text:
    Swagger v. State.
    4879
    305 S. W. 2d 682
    Opinion delivered October 14, 1957.

      George Hoivard, Jr., for appellant.

      Bruce Bennett, Attorney General, and Thorp Thomas, Assistant Attorney General, for appellee.
   J. SeaborN Holt, Associate Justice.

March. 17, 1957, a jury found appellant, Eugene Swagger, guilty of the crime of assault with intent to kill [§ 41-606, Ark. Stats. 1957] and fixed his punishment at a term of 21 years in the state penitentiary. Prom the judgment is this appeal.

For reversal appellant relies on the following points: 1 and 2: The court erred in permitting the introduction in evidence the alleged oral and written confessions of the defendant. “3. The court erred in refusing to permit the defendant to pursue further the cross-examination of witness Pink Booher as to his general reputation and conduct. 4. The court erred in refusing to grant defendant permission to examine the jurors as to their intelligence of a newspaper article and radio reports of the first day’s proceeding of trial and giving a history of the case, and further erred in not granting a mistrial. (5). The court erred in refusing to give written Instruction Number 3 requested by the defendant.”

1 and 2

In these assignments appellant contends that the trial court erred in admitting his oral and written confessions in evidence, which confessions, he says, are substantially the same. We do not agree that there was error. The written confession contained these recitals: ‘‘Statement of Eugene Swagger taken at the Jefferson County Jail, Pine Bluff, Arkansas, April 14, 1956, by Deputy Sheriff, Robert Henslee and Buck Oliger. My name is Eugene Swagger, I am nineteen years old. I live with my grandmother, Lula G-ully, on Mr. Claud Bost’s farm. Last year I worked for Mr. Cady around the house cleaning the yard and house. I bought a car from Mr. Wooley but Mr. Cady told me that he did not want me to have it, for it would keep me from my work. One morning Mr. Wooley came after the car and took it away. I stayed around the farm a short time and left. I came to Pine Bluff and worked for a short time. My grandmother moved with Mr. Bost after this so I went to stay with her.

“I had been worrying about the car, so last Wednesday, April 11th I had decided to go to Mr. Cady’s and shoot him. I had a 12 gauge single barrel shotgun, so I hid it under the barn away from my grandmother. I wrapped a sack around it and left the house about 5:30 p.m., Friday April 13th, and walked to Joe Boundrant’s store on Highway 79. I hid the gun and stayed around the store until dark, then I picked the gun up and walked up the roads and back way, to Mr. Cady’s house. When I got there he and Mrs. Cady was watching television in the front room. I pulled my shoes off and waited for sometime but the room was dark and I couldn’t see Mr. Cady so well. I went to the south side of the house and got a ladder, and then went to the north side of the house to the room where Mrs. Cady stayed. I cut the screen on the window and raised it. I planned to go in the house and hide until he went to bed and shoot him, but I decided that would not work. I climbed up the ladder but did not go in. I went back around the house to where Mr. Cady slept and waited for him. After while be came in the room and went to his desk then he cut the light out and went to the bed. I waited for sometime and he got up and turned the light on and walked to the desk again, and when he got through he turned around toward the bed. I was standing outside the window near his bod so I shot him through the window. I turned around and run down the road and across the field. I stopped and put on my shoes and walked on down the road and through the fields to my home. I carried the gun to my house and hid it under the crib at the back of the house. I went in the house and went to bed. I put the shoes I was wearing in the kitchen and did not put them on again. My trousers was wet from the dew but when I got up the next morning I put them back on and was wearing them when I was arrested.

‘ ‘ This is all I know about the shooting of Mr. Cady, and the reason I shot him was because he did not want me to keep the car. I have not been mistreated by the officers in any way. They have not promised me anything to make this statement but I want to tell all about the planning and shooting of Mr. Cady at his house on the night of April 13, 1956. This was my way of getting even with Mr. Cady for not letting me keep the car.

/s/ Eugene Swagger. ”

“Witness:

/s/ Robert Henslee

/s/ Buck Oliger.”

As a result of the shooting Mr. Cady was wounded in the left side of his face and body and lost the sight of his left eye.

This court has many times held that confessions to be admissible in evidence must be freely and voluntarily made without hope of reward or fear of punishment. See McClellan v. State, 203 Ark. 386, 156 S. W. 2d 800. Swagger testified that his confessions were not freely and voluntarily made, but were in effect forced from him by the arresting officer, Pink Booher, by threats and intimidation and that Booher threatened to strike him with a flashlight. Booher and other State Witnesses stoutly denied that any threats or force was used, but on the contrary that Swagger voluntarily and freely made the confession. In these circumstances the court in chambers and beyond the hearing of the jury heard the evidence relating to the substance and voluntariness of the confessions and then submitted the question, whether they had been freely and voluntarily made, nnder the following proper instruction. “Instruction 21 — Before a confession of a defendant can be considered by you as evidence in the case you must believe from the testimony that it was freely and voluntarily made, without any threat or fear of punishment and without any promise or hope of reward. If you believe from the evidence in this case that the confession of the defendant was freely and voluntarily made by him you should consider it along with all the testimony in the case in determining the guilt or innocence of the defendant. If you believe that the confession was not free and voluntary, that it was induced by fear of punishment or promise of reward, you should not consider it for any purpose whatever. ’ ’

In a similar situation we said in McClellan v. State, supra, “This court said in the case of Brown v. State, 198 Ark. 920,132 S. W. 2d 15: ‘In many instances, where the accused is confronted with a confession which he cannot deny having made, he insists that it was not freely and voluntarily made. But that insistence does not render the confession inadmissible, where there is testimony to the effect that it was in fact, freely and voluntarily made. In such cases the practice approved by us, which was followed in the instant case, is for the court to hear the testimony in the absence of the jury as to the circumstances under which the confession was given, and if there is a substantial question as to whether it was freely and voluntarily made, to submit that question of fact to the jury, after admonishing the jury to disregard the confession unless it was found to have been voluntarily made. ’

“The court strictly followed the above rule in the trial of the present case, and practically all the testimony shows that there were no promises made with reference to this particular case by the prosecuting attorney or anyone else. The trial judge did not pass on the question as to whether the confessions were voluntarily made. He passed on the question of their admissibility alone, and submitted to the jury the question of whether they were voluntarily made. ’ ’ The above rule appears to have been followed here. See also Payne v. State, 226 Ark. 910, 295 S.W. 2d 312.

3.

Appellant next contends that the court erred in denying him the privilege of proving the reputation of the arresting officer, Pink Booher, by specific acts. During direct examination of appellant [in chambers] by his attorney the record reflects the following: “Q. What was the general reputation down there of Mr. Booher? A. Well, I heard them say he whipped up a few folks and shot them if necessary. Q. You were aware of that rumor on that? A. Yes sir, that’s what frightened me. Q. That’s what frightened you at that time? A. Yes sir. Q. Do you know whether or not he ever injured any Negro men or Negro people? The Court: That is going into some other crime. Mr. Howard: Your Honor, what 1 am trying to do is to show that he has a reputation that previously, (interrupted) The Court: You may ask about his reputation. Mr. Howard: To go a little bit further into the reputation of the deputy in that area among, (interrupted) The Court: Let me ask you —you are entitled to ask him if he knows his reputation and if he said yes, you are entitled to ask whether it is good or bad and not go into the specific instances — reputation is what other people say. Mr. Howard: That’s all your Honor.”

We hold that the ruling of the court was correct in the circumstances, and in accord with our holdings to the effect that reputation cannot be proved by specific acts of violence to third persons. We said in Day v. State, 185 Ark. 710, 49 S. W. 2d 380: “The court refused to admit testimony to the effect that the deceased sheriff had killed more than one man in making arrests, but the court admitted testimony concerning the general reputation of deceased as being a violent and impulsive-man. There was no error in this ruling. The reputation of the deceased for violence could not be properly proved by specific acts of violence to third persons. Underhill’s Criminal Evidence (3d ed.), page 724. In the case of Hardgraves v. State, 88 Ark. 261, 114 S. W. 216, it was held (to quote the headnote in that case) that, ‘In a prosecution for murder, it is not competent to show the violent and dangerous character of the deceased by evi-deuce of isolated facts or particular acts of violence. [Other cases cited]. ’ ’

4.

Appellant filed “motion for mistrial” in which he alleged: “(1) That in the afternoon’s edition of the Pine Bluff Commercial, dated Wednesday, March 13, 1957, an article appeared entitled ‘Cady Testifies Eye Blinded by Gun Blast’ stating among other things that the defendant had been recalled from the state penitentiary to stand trial on the charge of assault with intent to kill, and further stating that the defendant had entered a plea of guilty to the charge of assault with intent to kill several months ago and was sentenced to serve 21 years in the penitentiary. That on the same date at 6:30 p.m. and 10:00 p.m. the same information was released by local radio stations during their news cast. (2) The defendant states further that said article in said newspaper and the information released by local radio stations were prejudicial to the interest of the defendant, and the defendant hereby requests permission to examine the jurors individually as to their intelligence of said article in said newspaper and to the information released by local radio stations. Wherefore, defendant prays for a mistrial.”

