author:
Paul Ward, Associate Justice.
      Sam Robinson, Associate Justice,

text:
    Poole v. State.
    5023
    353 S. W. 2d 359
    Opinion delivered February 5, 1962.

      Harold Sharpe, for appellant.

      Frank Holt, Attorney General, by Thorp Thomas, Asst. Attorney General, for appellee.
   Paul Ward, Associate Justice.

Appellant, L. C. Poole (a colored man), was convicted on a charge of assault with intent to rape a fourteen year old white girl and sentenced to serve the minimum term of three years in the penitentiary. On appeal appellant urges two points for a reversal, viz.: (1) Insufficiency of the evidence, and (2) the court’s refusal to give a certain instruction requested by him.

1. This point will be considered under two subheads, viz.: (a) Insufficiency of evidence to show appellant was the man who made the assault, and (b) insufficiency of evidence to show the specific intent to rape.

(a) The evidence shows (and appellant makes no attempt to deny) that a colored man assaulted the girl at approximately 6:15 Saturday evening, January 28, 1961 in Forrest City. It is also undisputed that the girl gave a correct account of the assault. Although the testimony raises grave doubts, we think, that appellant is the person who committed the assault, we do find substantial evidence from which the jury could find he is. Therefore, since we are reversing the judgment of conviction on point (b), we will set out only such testimony as relates to that point.

The prosecuting witness testified in substance, as follows:

I am 14 and I have lived in Forrest City since I was born. I left my mother at Kimball’s and went up the street to go to my brother’s house; I heard someone running and when I turned my head, he grabbed me by the throat, putting one arm around my neck, and I pulled his hand off my mouth and screamed; He said he would kill me if I didn’t stop screaming; He drug me under the viaduct; I was not screaming when Ruben Homewood came, because he had put his hand over my mouth; “When he saw Ruben Homewood coming, he turned and ran on the side of the viaduct and Ruben went on behind him. Outside of the defendant having his hand on my mouth and throat, no other part of my body was touched. I am positive of that, just my mouth and throat were touched.

The above is all of the evidence tending in any way to show the intent of appellant to rape.

(b) Undoubtedly the girl’s testimony (and we accept it as true) raises a strong suspicion that appellant intended to rape her, and this suspicion is not weakened by the fact that he is colored and she is white. However, under our system of jurisprudence, no one can be convicted on suspicion alone. In a case of this type the essence of the charge is “intent” and it must be proved by evidence beyond a reasonable doubt, even though it may be proved by circumstances surrounding the assault. Therefore, in line with our judicial system and to avoid a miscarriage of justice, our Court has clearly pronounced certain safeguards that we are bound to observe. Such safeguards are clearly recognizable in our decisions referred to hereafter.

Anderson v. State, 77 Ark. 37, 90 S. W. 846. A girl 10 years old was waiting at a railroad station when Anderson, a stranger, accosted her and told her he was to look after her; he took her behind the depot and offered her $10; he offered her a present, and asked her to go see some children; he kissed her and tried to pnll her into an alley. The girl began to cry and Anderson left. The trial court convicted Anderson for assault with intent to rape. In reversing the conviction this Court, among other things, said: “. . . the unlawful act must be the beginning or a part of the act to injure, of the perpetration of the crime, and not [a part] of preparation to commit some contemplated crime”. To illustrate what the Court meant, it pointed out “Anderson never attempted to have sexual intercourse with Pearl Bond by force or consent. He never asked her for permission; never put his own person in condition or position for such an act; never attempted to raise her clothes, or to throw her down, or to do acts without which sexual intercourse could not be accomplished.” The analogy and application of that case to this case is too obvious to require comment.

Paul v. State, 99 Ark. 558, 139 S. W. 287. Here appellant entered the home of a housewife under the pretense of wanting to buy some milk; when she entered the dining room appellant “. . . rushed up, took hold of her arm and asked her if she would not like to make a half-dollar easy”. She broke loose and ran out of the house screaming. Appellant was convicted of assault with intent to rape. Although the assault there differed from the assault here and although some circumstances there are not present here, this Court, in reversing the case, did not rely on them but placed its decision squarely on the reasoning set forth in the Anderson case, supra, from which it quoted much of what we have quoted heretofore. The Court did say, as we say here, that the evidence was not sufficient to sustain a conviction of assault with intent to rape, “. . . but that it will sustain a judgment for an assault and battery. . . .”

Douglass v. State, 105 Ark. 218, 150 S. W. 860. Appellant entered the bedroom of the prosecuting witness at night; he was on his knees beside the bed holding her hand; he had a gun and told her to keep quiet or he would kill her; he said what he was there for; he put his hands on her. His conviction for assault with intent to rape was reversed on appeal. Again there were some other facts not present in the case before us, but again this Court did not rely on them to reverse the case. Instead the Court cited and followed the reasoning in the Anderson and Paul cases, supra, stating:

“Undoubtedly, if he had drawn the pistol for the purpose of inflicting death upon the assaulted girl, the crime of assault with intent to kill would have been complete, even though he desisted from carrying out his intention; and if he had placed his hand upon the girl as a part of the act of having sexual intercourse and with intent to secure carnal intercourse with her, this would have completed the offense of assault to commit rape. But, according to this testimony, his taking hold of the hand of the girl for the purpose of waking her up and the drawing of the pistol on her were merely a part of the preparation for the act, and not an overt attempt to commit the act itself.”

There the Court also, in reversing the case, said: “The evidence may be sufficient to justify a conviction of a lower degree of assault, and for that reason the cause is remanded for a new trial”.

Wills v. State, 193 Ark. 182, 98 S. W. 2d 72. There the prosecuting witness was going down a road when appellant grabbed her, put his arms around her; he tore her shirt, invited her to go home with him, and a little later he slung her in a ditch and hit her; she began to “holler” and a Mr. Fleming came down to where they were. The girl did not say whether appellant tried to rape her and she didn’t say he did not try. The trial court convicted appellant for assault with intent to rape, and this Court reversed. In doing so the Court, among other things, approved this statement relative to what is necessary to prove the intent to rape: “. . . the intent is to be ascertained from the commission of some act or acts at the time or during the progress of the assault”. (Emphasis added.)

It appears to us that the phrase above emphasized clearly pinpoints the essence of this Court’s holdings in the cases previously cited. That is, the assault itself is not sufficient to show intent in cases of this type, but there must be some act or words in connection with the assault to show the intent of the assault. It is conceded, or must be conceded, that there were no such acts or words in connection with the assault in the case under consideration. Such being the situation the jury had to arrive at the intent of appellant by speculation or conjecture. The Court in the Wills case said: “Speculation and conjecture cannot be substituted for affirmative facts and circumstances. ’ ’

2. Since, for reasons already set out above, we are reversing the judgment of the trial court, we deem it unnecessary to discuss fully the court’s refusal to instruct on other offenses. Appellant asked the court to instruct on simple assault, and the court refused to do so. In this the court was correct because, in our opinion, the facts show appellant (if he is the man who committed the assault) to be guilty of some higher degree of assault than mere simple assault.

As shown by the authorities cited heretofore; we have the power, upon reversal, to remand the cause for another trial, and we have chosen to do so in this instance. In this connection see also: Reed v. State, 97 Ark. 156, 133 S. W. 604; Johnson v. State, 210 Ark. 881, 197 S. W. 2d 936; Grigson and Gibson v. State, 221 Ark. 14, 251 S. W. 2d 1021; and Anderson v. State, 226 Ark. 498, 290 S. W. 2d 846.

The judgment of the trial court is accordingly reversed, and the cause is remanded for a new trial.

George Rose Smith, Robinson, and Bohlinger, JJ., dissent.

Sam Robinson, Associate Justice,

dissenting. The appellant is a negro man, married and the father of a child. Certainly in making the attack on the 14 year old white girl at a lonely spot in the nighttime he had an intent to do something besides merely choke her and drag her under a viaduct. In addition to choking her and dragging her under the viaduct, he put his hand over her mouth and threatened to kill her if she screamed. These actions all indicate an intent to do something.

Twelve men, qualified jurors, who had the opportunity to see and hear both the defendant and the little girl, said that they believed that the defendant intended to rape the child. Here, the majority is saying that the jury had no valid right to reach such conclusions. Since the majority has said that the evidence is not sufficient to show an intent to rape, I think the majority should point out in what way the defendant’s actions were inconsistent with an intent to rape.

The jury was entitled to draw any reasonable inference deducible from the evidence. "Where the facts proved in a case are such that men of reasonable intelligence may honestly draw therefrom different conclusions on the question in dispute, the case should be submitted to the jury for determination, Van Lodge AOUW v. Banister, 80 Ark. 190, 96 S. W. 2d 742. Where a fair minded man might honestly differ as to the conclusion to be drawn from the facts, whether controverted or not, the question at issue is for the jury. Williams v. Cooper, 224 Ark. 317, 273 S. W. 2d 15. McGeorge Construction Company v. Mizell, 216 Ark. 509, 226 S. W. 2d 566. Wren v. D. F. Jones Construction Company, 210 Ark. 40, 194 S. W. 2d 896.

Here the majority is saying that the trial court should have directed a verdict of “not guilty” on the charge of assault with intent to rape, because no reasonable person could draw an inference from the evidence that the one who made the attack intended to rape the little girl. I don’t see how it can be said that no reasonable person could draw an inference from the testimony that the defendant who made the attack intended to commit rape.

If the negro did not intend to rape the little girl, why did he attack her? She did not know him, she had done him no harm. Did he merely want to play with her? Certainly it is not the custom or practice for white girls to play with negro men at lonely spots on dark nights. The defendant had no reason to think she would play with him. If he did not intend to rape her, why did he grab her by the throat? Why did he put his hand over her mouth? Why did he threaten to kill her if she made an outcry? Why did he drag her under the viaduct? There is no indication that she was a person that one would want to rob. There is no showing that she had a dime. If the defendant had merely wanted to murder her, he could easily have done that without dragging her anywhere or giving her any time to make an outcry. The answers all add up to one thing and one thing only. The defendant intended to rape the little girl.

