author: George Rose Smith, Justice.

text:
    J. M. HEAD v. UNITED STATES FIDELITY & GUARANTY CO.
    5-5120
    448 S. W. 2d 941
    Opinion delivered January 12, 1970
    [Rehearing denied February 9, 1970.]

      Jeff Duty, for appellant.

      Gannaway & Dar row and Lance Hanshaw, for appellee.
   George Rose Smith, Justice.

This appeal is from a summary judgment in favor of the plaintiff, U. S. F. & G. In several respects the case is similar to U. S. F. & G. v. Wells, 246 Ark. 255, 437 S. W. 2d 797 (1969). Each case was an aftermath of the insolvency and ultimate bankruptcy of Kern-Limerick, Inc. That concern, in its last days, wrongfully exposed installment vendees of its equipment to double liability, by transferring tbe purchaser’s promissory note to one assignee and the underlying conditional sales contract to another. In the Wells ease we held that U. S. F. & G., having acquired its note from a holder in due course, was entitled to the rights of such a holder and took the note free from defenses that might have been asserted against the original payee. That decision is controlling upon the principal substantive point in the present litigation and is so recognized by the parties.

This appellant urges two points for reversal that were not presented in the Wells case.

First, it is argued that the trial court erred in rejecting an unverified amendment to the appellant’s answer, on the ground that it was filed too late. In view of the facts we find no abuse of discretion. The defendant’s first answer to the complaint was in substance a one-sentence general denial. The plaintiff, on the basis of admissions of fact made by the defendant, filed its first motion for summary judgment. Four days before that motion was to be heard the defendant filed an amended answer setting up affirmative defenses. That pleading was sworn to by the appellant. On January 3, 1967, the court denied the first motion for summary judgment, pointing out that the defendant had interposed affirmative defenses.

On October 3, 1968, the plaintiff filed a second motion for summary judgment, supported by affidavits controverting the asserted affirmative defenses. That motion was set for hearing on February 25, 1969. On that morning the defendant, without leave of court, filed an unsworn amendment to his answer, asserting for the first time that the equipment for which the defendant’s note had been given had been repossessed by Kern-Limerick with the consent of the original holder in due course of the note. The trial court, in rejecting the proffered amendment, pointed out that it was not verified, that it was filed almost five months after the plaintiff’s second motion for summary judgment, that it was filed more than two years after the defendant’s assertion of other affirmative defenses, and that the change of position indicated by the new pleading related to a matter that should have been known to the defendant and his counsel for more than two years. The court concluded: “To now allow such an amendment without motion and without notice seems to the court to be unfair.” We think it evident from the facts that there was no abuse of the circuit court’s broad discretion in such matters. Brewer v. Howell, 227 Ark. 517, 299 S. W. 2d 851 (1957). Under the circumstances an unverified pleading was not a substitute for the counteraffidavits expressly contemplated by the statute. Ark. Stat. Ann. § 29-211 (c) (Repl. 1962).

Secondly, the appellant insists that the trial court’s denial of the plaintiff’s first motion for summary judgment was res judicata of the second motion. The issues, however, were not the same, because the asserted affirmative defenses that defeated the first motion had been rebutted by affidavit when the second motion was considered. Hence a renewal of the motion was permissible in the interest of justice. Moore’s Federal Practice, § 56.14[2] (2d ed. 1966).

Affirmed.


source: Caselaw Access Project

author: Lyle Brown, Justice.

license: Public Domain

text:
    Robert ARNETT et ux v. Nancy LILLARD
    5-5122
    448 S. W. 2d 626
    Opinion delivered January 12, 1970

      Roscopf, Raff & Asher, for appellants.

      David Solomon, for appellee.
   Lyle Brown, Justice.

This second appeal stems from the entry of the chancellor’s order on our mandate issued out of the first appeal, Arnett v. Lillard, 245 Ark. 939, 436 S. W. 2d 106 (1969). The trial court took the position that Nancy Lillard, appellee, should be permitted to prepay the mortgage debt owed the United States and thereby terminate any interest in the land held by Robert Arnett and wife. The chancellor’s order on the mandate contained that provision and the Arnetts appeal.