The record shows that appellant offered no proof of prejudice beyond the recitals in his motion. Where, as here, the trial court exercised its discretion and permitted the jurors to separate, the burden is upon the accused to show that they were improperly influenced by the exposure. It appears that after hearing appellant’s motion in chambers, the court denied it, and after returning to the court room the record reflects the following: ‘ ‘ The Court: Gentlemen of the jury, on yesterday afternoon before we recessed for the night the court admonished you not to read any newspaper articles — I do not believe I admonished you not to listen to radios, but on this morning counsel for defendant files a motion for a mistrial alleging that certain articles with certain historical background were published in the Pine Bluff Commercial and that said statements were made over the radios at 6:30 and 10:00 p.m., and then lie asked permission to examine the jurors individually as to their intelligence of said article in said newspaper and to the information released by local radio stations. That I am not going to permit, but I will ask you gentlemen, as this has been filed, if you, any of you, violated the orders of the court and read and studied these articles that you might have seen in the newspapers? Juror Long: Judge, I did not, and I can’t believe that any other man on this jury would have. The Court: I hear none. All right. Did you listen to the radio? Juror Long: I did not — it wasn’t turned on — or the television. The Court: None of you did? A Juror: I don’t take the paper. I went to bed with a sore back — I don’t know about the rest of them. A Juror: Judge, I believe you can swear us in on it if you want to. The Court: You are sworn in— when you were sworn on this trial you are sworn in. The Court doesn’t think it proper to permit counsel to cross-examine you about this kind of matter during this trial. I believe each and every one of you, if I make no mistake say you did not hear the radio, is that correct? Jurors. That is correct by me. Yes sir, yes sir. The Court: Okay. Just a minute, I believe you all stated that you did not — if you will hold up your hands, all of you that answered the question I have asked. Mr. Reporter, will you please check the hands to see if they are all up ? (Court Reporter’s Note: The hand of each juror is raised.)” We, therefore, hold that no prejudice was shown.

5.

Appellant finally contends that the court erred in refusing to give his requested Instruction No. 3, as follows: “A confession, in order to be admissible or to be considered, must be made voluntarily; that is, without anybody holding out any hope of reward or leniency, or fear of punishment for not doing it. If that is done, it is competent for the jury to consider it and give it such weight as they see fit. You. have a right to consider all the circumstances surrounding the party at the time the confession is made, and give to it such weight as you think proper under all the circumstances.” We think this instruction was fully covered by the court’s Instruction No. 21 supra. It is well established that courts are not required to repeat or multiply instructions, or to say the same thing in effect twice. See Fikes v. Johnson, 220 Ark. 448, 248 S. W. 2d 362, 32 A. L. R. 2d 934.


source: Caselaw Access Project

author: Ed. F. McFaddin, Associate Justice.

license: Public Domain

text:
    Wilson v. Southwest Casualty Ins. Co.
    5-1342
    305 S. W. 2d 677
    Opinion delivered October 14, 1957.

      Cockrill, Limerick & Laser and Jacob Sharp, Jr., for appellant.

      Joe E. Purcell and O. Wendell Hall, Jr., for appellee.
   Ed. F. McFaddin, Associate Justice.

This appeal results from a collision of motor vehicles. Two automobiles were involved in a traffic mishap in Saline County on December 12, 1955. The Pelton car was driven by appel-lee Mrs. Lois Pelton, and was insured by Southwest Casualty Insurance Company (hereinafter called “Southwest”). The Wilson car was driven by appellant, Mr. Williams, and was insured by the State Farm Bureau Casualty Insurance Company (hereinafter called ‘£ State ”). Both cars were damaged and Mrs. Pelton also received personal injuries, in that her knee was lacerated and her abdomen was bruised.

Mrs. Pelton was treated by her physician, Dr. Ashby, of Benton; and on December 29, 1955, he told her that she was on the way to recovery. The same day, Mr. Lindsey, the claims adjuster for State, called on Mr. and Mrs. Pelton and, for $150.00, obtained for Wilson and Williams a full release from Mr. and Mrs. Pelton. For an additional $10.00 Mr. Lindsey obtained the Peltons’ covenant to hold Wilson and Williams harmless from any claim of the Pelton’s minor child, who received a bruised elbow in the mishap. Thus, for $160.00, Mr. Lindsey settled for his company and its insured all personal injury claims of the Peltons; but these releases are now claimed by the Peltons to have been obtained by fraud, as will hereinafter be stated.

Southwest paid $429.82 for the repair of the Pelton car which it had insured, and then filed action against Wilson and Williams for that amount, since State had refused to pay Southwest. Wilson and Williams denied all liability to Southwest, and then cross-complained against Mr. and Mrs. Pelton for $400.00 as the amount of damages inflicted on the Wilson and Williams car in the collision. The Peltons denied all liability; and Mrs. Pelton cross-complained against Wilson and Williams for $32,000.00 for her personal injuries. When Wilson and Williams pleaded the release signed by Mrs. Pelton, she alleged that it had been procured by fraud practiced by the claims adjuster, Lindsey.

The issues thus made were tried to a jury on special interrogatories under our comparative negligence statute (Act No. 191 of 1955). In its answer to the interrogatories, the jury found: (a) that Williams, the driver of the Wilson-Williams car, had been guilty of 75% of the negligence in the collision and that Mrs. Pelton had been guilty of 25% of such negligence; (b) that Southwest had suffered a total damage of $429.82 and the Wilson-Williams car had suffered $400.00 damage; (e) that Mrs. Pelton was not the agent of Mr. Pelton at the time of the collision; (d) that Lindsey, the claims adjuster for Wilson and Williams, practiced fraud in obtaining the release from Mrs. Pelton; (e) that Mrs. Pelton did not ratify the fraud; (f) and that Mrs. Pelton had suffered damages of $2,500.00. After making the mathematical calculations — under the comparative negligence statute —the Court, inter alia, rendered judgment in favor of Mrs. Pelton and against Wilson and Williams for $1,775.00; and they prosecute this appeal. Appellants claim two errors committed by the trial court: (1) the refusal to give a peremptory instruction for appellants; and (2) the giving of appellees’ instruction No. 1. These assignments will be discussed in the order listed.

1. Appellants’ Claim For Instructed Verdict. Under this assignment appellants claim: (a) “There is no substantial evidence to sustain the finding that Lois Pel-ton was induced by fraud to sign the release”; and (b) “Lois Pelton ratified the release and settlement.” We discuss these under two sub-heads.

(a) Fraud in Procurement. Mr. and Mrs. Pelton testified that the claims adjuster, Lindsey, over-reached Mrs. Pelton in the release; that he failed to advise her as to her rights; that he failed to tell her to consult an attorney; and that he obtained the release of her claims for physical injuries for a grossly inadequate consideration. The evidence as to fraud in settling for physical injuries is not sufficient to take the case to the jury; but there is another phase of the testimony, as to fraudulent procurement, that was amply sufficient, in itself, to take the case to the jury. We now discuss it.

Mr. Pelton testified: that before the Peltons executed the release they asked Mr. Lindsey what he was going to do about settling with Southwest; that Mr. Lindsey stated that just as soon as he got the release signed by the Peltons, he would go immediately to Hot Springs and settle with Southwest; and that Lindsey stated that he could not settle with Southwest until he had the release by the Peltons. Mr. Pelton testified to the same effect; and also that the Peltons would not have signed any kind of release unless Mr. Lindsey had assured them that he was going to immediately settle with Southwest. That the Peltons understood, from what Lindsey told them, that a settlement by Lindsey with Southwest would free the Peltons from any litigation, is reflected by Mr. Pelton’s testimony:

“. . . would you have signed that piece of paper for a consideration of $150.00 if you had known they were even thinking about suing you for $400 in two or three weeks Í
“A. No, sir.”

Mr. Lindsey, in denying the testimony of Mr. and Mrs. Pelton, stated that he never settled with Southwest, and that he never intended to settle with Southwest. So, under this testimony, we have Lindsey obtaining a release from Mrs. Pelton, and then Wilson and Williams suing her in this case for $400.00 damages. It seems unreasonable that she would settle her physical injury claim against Wilson and Williams for $150.00 and at the same time leave herself exposed to their damage suit against her for $400.00 (on which claim the jury herein returned a verdict against her for $400.00). If Lindsey had settled with Southwest — as the Peltons claim he promised to do — then Mrs. Pelton understood, from what Lindsey said, that she would not be liable to suit by Wilson and Williams. So, we have testimony by the Peltons that they executed the release because of Lindsey’s fraudulent representation that he would immediately settle with the Peltons’ insurance carrier. A promissory representation may be the basis of fraud in procuring a release if the promissor never intended to fulfill the promise and made it for the purpose of obtaining the release. Pierce v. Sicard, 176 Ark. 511, 3 S. W. 2d 337. On this point, there was a question for the jury.

Furthermore, the cases hold that if the release is obtained by fraud in one respect, then it is voidable in its entirety. In 76 C. J. S. 651, “Pelease,” Sec. 27, the holdings are summarized in this language:

“If a misrepresentation amounting to fraud is made as to any matter embraced in the release the instrument is vitiated as a whole, and not merely as to the matter to which the misrepresentation relates, every portion and clause of a release voidable for fraud in its inception is unenforceable and not binding.”

See also 53 C. J. 1219; 13 C. J. 390; 23 Am. Jur. 946, “Fraud and Deceit,” Sec. 145; Richardson v. Vick, 125 Tenn. 532, 145 S. W. 174; and Newell v. Mayor, 15 N. Y. S. 911.

So, on the reasoning herein stated, we hold that there was sufficient evidence to take the case to the jury on the issue of fraud in the procurement of the release, even though the evidence as to fraud regarding Mrs. Pelton’s physical injuries was insufficient.

