text:
    Tesch v. Miller.
    5-1081
    296 S. W. 2d 392
    Opinion delivered December 10, 1956.

      Gordon H. Sullivan and Harry G. Robinson, for appellant.

      George W. Shepherd, for appellee.
   J. Seaborn Holt, Associate Justice.

There is involved in this action the ownership of a deposit, in the amount of $3,016, in the Commercial National Bank of Little Rock, Arkansas. Herman Tesch Woita died testate June 28, 1954. He was survived by a brother, Otto L. Tesch, a sister, Anna B. Ewing', and Mildred Jones Miller, a niece. Under his will he gave to Otto, Anna and Mildred equal shares in certain pieces of real estate. He also provided that: “All the rest and residue of all personal property of which I may die possessed, I also give, devise and bequeath to the above mentioned three persons, except that if I should own an automobile at the time of my death, then I give, devise and bequeath said automobile to my niece, Mildred Jones Miller. ’ ’ The will designated Mildred Jones Miller, executrix, to serve without bond.

Mildred Jones Miller had lived with the deceased, at intervals, for about four years prior to his death. There was evidence that she and her uncle were very close and she testified that he was like a father to her. For approximately six months preceding his death she was his nurse at his home and at the hospital and it appeared that he wanted no one else to wait on him. The deceased was suffering with cancer from January 1954 until his death.

The record reflects that on May 3, 1951, Herman Tesch Woita (the deceased) accompanied his niece, Mildred to the Commercial National Bank, Little Rock, Arkansas, and there with the advice of an employee of the bank (Miss Clark) set up a joint bank account with right of survivorship. The signature card furnished by the bank, which both signed provided:

“. . . SIGNATURE

Mr. /s/ Herman Tesch Woita

Mr. Herman Tesch-Woita

By /s/ Mildred Jones Miller

ADDRESS: 901 Welch St., City.

AS JOINT TENANTS WITH EIGHT OF SURVI-VORSHIP AND NOT AS TENANTS IN COMMON Above please find 2 duly authorized signatures, which you will recognize in the payment of funds or the transaction of other business in our account.

/s/ Herman Tesch Woita

Miss Miller authorized to sign 5-3-51. She is niece of H. Tesch-Woita.”

Upon the death of Herman Tesch Woita there was a balance left in the above account of $3,016, which the appellee, Mildred Jones Miller, claimed, as the survivor of the above joint account. Upon a trial the Probate Court sustained her contention, and held that she was entitled to this money. She further contended that she was entitled to $872 for alleged services in nursing and caring for the deceased in his last illness. This claim for services was denied by the trial court.

The case comes to us on direct appeal of appellants and the cross-appeal of appellee. Appellants, Otto L. Tesch and Anna B. Ewing, contended in the trial court, and here on appeal, that this joint bank account should have been declared the property of the estate; that the decision of the Probate Judge does not meet the requirements of a joint bank account with right of survivorship as laid down by this court as to: unity of interest; unity of title; unity of time; and unity of possession; and that the evidence does not support appellee’s contention that a joint bank account with right of survivorship was created.

We have concluded that the decree of the trial court should be affirmed on both direct and cross appeal. Our statute, Ark. Stats. 1947, § 67-521 provides: “Deposits in two names. — When a deposit shall have been made by any person in the name of such depositor and another person and in form to be paid to either, or the survivor of them, such deposit thereupon and any additions thereto made by either of such persons, upon the making thereof, shall become the property of such persons as joint tenants, and the same, together with all interest thereon, shall be held for the exclusive use of the person so named, and may be paid to either during the lifetime of both, or to the survivor after the death of one of them; and such payment and the receipt of acquittance of the one to whom such payment is made shall be a valid and sufficient release and discharge to said bank for all payments made on account of such deposit prior to the receipt by said bank of notice in writing signed by any one of such joint tenants not to pay such deposit in accordance with the terms thereof. (Acts 1937, No. 260, § 1, p. 928; Pope’s Dig., % 727a.)” Under the clear and unambiguous terms of the signature card we hold that a joint account with right of survivorship was set up and clearly intended by the deceased. Miss Yeneta Clark (Secretary, Commercial National Bank) testified: “Q. (Mr. Shepherd) Now, according to this signature card, Miss Clark, Mrs. Miller was authorized to sign on account May 3rd, 1951? A. That is right. Q. She is the niece of Herman Teseh-Woita, as typed on the card? A. Yes, sir. Q. Who typed it on there? A. I did, myself. Q. Did you talk to Mr. Teseh-Woita about the effect of this, just what he was doing? A. Yes, I did. Q. I wish you would tell the Court the conversation between you. A. As far as I can remember it. Q. Was Mrs. Miller present at the time? A. Yes, both Mr. Teseh-Woita and Mrs. Miller were there. Q. Tell the court what your conversation was with him, what was said. A. He told me he wanted his niece, Mrs. Miller, to sign on a joint account. I brought the card out, he signed it, then he said, ‘I want Mrs. Miller to have this money without any trouble.’ So I had him sign it then I stamped the notation on it that made it a joint survivorship account. Q. Did you explain that to him? A. Yes, sir, I did. Q. Do you remember that conversation? A. Yes, sir, it was just the way I told you. Q. Did he ask you what the effect of it would be? A. No, he simply said he wanted his niece to have his money after he died, without any trouble, without having to go to court about it. Q. Did you explain to him what a joint account meant? A. Yes, I told him that once she signed it as a joint account that either one could draw it out the same as the other, that she had as much authority over it as he did. Q. Now, that is all that is on that signature card, the two signatures and quote ‘as joint tenants with right of survivorship and not as tenants in common.’ A. Yes, sir. Q. There is nothing said about paying after death on that card? A. Oh, no.” There was testimony from a number of other witnesses tending strongly to corroborate Miss Clark. Herman Tesch Woita, in a letter to his brother and sister, dated April 9, 1953, said: “As before stated Mildred is joint signer with me to get into the bos at ANY TIME. She also is joint signer with me on a savings account I have in the same bank. She and her signature can cash that savings account at ANY TIME.”

Following the two signatures on the card is, as indicated, the written statement “as joint tenants with the right of survivorship and not as tenants in common.” There was nothing on this card directing, or, even indicating, that this account should be ineffective until the death of the deceased, Herman Tesch Woita. This fact clearly distinguishes this case from Powell v. Powell, 222 Ark. 918, 263 S. W. 2d 708, strongly relied upon by appellants. For in the Powell case we said: “The signature card reads: ‘Title of account, S. F. Powell, Al-media Powell, W. E. Powell.’ These names were inserted by Lynch, and the three authorized signatures are appended. But to the right of these signatures, with a bracket cutoff, there was written: ‘After death of 8. F. Powell.’ ”

The principles of law announced by this court in the case of Pye v. Higgason, 210 Ark. 347, 195 S. W. 2d 632, are applicable and controlling here. Under facts similar, in effect, to the present case, we held: “Banks and Banking — Joint Accounts. — Money deposited in bank in the names of two persons jointly with right of survivor-ship is a joint deposit and, on the death of one of the parties, the survivor becomes entitled to the whole. 2. Statutes. — -Section 727a. Pope’s Digest, was enacted for the purpose of declaring the relationship of the parties to a joint bank account and fixing the right thereto on the death of one of the parties. 3. Joint Tenancy.— Survivorship is one of the results of joint tenancy. 4. Joint Tenancy — Right of Survivor.-Where appellee and deceased had a joint bank account with right of survivorship, appellee became, on the death of the other joint depositor, entitled to the whole, and appellants as collateral heirs of deceased have no right or title thereto.’ The headnote in this same case as reported in 195 S. W. 2d 632 is in this language: “Where bank deposits were made in names of intestate and his niece as a joint account payable to either of them, and, in event of death, payable to the survivor, deposits did not become property of intestate’s estate on his death but passed by operation of law to the niece as the survivor of a joint tenancy. Pope’s Digest 727a (which is our § 67-521 of 1947 Ark. Stats. Anno.)”

As to appellee’s claim for services rendered in nursing her uncle, the burden was on her to prove that such services were rendered under a contract, either expressed or implied. We think she has failed to sustain this burden, on the evidence presented. It appears that her uncle was rather generous in providing for her. There is a strong presumption that such services were gratuitous, since they were rendered by one member of the family for another. The rule is stated in Williams v. Walden, 82 Ark. 136, 100 S. W. 898, in this language: “The presumption is that services rendered by members of the same family, and especially between father and son, are gratuitous. Such services are enjoined by the reciprocal duties of the family relation, and are always presumed to have been prompted by natural love, rather than by the promise or the hope of pecuniary reward. ‘ Courts are reluctant to infer a pecuniary recompense from the performance of filial or parental duties such as humanity enjoins.’ Hence the burden is upon him who claims a money recompense for personal services performed, whether voluntarily, or upon the request of the other, to establish a contract, expressed or implied, for such consideration. Page on Cont. p. 1183, § 788; Schouler, Dom. Rel. § 269; Rodgers on Dom. Reh, § 483; 1 Beach on Contracts, § 655; Reynolds v. Reynolds, 92 Ky. 556; Zimmerman v. Zimmerman, 129 Pa. 229; In re Kirkpatrick’s Estate, 34 S. C. 255. See also Lewis v. Lewis, 75 Ark. 191 . . .”

Affirmed on both direct and cross appeal.


source: Caselaw Access Project

author: Ed. F. McFaddin, Associate Justice.

license: Public Domain

text:
    McCartney v. Merchants and Planters Bank.
    5-1047
    296 S. W. 2d 407
    Opinion delivered December 10, 1956.

      Kaneaster Hodges, for appellant.

      Fred M. Pickens, Jr., for appellee.
   Ed. F. McFaddin, Associate Justice.

The question here posed is whether the Probate Court abused its discretion in appointing the appellee Bank as guardian of the person and estate of Mrs. Edith Dollman, an incompetent lady of middle age.

The appellant — a sister of Mrs. Dollman — sought to be appointed; an adopted son of Mrs. Dollman also sought to be appointed; the Court, on its own motion, appointed the appellee Bank; and appellant brings this appeal listing three points for reversal:

“ (1) Section 57-608 of the Arkansas Statutes gives preference in the appointment to the relatives of the ward by blood or marriage.