Nancy Lillard executed a warranty deed to her farm to her son-in-law and daughter, Robert and Beatrice Ar-nett. The Arnetts mortgaged the lands to the United States to pay off an indebtedness owed by Mrs. Lillard and secured by the lands. We reformed the deed to reflect the true agreement between the parties. In the first opinion we said that the evidence clearly showed an agreement that appellants were to take over the farm and operate it until the debt was paid; during the period of operation it was anticipated that the operators would make and retain the profits; appellee would continue to live on the farm; and after payment of the debt to the United States the land “would be reconveyed to appellee or her heirs and assigns.” The opinion then proceeded to detail the status and tenure of the trust:

We feel that the appropriate equitable remedy here is reformation of the deed to reflect the agreement of the parties, i. e.; to vest title in appellants as trustees of an express trust to cultivate the lands, or cause them to be cultivated, and collect the rents, income, and profits therefrom, paying therefrom all taxes, insurance premiums on improvements, and costs of repairs and maintenance and the annual installments of the mortgage debt, and retaining any excess for their own use and benefit, and to maintain the dwelling house occupied by appellee as a home for her as long as she lives. The title to the property shall vest in her heirs and assigns as soon as the mortgage indebtedness is retired.

Appellants contend that our opinion precludes appellee from prepaying the mortgage and cancelling the trust. In other words appellants assert that the effect of our decision was to establish a forty-year trust, the normal life of the payments. We do not agree. Unfortunately the question of prepayment was not mentioned in the previous trial or in the briefs. In fact the tenor of evidence there would lead any reasonable person to believe that prepayment was at least not soon anticipated. Otherwise, we could and would have treated the subject in detail. On the other hand, the opinion does not fix a specific date of expiration of the trust, rather it provides that it would be terminated when the debt was paid. The indebtedness constituted a lien upon lands to which appellee held legal title and it would hardly be logical to say that she intended to establish a trust that would deprive her of any possibility of redemption until she attained the age of 110.

We agree with the chancellor that the trust may be terminated as of the date appellee pays the government mortgage. However, appellants should be afforded the opportunity to present a fair accounting of their tenure under the trust and they should be reimbursed in the event they have to that date suffered an unavoidable loss. No such contention was made at the trial level and a loss in actuality may not exist; however, it would be putting form above equity to permit an early and unexpected prepayment to burden appellants with a financial loss and to the benefit of appellee. We are clothed with discretion to order a case reopened in exceptional circumstances for additional proof if that is necessary to achieve equity. See Brizzolara v. Powell, 214 Ark. 870, 218 S. W. 2d 728 (1949).

Affirmed as modified.


author: «Tohn A. Fogleman, Justice.

text:
    Henry SMILEY v. Fann P. SMILEY
    5-5089
    448 S. W. 2d 642
    Opinion delivered January 12, 1970

      W. G. Dinning, Jr., and Daggett & Daggett, for appellant.

      Anderson & Anderson, for appellee.
   «Tohn A. Fogleman, Justice.

The parties hereto were participants in a marriage ceremony on October 29, 1965, when appellant was 83 years of age and appellee was 42. Appellant, at that time, had acquired and still owned an unencumbered 600-acre farm, a pickup truck, at least $65,000 in bank accounts and $10,000 in government bonds and an undetermined amount of cash. He did not then, or at the time of trial, owe any debts. His previous wife had died during the preceding year. He had no children. He stated that he was unable to care for himself or drive an automobile because of bad health. Appellee had acquired three children, some furniture, a house in Kansas City, debts which included a balance on this house, and a tangled marital status. Appellee left appellant at least three times prior to the final separation in May, 1966, at which time she states that her condition in life became intolerable. In November, 1966, she instituted this action for divorce. The grounds alleged were those commonly known as indignities to the person. Specifically, the complaint contained allegations that appellant had on numerous occasions physically abused, harmed and threatened her and had treated her with rudeness, contempt, studied neglect, all habitually and systematically pursued, until her condition in life became intolerable. A decree granting appellee a divorce and awarding appellee one-third of appellant’s personal property and one-third of his real estate during her natural life, and ordering the real estate sold to accomplish the property division, prompted this appeal. The decree was granted for rudeness, contempt and studied neglect and abuse of appellee by appellant, rendering her condition in life intolerable. Appellant’s motion for default judgment on a counterclaim for annulment of the marriage was denied.