(b) Ratification. We quote appellants’ opening-paragraph on this point:

“Even conceding that Lois Pelton was fraudulently induced to sign a release of liability for her personal injuries, and certainly appellants earnestly contend that there is no substantial evidence to justify such a finding, the trial court nevertheless erred in refusing defendants’ request for a directed verdict on Lois Pelton’s cross-complaint because the undisputed evidence compels the conclusion that she ratified the release and settlement and thereby waived any right to avoid the release for fraud. She was certainly under a duty to disaffirm the release after discovering the truth about the misrepresentations which she says Ben Lindsey made.”

In Teare v. Dennis, 222 Ark. 622, 262 S. W. 2d 134, in discussing rules regarding ratification of instruments obtained by fraud, we said: “After the defrauded party with knowledge of the facts has elected to treat the contract as valid, he cannot change his position and assert that it is invalid. ’ ’ So the evidence must be examined to see what Mrs. Pelton did after she learned that Lindsey had not settled with Southwest. She testified that it was not until she was made a party to this case and sued for $400.00 (which was on March 23, 1956) that she learned that Lindsey had not settled with Southwest. If Lindsey had settled with Southwest she would not have been sued. On April 6, 1956, she filed her answer and cross-complaint against Wilson and Williams. So, fourteen days after she said she learned of the alleged fraud in procurement, she definitely disavowed the settlement. Even though Mrs. Pelton might have learned in February that Lindsey had not settled, still she was lulled into security; and according to her testimony she did not ratify the settlement after she learned that Lindsey had not settled with Southwest. There was evidence offered by the appellants tending to show that she should have known earlier and that she had ratified the settlement in other ways. But we are here concerned only with whether the court should have directed a verdict for the appellants on the issue of ratification; and we conclude that the evidence presented a disputed question of fact for the jury on such issue. So the trial court was correct in refusing-appellants’ request for a directed verdict.

II. Appellees’ Instruction No. 1. The said instruction as given by the court read:

“You are instructed that if you find from a preponderance of the evidence in this case that the defendants’ agent did induce Lois Pelton, by fraud to sign the release, then the release would be void and would not prevent a recovery for her in this case. And in that connection, you are instructed that the adequacy or inadequacy of the consideration paid may be considered by you, along with all the other facts and circumstances, in determining the issue of fraud in the procurement of the release.
“You are further instructed that if you find from a preponderance of the evidence in this case that the consideration was ‘grossly’ inadequate, then this, alone, is sufficient for you to find that the defendants’ agent did induce Lois Pelton, by fraud to sign the release.”

Against this instruction, the appellants offered a number of specific objections, only two of which are argued in the briefs in this Court. We mention these now:

The first specific objection is: “. . . that the jury is given no definition of the phrase ‘grossly inadequate’; that there are no elements going to constitute such gross inadequacy set out in any manner in the instruction ; and that it is entirely abstract; . . . ” The second specific objection here argued against the instruction is: “ The instruction does not limit the jury, in their deliberations, to a consideration of the facts as they existed at the time the release was executed. It thus permits the jury to examine the amount of the consideration paid for the release in the light of events that occurred after the release was executed and which were not foreseeable by the parties.”

We hold that the said instruction was fatally defective as against these two specific objections. Without any definition of ‘ ‘ grossly inadequate, ’ ’ and without limiting the inadequacy to the conditions that existed at the time the purported release was executed, the instruction, in effect, told the jury that if Mrs. Pelton settled for an extremely small amount of money, the jury could find that such small settlement was itself sufficient to support the claim of fraud; and that to decide whether the settlement was a small amount of money, the jury could consider all Mrs. Pelton’s injuries that were unknown even to her at the time of the settlement and that came to her attention thereafter In other words, in the light of these two specific objections, to hold an instruction like this one good would be to say that in any case if a person received a very small amount of money and it later developed that the person had considerably more injuries than were then known, the release should be set aside merely because the consideration was small. Absent fraud, over-reaching, undue influence, and mental incapacity, people should be allowed to make the kind of contracts that they desire. If a person wants to settle a personal injury claim for a small amount of money in order to be relieved from other obligations, then he should be free to do so. Likewise, when a person, sui juris, makes a settlement in the light of his then knowledge, he cannot use after-acquired information about his physical condition to increase the claim for a larger amount. So, the instruction was fatally defective as against the two objections.

It is true that in some of our opinions we have used language on this “grossly inadequate” portion of the instruction, which language was lifted out of context and placed in this instruction. One such case is C. R. I. & P. v. Matthews, 185 Ark. 724, 49 S. W. 2d 392. In that case we said that a grossly inadequate consideration for a release could be considered as affecting the question of fraud in procurement; and that if the consideration be grossly inadequate, it was a “circumstance” which, in connection with all the other circumstances might be submitted to the jury; and such gross inadequacy was sufficient to carry the question of fraud or undue influence to the jury; It is one thing to say that a grossly inadequate consideration could carry the case to the jury; but the instruction here involved, in effect, told the jury that, independent of all the facts and circumstances, this matter of grossly inadequate consideration was sufficient to support a verdict. Such is not good law.

Furthermore, the term “grossly inadequate” should have been defined and limited to the facts then in existence and known, and not to subsequently ascertained injuries. In Smith v. Mo. Pac. Trans. Co., 197 Ark. 692, 122 S. W. 2d 176, a release had been executed shortly after the injury and subsequent injuries thereafter developed. The release was held good against the subsequently developed injuries because the release was executed in the light of conditions as they then existed. To the same effect, see Miss. River Fuel Corp. v. Hamilton, 200 Ark. 475, 139 S. W. 2d 404.

We conclude that the plaintiffs’ Instruction No. 1 was fatally defective as against the specific objections offered; and for that reason the judgment is reversed and the cause is remanded.

       Here is a copy of the release: “For the sole consideration of One Hundred Fifty and no/100 Dollars, the receipt and sufficiency whereof is hereby acknowledged, the undersigned hereby releases and forever discharges Lee A. Williams and Ray Wilson, their heirs, executors, administrators, agents and assigns, and all other persons, firms or corporations liable, or who might be claimed to be liable, none of whom admit any liability to the undersigned but all expressly deny any liability, from any and all claims, demands, damages, actions, causes of action or suits of any kind or nature whatsoever, and particularly on account of all injuries, known and unknown, both to person or property, which have resulted or may, in the future, develop from an accident which occurred on or about the twelfth day of December, 1955, at or near Benton, Arkansas. Undersigned hereby declares that the terms of this settlement have been completely read and are fully understood and voluntarily accepted for the purpose of making a full and final compromise adjustment and settlement of any and all claims, disputed or otherwise, on account of the injuries and damages above mentioned. In witness whereof, we have hereunto set our hands and seals this 29th day of December, 1955. (Signed) Lois Pelton, E. L. Pelton.”

       Mr. Pelton, as the owner of the car, was made a nominal plaintiff by Southwest, but he sought no relief.

       The amount was originally alleged to be $550.00, but later reduced by stipulation to $400.00, and the jury returned a verdict against Mrs. Pelton for $400.00, as subsequently to be mentioned.

       It must be remembered that Mrs. Pelton relied on her own views and those of her own physician.


author: Minor W. Millwee, Associate Justice.

text:
    Hickinbotham v. City of Little Rock.
    4885
    305 S. W. 2d 844
    Opinion delivered October 14, 1957.
    [Rehearing denied November 11, 1957.]

      Kenneth Coffelt, for appellant.

      0. D. Longstrelh, Jr., City Attorney, and B. W. Laster, Assistant City Attorney, for appellee.
   Minor W. Millwee, Associate Justice.

This appeal by defendant is from another in a series of convictions for keeping his grocery store open on Sunday in violation of Ordinance No. 10,206 of the City of Little Rock. On the undisputed proof of such violation on the date in question the Circuit Court directed a verdict of guilty and the jury fixed the punishment at a fine of $25.00, the minimum under the ordinance.

Although somewhat weaker from defendant’s standpoint, the proof offered in defense of the charge was similar to that adduced in Taylor v. City of Pine Bluff, 226 Ark. 309, 289 S. W. 2d 679, and Hickinbotham v. State, 227 Ark. 1032, 303 S. W. 2d 565. In those cases, as here, the defendants contended they were being arbitrarily discriminated against in violation of their constitutional rights because certain business establishments other than grocery stores, which sold some items ordinarily carried in grocery stores, were permitted to remain open on Sunday. We held such testimony, or the mere fact that someone else had committed the same offense, insufficient to establish purposeful discrimination in the enforcement of the Sunday law. Those cases are controlling here and the judgment is affirmed.

Robinson, J., dissents.


author: George Bose Smith, J.

text:
    Farm Bureau Mutual Ins. Co. of Ark., Inc. v. Barnes.
    5-1345
    305 S. W. 2d 673
    Opinion delivered October 14, 1957.

      Shaver, Tackett & Jones, for appellant.

      Dennis K. Williams and Van Johnson, for appellee.
   George Bose Smith, J.

This is an action on a fire insurance policy by which the appellant insured the ap-pellee’s house and barn for $1,500. Upon the total destruction of the buildings by fire the policyholder contended that under the valued policy law the insurer was liable for the full amount of the policy without regard to the actual value of the property. Ark. Stats. 1947, § 66-515. In denying complete liability the insurer asserts that the buildings had become personal property by constructive severance from the soil and were therefore not within the scope of the statute in question, which provides that it shall not apply to personal property. The trial court rejected this defense and entered judgment for the plaintiff in the amount of the policy, together with the statutory penalty and an attorney’s fee of $300.

The facts are not in dispute. In May of 1956 the house and barn were owned by Mrs. W. S. Dake and were situated on land belonging to Mrs. Dake’s children. Barnes, who owned other land in the vicinity, bought the buildings from Mrs. Dake for $100, with the understanding that he would have thirty days in which to attempt to purchase the interest of Mrs. Dake’s children and, failing that, an additional thirty days in which to move the structures to his own property. Two days later Barnes insured the buildings with the appellant, whose agent inspected the property and suggested that the house be insured for $1,000 and the barn for $500. The agent was told that Barnes did not own the land and that the house and barn might be moved. When the buildings burned some ten days later they were still on the Dake land, Barnes not having acquired title thereto.

It is true, of course, that as between Barnes and the Dakes the insured property had been constructively severed from the soil and had become personalty. Soule v. First Nat. Bk. of Ft. Smith, 202 Ark. 326, 150 S. W. 2d 204. It does not follow, however, that the buildings must necessarily be treated as personalty for every other purpose known to the law. We have held, for example, that constructively severed timber may still be assessed as land by an improvement district. Lewis v. Delinquent Lands, 182 Ark. 838, 33 S. W. 2d 379. Here, as in the Lewis case, the problem is one of statutory construction.

The legislature undoubtedly had a reason for excluding personal property from the operation of the valued policy law. Why was the distinction made? A sensible and convincing answer to this question was given in Orient Ins. Co. v. Parlin & Orendorff Co., 14 Tex. Civ. App. 512, 38 S. W. 60, where the court was considering substantially the same issue that is now before us. It was pointed out that the legislature was seeking to prevent insurance companies from collecting premiums on a high valuation while paying losses on a low valuation. The court reasoned that the valued policy law was limited to real property because that type of property is of a permanent nature, is readily open to inspection, and is susceptible of a reasonably accurate valuation by the insurer. On the other hand personal property, such as a stock of merchandise, often varies in quantity and in value and may be so scattered and so packaged that the prospective insurer cannot determine its worth by inspection. The court concluded that the statutory exclusion of personal property “has reference to the real character of the property, and not to the title by which it is held. In this sense a dwelling house is not embraced within the meaning of the term ‘personal property.’ To give the statutory term its general signification, the object of the statute will be accomplished; to give its technical legal sense, the evil intended to be remedied will, in part, still prevail, and without any good reason to support it. ’ ’

The view expressed by the Texas court has been adhered to in that state and was adopted in Calnon v. Fidelity-Phenix Fire Ins. Co., 114 Neb. 194, 206 N. W. 765, and in Buffalo Ins. Co. v. Bommarito, 8th Cir., 42 F. 2d 53. The opposite position was taken in Missouri, where it is held that a building constructively severed from the land becomes personal property within the meaning of the valued policy law. Millis v. Scottish Union & Nat. Ins. Co., 95 Mo. App. 211, 68 S. W. 1066. We are convinced that the majority view correctly interprets the legislative intent and should be followed in the case at bar.

Affirmed, the appellee’s attorneys to receive a fee of $100 for their services in this court.


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

text:
    Philyaw v. State.
    4878
    305 S. W. 2d 851
    Opinion delivered October 14, 1957.
    [Rehearing denied November 11, 1957.]

      Geo. F. Edwardes and Dennis K. Williams, for appellant.

      Bruce Bennett, Attorney General, and Thorp Thomas, Assistant Attorney General, for appellee.
   Paul Ward, Associate Justice.

An information was filed against appellant, Derrell Philyaw, charging that he did “wilfully and feloniously have and keep in his possession a certain still and still worm to he used and operated as a distillery for the purpose of making and manufacturing alcoholic, vinous, malt, spirituous and fermented liquors without registering the same with the proper United States Officials as is required by law.”

Appellant was convicted by a jury and sentenced to 3 years in the penitentiary; hence this appeal.

The statute under which appellant was charged is Ark. Stats., § 48-936.1 which reads:

“It shall be unlawful for any person to own, have in possession, or knowingly transport an illicit still or still worm for the unlawful manufacture of intoxicating liquors, and it shall be unlawful for any person, or persons, firms or corporations, to engage in and manufacture spirituous liquors without first having license to manufacture intoxicating liquors from the State of Arkansas and the United States of America.”

We call attention to the fact the above statute anticipates three separate law violations, viz: (a) The possession of an illicit still; (b) The possession of a still worm (both for the unlawful manufacture of intoxicating liquors), and; (c) The manufacture of spirituous liquors without a license from the State of Arkansas and the United States.

The proof in this case shows that appellant violated division (b) of the above statute in that he possessed a still worm for manufacturing spirituous liquors.

Appellant earnestly insists that the case should be reversed, stressing three principal grounds.

One. Appellant says lie was “entitled to know the nature of the charge in order that he might [may] prepare his defense.” He points ont that the information charged him with possessing a still and still worm without registering the same with the proper United States Officials. We cannot believe appellant was in any way misled. The trial court, by instructions 4, 5, and 7, made it plain to appellant that he could be found guilty for possessing only a still toorm for the purpose of manufacturing spirituous liquors. Ark. Stats., § 43-1012, provides that:

“No indictment is insufficient, nor can the trial, judgment, or other proceeding thereon, be affected by any defect which does not tend to the prejudice of the substantial rights of the defendant on the merits.”

In Ragsdale v. State, 222 Ark. 499, 262 S. W. 2d 91, the above quoted statute was cited and the information was sustained, the court stating that ‘ ‘ The evidence produced no element of surprise.” Likewise we think appellant was in no way surprised by the State’s testimony in this case. If appellant was in any way confused by the wording of the information he could have asked for a bill of particulars, but having failed to do so he cannot now complain.

There is no merit in appellant’s contention that the still [found in his possession] was not set up or complete and therefore not subject to registration with the Federal Government. It was not necessary under the statute or the court’s instructions to prove that appellant even had a still.

Two. Appellant complains that the trial court asked the witness and himself improper questions. The record fails to disclose any objections by appellant to any such questions.

Three. Appellant’s objection to the court’s instruction No. 4 on the ground that it failed to describe an illicit still in accordance with the Federal statute, indicates no reversible error. As indicated previously, it was immaterial what kind of a still appellant possessed or whether lie possessed a still at all. The evidence was sufficient to sustain a conviction of possessing a still worm for making spirituous liquors.

We have considered other objections raised in the motion for a new trial, but find in them no reversible error.

Affirmed.

HaReis, C. J., George Rose Smith and RoumsoN, JJ., dissent.

George Rose Smith, J.,

dissenting. If the information had simply charged Philyaw with the possession of an illicit still worm for the unlawful manufacture of intoxicating liquors, then the record would support the conviction for that offense. The majority treat the information as if it read as I have suggested, but it does not so read. In my opinion the information charged a materially different offense, which the State failed to prove and which does not fairly include the distinct crime of merely possessing an illicit still worm.

The majority quote Ark. Stats. 1947, § 48-936.1, which makes it unlawful to possess an illicit still or still worm, and seem to assume that this is the only statute that need be considered. This section is in substance an amendment of § 3, Art. YI, of Act 108 of 1935, and is to be read as if it were part of Act 108. Section 5 of the same article in Act 108 must be read along with § 3 and contains this definition of an illicit still:

“An illicit still or apparatus designed for the unlawful manufacture of intoxicating liquor shall include an outfit or parts of an outfit, commonly used, or intended to be used, in the distillation or manufacture of spirituous, vinous or malt liquors which is not duly registered in the office of a Collector of Internal Revenue for the United States, and the burden of proving that same is so registered shall be on the defendant or defendants under charge.” Ark. Stats., § 48-937.

This information charged Philyaw with possessing a still and still worm without registering them with the proper United States officials. The section disregarded by the majority is actually the only statute that refers to registration of the still with the United States; so this section cannot be ignored in determining what offense was charged by the information. The federal law requires the registration only of stills that have been ‘ ‘ set up, ’ ’ which excludes from the registration requirement an incomplete still which is incapable of operation or a mere part of a still, such as a still worm. 26 U. S. C. A. § 5174; United States v. Cafero, 2d Cir., 55 F. 2d 219; United States v. Moses, 2d Cir., 205 F. 2d 358. Without detailing the evidence it is enough to say that in the case at bar the State failed to prove that Philyaw had in his possession a distilling apparatus sufficiently complete to require its registration under federal law.

It is true, as I stated at the outset, that the State might have charged Philyaw with the mere possession of an illicit still worm, for that conduct is made criminal by Ark. Stats., § 48-936.1. But the State chose instead to charge Philyaw with the unlawful possession of a still and still worm that had not been registered as required by federal laAV. There was of course no reason for the information to mention federal registration unless the intent was to charge the offense defined by Ark. Stats., § 48-937, that of possessing a distilling apparatus sufficiently complete to require such registration.

It seems clear to me that defense counsel, upon reading the information, was justified in believing that his client was accused of having possessed an essentially complete still, of a type subject to federal registration, and that that was the only charge he was expected to defend. I do not understand the majority’s suggestion that counsel should have asked for a bill of particulars. The information was not incomplete or defective. It charged a specific offense, but the accused was convicted of a different offense. If Philyaw had been accused of murder and convicted of robbery, apparently the majority would find no prejudice, for he might have asked for a bill of particulars.

By Instruction No. 7 the court, in my opinion erroneously, told the jury to return a verdict of guilty upon the mere finding that Philyaw had in his possession an illicit still worm. Counsel objected to this instruction in these words: “That Instruction No. 7 instructs the jury that the defendant would be guilty if he had in his possession a still worm, still tube, or still coil used for condensation of vapor. The information did not so charge, but charged possession of a still worm and a still, and this is an instruction upon an offense not included in the information to which the defendant announced ready for trial.” The objection goes to the very error that in my judgment entitles the appellant to a new trial.

Harris, C. J., and RobiNSON, J., join in this dissent.


author: Sam RobissoN, Associate Justice. Oarletok Harris, Chief Justice Ed. E. McFaddiN, Associate Justice

text:
    Jones v. Oz-Ark-Val Poultry Co.
    5-1295
    306 S. W. 2d 111
    Opinion delivered October 14, 1957.
    [Rehearing denied November 18, 1957.]

      Hardin, Barton, Hardin & Garner, for appellant.

      Shaw, Jones & Shaw and Richard Motley, for ap-pellee.
   Sam RobissoN, Associate Justice.

This case involves the right to the use of subterranean waters by adjoining-landowners. Appellant, Paul Jones, and his wife, El-wanda Jones, own a small parcel of land on which they live, near Bloomer, Arkansas, and the appellant, Mrs. Laura Ward, owns and lives on an adjoining small acreage. The appellee, A. T. Crouch Creamery Company, owns land adjacent to the Jones and Ward lands. In the years 1954 and 1955 the appellees drilled water wells on the Crouch property, and the water from these wells was conveyed by a pipe line to chicken processing plants operated by appellee, Oz-Ark-Yal Poultry Company, under a lease agreement with the. Crouch Creamery Company.

Appellants filed this suit, alleging appellees were using subterranean -waters from seven wells they had drilled on the Crouch property, to such an extent that wells used for domestic purposes, located on the adjacent Jones and Ward lands, had been caused to go dry. Appellants asked that appellees be enjoined from using the wells on the Crouch property for processing chickens, and also prayed for damages alleged to have been sustained. The chancellor was of the opinion that the use of water from the wells on the Crouch property for the purpose of processing chickens was not the cause of the failure of the Jones and Ward wells, and, therefore, rendered a decree in favor of the defendants, the appellees here. The Joneses and Mrs. Ward have appealed.

In our opinion, a preponderance of the evidence proves that the use of water on the Crouch property for the purpose of processing chickens caused the Jones and Ward wells to go dry. To sustain the decree, appellees rely largely on the testimony of Mr. James M. Rutledge, a registered engineer, to the effect that there was a severe drouth during the years 1952 to 1955, inclusive, which caused a lowering of the underground water level; that the amount of water taken by appellee was inconsequential; and, furthermore, that the water in the wells on the Crouch property carde from a different source of supply than the water going into the Jones and Ward wells. But this opinion evidence of an expert, regardless of how well qualified he may be, does not carry much weight in the face of positive testimony of existing facts leading to a different conclusion.

Mrs. Ward has lived on her place for more than a quarter of a century; she had an extraordinarily good artesian well; it was sufficient to supply all domestic needs, including the watering of twenty head of cattle, and a surplus ran over the top of the well into a stream. The Joneses bought their property in 1951, and the well thereon furnished an ample supply of water until July, 1954, when the appellees put down two wells on the adjoining Crouch property. After the two wells were completed, appellees proceeded to test them by determining the amount of water the wells would supply within a given time. When water was pumped from the Crouch wells, in making the test, the Jones and Ward wells went dry within two hours from the time the test was started. After the test was completed on the Crouch wells, the well pipes were capped, and no water was used from the Crouch property at that time. Almost immediately, water again returned to the Jones and Ward wells, and they furnished water the same as they had done before the tests were made on the Crouch wells.

In July, 1955, the Crouch wells were put in use in processing chickens and the Jones and Ward wells again went dry. This condition continued until September, 1955, when Jones, whose well was forty-eight feet deep, extended it to a depth of one hundred and fifty feet. He obtained water at that depth until January, 1956. In the meantime, appellee put down five additional wells on the adjoining Crouch property, and the Joneses’ one hundred and fifty-foot well went dry. At the time of the trial, the wells on the Crouch property were not in use, and water had returned to the Jones and Ward wells.

The fact that every time the chicken processing plant put the wells on the Crouch property in use the Jones and Ward wells went dry, and every time the Crouch wells were shut down the Jones and Ward wells again produced water, shows just about as conclusively as it is possible to prove anything by circumstantial evidence that the large amount of water taken from the Crouch wells to process the chickens caused the Jones and Ward wells to go dry. Oz-Ark-Val was processing up to twelve thousand chickens per day; it required two to three gallons of water for each fowl. A well located at the plant in the town of Bloomer was capable of supplying about two-thirds of the water required; but this left a deficiency of several thousand gallons of water per day, to be provided from the Crouch property adjoining the appellants’ land. The underground water was simply not there in sufficient quantity to supply the poultry plant and leave enough for the dometic needs of the Joneses and Mrs. Ward.

As to water rights of riparian owners, this State has adopted the reasonable use rule. Harris v. Brooks, 225 Ark. 436, 283 S. W. 2d 129; Harrell v. City of Conway, 224 Ark. 100, 271 S. W. 2d 924. We see no good reason why the same rule should not apply to a true subterranean stream or to subterranean percolating waters. Text writers have divided subterranean waters into two classifications, namely, percolating waters and underground streams. In 93 C. J. S. 761, it is said:

“In legal consideration, subterranean waters are divided into two classes, namely, percolating waters and underground streams. Flowing subterranean waters consist of waters whose courses are well-defined and reasonably ascertainable and whose existence is not of a temporary or ephemeral character. ‘Percolate,’ in this connection, is a term which may designate any flowage or subsurface water, other than that of a running stream open, visible, and clearly to be traced. The term ‘percolating waters’ includes all waters which pass through the ground beneath the surface of the earth without a definite channel and not shown to he supplied by a definite flowing stream; percolating waters are those which seep, ooze, filter, and otherwise circulate through the subsurface strata without definite, or defined, channels, or in a course that is unknown and not discoverable from surface indications without excavation for that purpose. Percolating waters may be either rain waters which are slowly infiltrating through the soil or they may be waters seeping through the banks or bed of a stream which have so far left the bed and other waters as to have lost their character as part of its flow.
“The general rule, which has been said to be well stated in corpus juris, is that all underground waters are presumed to be percolating, and, to take them out of the rule with respect to such waters, the existence and course of a permanent channel must be clearly shown. A well will be presumed to be from percolating water, in the absence of proof to the contrary.”

The English rule has been that the landowner is entitled to extract from the ground all of the water he could obtain from under his own land. This rule has been adopted by several of the states. See 55 A. L. R. 1390 for list of cases following English rule. On the other hand, about an equal number of states have adopted the rule of reasonable use, known as the American rule, as applied to underground water. Cases so holding are cited in 55 A. L. R. 1398. Several of the states which first adopted the English rule later changed to the American rule.

“At an early day the courts expressed dissatisfaction with the common-law or English rule as to rights in percolating water. In Bassett v. Salisbury Mfg. Co. (1862) 43 N. H. 569, 82 Am. Dec. 179, where the question before the court was in regard to drainage of surface water, the court, in discussing the theory of rights in waters, both surface and subterranean, suggests that the right of a landowner to appropriate percolating water in his own land is limited by the corresponding right of his neighbor, and extends only to a reasonable exercise of such right; or, as said by the court, the rights are correlative. This dictum was approved in Swett v. Cutts (1870) 50 N. H. 439, 9 Am. Rep. 276. The Bassett case appears to be the first case in which the doctrine of correlative rights in percolating waters is mentioned, and it is cited with approval and its doctrine adopted in full in Katz v. Walkinshaw (1902) 141 Cal. 116, 64 L. R. A. 236, 99 Am. St. Rep. 35, 74 Pac. 766, 70 Pac. 663, the first case in which the rule of reasonable use of correlative rights is applied. But even before this, Coleridge, J., dissenting in the case of Chasemore v. Richards (1857) 2 Hurlst. & N. 186, 157 Eng. Reprint, 71, the leading case in England upon the question of rights in percolating waters, expressed the opinion that the rights of adjoining landowners in regard to percolating water in their lands should be governed by the maxim, ‘sic utere tuo ut aliemmi non laedas,’ and not by the rule of absolute ownership applied; and Lord Wensleydale, in the same case before the House of Lords in (1859) 7 H. L. Cas. 349, 11 Eng. Reprint, 140, 1 Eng. Rui. Cas. 729, expressed dissatisfaction Avith the working of the common-law rule.
“Beginning with Katz v. Walkinshaw (Cal.) supra, the courts began to limit or break away from the common-law rule in regard to percolating waters, and apply Avhat they called, variously, the rule of ‘reasonable use,’ the rule of correlative rights, or the American rule.” 55 A. L. R. 1398.

The American rule is Avell stated in Hudson v. Dailey, 156 Cal. 617, 105 Pac. 748:

“Where two or more persons oavu different tracts of land, underlaid by porous material extending to and communicating with them all, Avhich is saturated with water moving with more or less freedom therein, each has a common and correlative right to the use of this water upon his land, to the full extent of his needs, if the supply is sufficient, and to the extent of a reasonable share thereof, if the supply is so scant that the use by one will affect the supply of the others.”

In Restatement of the Law of Torts, Sec. 858, it is said:

“Therefore, each possessor’s rights and privileges with respect to the use of subterranean waters are qualified rather than absolute for the same reasons that each riparian proprietor’s rights and privileges with respect to the use of water in the watercourse or lake are qualified and not absolute. . .

Without a supply of water for domestic needs, appellants’ property becomes wholly unsuitable as a place to live, and it does not appear to have much value for any other purpose. It is unreasonable to permit appellees to use thousands of gallons of water per day for the purpose of processing chickens, not leaving enough water for the domestic needs of the Joneses and Mrs. Ward. In addition to asking that appellees be restrained from taking an unreasonable amount of water from the ground, appellants prayed for damages alleged to have been sustained. As above stated, the Chancellor did not reach the question of damages. On appeal we allow no damages because, in our opinion, the evidence is not sufficient in that regard.

Reversed with directions to enter a decree not inconsistent herewith.

Harris, C. J., and McFaddiN, J., dissent.

Oarletok Harris, Chief Justice

(dissenting). I dissent for the reason that I do not consider the Chancellor’s findings to be against the preponderance of the evidence.

Ed. E. McFaddiN, Associate Justice

(dissenting). I respectfully dissent in this case; and there are three points to be covered in the dissent.

I. The Majority Says That the Chancellor Decided Against the Preponderance .of the Evidence. I think the Chancellor decided according to the preponderance of the evidence; and I think the majority is using faulty logic in arriving at its conclusion. The majority says:

“The fact that every time the chicken processing plant put the wells on the Crouch property in use, the Jones and Ward wells went dry, and every time the Crouch wells were shut down the Jones and Ward wells again produced water, shows just about as conclusively as it is possible to prove anything by circumstantial evidence that the large amount of water taken from the Crouch wells to process the chickens caused the Jones and Ward wells to go dry.”

Now the quoted statement evidently presupposes that the only wells in the vicinity of Bloomer were the Ward well, the Jones well, and the Crouch wells. But the maps and plats introduced in evidence show over sixty wells within two thousand feet of the Ward and Jones wells. Approximately thirty of the sixty wells were ‘ ‘ dry, ’ ’ and about thirty were “wet” or producing. There is no showing whatsoever as to how much water was being taken from each of the thirty wells at the time the Crouch wells were pumping. In other words, for all the evidence in this case shows, some other wells might have been pumping besides the Crouch wells and might have been causing the trouble to the Jones and Ward wells, and also to some of the Crouch wells that went dry.

The defendant’s Exhibit No. 1, introduced by consent, shows the exact location of each well in the community of Bloomer, and which wells are dry and which wells are wet. The defendant’s Exhibit No. 2 shows how near the water level came to the ground level in each well. It is interesting to note some of the other nearby wells not involved in this litigation but shown on the exhibit; the Mikel well 110 feet deep had thirty feet of water, and the Bowen well — immediately adjacent and 109 feet in depth — was dry. Another interesting thing is: that one of the Tuggle wells 90 feet deep was dry, and another one 85 feet deep and immediately adjacent contained 55 feet of water. In short, the underground formation and strata in and around Bloomer was shown to be terribly scrambled to produce such conditions in the water wells.

The foregoing could be developed at length: and a reproduction of the plats would clearly demonstrate the correctness of the testimony of the defendant’s witnesses, Rutledge, Gibson and McConnell, to the effect that the water conditions in the vicinity of Bloomer for the past several years have been influenced by the drouth, rather than by the pumping' of the wells. The Chancellor found that the use of water by the Oz-Ark-Val Poultry Company from the wells on the Crouch property was not the cause of the failure of the Jones and Ward wells. I respectfully submit that the Chancellor was correct and that the majority is in error in holding that the Chancellor’s finding was against the preponderance of the evidence.

II. The Majority, By Judicial Fiat, Adopts the American Theory of “Reasonable Use” Rather Than the Common-law Rule of “ Takers-heepers.” In 56 Am. Jur. 595, “Waters, ’ ’ § 113, the common-law rule is stated:

“According to the doctrine known as the ‘common-law’ or ‘English’ rule, percolating water, as herein defined, is regarded as being as much a part of the freehold through which it courses or percolates as the clays, sand, gravel, and rocks found therein, and the owner, at least in the absence of malice and of any contractual or statutory restriction, has the absolute right to intercept the water before it leaves his premises and makes whatever use of it he pleases, regardless of the effect that such use may have on an adjoining or a lower proprietor through whose land the water, in its natural course, would filtrate, percolate, or flow.”

I think we should follow the common-law rule until the Legislature sees fit to change the common-law rule. It is well known in Arkansas that in the past two sessions of the Legislature, the question of legislation concerning water has been one of the most controversial issues. We have had a great deal of trouble trying to decide surface water cases; and subterranean water cases are far more difficult of decision. Act No. 81 of 1957 affects surface water; yet the majority, by this opinion, is adopting the “reasonable use” rule for percolating waters in advance of any action by the Legislature. I submit that we should follow the common-law until the Legislature prescribes otherwise, because Arkansas is a common-law State.

III. The third reason for my dissent is, that even if the majority adopts the “reasonable use” theory, still there is nothing in the record in this case to show that the poultry company was making an unreasonable use of tlic water. In 56 Am. Jnr. 600, ‘ ‘ Waters, ’ ’ § 117, this is stated:

“As applied in most jurisdictions, however, the rule of reasonable use or correlative rights prevents the withdrawal of percolating waters for distribution or sale for uses not connected with any beneficial ownership or enjoyment of the land whence they are taken, . . .”

It was shown in this case that the poultry company used about 23,000 gallons a day at its peak load in processing the poultry. Mr. McConnell testified that only 5,000 gallons per day of this water came from the Crouch 10-acre property. So the question is, whether 5,000 gallons of water per day from seven wells is an unreasonable amount of water to use. That is less than 1,000 gallons of water per day per well. Mr. Gibson, the man who drilled most of the wells that had been drilled in Bloomer, testified that a fair home well would make 350 gallons per hour, and that a good well would make 900 gallons per hour, or fifteen gallons a minute. The poultry company was using less than 1,000 gallons per well in 24 hours, which is about 40 gallons an hour per well. If a fair home well produces 350 gallons per hour, and the poultry company was only using 40 gallons per hour, then certainly the poultry company "was not making an unreasonable use of water from the wells on the 10-acre tract here involved. Furthermore, the poultry company was talcing this water from its wells to its plant, a distance of approximate! y 2,000 feet. The poultry company was not selling the "water like a municipality or water company; it was using it for its own use. It bought the land; and I submit that there is nothing in this record to show an unreasonable use so as to justify the injunction that the majority is sanctioning.


author: Carleton Harris, Cliief Justice.

text:
    Martin v. Lavender Radio & Supply, Inc.
    5-1347
    305 S. W. 2d 845
    Opinion delivered October 21, 1957.

      LeRoy Autrey, for appellant.

      Conway & Webber, for appellee.
   Carleton Harris, Cliief Justice.

This appeal is rather unusual, in that Howell L. Martin, appellant, who was awarded compensation under the Workmen’s Compensation law, (because of a finding that he was injured in the course of his employment) is endeavoring to establish that he was not injured during the course of his employment, and is accordingly not covered under the Compensation Act. The facts are as follows: Hardware Mutual Casualty Company had issued a workmen’s compensation insurance policy to Lavender Radio and Supply Co., Inc., (hereinafter called Lavender) employer of Martin. The company had also written a non-industrial accident policy covering Lavender’s employees for off-the-job injuries. On December 20, 1955, Martin was employed by Lavender as a purchasing agent, and one of his duties consisted of obtaining the mail from the post office. Martin’s workday commenced at 8 a. m., and it was within Ms discretion either to get the mail on his way to the office or to send some other employee to the post office for the mail after he (Martin) had reported for work. The evidence showed that most of the time, Martin would go to the post office prior to reporting at the employer’s premises, but that on other occasions, when running late, he would report to the place of business first. On the morning in question, appellant had traveled over three miles of the five mile journey to work when he was involved in a collision with another automobile. He was still some distance away from the point where he would turn off the direct route to work in order to go by way of the post office; that is, if going straight to the office, appellant would turn left at 7th and Ash, but if going to the post office, appellant would continue past Ash, and turn left at State Line. Martin was injured in the collision, and the question is, “Under which of the two insurance policies heretofore mentioned was he covered?” The policies are mutually exclusive, so that payment may be made under either policy for an accidental injury, but not both. Under our law, the carrier has a right of sub-rogation against a third party tort feasor for payments made under the workmen’s compensation policy, but has no right of subrogation if payments are made under the group policy. Following appellant’s injury, the insurance carrier commenced payment of benefits under the workmen’s compensation policy, and has paid $442.86 for disability, and $1,488.95 for hospital and medical services. Martin also filed suit against the party with whom he had the collision, and obtained settlement for $10,000, which amount has been placed in escrow.

Appellant petitioned the Workmen’s Compensation Commission for a determination as to whether the injuries received by him were accidental injuries arising out of, and in the course of, his employment. Upon a hearing of the matter, the Commission found ‘ ‘ That on December 20, 1955, claimant herein sustained an accidental injury arising out of and in the course of his employment with respondent employer, Lavender Radio & Supply Co., Inc.; * * V’ On April 2, 1957, the Miller Circuit Court affirmed the finding of the Commission, and from such judgment comes this appeal.

While several points are raised by appellant as grounds for reversal, all relate to the master question, “Were appellant’s injuries sustained in the course of his employment?” As has been well established, if the findings of the Commission are supported by substantial evidence, such findings will not be disturbed on appeal to either the Circuit Court or this Court. Mechanics Lumber Co. v. Roark, 216 Ark. 242, 224 S. W. 2d 806; Pearson v. Faulkner Radio Service Co., 220 Ark. 368, 247 S. W. 2d 964. The evidence upon which the Commission based its finding is set forth in its conclusions.

“ * " In finding that claimant’s accidental injury did arise out of and during the course of his employment, we believe that there is substantial evidence herein to support such a finding, and we point to the following-evidence: It was part of claimant’s job to get the mail from the post office and get it to the employer’s place of business the first thing each workday morning; at least 75 per cent of the time claimant, by his own admission, went by the post office on his way to work and picked up the mail; claimant gave a statement to the insurance carrier’s adjuster within about three weeks after his injury, and according to that statement, which was signed by claimant, claimant was on his way to the post office at the time of his injury; claimant at no time has denied that he was on the way to the post office, but he has merely stated that he did not know whether he was going to the post office that particular morning before reporting to his employer’s place of business, * *

The general rule is, of course, that going to and coming from work is not a part of the job, and accidental injuries occurring during such times are not compensable as arising in the course of employment. Our own cases so hold, though we recognize certain exceptions to this rule, as do other jurisdictions. In the case of Frank Lyon Co. v. Oates, 225 Ark. 682, 284 S. W. 2d 637, this Court listed several exceptions to the “going and coming” rule. Included is an exception which appellee contends applies to the cause before ns, vis., “When the employee has a duty to perform for the employer while en route home.” There is no reason, of course, why the converse would not be true, namely, if the employee has a duty to perform for the employer while en route to the place of employment. While the Lyon case approves this exception in principle, this Court apparently has not previously had the opportunity of applying this concept of law to facts arising within our state.

Both the briefs of appellant and appellee are well written, and cite numerous cases in support of the respective positions of each. As has been pointed out by John Haley in a rather comprehensive article relating to the subject, found in Volume 7, page 423, Arkansas Law Review:

“ * * * In a leading case on the subject, the phrase ‘arising out of and in the course of employment’ has been defined as follows: ‘An injury is received “in the course of” the employment when it comes while the workman is doing the duty which he is employed to perform. It arises out of the employment when there is apparent to the rational mind upon consideration of all the circmnstances a causal connection between the conditions under which the work is required to be performed and the resulting injury. . . . But it excludes an injury which cannot be fairly traced to the employment as a contributing proximate cause and which comes from a hazard to which the workman would have been equally exposed apart from the employment. ... It must be incidental to the character of the business and not independent of the relation of master and servant. It need not have been foreseen or expected, but after the event it must appear to have had its origin in a risk con-nectocl with the employment and to have flowed from that source as a rational consequence.’ But even a cursory examination of the cases construing this Protean phrase which is designed to limit liability under the Workmen’s Compensation Act will reveal endless confusion and contradiction as to the scope of the terms involved. Certainly this bedlam includes the status of employer’s liability to workmen injured while going to or coming from work. And the problem exists in Arkansas. * * * ”

Mr. Haley, however, makes mention of a particular case, which is also mentioned in both the briefs for appellant and appellee, Marks Dependents v. Gray, 251 N. Y. 90, 167 N. E. 181 (1929). The facts, as stated by Chief Justice Cardozo, in that cause, were as follows:

“ * # * Marks was a helper in the service of a plumber. His home and his place of business were at Clifton Springs, N. Y. On April 16, 1927, his wife went to visit relatives at Shortsville, where her husband promised to call for her in the family car at the end of the day’s work. The employer, hearing that he was to make this journey, asked him to take his tools and fix some faucets that were out of order at a dwelling house in Shortsville. The job was a trifling one, calling for fifteen or twenty minutes of work. There would have been nú profit in doing it at the cost of a special trip. It would have been postponed till some other time when it could have been combined with other work, if Marks had not stated that he would make the trip anyhow. He did not use the employer’s truck, the vehicle set apart for travel in the course of business. He used his own or his father’s car, set aside, it would seem, for the convenience of the family. Nothing was said by the employer about paying him for the job. The expectation was, however, that, for any work that he did, he would be paid at the usual rate for labor after working hours. On the way to Shortsville, when only about a mile from Clifton Springs, he was injured in a wreck, and died. * * * ”

In holding that the accident did not arise in the course of employment, Justice Cardozo said:

* * * We think the accident did not arise ‘out of and in the course of’ any service that Marks had been employed to render. Pie was not making the journey to Shortsville at the request of his employer or for the purpose of doing his employer’s work. He was making it in fulfillment of a promise to call for his wife at the end of the day, and bring her home in the family car. If word had come to him before starting that the defective faucets. were in order, he would have made the journey just the same. If word had come, on the other hand, that his wife had already returned, he would not have made the trip at all. The employment did not bring him on the journey or expose him to its risks. If that is so, it .is not ‘out of the employment’ that the injuries arose.
“Unquestionably injury through collision is a risk of travel on a highway. What concerns us here is whether the risks of travel are also risks of the employment. In that view, the decisive test must he whether it is the employment or something else that has sent the traveler forth upon the journey or brought exposure to its perils.
“In such circumstances, we think the perils of the highway were unrelated to the service. We do not say that service to the employer must he the sole cause of the journey, but at least it must he a concurrent cause. =£ # # 7 7

Let us apply this reasoning to the cause at Bar. Granting that the findings of the Commission, heretofore set out, were absolutely correct, (and certainly there was substantial evidence to support such findings) we feel that the facts, as a matter of law, do not support the conclusion that appellant was acting within the scope of his employment. Referring to the italicized sentence in Justice Cardozo’s opinion, it certainly cannot be said in the instant cause that the duty of picking up the mail sent Martin upon the journey. Martin left home to go to work. That was his main objective in getting into his automobile and starting from the honse. Certainly he was not leaving with the intention of picking np the mail and then returning back to the home. His duty to pick up the mail had no part in creating the necessity for travel, until he reached that point in his journey where he would deviate from the route to the office in order to go to the post office. Martin would have made this trip, and would have been in the exact location where the collision occurred, though he had no duty to pick up the mail. It was simply a matter of convenience to get the mail before going to the office. If, on the other hand, for some reason, appellant had not been going to work on this particular day, some other employee ivould have been sent from the office to the post office.

Let it be made clear that we are not saying that an employee, on his way to work, must deviate from the normal route to perform some errand before he would be acting in the course of his employment. For instance, suppose that the post office had been located at a point th.\t appellant would reach before arriving at 7th and As.', —on the same street that Martin traveled each day in going to the office. In such case, Martin would be acting with!-1 the scope of his employment when he drove up and stopp\l at the post office — and not before. Stopping would \ o a deviation from the normal procedure of simply tra\ eling to work.

The reasoning set forth by Justice CaRdozo seems to us to be entirely logical and persuasive, and worthy of adoption. This, then, is the rule that governs this case. “The decisive test must be whether it is the employment or something else that has sent the traveler forth upon the journey or brought exposure to its perils. * * * We do not say that service to the employer must be the sole cause of the journey, bid at least it must be a concurrent cause, * ® * ” and sufficient within itself to occasion the journey.

In accordance therewith, the judgment is reversed, and remanded to the Circuit Court with direction to remand to the Commission for the entry of judgment not inconsistent with this Opinion.

McFaddiN, J., dissents; Millwee, J., concurs.

       Estoppel is not being plead herein; the carrier rests upon the position that payments made were rightly in discharge of Workmen’s Compensation liabilities.

        Penny v. Hudson Dairy, 218 Ark. 594, 237 S. W. 2d 893. Cerrato v. McGeorge Contracting Co., 206 Ark. 1045, 178 S. W. 2d 247.

        Hunter v. Summerville, 205 Ark. 463, 169 S. W. 2d 579. Bales, Administratrix v. Service Chib No. 1, Camp Chaffee, 208 Ark. 692, 187 S. W. 2d 321.

         Subsequently appointed to the United States Supreme Court.

       Emphasis supplied.

       Appellant, in testifying, varied from his previous written statement, in that he testified he did not know, and would not have known whether he would go to the post office until he. reached the point where it would be necessary to deviate from the route to the office.

       Likewise, had word been received that the mail had already been picked up, Martin would still have made the trip to the office.


author: J. SbaborN Holt, Associate Justice.

text:
    American Republic Life Ins. Co. v. Edenfield.
    5-1326
    306 S. W. 2d 321
    Opinion delivered October 21, 1957.
    [Rehearing denied November 25, 1957.]

      Joe Bailey Humphreys, Dallas, Texas, and Talley & Oiven, by Robert L. Rogers, II, for appellant.

      Catlett & Henderson, for appellee.
   J. SbaborN Holt, Associate Justice.

Appellant, American Republic Life Insurance Company, brought this suit to cancel two life insurance policies.

On March 1, 1954, appellant issued to D. S. Eden-field its policy in the amount of $5,000.00, plus a family maintenance rider of $4,225.00 payable to the appellee in the event of his death, for which he paid the premium of $344.60. At the same time, appellant on its own volition, prepared and offered Edenfield another policy in the amount of $5,000.00 payable to appellee, which he accepted and paid the premium of $280.15. This second policy was delivered on April 5, 1954. It appears that Edenfield executed an application for the first policy but none for the second. There was a medical examination of the insured for the first policy but none for the second. Edenfield died November 12, 1955 (within the two year contestable period provided in the policy) and appellee in an effort to collect on the two policies, in apt time, executed and returned to appellant all forms tendered to her. Appellant, as indicated, refused payment and filed this suit to cancel the policies. After admitting issuing the policies to Edenfield, appellant alleged “That at the time of the issuance of said policies and for several years prior thereto, the said Dempsey Stoney Edenfield insured in said policies was suffering from coronary arteriosclerosis.

‘ ‘ That for several years prior to the issuance of said policies the said insured had undergone medical treatment and medical examinations on several occasions for the arteriosclerosis. That the said insured knew at the time of his application for and the issuance of said policies that he was suffering from arteriosclerosis.
“That the said insured fraudulently, willfully, and deliberately represented to the plaintiff that he did not have arteriosclerosis and that he had not undergone any treatment for said disease or condition.
“That the said insured died November 12, 1955, because of the said coronary arteriosclerosis.
“That if the plaintiff had been advised of the existence of the disease it would not have issued the above-named policies to the insured.”

Appellee answered denying any fraud on the part of the insured in securing the policies, and prayed for a decree in the amount of $14,225.00 plus 12 per cent penalty, plus costs and a reasonable attorney’s fee.

Trial resulted in a decree for the appellee, as prayed, and this appeal folloAved.

For reversal, appellant first contends that the insured “Had numerous diseases and illnesses during the period of several years immediately preceding the application for the policy involved herein and his failure to disclose this to the appellant company in the application and medical examiner’s report so that they might investigate and determine what was actually wrong with him and know of his numerous illnesses was more than sufficient reason for the lower court to cancel the policies, and that the court erred in not so holding. ” We do not agree. Appellant stoutly contends that the insured died of heart disease, that he knew he had this disease when the policies were issued to him and as proof it offered in evidence several depositions from various physicians who had examined him prior to the issuance of the policies. The trial court refused to admit in evidence these depositions on appellee’s objection that they were all privileged as being communications between the physician and patient, under § 28-607, Ark. Stats., 1947. We think the court properly excluded these depositions unless the privilege to object was waived on the part of the insured. We said, in Maryland Casualty Company v. Maloney, 119 Ark. 434, 178 S. W. 387: “We have said in some cases that the statute was enacted ‘as a matter of public policy to prevent physicians from disclosing to the world the infirmities of their patients.’ Mutual Life Ins. Co. v. Owen, 111 Ark. 554, 164 S. W. 720. That is undoubtedly a correct statement, but it is not a complete one, for the statute itself relates entirely to introduction of evidence and not to disclosures in any other way; and the mere fact that the world may have the information does not abrogate the right of a party in whose favor the privilege exists to claim protection from disclosure in the trial of rights before a court or jury. Arizona & New Mexico Ry. Co. v. Clark, 235 U. S. 669.

As indicated, these policies were issued following a medical examination by appellant’s own physician for the first policy. This physician’s signed report contains the following:

“18. HEART
(a) Any murmurs? . . . No.
(b) Any enlargement? . . . No.
(c) If any abnormality, what response to exercise, e.g. 50 hops . . .
25. Do you advise the risk without qualification?
Yes.
If not, why not? . .
Mr. Kaltenbach, appellant’s underwriter, testified, ‘‘ If it is a medical policy we rely on what onr physician says about a man. ’ ’

So we have the positive statement of the examining physician that the insured, at the time of the examination, did not have any heart disease and advised the risk without qualification. But appellant argues that all statements on the application and those statements made to the medical examiner as shown on the examiner’s report were warranties and not representations. We do not think so. It appears that neither the policies nor the medical examiner’s report provided that answers given by the applicant, the insured, should be warranties.

The policies of insurance provided, “1. Policy Contract. This policy and the application herefor constitute the entire contract between the parties hereto. All statements made in applying for this policy shall, in the absence of fraud, be deemed representations and not warranties, and no such statement shall avoid the policy unless it is contained in a written application, and a copy of the application is attached hereto when the policy is issued.” “It is well settled that the burden is on appellant to establish fraud by proving affirmatively the falsity, materiality and bad faith in the representations made by the insured in the application regarding his health.” Aetna Life Insurance Co. v. Mahaffy, 215 Ark. 892, 224 S. W. 2d 21.

The application signed by the insured contains this recital, “I declare that the above statements and answers are full, true and complete to the best of my knowledge and belief and shall form a part of the policy.” Statements made to the medical examiner contain a sentence, “I have read and agree that the above statements are true and shall constitute a part of this application,” and the adult life application in this case and the report of the medical examiner contains the following authorization : “To whom it may concern: I hereby request and authorize you to disclose, whenever requested to do so by American Republic Life Insurance Company, or its representative, any and all information and records concerning my condition when under observation by you. ’ ’ The insured answered negatively the following question in the report of the examining physician: “What other physicians have you consulted in the past five years? Why?”, and all other questions relating to any heart ailments and physical or mental impairment. From all the competent evidence we think the preponderance is to the effect that the deceased was justified in believing that he had no heart disease when he was examined by the appellant’s doctor and when he had consulted other physicians to determine whether he had this trouble and that his declarations were representations and not warranties. In U. S. Fidelity & Guaranty Co. v. Maxwell, 152 Ark. 64, 237 S. W. 708, we said, “It has been decided by this court that a mere reference in a policy to the application does not constitute a warranty, even though the application itself contains a statement that the truth of the statements shall constitute a warranty. The reason for this rule is that the policy itself is the last word between the contracting parties and should be the evidence of the extent of the contract” (citing cases).

It appears that the insured’s brother had died of heart trouble and the insured appeared to be obsessed with the fear that he might develop this disease. The competent evidence does not show that these examinations bjr other physicians disclosed more than trivial ailments.

In the case of Southern National Ins. Co. v. Pillow, 206 Ark. 769, 177 S. W. 2d 763, this Court said:

“This Court has often held that questions propounded to applicants for insurance with respect to consultation with and treatment by physicians do not contemplate answers with respect to trivial ailments, and this is true whether the answers constitute warranties or representations.”

While our rule as announced in National Annuity Association v. McCall, 103 Ark. 201, 146 S. W. 125 and cited by appellant is well established to the effect that an insured may, in his written application, waive the right to object to the evidence of a physician relating to information obtained by the physician while attending the insured as a patient, however, we think the cases relied on by appellant in support of this rule are distinguishable from the present case, for in each of those cases the patient appears to have expressly waived his objection to his physician divulging all knowledge gained by his examination of the patient. In the case of Wooten v. Wooten, 176 Ark. 1174, 5 S. W. 2d 340, on which appellant relies, the waiver was as follows: “I further waive for myself and beneficiaries the privileges and benefits of any and all laws which are now in force or may hereafter be enacted in regard to disqualifying any physician from testifying concerning any information obtained by him in a professional capacity.” And in their other case, Adreveno v. Mutual Life Association (CC. E. D. Mo.), 34 F. 870, the waiver, which was a part of the application and made competent the doctor’s testimony, was as follows:

“And the applicant hereby expressly waives any and all provisions of law now existing, or that may hereafter exist, preventing any physician from disclosing any information acquired in attending the applicant in a professional capacity or otherwise, or rendering him incompetent to testify as a witness in any way whatever.” We think it obvious that there is a material difference between the clear authorizations above and relied upon by appellant and the alleged waiver of the insured, Eden-field, which authorized his doctor to disclose information and records concerning.his condition while under his doctor’s supervision. It would have been an easy matter for the insurance company to have used language so clear as to be beyond any doubt as to its meaning as was used in the two cases above, which informed the insured that he was expressly waiving all laws preventing his doctor from testifying and disclosing any information acquired while attending the insured professionally, or that would render him incompetent to testify in any capacity. Any doubts as to the meaning of the language used in a contract must be resolved against the party who prepared it.

Appellant’s contention that the appellee, the insured’s widow, waived the privilege when she executed proof of death is, we think, without merit. The proof of death authorized “any physician, hospital, or other person to give to the Company any information concerning the health or insurability of the Deceased, and hereby specifically waive all grounds of defense or objections based on rights of confidential relationship or privileged communication between Physician or Hospital and Patient.” We hold that the waiver here was limited for the purpose of adjustment and settlement of the claims on the policies and did not extend to the use of such information in a suit on the policies. This authorization was furnished by appellee at appellant’s request as a part of the proof of loss in an effort to obtain a settlement of her claim. We said in a similar situation in the recent case of Metropolitan Life Ins. Co. v. Kendall, 225 Ark. 731, 284 S. W. 2d 863, “In similar circumstances the governing rule has been clearly announced by this Court in Fidelity & Casualty Co. v. Meyer, 106 Ark. 91, 152 S. W. 995, where we said: ‘According to the weight of authority, where a policy of insurance does not itself contain a provision for waiver of the privilege, the introduction in evidence of certificate of death given by a physician of the insured does not waive the provisions of the statute against physicians testifying concerning information received in the course of professional employment . . . But whatever may be the state of the law on that question as established by the authorities, even if the rule be otherwise than as above stated, it cannot be extended to cover a case like this, where the affidavit or certificate of the physician is not furnished pursuant to the requirements of the policy, but merely as a voluntary act in an effort to secure a settlement.’ ”

Finding no error, the decree is affirmed.