“(2) The welfare and best interests of the ward require the appointment of the petitioner, Mrs. Ray McCartney.

(3) It was an abuse of discretion, assuming there was such in the court, to appoint a stranger as guardian of the person and estate in preference to a qualified blood relative under the circumstances of this case.”

I. Appellant’s Points 1 And 3 — Statutory Preference And Court’s Discretion. It is unnecessary to give all the details about the life of the unfortunate lady, who is a hopeless mental case and has been for many years. The appellant is her sister and over all the years has shown continuous loving care for the afflicted lady. On the other hand, the adopted son has let years pass without seeing his mother or inquiring of her condition. As between the appellant and the adopted son, the appellant is infinitely better qualified to be appointed. When the Chancellor was faced with this dispute between the sister and the adopted son, the Chancellor selected the appellee as a neutral third party; and appellant says this violates the statutory preference given relatives.

Our statute on preference in granting letters of guardianship is found in § 57-608 Ark. Stats. The statute gives a preference to the parents of an unmarried minor, and then says: “. . . the Court shall appoint as guardian of an incompetent the one most suitable who is willing to serve, having due regard to ... (d) the relationship by blood or marriage . . .” It will be observed that the quoted statute does not make an ironclad order of priority in a situation like the one here: rather, the statute leaves it to the Court to select that person as guardian, the appointment of whom would be for the best interests of the incompetent. Appellant relies on the case of McLain v. Short, 144 Ark. 600, 224 S. W. 428; but that case involved the guardianship of minors as between a grandparent and a stranger; also it was decided before the passage of our present statute, which is Act No. 140 of 1949. In short, we hold that the appellant had no statutory preference in this case.

This holding also disposes of appellant’s third point regarding the abuse of discretion. Since the statute gave no ironclad order of preference, the Court was, of course, authorized to exercise its discretion in selecting a guardian, having in mind always the best interests of the ward; and, unless it be shown that the Court was in error in determining the best interests of the ward, then there was no abuse of discretion.

II. Appellant’s Point 2 — Welfare And Best Interest Of The Ward. "We reach the conclusion that the Probate Court did not abuse its discretion in the appointment of the appellee. There was a sharp dispute between two relatives • — ■ a sister and an adopted son; and the Chancellor had the right to select a neutral third person. In 25 Am. Jur. 23, the general rule is stated:

“Subject to statutory restrictions, the selection of the person to be appointed guardian is a matter which is committed largely to the discretion of the appointment court, and an appellate court will interfere with the exercise of this discretion only in case of a clear abuse.”

In 21 A. L. R. 2d 880 there is an annotation entitled: “Priority and preference in appointing guardian of an incompetent.” It is there recognized as a general rule:

“Consanguinity is considered a recommendation in the selection of a guardian for an incompetent, and will not be disregarded except upon strong grounds, the presumption being that the next of kin of the incompetent will be more likely to treat the latter with patience and affection than will a stranger; so, the nsnal practice is to appoint as guardian of the incompetent one of the next of kin or other close blood relatives, or their nominee, or at least to consider them seriously in making the appointment.”

But, after stating the general rule as above quoted, the annotation cites many cases to sustain the following as a limitation on, or qualification of, the general rule:

“As intimated above, the court is not necessarily bound to appoint next of kin or close relatives or the nominees of such blood relatives, for the court, keeping in mind the principle of law that the best interests of the incompetent are paramount, may, in the exercise of the discretion confided in it with respect to the appointment of guardians, appoint a stranger where to do so would be for the best interests of the incompetent in view of such factors as the adverse interests of the relatives and the incompetent, lack of business ability of the relative, and various other matters further to be noted. ’’

The record here reflects that Mrs. McCartney has, over the years, looked after her unfortunate sister. The supervisor of the institution where the lady is being treated testified that Mrs. McCartney made regular visits and that the incompetent sister loved such visits and looked forward to them. The former guardian admitted that he relied on Mrs. McCartney’s advice and counsel; and all of the testifying brothers and sisters of the incompetent preferred Mrs. McCartney and stated that she was the one that had really best looked after the incompetent during the years. So, if Mrs. McCartney should desire to be named guardian of the person of her sister, this present proceeding would not be an absolute bar to such application: the matter will then be open for the Probate Court to decide in its discretion. The point is: we cannot say that the Probate Court was in error in deciding this case as it did under all of the facts and circumstances disclosed by this record and in view of the sharp contest between the appellant and the adopted son of the incompetent lady.

Affirmed.

       In making Ms decision, the Chancellor said: “This seems to be a family argument, and you have introduced a long and imposing array of outstanding business men of the community, and they all say — and I have listened closely to their testimony, and they all say — that both of these petitioners here would be, according to their opinions, capable, competent and fit to manage the estate and property involved in this action.
      “However, I have always found that particularly in non compos mentis cases a bank has a great many advantages over an individual in that it is at all times impartial and in the estate it has the advanages of the business acumen; and in view of the fact that . . . both sides of the house of the estate do business with the Merchants and Planters Bank that bank will be appointed.

        “MR. HODGES: Your Honor, does that mean of the person?
      “THE COURT: It has been handled that way with Mr. Ben White. I don’t think the Bank would have any objection. I don’t know where there would be any conflict. I do not know whether it would be an advantage or a disadvantage to have someone appointed as personal guardian; but if Mrs. McCartney would like to be appointed guardian of the person, that could be done.
      “MR. HODGES: We are not amending our request. We are just asking the Court to clarify its finding. You will please note our objections and exceptions to the ruling, and we pray an appeal to the Supreme Court of Arkansas.”


text:
    Howell v. Van Houten.
    5-1099
    296 S. W. 2d 428
    Opinion delivered December 10, 1956.

      Ted McCastlain, for appellant.

      Frances D. Eoltzendorff and J. F. Eoltzendorff, for appellee.
   Ed. F. McFaddin, Associate Justice.

This appeal necessitates a study of certain portions of Act No. 351 of 1955. The basic issues are (a) the power of the Circuit Court to render a default judgment, without notice, in a county other than that in which the action is pending; and (b) the right of the defaulting defendant to have such judgment set aside without being required to allege and show a meritorious defense to the original cause of action.

On November 28, 1955, appellee, Van Houten, filed action in unlawful detainer against appellant, Howell, in the Circuit Court for the Northern District of Prairie County, in which county were situated the lands alleged to be so unlawfully detained. Service was obtained on Howell on December 1, 1955, and she made a bond to retain possession of the land. The bond was approved and filed. The terms of the Circuit Court for the Northern District of Prairie County are the third Monday in March and September of each year (§ 22-310 Ark. Stats.).

The record indicates that the Circuit Court was not in session in the Northern District of Prairie County at any time from December 1, 1955 until the beginning of the March, 1956 term, which was March 19th. On that day, when Howell’s attorney appeared in open court for his client, he learned — for the first time — that a default judgment had been granted in favor of Van Houten on February 23, 1956, and that the default judgment had been placed of record on February 25, 1956. Howell then filed, on March 24, 1956, her “Motion to Vacate Judgment. ’ ’ The motion was heard in open court on March 28th; and the Court found and declared these facts:

That on the 23rd day of February, 1956 said cause of action pending in the Prairie County Circuit Court was presented for judgment to the Court in Vacation in Chambers in Lonoke, Arkansas, Lonoke County; and it appearing* that the defendant had failed to file any defense to said cause of action rendered judgment against the defendant for possession of the lands described in Plaintiff’s complaint same being entered of record on the 25th day of February, 1956 in the office of the Circuit Clerk of Prairie County for the Northern District. The Court finds that the Plaintiff did not give any notice to the defendant, or her attorney that said cause would be presented to the Court for judgment in Lonoke County, the residence of the judge of said Court . . .”

After making such findings the Circuit Court denied Howell’s motion to vacate the default judgment; and Howell has appealed, claiming that “the default judgment rendered against appellant in Lonoke County in an action pending in Prairie County is null and void, in the absence of any notice to appellant.”

Appellee, Van Houten, claims: (1) that the order of the Circuit Court overruling the motion to vacate is not a final order from which appeal may be taken; and (2) that the default judgment against Howell is not null and void.

I. Finality Of Judgment Against Howell. Certainly insofar as appellant Howell is concerned, the default judgment is final until vacated. We do not know what defense Howell may have to the unlawful detainer action; hut we do know that until the default judgment be set aside, Howell has no right or power to make such defense. So as to Howell, the default judgment on Van Houten’s unlawful detainer action is final; and Howell is the only appellant in this Court. See Piercy v. Baldwin, 205 Ark. 413, 168 S. W. 2d 1110, and cases there cited.

II. Validity Of The Default Judgment Against Howell. Act No. 351 of 1955 (§ 29-410 Ark. Stats.) is the only statute that is claimed to empower a Circuit Judge to render a default judgment when the Judge is not actually holding court in the county in which the cause is pending. As to the constitutionality of that statute, we need not here express any opinion because in this case there was no notice given, as required by the statute. Section 3 of said Act 351 says:

“Upon default by failure to file a defense as required by Section 126 of the Civil Code, as amended, the complaining party may present his cause of action for judgment thereon ... to the court in vacation of the trial judge upon not less than 15 days notice to the defaulting party. Said notice shall be in writing, setting forth the action proposed to be taken and the time and place of presentation, and shall be by registered mail with return receipt requested. A copy of said notice together with the postal written return receipt shall be filed with the clerk of the court in which the action is pending.”

As heretofore copied, the Trial Court found: “The Court finds that the plaintiff did not give any notice to the defendant, or her attorney that said cause would be presented to the court for judgment in Lonoke County, the residence of the judge of said court.” Thus, there was no compliance with the notice provision of said Act 351. The words of Justice Battle in Williams v. Reutzel, 60 Ark. 155, 29 S. W. 374, are apropos:

‘ ‘ It has often been held by this court that 1 the meeting together of the judge and officers of a court, at the place, but not at the time, fixed by law for holding the court, was not a court under our constitution and law, but was a mere collection of officers, whose acts must, be regarded as coram non judice and void.’ Dunn v. State, 2 Ark. 252; Brumley v. State, 20 Ark. 77; Scott v. State, 22 id. 369; Ex Parte Jones, 27 id. 349; Chaplin v. Holmes, 27 id. 414; Graham v. Parham, 32 id. 687; Grimmett v. Askew, 48 id. 155; Neal v. Shinn, 49 id. 227. This rule is applicable to the proceedings of a court held at a place not authorized by law. The object of the law in both cases is the same. That object is certainty, and to prevent a failure of justice by reason of parties concerned or affected not knowing the time or place of holding courts.”

There could be no “court” of the Northern District of Prairie County in session in Lonoke County; and the notice required by Section 3 of the Act 351 was not given; so the purported default judgment of February 23, 1956 was null and void.

III. Howell’s Failure To Allege A Meritorious Defense To Van Houten’s Complaint. Appellee points out that in the motion to vacate the default judgment, Howell did not allege a meritorious defense; and appellee insists that a party seeking to set aside a default judgment must not only allege a valid defense hut must also make-a prima facie showing of such defense; and appellee cites such cases as Ragland v. Rhoads, 215 Ark. 64, 219 S. W. 2d 639; and Merriott v. Kilgore, 200 Ark. 394, 139 S. W. 2d 387.

We hold that the rule recognized in these cited cases, is not applicable to a case like the one at bar, because,. here, the purported default judgment was rendered without a court being duly in session. In State v. West, 160 Ark. 413, 254 S. W. 828, a judgment was rendered in vacation, which situation was not then allowed by law. "When the State (against which the judgment had been rendered) filed a motion at the next term of the court to set aside the vacation judgment, it was contended by the opposing party that the State had to comply with $ 6290 C. & M. Digest (which is now § 29-506 Ark. Stats.) prescribing the procedure for setting aside a judgment after the term. We held that such section had no application to a proceeding to set aside a void judgment rendered at a time not authorized by statute, saying:

“We do not think, however, that the State’s right to proceed to vacate the judgment is created by § 6290 of the Digest; nor do we think that the procedure is controlled by that section, or by § 1316 of the Digest. In fact, this is not a statutory proceeding, but is a special proceeding, instituted for the purpose of calling to the attention of the court the invalidity of the purported judgment, for the reason that it was rendered in vacation . . . This proceeding is therefore an exercise of that continuing power which courts have over their judgments to find and declare that what purports to be a judgment is, in fact, no judgment at all; . . .”

In the case at bar, we conclude that the order of the Circuit Court of the Northern District of Prairie County, under date of March 28, 1956, refusing to set aside the default judgment against appellant, Howell, should be reversed and this cause remanded to the Circuit Court with directions to set aside the said default judgment and for further proceedings not inconsistent with this opinion.

       The motion recited, inter alia,: “That on the 28th day of November, 1955, the plaintiff in the above numbered cause filed suit against her for the possession of certain lands described in his complaint; that the defendant posted bond as required by law and retained possession of the lands pending the trial of same at the regular Term of said Court which convened on the 19th day of March, 1956; that the Judge of said Court, the Hon. W. J. Waggoner, signed a judgment by default against the defendant in Vacation, at Lonoke, Arkansas on the 23rd day of February, 1956; that said default judgment was not entered of record until the 25th day of February, 1956 in the office of the Circuit Clerk in and for the Northern District of Prairie County . . .
      “That subsequent to the date of the default judgment, and the entry of same, the defendant employed counsel to represent her in said cause, and on the 19th day of March, 1956 for the first time learned of the default judgment for possession which appeared in Judgment Record Book “G” at page 564 of the records of the Prairie County Clerk; ...
      “Defendant states: that the default judgment entered against her on the 25th day of February, 1956 is absolutely void and should be set aside for the following reasons:

        “a. The judgment is void because of the Judge of said Court in Vacation signed said judgment without the County, or in Lonoke County, outside of the county in which said cause of action was pending; and therefore Act 49 of the Acts of 1955 relied upon by plaintiff is not applicable.
      “b. The judgment is absolutely void under the provisions of Section three (3) of Act 351 of the Acts of Arkansas for the year 1955 which provides not less than 15 days notice to the defaulting party. This section provides that said notice shall be in writing, setting forth the action proposed to be taken and the time and place of presentation, and shall be by registered mail with return receipt requesed. A copy of said notice together with the postal written return receipt shall be filed with the Clerk of the court in which the action is pending.
      “Defendant states that no notice was given to her as required by law and that said judgment should be by the Court set aside and held for naught, and that she be given time to file a defense in said action; that unless said void judgment is set aside her rights of possession will be prejudicially affected.
      “WHEREFORE, defendant prays that her motion be set down for hearing at a time convenient for the Court, and that upon final hearing the judgment herein mentioned be set aside, and that she be permitted to file herein a defense to said cause of action.”

         Section 3 of Act 49 of 1955 (§ 29-401 Ark. Stats.), in referring to judgment by default, says that it is to be rendered “by the court”; and that means when the judge is actually holding court at the proper place. See Williams v. Reutzel, 60 Ark. 155, 29 S. W. 374.


author: Minor W. Millwee, Associate Justice.

text:
    Shaw v. Keeshin Poultry Co.
    5-1091
    296 S. W. 2d 400
    Opinion delivered December 10, 1956.

      J. Wesley Sampler, for appellant.

      Harper, Harper & Young, for appellee.
   Minor W. Millwee, Associate Justice.

On October 1954, appellant, Jess R. Shaw, filed a claim with the Arkansas Workmen’s Compensation Commission seeking compensation for disability on account of an accidental injury which he allegedly sustained on or about April 15, 1953, while employed by appellee, Keeshin Poultry Company, at Rogers, Arkansas. Hearings before a single commissioner and the full Commission resulted in a finding that the injury occurred in April, 1952 rather than in 1953 as claimed by appellant, and was, therefore, barred by the two-year statute of limitations (Ark. Stats., Sec. 81-1318 a(l)). On appeal to circuit court the findings and order of the Commission dismissing the claim as filed out of time were affirmed.

Is the Commission’s finding that the injury occurred in April, 1952, supported by sufficient competent evidence? That is the sole issue.

It is undisputed that appellant sustained an injury to his leg when he fell from a truck while assisting other employees in loading it with coops on the occasion in question, and that he continued to work thereafter until September 4,1954. Appellant’s foreman, James O. Shaddox, was at tlie plant when the accident occurred. He testified he hired appellant in March, 1952, and the accident happened about two or three weeks later; that appellant fell from a Reo truck which became “tail-heavy” when fully loaded; and that the company traded the Reo truck for a "White truck, which had a longer wheel base, in August, 1952. Max Elliott, another employee, who was present at the time, gave testimony similar to that given by Shaddox. Frank Hall, manager of the poultry plant, testified from company records that appellant worked more or less continuously from March, 1952 until September 4, 1954; and that the company traded the Reo truck in for the White truck on August 25, 1952.

The testimony of Shaddox and Elliott was corroborated by that of appellant’s witness, Dr. Coy Kaylor, who stated that he treated appellant in 1954 when the latter gave him a history of having fallen from the truck on or about April 15, 1952, and that he did not see a doctor until about a year later.

Appellee testified the injury occurred on or about April 15, 1953, when he fell from the White truck. Several of the appellant’s fishing and hunting companions testified they noticed him limping from an injury on trips in 1953 but observed no such indications on similar trips in 1952. Two former fellow employees, who were not present at the time of appellant’s injury, stated it happened a few weeks before a fire which occurred at the plant on June 14, 1953.

The date of appellant’s injury was purely a question of fact to be determined by the Commission on sharply disputed evidence. Under our settled rule the Commission’s finding on this issue will not be disturbed on appeal when supported by substantial evidence. J. L. Williams & Sons, Inc. v. Smith, 205 Ark. 604, 170 S. W. 2d 82; Mechanics Lumber Co. v. Roark, 216 Ark. 242, 224 S. W. 2d 806. While we are mindful of the rule that a broad and liberal construction should be accorded the Workmen’s Compensation Law, and doubtful cases resolved in favor of compensation, we are unable to say the Commission’s finding is unsupported by sufficient competent evidence. The judgment of the circuit court is, therefore, affirmed.


text:
    Carrier v. Beck, County Judge.
    5-1100
    296 S. W. 2d 446
    Opinion delivered December 10, 1956.
    [Rehearing denied January 7, 1957.]

      Marvin Brooks Norfleet, for appellant.

      Hale & Fogleman, for appellee.
   Minor W. Millwee, Associate Justice.

This is a contest in which each party has avidly avoided a hearing on the merits and sought instead to outmaneuver the other in the pleadings. It now appears that appellee has won the final skirmish.

On June 7,1955, appellant, W. H. Carrier, filed a petition for a writ of certiorari to quash an order of the Crittenden County Court purporting to remove bim from office as a commissioner of Road Improvement District No. 7. Appellant alleged he was the duly appointed, qualified and acting commissioner and that the removal order entered by appellee, Milton B.. Beck, as county judge was void because it was rendered without notice and without a public hearing. Appellee filed a demurrer to the petition asserting as one of the grounds therefor that it did not state facts sufficient to justify the issuance of the writ. The demurrer was sustained by the circuit court on July 6, 1955 and, upon appellant’s refusal to plead further, the petition was ordered dismissed. On appeal to this court we reversed with directions to overrule the demurrer filed by appellee. Carrier v. Beck, 225 Ark. 753, 285 S. W. 2d 326. Our mandate directed that the cause be “remanded to said Circuit Court with directions to overrule the demurrer and for further proceedings to be therein had according to law, and not inconsistent with the opinion herein delivered. ’ ’

When appellant filed a motion for judgment on the mandate on remand, appellee filed a motion for time to prepare and file a response to the petition for certiorari. Appellant then filed a motion to strike appellee’s motion on the ground that any judgment rendered upon such response would be inconsistent with our opinion on the first appeal because, “any defenses which would be attempted to be set up in or by any such response were known or could have been known to respondent before this cause was first tried in this court upon its merits. ’ ’ After a hearing on the motions the circuit court entered an order on the mandate on February 26, 1956, overruling appellee’s demurrer to the petition for certiorari and granting him 15 days within which to file a response and overruling appellant’s motion for judgment conforming to the mandate and motion to strike appellee’s motion.