The majority cite four cases to support the view expressed. Three of the cases are easily distinguishable from the case at bar. First is the case of Anderson v. State, 77 Ark. 37, 90 S. W. 846. In that case there was not a scintilla of evidence to the effect that the defendant intended to commit rape. True, he made improper advances to the little girl, offered her $10.00 and when she would not agree to his suggestions, she was permitted to return to the waiting room of the railroad. At no time did the defendant use any violence whatever. He certainly did not grab her by the throat and put his hand over her mouth and threaten to kill her.

Next the majority cite Paul v. State, 99 Ark. 558, 139 S. W. 287. This case is similar to the Anderson case. In the Paul case the defendant made improper remarks to a married woman, placed his hand on her arm and offered her fifty cents. There was no evidence whatsoever of an attempt to commit rape.

The next case cited by the majority is Douglas v. State, 105 Ark. 218, 150 S. W. 860. Again in that case the defendant made improper requests of a young girl, who at the time was in bed with her sister. The defendant had been having an affair with the sister for a long time. There was no evidence that he intended to rape the young girl to whom he made the improper remarks.

The next case cited by the majority is Willis v. State, 193 Ark. 182, 98 S. W. 2d 72. That case does support the majority. There, two drunken toughs made an attack on a 14 year old girl that they did not know. They tore her shirt, invited her to go home with them, accused her of having a foul disease, threw her in a ditch and one of them got on top of her. The effect of the opinion in that case is that there is no evidence from which a reasonable person could draw an inference that the thugs intended to rape the child. The decision is wrong. It is contrary to the overwhelming weight of authority; it is indefensible and it should not be followed.

The great weight of authority is that facts such as the facts in the case at bar are sufficient to sustain a conviction of assault with intent to rape.

In State v. Axelson, (Wash.) 223 P 2d 1058, the facts are very similar to the facts in the case at bar. In the Axelson case the Court stated the facts as follows:

“On the night of November 20, 1949, at approximately 9:45 p.m., the prosecuting witness was walking along State Street, in the city of Bellingham. It was deserted. She testified that after she passed the Armory she saw something crouched coming down the center of the street, and ... I thought it was our dog, . , . and right then the man came walking down the street toward me, . . . and he ran up to me and put his arm around me and put his hand over my mouth and he said: ‘I want to talk to you’ and he kept pushing me backwards, and right behind me was a big bank . . . and he kept working me backwards and I was struggling and I had my bag in my hand, and I ... hit his face as hard as I could and his hand slipped away from my mouth and I let out an awful scream and, ... he reached up with his fist and hit me ... on the cheek with his fist, and I fell to the ground.”

The Court said “We are not prepared to say, as a matter of law, that the jury was not authorized to infer an intent to commit rape in this case.”

Jackson v. State, 35 S. W. 2d 409 (Tex.), is another case directly in point. The Court said:

“. . . The issue of whether or not the assault was made with the specific intent to rape, to have carnal knowledge of the woman assaulted without her consent by force was fairly submitted to the jury in the court’s charge, and, the jury having decided said issue against the appellant, we see no reason under the facts in this case to disturb the verdict.”

In Washington v. State, (Tex.) 103 S. W. 879, the Court said:

“Appellant further contends that the proof of the specific intent to rape is not sufficiently made out by the state; that under the circumstances the proof equally tends to show that appellant may have entertained the intent to rob. We do not agree with this contention. The evidence shows that appellant seized hold of the prosecutrix; made no demand of her to surrender her property; he knew she was a woman, and there is no testimony tending to show that he had any reason to believe she had valuables; she attempted to scream, and he merely told her to hush, and then persisted in choking her down, evidently to make her hush. If he had wanted to take her valuables, he had ample opportunity to do so. If appellant had any other purpose than to have carnal intercourse with prosecutrix, there is no manifestation of it in this record, and the circumstances furnished him ample opportunity to have taken her pocketbook, which was in her hand at the time of the assault, or to have taken her breastpin from her neck, if he had so desired. His setting upon a yonng girl in the nighttime, under the circumstances, and his violence, and when she attempted to scream telling her to hush, would strongly indicate his intent. In our opinion, the facts, are amply sufficient to show his purpose, and, hut for the fact of her screams, and of assistance rushing to her rescue, he would, no doubt, have accomplished his design.”

The same thing is true in the case at bar. If the child had not been able to scream in time, the chances are that she would have been raped.

Other cases with similar facts in which the Court held the evidence to be sufficient to support the conviction are People v. Jones, (Cal.) 296 P 219, and in People v. Mayer, (Ill.) 64 N. E. 2d 372, the Court said:

“It is for the jury to determine the intent. The intent to rape may become manifest from words, actions, violence or other conduct. In the same way actions may disclose whether the purpose is to be accomplished by undue familiarity, indecent proposals or insulting conduct. ’ ’

In Morgan v. State, 189 Ark. 981, 76 S. W. 2d 79. In speaking of a charge of assault with intent to rape, this Court said:

“. . . If the assault is actually begun and the intent can be inferred from the acts committed, the offense is complete, notwithstanding the fact that the assailant may, for some reason, relent and forbear from the consummation of his purpose.”

It is my opinion that judgment in the case at bar should be affirmed and that in reversing it a very bad precedent is being established and one that will have serious repercussions.

For the reasons heretofore set out, I respectfully dissent.

I am authorized to say that Mr. Justice George Rose Smith and Mr. Justice Neill Bohlinger join in this dissent.


source: Caselaw Access Project

author: Sam Robinson, Associate Justice.

license: Public Domain

text:
    Cash v. Cash.
    5-2592
    353 S. W. 2d 348
    Opinion delivered February 5, 1962.

      Terral & Rawlings and Gail O. Matthews, for appellant.

      Wayne Foster, for appellee.
   Sam Robinson, Associate Justice.

This appeal presents a question which precedent has left unanswered in this, as well as every other jurisdiction: Do Social Security payments from the account of a father to his dependent son displace court ordered support payments 1

The appellant, Henry J. Cash, and the appellee, Ethel Cash were formerly husband and wife, living together as such for some eighteen years, their marriage ending in a divorce in May of 1959. Two children were born to them, a daughter who is now married, and a son, twelve years of age at the commencement of the present litigation. The divorce decree awarded custody of the minor son to his mother along with support payments from the father of $32.50 per week.

Ethel Cash remarried in June of 1959, and in September Henry Cash petitioned for a modification of the decree to reduce his support payments. The Court reduced his payments to $15.00 per week. In February, 1960 Mrs. Cash’s second marriage was terminated by the death of her husband.

In January of 1961, Mr. Cash having reached the age of 65, retired and applied for Social Security benefits for himself and his son. The following month the son began to receive Social Security benefits at the rate of $60.00 a month. Mr. Cash, thinking that the Social Security benefits which he had caused the son to receive relieved him of his court ordered payment, stopped the $15.00 weekly payments to the son. Shortly after the support payments were halted, Mrs. Cash filed a motion stating that Mr. Cash had an increase in income and requesting an increase in his weekly payments. Mr. Cash filed a counter-petition alleging that he had retired, that both he and his son were drawing Social Security benefits, and requesting that he be relieved from paying the $15.00 payments.

Upon a hearing of the case, the Chancellor refused to allow the Social Security payments to the son to displace the support payments, but did reduce the payments to $10.00 per week. The appellant now brings the matter to this Court claiming that such refusal by the Chancellor constituted reversible error.

Mr. Cash, before his retirement, was a long-time employee of the Porocel Company where he worked as a night watchman earning in excess of $5,000 a year. Also he had some income from rental houses which he owned. This was his financial condition at the time of the original divorce decree which ordered him to pay $32.50 per week to his former wife for the support of their son. Upon the remarriage of Mrs. Cash, the Court reduced these payments to $15.00 per week.

At the time of the hearing on the motion now under consideration, the appellant testified that his monthly income was as follows: Social Security $120.00, payments from the John Hancock Insurance Company $26.70, rent from four houses in which he had a life estate $145.00, and $20.42 from the Phillips Corporation. This is a total monthly income of $312.12. However, Mr. Cash also testified that he makes monthly payments on his debts which total S205.03, and that he also pays weekly room and board to a daughter with whom he is living in the amount of $8.00 per week. His monthly payments are toward the retirement of debts which he incurred in buying clothes for himself, his former wife and his son, for upkeep on his rent houses, money which he borrowed to pay his taxes, a mortgage on the house which he gave to his wife for life, and a note to the bank representing the financing of a truck.

If Mr. Cash were not allowed credit for the Social Security payments to his son and were forced to make the support payments ordered in the court below, his total monthly outlay including payments on his debts and room and board, taken along with the support payments ($40.00 per month) would total $277.03 which when subtracted from his monthly income would leave him $35.09 a month, hardly a handsome sum for a man over 65 years of age who has worked all his life with dreams of retirement in his old age. If Mr. Cash were not given credit for the amount of the Social Security payment which his son is receiving, then it is probable that he would be forced to seek employment in order to keep his head above water in meeting his obligations as they fall due. If this is the case, then how could he ever retire ?

We are impressed at the apparent lack of bitterness and showing of good faith on the part of Mr. Cash in this entire matter, starting with the date of his divorce and continuing down to the time of the present litigation.

Mrs. Cash divorced her husband, the appellant, who was twenty years her senior, and the following month married a younger man who had himself been divorced only two days. The decree granting the appellee a divorce from the appellant made no provision for the support of the appellee, nor did it give her any of the real estate which the appellant owned at the time of the divorce decree, although apparently all of the real estate had been purchased during their marriage. Yet the appellant deeded all of his rental property to the two children of their marriage (appellant had two children by a former marriage), reserving for himself a life estate in all of the realty except one house and lot in which he reserved a life estate for his former wife, the appellee. Speaking of the $32.50 per week child support clause contained in his wife’s divorce decree, he said that he understood that the money was for the support of his former wife as well as his son. It is not surprising that he suffered under this misconception, because under the circumstances at the time, $32.50 seemed to be quite a liberal amount for the support of a ten year old boy.

