author: Carleton Harris, Chief Justice.

text:
    Arkansas-Louisiana Gas Co. v. Morgan A. Maxey, et ux
    4599
    430 S.W. 2d 866
    Opinion delivered September 3, 1968

      Henry & Boyett for appellant.

      Lightle & Tedder for appellee.
   Carleton Harris, Chief Justice.

This is the second appeal of this case. Arkansas-Louisiana Gas Company condemned approximately twelve acres of land for a pipeline right-of-way 80 feet wide across appellees’ farm. The jury awarded a verdict of $5,770.00 for damages, and appellant appeals that award to this court. For reversal, it is asserted that there is no competent evidence upon which the expert witnesses for appellees could base their evaluations, and it is further asserted that the verdict is excessive.

Elvie Davis, who had lived on the Maxey farm for four years, testified that it was a cattle farm, and about 110 or 115 head of cattle were on the premises. He said there were many large rocks on the right-of-way after the construction crew left the line, and also rocks on the land adjoining the right-of-way, having been blown out by dynamite, and scattered across the 12-acre meadow where the pipeline crossed. Davis testified that he broke his mowing machine and tore up a disc, and was only able to sow part of the field; he could not plow the right-of-way, as there were too many rocks.

Mrs. Dorothy Beckman, who had sold real estate for about six years, and who at the time of trial, also operated a cattle farm, testified that she was acquainted with land sales, and familiar with lands in White County. She described the condition of the right-of-way as follows:

“It is the biggest mess I ever looked at, you couldn’t get any kind of mowing machine in that hay meadow without ruining it. I don’t know how you could reseed it. Where it goes through the woods is nothing but rock on down toward Mr. Baker’s place, it looks like a rocky stream bed. There was some bluestem grass down there in the woods and they have blown that all out. I don’t know how anybody could grow anything there.”

The witness estimated the value of the farm before the taking at $80,000.00, and she stated that the value after the taking was $72,500.00, basing her opinion upon damage to the twelve and one-half acres right-of-way at $200.00 per acre, and the damage to the land outside the right-of-way, because of rock and debris left on it, at $4,000.00- The estimate of damage included the fact that the land would have to he reseeded, and a doz-er obtained to bury the rocks.

C. L. Lewis, who had engaged in cleaning up land for about four years, and who owned his own dozers, testified that the cost of cleaning up and re-seeding the right-of-way and the adjoining premises would he between $4,000-00 and $5,000.00. Admittedly, the witness had never cleaned up any pipeline right-of-way.

T. H. Young, holder of a real estate license, and who had previously worked for a real estate office, testified that the difference in the before and after taking-value of the Maxey farm was $7,576.00, and in reaching this figure, he considered the cost of cleaning up the right-of-way, removing rocks and boulders from the land adjoining the right-of-way, and the hauling of top soil.

There was a drastic difference in the estimates of amount of damage given by appellant’s witnesses, but we are here only concerned with whether there was substantial evidence to support the verdict of the jury.

Appellant concedes that the court correctly instructed the jury as to the measure of damages (difference

Entirely aside from the fact that the jury was told to disregard the portion of her testimony relating to the amount the farmers considered their land to be worth, we have held contrary to appellant’s contention. In Arkansas State Highway Commission v. Russell, 240 Ark. 21, 398 S.W. 2d 201, this court said:

“It is at once apparent that if we sustain the commission’s contention it will hardly be possible in the future for a land owner or an expert witness to give an admissible opinion about the value of property. In nearly every instance a landowner who has known his land for years, or an expert witness who has acquainted himself with a piece of property, takes into account facts that he knows only by hearsay or that for some other reason would not be admissible as independent evidence upon the examination in chief. If the witness’ candid admission that he has considered such matters destroys his testimony, only a dishonest or an ill-informed witness can give an admissible opinion about the value of property.
“The overwhelming weight of authority is contrary to the appellant’s present contention. It has repeatedly been held that expert or lay testimony is competent even though it is based wholly or partly upon hearsay. [Citing cases.]”

It is urged that the testimony of C. L. Lewis, relative to cleaning up the right-of-way, was inadmissible for the reason that he had never cleaned up a pipeline right-of-way- The witness stated that he had only cleaned up farming lands, but the jury was aware of this fact, and we do not think that the fact that he had not performed this exact job disqualified his testimony. The same is true of the testimony of Young', who had considered, in basing his estimate of damage, what he had been told by other persons relative to the charges for dozer rental. Mr. Young had bought and sold farms for his employer, though his greater experience had been in the residential field. Previous comment as to the testimony of the other witnesses likewise applies to this one. After all, we have held that the qualifications of a witness with respect to knowledge or special experience concerning the matters about which he testifies rests largely in the discretion of the trial court, and such determination will not be disturbed by an appellate court, except in extreme cases where it is manifest that the trial court has fallen into error or abused its discretion. Arkansas Power and Light Company v. Morris, 221 Ark. 576, 254 S.W. 684.

Appellant’s principal argument for reversal is based on the fact that the amount of damages awarded included restoration costs for the strip of land taken for the easement. It is forcefully argued that it is not proper for appellees to receive the fee simple value of the land within the right-of-way, and at the same time, require appellant to restore this land to its original condition. It is admitted that damages to the adjoining lands, not taken, can he properly considered-

Of course, a landowner, although entitled to be paid the full value of the land within the right-of-way easement, still has an absolute right to continue using the surface of the right-of-way for other purposes not inconsistent with the use of the easement. In Arkansas Power and Light Company v. Morris, supra, we said:

“There appears to be no dispute as to the applicable rules of law applied by the trial court in these cases. The rule was reaffirmed by this court October 6, 1952, in Texas Illinois Natural Gas Pipeline Company v. Lawhon, 220 Ark. 932, 251 S.W. 2d 477, where we said: Under the law of this State, the owner of land is entitled to be paid the full value of the land embraced within the right-of-way easement, as if the fee had been taken even though the landowner, after the pipeline was constructed, had the right to continue using the surface of the right-of-way for farming or other purposes not inconsistent with the use of the easement. Appellant acquired by the condemnation proceedings the power to make such use of the right-of-way as its future needs required for the purpose for which the right-of-way was condemned. Baucum v. Arkansas Power and Light Company, 179 Ark. 154, 15 S.W. 2d 399’.”

However, in this litigation, it is not necessary that we discuss, or pass upon, this particular point for the reason that appellant is bound under the pleadings to restore the land taken, as far as possible, to its original condition.

The complaint filed by appellant asserts, inter alia, that after the pipeline has been laid “any and all ditches opened by plaintiff will be back-filled and leveled in such a manner that said real estate will be left in substantially the same condition as when entered upon by plaintiff. That all fences of defendants which may be cut in the construction of said pipeline will be repaired by plaintiff at its own cost and expense and restored to their present condition. That ruts and holes caused by the construction of said pipeline shall be filled and the ground placed as nearly as possible in its original condition. ’ ’

It is apparent from the pictures offered in evidence, and the testimony presented, that the right-of-way is not in substantially the same condition as before the taking, and, of course, a party litigant is bound by its pleadings. Harger v. Oklahoma Gas and Electric Company, 195 Ark. 107, 111 S.W. 2d 485.

Appellant also contends that the award is excessive. It is true that it is rather liberal, though it was approximately $2,000.00 less than the estimate of damage given by two of the appellees’ witnesses.

The jury was in a better position than this court to determine the proper amount to be awarded, and actually, any reduction that we would make would have to be based on pure guesswork. We are unable to say that the verdict was excessive.

Affirmed.

Fogleman, J., disqualified and not participating.

      See Arkansas-Louisiana Gas Company v. Morgan A. Maxey, et ux, 242 Ark. 698, 415 S.W. 2d 52. The trial court erred in permitting appellees to show the value of timber removed from the land taken, this being included in the award for the full value of the land, and also erred in permitting certain incompetent testimony. The case was remanded for another trial.

      In the first trial, appellees’ damages were fixed at $5,500.00.

      The figures she used actually totaled only $6,500.00. in the market value of the lands before and after the taking), but it is insisted that the witnesses used erroneous methods in reaching their conclusions, and the result (it is argued) is that there is no substantial evidence to support the verdict. For instance, Mrs. Beck-man testified that she did not examine the records of sales in White County for comparable sales, did not use the income approach, and, in reaching her conclusions, gave some consideration to the price the farmers were asking for their lands. This last, of course, was not admissible, hut the trial court told the jury to disregard this particular testimony. Mrs. Beckman stated that it was not necessary that she look up sales, since she was already familiar with the value of lands in the vicinity. The proof reflected that she had sold property off and on for about six years, including a number of farms, and she stated that the basis that she primarily used for arriving at the fair market value was what other places were selling for.

      This was done.


source: Caselaw Access Project

author: George Rose Smith, Justice. John A. Fogleman, Justice.

license: Public Domain

text:
    Ark. State Hwy. Comm. v. Carl Schmoll et al
    5-4609
    430 S.W. 2d 852
    Opinion delivered September 3, 1968
    [Rehearing denied October 7, 1968.]

      Thomas B. Keys & James K. Biddle for appellant.

      Williams & Gardner for appellee.
   George Rose Smith, Justice.

In this condemnation suit, brought by the Highway Commission, the. jury fixed the value of the land being taken at $26,450. The Commission argues two points for reversal.

First, it is contended that the Commission was unfairly taken by surprise at the trial when the landowner was allowed to prove, without having pleaded, that the tracts being condemned comprised about four acres more than the figures asserted in the Commission’s complaint. That contention arises from this set of facts:

By the complaint the Commission sought to acquire two tracts of land. Tract No. 422, described by metes and bounds, was alleged to contain 14.55 acres. Tract No. 422B was described in two parts: (a) The southwest quarter of the southwest quarter of a certain Section 18, and (b) a part of the northwest quarter of the adjoining Section 19, which was described by metes and bounds and was alleged to contain 23.3 acres, more or less. The description of Tract 422B ended with this clause: “A total of 63.3 Acres, more or less.” It is apparent, simply by substruction, that the plaintiff as-sinned that the southwest quarter of the southwest quarter of Section 18 contained 40 acres.