Three grounds for reversal are argued. The first challenges the sufficiency of the evidence to support the court's decree. The other two are based upon assertions of error in relation to denial of appellant’s counterclaim for annulment. Appellant says that the court should have granted a default judgment on his counterclaim, and asserts that the annulment should have been granted on the basis of the evidence adduced; We shall first dispose of the grounds argued with reference to the annulment because agreement with appellant’s position would result in a determination that there was no marriage to be dissolved by divorce.

We find no error in the denial of the default judgment. It is appellant’s position that appellee defaulted by her failure to file an answer to his “cross complaint” for annulment. The chancellor ruled that no answer was required because no service was had upon appellee as a “cross-defendant.” We disagree with the basis for this holding. Appellant’s pleading labeled “Amendment to Ansiver and Cross Complaint” sought an annulment of his marriage to appellee because of her previous marriage to William Turner Jackson II subsisting since December, 1949. Nearly 11 months after the filing of this pleading, appellant moved for default judgment because of the failure of appellant to file any responsive pleading. Even though appellant consistently denominates his pleading as a cross complaint, it is actually a counterclaim in that appellant, the defendant, asserted a cause of action for affirmative relief against appellee, the plaintiff. Regardless of the label put upon this pleading, it was a counterclaim rather than a cross complaint. Ark. Stat. Ann. § 27-1123 (Repl. 1962). See Church v. Jones, 167 Ark. 326, 329, 268 S. W. 7. No service of summons on appellee-plaintiff on this pleading was necessary. Evans v. Davis, 146 Ark. 595, 226 S. W. 520; Pillow v. Sentelle, 49 Ark. 430, 5 S. W. 783. The record in-eludes a certificate by appellant’s attorney that this pleading was served upon one of appellee’s attorneys prior to its filing. This action met the requirements for service of such a pleading upon a plaintiff in an action. Ark. Stat. Ann. § 27-1137 (Repl. 1962). See also Ark. Stat. Ann. §§ 27-361, 362, 364 (Supp. 1967). An answer or’ reply to this pleading was required within 20 days. Ark. Stat. Ann. § 27-1137 (Repl. 1962). Consequently, appellee was in default. In the ordinary proceeding, this omission would have constituted an admission of the allegations of fact asserted, but not of the entitlement of the pleader to the relief sought. Johnson v. Pierce, 12 Ark. 599. It might also have entitled the pleader to judgment. See Walden v. Metzler, 227 Ark. 782, 301 S. W. 2d 439; Utley v. Heckinger, 235 Ark. 780, 362 S. W. 2d 13. Yet, in cases involving the validity of a marriage, the public interest requires that no decree voiding a marriage be entered upon default without proof of grounds for that action. While we have not had occasion to apply this rule in the case of annulment, we have always done so in divorce cases. The reason for this rule has as much application to the former as to the latter. The following language from our opinion in Welch v. Welch, 16 Ark. 527 is illustrative:

“But had this service been regular, the decree pro confesso, was not sufficient, without evidence to sustain the allegations of the complainant’s bill, to authorize the court to decree her the relief it did, from the bonds of matrimony; because the marriage contracts in the language of one of the judges of this court, in the case of Viser vs. Bartrand, 14 Ark., at p. 282, ‘unlike ordinary contracts of business, is one which the public, as well as the individuals contracting, is interested in preserving unbroken, unless for such causes as are specially set forth in the statute, and these causes must in fact exist, and must be shown to exist by evidence. No admissions of the defendant, whether by answer or by failure to answer, will supercede the necessity of proof of the truth of the allegations in the bill. ’ And in the same case another one of the judges said {id., p. 278): ‘The marital tie, although a civil contract, in the eye of the law, differs from all other civil contracts in one essential particular. The parties can never annul it by means either direct or indirect. Hence, the inflexibile rule of law that the confession of either party are wholly incompetent as evidence. Nor does our statute, which directs that “like process and proceedings shall be had in divorce cases, {Digest, chap. 58, p. 402, sec. 3,) as are had in other cases on the equity side of the court,” or in any other of its directions or provisions, in any way alter or modify this vital rule of evidence, touching the dissolution of the marital tie. Parties, by their mutual consent, if of proper age and capacity to receive the sanction of the law, may make the marriage tie, but they can never break it, according to the rules of law, and the sound morals upon which they rest, by any express confessions, much less those implied by a default to answer a bill for divorce.’ ”

It can readily be seen that the effect of all established safeguards against collusive divorce would be undermined if we permitted a decree annulling a marriage upon default by a defendant without proof of grounds. We should not permit this result by setting a precedent through our action in this case which is certainly not collusive.

Thus, it was incumbent upon appellant to produce evidence to support his counterclaim in order to establish his entitlement to the relief he sought. Not only did he fail to do so, but he made no objection when appellee, in order to controvert appellant’s grounds for annulment, offered a certified copy of a decree of the Chan-eery Court of Phillips County, Arkansas, declaring the marriage of appellee to the father of at least two of her three children void ab initio. This decree was granted because Jackson had, at the time of this marriage, a living wife, from whom he had not been divorced. We find no reversible error in the denial of a default decree of annulment.

In spite of this appellant argues that an annulment should have been granted him because (1) appellee was not divorced from one Michael D. Ryan at the time of her marriage to appellant, (2) appellee was married to William T. Jackson II at the time of her marriage to appellant and (3) the marriage was procured by fraud on the part of appellee in concealing and misrepresenting material facts relating to her previous marriages. We find no merit in these contentions. Appellant’s argument pertaining to the Ryan divorce is based upon a provision in that decree entered October 15, 1965, prohibiting the parties from contracting marriage until 60 days after the entry of the decree and another declaring that any such marriage should be null and void. This contention is premised upon the assumption that the divorce was conditional during the 60-day period, in reliance upon the language of Chapter 95, § 6269, General Statutes of Kansas, 1909. Appellant also relies upon cases in which this statute was interpreted to mean that a divorce decree was not final and did not operate as a dissolution of a marriage until the expiration of six months from the date of rendition of the decree. In 1964, § 60-1610, Kansas Stat. Ann. was enacted. While the earlier statute made it unlawful for a party to a divorce decree to remarry, the later statute simply requires that the decree contain a provision like that appearing in the Ryan decree. The language of the Kansas decree clearly does not make the divorce granted conditional nor does it postpone its effective date. While we find no specific holding by the Kansas court on the subject, the clear language of the latest Kansas statute makes the decree of divorce immediately effective but imposes upon the parties a personal restraint against remarriage during the statutory period. Such a prohibition has territorial effect only, and does not render a marriage solemnized in another state in conformity with its laws invalid, in the absence of any public policy of the state of the marriage domicile or of the marriage celebration against a marriage during such a period. Loughran v. Loughran, 292 U. S. 216, 54 S. Ct. 684 (1934). 78 L. Ed. 1219. No such policy has been declared in Arkansas and the marriage in question was a legal one under the laws of this state insofar as disclosed by the record here.

The fact that Jackson’s decree of annulment of his marriage to appellee was applied for and rendered subsequent to the institution of the present proceeding does not entitle appellant to a decree of annulment. This decree, introduced without objection, contained a finding that Jackson was not divorced from one Ruby Fobs until three months after his purported marriage to appellee and that his legal wife was Erma Randle whom he married in 1956, rather than appellee whom he married in 1949 or Azalean Brown whom he married in 1964. If appellee’s marriage to Jackson was bigamous it was void from its inception, and no decree of any court was required to declare it so. Ark. Stat. Ann. § 55-108 (1947; Goset v. Goset, 112 Ark. 47, 164 S. W. 759. See also Bruno v. Bruno, 221 Ark. 759, 256 S. W. 2d 341. Because of his failure to make any objection to the admission of the decree by the trial court appellant is in no position to complain here that this decree is not binding upon him, or that it should not have been admitted into evidence.

While appellant urges that we should presume that appellee’s Jackson marriage was valid as a basis for annulment of the Smiley marriage, the prevailing presumption favors the subsequent marriage rather than the prior one. Miller v. Miller, 237 Ark. 66, 371 S. W. 2d 511; Blythe v. Blythe, 241 Ark. 768, 410 S. W. 2d 379.

Appellant did not allege fraudulent procurement of his marriage to appellee in any of the pleadings filed hy him. His present contention is based only on his own testimony that, in response to an inquiry by him, appellee told him that she was divorced. In view of our holding with reference to the marital ties of appellee to Ryan and Jackson, there was nó misrepresentation involved. Furthermore, it seems that this point was raised for the first time on this appeal.

We come now to consider the sufficiency of the evidence to support the decree of divorce. Appellee’s testimony discloses: that appellant had failed to perform his promise to add more rooms to his brick, air-conditioned, two-bedroom house to accommodate her children; that he required her to leave her children at her mother’s home, causing her to have to arise at 4:00 a.m. in order to prepare their breakfast and get them off to school; that he accused her of seeing men, fussed constantly over everything, cursed her daily, threw hot water on her while she was talking by telephone to a friend in Kansas City, hit her with a spittoon and ordered her out of the house on one occasion, accusing her of drinking bourbon. She doubted that on the several occasions that she left or was sent away she stayed away more than a total of one month out of the six between their marriage and separation. Although she claimed that she required medical attention because of appellant’s conduct, her physician did not testify. It is doubtful to say the least, that this testimony,, given its strongest probative force, constitutes clear evidence of those unavoidable and unendurable evils incapable of relief by reasonable exertion, or the settled hate and enduring alienation and estrangement, necessary to constitute the grounds on which the decree was based. See Poe v. Poe, 149 Ark. 62, 231 S. W. 198; Calhoon v. Calhoon, 209 Ark. 80, 189 S. W. 2d 644; Kientz v. Kientz, 104 Ark. 381, 149 S. W. 86; Disheroon v. Disheroon, 211 Ark. 519, 201 S. W. 2d 17; Preas v. Preas, 188 Ark. 854, 67 S. W. 2d 1013; Welborn v. Welborn, 189 Ark. 1063, 76 S. W. 2d 98; Settles v. Settles, 210 Ark. 242, 195 S. W. 2d 59.

Even if we resolved any doubt in favor of the chancellor’s holding as to the sufficiency of appellee’s testimony, we find a lack of the necessary corroboration. Although we have recognized that corroboration may be relatively or comparatively slight where it is evident that there is no collusion between the parties, the testimony here is not even sufficient to pass this test. Her mother testified that appellee would be extremely upset when she came to the mother’s home, that because hex-daughter was taking too many pills and could hardly talk she brought her home once and that appellee’s children lived with her because there was no room for them at appellant’s house, in spite of his saying that he was going to build them a living room, bedroom and bath. Appellee’s brother drove up to the Smiley house one day and heard Henry Smiley cursing. Smiley told this witness that his sister sure was mean and had wanted him to do a whole lot of work and that he was not going to fix the house as she wanted. Another brother said that appellee was ‘ ‘ dull headed ’ ’ and didn’t know where she was when their mother brought her home. This testimony certainly is not corroborative of the cause of separation or of a settled hate, alienation or estrangement.

The evidence was not sufficient to warrant the granting of a divorce after such a brief period. The decree is reversed and the cause dismissed.

Harris, C. J., and Byrd, J., concur.

      Ark. Stat. Ann. § 34-1207 (Kepi. 1962) is only declaratory of the rule recognized by this court when there was no such statute. See Viser v. Bertrand, 14 Ark. 267 at 278, 282.

      No thing was said by appellant about one Henry Walker who was a “husband” acquired by appellee in 1957, according to her mother. The record abstracted discloses nothing else about this marriage.


author: John A. Fogleman, Justice.

text:
    TOWN OF OUITA v. John HEIDGEN and J. Madison WHITE
    5-5096
    448 S. W. 2d 631
    Opinion delivered January 12, 1970

      Laws & Schulze, for appellant.

      James Young and Williams & Gardner, for appellees.
   John A. Fogleman, Justice.

This appeal is from a judgment of the Pope County Circuit Court which held void an order of the county court incorporating approximately 925 acres of land, near Russellville in Pope County, into the town of Ouita. The circuit court enjoined the incorporators from proceeding further with organization of the town under the county court order, and the incorporators prosecute this appeal under the name “Town of Ouita.”

Approximately 80 resident landowners in the area involved filed their petition and plat in the office of the Pope County Clerk; the petition named Alfred B. Hettel, