of them may at any time within two [2] years, and not thereafter, after the rendition of the judgment appear in open court and move to have the action retried; and security for the costs being given, such defendant or defendants shall be permitted to make defense, and thereupon the action shall be tried anew as to such defendant or defendants as if there had been no judgment, and upon the new trial the court may confirm, modify or set aside the former judgment and may order the plaintiff in the action to restore to any such defendant or defendants any money of such defendant or defendants paid to them under such judgment, or any property of such defendants obtained by the plaintiff under it and yet remaining in his possession and pay to the defendant the value of any property which may have been taken under an attachment in the action or under the judgment and not restored; Provided the provisions of this section shall not .apply to judgments granting a divorce except so far as related to alimony. ’ ’

In construing the effects of this section of the statute in Wright v. Burlison, 198 Ark. 187, 128 S. W. 2d 238, we used this language: “It is true, as appellant contends that she had the right under the above section of the statute, to come in within the two-year period, ask the court to set aside the decree of foreclosure rendered on constructive service against her, and make her defense upon giving the bond for costs required. It was not necessary for her to first show a meritorious defense, nor should she have been required to assume the burden of proof . . . They have no right, however, to have the former judgment, meanwhile, vacated on motion. It remains until the case is re-tried, to be then confirmed, modified or set aside. Nevertheless, if the court should refuse to admit a defendant to make defense, and the answer which he proposes to file should not disclose any substantial right, the error would not be so prejudicial to him as to require correction. If the defense is incorporated with the motion, it may be considered to include all the defendant means to stand upon. ’ ’

The record here reflects that appellant, C. C. Nor-wood, was permitted to plead all defenses on which he elected to stand and to present the testimony of a great many witnesses claimed to be in support thereof. In the circumstances he has had the retrial vouchsafed to him under the above statute and after a review of all the testimony presented by all the parties to this litigation we are unable to say that the findings and decree of the chancellor, were against the preponderance of the evidence. Appellant has failed to show any defense to the foreclosure decree, after, as indicated, he was given a full opportunity so to do, and we, therefore, hold that the decree must remain in full force and effect.

We also hold that there was no right of redemption accorded to appellant under the above section, § 27-1907, from the foreclosure sale. We said in Horn v. Hull, 169 Ark. 463, 275 S. W. 905, “The statute [§ 27-1907] provides that a defendant constructively summoned, and who does not appear, may at any time within two years, and not thereafter, after the rendition of the judgment appear in open court and move to have the action retried. In such cases there is no right of redemption from the sale of the mortgaged property, and the only remedy for the defendant is that afforded by the statute, to have a retrial of the cause and, if successful, to obtain an order on the plaintiff for a restitution of the proceeds of the sale of the property. Gleason v. Boone, 123 Ark. 523 . . . mere inadequacy of price is no ground for setting aside a judicial sale unless it is so gross as to raise a presumption of fraud or unfairness.” See Hughes — Arkansas Mortgages — Sec. 458.

The rule announced in Horn v. Hull, supra, that a defendant constructively summoned does not have a right of redemption during the two-year period, is manifestly sound. If such a right of redemption were permitted it is clear that no one would be willing to bid the full value of the mortgaged property at the foreclosure sale, for the purchaser would not be free to improve or sell the property until the expiratioh of two years. The non-resident defendant would thus be given an opportunity to speculate, without risk, upon the possibility that the property might increase in value. Moreover, every mortgagor would have the power to obtain a two-year extension of the time for payment by merely recording a quitclaim deed to a nonresident friend or relative. It would then be necessary to join the non-resident grantee as a defendant when suit was brought to foreclose, and the equity of redemption would be automatically extended for two years. In the case at bar C. C. Norwood was granted a retrial of the case and has failed to show any error in the original proceedings. That is all the relief that he is entitled to under the statute.

Affirmed.

Chief Justice Seamster not participating.


author: Ed. F. McFaddiN, Associate Justice.

text:
    Blalock v. Blalock.
    5-888
    288 S. W. 2d 327
    Opinion delivered March 19, 1956.
    [Rehearing denied April 16, 1966.]

      McCourtney, Brinton, Gibbons & Segars, for appellant.

      Penix & Penix, for appellee.
   Ed. F. McFaddiN, Associate Justice.

Appellee, J. A. Blalock, filed this suit against the appellant, R. L. Blalock, seeking to recover judgment for the balance due on a note of $3,000, dated November 2, 1950. Trial in the Chancery Court resulted in a decree for the plaintiff for $1,363.62, with interest at 5% from the date of the note. R. L. Blalock has appealed and presents here the issues now to be discussed.

I. Usury. The original note, that the appellant signed, read:

“$3,000.00 Jonesboro, Arkansas, November 2, 1950. At $150.00 per month beginning Dec. 1, 1950, consecutively after date for value received, I, we, or either of us promise to pay to the order of J. A. Blalock Three Thousand and no/100 Dollars at Jonesboro, Ark. with interest at 5 per cent per annum from date until paid. If the interest be not paid when due, to become as principal and the sum thereof to bear interest at the rate of .per cent per annum. The makers and endorsers of this note hereby severally waive presentment for payment, notice of non-payment, protest, and consent that time of payment may be extended without notice thereof.
“(Signed) R. L. Blalock.”

As security for the note, appellant executed a chattel mortgage on a truck and trailer and, in the chattel mortgage, the indebtedness was described as follows:

“Whereas, the said party of the first part is indebted to the party of the second part in the sum of Three Thousand Dollars as is evidenced by a promissory note of even date herewith, due and payable in 24 equal monthly installments of $150.00 per month beginning December 1, 1950, and consecutively and continuously thereafter for 23 months on 1st day of each month at 6% per annum.”

If the description in the mortgage Controls as to the indebtedness, rather than the provisions of the note, then the transaction is usurious; because twenty-four monthly payments of $150.00 per month in two years time is more than a repayment of a debt of $3,000.00 with 10% interest thereon. It is on the theory that the description of the debt in the mortgage controls rather than the note itself, that the appellant presents this point of usury. But the law is clear that the note sued on controls over the recitals of the indebtedness as contained in the mortgage. In Sugg v. Utley, 186 Ark. 560, 54 S. W. 2d 413, there was a conflict between the recitals in the note and those in the mortgage, and we said:

‘ ‘ The provisions of the note would control as against the recital in the mortgage, which is only a security and incident to the debt. 1 Jones on Mortgages (7th ed.), page 484; Farnsworth v. Hoover, 66 Ark. 367, 50 S. W. 865.”

In the case of Indiana etc. Ry. Co. v. Sprague, 103 U. S. 756, 26 Law Edition 554, the Supreme Court of the United States had before it a case in which the bond (i. e., note) contained one provision and the mortgage another; and the Supreme Court of the United States said:

“The bond being the principal thing containing the obligation of the Company, and the mortgage a mere security to ensure the performance of that obligation, the terms of the bond should control.”

In 10 C. J. S. 485, cases from many jurisdictions are cited to sustain the general rule:

“Where the note and the mortgage contain conflicting and irreconcilable provisions as to the character or terms of the debt, or the time for its payment, the note will govern as being the principal obligation.”

In the ease at bar, the note recites that the indebtedness is $3,000.00 with interest at 5% from date and that the payments are to be $150.00 per month and the number of monthly payments is not stated. Therefore, the description of the indebtedness in the mortgage mnst yield to the actual note itself; and the note and evidence do not show a usurious contract. Both the appellant and the appellee admitted that neither of them read the mortgage when it was executed. They were both in the attorney’s office when the papers were prepared and thought that the note would be correctly described in the mortgage. The attorney who prepared the note and mortgage frankly admitted that he made a mistake in his mental arithmetic in calculating the number of monthly payments. The frank admission of the attorney substantiates the parties. Usury consists in contracting for payment of interest greater than the law allows. Usury is not to be inferred when neither the borrower promised to pay a greater rate of interest than the law permits, nor the lender knowingly entered into a usurious contract. Commercial Credit Plan v. Chandler, 218 Ark. 966, 239 S. W. 2d 1009. All the evidence shows that the instant transaction was not usurious; so the appellant’s plea of usury must fail.

II. Alteration Of The Instrument. In this assignment the appellant refers to an addition that the attorney made in the description of the indebtedness in the chattel mortgage after the appellant and appellee had left his office and before the mortgage was filed in the courthouse. We have already copied the indebtedness clause as it was contained in the mortgage, so we will not recopy it; but we point out that the words at the close of the indebtedness clause — “at 6% per annum” —■ were added by the attorney in pen and ink after the parties had left his office. ,A11 of the other description of the indebtedness was either printed or typewritten. The attorney who made the addition frankly says that it was done to try to straighten out the attorney’s mistake in mental arithmetic. If we had before us some question about the foreclosure of the mortgage, then the question of whether the alteration was material might be a vital issue. But, in this case, the uncontradicted proof shows the mortgagor (appellant) disposed of the mortgaged property and paid the mortgagee (appellee) some of the proceeds of the sale; and the Chancery decree, herein involved, has no provision regarding foreclosure of the mortgage. Therefore, any question about an alteration in the mortgage passes out of this case because the mortgage is not being foreclosed. The note is the sole basis of the decree here involved.

III. “Clean Hands” Doctrine. The appellant says that a court of equity should not award a judgment to the appellee because the appellant was executing the mortgage to the appellee to hinder and delay other creditors of the appellant in the collection of their indebtedness. But this, like the question of the alteration of the mortgage, seems to us immaterial. A great amount of testimony was taken, showing both previous and subsequent transactions between the parties, to establish that the indebtedness of $3,000.00 was actually due and owing at the date of the note, and that certain payments had been made thereafter. The indebtedness and the payments and the amount of the balance due are not even questioned by the appellant on this appeal. Since there was a valid indebtedness, the appellee had a right to have it evidenced by a note, and there was nothing fraudulent in that act. The appellant frankly conceded that he executed the mortgage to the appellee in order to prefer him over his other creditors, but the truck and trailer have been disposed of, so the matter of “clean hands” as regards the mortgage has likewise passed out of the case.

Affirmed.

       These words are emphasized because they are discussed in Topic II, infra.

       For some of our more recent cases on usury, see: Strickler v. State Auto Finance Co., 220 Ark. 565, 249 S. W. 2d 307; Winston v. Personal Finance Co., 220 Ark. 580, 249 S. W. 2d 315; and Hare v. General Contract Purchase Corp., 220 Ark. 601, 249 S. W. 2d 973. The note here involved was executed prior to these cases.

       On page 3 of his brief, the appellant says: “For the purpose of this appeal there are hut two issues: Usury and alteration of the instrument” ; but, in the argument, appellant also discusses a third point, that is, the “clean hands” doctrine.

       On this question of “clean hands,” it is interesting to note that the Chancellor observed that the appellant’s claim, that he was trying to defraud his creditors, did not prejudice the appellee, but could be considered in deciding the credibility to be given the appellant’s testimony.


author: Minor W. Millwee, Associate Justice.

text:
    Youngdahl v. Rainfair, Inc.
    5-884
    288 S. W. 2d 589
    Opinion delivered March 19, 1956.
    [Rehearing denied April 23, 1956.]

      McMath, Leatherman <& Woods and William J. Isaacson, for appellant.

      Shaver & Shaver, for appellee.
   Minor W. Millwee, Associate Justice.

Appellee, Rainfair, Inc., is engaged in the manufacture of men’s slacks in its plant at Wynne, Arkansas, where it employed approximately one hundred women and seven men in April, 1955. None of the employees were members of a labor union at that time but some of them had signed membership application cards with appellant, Amalgamated Clothing Workers of America, C. I. 0., hereinafter called “Union.” On Monday, May 2, 1955, twenty-nine employees failed to return to work and a picket line was established by the Union. Appellee’s plant manager notified said employees by registered mail that it would be assumed that they were quitting their jobs if they did not return to work in three or four days. Three employees returned to work but twenty-six remained on strike and the picketing was continued until May 19, 1955, when the pickets were withdrawn and the strikers applied for reinstatement. In the meantime appellee had hired thirteen new employees and immediate reinstatement of the strikers was declined.

On June 17, 1955, the strikers met with several staff members of the Union at Forrest City, Arkansas, and voted to re-establish the picket line. In the meantime the Union filed alleged unfair labor practice charges against appellee before the National Labor Relations Board which were still pending at the time of the hearing in the instant case. The picket line was reestablished about 6:00 a. m. on Monday, June 20, 1955, and on June 24 appellee filed the instant suit against the Union and certain staff members and strikers, as a class, to enjoin them from picketing and the commission of certain acts of intimidation, violence, threats, abuse, insults and breaches of the peace allegedly committed by appellants along the picket line and upon Union premises directly across the street from appel-lee’s plant.

On June 30 appellants filed a motion to vacate a temporary injunction issued on the date suit was filed. At the hearing held on said motion on July 1, it was agreed that the testimony there adduced would be considered on appellee’s application for a permanent injunction. A citation for contempt against certain persons for violation of the temporary injunction was dismissed after a hearing on July 27. The chancellor took the case under advisement and this appeal is from a decree entered September 15, 1955, making the temporary injunction permanent.

Appellants contend the decree violates their rights of free speech and assembly under the U. S. and Arkansas Constitutions; that there was no showing that the picketing resulted in violence, breaches of the peace or other unlawful acts; that the language used by the strikers along the picket line is common in all labor disputes; and that the regulation of the subject matter of the suit is exclusively reserved to the National Labor Relations Board. In the light of these and other contentions we proceed to an examination of the evidence which is for the most part undisputed.

While the pleadings and testimony were directed primarily to incidents which occurred during the second picketing, there was evidence that some of them were merely a resumption of the pattern set in the first picketing. The plant manager was followed by the strikers every time he left the plant in his car. One of the pickets told him she was going to wipe the sidewalks clean with him and send him back to Wisconsin. He had so many anonymous telephone calls at his home after 9:00 p. m. that he had to have the phone disconnected. Nails and roofing tacks were strewn over the parking area of appellee’s plant and the driveways at the homes of the plant manager and twelve of the women employees.

When the picketing was resumed on June 20, 1955, the Union rented a vacant lot directly across Rowena Street from the main entrance to appellee’s plant. The street runs north and south and is about twenty feet wide. Appellants placed a tent on the lot in which they installed a telephone, tables, benches and chairs and the lot was used as headquarters for the strikers. One of appellee’s employees, Mrs. Jewell Newby, lived in a trailer next to the Union lot and within a few feet of their tent. About 12:30 a. m. on June 20, she observed two women strikers driving up and down Rowena Street who had previously threatened to move her trailer and whip her. The strikers then parked their truck near the trailer and punctured two tires on an automobile belonging to Mrs. Newby’s daughter who was visiting her at the time. The two strikers were arrested and convicted on criminal charges preferred by Mrs. Newby. About five o’clock on the same morning a window of appellee’s plant was found to have been broken and a black snake about five feet long was found coiled inside the plant under the broken window.

The picketing was resumed about 6:00 a. m. on June 20 with usually one or two carrying signs up and down Rowena Street in front of the plant. Other Union staff members, strikers and their sympathizers would assemble under and around the tent in groups estimated at different times from eight to thirty-seven. As the employees would go to and from work at the plant, or go to lunch, or take a recess, the strikers would congregate along the west edge of their lot and sometimes in Rowena Street and engage in loud and offensive name calling, singing or shouting directed at the workers. They would call the workers “scabs,” “dirty scabs,” “fat scabs,” “yellow scabs,” “crazy scabs,” “cotton patch scabs,” “pony tailed scabs,” “fuzzy headed scabs,” “fools,” “cotton picking fools,” and other similar names. This took place every time an employee left or entered the plant. It was done by the strikers individually, in couples or by the entire group and in a loud and boisterous manner. One witness described it as “just bedlam” when more than a dozen joined in the shouting. Particular names or remarks were reserved for individual workers. One pregnant worker was greeted with, ‘‘Get the hot water ready,” or, “I am coming to make another payment on the baby, call Dr. Beaton,” or, “Why, you can work another hour until you go to the delivery room.” This worker and another drove to. a filling station for gasoline when two of the strikers drove up and told the attendant not to wait on “these scabs” before he waited on the strikers.

One worker said the strikers always called her “fat scab,” and that individual pickets and strikers made fun of her clothing and asked her if “Pete,” the plant manager, still liked her “low-cut dresses and earrings.” This made the employee so angry she invited the picket to come over and “make it some of her business.” This worker thought she had a right to work without being molested and insulted because she had two boys to support. On one occasion two strikers drove by a house where two workers were visiting and one of the strikers shouted, “You gals better check your sheets tonight. There might be a snake in them.”

The strikers sang songs with improvised lyrics to the tune of certain popular ballads and religious and Union songs. “When the Saints Go Marching In” became “When the Scabs Go Marching In” and the ballad, “Davy Crockett,” began, “Born in a cotton patch in Arkansas, the greenest gals we ever saw . . .”

The women pickets wonld stand in the street or sit near the plant and shout ugly names, stick out their tongues, hold their noses and make a variety of indecent gestures while pointing at the workers in the plant. Several workers testified the continuous name calling and boisterous conduct of the strikers made them afraid, angry, ill or nervous and had an adverse effect on their ability to properly do their work. Some of the workers would talk back to the strikers while others remained silent. The Chief of Police of Wynne testified there was more tension during the second picketing than the first and that he was fearful there was going to be trouble during the second picketing and so informed 'Union staff members. One staff member called him once when trouble seemed imminent and wanted to “go on record” as having requested the presence of the officer.

The Assistant Regional Director of the Union testified that the purpose of the second picketing was to exert “moral pressure” on the workers and because of ■certain unfair labor practices of appellee. While the Union had an action pending before the National Labor Relations Board on account of such alleged practices, he expressed an unwillingness to await the Board’s action before proceeding with the trial of the instant suit. The principal complaint was asserted to be appellee’s refusal to recognize Union’s offer of proof of majority status, but it was admitted that Union was unwilling to go into an election and had withdrawn its request therefor at the time of the hearing. The assistant director and other staff members considered it insulting to be ■called a “scab” but they felt that others might look upon it as a “badge of honor.”

In support of their numerous contentions that the ■decree appealed from is in violation of their constitutional rights, and that the picketing involved here was legal and peaceable, appellants rely upon such cases as Thornhill v. Alabama, 310 U. S. 88, 60 S. Ct. 736, 84 L. Ed. 1093; Carlson v. California, 310 U. S. 106, 60 S. Ct. 746, 84 L. Ed. 1104; Cafeteria Employees v. Angelos, 320 U. S. 293, 64 S. Ct. 126, 88 L. Ed. 58; Bakery & Pastry Drivers v. Wohl, 315 U. S. 769, 62 S. Ct. 816, 86 L. Ed. 1178; Local No. 802 v. Asimos, 216 Ark. 694, 227 S. W. 2d 154; and Boyd v. Dodge, 217 Ark. 919, 234 S. W. 2d 204. In urging the opposite view, appellee cites and relies upon Milk Wagon Drivers Union v. Meadowmoor Dairies, 312 U. S. 287, 61 S. Ct. 552, 85 L. Ed. 836, 132 A. L. R. 1200; Allen-Bradley Local v. Wisconsin Employment Relations Board, 315 U. S. 740, 62 S. Ct. 820, 86 L. Ed. 1154; Hughes v. Superior Court of California, 339 U. S. 460, 70 S. Ct. 718, 94 L. Ed. 985; Local Union No. 313 v. Stathakis, 135 Ark. 86, 205 S. W. 450; Riggs v. Tucker Duck & Rubber Company, 196 Ark. 571, 119 S. W. 2d 507; and Smith v. F & C Enginering Company, 225 Ark. 688, 285 S. W. 2d 100. It would serve no useful purpose to differentiate the factual situation presented in the instant case from any of the cases cited above. The whole issue here would seem to boil down to whether the appellants were engaged in peaceful picketing. If so, the court wrongfully issued the injunction. If not, the decree should be affirmed. All the cases seem to agree that workers have the constitutional right to engage in peaceful picketing, unattended with violent conduct, hut that picketing carried on with intimidation, threats, violence, coercion or other unlawful means is illegal and may he enjoined.

A constitutional right to abuse, insult, slander or intimidate others is simply nonexistent in this country. Freedom of speech does not mean freedom of vituperation nor does it mean freedom of a person to insult, revile or intimidate others. As the court said in Chaplinsky v. State of Neiv Hampshire, 315 U. S. 568, 62 S. Ct. 766, 86 L. Ed. 1031: “Allowing the broadest scope to the language and purpose of the Fourteenth Amendment, it is well understood that the right of free speech is not absolute at all times and under all circumstances. There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which, has never been thought to raise any Constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or “fighting” words — those which by their very utterance inflict injury or tend to incite an immediate breach of the peace. It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality. ‘Resort to epithets or personal abuse is not in any proper sense communication of information or opinion safeguarded by the Constitution, and its punishment as a criminal act would raise no question under that instrument.’ Cantwell v. Connecticut, 310 U. S. 296, 309, 310, 60 S. Ct. 900, 906, 84 L. Ed. 1213, 128 A. L. R. 1352.” It has long been a violation of the criminal laws of this state for any person to “. . . make use of any profane, violent, vulgar, abusive or insulting language toward or about any other person in his presence or hearing, which language in its common acceptation is calculated to arouse to anger the' person about or to whom it is spoken or addressed, or to cause a breach of the peace or an assault . . .” Ark. Stats. Sec. 41-1412.

The words of Judge Eder in Lilly Dache, Inc. v. Rose, 28 N. Y. S. 2d 303 are peculiarly applicable here: “There is nothing mysterious in the tern ‘peaceable picketing.’ To picket is to post a watcher to observe; as applied to a labor dispute it means the rtationing of one or more persons to observe and to attempt to persuade ; peaceable picketing means simply, †- anquil conduct, conduct devoid of noise or tumult, the absence of a quarrelsome demeanor, a course of conduct that does not violate or disturb the public peace; this is but a common-sense definition. As a necessary corollary, boisterous conduct, the use of vile language, bellicose demeanor, threats, violence, coercion, intimidation, shouting, and interference with the use of the premises or impeding the public highway, as by mass picketing, which is the use of a large number of pickets, is not peaceable picketing, but is illegal picketing.”

It is true that an injunction prohibiting all picketing-may not be based upon isolated and episodic acts of violence or other unlawful conduct. Even if it be conceded that the acts of violence involved here fall in that category, there was nothing isolated nor infrequent about the persistent abuse, insults and epithets along the picket line. Many jurisdictions have authorized such injunctions where the strikers’ acts and conduct have been so entangled with violence and other illegal conduct that future excesses might reasonably be anticipated in the light of what was previously done. See cases collected in 132 A. L. R. 1218. According to the undisputed evidence here, the whole pattern of conduct along the picket line discloses a clear design on the part of the appellants to intimidate and coerce their former fellow workers by persistent abuse, insults and conduct calculated to cause breaches of the peace and other unlawful results. It is difficult to understand how any court could classify such conduct as “peaceful picketing.”

While the question of jurisdiction was not raised below and appellants expressed an unwillingness to await the action of the National Labor Relations Board on their charges of unfair labor practices against ap-pellee before proceeding with the trial of the instant case, it is now earnestly contended that the chancery court lacked jurisdiction which is exclusively reserved to the N. L. R. B. under federal statutes. Appellants rely on Garner v. Teamsters Local 776, 346 U. S. 485, 74 S. Ct. 161, 98 L. Ed. 228, and Weber v. Anheuser-Busch, 348 U. S. 468, 75 S. Ct. 480, 99 L. Ed. 546. The facts in these cases bear little similarity to those involved here, and we find nothing to indicate an intention to supplant or overrule the doctrine of Allen-Bradley Local v. Wisconsin Employment Relations Board, supra, where it was held that the state may still exercise its historic powers over such traditionally local matters as public safety and order and the use of streets and highways. In the Garner case the court was careful to point out that the activity there enjoined did not threaten a probable breach of the state’s peace. In International Union U. A. W. v. Wisconsin Employment Relations Board, 336 U. S. 245, 69 S. Ct. 516, 93 L. Ed. 651, the court said: “While the Federal Board is empowered to forbid a strike, when and because its purpose is one that the Federal Act made illegal, it has been given no power to forbid one because its method is illegal — even if the illegality were to consist of actual or threatened violence to persons or destruction of property. Policing of such conduct is left wholly to the states.” See also, Amalgamated Clothing Workers of America, et al. v. The Rickman Brothers, 348 U. S. 511, 75 S. Ct. 452, 99 L. Ed. 600; National Labor Relations Board v. Longview Furniture Company, 4 Cir., 206 Fed. 2d 274.

We realize that the U. S. Supreme Court is the final arbiter as to the extent the different federal acts have affected the traditional state jurisdiction to enjoin picketing by unlawful means or for illegal purposes. So far the state courts have been unanimous in holding that the National Labor Relations Act does not preclude them from granting injunctive relief against picketing in a manner that is unlawful under state law. See cases collected in 36 A. L. R. 2d 1037. Until otherwise told, we shall assume that it was not the purpose of the federal act to deprive a state court of its ancient jurisdiction in such matters.

The decree is affirmed.


author: G-eorge Bose Smith, J.

text:
    Adams v. Merchants & Planters Bank & Trust Co.
    5-882
    288 S. W. 2d 35
    Opinion delivered March 19, 1956.

      W. H. Glover, Laiuson E. Glover and John H. Wright, for appellant.

      McMillan & McMillan, for appellee.
   G-eorge Bose Smith, J.

In 1954 the appellee, with the approval of the city council, erected a permanent structure, called a curb teller, on the sidewalk in front of its bank building in Arkadelphia. Suits to require the removal of this structure were brought by Mrs. J. J. Adams, who owns three buildings fronting on Main Street just east of the bank, and by Mr. and Mrs. Bryan Allen, who rent from Mrs. Adams the store building next door to the bank. The cases were consolidated for trial. The chancellor awarded the Allens a judgment for $500 as damages suffered by them during the construction of the curb teller, but in other respects the complaints were dismissed upon the ground that the plaintiffs had failed to prove special injuries not suffered by the public in general. Both the plaintiffs and the defendant have appealed.

The original sidewalk in the block in question is almost twelve feet wide. The teller is a rectangular concrete building that extends along the curbing for ten feet and that is about seven feet in width, leaving a five-foot passageway for pedestrians. This passageway is covered by a roof connecting the teller with the main bank building. During business hours the structure is occupied by a bank employee, who does business with motorists by means of a window at the curbing and with pedestrians by means of a window at the end of the curb teller.

It is conceded that the governing law has long been settled. The city holds the streets and sidewalks as a trustee and cannot permanently divert them to a public or private use foreign to the purpose of the original dedication. Nevertheless the city has power to permit an encroachment — temporary in the sense that the city’s permission may be withdrawn — which does not necessarily interfere with the public’s use of the thoroughfare. Such an encroachment, however, may be abated upon complaint by anyone suffering special damages not common to the public at large. Packet Co. v. Sorrels, 50 Ark. 466, 8 S. W. 683; Osceola v. Haynie, 147 Ark. 290, 227 S. W. 407; State ex rel. Latta v. Marianna, 183 Ark. 927, 39 S. W. 2d 301. The controlling-issue here is whether the appellants have been peculiarly hurt by the presence of the curb teller.

The evidence on this point preponderates in favor of the plaintiffs. Mr. and Mrs. Allen run an automobile supply store in the building they rent from Mrs. Adams. Their records show that after the construction of the teller was begun in August, 1954, their volume of sales declined as compared to the corresponding months of the year before. The Allens increased their advertising and began selling television sets in an unsuccessful effort to improve their sales. They both testify that if the curb teller remains they will be forced to find a new location unless their rent is reduced.

M. C. Elliott, who was formerly Mrs. Adams’ tenant in the store next to the Allens, has already moved to a new location. Elliott’s dry goods business declined when work began on the teller. He countered by expanding his piece-goods department, but that was the only one of his five departments that did not show a loss as compared to the preceding year. After the curb teller was installed Elliott abandoned negotiations for a renewal of his lease with Mrs. Adams and moved elsewhere, at an estimated expense of $3,500. There were admittedly other factors that influenced his decision, but there is no reason to donbt his assertion that the presence of the teller was “a prime reason” for his departure.

It is admitted by all the informed witnesses that the rental value of a retail store site is directly related to the volume of pedestrian traffic passing by the premises. Both the Allens testify that such traffic has fallen off noticeably since the construction of the teller; people prefer to walk on the other side of the street. This view is strongly confirmed by the photographs in the record. The teller and its roof have reduced the sidewalk to what is in substance a tunnel five feet in width. When couples coming from opposite directions meet in this narrow lane they must pass in single file instead of abreast. The chancellor regarded this testimony as conjectural and suggested that a traffic count would be needed to prove the exact volume of foot traffic. The trouble is that such a count would be useless in the absence of a similar enumeration taken before the teller was built. The Allens’ observations were competent testimony, and they should not be penalized for their failure to obtain more precise proof before a cause of action was known to exist.

We need not detail all the evidence offered by the appellants. Two expert witnesses testified that the teller has depreciated the value of Mrs. Adams’ property by a fourth; similar witnesses for the defense thought the value to be unaffected. There is some slight evidence that the teller obstructs the passage of light and air and tends to obscure the view of the Allens’ window displays. Another grievance is that street space formerly used as a bus-stop is now reserved for the bank’s vehicular customers.

The appellee’s proof falls decidedly short of overcoming the persuasive case made by the plaintiffs. The evidence of reduced pedestrian traffic is practically un-contradicted. Much of the defendant’s testimony is devoted to showing that in 1954 there was a general decline in business conditions in Arkadelphia, as the result of a drought and of the completion of a large construction project in the vicinity. It is doubtless true that depressed business conditions contributed to the predicament of Mrs. Adams’ tenants, but the evidence indicates that the existence of the curb teller was also a definite factor.

By the nature of the case it is impossible either to prove or to disprove the extent of the appellants’ damage with mathematical exactness. That, however, is not the basic issue; the question is whether the appellants have suffered an injury not shared by the general public. It is of course not contended that the obstruction of more than half the sidewalk in a business district is beneficial to neighboring retailers. In view of the proof that the pedestrian traffic has declined, that real estate values have been adversely affected, that the volume of sales has decreased, that Mrs. Adams has already lost one tenant and risks the loss of another, we cannot conscientiously say that the appellants have been no more affected than anyone else by the appellee’s use of the public sidewalk for private profit.

On the cross appeal the appellee contends that the proof does not support the chancellor’s finding of fact that the Allens were pecuniarily damaged by the almost complete obstruction of the sidewalk during the months that the teller was being built. We do not think the chancellor’s conclusion on this issue of fact to be against the weight of the evidence.

Reversed on direct appeal and remanded for the entry of a decree requiring the removal of the curb teller; affirmed on cross appeal.


author: George Rose Smith, J.

text:
    Spikes v. Hibbard.
    5-839
    288 S. W. 2d 38
    Opinion delivered March 19, 1956.

      R. G. Waldron, Jack Holt and John F. Park, for appellant.

      James A. Rohh, for appellee.
   George Rose Smith, J.

Upon the reversal of the trial court’s decree in this case the costs were assessed against the appellees pursuant to the usual practice under Supreme Court Rule 24 (b). The appellees have filed a motion to retax the costs, contending that the appellants needlessly enlarged the record by designating for inclusion therein all the testimony taken below. The motion presents, as a matter of first impression, a point involving Act 555 of 1953.

That statute reads in part: “Section 12. Record to he Abbreviated. All matters not essential to the decision of the questions presented by the appeal shall be omitted . . . For any infraction of this rule . . . the appellate court may withhold or impose costs as the circumstances of the case and discouragement of like conduct in the future may require.” Ark. Stats. 1947, § 27-2127.6. In revising our rules in 1954 we stated in Rule 24 (e) that “the court will impose or withhold costs in accordance with Section 12 of Act 555 of 1953.”

In the case at bar the appellants designated for inclusion in the record not only the pleadings and decree but also “all tlie evidence, exhibits and proceedings” in the trial court. As a result of this designation the record contains 138 typewritten pages of transcribed testimony and exhibits. None of this testimony was abstracted in either brief, for the appellants’ statement of the case narrowed the issue to a jurisdictional question raised by demurrer to the amended complaint. This court’s decision was reached without reference to the testimony, which comprises more than three fourths of the record.

The appellants were right in not abstracting the testimony, as Buie 9 (d) requires that the abstract be limited to those matters that are necessary to an understanding of the questions presented to this court for decision. But the issue raised by the motion to retax the costs is whether the testimony should have been in the record at all. We think its inclusion was contrary to the purpose of § 12 of Act 555. It is the clear intention of that section to reduce the expense of litigation by encouraging the omission of matter irrelevant to the questions presented by the appeal. Doubtless there are situations in which there may fairly be a difference of opinion as to whether certain proceedings should be designated for inclusion in the record. But in this case the appellants in effect admitted by their opening statement that the transcribed testimony had no bearing upon the issues brought up for review. In these circumstances the statute contemplates that the appellees will be relieved from liability for the expense attributable to the unnecessary portions of the record. The motion to retax the costs is granted, the appellants to bear the cost of the reporter’s transcription of the testimony.

Holt, J., not participating.


author: Paul Wakd, Associate Justice. Ed. F. McFaddiN, Associate Justice

text:
    Rudolph v. Mundy.
    5-883
    288 S. W. 2d 602
    Opinion delivered March 19, 1956.

      Wacle & McAllister, for appellant.

      Rex W. Perkins, E. J. Ball, Price Dickson and W. B. Putman, for appellee.
   Paul Wakd, Associate Justice.

On April 23, 1954 an accident involving three automobiles occurred on Highway No. 16 a short distance west of the city limits of Fayetteville, Arkansas. Joe Mnndy was driving his automobile east along said highway, and he had in the automobile with him La Wana Mundy, Betty Ann Mundy, and Rodney Mundy, a minor. Mrs. Marjory Holt Rudolph was driving her husband’s automobile west on said highway, and just behind her, going in the same direction, was an automobile in which Mrs. Florence D. Cassidy was riding. When Mrs. Rudolph had reached a point on the highway where her home was situated just south of the highway, she [allegedly] carelessly and without giving any warning turned her car to the left in order to enter the driveway to her home. At this instant the automobile driven by Joe Mundy struck Mrs. Rudolph’s automobile and then struck the automobile in which Mrs. Cassidy was riding. There is no contention by any one that Mrs. Cassidy was guilty of any negligence.

As a result of the collision Mrs. Cassidy was severely injured, Joe Mundy and the above named occupants of his car were injured, Mrs. Rudolph received a shock, and all three of the automobiles were damaged. Three separate and distinct suits were filed and docketed as set out below.

Suit No. 2362. Joe Mundy filed suit against E. L. Rudolph and Marjory Holt Rudolph alleging negligence on the part of Marjory Holt Rudolph [driver of the automobile] in making a left turn across the highway without giving any signal and prayed for $1,250 damage to his automobile and for $2,500 for injury to himself. The Rudolphs entered a general denial and pleaded contributory negligence on the part of Joe Mundy. They also filed a cross-complaint against Joe Mundy alleging that he was negligent in driving at an excessive rate of speed and in failing to yield the right of way and that the automobile in which they were riding, belonging to Mr. Rudolph, was thereby damaged to the extent of $500. A jury verdict resulted in a judgment against Mrs. Rudolph in favor of Joe Mundy in the amount of $2,500. The jury failed to return any verdict in favor of Mrs. Rudolph.

Suit No. 2364. La Wana Mundy, Betty Ann Mundy and Rodney Mundy, a minor by next of friend, who were riding in the automobile with Mr. Joe Mundy at the time of the accident, filed suit against Mr. and Mrs. Rudolph making substantially the same allegations of negligence on the part of Mrs. Rudolph, asking for damages for injuries to the first two occupants in the amount of $2,500 and $1,000 for the minor. The Rudolphs made the same denial and plea of contributory negligence and filed the same cross-complaint as in the above case with the exception that they alleged that Joe Mundy and the other occupants of his car were on a joint mission. The jury returned a verdict against Mrs. Rudolph in favor of the minor in the sum of $100 and for $250 in favor of each of the other two, and rendered no judgment in favor of Mrs. Rudolph on her cross-complaint.

Suit No. 2418. Mrs. Florence D. Cassidy filed suit against Mrs. Rudolph setting forth the alleged acts of negligence on the part of Mrs. Rudolph, praying for damages for personal injuries in the amount of $50,000. To the above complaint Mrs. Rudolph entered a general denial, pleaded contributory negligence on the part of Mrs. Cassidy [this allegation of contributory negligence was later abandoned], and filed a cross-complaint. In this cross-complaint Mrs. Rudolph alleged that Joe Mun-dy’s negligence caused or contributed to the accident, alleging that she received injuries in the nature of a shock as a result thereof, asking that Joe Mundy be made a party defendant, and prayed for judgment against Joe Mundy in the sum of $500. On this cross-complaint summons was issued and served on Joe Mundy. On April 19, 1955 Joe Mundy filed an answer to the above cross-complaint containing a general denial of negligence and stated that the collision was the result of the negligence of Mrs. Rudolph, asking that the said cross-complaint be dismissed.

On June 25, 1955 Mrs. Rudolph filed an “Amended Answer and Cross-Complaint,” denying the allegations of negligence, pleading contributory negligence, and by way of amended cross-complaint against Joe Mnndy alleged in substance; the injuries sustained by the plaintiff, Mrs. Cassidy, were solely caused by the reason of the negligence of Joe Mundy in the operation of his automobile at the time of the collision [setting out several alleged acts of negligence on the part of Joe Mundy], and that in the event Mrs. Cassidy should recover any judgment against her [Mrs. Rudolph] because of the alleged injuries, then and in that event, Mrs. Rudolph will be entitled to judgment against Joe Mundy for contribution to the amount of one-half the amount of damages and costs that might be awarded to Mrs. Cassidy. The trial court, in effect, refused to allow Mrs. Rudolph to present her claim for contribution against Joe Mundy under the above amended cross-complaint. A jury returned a verdict against Mrs. Rudolph in the amount of $30,000, and made no allowance to Mrs. Rudolph on her claim against Joe Mundy for the shock which she is alleged to have received.

The above mentioned three suits were consolidated for the purpose of trial.

Appellant, Mrs. Rudolph, makes two principal contentions on this appeal, viz: (a) The judgment of the lower court should be reversed because she was not allowed to prosecute her claim against Joe Mundy for contribution, and (b) The judgments rendered against her are excessive.

(a) In support of her right to present her claim against Joe Mundy for contribution in this action, appellant relies on the provisions of Act 315 of 1941. Section 7(1) of said act provides that when a defendant, such as Mrs. Rudolph here, desires to have contribution against a joint tort-feasor who is not a party to the suit he must have a summons issued for and served on the joint tort-feasor. It is admitted here that no such summons was issued or served on Joe Mundy after Mrs. Rudolph filed her cross-complaint in Suit No. 2418 against Joe Mundy.

It is contended however by appellant that under the facts of this case it was not necessary to have a summons issued and served on Joe Mundy. The reason for this, says appellant, is that, as stated above, Mrs. Rudolph had theretofore filed a cross-complaint against Joe Mundy to recover injuries for the shock she received and had caused a summons to be issued and served on Joe Mundy, and Joe Mundy had entered his appearance and filed an answer to that cross-complaint. Therefore, appellant says, since Joe Mundy was already made a party to Suit No. 2418 and had entered his appearance, it was not necessary that service should be again issued against him in connection with the cross-complaint asking for contribution.

We cannot agree that this case must be reversed for the reason above assigned. In the first place, the right of Mrs. Rudolph to have contribution against Joe Mundy in this action under the provisions of said Act 315 is a permissive right and it does not exclude her right to seek contribution in a separate suit if she so desires. We think this interpretation of the Act is clear from the wording of the Act itself. The first sentence in Section 7(1) says that a defendant “may move. . . for leave” to file a complaint upon a joint tort-feasor not a party to the action in order to effect contribution. The first words in the sentence that follows begin with “If the motion is granted and the summons and complaint are served . . .” the joint tort-feasor shall make a defense, etc. Prom this language we conclude that Act 315 meant to give the trial court a certain measure of discretion in allowing or disallowing the kind of procedure appellant seeks here to invoke. The trial court in this instance was invested with that discretion even though it be conceded for the purpose of this opinion that no further service on Joe Mundy was necessary in this case.

Nor can we say that the trial court abused its discretion in refusing to allow Mrs. Rudolph to prosecute her claim in this particular case for contribution against Joe Mundy. As noted above, three separate suits had been consolidated for trial, and the question which appellant raises here was not brought to the attention of the trial court until the attorneys were making their opening statements in the cases. Since the trials were already under way and since appellant had not previously sought the court’s permission to have Joe Mundy made a pai'ty to case No. 2418, we feel that the court was justified in ruling as it did, and especially so since appellant lost no substantive right by the adverse ruling.

Subsection (1) of Section 7 of said Act 315 is distinguished from subsection (3) of said Section as it applies to this case. Under the latter subsection, if Joe Mundy had been made a party defendant by Mrs. Cassi-dy, then Mrs. Rudolph would have been compelled to prosecute her claim for contribution in Suit No. 2418 or she would have lost it.

We cannot agree with appellees’ contention that, as a matter of law, Mrs. Rudolph’s right to ask for contribution against Joe Mundy was cut off by the verdicts of the jury in the several consolidated cases. It is true that in case No. 2362 Mrs. Rudolph pleaded contributory negligence on the part of Joe Mundy and that the jury rendered a verdict in favor of Mundy. It is also true that such a verdict can be explained only on the assumption that the jury found no negligence on the part of Joe Mundy. However we cannot say, as a matter of law, that this finding precludes a finding by the jury that Joe Mundy’s negligence might have caused or contributed to the injuries received by Mrs. Cassidy. It Is not illogical to say that Joe Mundy was guilty of no negligence in colliding with Mrs. Rudolph’s automobile but might have been negligent in colliding with the automobile in which Mrs. Cassidy was riding, or at least in injuring Mrs. Cassidy to the extent that she was injured. Mrs. Rudolph alleges that Joe Mundy negligently failed to maintain proper brakes on his automobile; that he negligently failed to apply said brakes when he should have done so; that Joe Mundy was driving in a thickly populated residential section at an unlawful, excessive, and highly dangerous rate of speed under the conditions then existing — 65 miles per hour; that he negligently failed to keep a proper lookout for other automobiles, and; that Joe Mundy negligently failed to use ordinary care to keep his automobile under proper control. It appears to us that a jury would not necessarily be inconsistent in finding that Joe Mundy’s negligence caused or contributed to the injuries [or the extent thereof] suffered by Mrs. Cassidy and at the same time find that Mrs. Rudolph’s negligence [in turning suddenly across the highway in front of Joe Mundy] was the sole and proximate cause of Joe Mundy’s injuries and that his negligence in no way contributed to his collision with Mrs. Rudolph’s car. Not only so but this court has held that in such instances a jury’s verdict need not be consistent. In the case of Brown v. Parker, 217 Ark. 700, 233 S. W. 2d 64, three automobiles were involved in an accident. In a suit by automobile No. 1 against automobile No. 2, in which No. 2 pleaded contributory negligence, the jury rendered a verdict for No. 1. Then automobile No. 3 sued and recovered judgment against both automobile No. 1 and automobile No. 2. On appeal to this court appellant insisted that the jury’s verdict was inconsistent, and this court said: “The answer to this argument must be that the law imposes no requirement of consistency upon jurors hearing separate cases which are consolidated for purposes of trial. If such separate cases were being tried separately, by different juries, there would be no assurance of consistency in the verdicts, and no greater assurance of consistency is insisted upon when one jury tries both cases together.”

(b) It is earnestly insisted by appellant that the jury’s verdict in the amount of $30,000 in favor of Mrs. Cassidy is excessive and should be reduced by this court. Mrs. Cassidy was 54 years of age when she was injured. She was confined in a hospital as a bed patient for a period of 56 days, at the end of which time she was able to walk on crutches. The hospital bill amounted to $1,-132.15 and her doctor bills amounted to $922, not counting smaller amounts for anesthetic, ambulance and drugs. Since leaving the hospital she has expended approximately $12.50 each month for drugs. Her life expectancy was 18.48 years at the time of the collision.

She suffered a compound fracture of the right femur and a fracture of the left knee, and she suffered cuts and bruises about her face, forehead and body. The testimony shows that bone fragments were in the knee joints and wrist, resulting in arthritis in the joints. It is further shown that she suffered much pain. It was necessary to place a nail through the tibia of the right leg to which a 20 pound weight was attached for most of the time she was in the hospital. It was necessary for Mrs. Cassidy to return to the hospital the second time for a period of 9 days for the purpose of removing the bone fragments from her right knee, resulting in the knee becoming enlarged and stiff. Medical testimony indicated that Mrs. Cassidy had approximately 50% partial permanent disability to the right knee, 5% partial permanent disability to the left knee, and 21% partial permanent disability to the body as a whole. It is possible that her healing period has ended and medical testimony indicates that she may improve or may get worse.

It is never possible in this kind of a case for any one to say with complete satisfaction to what extent compensation should be allowed. In this instance the jury heard all the testimony and had ample opportunity to observe Mrs. Cassidy, and we cannot confidently say that the judgment is excessive. As was said in the case of Coca-Cola Bottling Co. of Arkansas v. Adcox, 189 Ark. 610, 74 S. W. 2d 771, a claimant “is not limited in his recovery to specific pecuniary losses as to which there is direct proof, and it is obvious that certain of the results of a personal injury are unsusceptible of pecuniary admeasurement, from which it follows that in this class of cases the amount of the award rests largely within the discretion of the jury . . .” We also said in Arkansas Motor Coaches, Ltd. v. Williams, 196 Ark. 48, 116 S. W. 2d 585, that: “There is no rule by which we can measure damages for pain and suffering.”

In connection with, tlie contention that the jury’s verdict was excessive, appellant says that certain testimony regarding Mrs. Cassidy’s earning capacity was improperly introduced. We do not think the record supports appellant’s contention in this matter. After Mrs. Cassidy had testified that she had a top rating with the Soil Conservation Service as senior secretary, she was asked if she had recently had an offer from that agency. Appellant objected to this question on the ground that it was self serving. Mrs. Cassidy then stated she had a letter from her immediate boss offering her a job. Appellant objected on the ground that the letter was the best evidence. Following this the letter was offered in evidence and marked Exhibit 6, though it does not appear in the record. This was not a self serving declaration on the part of Mrs. Cassidy and her testimony was properly introduced.

In addition to the above appellant contends that it was error for the trial court to refuse her request for a special verdict. We do not agree with this contention.

Just before the jury was ready to retire appellant presented to the court a special verdict. This special verdict called for the jury to answer 25 specific questions. The trial judge, in refusing to submit these questions to the jury, made this statement: “The jury is ready to retire now and we don’t have time to go over them.” Under the circumstances and under the statute providing for special verdicts we cannot say the court abused its discretion. Special verdicts are provided for by Act 336 of 1953. Section 2 of the Act states: “A court may require a jury in a civil action to return only a special verdict in the form of a special written finding upon each issue of fact.” In the same section it is provided that: ‘ ‘ The court shall give to the jury such explanation and instruction concerning the matter thus submitted as may be necessary to enable the jury to make its findings upon each issue.” In the case of Robertson v. Universal C. I. T. Credit Corp., 224 Ark. 293, 272 S. W. 2d 825, this court, in applying the above mentioned Act, stated: ‘ ‘ The Act 336 still leaves discretion to the Trial Judge as to whether to submit the case to the Jury on a general verdict or on a special verdict or interrogatories. ’ ’

Affirmed.

Justices McFaddin and RobiNsoN concur.

Chief Justice Seamster not participating.

Ed. F. McFaddiN, Associate Justice

(concurring). I concur in the result reached in this case; but I cannot and do not agree with some of the language contained in the majority opinion. To me it seems clear that Mrs. Rudolph’s right to ask for contribution against Joe Mundy has been cut off by the verdicts of the Jury in the several consolidated cases; and, that being so, I think it is unnecessary for the opinion to contain any discussion about Mrs. Rudolph’s right to still ask contribution against Mundy in a separate suit if she so desires.

This latter point — “contribution in a separate suit if she so desires” — is a most dangerous doctrine. Our Statute on joinder and consolidation of actions contemplates that all possible causes of action growing out of the affair in controversy, and all possible defenses, should be asserted in one suit. In this case Mrs. Rudolph cross-complained against Mundy and brought him into this action. With him in the case on her cross-complaint, the burden was on her to assert her claim for contribution as well as all other claims arising from this collision. The majority opinion, in saying that Mrs. Rudolph may still “seek contribution in a separate suit if she so desires,” is entirely at variance with the spirit of our Statute (§ 27-1301, Ark. Stats.).

But, notwithstanding all of the above, I concur with the result reached in this case because it is my considered opinion that the verdict of the Jury forecloses any claim of contribution by Mrs. Rudolph against Mundy. The majority opinion takes the allegations in Mrs. Rudolph’s pleadings as evidence and from such builds a hypothetical case that Mundy was driving in a thickly populated residential district at 65 miles an hour. I find no evidence to support all this hypothetical theory, and evidently the Jury also took a different viewpoint of the matter, when the verdict said that Mrs. Rudolph was not entitled to any judgment against Mundy. When the Jury found that Mrs. Rudolph was not entitled to a judgment against Mundy, then certainly the Jury found that Mrs. Rudolph was not entitled to any contribution against Mundy.

Finally, let it be remembered that this case arose prior to our new Comparative Negligence Statute.