Schmoll’s answer briefly denied the Commission’s right to condemn all the land described in the complaint and went on to assert a right to compensation in excess of the amount deposited by the condemnor with its declaration of taking. The answer did not controvert the plaintiff’s allegation that Tract 422R consisted of 63.3 acres.

At the trial Schmoll was allowed to offer proof by an abstractor of titles, over the Commission’s objection, that the southwest quarter of the southwest quarter of Section 18 actually contains 43.86 acres. Counsel for the Commission at once pleaded surprise and asked for a continuance to permit the highway department’s engineers to survey the land, hut that request was denied.

We think the court fell into error. True, when the sole issue in a condemnation case is the value of the land the owner need not even file an answer, because the condemnor must pay just compensation whether or not the owner appears and answers. Bradley v. Keith, 229 Ark. 326, 315 S.W. 2d 13 (1958). When, however, the landowner intends to raise other issues, such as a claim for special damages, he must file an answer asserting his contentions. Ark. State Highway Commn. v. Lewis, 243 Ark. 943, 422 S.W. 2d 866 (1968). Similarly, when the other foot is shod, the condemnor’s failure to plead a material matter is prejudicial to the landowner “if it puts him at an unnecessary disadvantage in the presentation of his case.” Urban Renewal Agency v. Hefley, 237 Ark. 39, 371 S.W. 2d 141 (1963).

In a situation such as this one the controlling consideration on appeal is and should he that of simple fairness. Counsel for the Commission evidently drafted their complaint in the belief that the quarter quarter section comprised forty acres. Total acreage is important, because the value of rural property is ordinarily determined by the acre. Counsel for the landowner were manifestly of that opinion, for they came to court prepared to prove the exact acreage that was involved. We are firmly of the view that the issue should have been brought out into the open before the day of trial. If the law were otherwise the Commission, through no fault of its attorneys, would be exposed in every case to the risk of excessive or even fictitious claims not disclosed by the pleadings. For many years the courts, aided by pretrial conferences, discovery depositions, and allied procedures, have been eliminating former practices that permitted litigants to mask their batteries until the day of trial. An affirmance of this judgment would involve a long step backward.

The appellant’s second contention is that the court erred in allowing counsel for the landowner to argue to the jury, without supporting proof, that the Commission was taking more land than it needed and that in such a situation the landowner has no choice except to submit to the Commission’s decision. Such an argument is not well founded, as the landowner has a clear-cut remedy in eqjuity against the taking of more of his land than is needed for public purposes. Burton v. Ward, 218 Ark. 253, 236 S.W. 2d 65 (1951). We need not discuss the issue in detail, however, for it should not arise upon a retrial.

Reversed.

Fogleman, J., dissents.

John A. Fogleman, Justice.

I respectfully dissent. I find appellant’s claim of surprise without merit.

Appellee Schmoll claimed no damages which could not have been contemplated upon the filing of the complaint. Under similar circumstances, this court has held that there was no abuse of the trial court’s discretion in denying a continuance because of allegations con-tamed in a substituted answer filed on the calling of a case for trial. Ft. Smith & Van Buren Bridge Dist. v. Scott, 103 Ark. 405, 147 S.W. 440. The reasoning of that case should be applied here.

I do not agree with the implication of the majority opinion that an answer is required in a condemnation case to raise any issue bearing on the amount of compensation to be awarded. It is only when the landowner seeks to recover special damages, i.e., damages which could not have been contemplated at the time of the taking, that an answer is required. Bentoville R.R. v. Stroud, 45 Ark. 278; Fayetteville & Little Rock Ry. Co. v. Hunt, 51 Ark. 330, 11 S.W. 418; Ft. Smith & Van Buren Bridge Dist. v. Scott, supra.

It has been held that a landowner claiming compensation for impairment of value of a farm traversed by a railroad right-of-way was not required to file an answer in order to apprise the condemnor acquiring the right-of-way what it was expected to pay for. Fayetteville & Little Rock Ry. Co. v. Hunt, supra.

As I read Bradley v. Keith, 229 Ark. 326, 315 S.W. 2d 13, and Ark. State Highway Comm. v. Lewis, 243 Ark. 943, 422 S.W. 2d 866, cited in the majority opinion, both fully recognize the rule as to requirement of answer-above stated and do not suggest that an answer is required to raise issues other than value of the land or any issue other than that relating to special damages. In Bradley v. Keith, supra, it was held that two parties claiming the award of compensation must file pleadings asserting their claims. This was litigation between these parties, however, and the condemnor was not involved in any way.

I fail to see any possible application of Urban Renewal Agency v. Hefley, 237 Ark. 39, 371 S.W. 2d 141. There, in spite of a failure to so allege in its pleadings, the condemnor unsuccessfully sought to show that the property being taken from the landowners was subject to an easement for a highway right-of-way granted years before by introducing a county court order purporting to create this easement. The complaint there had affirmatively alleged that the appellees in that case were the owners of the land being taken. I find no suggestion in that opinion that the right-of-way was being used at the time of taking. No owner could have possibly anticipated that any attack on his title would be made. Furthermore, one required to plead, particularly a plaintiff, may well be held to conform his proof to his pleading more strictly than a defendant not required to plead.

Of course, an answer or other pleading is necessary to raise the question whether the condemnor has the right to take the property, or whether the use for which the taking is proposed is a public use. Mountain Park Terminal Ry. Co. v. Field, 76 Ark. 239, 88 S.W. 897; Ark. Stat. Ann. § 76-540 (Repl. 1957).

Appellate relief awarding a new trial on the ground of surprise has appropriately been held not available unless it be clearly shown that the party seeking relief used proper diligence in preparation for the trial and that he is wholly free from negligence. Merrick v. Britton, 26 Ark. 496. Emphasis was there given to the presumption that one bringing an action is properly cognizant of the nature of his claim, and that facilities for information and preparation are so extensive that there can ordinarily be no excuse.

In St. Louis & S.F.R. Co. v. Kilpatrick, 67 Ark. 47, 54 S.W. 971, it was held that a new trial should never be granted on the ground of surprise when the party who claims surprise had the means at hand to overcome the conditions which caused the surprise, but failed to use them.

Lack of diligence in anticipating evidence and preparation for rebuttal has always been recognized as a bar to reversal for failure of a trial court to grant a continuance. See, e.g., Carter v. State, 169 Ark. 1211, 278 S.W. 14. This bar was expressly recognized and applied in Ark. State Highway Comm. v. Lewis, 243 Ark. 943, 422 S.W. 2d 866, which is cited in the majority opinion. There is no more reason for finding an abuse of discretion on the part of the trial court here than there was in that case.

It was the duty of appellant to describe the lands and property to be acquired. Ark. Stat. Ann. § 76-533 (Repl. 1957). Its complaint simply incorporated an attached schedule describing the two tracts taken from appellee Schmoll, in conformity with this requirement. One of these tracts included the southwest quarter of the southwest quarter of section 18 in township 7 north 18 west- The statement of acreage made following the description of the property taken was not governing, nor was it essential, and regardless of the statement in the pleadings as to the quantity of land, the taking included the southwest quarter of the southwest quarter of section 18, regardless of its size. It was the tract described that was taken, not the number of acres added to the description.

Condemnation proceedings are essentially in rein. Arkansas State Highway Comm. v. Hammock, 201 Ark. 927, 148 S.W. 2d 324.

When land is described according to government surveys, a mere specification of the section or subdivision thereof is a sufficient description carrying the whole subdivision described, irrespective of the number of acres mentioned. Wood v. Haye, 206 Ark. 892, 175 S.W. 2d 189; Plant v. Sanders, 209 Ark. 108, 189 SW. 2d 720; Alphin v. Banks, 193 Ark. 563, 102 S.W. 2d 558.

Of course, this tract was on the west side of the township and it is a matter of common knowledge among lawyers, engineers and others who deal with real estate, that overages in acreage in any township were included in the subdivisions of the government surveys on the north and west sides of the township. In preparing Schedule A, it was obviously necessary for appellant to cause a survey of a portion of the north half of the northwest quarter of section 19 to be made. In so doing, the surveyor took a beginning point at the northwest corner of the north half of the northwest corner of section 19 and proceeded along the north line thereof a distance of 2,762.6 feet. This line was also the south line of the south half of section 18. According to the government survey, the south line of the southwest quarter of section 18 (also the north line of the north half of the northwest quarter of section 19) was 41.83 chains or 2,760.78 feet, or 120.78 feet longer than a regular quarter section boundary. Thus, in the surveyors first course, it should have been obvious to him that the southwest quarter of the southwest quarter contained more than the usual forty acres. His terminal point was less than two feet from the center of the section. In spite of this, he apparently added the acreage of his metes and bounds description of the tract in section 19 to forty acres and showed a total of 63.3 acres more or less. Strangely enough, the figures 43.86 were written longitudinally on the page opposite the typed words iC Tract #422R” on Schedule A to the complaint.

Furthermore, the attorneys for the condemnor obviously made preparation for trial. In addition, the appellant called its reviewing appraiser, Mr. Walker Watson, and Mr. A. R. Jordan of Russellville, a real estate broker and appraiser, to testify as to the respective valuation of appellee’s lands before and after the taking. It is difficult to understand how this case went through preparation for trial during the 20 months it was pending without someone on behalf of appellant having examined the government survey on file in the county courthouse to determine the area being taken. Reasonable diligence would have revealed the facts.

This court has consistently held that the matter of granting continuances lies in the discretion of the trial court. Arkansas Louisiana Gas Co. v. Howell, 244 Ark. 86, 423 S.W. 2d 867. It is only where there is a manifest abuse of that discretion that this court will reverse a refusal of such a motion. Norton & Wheeler Stave Co. v. Wright, 194 Ark. 115, 106 S.W. 2d 178.