On March 8, 1956, appellee filed a response to the petition for certiorari in which he admitted the challenged order was made without notice to appellant and that it did not purport to remove him because of neglect of duty, incompetency or malfeasance, but denied all other allegations of the petition. On May 4, 1956, appellant filed a motion to strike the response on the grounds that (1) any judgment rendered thereon would be inconsistent with our former opinion, (2) it stated no defense, and (3) the former proceedings and judgment amounted to a decision on the merits and are res judicata of all matters asserted in the response. On the same date appellant filed a demurrer to the response on the grounds that it did not state facts sufficient to constitute a defense and that the court was without jurisdiction to determine any issue sought to be presented therein.

After a hearing on May 7, 1956, the trial court overruled appellant’s demurrer and motion to strike appellee’s response to the petition for certiorari. The instant appeal is from a judgment dismissing the petition upon appellant’s refusal to plead further and his election to stand upon his motion to strike and demurrer.

For reversal appellant contends the trial court erred in failing to sustain his motion for judgment on the mandate and motion to strike appellee’s motion for time to respond, as well as his demurrer and motion to strike appellee’s response. It is argued that the judgment on the former appeal amounted to a final adjudication on the merits; that appellee’s demurrer to the petition for certiorari admitted all allegations of the petition; that the response filed by appellee having admitted that the removal order was made without notice to appellant was thereby rendered void; and that appellee has not, and can never, set up any valid defense to the petition by way of response or otherwise unless he can show that such defense was either not known to him or not available when he filed the demurrer.

In making these contentions we think appellant has misconstrued the office or function of a demurrer and has overlooked a material allegation of the petition for certiorari which was denied in the response filed by appellee. In the recent case of Isgrig v. City of Little Rock, 225 Ark. 297, 280 S. W. 2d 891, this court approved this statement from 41 Am. Jur., Pleadings, Secs. 204 & 207: “A demurrer is the method of raising an objection to the sufficiency in law of a pleading. It may be filed either by the plaintiff or the defendant to test the other’s pleadings for defects therein apparent on the face of such pleadings. * * * A demurrer does not raise any question of fact or a mixed question of law and fact, hut questions of law only; and it is erroneous for the Court, in passing-on the demurrer, to determine a disputed question of fact.”

As Judge Bobins pointed out in Jones v. The National Bank of Commerce, 207 Ark. 613, 182 S. W. 2d 377: “While it is said that, for the purpose of testing the legal sufficiency of a pleading, a demurrer admits the allegations of the pleading, it has never been held that by filing a demurrer to a pleading a party is thereby precluded from ever disputing the allegations of the pleading to which the demurrer was filed. ‘The admissions by demurrer are only for the purpose of passing upon the sufficiency in law of the pleading demurred to, and they are not evidence, nor an absolute admission dispensing with proof upon the trial on the merits.” 49 C. J. 442.”

One who relies on a demurrer is, of course, held to admit the facts stated in the pleading demurred to when he elects to stand on the demurrer and refuses to plead further after it is overruled. Krickerberg v. Hoff, 201 Ark. 63, 143 S. W. 2d 560. “Where, however, the party whose demurrer is overruled pleads over, as for example, where the defendant who has demurred to the plaintiff’s pleading files an answer denying the allegations of the declaration, petition, or complaint, the decision on demurrer is not conclusive of the plaintiff’s right to relief, for where the demurrer is overruled the implied admission has served its purpose; the demurrer does not admit the facts for purposes of evidence in the case.” 41 Am. Jur., Pleadings, Sec. 254.

A hearing is contemplated on a petition for certiorari under our statute (Ark. Stats., Secs. 22-302 and 22-303) and the right of a respondent to demur to the petition has been recognized. Warren v. McRae, 165 Ark. 436, 264 S. W. 940. Upon the overruling of a demurrer, the demurring party may answer or reply under Ark. Stats., Sec. 27-1118.

In support of Ms contentions appellant cites many cases in winch a party refuses to plead over and elects to stand upon his pleading after a demurrer thereto has been overruled and the resulting judgment is held to be final and conclusive. But appellee did not elect to stand on Ms demurrer to the petition for certiorari after it was overruled. On the contrary he elected to file a response in which he admitted certain allegations and denied others. Among those denied was the allegation that appellant was, and at all times mentioned in the petition had been, the duly appointed, qualified and acting commissioner of Road Improvement District No. 7 of Crittenden County. Appellant claimed the right to office under Act 55 of the 1919 Road Acts which specified certain prerequisites before one could qualify as a commissioner. Appellee’s denial constituted a valid defense and cast the burden on appellant to prove the allegation in order to prevail in the case. Instead he refused to proceed or plead further and elected to stand on his demurrer and motion to strike the response after they were overruled. By such action he admitted the truth of appellee’s denial that he was a duly appointed, qualified and acting commissioner of the district. This is the effect of the decision in Smith, Adm., v. Clark, 219 Ark. 751, 244 S. W. 2d 776, where we held that a denial in an answer is not subject to demurrer when it presents an issue on material allegations.

The judgment is affirmed.


author: George Rose Smith, J.

text:
    Short v. Mauldin.
    5-1092
    296 S. W. 2d 197
    Opinion delivered December 10, 1956.

      J. B. Reed, for appellant.

      Madrid Lofton, for appellee.
   George Rose Smith, J.

This boundary line dispute is in substance a suit for the possession of land, which was tried without objection in a court of equity. The single question is whether the boundary between the parties ’ tracts is a straight line or a crooked one. The chancellor entered a decree declaring the line to be straight, which resulted in the dismissal of the appellant’s complaint.

At the trial all the facts were stipulated. W. A. Gatewood formerly owned the 92.74 acres across which the disputed boundary runs. Gatewood sold the east forty acres to J. W. Thomas, and, after Thomas’s death, his widow and heirs conveyed that tract to the appellant Short, on April 6, 1949.

In October of 1951 it was agreed by Gatewood, the Thomases, and Short that the two deeds mentioned above did not describe exactly the land that Gatewood intended. Gatewood and Short employed a surveyor and went upon the land to survey and mark Short’s tract. All four corners of the tract were correctly established and marked. The survey coincided with fence rows along the north, east, and south sides, but there was no visible indication of the west line, which is now in controversy.

It is stipulated that the surveying party intended to, and attempted to, mark a straight line from the established southwest corner to the established northwest corner of the Short tract. The surveyor, however, used only a pocket compass to run the line, which is a quarter of a mile long. The boundary was marked by stakes where it crossed open land and by blazes where it went through woodland. When the survey was completed Gate-wood declared that the line just chained, blazed, and staked would forever be the line between Short’s land and the land lying immediately west of it. Short agreed, and on the following day Gatewood executed a deed to Short containing the new description. This deed is not in the record, and we must assume that it purported to describe a straight line, as the plaintiff has not met the burden of proving the contrary.

Gatewood and Short took possession of their respective parcels, did not question the blazed line in the woods, and cultivated their fields up to the turnrow that replaced the row of stakes. In 1953 Gatewood sold his tract to the defendant Mauldin, who also respected the marked line until about the end of 1954. Mauldin then contended that the boundary ivas not straight and took possession of a small area on Short’s side of the visible line. This suit to recover possession was filed by Short on June 8, 1955. The record does not show that the line now claimed by Mauldin is in fact straight, but this omission is immaterial, not only because the burden of proof was on Short but also because the decree merely declared that the disputed boundary is a straight line.

In seeking a reversal the appellant relies upon the familiar rule that when the true location of a boundary is uncertain or in dispute the adjoining landowners may fix the line by oral agreement followed by possession, even though their possession pursuant to the agreement does not continue for the statutory period of seven years. Payne v. McBride, 96 Ark. 168, 131 S. W. 463, Ann. Cas. 1912B, 661. It is accordingly contended that the agreement between Gatewood and Short, which was confirmed by possession for slightly more than three years, established the line marked on the ground as an agreed boundary. ■

This contention overlooks the fact that a boundary line agreement may involve an unconscious mistake as well as a conscious one. In the usual case of an oral agreement with respect to an unascertained or disputed boundary the parties realize that they do not know the location of the true line as determined by the controlling-government survey. They deliberately take the possibility of mistake into account and jointly assume the risk that the agreed line may not coincide with the true line. In at least a figurative sense their agreement and ensuing-possession constitute an accord and satisfaction of their dispute. Subsequent proof that the agreed line differs from the true line does not afford a basis for relief on the ground of mutual mistake, for that possibility of error was consciously considered and is the very matter that the agreement undertook to foreclose.

It is not to be supposed, however, that boundary line agreements are uniquely immune from the operation of ordinary rules governing the effect of unconscious mutual mistake. To the contrary, they exemplify the broad principle that, although the parties to a transaction may agree that it is to be final and not to be affected by a mistake, the agreement may nevertheless be rescinded, “as in the case of all agreements, if the basis upon which it was made is mistaken.” Rest., Restitution, § 11. We have recognized that this broad principle applies to contracts of accord and satisfaction, Jewell v. General Air Conditioning Corp., 226 Ark. 304, 289 S. W. 2d 881, and we have applied it to a boundary line agreement resulting from unconscious mutual mistake. Randleman v. Taylor, 94 Ark. 511, 127 S. W. 723, 140 A. S. R. 141. In the latter ease it was said: “The evidence in the case at bar shows that appellant and appellee agreed upon a boundary line under the belief that it was the true line, when in fact it was not ... In short, it was an erroneous line agreed upon by mistake. In such cases the agreement is not binding, but may be set aside by either party when the mistake is discovered, unless there is some element of estoppel which prevents him.”

In the present case Gatewood and Short went upon the land with the conscious purpose of correcting the description in the earlier deeds. They accomplished that purpose by establishing the four corners of the Short tract and by the execution of a deed conforming to those corners. As far as is shown by the stipulation of facts, both assumed that the surveyor had marked the west boundary in accordance with their joint intention that the line be straight. It was upon that tacit premise that the staked and blazed line was agreed to. There is nothing to indicate that either party deliberately took into account the possibility that the surveyor had made an error, for that was not the matter that they were consciously attempting to set at rest. In these circumstances their mutual mistake was an unforeseen one and may be corrected by either party at any time before their ensuing possession has ripened into title.

Affirmed.


text:
    Cossey v. House.
    5-1105
    296 S. W. 2d 199
    Opinion delivered December 10, 1956.

      FittonS Adams and Arnold M. Adams, for appellant.

      John B. Driver and N. J. Henley, for appellee.
   George Rose Smith, J.

By this suit the appellants, Coy Cossey and his wife, seek to recover a strip of land which they claim by adverse possession. The appellee Clem House is the record owner of the property. The chancellor found that the plaintiffs’ control of the disputed strip has not been of sufficient nature or of sufficient duration to invest them with title by adverse possession. The court accordingly dismissed the appellants’ complaint.

The strip in controversy may be described as the north two and a half chains of a forty-acre tract owned by House. In 1924 House bought this tract; he has lived on it ever since. During all that time a few cleared acres in the north part of the forty have been under fence. On the northern edge of the cleared land this fence runs about two thirds of the way across the forty and is two and a half chains south of the north line of the forty acres. Thus the area now in controversy lies for the most part between the fence and the north boundary of House’s land. House has paid the taxes upon his forty acres throughout the period of his ownership.

In weighing the appellants’ claim of adverse possession we must take as a starting point the fundamental rule that “a landowner who puts his fence inside his boundary line does not thereby lose title to the strip on the other side. That loss would occur only if his neighbor should take possession of the strip and hold it for the required period of years.” Brown Paper Mill Co., Inc. v. Warnix, 222 Ark. 417, 259 S. W. 2d 495. Hence the bare fact that the disputed strip lies outside the fence does not affect House’s legal title to the land. It was incumbent upon the appellants, as the plaintiffs in the case, to show by a preponderance of the evidence that they have acquired the title by adverse possession.

The chancellor was right in holding that this burden of proof was not sustained. In 1945 Coy Cossey bought the forty-acre tract lying immediately north of House’s land. The tract so acquired by Cossey was completely wild and uninclosed. It is doubtless true that Cossey assumed, as other witnesses in his behalf assumed, that the fence along the north edge of House’s cleared land marked the boundary between the two forty-acre parcels, but a mere subjective belief cannot transfer the title to land. Ball v. Messmore, 226 Ark. 256, 289 S. W. 2d 183. There is also testimony that House himself considered the fence to be on the line, but the chancellor accepted House’s statement that he did not know where the line was until its location was determined by a survey in 1952.

To sustain their assertion of title by prescription the appellants were required to prove that they had actual, physical, continuous, hostile possession of the disputed strip for seven years. That proof is lacking. Soon after his purchase in 1945 Cossey cut the timber all the way down to House’s fence without any objection from House, who was in fact employed to assist in skidding the logs. But, as we have said, House did not then know where the line was. In about 1947 Cossey planted a strawberry patch on some three quarters of an acre on his side of the fence and tended it for four or five years. There is no other proof of physical possession of the property on the part of the appellants; so it cannot be said that they exercised dominion over the land for a continuous period of seven years.

Affirmed.


author: Paul Ward, Associate Justice.

text:
    Robinson v. Woodard.
    5-1093
    296 S. W. 2d 672
    Opinion delivered December 10, 1956.
    [Rehearing denied January 7, 1957.]

      John R. Thompson and W. M. Buttram, for appellant.

      Hanson S Green and McMillen, Teague <fc Coates, for appellee.
   Paul Ward, Associate Justice.

Appellee, Oklahoma Furniture Manufacturing Company, a corporation, located at Guthrie, Oklahoma is engaged in manufacturing furniture. This furniture is sold, and shipped by trucks, to retail dealers in a large number of states. On return trips to Guthrie the trucks carry raw materials to be used by the Company in the manufacturing process. For the purposes of this opinion we will assume (what appears to be a fact) that the furniture is carried in a large trailer-truck which is pulled by a detachable truck-tractor.

The owner and driver of one of these tractors was appellant, A. D. Woodward. On May 16, 1955, while on his way from Granada, Mississippi to Guthrie, Oklahoma with a trailer load of merchandise belonging to appellee Company, Woodward was arrested in West Memphis, Arkansas by enforcement officers of appellants. When first accosted by the officers Woodard exhibited an “equipment lease agreement” between himself and the company (to be later discussed), and after examining the same the enforcement officers arrested him for violation of Act 397 of 1955 because neither of the appellees held a permit or a certificate of convenience and necessity from the Arkansas Public Service Commission. By agreement this criminal case was continued indefinitely.

The Manufacturing Company had the same kind of lease agreement with others that it had with Woodard, and when said enforcement officers threatened to continue to arrest the operators of similar trucks (meaning tractors and trailors) carrying merchandise under the same circumstances above mentioned, appellees, on May 27, 1955, filed their complaint in the Chancery Court of Pulaski County asking for a declaratory judgment- and for a restraining order against appellants. After a hearing on April 17, 1956 the chancery court entered a decree in favor of appelles, finding that the appellant furniture Company was a bona fide private carrier and that appellee Woodard was not a “motor carrier” (or contract carrier) under Act 397 of 1955.

On appeal from the above decree appellants base their contention for a reversal on two grounds, to-wit: 1. The appellee, Woodard, is operating as a motor carrier in violation of Acts 367 of 1941 and 397 of 1955, and; 2. Act 397 of 1955 does not unduly burden interstate commerce and does not invade a field of regulation preempted by the Federal Motor Carrier Act.

1. We agree with appellants that Woodard was, under the facts and circumstances of this case, operating as a motor carrier (which includes a “contract carrier”) in violation of the acts mentioned above. Section 5 (a) 8 of Act 367 of 1941, Section 5 (a) (8) of Act 397 of 1955 and Ark. Stats. § 73-1758 (a) (8) are exactly the same and read as follows:

‘ ‘ The term ‘ contract carrier by motor vehicle ’ means any person not a common carrier included under Paragraph 7, Section 5 (a) (this section) of this Act who or which, under individual contracts or agreements, and whether directly or indirectly or by lease of equipment or franchise rights, or any other arrangements, transports passengers or property by motor vehicle for compensation. ’ ’

Section 5 (a) (9) of said Act 367 defines motor carrier in these words: “The term ‘motor carrier’ includes both a common carrier by motor vehicle and a contract carrier by motor vehicle.” Section 5 (a) (d) of Act 397 of 1955 gives this definition of the term “motor carrier”: “The term ‘motor carrier’ includes both a common carrier by motor vehicle and a contract carrier by motor vehicle, and any person performing for hire transportation service without authority from the commission.” Section 22 (b) of Act 397 of 1955 (Ark. Stats. § 73-1775 (b)) further defines a “motor carrier” as follows:

“Any person who by lease or otherwise permits the use of a motor vehicle or vehicles by other than a carrier holding authority from this Commission, and who furnishes in connection therewith a driver or drivers, either directly or indirectly, or in any manner whatsoever exercises any control, or assumes any responsibility over the operation of such vehicle or vehicles, during the period of such lease or other device, shall be deemed a motor carrier.”

Section 5(a) (14) [Ark. Stats. § 73-1758 (a) (14)] defines a “private carrier” as any person engaged in transportation by motor vehicle upon public highways, of persons or property, or both, but not as a common carrier or a contract carrier. Ark. Stats. § 73-1764 provides that no person shall engage in the business of a contract carrier over any of the public highways of this state unless he has a permit issued by the commission, and appellees have stipulated that no such certificate has been issued to Woodard, or other drivers.

The principal question for decision then is whether Woodard (and others bearing the same relationship to the Manufacturing Company) is a “contract carrier” (or a “motor carrier”), it being conceded that Woodard is not a common carrier. The answer to this question depends upon the correct interpretation of the relationship that existed between Woodard and the Manufacturing Company under the provisions of the lease agreement which we now consider.

For some years prior to January 24, 1955 the furniture company made its deliveries in equipment owned by it and driven by their own employees, but this proved unsatisfactory and so on the date mentioned an “equipment lease agreement” was entered into between the Manufacturing Company as lessee and Woodard as lessor —being the same agreement used thereafter and with other drivers. Among other things this agreement states ;• the lessor is the owner of certain motor vehicle equipment (which, we understand, to be a truck-tractor) which the company hereby leases; the consideration going to the lessor is based on 14 cents or 15 cents per mile, depending on certain circumstances therein mentioned; lessor is bound to keep a mileage report which the company may audit and correct in favor of either party in event that it does not conform to the highway mileage ; the truck-tractor is to be operated only by the lessor, or, in event of illness or disability by someone selected by the lessor and approved by the Company; the lessor is obligated to pay all operation costs including the cost of gasoline, oil, grease, repairs, maintenance, anti-freeze and such other costs as may be incident to the operation and maintenance of said equipment; the lessor is obligated to keep the equipment in first class operating condition, and must keep the equipment clean and washed with sufficient frequency, and if lessor fails to comply the Company has the right to cancel the agreement; the Company has the right to direct the use of the leased equipment in connection with its business and to designate the trips and routes; the Company is not liable to lessor for wear, tear, and depreciation on the leased equipment, and will not be liable for any damage caused by the equipment by accident, theft, or fire, etc.; the Company has the right, at its discretion, to take out insurance covering the property transported by said leased equipment, but the Company is not obligated to carry collision, fire, theft or any other type of insurance for the account of the lessor, and if the lessor carries insurance it shall be at his sole cost; the lessor at his own expense must procure Oklahoma Commission license plates to be used on said equipment; if the lessor only furnishes a tractor and uses a company trailer he is liable to the extent of $250 for any damage, other than wear and depreciation, occurring to the trailer, and; either party shall have- the right to cancel the lease agreement for any reason upon giving 30 days written notice to the other party.

Appellee, Oklahoma Furniture Manufacturing Company, earnestly insisted that it is a private carrier and that Woodard is merely its employee, and that, therefore neither had to secure a certificate of necessity and convenience or a permit from the Arkansas Public Service Commission. It further insists that the lease agreement is bona fide and not a ruse to evade the Commission’s-regulations. We concede that the Company used no bad faith in making the arrangements it did, but that is not the decisive issue. Sure, there is nothing illegal or wrong in the lease agreement per se. The vital question for decision is: Do the terms of the lease agreement prevent Woodard from being a “contract carrier” under the statutes and the facts in this case? This question, we think, must be answered in the negative.

In the case of Public Service Commission v. Lloyd A. Fry Roofing Company, 219 Ark. 553, 244 S. W. 2d 147, where, under facts that cannot be materially distinguished from the facts here, we held against appellees’ contention. In the cited ease J. R. Boshers occupied essentially the same status, under a lease agreement, that Woodard does here, and we held that Boshers was a contract carrier. The statute defining a “contract carrier” was the same when the Fry case was decided in 1951 as it is now, except that evasion has been made more difficult by the passage of Section 22 (b) of Act 397 of 1955 above copied.

In view of the Fry decision, supra, we deem it necessary here only to call attention to the material portions of the lease agreement to the ones in this case. There: Boshers owned the truck-tractor and leased it to Whittington who in turn leased it to the Pry Roofing Company; Boshers was to furnish gas, tires and other up-keep of the tractor; the lease agreement could be can-celled, by either party, merely by written notice (5 days) to the other; and; Boshers had to drive his own tractor. The reasons, and the supporting decisions, given in the-Fry case are equally applicable in this case, and it would serve no useful purpose to repeat them here. We conclude that Woodard was a “contract carrier” and therefore is required to secure a permit from appellants.

2. Likewise, the decision in the Fry case, as affirmed by the United States Supreme Court, compels us to hold the regulatory acts sought to be enforced against Woodard (and other drivers similarly situated) are not a burden on interstate commerce.

The opinion in the Fry case on appeal to the United States Supreme Court, 344 U. S. 157, 97 L. Ed. 168, 73 S. Ct. 204, on this point said: “The finding that the arrested drivers own and operate their trucks for hire makes them contract carriers as defined in the State Act. The state asserts no power or purpose to require the drivers to do more than register with the appropriate agency.” Then, after noting that State and Federal authorities were obligated to cooperate on matters relating to interstate commerce, the court further said: “In this situation our prior cases make clear that a state can regulate so long as no undue burden is imposed on interstate commerce, and that a mere requirement for a permit is not such a burden. ’ ’

Since there is nothing in the record before us to show that the Arkansas Public Service Commission has attempted or will attempt to impose any burdensome conditions to the granting of a permit to Woodard, we are bound to agree with appellants’ view.

We are not convinced by appellees’ argument that Section 22 (b) of Act 397 of 1955 is unconstitutional. They make this argument with the proviso that said section has the effect of changing the Company’s status as a private carrier. The answer to this argument is; the equipment lease agreement and not Section 22 (b) effected the change in the Company’s status. Having already concluded that Woodard is a contract carrier forecloses the possibility of the Company being a private carrier of the same merchandise.

Reversed.

Justice G-eorge. Rose Smith dissents.


author: Sam Robinson, Associate Justice.

text:
    Dardanelle Water Co., Inc. v. Hamilton.
    5-1085
    296 S. W. 2d 416
    Opinion delivered December 10, 1956.

      Caviness & George, for appellant.

      Williams <& Gardner, for appellee.
   Sam Robinson, Associate Justice.

This suit was filed by appellee, John L. Hamilton, against the appellant, Dardanelle Water Company, for damages alleged to have been sustained by Hamilton due to a leak in one of the water company’s pipes. It is alleged that the water from the leaking pipe undermined the foundation of a building owned by Hamilton. There was a judgment in the sum of $4,000 for the plaintiff, Hamilton, and the water company has appealed.

First, appellant stoutly contends that there is no substantial evidence to sustain a finding that the building was damaged by the water leaking from the pipe. The building is located in Dardanelle; it is shown that the soil where the building is located is very sandy and that it does not constitute a firm foundation. The building was constructed about 1910 as an automobile service station. The southeast corner of the building is supported by a column resting on a rock foundation. To facilitate the operation of the building as a service station, the southeast córner of the building, for some distance, both to the north and to the west, was not enclosed. Later, about 1932, this part of the building was enclosed by a brick wall with large glass windows. Undoubtedly, there has been considerable damage to the building caused by a settling of the foundation on which rests the column supporting the southeast corner. Appellant contends that this settling of the foundation was not caused by the flow of water from the .leaking pipe, but was due to an insufficient foundation in the first instance. On the other hand, the appellee contends that the foundation settled due to a leak in the pipe, and to the failure of the water company to promptly stop the leak upon discovering the condition that existed. The issue was submitted to the jury, and there was a finding that the damage to the building was due to the negligence of the water company. We must sustain the judgment if there is any substantial evidence to support it.

Here, we cannot say the evidence fails to meet that test. It was shown that a leak in the water pipe, only a few feet from the building in question, was discovered by Mr. Hamilton, and that the water company was notified ; that it did not make repairs for about 48 hours, and that the leak was of such magnitude that a pump was required to keep the water out of the hole dug for the purpose of repairing the pipe.

Mr. Hamilton testified that Mr. Green, manager of the water company, told him that he knew the water had caused part of the damage. Mr. Barney McKinzie, a contractor, testified that if water were permitted to run around the foundation for any length of time it would cause a settling. It was further shown that the water company did not have the necessary parts on hand to make the repairs, thereby causing the delay. In addition, there is evidence that a hole 6 or 7 feet square by about 3 1/2 feet deep was dug near the corner of the building; that the walls of the hole were not shored up, permitting the sides to slough away and the sandy soil to fall away from the foundation. It was shown also that after the repairs had been completed and the leak stopped there was a hole under the sidewalk next to the building. Mr. McKinzie testified that he had repaired the building in 1953, and that there had been a sinking of the pier since that time. The pictures introduced in evidence show that the sidewalk adjoining the building has sunk several inches. There does not appear to be any undue weight on the sidewalk, and it does not appear to depend on the foundation under the pier for support. Evidently, the washing away of the dirt by the leak in the pipe caused the sinking in the sidewalk, and the same thing could very easily have caused the settling of the foundation supporting the corner of the building. We cannot say the jury was not justified in reaching that conclusion.

The appellant contends that the $4,000 judgment is excessive. Mr. McKinzie, a contractor, testified that he examined the damage to the building and put in about an hour and a half making an estimate of the cost of the necessary repairs; he arrived at the figure of $4,000. It is true he stated this was a rough estimate, but nevertheless, after giving the matter due consideration, it was his opinion it would cost $4,000 to make the repairs. •

Appellant complains that the eourt erred in permitting a witness to explain the facts and circumstances surrounding his giving of a statement. The witness, A. B. Rainwater, testified for the plaintiff. In an attempt to discredit him, he was questioned by counsel for appellant with reference to a signed statement given by Mr. Rainwater prior to the trial. On re-examination by the plaintiff, he was questioned concerning the facts and circumstances surrounding his giving of the signed statement. He was asked:

‘ ‘ Q. February 29, 1955 — Did they give any reason why they wanted this statement?

A. Yes, they wanted to try to settle.”

Counsel for defendant objected, and the court stated: “I think he has a right to explain the facts and circumstances surrounding the execution of it, and the jury can draw their own conclusions as to its credibility.” After two additional questions were asked, the court then ruled that the witness could not testify as to what some third party told him. Appellant contends that the evidence violated the rule against showing an offer to compromise. We do not think this was the effect of the testimony. The witness was merely stating the circumstances surrounding his giving of a signed statement; there was no showing that there was any attempt to make a settlement. In fact, the witness had no interest in the building, no reason why anybody would be attempting to make a settlement with him at all.

The appellant further maintains that the court erred in refusing to give certain requested instructions. We have carefully examined all of the instructions given and refused, and there was no error. The jury were properly instructed on every issue.

Affirmed.


author: Lee Seamster, Chief Justice.

text:
    Beck v. DeFir.
    5-1101
    296 S. W. 2d 396
    Opinion delivered December 17, 1956.

      W. H. Howard and D. A. Clarice, for appellant.

      John F. Gibson, for appellee.
   Lee Seamster, Chief Justice.

This suit in ejectment was filed by appellants in the Desha Circuit Court. The complaint alleged that appellees were in wrongful possession of a certain 160 acre tract of land situated in Desha County, Arkansas, and prayed judgment for possession of said property.

The record reveals that the land in question is situated in the Southeast Arkansas Levee District. This District was created by Act 83 of the 1917 Acts of the General Assembly of Arkansas. The question here involves the construction of Section 9 of said Act.

The appellees claim title to the land by reason of a County Clerk’s tax deed dated November 12, 1946, and recorded by appellees the same day. The issuance of the Clerk’s deed was based upon a sale made in November, 1944, for the taxes assessed against said land for the year 1943, and payable at the regular time for payment of taxes in the year 1944. The appellees bid the land in at the collector’s sale for taxes. Upon the expiration of the two year redemption period after sale, the clerk deeded the land to appellees.

The taxes levied were the levee district taxes and a $2.00 fencing district tax. A tax deed for such taxes has the same force and effect as a tax deed for other regular taxes, where the sale is to an individual. The individual must pay the sum of his bid at the time of the sale.

Appellee, R. M. DeFir, Jr., had lived with his father on this land since 1933, with the exception of such times as he served in the armed forces of the United States or was away working. Originally the appellee and his family were living on the land as tenants of the owner. The owner had died and appellee and his father’s family remained on the place. After procuring the tax deed they continued to live on the land and farm it as their own. They were living there when the instant suit was filed.

The appellants claim title to the land by reason of a deed from the Southeast Arkansas Levee District, dated May 4, 1954, and recorded in the county on May 5, 1954. The Levee District claimed the right to convey the land to appellants by reason of a clerk’s deed dated September 26, 1951, and recorded in the county on April 9, 1952. This deed was issued by reason of a sale of the land for taxes in November, 1943. The taxes assessed against the land were for the year 1942.

Act 83 of 1917 provides that “At the sale by the collector for delinquent taxes, if there be any lands, railroads, tramroads, telephone, telegraph, electric light and power lines delinquent for levee taxes which are not bid in by individuals for the taxes, penalty and costs, the same shall be bid in by said Southeast Arkansas Levee District for such taxes, penalty and costs, provided said Southeast Arkansas Levee District shall not be required to pay its bid until after the expiration of the time for redemption from said sale.”

The Act further provides that the Levee District must pay the other taxes, aside from levee taxes, before it is entitled to a deed from the County Clerk. Under no circumstances is the Levee District required to pay any sum for the purchase of the land at the tax sale; but only after the two year period of time allowed for redemption had expired.

The Act further provides that immediately after receiving the deed to lands in the District, the Levee District shall file suit to confirm its tax title in the Chancery Court of the County where the lands are located and proceed to a confirmation decree as in tax title cases by individuals. The Act contains a provision that any owner may come in at any time before final decree of confirmation and show title, whereby the Court may permit redemption of such lands upon payment of the amount paid out by the Levee District, with interest at 10%, costs and 25% for attorney fees.

In the instant case, at the time of the trial, the Levee District had never filed, in the Desha Chancery Court, a suit to confirm its tax title in the land here involved. The Levee District could only convey to appellants such title as it had procured. Its title was subject to redemption by any individual owner at any time before the confirmation decree, confirming its tax title, was finally entered of record.

The parties waived a jury and the trial court made the following findings of fact and law:

“FINDINGS OF FACT”

“1. The following described lands situated in the County of Desha, State of Arkansas, to-wit:

The Southeast Quarter (SE 1/4) of Section Seven (7),

Township Thirteen (13) South, Range Three (3) West, forfeited in the name of D. U. Browning for the 1940 County, State and Levee Taxes in the year 1941.

“2. Pursuant to Act 83 of 1917 the Southeast Arkansas Levee District purchased the lands at the sale held by the Clerk in 1941.

“3. In 1942 the Levee Tax was again delinquent and the Southeast Arkansas Levee District purchased the above described lands at the collector’s sale.

“4. The Levee Tax was again delinquent and R. M. DeFir, Jr. purchased the above described lands in 1943.

“5. Pursuant to the purchase by R. M. DeFir, Jr. a ‘Clerk’s Deed of Tax Sale’ was issued to R. M. DeFir, Jr. by the Clerk of the County Court of Desha County, Arkansas, on November 12, 1946.

“6. Edgar C. Gannaway, Clerk of the County Court of Desha County, Arkansas, did by his ‘Clerk’s Deed of Tax Sale’ on the 27th day of July, 1951 convey to the Southeast Arkansas Levee District the above described lands as a result of the sale made in 1941 pursuant to Act 83 of 1917.

“7. Edgar C. Gannaway, Clerk of the County Court of Desha County, Arkansas, did by his ‘Clerk’s Deed of Tax Sale’ dated September 26, 1951 convey the above described property to the Southeast Arkansas Levee District for the non-payment of taxes for the year 1942 which sale was pursuant to Act 83 of 1917.

‘ ‘ 8. The Southeast Arkansas Levee District, by and through Edgar C. Gannaway, its duly authorized Attorney-in-Fact did by its Quitclaim Deed dated May 4, 1954, convey the above described property to R. L. Beck and C. Gr. Dunne by paying to said Levee District the sum of $105.98, taxes, costs and penalty, and by paying therefor into the County Treasury the sum of $501.05 for all back taxes up to and including the purchase with the exception of the 1943 Levee Tax which was paid by R. M. DeFir, Jr. The plaintiffs have since paid all taxes accruing and accrued amounting to $75.34.”

“Conclusions of Law”

“1. The defendant, R. M. DeFir, Jr. took possession of the above described lands on, and under, his Clerk’s Deed of Tax Sale on November 12, 1946, and the plaintiffs are precluded in bringing this action under Arkansas Statutes, § 34-1419. Under Section 9 of Act 83 of 1917 the defendant may at any time before final decree of confirmation show his title to the above described lands and the Court may permit redemption.

“2. The district’s liens for the 1941 and 1942 taxes merged with the purchase by R. M. DeFir, Sr. at the collector’s sale in 1943, pursuant to which the defendant R. M. DeFir, Jr. was issued a Deed on November 12, 1946.

“3. The plaintiffs have expended the sum of $576.39 for general and special taxes since the purchase by the defendant in 1943, and said plaintiffs be, and they are hereby given a judgment against the defendant, R. M. DeFir, Jr., with interest at the rate of six (6%) per cent per annum from date of expenditure until paid, and are hereby given a lien on the above described lands for such expenditures.”

The appellants contend the court erred in holding the two year statute on adverse possession applicable in this case. Whether this statute is applicable or not is immaterial as far as this case is concerned. The appellees are in possession of the land,' under color of title, the clerk’s tax deed. Under the provisions of Section 9 of said Act 83, the appellees have the right to redeem the land from appellants by paying the amount set out by the provisions.

This Court held in Wimberly v. Norman, 221 Ark. 319, 253 S. W. 2d 222, that a valid clerk’s tax deed vests in grantee all right, title and interest of the former owner.

In the case of Luebke v. Holtzendorff, 203 Ark. 141, 157 S. W. 2d 770, this Court held:

“It was said, in the early case of Woodward v. Campbell, 39 Ark. 580, that ‘Statutes providing for redemption from tax sales always receive a liberal construction. Almost any right, either at law or in equity, perfect or inchoate, in possession or in action, or whether in the nature of a charge or incumbrance on the land, amounts to such an ownership as will entitle the party holding it to redeem . . .’ That holding has since been followed and reaffirmed in numerous cases where the right of redemption was questioned, one of the most recent being the case of McAllister v. Wright, 197 Ark. 1156, 127 S. W. 2d 645.”

Finding no error, the judgment is affirmed.


author: Lee Seamster, Chief Justice. J. Seaborn Holt, Associate Justice

text:
    Rogers v. Lawrence.
    5-924
    296 S. W. 2d 899
    Opinion delivered December 17, 1956.
    [Rehearing denied January 21, 1957.]

      Pickens & Pickens, for appellant.

      Wayne Boyce, for appellee.
   Lee Seamster, Chief Justice.

The appellee, Mrs. Lawrence, filed this action against the appellant, Mrs. Rogers, seeking to recover damages for personal injuries sustained when Mrs. Rogers’ car struck and injured Mrs. Lawrence. The answer alleged that Mrs. Lawrence was injured accidentally while a guest of Mrs. Rogers and, therefore, could not recover because of the Arkansas guest statute. The guest issue was submitted to a jury; and a.verdict returned for Mrs. Lawrence. The appellant presents several assignments, one relating to the guest issue, another relating to instructions, and another relating to the voir dire examination of the jury panel.

The first point for decision is the guest issue. Mrs. Lawrence, a lady past seventy-eight years of age, and living in Jackson County, went to Crittenden County in September, 1953, to visit friends there. She was visiting in the home of Mrs. Brewer when appellant, Mrs. Rogers, and another lady, came by to get Mrs. Brewer and Mrs. Lawrence to go to see Mrs. Rogers’ new home. When the four ladies were seated in the car, Mrs. Rogers was driving with Mrs. Brunson beside her in the front seat; and Mrs. Brewer and Mrs. Lawrence were in the rear seat, with Mrs. Lawrence seated on the right. As they drove through the business district, after visiting at Mrs. Rogers’ new home, Mrs. Lawrence requested that they stop at Mr. Holt’s store so she could tell him goodbye, as she was leaving the next day for Jackson County.

Mrs. Rogers drove up parallel with the curb just one store away from Holt’s store and stopped the car and Mrs. Lawrence stepped from the car to the street, ready to step up on the sidewalk. Just then, the car directly in front of Holt’s store drove away, and Mrs. Rogers said: “O. D. Cox is pulling out; I believe I will pull up”; and Mrs. Rogers began to move a car length forward. But in some way —■ either by the door or the fender hitting her — Mrs. Lawrence was knocked down by Mrs. Rogers’ car and received the injuries involved in this case. Mrs. Lawrence stated the following:

“Mrs. Rogers pulled in parallel to the curb to park and stopped the motor. I opened the rear door of the car which opens toward the back of the car and stepped out. I had both feet on the ground (pavement) and I was not touching the car when Mrs. Rogers said, ‘I think I will pull up a little bit’ and stepped on the gas and the car door hit me on the right side. I was facing west and the car was facing south. I was knocked down between the curb and the car striking the left hip.”

There is no need to recite the other testimony because, on an appeal like this one, we accept the evidence strongest to the appellee’s case. See Harrison v. Rosensweig, 185 Ark. 281, 47 S. W. 2d 2; Potashnick Local Truck System, Inc., v. Archer, 207 Ark. 220, 179 S. W. 2d 696; Albert v. Morris, 208 Ark. 808, 187 S. W. 2d 909.

Appellant claims that under her own testimony, Mrs. Lawrence was a guest in Mrs. Rogers’ car and cannot recover because of our guest statutes. Appellee says it was a question of fact for the jury to decide: (a) whether Mrs. Lawrence had left the car when she was injured; and (b) whether the stop at Holt’s store was merely a part of a journey or was in itself such a complete stop as to suspend the guest relationship until Mrs. Lawrence should re-enter the car.

We have two guest statutes in Arkansas, being Act No. 61 of 1935 (now found in § 75-913 Ark. Stats.) and Act No. 179 of 1935 (now found in § 75-915 Ark. Stats.). The latter is the one most strongly relied on by the appellant; and the germane portion of it reads:

“No person transported or proposed to be transported by the owner or operator of a motor vehicle as a guest, without payment for such transportation, nor the husband, widow, executors, administrators, or next of kin of such person, shall have a cause of action for damages against such owner or operator, or other persons responsible for the operation of such car, for personal injury, including death resulting therefrom, by persons while in, entering, or leaving such motor vehicle, unless such injury shall have been caused by the willful misconduct of such owner or operator.”

In 3 Arle. Law Review at page 101 there is a comment on cases from various states involving the guest statute; and also in 1 Ark. Law Review at page 50 there is an article on the Arkansas guest statute. In addition, we have several cases on these statutes, but none decides the question here posed. Some of our more recent cases are: Corruthers v. Mason, 224 Ark. 929, 277 S. W. 2d 60; Derrick v. Rock, 218 Ark. 339, 236 S. W. 2d 726; Stewart v. Thomas, 222 Ark. 849, 262 S. W. 2d 901.

Since the Act 179 uses the words “transported or proposed to be transported,” “entering” or “leaving,” it is that statute on which the appellant most relies on her claim that the Trial Court should have instructed a verdict for her. We seldom have a case in which both sides show the research and diligence that has been exhibited in the case at bar. Learned counsel for appellant has favored us with a brief giving the statute and decision from each and every state in the Union that has a guest statute in any way resembling our statute; and also numerous text books and law review articles are referred to in the brief. Since the oral argument, we have discovered an annotation in 50 A. L. R. 2d 974, which volume was not distributed until after the argument.

But in the final analysis the issues are simply these: When the guest has left the vehicle, intending to later re-enter after transacting other matters, can the Court say, as a matter of law, that the intention to resume the journey makes the guest relationship continue while the guest is entirely away from the car? Again, should the Court leave it to the jury to decide whether, under the facts in each particular case, the guest relationship was terminated when the guest had both feet on the ground and was not touching the car?

We believe tbe jury should have been allowed to decide the fact question, just as was done in the case at bar. The guest statute is in derogation of the common law and is to be strictly construed. Ward v. George, 195 Ark. 216, 112 S. W. 2d 30; Arkansas Valley Rural Electric Company v. Elkins, 200 Ark. 883, 141 S. W. 2d 538; Whittecar v. Cheatham, 226 Ark. 31, 287 S. W. 2d 578.

The “guest statutes” were enacted to prevent collusive suits. Ward v. George, supra. Certainly there was no collusion in the case at bar; and when we give the guest statute the strict construction that we have held proper, then it seems clear that the jury should have decided whether Mrs. Lawrence continued as Mrs. Rogers’ automotive guest even when out of the car to go into a store. Someone must say as a fact when the automotive guest status ceased after Mrs. Lawrence left the car, had both feet on the ground and had ceased to be in contact with the car. Our system of jurisprudence leaves fact questions such as these to the jury. In the recent case of Whittecar v. Cheatham, 226 Ark. 31, 287 S. W. 2d 578, decided March 5,1956, we said: “Ordinarily the issue of whether one is a guest is a question of fact. Brand v. Rorke, 225 Ark. 309, 280 S. W. 2d 906.” Therefore, the Trial Court was correct in refusing appellant’s motion for an instructed verdict.

As to appellant’s assignment regarding the requested instructions, little need be said. It would unnecessarily prolong this opinion to give these instructions in extenso. Appellant insists that each of her instructions 4 to 8, inclusive, should have been given; but we find that the Court covered the correct portion of these instructions in its own instructions 1, 6, 8 and 9 and in defendant’s instructions 1 and 2.

Finally, appellant claims that the Court committed fatal error in permitting the attorney for the appellee to ask the venire of prospective jurymen these questions :

“1. Are you now, or have you been, employed as an adjuster by any liability insurance company?

“2. Do you, or any of you, own stock in or have any financial interest in any insurance company that has. automobile and liability insurance?

“3. Are you how, or have you been in the past, employed as an adjuster for any liability insurance company?”

We have held that the trial court has discretion in allowing questions like this to be asked on voir dire. (see Ellis & Lewis v. Warner, 182 Ark. 613, 32 S. W. 2d 167); and we are of the opinion that the trial court did not abuse its discretion in the case at bar. The questions here asked were not materially different from those permitted in Halbrook v. Williams, 185 Ark. 885, 50 S. W. 2d 243. Furthermore, we have recent cases all on the same point. See Mo. Pac. Transp. Co. v. Talley, 199 Ark. 835, 136 S. W. 2d 688; Certiorari Dismissed by U. S. Supreme Ct., 311 U. S. 722, 85 L. Ed. 470; 61 S. Ct. 5; Brundett v. Hargrove, 204 Ark. 258, 161 S. W. 2d 762; and Dedmon v. Thalheimer, 226 Ark. 402, 290 S. W. 2d 16.

Finding no error, the judgment is affirmed.

Justices Holt, Smith and Ward dissent.

J. Seaborn Holt, Associate Justice

(dissenting). All concede that the present case is one of first impression here. Under our guest statutes, as pointed out in Volume 3 — Arkansas Law Review No. 1, p. 101: “In effect, the exact limits of the host-guest relationship in Arkansas are as yet undetermined.”

Under § 75-913 Ark. Stats. 1947 (of 1935) no guest, had a cause of action against the owner or operator of an automobile for damages unless the automobile was being operated willfully and wantonly in disregard of the guest’s rights. That section was amended by § 75-915 Ark. Stats. 1947 (enacted at the same term) and provided: “No person transported or proposed to be transported by the owner or operator of a motor vehicle as a guest, . . . shall have a cause of action for damages against such owner or operator, or other persons responsible for the operation of. such car, for personal injury, including death resulting therefrom, by persons while in, entering, or leaving such motor vehicle, unless such injury shall have been caused by the willful misconduct of such owner or operator. ’ ’ It seems clear to me that the legislature in the latter section (75-915) intended to add a greater protection to the driver or operator of an automobile while carrying anyone gratuitously (or as a guest) not only while such guest was in the car but while entering the car or while “leaving such motor vehicle.”

“The primary purpose of statutory construction is to ascertain the intention of the legislature, not only from the language used but also from the reason and necessity for the act, the evil sought to be remedied and the objects .and purposes sought to be obtained by it . . . The words of a statute will be interpreted according to their common and popular acceptation and import unless that interpretation will defeat the manifest intent of the legislature ... A situation which is within the object, spirit and meaning of a statute is regarded as within the statute although not within the letter ...” Tallios v. Tallios, 350 Ill. App. 299, 112 N. E. 2d 723.

The undisputed evidence in this case is to the following effect: Appellee (Mrs. Lawrence) was a visitor in the home of Mrs. Brewer, and Mrs. Rogers (appellant), Mrs. Brewer’s friend, proposed to transport Mrs. Lawrence, as her guest, from Mrs. Brewer’s home out to Mrs. Rogers’ new home (which Mrs. Rogers wanted appellee to see) and then to return Mrs. Lawrence back to Mrs. Brewer’«s home. In the course of this journey, at Mrs. Lawrence’s request, Mrs. Rogers stopped her car within a few inches of the curb for the purpose of allowing appellee momentarily to interrupt the journey and get out of the car to say goodbye to a friend, before she, Mrs. Lawrence, terminated her visit with Mrs. Brewer (which she intended to do on the following day). When the ear stopped, Mrs. Lawrence opened the rear right hand door of the car, stepped to the pavement, a few inches from the curb, and before she could step from the pavement to the curb, Mrs. Rogers started the car forward and some part of the car, either the door or fender, struck Mrs. Lawrence, knocked her down and injured her. In other words, appellee had not gotten far enough away from the car, in the act of leaving it, to avoid being struck by it. As I see it, there is no escape from the conclusion that appellee was injured while leaving the motor vehicle for the specific purpose of temporarily interrupting the journey and then to re-enter the car and complete the journey. In these circumstances, I think, it was the legislative intent that she was still a guest at the time and could not recover. It seems obvious to me that the legislature, to make it more difficult for collusive suits and to further restrict grounds for recovery against owners and drivers of automobiles, found that the first section above (75-913) was not broad enough and did not afford sufficient protection, and that Section 75-915 was enacted for this purpose.

The Supreme Court of Kansas in Marsh v. Hogeboom et al., 167 Kan. 349, 205 P. 2d 1190 (1949) in construing its guest statute which provided: ‘ ‘ 8-122b. Right of guest to collect damages from owner or operator. That no person who is transported by the owner or operator of a motor vehicle, as his guest, without payment for such transportation, shall have a cause of action for damages against such owner or operator for injury, death or damage, unless such injury, death or damage shall have resulted from the gross and wanton negligence of the operator of such motor vehicle, ’ ’ in circumstances similar to those presented here, held: “Where motorist took guest by automobile to guest’s home, guest alighted from automobile and took hold of right door handle of automobile to close door, and motorist then negligently started up, catching guest’s hand on door handle, throwing guest to the ground, and causing injuries, she was still a ‘ guest ’ within meaning of automobile guest statute at time she was injured and could not recover from motorist, in absence of showing of gross and wanton negligence. ’ ’

In Head v. Morton, 302 Mass. 273, 19 N. E. 2d 22, the Supreme Judicial Court of Massachusetts, where the facts were: [plaintiff] “I was in the air. I had not left the sidewalk. I had not left anything. My right foot was in the air, and my left foot was on the curbstone, and I was starting into the car in that motion, ’ ’ held in favor of the defendant and said: “If the relationship of ‘host’ and ‘guest’ as these words are commonly used, had come into existence at the time of the plaintiff’s injury, she cannot recover ...” We think that the case at bar comes within the rule stated in Ruel v. Langelier, 299 Mass. 240, 12 N. E. 2d 735, where it was said, ‘Coming now to the case before us, it must be clear that the degree of the defendant’s duty does not depend upon the physical position of the plaintiff at the moment of the accident, or upon whether she was then in the defendant’s automobile or outside of it, or upon whether in everyday language she would be described as a guest. The degree of the defendant’s duty depends upon whether the act of the defendant claimed to be negligent was an act performed in the course of carrying out the gratuitous undertaking which the defendant had assumed.’ ...” In another Massachusetts case, Ethier v. Audette, 307 Mass. 111, 29 NE 2d 707, the facts were even stronger for the plaintiff than in the present case, but in that case the court held: “1. Automobiles — Where defendant gratuitously undertook to transport plaintiff home, they decided to stop at restaurant for purpose of purchasing food to be eaten by both at plaintiff’s home, plaintiff alighted from automobile, motor was not turned off and door was left open, and plaintiff, without having entered restaurant, returned and stood with one foot on running board, and was injured when defendant’s foot slipped from clutch and automobile suddenly moved, plaintiff remained a ‘guest’ of defendant, who therefore was not liable in absence of gross negligence, notwithstanding plaintiff did not intend to re-enter automobile at the time and had returned merely to ask defendant to accompany plaintiff into the restaurant. ...”

In this day and age, when an estimated 60 million automobiles are on the streets and highways, with practically every family in the nation owning one or two automobiles, if the majority opinion stands, in my opinion, a car owner will hesitate before offering a friend or neighbor a free ride. The risk would seem too great. Personal injury suits will no doubt multiply and liability insurance rates advance — the very things that our legislature seemed determined to discourage.

I would reverse and dismiss.

Justices Smith and Ward join in this dissent.