Mrs. Cash testified that the support payment even when reduced from $32.50 to $15.00 per week was sufficient as long as her second husband was alive, but that on his death her household lost the benefit of his $160.00 monthly earnings. It is indeed unfortunate that her second husband died apparently leaving her with insufficient funds to maintain herself, but this in no way places the burden of her support on Mr. Cash. According to the appellee’s own testimony the appellant deeded to her a life estate in a house, thus providing her and his son with a place to live, that he pays all of the taxes and insurance on the house as well as the monthly water bill.

All of the foregoing discloses that Mr. Cash was, from the time of his divorce down to the institution by the appellant of the present litigation, earnestly attempting to meet what he apparently considered at least a moral obligation to his son and his ex-wife.

Neither the research of counsel, nor of the Court has revealed a ease such as this one involving Social Security payments to a dependent child; however, the case of Hinton v. Hinton, 211 Ark. 159, 199 S. W. 2d 591, is a case having an analogous fact situation. There, the father, who was under a court order to make payments to his dependent child, was inducted into the army during World War II. While in the service he made out an allotment of $42.00 per month for the benefit of his minor child, $22.00 of this amount being deducted from the salary of the soldier, the remainder being paid by the United States Government. This Court held that while not all of the money paid for the benefit of the child was deducted from his earning, they were paid nevertheless, and that he was entitled to credit for them.

Of course the father in the Hinton ease had little choice about entering the armed forces in the time of a national emergency, and therefore his civilian earning power was reduced to nothing, making it impossible for him to satisfy the support decree except from his military wages along with the amount contributed by the Federal Government.

In the case at bar the appellant had little choice but to retire from his occupation and apply for his Social Security payment for himself and his son; his retirement was mandatory due to the policy of his company.

It may also be pointed out that the Social Security payments made by the Federal Government to the dependent son were earned in part by the appellant himself and are not altogether a gift from the Federal Government.

Under the circumstances of this case the appellant should be credited with the full amount of the Social Security payments, and he should not be obliged to pay any additional amount.

Reversed.


author: Jim Johnson, Associate Justice.

text:
    Kerr v. Kerr.
    5-2573
    353 S. W. 2d 350
    Opinion delivered February 5, 1962.

      Bose, Meek, House, Barron, Nash <& Williamson, for appellant.

      Fred A. Newth, Jr., for appellee.
   Jim Johnson, Associate Justice.

This is a divorce action. There is no transcript of the testimony. Prom the bare record before us we are urged by appellant to reverse the trial court, inter alia, on the following point:

“Child Custody, Child Support Payment, and allowance of attorney’s fees being beyond the scope of the allegations in the complaint, no judgment should have been entered touching these subjects.”

Appellee’s complaint in its entirety is as follows:

“Comes the Plaintiff, a white person and for her cause of action against the defendant, a white person states:
“That she and the defendant were intermarried on or about the 3rd day of August, 1957, cohabiting as husband and wife until on or about the 30th day of August, 1959, at which time they separated and have not lived together as husband and wife since that time.
“That as a result of this wedlock there was born one male child, Peter Michael, age 2, who is in the care and custody of the plaintiff.
‘ ‘ That the defendant has fussed and nagged habitually and systematically over a long period of time, as well as committed other acts so as to render the plaintiff’s life intolerable, making it impossible for her to continue to live with him as husband and wife.
“Wherefore, plaintiff prays for an absolute divorce, and for all other proper and equitable relief. ’ ’

To this complaint appellant, as counsel for himself at this stage of the litigation, filed an answer and counterclaim. Appellee then filed a motion praying that “she be granted alimony pendente lite, solicitor’s fees and court costs, and for all other proper and equitable relief. ’ ’

No separate hearing was had on the motion but the trial court did set the case for a day certain. Thereafter, appellee, in reply, filed a general denial to appellant’s counterclaim.

Appellant defaulted in appearance at the trial. The trial court properly applying the rule that no divorce may be granted without the presentation of corroborating evidence to support the complaint, required appellee to produce her evidence and thereupon rendered the following decree by default:

‘ ‘ On this day personally appeared the plaintiff represented by her solicitor, Fred A. Newth, Jr., after having filed a complaint, a warning order having been issued and an attorney ad litem having been appointed as required by the laws of the State of Arkansas; proof of publication, report of the attorney ad litem, and answer and counterclaim having been filed on behalf of the defendant pro se, the reply of the plaintiff and the order of the court setting the above captioned cause for trial on the 19th day of January, 1961, the defendant appeared not and wholly made default; the testimony of the plaintiff and her witness, Paul Vedel Holn Hedegard and William J. Frazier having been taken ore terms before the bar of this court, the court finds that the plaintiff is entitled to the relief sought:
“It is, therefore, ordered, adjudged and decreed:
“That the plaintiff is hereby granted an absolute divorce from the defendant; that the counterclaim is hereby denied and dismissed for lack of equity.
“The court finds that of this union there was born one child, a male, namely, Peter Michael, age 2, and grants the custody of the aforementioned child to the plaintiff, who is the fit and proper person to have the care and custody of said child; the court orders and directs the defendant, Norman Bruce Kerr, to pay the sum of One Hundred Dollars ($100.00) per month into the registry of this court as child support; the first payment being due and payable on the 1st day of March, 1961, and a like amount on the first day of each month thereafter until further orders of this court. The court finds that the defendant, Norman Bruce Kerr, should pay plaintiff’s solicitor, Fred A. Newth, Jr., the sum of $100.00 as a fee on or before the 1st day of March, 1961. ’ ’

Ordinarily considerable latitude in pleading is given, and if the testimony calls for relief in addition to that called for by the facts stated in the complaint, then the complaint is treated as amended to conform to the proof. The same latitude is not permissible, however, in the instance of a judgment taken by default.

To entitle the plaintiff to relief under her general prayer for all proper equitable relief for such matters as child custody and support, the allegations contained in the complaint must not only afford ground for the relief sought, but must have been introduced to show a claim to relief and not to corroborate her right to the specific relief requested. Otherwise, defendant would be taken by surprise. See Mason v. Gates, 90 Ark. 241, 119 S. W. 70.

In the opinion of rehearing in the case of Grytbak v. Grytbak, 216 Ark. 674, 227 S. W. 2d 633, a contested matter in which alimony was awarded and the complaint, although containing allegations pertaining to the financial status of the plaintiff, did not include a specific prayer for alimony, this Court said:

“. . . In her complaint appellant alleged that she was without funds to support herself and pay the costs of litigation and prayed for temporary relief out of funds belonging to appellee and for all other equitable relief. ... We have held that the statement of facts in a complaint or cross-complaint, and not the prayer for relief, constitutes the cause of action, and that the court may grant whatever relief the facts pleaded and proved may warrant, in the absence of surprise to the complaining party. . . .” Also see Smith v. Smith, 219 Ark. 304, 241 S. W. 2d 113. Unlike the Grytbak and Smith cases, supra, the present action is not contested and therefore the parties are held much more strictly to their pleadings in taking default judgments and a more stringent rule of pleading is applicable. See Lowrey v. Yates, 212 Ark. 399, 206 S. W. 2d 1.

The plaintiff’s statement of her cause of action contains no reference to financial problems of any nature or kind. Nor does the complaint contain so much as a hint that any decree touching upon custody or support will be sought. It is apparent from the pleadings here that the plaintiff was seeking but one thing — a divorce. This being true, she cannot enlarge and broaden the scope of the action to include matters foreign to her complaint upon the default in appearance by the defendant.

The applicable rule is succinctly stated in Yol. 49, C. J. S., Judgments, § 214 b (1):

“A judgment for plaintiff by default must strictly conform to, and be supported by, the allegations of the petition or complaint, a closer correspondence between pleading and judgment being necessary than after a contested trial. Defendant’s default does not enlarge or broaden plaintiff’s claim and rights under the allegations of the petition; nor may the allegations of the petition be enlarged by any evidence offered or introduced on confirmation of the default judgment.”

Therefore, since the right to such relief is not inferred from the complaint, that portion of the decree involving child custody and support is reversed and remanded for further proceedings consistent with this opinion. The attorney’s fee is allowed in compliance with appellee’s motion.

Reversed in part and remanded.

George Rose Smith, J., not participating.


author: Neill Bohlinger, Associate Justice.

text:
    Allen v. Overturf.
    5-2580
    353 S. W. 2d 343
    Opinion delivered February 5, 1962.

      M. JD. Anglin, for appellant.

      J. E. Simpson, for appellee.
   Neill Bohlinger, Associate Justice.

The appellants, husband and wife, were moving from the State of California and in passing through Carroll County they were attracted by the appearance of the countryside and decided to buy a small farm and settle there. To this end they contacted the appellee whose advertisement as real estate agent had attracted their attention and the appellee showed to the appellants a small farm of approximately 48 acres belonging to Leslie A. Hough and Ellen M. Hough.

The appellants and appellee went over the farm and at that time the appellants advised the appellee that they wished to do some farming and stock raising and wanted a place to rest. Appellee advised the appellants that the Hough property was suitable in all respects.

One of the appellants, Laura E. Allen, testified that she had been in the real estate business as a broker in California and inquired of the appellee as to the water supply and was told there was a well and three springs on the place that never went dry, that there was plenty of water. The appellants appear to have looked at the well and springs and found water in them. The appellants decided at that time to buy the place and with the appellee they drove to Green Forést at once and there executed an escrow contract with Leslie and Ellen Hough for the purchase of the farm for the price of $5,600.00, paying $2,000.00 in cash and agreed to pay the balance at the rate of $250.00 each month. This transaction took place on the 16th of July, 1958, and the appellants paid four monthly installments. On January 5, 1959 appellants paid the balance due on the purchase price.

Some four or five weeks after closing the transaction and moving on the farm, appellants discovered that there was a lack of water and upon investigation found that the well and springs were wet-weather springs and well, — that is, they were dependent on the rainfall and surface water for their supply. Appellants testified that by reason of that state of facts they have spent certain sums of money to obtain water on the place.

Appellants have brought this suit alleging that appellee, a real estate broker, made fraudulent representations as to the available water supply on the land which he showed to appellants and which they bought relying on those representations. The fact that the well and springs were wet weather springs and well was something that appellants conld not determine in this viewing of the property. Whether or not appellee was acting on behalf of the seller or on behalf of seller and buyer is disputed but since this is a suit for fraud and is a suit against the broker, the relationship is immaterial.

The escrow contract covering the purchase of this land contains this provision:

“Purchasers herein agree and state that they have personally viewed and inspected the above described property and hereby release and relieve Elmer and Pay Overturf of and from any responsibility regarding said sale and property, except as herein noted.”

There were no exceptions noted. At the close of appellants’ testimony and on motion of appellee the court directed a verdict for the appellee on the grounds that the escrow agreement contained a release in favor of appellee and that the appellants had waived any rights by paying off the balance of the purchase price and waiting a long period of time before bringing this action. In both of these particulars we find the court in error.

The courts have many times held that such purported releases as the one contained in the escrow agreement in this case do not relieve the broker from liability for fraud and have based their holdings either on the ground that a contract obtained by fraud cannot be used to relieve the party obtaining the contract of liability for that fraud, or on the ground that the broker is not a party to the contract and cannot take advantage of it to relieve him of his fraud. In Goldsten v. Burke, 43 A. 2d 712 (Mun. Ct. of App., D of C) a broker had assured the buyer that the property was served by a public sewage system whereas in fact a septic tank was used and the contract of sale contained the language:

“* * * that this contract contains the final and entire agreement between the parties hereto, and that they shall not be bound by any terms, conditions, statements, warranties or representations, oral or written, not herein -contained. ’ ’

The court in that case, in answer to the contention that the contract relieved the broker of liability for the misrepresentation, stated:

“The answer to this is that, ‘where a p’arty is fraudulently induced to enter into a contract, the fraud cannot be atoned by reducing the contract to writing. Smith v. O’Connor, 66 App. D. C. 367, 369, 88 F. 2d 749, 751.”

In Stevenson v. Barwineck, 8 Wis. 2d 557, 99 N. W. 2d 690, the court held that an exculpatory clause in a contract between buyer and seller could have no effect on the broker’s liability in tort for a misrepresentation because the broker was not a party to the contract.

And in Crawford v. Nastos, 182 Cal. App. 2d 659, 6 Cal. Rptr. 425, the court reasoned thusly:

“Finally, the present contention is devoid of merit since an exculpatory provision, such as the one in question, is given sanction under proper circumstances to relieve an honest vendor from liability for damages arising from the fraudulent representations of his negotiating Agent (Herzog v. Capital Co., 27 Cal. 2d 349, 353, 164 P. 2d 8) and not the vendor’s agent who, as the trial court here found, has misrepresented material facts during the course of his dealings with the vendee.”

In Anno. 174 ALR 1010, § 10, it is stated:

“And the reason why a clause ‘that no verbal agreement affecting the validity of his contract will be recognized’ cannot prevent a purchaser from rescinding a contract because of his vendor’s fraudulent misrepresentation was stated in Scarsdale Pub. Co. v. Carter (1909) 63 Misc. 271, 116 NYS 731, as follows: ‘Fraud cannot be an agreement, It is an imposture practiced by one upon another. It may be used as an inducement to enter into an agreement.

Defendant does not claim that he entered into an agreement that affects the validity of the contract, but that he wa<s induced by false representations to enter into the contract. If that be true the validity of the contract is not assailed, but its very existence is destroyed. To constitute fraud by false representation there must be a representation of alleged existing fact; that representation must be false in fact; it must be .made with intent to deceive, and the person to whom it is made must believe it.’

Similarly, it was held in Carty v. McMenamin, (1923) 108 Or. 489, 216 P. 228, that a vendor would not be permitted to invoke, in an action brought against him for misrepresenting the quality of grazing land, a clause in the contract of purchase to the effect that the vendor made no representations as to the value or grazing quality of a range, the court saying: ‘If a party is guilty of fraud in making a contract, he cannot exculpate himself from the consequences of his own wrong by a provision in writing that his fraudulent oral representations shall not be used as evidence against him in a case in which fraud and deceit is the gist of the cause.’ ”

The testimony of Laura E. Allen, one of the appellants, is sufficient to raise a jury question as to whether or not there was fraud on the part of the appellee which caused the appellants to enter into the contract. The testimony as to the damages is also sufficient to raise a jury question on that point.

The trial court’s second reason for directing the verdict does not obtain in this case. In a case where a buyer is suing a seller-principal for the fraud of his broker-agent there may be some duty of the buyer to notify the principal of such fraud and of the fact that the buyer chooses to affirm the contract and sue for damages for the fraud, and the buyer may thereby be guilty of laches or estoppel for not so doing. This is not such a case. The statute of limitations has not run on the cause of action and the appellants have filed a timely suit. The fraud, if there be such, was known to the broker at the time he perpetrated it, and there is no reason for Mm to be apprised that a smt is going to be brought against him until such suit is actually brought.

This is an action for damages based on alleged fraudulent representations and the only limitation as to-the time of bringing the suit is the statute of limitations. The suit is brought well within that time. In Fort Smith Lumber Co. v. Baker, 123 Ark. 275, 185 S. W. 277, this court considered the question of fraud, the remedies available, and the time for bringing the suit. The facts in that case are those stated in the opinion.

“After the plaintiff arrived in Arkansas he went on the land and attempted to cultivate it for two years. In other words he waited two years after he had seen the land before he brought this suit. He had the right to bring his action at any time within the period of time allowed by law but his measure of damages was fixed when he first discovered the fraud which he says had been perpetrated upon him. According to his own testimony, as soon as he went upon the land he ascertained that there was no public road going to it and no stream of water on it. He also saw that about one-half of the land was too steep to ever be cultivated and that the remaining one-half had no soil on it.”

We further stated in that opinion:

“A party who has been induced to enter into a contract for the purchase of property by the false representations of the vendor concerning the quantity or quality of the property sold, may have either of these remedies which he conceives is most to his interest to adopt. ‘He may annul the contract, and by returning or offering to return the property purchased within a reasonable time entitle himself to recover whatever he had paid upon the contract, or, he may elect to retain the property and sue for the damages he has sustained by reason of the false and fraudulent representations, * *

In this case the appellants elected to retain the property and sue the broker. It does .not appear from the record that the appellants had any contract or assurances from Leslie A. and Ellen M. Hough who were the vendors. If there were false representations that induced the appellants to accept the contract, they would appear to have been made by the appellee and the suit is properly directed against him.

For the reasons herein stated this cause is reversed and remanded for further proceedings not inconsistent with this opinion.


author: Carleton Harris, Chief Justice.

text:
    Ark. State Highway Comm. v. Elliott.
    5-2563
    353 S. W. 2d 526
    Opinion delivered February 12, 1962.

      Dowell Anders and H. Clay Robinson, for appellant.

      Floyd Sharp and Cooper Jacoway, for appellee.
   Carleton Harris, Chief Justice.

The Arkansas State Highway Commission, appellant herein, filed an eminent domain action in the Pulaski County Circuit. Court against certain land located in Pulaski County, for the purpose of acquiring right-of-way needed for Interstate Highway No. 40. Since an issue as to the ownership of the property was raised, the cause was transferred to the Pulaski County Chancery Court, where ownership of the land, consisting of one-half block in the Sandefur. and Waters Addition to the city of North Little Rock, was resolved in favor of Catherine Elliott,, .appellee herein. The case between the Department and Mrs. Elliott then proceeded to trial on the sole question of compensation due Mrs. Elliott for the property which had been taken. At the conclusion of the testimony, the Pulaski Chancery Court entered a decree finding that Mrs. Elliott should have judgment in the amount of $5,000, plus interest on the amount of $2,875, at the rate of six per cent (6%) per annum from July 24, 1959, until paid. Prom this decree, appellant brings this appeal. It is asserted by the Highway Department that there was no admissible evidence presented to support a larger judgment than $2,125, and the Court’s finding that Mrs. Elliott was due $5,000 is against the preponderance of the evidence.

The central argument in the brief relates to the evidence of Jimmy Green, owner of the North Little Rock House Wrecking Company. Mr. Green testified that he had been buying, selling, and moving houses for approximately ten years. He stated that he had been familiar with the Elliott property for several years, and that in 1957, he had viewed the property with the thought of purchasing it. The witness testified that he made an offer to purchase same in the amount of $5,000. His letter, dated March 11,1957, and directed to Mrs. Elliott, was offered in evidence over the objections of appellant. The letter advised appellee as follows:

“As you know, I would like to have the whole block. I have now acquired two very good houses, one a five room and the other a six room house, and of course, I have to move both, and since you have been to quite a bit of expense moving the old house from this property and having the land leveled and partially landscaped, I will make you one more offer as follows: I will pay you $5,000.00 for the entire half block, $2,000.00 in cash and the balance of $3,000.00 at so much per month to be agreed on at time of sale.

If this offer is acceptable to you will you please let me know by return mail, or telephone, as I only have 30 days in which to find a location and move these houses. ’ ’ Green testified there was no improvement on the land at the time he made the offer, and that he contemplated placing four houses on the property, which would be re-sold. He also testified that he knew there was gravel on the property, and that he could see outcroppings close to the surface. Green stated that he owned dump trucks and loading machines, and could obtain around $15 for a load of gravel (about five yards to a load); that it would cost him about $1.00 to load the gravel, and no more than $2 or $3 to haul the load, since he contemplated short hauls to improvements being built in the community. The witness’ did not estimate the amount of gravel that could be obtained, other than to indicate there was enough- to prevent his losing any money on the $5,000 purchase price. “There’s lots of building going on right in that vicinity. Within a mile, mile and a half, and with my dump truck and loading machines, it’s close to my office and all, I could haul gravel. I mean where there is building going on there’s always a sale for gravel.” Appellant objected to all of this testimony as improper in reaching the fair market value of the land in litigation. When asked the highest and best use for the property before the condemnation, Green replied:

“To my honest opinion, either way. It is awful good as close in to town as that is, close to Lakewood, as far as putting housing in there. To my opinion, the city is growing out and it would be a fine location for houses or either if it was enough demand there a man could start cutting gravel 'there. ”

Subsequently, he stated that the highest and best use would be for homesites.

We are definitely of the opinion that the Court erred in admitting the letter. This is really a case of first impression. In only one Arkansas case, Jonesboro, Lake City & Eastern Railroad Co. v. Ashabranner, 117 Ark. 317, 174 S. W. 548, has this type of evidence been mentioned, and a determination of the admissibility of same being unnecessary to a determination of that lawsuit, the Court passed over the question, saying:

“It is unnecessary for us to enter into any discussion of the law as to when or under what circumstances proof of offers to purchase land at stated prices may, if at all, be considered in estimating value, but it must be conceded that an isolated statement of a witness as to an offer without showing under what circumstances the offer was made, is not of itself competent testimony to establish value.”

The great weight of authority is to the effect that such evidence is inadmissible. In 7 ALR. 2d 785, we find:

“In by far the greater number of the cases, particular evidence showing that a purchase offer of a certain amount has been made or received for the real property in question, or for a similar parcel of property, has been considered to be inadmissible upon the issue of the market value of the property in question. While the rulings have varied somewhat as to the grounds for the exclusion of such evidence, and sometimes have been affected by the particular method by which the offer was shown or sought to be shown, the rather general import of this group of cases is that ordinarily an unaccepted offer for the purchase of real property is not admissible as evidence of the market value of such real property. ’ ’

A number of cases are cited supporting the majority view, including cases wherein the testimony relative to the offer of purchase was given by the person who actually made the offer. There are a few states which admit this evidence to some extent, primarily Illinois, but even there, the admission of the evidence is somewhat limited. The rule in that state under which offers to purchase may be introduced is succinctly set forth in the case of City of Chicago v. Harrison-Halsted Building Corporation, 143 N. E. 2d 40.

“The offer must be made in good faith, by a man of good judgment, acquainted with the value of the real estate and of sufficient ability to pay. It must be for cash and not for credit or in exchange and it must be determined whether made with reference to the fair cash market value of the property or to supply a particular need or fancy. Private offers can be multiplied to any extent, for the purpose of the cause, and the bad faith in which they were made would be difficult to prove. The reception of this kind of evidence stands upon an entirely different footing from evidence of actual sales between individuals or by public auction. * * * The burden is upon the party seeking to have such evidence admitted to establish a sufficient foundation by showing that the offer was bona fide, for cash, and made by a person able to comply with the offer if it were accepted. The offer sought to be introduced shows on its face that it-was not for cash as required by the rule but for partly cash and the balance payable in monthly terms. The trial court did not abuse its discretion in excluding this evidence from the jury.” It is apparent that even.under the Illinois rule, Green’s offer to purchase would not be admissible. In the first place, it was not a cash offer, but rather, involved only the payment of $2,000 in cash, with the balance of $3,000 to be paid in monthly payments. It also appears that Green’s offer was based on a particular need that would not be applicable to the average buyer. At any rate, we hold that the evidence of an offer to purchase is not admissible to establish the fair market value of particular property.

But, says appellee, even excluding the letter, and Green’s testimony relative to the purchase offer, the testimony is still sufficient to justify the amount awarded in the judgment. It is contended that Green, as a qualified lay witness justified his appraisal; that his testimony established the property was worth $5,000, either for homesites or because of the value of the gravel. We do not agree. Green did not claim to have knowledge of the fair market value of real estate in the neighborhood of the Elliott property. He had not bought nor sold property in the area, and he apparently was not familiar with prior sales. He, of course, did not live in the community, and his knowledge of the property seemed to be confined to passing it each day, along with a casual examination of the soil. In Housing Authority of Little Rock, Arkansas v. Winston, 226 Ark. 1037, 295 S. W. 2d 621, lay testimony was admitted where the witnesses stated they were acquainted with the general market value of the property in the area, and explained the basis for their opinions. In numerous other cases, qualified laymen have been permitted to give their opinions, but Green’s knowledge of the area does not appear to meet the established requirements of a qualified lay witness, and his testimony does not meet the test. As to his evidence in regard to the gravel, it, too, falls short in reaching the market value of the property. Kenneth Schuck, a consultant civil engineer, testifying on behalf of appellee, estimated that the property contained 30,000 yards of gravel that would be desirable in the construction industry; he stated that this gravel was comparable to gravel for which a prior employer of the witness had paid 15 cents per cubic yard.

There is no competent evidence in the record relating to the value of the land for gravel development. The rule is well established that one cannot take the yardage of mineral deposits in property, multiply it by unit price, and thereby arrive at the market value of a tract, in an eminent domain action. In Nichols on Eminent Domain (Third Edition), Vol. 4, § 13.22, p. 243, we find:

“The rule is widely prevalent in this country that the existence of mineral deposits in or on land is an element to be considered in determining the market value of such land. Also as in the case of vegetable growths, the rule has been correlatively stated that the value of such mineral deposits cannot be separately determined independently of the land of which it is a part. It cannot be considered as so much potential merchandise to be evaluated as such. The land taken must be valued as land with the factor of mineral deposits given due consideration. In determining. the just compensation to be paid to the owner it is not permissible to aggregate the value of the land and the value of the deposit. Thus, the value of land as stone land suitable for quarrying— but not the value of the stone separate from the land- — is a proper subject of consideration both by the witnesses and the jury in fixing the amount of just compensation to be awarded.”

As was stated in Arkansas State Highway Commission v. Cochran, 230 Ark. 881, 327 S. W. 2d 733, “As a general rule, the market value of a tract of land cannot be determined simply by estimating the amount of stone or other mineral it contains and then multiplying that estimate by a fixed price per' unit.”

The Highway Commission offered the testimony of Walker Watson, real estate appraiser, and Zack Mash-burn, appraiser for the Commission, who had appraised the Elliott property. Each of these witnesses testified that the highest and best'use of the property was for residential purposes, and, based on comparable sales, the condition of the sub-division, and the possible subdivision development in the area, Watson stated the fair market value of the property, prior to the date of taking, was $2,125. Mashburn gave the figure of $2,000. Russell Newsom, civil engineer in the materials and tests division of the Arkansas State Highway Department, testified that he had viewed the property, and the gravel referred to was “clay gravel” rather than “sand gravel”, and was not select material. He stated that the Highway Department would not use this type of gravel in highway construction, because it was below the required grade. The witness further testified that it had no special value for other commercial purposes, though he admitted it could possibly be utilized in some undertakings. He also stated that he had never made a test on this particular property, and his acquaintance with it was limited to visual examination. In reply to the question on cross-examination, “So by test you don’t know whether this meets the standards or not?”, Newsom replied, “Not positively, but I’m willing to stick my neck out and say it would not.”

We do not feel that the proof in this case has been developed to the extent that we can really determine whether the amount awarded in the judgment was proper for the taking of the property. Of course, a land owner is entitled to be paid for the market value of his property in its highest and best use, but we are unable to ascertain from this record the highest and best use that could have been made of the Elliott land before the taking by the Department, i.e., we cannot determine whether it was more valuable for residential purposes or as a source of commercial gravel. The Department presented two witnesses who gave their opinions as to the value of the property for residential purposes. Watson stated that he found six or seven sales in the addition, but described only two; Mashburn mentioned three sales, but testified to only one, and this was one of the two described by Watson. The Department presented no testimony in regard to the value of the lands as a gravel source, and as shown by the quoted testimony of Mr. Newsom, made no tests whatsoever. Appellee’s testimony was insufficient in both respects. While normally, we determine chancery cases on the record before us, this Court will occasionally remand a case for further development. As stated in Wear v. Boydstone, 230 Ark. 580, 324 S. W. 2d 337:

“While ordinarily, Chancery cases are decided upon the record before us, we have, on several occasions, remanded where it appeared that in the interest of justice, the cause should be more fully developed. Car lile v. Corrigan, 83 Ark. 136, 103 S. W. 620. The record leaves unanswered possible pertinent questions, * * *."

See also Mabrey v. Millman, 208 Ark. 289, 186 S. W. 2d 28, and Hymes v. Bickford, 208 Ark. 688, 187 S. W. 2d .542, where we reversed, and remanded for the purpose of permitting the proof to be more fully developed in the trial court.

Accordingly, the decree is reversed, and the cause remanded with directions to permit both appellant and appellee to offer further proof of the market value of the property here in litigation, '• relative to its highest and best use.

It is so ordered.

Johnson, J., dissents;. Bohlinger, J., not participating.

      The Commission had filed the suit and its Declaration of Taking on July 24,1959, and had deposited the sum of $2,125 as estimated just compensation for the property.


author: Ed. F. McFaddin, Associate Justice.

text:
    Central Surety & Ins. Corp. v. Jordan.
    5-2570
    353 S. W. 2d 536
    Opinion delivered February 12, 1962.

      Fulk, Lofton, Wood, Lovett. $ Parham, for appellant.

      Switzer & Switzer, for appellee.
   Ed. F. McFaddin, Associate Justice.

Appellee, H. L. Jordan (plaintiff below) owns and operates the “Sportsmen’s Center” in Crossett and sells guns and other articles for use by those who desire to hunt and fish. In 1960 the appellant, Central Surety and Insurance Corporation (defendant below), issued to Jordan a policy which insured him against loss of merchandise by burglary. While the policy was in force, Jordan’s store was burglarized and the stolen items were never recovered. The Insurance Company refused to pay the claim, and Jordan filed this action for $1,370.14, itemizing the stolen articles as follows:

2 Browning 22 calibre automatic rifles — short
2 Browning 22 calibre automatic rifles — long
1 12-gauge Browning automatic 5 32 full choke
1 12-gauge Browning automatic 5 28 full choke
1 light 12-gauge Browning automatic 5 28 full choke
2 Sweet 16-gauge Browning automatics 5 28 full choke
1 16-gauge Browning automatic 5 28 full choke
2 410 gauge Remington automatics 5 shot
1 Model 12 Winchester pump with polychoke
1 12-gauge Remington automatic 5 shot with poly-choke — used
1 Colt match target pistol, 22 calibre
1 Ruger standard 22 automatic pistol

of the value of $1,278.70, together with a known amount of small items, such as shells and equipment, amounting to $16.40, and damages to premises of $75.00, making a total of $1,370.14.

The only defense urged by the Insurance Company was the provision in the policy which reads:

“4. Books and Records. The insured shall keep records of all of the insured property in such manner that the company can accurately determine therefrom the amount of loss.”

Trial to the Circuit Judge without a jury resulted in a judgment for Jordan, and the Insurance Company has appealed, urging this one point: “The insured failed to maintain records as required by the policy of insurance in such manner that the amount of the loss could be determined.” The Insurance Company offered no evidence in opposition to that offered by Jordan, but the insistence is that Jordan did not have such a bookkeeping system as would show, in itself, the number of guns and other articles on hand on the.day previous to the burglary. The Insurance Company adduced from Jordan:

“Q. Do you have any record whatsoever by which you can tell us how many guns you had on hand on August 9, 1960?
A. No, sir — other than the people that work in there. . . .
Q. You have no record by which the insurance company, or to which the insurance company can go and determine what merchandise you had on hand on August 9, 1960?
A. No, sir.”

Prom the foregoing and similar statements made by Jordan, the Insurance Company urges that he cannot recover because he failed to perform the condition of the policy as previously quoted, and the appellant cites and relies on such cases as Sun Mutual Ins. Co. v. Dudley, 65 Ark. 240, 45 S. W. 539; American Mutual Liability Ins. Co. v. Thomas, 233 P. 2d 215; Pruzan v. National Surety Corp. (Mo.), 223 S. W. 2d 8; Calloyan v. American Casualty Co., 51 Atl. 2d 678; and Noland v. Buffalo Ins. Co., 181 P. 2d 735.

In some of the cases and texts cited, the provision was that the insured must establish his loss from books which would determine 'what goods were on hand on a particular day. But that is not the provision in the policy now under consideration. Here, the provision is that the insured shall keep records in such manner that “the company can accurately determine therefrom the amount of loss.” (Emphasis supplied.) This policy did not require the insured to keep a set of books that would disclose the description of each stolen item, but only a set of books which would disclose the “amount of loss.” Jordan testified that the stolen guns and pistols had been placed on display only a short time before the burglary; and he was able from the invoices to give the serial number of each stolen gun and pistol and, likewise, the cost to him. As regards the small articles, he was able to determine how many items had been taken and also the cost. The amount of damage to the premises was likewise shown. Mr. Jackson, a public accountant who was familiar with Jordan’s books, testified:

“A. He has a single entry set of accounting records — well kept. ... I made a survey at that time of his operations from an accounting and tax point of view to determine the soundness of his system and he does have a sound system of accounts. That’s in keeping with the generally accepted accounting principles for the small retail establishment type business. . . .
Q. Mr. Jackson, could you, taking Mr. Jordan’s inventory, his purchases and his sales, and on August 10, 1960, arrive at a loss- — the amount of a loss — that occurred the previous night? . . .
A. I believe I could have from the records which he had. . . .
Q. In your opinion, this system used by Mr. Jordan is a practical system for that type of business?
A. Yes, it is practical. He has a periodical inventory basis and that is an acceptable method of accounting. . . . ”

The testimony of the accountant was sufficient to bring this case within our holding in Ark. Central Ins. Co. v. Ware, 65 Ark. 336, 46 S. W. 129, which was decided in 189$, and before the adoption of Act 85 of 1899. Our bolding in Ark. Central v. Ware is in accord with the holdings in other jurisdictions as regards the provisions in a policy which requires books to be kept from which the insurance company “. . . can accurately determine therefrom the amount of the loss.” In 29A Am. Jur. 138, “Insurance” § 944, the holdings are summarized:

“The ‘book warranty’ clause of an insurance policy does not exact any specific system or form of books to be kept by the insured, nor does it require a system of bookkeeping which will conform to the most scientific standards. The purpose of the clause is accomplished when the insured keeps his books in such a manner as to constitute a record of business transactions which a person who is of ordinary intelligence and is accustomed to accounts can understand, and from which he can ascertain the amounts and value of the merchandise at the time of the loss.”.,

In Couch’s Cyclopedia of Insurance Law, Vol. 5, § 1032, the holdings are summarized:

“Since bookkeeping or book warranty clauses ordinarily do not require that any specific system or form of books be kept, the purpose of the clause is accomplished when books are kept in such a manner as to constitute a record of business transactions which a person of ordinary intelligence and accustomed to accounts can understand, and from which he can ascertain the required information as of the time of the loss, . . . Furthermore, a condition for the keeping of books and accounts ‘in such a manner that the exact amount of loss may be accurately determined therefrom by the company’ is sufficiently complied with, where the hooks and accounts kept are such that, with the assistance of those who kept them or who understand the system, the amount of the loss can be ascertained.”

We conclude that the evidence was sufficient to support the finding and judgment of the Circuit Court.

Affirmed.

         We have been careful to refrain from citing any cases that are based on Act 85 of 1899 (see §66-523 Ark. Stats.) involving “substantial compliance,” because by §698 of Act 148 of 1959, the former statute has been reworded so as to limit the “substantial compliance” provision to fire insurance policies only. (See §66-3237 Ark. Stats.) In National Surety Co. v. Fox, 174 Ark. 827, 296 S.W. 718, we considered a burglary insurance policy and discussed burden of proof and sufficiency of the evidence. Also, there are annotations in 39 A.L.R. 1443, 62 A.L.R. 630, and 125 A.L.R. 350, entitled, “Sufficiency of bookkeeping to satisfy conditions of insurance policy.”


author: George Rose Smith, J.

text:
    Loftis v. Edwards.
    5-2590
    353 S. W. 2d 535
    Opinion delivered February 12, 1962.

      Warren E. Wood, for appellant.

      Moses, McClellan, Arnold,, Owen $ McDermott, by James R. Howard, for appellee.
   George Rose Smith, J.

At the April, 1960 term of the Pulaski chancery court the appellants obtained a default decree foreclosing a materialman’s lien for $932.54, but the decree was incomplete in that it did not appoint a commissioner to conduct the sale, nor did it fix the terms of the sale. In May of 1961 the appellants filed a petition asking the chancellor to correct the earlier decree by the entry of a nunc pro tunc order supplying the omissions. This attempted appeal is from an order sustaining the appellees’ demurrer to the appellants’ petition.

The appeal must be dismissed for the reason that an order which merely sustains a demurrer to the complaint or petition, leaving the cause pending in the trial court, is not a final appealable judgment. Walters v. Burnett, 228 Ark. 45, 305 S. W. 2d 549.

Appeal dismissed.


author: Paul Ward, Associate Justice.

text:
    Bennett v. Coleman.
    5-2591
    354 S. W. 2d 6
    Opinion delivered February 12, 1962.
    [Rehearing denied March 12, 1962.]

      Virgil Roach Moncrief and John W. Moncrief, for appellant.

      John B. Moore, Jr., for appellee.
   Paul Ward, Associate Justice.

Appellant, Susie Bennett, claims title to the southeast quarter of the southeast quarter of Section 30, Township 1 north, Range 1 west, based on a family settlement and an agreement with her father, R. C. McCurley, in 1940. Appellee, Theodore Coleman, claims the same land by virtue of a deed executed to him April 28, 1958, by his grandfather, the said R. C. McCurley. Appellee instituted this litigation in chancery court against appellant to oust appellant from possession and to have title to said land confirmed in himself. From an adverse decree appellant now prosecutes this appeal seeking a reversal.

Essentially it is the contention of appellant that in the year 1940 her father, pursuant to his plan to divide his land among his children, put her in possession of said land with the mutual understanding that if she paid him $120 a year (later, by agreement, $150 a year), as long as he lived, the land would be hers; and that she has remained in possession of said land up until the present time and has made every annual payment up until her father’s death on November 27, 1959. All of the above facts are either admitted by appellee or they are supported by the weight of the evidence.

Essentially appellee’s contentions are that the facts above set forth are insufficient at law to constitute a conveyance of the land to appellant, and that she is also estopped from now asserting her claim.

Family Settlement. R. C. McCurley and his wife lived for many years and raised a family in the neighborhood of the land in dispute. They had four children, viz.: a daughter, Susie Bennett, the appellant; a daughter, Maggie Malone; a son, Gordon McCurley; and, a daughter, Bobbie Coleman, who died prior to 1940 leaving four children, one of whom is appellee. Mrs. R. C. McCurley died in 1947. By the year 1939, when Mr. McCurley was 68 or 69 years old, he and his wife had acquired and owned four separate parcels of land consisting of 80 acres each, all in close proximity. Apparently they desired their children to own, occupy and live on these lands because, Mr. McCurley executed a will about that time in which he left each child (with the four children of Bobbie representing one child) one of the 80 acre parcels, the land in dispute going to appellant. Shortly thereafter Mr. McCurley destroyed the will, but he made an actual settlement or distribution of his lands among his three living children and the children of the deceased daughter, the same as was provided in the purported will. It is not denied that such settlement was made by Mr. McCurley, but, of course, there is a disagreement as to the effect of the settlement.

At any rate one son, Cordon, got the 80 acres assigned to him and he now lives on this parcel; one daughter, Maggie Malone, chose to live in California and the 80 acres assigned to her were sold (agreeable to her and her father) and she received a major portion of the proceeds; likewise, and for apparent reasons, the 80 acres assigned to the children óf Bobbie Coleman were sold and the proceeds divided among them; and, appellant took possession of the land assigned to her in 1940 (the land in dispute) and is still in possession thereof. On April 28, 1958, apparently after Mr. McCurley for real or fancied reasons became aggrieved at appellant, he sold the 40 acres in dispute to appellee.

Terms of the Family, Settlement. There is little if any dispute about the manner in which the settlement was made. Mr. McCurley had an agreement or understanding with each child that such child could have the allotted land if he would go into possession and pay $120 per year (later, by agreement, raised to $150 per year) and he (Mr. McCurley) would pay the taxes.

It is undisputed that, pursuant to the above arrangement, appellant took possession and control of the disputed land, has retained same until the present time, and has made the required annual payments up until the death of her father. From 1940 to 1947 appellant leased the disputed land to a third party and collected the rents thereon. In 1947 she moved to and resided on the land adjoining the disputed land and thereafter she exercised possession and control of the disputed land on which she made improvements.

After carefully considering the above factual situation as more fully set out in the record and after reviewing the applicable law, we reach the conclusion that appellant has title to the land in dispute. On many occasions the courts and text-writers have expressed approval of the disposition of property by family settlements. This expression is well stated in 16 Am. Jur. Descent and Distribution § 146 at 928 in these words:

“In the construction of family agreements for the distribution of the property of intestates, the courts, while seeking the real intent of the parties as revealed in the agreement, will, in the absence of fraud or mistake, adhere strictly to the terms thereof.”

In Martin v. Martin, 98 Ark. 93, 135 S. W. 348, there appears this statement:

“Courts of equity have uniformly upheld and sustained family arrangements in reference to property where no fraud or imposition was practiced.”

It is not contended here that any fraud or imposition was practiced by appellant. It is true that some consideration is required to sustain such a settlement. In the present case the annual payments satisfy this requirement. Appellee points out such payments did not equal the rental value of the land. While this may be true in the case of some of the children it is not shown to be true in the case of appellant. However, even if it were true as to appellant, we think it makes no material difference. While there must be a consideration we find no requirement that it be full or complete. In the Martin case just cited, the court went on to say:

‘ ‘ The consideration of the transaction and the strict legal rights of the parties are not closely scrutinized in such settlements, but equity is anxious to encourage and enforce them.”

Likewise this Court in Giers v. Hudson, 102 Ark. 232, 143 S. W. 916, in a well reasoned opinion, approved the following statement:

“ ‘Transactions between parent and child may proceed upon arrangements between them for the settlement of property, or of their rights in property in which they are interested. In such cases this court regards the transactions with favor. It does not minutely weigh the consideration on one side or the other.’ ”

In the cited case the Court also used language which is highly significant here. At page 240 of the Arkansas Report we find:

“Noav, it is equally well settled that this rule which requires a close scrutiny of such transactions is not enforced for the purpose of defeating the contract between parties merely because confidential relationship exists, but it is enforced solely for the purpose of discovering what the real intention of the parties was and to prevent one occupying such a relation of. trust from securing an unfair advantage by reason thereof.”

In the case under consideration there is no intimation that appellant (or any of the children) in any way took an unfair advantage of her father. The record clearly reveals the whole idea of a divisio'n and settlement of property was solely that of Mr. McCurley. Also, as mentioned in the above quotation, it is important to ascertain the “real intention” of Mr. McCurley. We believe it is clear from the record that he “intended” for the children (and appellant in particular) to have and own the property provided only they paid the stipulated annual amount, as did appellant. Such “intent” is clearly deducible from the fact that Mr. McCurley gave one of his daughters the proceeds from the sale of land assigned to her after she had chosen not to live on it. This Avas done even though she did not fulfill the terms of the assignment as did appellant.

In addition to the full force and effect which must be given to the family settlement doctrine, consideration must also be given to the fact that appellant carried out her part of the agreement made between her and her father. The fulfillment of this agreement required three things to make it binding and effectual, and to bypass the statute of frauds.

One, there must be the “intent” that appellant should own the property. As before explained we think such was the intent of both appellant and her father. Two, there must be a complete delivery of possession to appellant. This point is not seriously challenged and in any event we think it is supported by the great weight of evidence. Three, there must be a consideration passing from appellant to her father. We have already mentioned the annual payments, but we believe there is present another element of consideration that can be taken into account. We refer to the fact that appellant was willing to remain on the land and thereby forego any opportunity to acquire a home elsewhere. At least this was a consideration that one daughter did not want to pay. In plain simple language there was an agreement between appellant and her father which appellant has completely fulfilled, and equity should see to it that her father’s part of the agreement is also fulfilled.

The above situation brings this case in line with the reasoning often applied by this Court in similar cases. We refer to the line of cases where the owner agrees orally to give his property to one who agrees to support the owner during his lifetime. In these cases we have uniformly held the oral agreement is enforceable and will not be defeated by the statutes of frauds. See: Hinkle v. Hinkle, 55 Ark. 583, 18 S. W. 1049; Fred v. Asbury, 105 Ark. 494, 152 S. W. 155; Speck v. Dodson, 178 Ark. 549, 11 S. W. 2d 456; and, Schwegman v. Richards, 184 Ark. 968, 43 S. W. 2d 1088. Many decisions in support of the above cases have been rendered by this Court in recent years, but it would serve no useful purpose to set them out. The essence of what the many decisions hold is clearly summed up by this Court in the Speck case, supra, in these few words: “Appellee, having performed his contract, was entitled, after decedent’s death, to enforce the agreement, notwithstanding the same was orally made.”

We are cognizant of the facts that Mr. McCnrley had never made a deed to appellant and that he did deed the land to appellee. However, we think these facts are of no avail to appellee because,' by his own testimony, he knew all about the family settlement and appellant’s possession and claim when he accepted the deed. In fact appellee stated he was astonished that he (McCnrley) was backing up “on that decision”. For any recoupment in purchase price appellee must look to the estate and not to appellant.

We have also carefully considered appellee’s plea of estoppel based on an alleged statement appellant made to a witness to the effect her father could do what he pleased with the land in question, i.e., he could sell it if he desired. In the first place appellant emphatically denied making any such statement. In any event, such a statement by appellant would seem out of accord with her long asserted claim and her actual possession. Moreover, if she made such a statement, the actual meaning could be subject to doubt. She realized, of course, that she had no deed, and she could have meant there was nothing she could do to stop her father if he was bent on deeding the land to another person. We are, therefore, unwilling to say this one questionable incident is so indicative of appellant’s intent to own the land as to supplant the intent demonstrated by many years of possession and control.

Accordingly, the decree of the trial court is reversed and the cause is remanded for further proceedings consistent with this opinion.

Reversed.

Harris, C. J., dissents.


text:
    Lincoln Natl. Life Ins. Co. v. Reed.
    5-2520
    353 S. W. 2d 521
    Opinion delivered February 12, 1962.

      Keith, Clegg & Eckert, for appellant.

      Jeff Davis, for appellee.
   Sam Robinson, Associate Justice.

The appellee, Reed, filed in the Union Circuit Court three suits on five policies of disability insurance. The cases were consolidated for trial and from judgments for the policy holder on all of the policies, the insurance companies have appealed. There is a suit against the Equitable Life Assurance Society of the United States on one policy; a suit against the Lincoln National Life Insurance Company on two policies (one of these policies was originally issued by the Reliance Life Insurance Company but was taken over and assumed by Lincoln); and a suit against the Guardian Life Insurance Company of America on two policies.

It is undisputed that originally all of the policies were delivered to Reed, the insured, in the State of Tennessee and were contracts made and entered into in that state and were Tennessee contracts. Later Reed moved to Arkansas; here his safe was robbed and all of the policies were stolen. The manner of the re-issuance of the Equitable policy and the Lincoln policies was such that it cannot be said they are not Tennessee contracts the same as were the originals. But the facts are different in regard to the issuance of the Guardian policies and we have concluded that they are Arkansas contracts.

We will first discuss the Equitable and Lincoln policies. They were issued and delivered to Reed while he was a resident of Tennessee. There is no contention that in the beginning they were not Tennessee contracts to be construed according to the law of Tennessee.

Reed claims that he became totally and permanently disabled before he became sixty years of age, but he gave no notice to the insurance companies of his alleged disability until after he became sixty-five years of age. All of the policies provide for waiver of premium and for monthly benefits for permanent and total disability beginning before the insured reaches age sixty; but the policies provide for notice to the insurance company of such permanent and total disability, and under the laws of Tennessee the giving of such notice within a reasonable time from tbe commencement of tbe disability is a condition precedent to tbe right to recover. Such notice was not given. Brumit v. Mutual Life Insurance Company of New York, 178 Tenn. 48, 156 S. W. 2d 374, Metropolitan Life Insurance Company v. Walton, 19 Tenn. App. 59, 83 S. W. 2d 274. And, moreover, appellee concedes that under the terms of the Equitable policy, if the rights of the parties are to be determined by the law of Tennessee he cannot recover. Appellee says, “We admit that if the substantive right of Reed in this suit against Equitable is to be determined by the law of Tennessee, he did not prove that he was totally and permanently disabled before age sixty in accordance with the law of Tennessee.” The same thing is true of the Lincoln policies.

In several Arkansas cases it has been held that the giving of notice is a condition subsequent, and Reed argues that the policies should now be construed according to the law of Arkansas: first, because after moving to this State he borrowed money on the policies; second, because the policies were stolen in this State and the insurance companies replaced them; third, because he changed the beneficiary; fourth, because since 1930 notices of premiums due have been sent to him in Arkansas; and lastly, because he was domiciled in Arkansas at the time he became totally and permanently disabled. We do not think any or all of the things mentioned changed the Tennessee contracts to Arkansas contracts so as to cause the rights of the parties to be determined by the law of Arkansas.

To support his position appellee cites Aetna Casualty and Surety Co. v. Simpson, 228 Ark. 157, 306 S. W. 2d 117 and State Farm Mutual Automobile Ins. Co. v. Fuller, 232 Ark. 329, 336 S. W. 2d 60, but these cases merely hold that Arkansas law in matters of procedure should be applied to foreign contracts. Appellee also cites the California cases of Blair v. New York Life Ins. Co., 104 P. 1075, Baekgaard v. Carrerio, 237 F. 2d 459 and Braun v. New York Life Insurance Company, 115 P. 2d 880. But those cases appear to be based on the California Statute See. 1606, providing that contracts are to be construed according to the place of performance. Appellee also cites the cases of Watson v. Employers Liability Assurance Corporation, 348 U. S. 66 and Clay v. Sun Insurance Office, Limited, 363 U. S. 207, but we feel that our own cases are controlling, and that is: the law of the place where the contract is made prevails.

We said in Prudential Insurance Co. v. Ruby, 219 Ark. 729, 244 S. W. 2d 491, “ ‘Matters bearing upon the execution, the interpretation and validity of the contract are to be determined by the law -of the place where it is made.’ In J. R. Watkins Medical Co. v. Johnson, 129 Ark. 384, 196 S. W. 465, after quoting the language from Howcott v. Kilbourn we added: ‘It is to be noticed that the rule extends to the interpretation of the contract, as well as to other questions relating to its enforcement, and that the interpretation placed upon the contract by the courts of the State where it is made will be accepted in other states for the purpose of testing its validity and of affording remedy of its enforcement.’ ” See also John Hancock Life Insurance Co. v. Ramey, 200 Ark. 635, 140 S. W. 2d 701.

It is said in Appleman on Insurance, Section 7092, ‘ ‘ The validity, interpretation and obligation under a policy applied for, executed and delivered to the insured in one state has been held governed by the law of that state, though the insured subsequently moved elsewhere. The laws of the latter place apply only to remedy and procedure.” And, in 44 Ó. J. S. page 514 it is said, “Where the place of contract has been fixed it may not be changed by an agreement as to where premium notices shall be sent or as to the payment of premiums to agents; by the subsequent payment of premiums in another state; by the fact that, in accordance with provisions in the policy, it has been converted to one of a different type, or the beneficiary has been changed, or interests in the policy have been assigned; or by the fact that the contract has been taken over by a foreign insuranee company, or thereafter a change of beneficiary, made pursuant to the terms of the policy, was made by endorsement on the original policy at the foreign company’s office outside the state in which the contract was made.” The rights of the parties in the Equitable and Lincoln policies must be determined by the law of Tennessee, and as heretofore pointed out, under the law of that state the policyholder’s failure to give proper notice is fatal to his right to recover.

When appellee’s policies were stolen from his safe in North Little Rock, the Equitable and Lincoln companies promptly issued substitute policies which did not become Arkansas contracts, but the circumstances surrounding the issuance of new Guardian policies were such as to make them Arkansas contracts. The Guardian Company required the insured and beneficiary to sign an affidavit including, “Deponents hereby request and authorize the said company to cancel on its books the policy thus lost or destroyed and to issue in its place and as a substitute therefor a new one bearing a new number and a new date of issuance, but to be otherwise identical with the aforesaid policy lost or destroyed and in consideration of the issuance of the said substitute policy in the sum of $1.00 each of them in hand paid by said company, the receipt of which is hereby acknowledged by deponents [polh^drolder and beneficiary] jointly and severally have remised, released and forever discharged and by these presents do for themselves, their respective heirs, executors and administrators remise, release and forever discharge said company or its successors, . . .’’It appears that for a consideration the original Guardian policies were completely released and cancelled out and new policies were issued in Arkansas, making them Arkansas contracts. Since the Guardian policies are Arkansas contracts, the rights of the parties in those policies must be determined by the law of Arkansas.

Appellee recovered a judgment against Guardian on both policies for permanent and total disability for a period beginning five years next before tbe commencement of the action. Guardian Policy No. 586582 provides for waiver of premium and payment of disability benefits, but the policy further provides, “But such waiver of premiums shall not begin, nor shall such income payments begin as of a date, more than one year prior to the date of the receipt by the company of the required proof of disability.” And Guardian Policy No. 586581 provides that the insurance company will “Begin to pay to the insured the disability income stated on the first page hereof to be reckoned from the date of the receipt of such proof by the company at its home office. Such payments shall be made on. said date in each calendar month during the remaining lifetime of the insured so long as the disability continues, and the amount to be paid on approval of such proof shall include any payment or payments that may have accrued from the date of the receipt to the date of approval of such proof by the company ” (our italics) The company will “waive payment of further premiums becoming due hereunder during such disability, save any unpaid premiums necessary to complete premium payments for the first policy year. Any premium or premiums for the current policy year other than the first policy year which shall have become due after the beginning of such disability and prior to approval of the proof thereof, and, if paid, be refunded.”

The language of the Guardian policy first above mentioned, “But such waiver of premiums shall not begin, nor shall such income payments begin, as of a date more than one year prior to the date of the receipt by the company of the required proof of such disability” is so clear and unambiguous that it admits of no doubt as to its meaning. Its meaning could not be couched in any clearer language, and it means just what it says.

The same thing is true of Policy No. 586581 which provides that the insurance company will, “Begin to pay to the insured the disability income stated on the first, page hereof to be reckoned from the date of the receipt of such proof by the company at its home office. Such payments will be made on said date in each calendar month during the remaining lifetime of the insured so long as the disability continues, and the amount to be paid on approval of such proof shall include any payment or payments that may have accrued from the date of the receipt to the date of approval of such proof by the company.” Thus, it will be seen that under this policy, disability payments are to be reckoned from the date of the receipt by the company of proof of disability. Reckoned, according to Webster, means computed, calculated, etc. In McWilliams v. Comeaux, 135 La. 210, 65 So. 112, the Court said, “It is well settled in our jurisprudence that to ‘reckon from’ a particular day means that the reckoning begins from and after, and does not include, the day reckoned from. Hence, reckoning a period of ten years from February 13,1901, excludes that day and includes the whole of the thirteenth day of February, 1911.”

Appellant argues that there is no substantial evidence that the insured became totally and permanently disabled within the meaning of the policy before he became sixty years of age in 1954. It appears that the insured had just about everything wrong with him that a person could have and still live, and his trouble was far advanced before he reached age sixty in 1954. In 1953 he was diagnosed as having obstructive emphysema. In 1954 he was diagnosed as having tuberculosis with a cavity in the upper left lobe of his lung, necessitating the removal of the lobe. In 1955 he was operated on for removal of a section of his colon. Later he was operated on for a large hernia, and at the time of the trial it needed repairing.

The insured had been with Lion Oil Company for a long time and was a valuable employee, earning $36,000.00 a year, and although much of the time he was in a helpless condition and in the hospital in New Orleans or in Tucson, Arizona, the company made no reduction in his salary until 1957 when it was reduced to $25,000.00 a year. It appears that the company was very grateful for the services the insured had rendered, and being an exceptionally fine company, it, in effect, put the insured on a pension. It is not shown that Reed did any substantial amount of work subsequent to September, 1953. In fact, he was in such physical condition that it is hard to see how he did any work 'at all. In the circumstances it was a jury question as to whether he was permanently and totally disabled within the meaning of the policy. Alexander v. Mutual Benefit Health and Accident Association, 232 Ark. 348, 336 S. W. 2d 64.

Under the instructions of the court the jury was permitted to find for the policyholder from the commencement of his disability. To sustain this ruling of the court, the insured relies on Smith v. Mutual Life Insurance Company of New York, 188 Ark. 1111 and some other cases to the same effect. In the Smith case the Court held that under the terms of the disability policy involved, recovery could be had by the insured from the commencement of the disability. The policy did not provide that the insurance company would be liable for disability benefits only from a certain specified time. On the contrary, the Court said, “We think the language here employed is plain and definite to the effect that, if the insured suffers total and permanent disability prior to his sixtieth birthday, and at the time has paid all premiums due, liability then and there attaches, and recovery is postponed until notice or proof of loss is submitted.” To the same effect is Equitable Life Assurance Society v. Felton, 189 Ark. 318, Missouri State Life Insurance Company v. Foster, 188 Ark. 1116. 69 S. W. 2d 869 and Mutual Life Ins. Co. of New York v. Bowman, 209 Ark. 1001.

But, in Aetna Life Insurance Company v. Davis, 187 Ark. 398, the Court gave effect to a provision in the policy limiting the time of recovery to a period of six months prior to the time the proof was furnished. There the Court said, “If therefore the disability exists and commenced when the contract was in force, it is immaterial how or when proof is made, if within the statutory period, and recovery may be had for the damage sustained, excluding that occurring beyond six months from the time proof is made.” (our italics). In Aetna Life Insurance Company v. Langston, 189 Ark. 1067, the Court cited with approval the above quoted language in the Davis case. In Missouri State Life Ins. Co. v. Case, 189 Ark. 223, the Court said, “This Court has often held that, unless it is inescapable from the language of the policy that notice of disability and proof thereof are conditions precedent to recovery, it is the existence of disability that fixes liability and not the proof thereof.”

We think the language in the Guardian policies is Inescapable to the effect that in one policy the company would pay for a time beginning one year before receiving proof of loss and the other policy the company would pay from a time beginning upon the receipt of proof of loss.

In the Case at Bar the insured gave the insurance company no notice of his disability until more than five years after the commencement of such disability. By requested instruction No. 3, refused by the trial court, appellant asked the court to submit to the jury the question of whether the insured gave reasonable notice of his disability. We think that instruction should have been given to the jury. In Home Life & Accident Company v. Beckner, 168 Ark. 283, 270 S. W. 2d 529, the Court held that the policyholder could not wholly ignore the requirements of the policy as to notice and said, “The question as to what would be a reasonable time, under the varying circumstances of each particular case, would seem primarily to be a question for the jury under proper instructions by the court.” And in Aetna Life Insurance Company v. Davis, 187 Ark. 398, 60 S. W. 2d 912 the Court said, “The proof of disability is intended to give the insurer an opportunity to investigate the facts affecting the question of its liability and the extent thereof.” Some of the appellee’s trouble occurred before he became sixty years of age and some of it occurred at a later time. In these circumstances it was a question for the jury as to whether the insured gave reasonable notice of his disability.

The judgments against Equitable and Lincoln are reversed and the causes dismissed. The judgment against Guardian is reversed and the cause remanded for a new trial.