I would not reverse because of the statements of counsel in closing argument, although I think they were erroneous and might have been prejudicial. Yet, they were not so prejudicial that a proper admonition to the jury by the court could not have removed any prejudice. Appellant, however, objected to the remarks and moved for a mistrial without ever requesting a proper admonition by the court. Thus, I find no prejudicial error.


author: George Rose Smith, Justice.

text:
    Alfred Wallis v. State of Arkansas Shanon D. Bridges et ux v. United Savings Association et al
    5381 and 5-4732
    430 S.W. 2d 860
    Opinion delivered September 3, 1968

      Henry S. Wilson for appellant Alfred Wallis; Sam Sexton, Jr. and William M. Stocks for appellants Shanon D. Bridges et ux.

      Joe Purcell, Atty. Gen.; Don Langston, Asst. Atty. Gen. for appellee State of Arkansas.

      Warner, Warner, Ragon & Smith for appellees United Savings, et al.
   George Rose Smith, Justice.

In these two cases, one criminal and the other civil, the clerk of this court refused to accept the tendered records on the ground that in each case an essential procedural step had been taken too late. Each appellant filed a motion for a rule on the clerk, under our Rule 5. We are disposing of both motions in one opinion, because the controlling issue is common to both cases.

In Wallis v. State the judgment below was entered on March 26, 1968. Under the statute the 60-day time for appeal may be extended by the trial judge by an order entered prior to the expiration of the original 60 days. Ark. Stat. Ann. § 43-2701 (Repl. 1964). Here the appellant did not obtain an extension order until May 27, which was the 62nd day. It is shown, however, that the county courthouse was closed on the 60th and 61st days, because they were Saturday and Sunday.

In the civil case the movant mailed the record in Fort Smith in time for it to reach our clerk’s office on June 8, 1968, which was the last day allowed for the filing of the record. The record was not actually delivered to the clerk’s office until June 10, because June 8 was a Saturday- For a number of years the offices in the state capitol and its adjacent buildings — including our clerk’s office- — have been closed on Saturday as well as on Sunday. No mail is delivered to those offices on either day.

We hold that the litigants acted within time. The legislature certainly meant for the parties to have the full time allowed by the statutes. It is a fair and familiar rule that no one should be prejudiced by the action of the court. Bartlett v. Standard Life and Acci dent Insurance Company 223 Ark. 37, 264 S.W. 2d 46 (1954). We see no real difference between these cases and that of Parrish Esso Service Center v. Adams, 237 Ark. 560, 374 S.W. 2d 468 (1964). There the offices of the Workmen’s Compensation Commission were customarily closed on Saturday and Sunday. We held that where the last day for filing a claim fell on Saturday, the claim was timely when it reached the Commission by mail on the following Monday. Our reasoning in that case applies with equal force to the ones at bar. Unless the governing statute should inescapably compel the contrary conclusion, we adopt the rule that when in a judicial proceeding the last day for a litigant’s action falls on Saturday or Sunday or a holiday, and the closing of a public office prevents him from taking the necessary action on the designated day, his time is thereby extended to the next day on which the office in question is open for business.

The clerk is directed to file both records.

Fogleman, J., disqualified in No. 5381.


author: Paul Ward, Justice. John A. Fogleman, Justice.

text:
    R. B. Bell, et ux v. J. A. Carver, d/b/a Carver Air Conditioning Co.
    4595
    431 S.W. 2d 452
    Opinion delivered September 3, 1968

      Fred Pickett for appellants.

      Shaw & Shaw for appellee.
   Paul Ward, Justice.

This is an appeal from a decree against a property owner establishing a lien to secure payment of $2,724. A brief summary of the facts out of which this litigation arises is set out below.

Facts.

E. B. Bell and his wife (appellants here) are the owners of a lot in the town of Mena on which was a building used as a cafe. On June 14, 1966 they executed a ten year lease to J. II. Cameron and his wife who were to operate the cafe. Under the terms of the lease the Camerons were to make repairs necessary for the operation of a first class restaurant. About three months later J. A. Carver, d/b/a Carver Air Conditioning Co., (appellee herein) began work on installing an air conditioner and a heating unit in the cafe building for an agreed price — whether appellants or lessees were responsible for the “agreed price” was one of the issues raised at the trial.

Before installation of said units was completed the building was practically destroyed by fire on November 1, 1966. Following the fire appellants did not choose to rebuild and the Camerons ceased trying to operate the cafe.

Pleadings. On January 26, 1967, appellee filed a complaint in chancery court, seeking (a) to recover from appellants $1291 expended for labor and $1955 expended for materials being lost as a result of the fire, and (b) to establish a lien on appellants’ property to secure payment of the above items. Appellants pleaded a general denial and a cross-complaint against the Camerons alleging they were obligated, under the lease, to pay any amount due appellee. Answering the cross-complaint, the Camerons denied they were liable in any amount to appellee or appellants.

At the close of a hearing on the above issues the trial court made the following findings: appellants contracted with appellee for said installation; appellee is entitled to a judgment, or a quantum meruit basis, against appellants; said judgment is a lien on the premises (subject to a lien in favor of the Union Bank of Mena), and; when appellants satisfy said judgment they will be entitled to a judgment against the Camerons. The trial court retained jurisdiction to make any further necessary orders.

The court entered a judgment in favor of appellee in the amount of $2,727 which was less than was asked for, but appellee does not question the reduction hero. Also, the Camerons have not perfected their appeal.

For a reversal appellants here rely on three separate points which we now discuss in order.

One. Appellants’ first point is stated as follows:
“The court erred in its findings of fact and conclusion of law that Appellee is entitled to judgment based upon quantum meruit.”

As we understand the argument here it is contended (a) the evidence does not support the trial court’s finding that appellants authorized appellee to make said installations and (b) quantum meruit was not the proper measure of damages. We find no merit in either contention.

(a) The trial court found, and it is undisputed: that the fire was not the fault of any of the parties; that appellant first contacted appellee about the installations; that Bell told appellee to start work and, that appellants and appellee agreed on the price. In addition to the above the written lease agreement does no! require the Camerons to make this kind of repairs on the building. On the contrary it does give them the right (at the expiration of the lease) “to remove” an}r equipment installed by them. We do not think it is reasonable to presume that the lessees would have a right to remove any part of the real estate when the lease expired.

(b) Although, as appears from appellant’s excellent brief, the governing rule has not always been clearly stated, we think the equitable rule, and therefore the better rule, is that appellee should be allowed to recover, in this case, on a quantum meruit basis. In the case of Coley v. Green, 232 Ark. 289, 335 S.W. 2d 720, we find this statement:

“We come then to the difficult question as to the power of this Court to apportion the insurance proceeds on the basis of the repairs made. The older cases hold that, when a special contract had been performed only in part, then there could be no recovery on a quantum meruit basis. Simpson v. McDonald, 2 Ark. 370; Manuel v. Campbell, 3 Ark. 324. But over the years there has been a constant tendency to find a way to prevent the working party from losing his entire outlay. In Selig v. Botls, 128 Ark. 167, 193 S.W. 534, the Court in effect, divided the contract, and allowed recovery for the part that was performed; and in Mitchell v. Caplinger, 97 Ark. 278, 133 S.W. 1032, a contractor was allowed part recovery even though the owner had to make further expenditures to complete the building.”

In WiHiston and Thompson, Revised Edition on Contracts, Section 1975, at page 948, this statement appears :

‘ ‘ One who works upon a building or other property under an indivisible contract with the owner, requiring him to complete a certain task or accomplish a certain result, cannot perform his full undertaking if the building or property in question is destroyed. He is excused from liability for his failure, because the contract required the continued existence of the building. Equally clearly he cannot sue the owner for loss of profit. If the destruction of the building was without fault on the part of the latter, he, as well as the workman, is excused from liability on the contract. But most American decisions allow recovery on a quantum meruit for the value of the work which had been done prior to the destruction.”

Here, the record also reflects that part of the heater system was not destroyed and was of some benefit to appellants.

Two. It is next contended by appellants that the court erred in its findings of fact and conclusion of law that appellee is entitled to a lien on the property of appellant. Again we find no reversible error. It has been made clear by this Court that if an owner authorizes a contractor to make improvements on his land and fails to pay for same, the contractor is entitled to a lien on said land to secure payment under Ark. Stat. Ann. § 51-601 (1947) et seq.

Section 51-601, in material parts, reads:
“Every mechanic, builder... or other person who shall do or perform any work upon, or furnish any material... for any building, erection, improvement upon land ... under or by virtue of any contract with the owner ... shall have ... a lien upon such building ... and upon the land belonging to such owner...”

Since, as we have already held, appellants authorized the improvements in this case, appellee is entitled to a lien on the improved property under the above quoted statute. See: Whitcomb v. Gans, 90 Ark. 469, 119 S.W. 676, and Ark. Foundry Co. v. Farrell, 238 Ark. 757, 385 SAY. 2d 26.

Three. At the close of the testimony appellee moved that its pleadings be amended “to conform with the proof in view of the proof that’s been submitted”. The trial court granted the motion, and appellants excepted to the ruling for the reason that appellee’s complaint was based on a contract and it now seeks to recover on a quantum meruit basis. Again we are unable to agree because, we think, there is no showing that the trial court abused its discretion granted by statute. Ark. Stat. Ann. § 27-1160 (Repl. 1962), in part, provides:

“The Court may, at any time, in the furtherance of justice, and on such terms as may be proper, amend any pleading or proceedings by adding or striking out the name of any party, or by correcting a mistake in the name of a party, or a mistake in any other respect, or by inserting other allegations material to the case; or when the amendment does not change substantially the claim or defense, by conforming the pleadings or proceedings to the facts proved. The Court may likewise, in its discretion, allow an answer or reply to be made after the time limited by this code or by an order, enlarge such time.”

See also: Fuller et ux v. Fuller et ux, 240 Ark. 475, 400 S.W. 2d 283, Callahan v. Farm Equipment, Inc., 225 Ark. 547, 238 S.W. 2d 692, and; Antrim v. McKelroy, 229 Ark. 870, 319 S.W. 2d 209.

Finding no reversible error, the decree of the trial court is affirmed, and the canse is remanded for further required proceedings.

Fogleman, J., dissents in part.

John A. Fogleman, Justice.

I agree with the majority so far as the opinion goes; however, I would remand the case to the trial court for a determination by that court of the correct amount for which appellee is entitled to judgment against appellant Bell and the amount for which he is entitled to a lien on the property. As I read the briefs, appellant does challenge the correctness of the amount for which the trial court rendered judgment and granted a lien.

Appellants’ first point is as stated in the majority opinion. One of the court’s findings of fact was that Carver was entitled to recovery on a quantum meruit basis $2,724.00. The trial judge arrived at this amount by taking appellee’s proposal for the completed job on the basis of his estimate substantially as follows:

LABOR _____________________________ _______________________ $1,291.00
Shop built duct ____________ . $650.00
Prefabricated duct . . _ .... 421.40
Grills & registers ............. 163.95
Duct insulation ......... 125.00
Furnaces (2); 10 ton cooling coil; 1 thermostat and 1
thermostat switch base . ... 594.65 1,955.00
CONDENSING UNIT & CONNECTING PIPES _______________________________________ 2,198.85
$5,444.85

The trial judge deducted from the labor item fifty cents per man hour, leaving $1,119.00. The testimony of Carver was that he actually paid only $3.00 per hour, leaving a profit of seventy-five cents per hour on labor. The court made an allowance against this seventy-five cents per hour for supervisory expense. The trial judge also deducted $350.00 for the two furnaces removed from the building by Carver and which are useable, stating that Carver was willing to keep them. He deducted this $350.00 from the $1,955 item, leaving $1,605.00. This amount, with the balance he allowed for labor, makes up the total of $2,724.00.

I am unable to find anything in the record on which the deduction of $350.00 was based and I am also unable to find any evidence in the record of any allowance for duct work removed by Carver and retained by him which is useable.

Since these findings of fact relate to the judgment which the court based upon quantum meruit, I think that the appellant argued the question sufficiently to require our consideration. In addition to his statement on the point, he specifically states:

"For an added reason the decree is not supported by the findings of fact. Quantum meruit is measured by the value of the benefit bestowed upon the Defendant rather than the detriment incurred by the Plaintiff. Dunn v. Phoenix Village, Inc., supra. [213 F. Supp. 936 (D. C. Ark. 1963)]. Appellee failed to show benefit but consistently sought to prove his entitlements under the contract originally alleged, less that part remaining unperformed. The court did not make a finding of benefit to Appellant. It used the contract figures, including possible profits built into the contract prices. The court arbitrarily deducted Fifty Cents ($.50) per hour from the price of the labor as reflected on Plaintiff’s exhibit #6 as profits from the labor. It deducted Three Hundred Fifty Dollars ($350.00) from the price of materials representing the value of furnaces which Appellee now has in his possession, again, arbitrarily. No proof was offered to this effect. Some of the work alleged must have gone into the installation of the furnaces. All of the work product is gone from the building. Appellant has none of the ‘benefits’ remaining in his possession.”

It thus appears to me that appellee failed to meet his burden of proof for recovery on quantum meruit. According to the weight of authority, the measure of recovery under the circumstances prevailing here is the reasonable value of labor performed and material furnished. See, Anno., 170 ALR 980. Evidence of the contractor’s estimates may be admissible as having some bearing on the recoverable values, but I do not feel that the evidence offered here is sufficient.

While there is testimony by Carver that he had approximately 18% overhead costs that had to be borne by labor, the relationship of this to the reasonable value of labor and materials does not appear. Furthermore, at different times, Carver, admitting that he took into consideration a reasonable profit on the job, testified that a reasonable profit would be 25%, but he later testified that he should have 10% profit. While profits might reasonably be considered along with evidence going to the question of reasonable value of labor and materials for the basis of recovery against Bell, still there can be no lien for profits. Withrow v. Wright, 215 Ark. 654, 222 S.W. 2d 809; Cook v. Moore, 152 Ark. 590, 239 S.W. 750.

I feel that we are in somewhat the same position in which the court found itself in Withrow v. Wright, supra, where the case was remanded for a determination by the trial court of the amount for which a claimant was entitled to a lien. I would follow that precedent in this case.


author: Lyle Brown, Justice.

text:
    Howard Griffith v. George Melbourn and Farm Service Cooperative
    4613
    430 S.W. 2d 862
    Opinion delivered September 3, 1968

      J. R. Crocker and James R. Hale for appellant.

      Wade & McAllister for appellee.
   Lyle Brown, Justice.

This suit was brought by Howard Griffith, plaintiff-appellant, against his employers, George Melbourn and Farm Service Cooperative, to recover severance pay. The trial court ruled that Farm Service, through its manager, Melbourn, had agreed to pay Griffith one-half salary for four months after discharge; however, the court denied recovery on the finding that Griffith had pledged to refrain from remonstrative conduct and he violated that agreement. The appeal poses two questions, namely,

(1) was there a valid contract between the parties, and

(2) , if so, did Griffith violate it?

For approximately fifteen years Howard Griffith had been regularly employed by Farm Service Cooperative. On August 20, 1966, Melbourn, in conference with Griffith, informed the latter he was being discharged. Griffith was advised he would be on vacation for the remainder of the month with full pay; that he would be paid the annual bonus usually given key employees; and that for four months following his vacation he would be paid one-half his regular salary in the form of “severance pay.” It is not claimed that severance pay was part and parcel of the original employment agreement. It was a voluntary practice instigated by Melbourn when he became manager in 1964. Two employees previously severed from work had been given similar benefits by Melbourn and the directors of Farm Service ratified his actions.

It is undisputed that Melbourn imposed a condition on Griffith to the grant of severance allowance. Unfortunately those conditions were not reduced to writing and only the two parties — Melbourn and Griffith — participated in the conversation. Griffith said he was told that the payments were conditioned that he refrain from complaining to the board members about his discharge and not to try to get Melbourn fired. Melbourn asserted the substance of the conditions to be that Griffith not create dissension among the board members or the employees and otherwise refrain from brewing trouble. Suffice it to say that the trial court found Melbourn’s version to bo the correct one. The testimony was sufficient to support that finding.

The bonus and two of the monthly severance payments were made. It was Melbourn’s decision to decline delivery of the severance payments for the last two months on the grounds that Griffith was protesting to the board members and discussing salary scales with employees. That decision brought on this suit for $800,

Was there a valid contract between Farm Service, acting through Melbourn, and its discharged employee, Griffith? We think so. We start with the premise that initially, under his contract of employment, severance payments were not involved. His tenure of employment was at the will of the Cooperative and that board permitted its manager to handle matters of fringe benefits in his discretion. Griffith believed his discharge to be without merit. There were two courses open to him. First, he could decline the offer of fringe benefits and appeal to the board of directors of the Cooperative with the view of having Melbourn’s decision reversed. Alternatively, he could accept the immediate benefits totalling $2364 and close the incident. Griffith testified that he accepted Melbourn’s proposition and further asserted that he lived up to it. The acceptance of the terms of the severance “settlement” constituted a contract with valid consideration. It was a benefit paid and to be paid Griffith, for which he waived his right of protest. See First National Bank v. Hasty, 183 Ark. 519, 36 S.W. 2d 967 (1931). In Hirsch v. Associated Amusement Machine Operators of New York, Inc., 127 N.Y.S. 2d 82 (1953), the discharged employee submitted his resignation allegedly on the promise that he would receive severance pay. There it was held that the surrender of his position constituted sufficient consideration for the promise to make severance payment.

Finally, did the employee-appellant violate the non-protest agreement? The trial court so found and we find substantial evidence to sustain that holding. Mr. Griffith called on the president of the Cooperative some three times. His discharge was discussed and Griffith urged a special meeting of the board of directors. Griffith pointed up alleged sala^ disparities between employees. Another board member related internal operation problems which had been called to his attention by Griffith. Joe Reed, president of Cooperative, testified that the continued discussion of Griffith’s discharge resulted in a number of men coming to him and inquiring about it, which to his opinion caused confusion among members. The recited incidents are alleged to have occurred after Griffith’s discharge and resulted in the suspension of severance payments. In all, five of the directors of the Cooperative were contacted by Griffith.

Affirmed.


author: John A. Fogleman, Justice.

text:
    Lilla D. Burks v. Richard Mobley
    5-4623
    430 S.W. 2d 859
    Opinion delivered September 3, 1968

      Guy H. Jones and Phil Stratton for petitioner.

      Henry & Henry and Clark, Clark & Clark for respondent.
   John A. Fogleman, Justice.

Petitioner seeks a writ of mandamus directing the Chancery Court of Faulkner County to reinstate on its docket two cases previously dismissed.

The first case (No. 10122) was filed by petitioner, individually, on September 21, 1967, against her stepdaughter, Mrs. W. N. Daniel, and The First National Bank of Conway. As the surviving spouse of R. H. Burks, she sought to recover a bank account through this action. After service was had upon Mrs. Daniel in Pulaski County and upon the bank in Faulkner County, the trial court sustained Mrs. Daniel’s motion to quash service. It then considered a motion to quash service by the bank as a demurrer, which it also sustained, and dismissed the complaint. The order of dismissal was made on February 2, and filed February 9, 1968. No appeal was taken from that order.

On February 5th, petitioner filed the second suit (No. 10203). This suit was brought as administratrix of the estate of her deceased husband (appointed September 22, 1967) against her step-daughter only. In this action she sought to recover the proceeds of the same bank account. The defendant’s motion to quash service was granted because she was served in Pulaski County, and this suit was dismissed on March 1, 1968.

This petition was filed March 14, 1968. "We deny the writ as to both cases.

The order of dismissal in both cases was a final order from which an appeal could have been taken. A final order entered after service is quashed is appeal-able. Harlow v. Mason, 117 Ark. 360, 174 S.W. 1163. An order dismissing a complaint after a demurrer has been sustained is also appealable. Fox v. Pinson, 177 Ark. 381, 6 S.W. 2d 518.

Mandamus will not be granted where there is a remedy by appeal. Mobley v. Conway County Court, 236 Ark. 163, 365 S.W. 2d 122; Snapp v. Coffman, 145 Ark. 1, 223 S.W. 360; Cantley v. Irby, 186 Ark. 492, 54 S.W. 2d 286. Nor can it be used to correct an erroneous decision already made. Mobley v. Conway County Court, supra; Jackson v. Collins, 193 Ark. 737, 102 S.W. 2d 548; Watson v. Gattis, 188 Ark. 376, 65 S.W. 2d 911.

Tlie court’s determination on the motion to quash and on the dismissal of the action in both cases was a judicial decision. Under such circumstances, this court will not issue a writ of mandamus requiring the trial court to redocket the eases. Chavis v. Golden, 226 Ark. 381, 290 S.W. 2d 637; McBride v. Hon, 82 Ark. 483, 102 S.W. 389.

Since petitioner permitted the time for appeal to expire in Case No. 10122, she could not be entitled to a writ of mandamus in that case in any event. Chavis v. Golden, supra; Calloway v. Harley, 112 Ark. 558, 166 S.W. 546. Even though the time for appeal of Case No. 10203 had not expired when the petition herein was filed, the writ cannot be granted because it cannot be used to perform the functions of an appeal. Rolfe v. Spybuck Drainage Dist. No. 1, 101 Ark. 29, 140 S.W. 988.

Petitioner contends that the trial court has erroneously declined to take jurisdiction in both cases, but, the writ can only be issued to require the court to entertain jurisdiction where the aggrieved party has no specific or adequate remedy by appeal. Smith v. Carter, 107 Ark. 21, 154 S.W. 951; Automatic Weighing Co. v. Carter, 95 Ark. 118, 128 S.W. 557; Gilbert v. Shaver, 91 Ark. 231, 120 S.W. 833.

The petition is denied.


author: J. Fred Jones, Justice.

text:
    Home Mutual Fire Insurance Company v. Gerald Cartmell
    4616
    430 S.W. 2d 849
    Opinion delivered September 3, 1968

      Estes & Brasil for appellant.

      Van H. Albertson for appellee.
   J. Fred Jones, Justice.

Gerald Cartmell sued the Home Mutual Fire Insurance Company in the Madison County Circuit Court on an insurance policy for damage caused by lightning to the foundation of a house under construction. Judgment was entered in favor of Cartmell on a jury verdict for $371.48. Statutory penalty of 12% and attorney’s fee in the amount of $250 was assessed against the insurance company, and it appeals to this court relying on the following point for reversal:

“1. The court erred in refusing to give appellant’s offered instruction No. 4 which directed the jury to return a verdict for the appellant.
“2. The court erred in allowing appellee to introduce the opinion of Sol Stevens as an expert as to what caused the damage.
“3. The court erred in allowing Mr. Sol Stevens to testify as an expert.”

Oartmell contends that the damage ivas caused by lightning, within the coverage of his insurance contract, and the company contends that the damage was caused by water, within the exclusionary clause. This entire case turns on the fact question of whether the damage complained of was caused by lightning. The jury found that it was, so the question before this court on appeal is whether there was any substantial evidence to support the finding of the jury, and we conclude that there was.

The record before us reveals the following facts: In August, 1964, Mr. Oartmell had under construction a house 72 feet long and 26 feet wide. The house was being built on a little knoll with the length of the house running north and south and the front facing east. The natural drainage was to the west. A full basement for the house had been excavated the entire length of the house with a bulldozer and a concrete basement floor had been poured. The east and west walls of the basement, which also constituted the foundation for the house, had been constructed against the vertióle side walls of the excavation, with twelve inch by sixteen inch concrete blocks laid eleven blocks high. The construction of a chimney and fireplace had been started in the center of the basement and this construction had proceeded to the floor level of the house. The house itself had been constructed on this foundation and was 75% complete when the workmen quit for the day on August 17, 1964.

When the construction was begun, prior to August 17, Mr. Oartmell obtained an insurance policy from the appellant insuring the house up to $10,000 against damage caused by windstorm and lightning, but excluding damage caused by high water or overflow, whether driven by wind or not. On the night of August 17, an electrical rainstorm occurred in the vicinity and when the workmen returned to the house on the morning of August 18, a part of the west wall of the basement, or the west foundation of the house, was down inside the basement and mud and some water was in the basement.

At the trial, Mr. Cartmell testified as follows:
“Q. Now, on the morning of the 18th day of August, did you notice any damage to your house?
A. I sure did. The west wall was blowed plum out of it.
Q. Now, you’re talking about the basement wall?
A. That’s right, the basement wall.
Q. When you say it was blown out, clarify that a little for the jury, will you?
A. Well, there was two hundred and thirty blocks busted all to pieces and they were busted to pieces across the basement wall, twenty-six feet.
** # #
Q. What was the general condition of the basement when you observed it on the morning of the 18th, other than the blocks being scattered around?
A. It was just a mess.
Q. Did you notice anything outside the house?
A. Well, there was — .
Q. On the west side of the house?
A. Well, there was a hole there.
Q. How large was the hole?
A. Oh, probably three foot in diameter.
Q. Where was the hole?
A. About the center of the basement wall.
* *
Q. This hole yon saw near the septic tank on the west side of the house, what did it look like to you? ?
A. It was a hole about three foot in diameter right where the plumbing come out of the west wall.
Q. Had you or any of the workmen dug such a hole there?
A. No, sir.
Q. And you’ve testified that there was damage to the plumbing also?
A. Yes. sir, there were some Ts that were busted where the — and an elbow, I think. Mr. Markley, he replaced that. He was doing the plumbing at the time.
Q. Do yon know of your own knowledge know [sic] whether or not there was an electrical storm the night of the 17th?
A. Yes, sir, there was. There was here in Huntsville. I lived in Huntsville then in the basement of the Western Shop.”

Mr. Stevens, a stonemason who was in the process of building a fireplace and chimney in the center of the basement, testified as follows:

“Q. All right, . . . would you tell us what the condition of the wall was? Was it standing up straight or was some of the blocks broken or — go into that.
A. Well, I would say that three-fourths of them was broke all to pieces and was scattered all over the inside of the basement.
Q. Now, what else was in the basement other than the blocks?
A. Well, there was some mud.
ft ft ft
Q. Have you seen the results of lightning striking various objects?
A. I have.
Q. Did you examine the damage or did you go along the west side of the Cartmell house?
A. I did.
Q. What did you notice there?
A. Well, they was quite a pothole there, different to what it was the night before. And it looked like the mud had went plum in and it had sprayed on my fireplace footing.
ft ft ft
Q. What, in your opinion, caused the damage?
ft ft ft
A. Well, I can say this, it wasn’t compression against the wall.
Q. Well, what, in your opinion, caused the damage?
ft ft ft
A. If it wasn’t lightning, I wouldn’t know what it was.”

In determining whether or not the trial court erred in its failure to direct a verdict, we must take that view of the evidence which is most favorable to the party against whom the directed verdict is requested, and if there is any substantial evidence tending to establish the issue in favor of the party against whom the request is made, it is not error for the court to refuse the request but would be error for the court to take the case from the jury. In testing whether or not there is any substantial evidence in a given case, the evidence and all reasonable inferences deducible therefrom should be viewed in the light most favorable to the party against whom the request is made; and, if there is any conflict in the evidence, or where the evidence is not in dispute but is in such a state that fairminded men might draw different conclusions therefrom, the motion for a directed verdict should be denied and the cause submitted to the jury under proper instructions. Huffman Wholesale Supply Co. v. Terry, 240 Ark. 399, 399 S.W. 2d 658.

The trial court properly instructed the jury as to circumstantial evidence and the burden of proof in this case, and we conclude that there was substantial evidence from which the jury could have concluded, as it apparently did, that the damage was caused by lightning. This court will not reverse the verdict of a jury as to factual issues if the jury could have found as it did, from the evidence presented Southern Farm Bureau Cas. Ins. Co. v. Brigance, 234 Ark. 172, 351 S.W. 2d 417; Arkansas Motor Coaches, Ltd. v. Williams, 196 Ark. 48, 116 S.W. 2d 585.

As to Mr. Stevens’ testimony, he had had sixteen years experience in building concrete block walls. He observed the damaged wall and- was qualified to testify that in his opinion the wall did not fall because of compression against the wall. In testifying that he did not know what damaged the wall unless it was lightning, Mr. Stevens did not qualify, neither did he testify as an expert on lightning, that the wall was struck by lightning —he testified from inspection and observation that there was no compression against the wall and that he didn’t know what caused the damage unless it was lightning. Mr. Stevens was qualified to give the opinion he did give, based on his experience and observation as to what dicl not caiose the damage.

There is no question that a heavy rainstorm, attended by severe lightning, occurred in the vicinity of the house on the night of August 17. The evidence offered by the appellant tended to prove that the damage was caused by high water. The evidence as to what caused the damage was definitely in dispute in this case and we conclude that the conflicting evidence was such that fair-minded men could draw different conclusions therefrom. It was for the jury to determine from all the evidence what did cause the damage, and we are of the opinion that there was substantial evidence to support the jury in reaching the verdict that it did.

Judgment affirmed.


author: Conley Byrd, Justice.

text:
    Maxine Reed v. W. R. Whitehead
    4579
    430 S.W. 2d 858
    Opinion delivered September 3, 1968

      Wright, Lindsey & Jennings for appellant.

      L. Weems Trussell for appellee.
   Conley Byrd, Justice.

Appellant Maxine Reed filed a complaint in the Chancery Court seeking to enjoin appellee W. R. Whitehead from acting in the capacity of “third member” of the Dallas County Board of Election Commissioners, claiming at the same time that she was the proper person to hold such office. Appellee filed an answer and counterclaim seeking to enjoin appellant from usurping the office to which appellee claimed to have been appointed.

The complaint and counterclaim, considered in all their respects, must be held to be a suit for the purpose of trying title to the office of “third member” of the County Board of Election Commissioners. We have consistently held that a court of equity does not have jurisdiction to determine questions concerning the appointment or election of public officers or their title to office. Davis v. Wilson, 183 Ark. 271, 35 S.W. 2d 1020 (1931).

The judgment entered below in favor of appellee Whitehead is reversed and the cause remanded to the Chancery Court with directions to dismiss same for lack of jurisdiction, any remaining issues which might warrant a transfer to law docket having become moot by virtue of our decision of this date in Ellis v. Rockefeller.

Reversed and dismissed.


author: Conley Byrd, Justice. Lyle Brown, Justice Carleton Harris, Chief Justice. Paul Ward, Justice.

text:
    Frank Ellis et al v. Winthrop Rockefeller et al
    4631
    431 S.W. 2d 848
    Opinion delivered September 3, 1968
    [Rehearing denied October 21, 1968.]

      Wright, Lindsey & Jennings for appellants.

      Joe Purcell, Atty. Gen.; Don Langston, Asst. Atty. Gen. for appellees.
   Conley Byrd, Justice.

The question involved on this appeal is whether the State Board of Election Commissioners, in appointing the third member of each County Board of Election Commissioners, must appoint those persons selected by the majority party or whether the State Board of Election Commissioners has discretion in the appointment of the third member.

This action was commenced by appellants Frank Ellis, Franklin S. Garrison, T. O. Porter, Chester Andres, Maxine G. Reed, Marguerite Turner and James W. Hurley, to mandamus the State Board of Election Commissioners to appoint them as third members of their respective County Boards to fill existing vacancies. The allegations are that each had been designated by the Republican County Central Committee of his respective county as the third member of the County Board of Election Commissioners; that the Republican Party is the majority party as defined in Initiated Act No. 3 of 1948; and that at a meeting of the State Board of Election Commissioners on August 1, 1967, they were nominated as the third members of their respective County Boards of Election Commissioners but the State Board of Election Commissioners failed and refused to appoint them.

Testimony proffered at the hearing shows that at the August 1, 1967 meeting of the State Board, called to fill vacancies, appellants were nominated as the third members of their respective County Boards, and persons alleged to be members of the minority party (Democrats) were also nominated. By vote of 6 to 2 along party lines with the Governor as chairman abstaining, the State Board refused to nominate appellants and by a vote of 6 to 2 appointed those persons alleged to be Democrats. However, because the majority and minority parties differed on the interpretation of the law as to which party was to control appointment of the third members, the appointments made by the State Board have not been certified by the Governor, the ex officio chairman, and the Secretary of State, the ex officio secretary of the Board.

The State Board and the County Boards of Election Commissioners were set up under Initiated Act 3 of 1948. So far as here pertinent, it provided:

“SECTION 1. For the purpose of this Act, the majority party shall be construed to be that political party polling, in the State of Arkansas, the greatest number of votes for Governor in the last preceding general election and the minority party shall be construed to be that political party polling, in the State of Arkansas, the second greatest number of votes for Governor in the last preceding General Election.
“SECTION 2. The Governor, the Attorney General, the Secretar}?' of State, the State Chairman of the State Central Committee of the majority party and the State Chairman of the State Central Committee of the minority party shall constitute the State Board of Election Commissioners. The Governor shall act as ex-officio Chairman of such Board and the Secretary of State shall act as ex-officio Secretary of such Board and shall keep the records of said Board.
“The County Chairman of the County Central Committee of the majority party and the County Chairman of the County Central Committee of the minority party shall be members of the County Board of Election Commissioners and together with one additional or third member to be appointed by the State Board of Election Commissioners, shall constitute the entire membership of the County Board of Election Commissioners for each of the several Counties in Arkansas. The third member of each County Board of Election Commissioners shall be appointed by the State Board of Election Commissioners at least ninety (90) days before any General Election for State, District or County office. ’ ’
# *= «= ^
“SECTION 3. It shall be the duty of the County Boards of Election Commissioners not less than five (5) days preceding a general election to select and appoint three (3) judges and two (2) clerks for each voting precinct in their respective Counties and to perform the other duties prescribed, provided however, that two (2) judges and one (1) clerk at each precinct shall be chosen and appointed by the tivo members of the County Board of Election Commissioners representing the majority party and one (1) judge and one (1) clerk at each precinct shall be chosen and appointed by the member of the County Board of Election Commissioners representing the minority party. The County Boards of Election Commissioners shall immediately upon performing such duties prepare, publish and post in a public place in the Sheriff’s office and in the County Clerk’s office of each County their respective list of appointees as judges and clerks of election.
“In the event the majority or minority representatives on such County Boards of Election Commissioners do not select and appoint their full quota of judges and clerks for each voting precinct then the County Boards of Election Commissioners by majority vote may fill such vacancies, provided, that in no event shall all of the judges or both of the clerks at any voting precinct be members of the same political party.” (Emphasis supplied.)

The membership of the State Board of Election Commissioners was increased by the General Assembly, Acts 1951, No. 74, to nine members, by adding the Lieutenant Governor, the State Auditor, the State Treasurer, and the Commissioner of State Lands. Section 3 of Initiated Act No. 3 of 1948 was amended by the General Assembly, Acts 1963, No. 477, to read:

“It shall be the duty of the County Board of Election Commissioners, not less than five (5) days preceding a general election to select and appoint three (3) judges and two (2) clerks for each voting precinct in their respective Counties and to perform the other duties prescribed, provided however, that two (2) judges and one (1) cleric in each precinct shall be chosen and appointed by two (2) members of the County Board of Election Commissioners representing the majority party and one (1) judge and one (1) clerk at each precinct shall be chosen and appointed by the members of the County Board of Election Commissioners representing the minority party. Provided further, that if there are no registered or known members of the minority party in any precinct or precincts within a county the minority party member of the County Board of Election Commissioners is hereby prohibited from naming any person to represent such minority party as a judge or clerk in any such precinct or precincts who is a member of the majority party, and in such event, the County Board of Election Commissioners shall by a majority vote name the judge and the clerk allotted the minority party for any such precinct or precincts. The County Board of Election Commissioners shall immediately upon performing such duties prepare, publish and post in a public place in the Sheriff’s office and in the County Clerk’s office of each County their respective list of appointees as judges and clerks of elections.
“In the event the majority or minority representatives on such County Boards of Election Commissioners do not select and appoint their full quota of judges and clerks for each voting precinct, as authorized hereinbefore then the County Board of Election Commissioners by majority vote may fill such vacancy, provided, that in no event shall all of the judges or both of the clerks at any voting precinct be members of the same political party unless there are no members of the minority party registered in said precinct.” (Emphasis supplied.)

Our law holds that the writ of mandamus will not be granted to review the exercise of discretion of an officer or official board, but can be invoked only to compel the officer or board to exercise such discretion. Better Way Life Ins. Co. v. Graves, 210 Ark. 13, 194 S.W. 2d 10 (1946). To sustain their position here appellants point to section 3 of Initiated Act No. 3 of 1948 as amended, which provides that two judges and one clerk in each precinct shall be chosen and appointed by "two (2) members of the County Board of Election Commissioners representing the majority party and one (1) judge and one (1) clerk at each precinct shall be chosen and appointed by the members of the County Board of Election Commissioners representing the minority party-” Based upon this language, appellants contend that the third member must be a member of the political party designated as the majority party by section 1 of the Initiated Act and that, since the statute declares him to be a representative of the majority party, it is the prerogative of the majority party to make this selection with the State Election Board being only a rubber stamp. An alternative argument made by appellants is that, since they were the only Republicans nominated at the August 1 meeting, the State Election Board had no discretion to exercise, it being bound by the statute to appoint a member of the majority party as a representative thereof. On the other hand, the State Board contends that it may choose anybody, irrespective of political party affiliation, to serve as the third member.

Appellants can find no solace in that portion of section 2 of the Initiated Act which provides that the third member is ‘‘to be appointed by the State Board of Election Commissioners.” The law generally is that the choice of a person to fill an office is the essence of an appointment and that the selection must be the discretionary act of the officer or board clothed with the power to do the appointing. People v. Mosher, 163 N.Y. 32, 57 N.E. 88 (1900). Furthermore, appellants’ “rubber stamp” argument is illogical. We find it difficult to believe that the legislature would increase the membership of the State Election Board from five to nine members if it was intended to function merely as a rubber stamp.

Appellants place much reliance upon the fact that section 3 of the initiated measure, both as originally written and as amended by the 1963 act, refers to “two commissioners representing the majority party.” Had the statute stopped with the term “representatives” of the majority or minority party, appellants’ argument would have more merit; hut the same statute, in dealing with election judges and clerks, specifically provides “ .. that in no event shall all of the judges or both of the clerks at any voting precinct be members of the same political party.” (Emphasis supplied.) Since the state, when referring to County Election Commissioners, consistently uses the term “representing” or “representative,” but when referring to judges and clerks uses the term “members of the same political party,” logic dictates that a distinction was intended.

It has been argued that the political history of our state, having predominantly a one-part system at the time of the drafting of the statute, was such that the drafters did not foresee this problem and that the use of the phraseology was an oversight. With this we do not agree, for the Initiated Act itself was dealing with two parties, and the complement of the State Board of Election Commissioners as originally set up would obviously permit the Governor and the chairman of his political party to comprise a minority of the members of the State Election Board. Obviously the two-party system had become a reality at the time section 3 was amended by the 1963 act. By that time our compulsory primary law, Acts 1957 No. 205, which grew out of the two-party system, had been in operation during two elections.

It has been suggested that the term “representing the majority party” becomes meaningless unless it is interpreted as meaning member of the majority party. With this we do not agree. The term “representing the majority party” is apparently used in its common acceptation — i.e., to act on behalf of and to work with the majority party in the selection of the election judges and clerks.

Therefore we hold that section 3 of Initiated Act No. 3 of 1948 as amended by the 1963 act does not require tlie third member of the County Board of Election Commissioners to be either a member of the majority political party or a designee of that party. The statute only charges the third member as being a representative of the majority party.

It follows that the trial court properly dismissed appellants’ mandamus action. However, we fail to see that a different result would have been reached had appellants followed some other remedy.

Affirmed.

Brown, J. concurs.

Harris, C.J., dissents in part.

Ward, J., dissents.

Lyle Brown, Justice

(concurring). I agree with the majority’s conclusion; however, that opinion fails to mention a particular point of importance. The fact that the State Board is not required to select the third member from the loyalists of the majority party may initially arouse concern. The answer to that anxiety is that if the State Board abuses its discretion, or if a given appointee fails in his responsibility to act on behalf of the majority party, the courts are empowered to afford relief.

Carleton Harris, Chief Justice.

I agree with the majority that appellants pursued the wrong remedy, and that mandamus would not lie in this case; however, the court has passed on the contentions, which I consider entirely appropriate, due to the time element involved.

I also agree with the majority that these appellants are not entitled to any relief, and that the State Board of Election Commissioners is not required to “rubber stamp” the names offered by the majority party. In other words, it is my view that the board is entitled to exercise its discretion in making the appointments — bnt I am also of the opinion that this discretion is limited.

It is true that the omission of the word, “the,” and changing of the word, “member,” to “members,” in the 1963 amendment of Section 3 of Initiated Act No. 3 leave the statute somewhat confusing, and make an interpretation more difficult, but I am unable to reach the final conclusion found by the majority.

The word, “representative,” is defined, inter alia, by Webster’s Dictionary (Third New International) as “one that represents another or others in a special capacity; one that represents another as agent, deputy, substitute, or delegate, usually being invested with the authority of the principal.” This is the sense in which the word is used in everyday language; it is simply contemplated that one who represents another is in accord and harmony with the one that he represents.

I cannot believe that it was the intention of the Legislature to permit the majority party to be represented by one whose beliefs and interests are contrary to the group represented, so, while I do not think that the board is required to appoint particular persons (appellants herein) as the third members of the several County Boards of Election Commissioners, I do think that the board is required to name persons who are supporters of the majority party.

I therefore respectfully dissent to this portion of the opinion.

Paul Ward, Justice.

I disagree with the majority, both (a) as to the interpretation of the statutes involved, and (b) as to the propriety of the remedy of mandamus.

(a) Briefly, my interpretation of the statutes is that the legislature clearly intended for the majority party, in general elections, to have a majority of the election officials at the ballot box. Any other interpretation would make the statutes meaningless. Certainly my interpretation has been zealously followed over the years up to the present time - - until the shoe got on the other foot.

(b) I agree with the majority that this court cannot control the discretion of a trial court. This means that when a trial court has a choice between two courses of action we cannot tell it which course to follow.

In the case here under consideration the State Board of Election Commissioners was directed by statute to appoint a “third member” of each County Board. If the party in power had nominated more than one person as the “third member” then the State Board would have had a right to exercise its discretion and choose any one of the nominees. That, however, is not the situation here since only one nominee was named. Therefore the State Board had only one “choice” with no discretion and mandamus is a proper remedy.


text:
    Service Casualty Company of New York v. Alvin Franklin Vasseau
    4619
    431 S.W. 2d 243
    Opinion Delivered September 9, 1968

      Edward M. Owens for appellant.

      George E. Pike for appellee.
   Carleton Harris, Chief Justice.

This case involves the construction of an insurance policy. On April 19, 1966, Alvin Franklin Vasseau, appellee herein, purchased from Service Casualty Company of New York, appellant herein, a contract of insurance providing certain coverage on a 1966 Brookwood Mobile Home. The contract covered a five-year period, from April 19, 1966, to April 19, 1971, the total premium being $298.57. The mobile home was purchased in Memphis, Tennessee, and delivered to a location in DeWitt, Arkansas. On August 10, 1966, appellee endeavored to move the home from one location to another in DeWitt by pulling it with a IV2 ton wrecker. While attempting to cross the tracks of the St. Louis Southwestern Railway Company, the frame supporting the mobile home came in contact with the track, causing certain damage, viz., the frame was bent, certain bolts connecting the frame to the floor were torn loose, and the floor, walls and interior of the property were damaged. Appellee instituted suit against appellant, contending that the damage was covered under his insurance policy. The company denied liability, and on trial the jury returned a verdict for Vasseau in the amount of $1,405.00. From such judgment, appellant brings this appeal. For reversal, appellant contends, first, that it was entitled to a directed verdict, and in the alternative that the verdict was excessive.

The provision of the policy in question sets out that the company will pay for loss of, or damage to, the mobile home occurring during the policy period, when the loss or damage is caused directly and accidentally by one or more of the following perils: “Stranding, sinking, falling, burning, collision or derailment of any conveyance in or upon which the mobile home is being transported.” It is simply appellant’s contention that, since the mobile home was traveling on its own wheels as it was pulled over the track and damaged, there is no liability; that the policy only provided coverage if the home was being hauled on a separate and distinct conveyance; that to hold that the undercarriage or frame of the mobile home was a conveyance would be a strained and unnatural definition of the word.

We do not agree that appellant was entitled to a directed verdict, and there was ample evidence to justify the finding of the jury. The proof reflects that this property is 12 feet wide and 60 feet long, a fact known to both parties. It has 3 axles and 6 wheels, the wheels approximately 10 to 12 inches apart. This is a rather large house trailer, and would require a large vehicle to transport it; and the jury may well have considered that there would be no point in having wheels on the mobile home if it were contemplated that it would be hauled from place to place on another vehicle. It is common knowledge that these mobile homes are towed up and down the highways each day traveling on their own undercarriages and wheels. Appellee states in his brief:

“The undercarriage of a mobile home 12 Ft. by GO Ft. with three axles and six wheels could certainly be considered as being a conveyance in its own right. Therefore, if the construction placed on this contract of insurance by the appellant were to be accepted it would amount to a finding that the appellee had bought insurance which could never be of benefit to him for the reason that he would never be able to mount such a mobile home upon any other conveyance unless the other conveyance were large enough to be a monstrosity.”

This is apparently the view taken by the jury. The most that can be said for appellant’s position is that the language may be considered ambiguous — but this, of course is of no aid to the company, for it prepared the policy, and any ambiguity is construed in favor of the insured.

A succinct discussion concerning the construction of insurance contracts is found in 29 Am. Jur., Section 247, Page 628, as follows:

“As in the case of contracts generally, the cardinal principle pertaining to the construction and interpretation of insurance contracts is that the intention of the parties should control. If the intention of the parties can be clearly discovered, the court will give effect to that intention within the sphere of its proper and legal operation and will construe accordingly the terms used in the policy, no matter how inept, ungrammatical, or inaccurate they may appear when viewed strictly or legally. The rule is that once the intention of the parties is clearly ascertained, a policy of insurance is to be liberally construed in order to carry out that intention, especially where a liberal construction is the reasonable one and a literal construction would lead to manifest injustice.”

Here, we think the circumstances (size of the mobile home, and the undercarriage being equipped with 6 wheels) and the other evidence justified the jury in determining the intention of the parties when they entered into the contract, which, under the testimony, appears entirely reasonable.

Appellant also asserts that the verdict of the jury was excessive. This contention is based upon the fact that Howard Spurlock, whose testimony was introduced by appellant, testified that the trailer could be repaired for the sum of $814.34. Appellant states that this witness was the only person testifying who was in the business of repairing mobile homes. W. W. Smith, engaged in the general construction business, estimated the damage at $1,680.00; Lester Capps, a carpenter, estimated the repairs at $1,405.00. Capps was assisted in making his estimate by Hardy Purdy, also a carpenter. It was within the province of the jury to determine which testimony to accept, and though appellant’s witness may have had more experience in this particular line of work, it would appear that all were competent to testify. Certainly, we cannot say that the amount of the judgment was excessive.

Affirmed.

Jones, J., dissents.

      Universal C.I.T. Credit Corporation, also an appellee in this case, filed an intervention, claiming a lien on the mobile home in the amount of $4,831.68.

      A piece of the angle iron under the trailer became hung on one of the rails.

      Coverage is claimed under this provision.


author: Carreton Harris, Chief Justice.

text:
    Robert L. Crouch, et al v. John Crouch, et al
    4573
    431 S.W. 2d 261
    Supplemental Opinion on Denial of Rehearing Delivered September 9, 1968

      Kirsch, Cathey & Brown, for appellants.

      Rhine & Rhine, for appellees.
   Carreton Harris, Chief Justice.

Appellants complain that this court has not made clear the finding on the primary issue which, so they state, is whether they have the right to receive the fair value of their lands in the uncleared state before any award is made to appellees based upon added value to the lands by reason of the clearing of same.

The trial court held in the amended decree of August 2 that the value of the lands in their uncleared state was $150.00 per acre, or a total of $24,000.00 (this had also been the finding in the April decree). Appellants argue that this figure has now been established, and cannot be changed because (it is argued) if the amount was erroneous, the appellees led the court into the error.

The record reflects that a witness for appellants was asked whether he had an opinion as to the fair market value of the property in April, 1967. The witness first answered that, in its uncleared state, he considered the lands worth “$75.00 to $100.00 an acre.” Counsel for appellees then stated':

“May it please the court, I believe if I understood Your Honor right, you said you were accepting the value we had established earlier of $150.00 per acre before clearing.”
The court responded:
“I agree with you on that. The only thing the Court is here today to hear is the value of the land now or as of April of 1967, when the mandate was filed. The value of the land as it exists now.”

It is thus apparent that the court had previously stated that it would only hear evidence relative to the value of the land as of April, 1967, and the remark of counsel for appellees does not seem to have led the court into that finding. We have reversed this decree, and in doing so, indicated that we were of the opinion that the values established by the Chancellor were erroneous.

We do not consider the $24,000.00 value previously given the land in its uncleared state to be binding, though there is nothing, of course, to prevent the Chancellor from making this same finding again. Actually, it does not appear that appellees are really objecting to this finding, the principal question being, “Who is entitled to priority?”

We think the statute, Ark. Stat. Ann. § 34-1423 (Repl. 1962), makes clear that appellees are entitled, subject to the limitations set forth in this opinion, to the paramount right to be paid the value of the improvements made (insofar as the value of the land was enhanced), and the amount of taxes which may have been paid. Of course, one is not permitted to “improve one out of his land,” and our holdings make clear that this cannot be done.

It may be that the clearing added nothing to the value of the land, in which case there could be no recovery for improvements. In McDonald v. Rankin, supra, after pointing out that the value of the improvements is determined at the time of the recovery, and that the value is based upon the enhanced value which the improvements at the time of the recovery impart to the land, we added:

“*** The value of the improvements should not exceed the cost of making them or replacing them at the time of the recovery and in the condition in which they are at that time.”

It is so ordered.


text:
    Stanley Brown, et al v. Maryland Casualty Co., et al
    5-4723
    431 S.W. 2d 258
    Opinion Delivered September 9, 1968

      Acchione & King and Joe H. Hardegree for appellants.

      Hubert Mayes Jr., Wm. M. Clark and Ben Allen for appellees.
   George Rose Smith, Justice.

This motion by one of the appellees, Maryland Casualty Company, to dismiss the appeal of another appellee, Housing Authority of Pike County, requires us to construe the term “cross appeal” as it was used in a 1957 amendment to Act 555 of 1953, reading in part as follows:

“When an appeal is permitted by law from the Circuit, Chancery or Probate Court, any party to the action may appeal from a judgment or decree, by filing a notice of appeal within thirty (30) days from the entry of the judgment or decree appealed from. Any other party to the action may cross appeal from a judgment or decree by filing with the court in which the ease is tried a notice of cross appeal within ten (10) days after the notice of appeal is served on such party.” Ark. Stat. Ann. § 27-2106.1 (Repl. 1962).

The question is whether a notice of appeal filed by the Housing Authority thirty-one days after the entry of the judgment can be sustained as falling within the ten-day extension of time allowed by the statute for cross appeals.

The facts are not in dispute. By a judgment entered on January 2, 1968, Piling & Repairs, Inc., was given a $3,000 judgment against Con-Ark Builders, Inc.; Con-Ark was given a $8,023 judgment against Maryland Casualty Company; and Maryland Casualty was given judgment over against Stanley Brown, R. W. Laird, and the Housing Authority for the amount of Con-Ark’s judgment.

On January 31 Brown and Laird filed a notice of appeal, designating Piling & Repairs, Con-Ark, and Maryland Casualty as appellees. On February 1, the last day of the 30-day period allowed for filing notice of appeal, Con-Ark filed such a notice, designating Piling & Repairs as the appellee. The next day, February 2, the Housing Authority filed a notice of appeal designating Piling & Repairs, Con-Ark, and Maryland Casualty as appellees. On February 10 Maryland Casualty filed a notice of cross appeal as against Con-Ark.

Maryland Casualty’s motion to dismiss is based upon the fact that the Housing Authority was not named as an appellee in the first two notices of appeal. Hence, it is argued, the Housing Authority was really a direct appellant and should therefore have filed its notice of direct appeal within thirty days after the entry of the judgment.

The term “cross appeal” has appeared in our statutes ever since the enactment of the Civil Code in 1869, but it has never been entirely free from ambiguity. The provision in the Civil Code seemed to be unmistakably clear:

“The appellee, at any time before trial, by an entry upon the records of the Supreme Court, may pray and obtain a cross-appeal against the appellant, or any co-appellee, in whose favor any question is decided prejudicial to such party.” Civil Code, § 878; Pope’s Digest (1937), § 2772; Ark. Stat Ann. § 27-2137 (R-epl. 1962), where the compiler rightly states that this Civil Code section has been superseded.

The Code stated that an appellee might obtain a cross appeal against “any co-appellee” in whose favor any question prejudicial to the cross appellant had been decided. We construed the section narrowly, however, by holding that “any co-appellee” did not mean every appellee, but only those who were parties to a controversy with the original appellant. In reaching that conclusion we stated that the question was a difficult one. Shapara v. Mixon, 122 Ark. 530, 184 S.W. 399 (1916), followed in Myers v. Linebarger, 144 Ark. 389, 222 S.W. 720 (1920). We ourselves became confused, however, because we said in Corey v. Mercantile Ins. Co., 205 Ark. 546, 169 S.W. 2d 655 (1943): “An appeal by an appellee against a party who has not appealed is in effect an original appeal and must be prayed within six months from the rendition of the judgment.” Of course that statement was inaccurate, because an appellee had a limited right of cross appeal against coappellees, regardless of whether they had themselves appealed.

The Civil Code section was repealed by Act 555 of 1953, which originally made no reference to cross appeals and merely provided in § 2 that “any party” might appeal by filing a notice of appeal within thirty days after the entry of the judgment. In construing the original act we held in 1954 that all notices of appeal, whether direct or cross, had to be filed within the thirty days. General Box Co. v. Scurlock, 223 Ark. 967, 271 S.W. 2d 40. In that opinion we pointed out that a party who did not want to appeal unless another party decided to do so might protect himself against the possibility of a last-minute adverse appeal by filing a precautionary notice of appeal himself.

The legislature evidently did not consider the filing of such a precautionary notice of appeal to be an adequate solution to the problem, because in 1957 it amended § 2 of Act 555 to read as it does now. After providing that any party may appeal within thirty days after the entry of the judgment the amended statute goes on to say: “Any other party to the action [our italics] may cross appeal ... by filing ... a notice of cross appeal within ten (10) days after the notice of appeal is served on such party.”

Maryland Casualty argues in effect that the 1957 reference to a cross appeal should be limited just as it was a century ago in the Civil Code, so that the Housing-Authority should be treated as a direct appellant rather than as a cross appellant.

This argument, in our opinion, misconstrues the intent of the 1957 amendment. The statute explicitly declares that “ [a]ny other party to the action” may take a cross appeal. If the right of cross appeal is limited to the somewhat nebulous meaning that it had in the Civil Code, then the reference to any other party is much too broad, because in most instances no party would meet the narrow qualifications of a cross appellant, On the other hand, if the 1957 reference to a cross appeal simply means a second or subsequent appeal, then the phrase “any other party” carries its ordinary and natural meaning.

We are convinced that the legislature, in amending Act 555, meant to prevent possible injustices stemming from last-minute appeals. Suppose, for example, that a plaintiff recovers a $5,000 personal injury judgment against John Doe and Richard Roe, both solvent, and the jury apportions the fault in the ratio of 99% to Doe and 1% to Roe. Absent an appeal, Roe expects to pay only $50 of the recovery. But if Doe should file a notice of appeal at the last minute and obtain a reversal and dismissal as to him, Roe would be bound to pay the entire $5,000. Under the old conception of a cross appeal Roe could protect himself only by filing a precautionary notice of appeal, as we suggested in the Sctirlock case. We think the statute was amended to provide for that very contingency. Consequently we hold that the effect of the 1957 legislation was to extend the time for any second or subsequent appeal, whether direct or cross, for a period of ten days after the service of notice of the first appeal. We do not imply that the ten-day provision would ever shorten a litigant’s time for filing notice of appeal to a period less than the basic thirty days allowed by the statute.

The motion to dismiss the Housing Authority’s appeal is denied.


text:
    Key Life Insurance Co. v. William Gulledge, Adm'r
    5-4632
    245 S.W. 2d 245
    Opinion Delivered September 9, 1968

      George K. Cracraft, Jr., for appellant.

      W. G. Dimming, Jr., for appellee.
   George Rose Smith, Justice.

This action was brought by the appellee to recover death benefits of $2,500 under an accident policy issued by the appellant upon the life of C. W. Gulledge. The trial court, hearing the case without a jury, entered a judgment for the plaintiff in the amount sued for, plus the statutory penalty and attorney’s fee. The real question on appeal is whether there is substantial evidence to sustain the judgment.

Gulledge, while at work, accidentally injured his left hand to such an extent that the surgical amputation of two fingers became necessary. Owing to the patient’s advanced age the surgeons administered a general anesthetic. The patient at once suffered a cardiac arrest; that is, his heart stopped beating. The surgeons quickly opened the patient’s chest and restored the heart beat by massaging that organ for 20 or 30 seconds. After the chest opening was closed the doctors completed the operation.

Dr. Wise, one of the surgeons, testified that Gulledge “was carried to the recovery room in fair condition. He was conscious on the operating table the last few seconds, and he was conscious to some extent in his room. He subsequently lapsed into a semi-coma and then into a coma, and he died on the 17th, four days after, without regaining any of the natural things of life, probably the result of the lack of oxygen to the brain as a result of the shock like what he underwent on the operating table.” Dr. Wise thought there was a casual connection between the heart failure and the injury to Gulledge’s hand. As he put it: “Had he not cut his hand I wouldn’t have operated on him. I would not have given him an anesthetic, and he wouldn’t have died.” The doctor, however, did not profess to be absolutely certain about the cause of death. He candidly stated that “without an autopsy, or even with it, we don’t know the cause of death.” Dr. Barrow, the other surgeon, agreed with Dr. Wise and added that the administration of an anesthetic, more than anything else, causes or contributes to cardiac arrest.

An accidental injury may be found to have been the cause of death within the meaning of a policy like this one if it set in motion the chain of events that resulted in the insured’s death, even though some other condition may also have contributed to the final outcome. Life and Cas. Ins. Co. v. Jones, 230 Ark. 979, 328 S.W. 2d 118 (1959); Union Life Ins. Co. v. Epperson, 221 Ark. 522, 254 S.W. 2d 311 (1953). It is not essential that a physician’s testimony pinpoint the cause of death with mathematical certainty; probability suffices. American Life Ins. Co. v. Moore, 216 Ark. 44, 223 S.W. 2d 1019 (1949). In the court below the trial judge could reasonably connect the heart stoppage on the operating table with the patient’s ensuing coma and with his death only four days later. Nothing in the'record suggests any other independent cause of death. We have no hesitancy in holding that there is ample substantial evidence to support the judgment.

Affirmed.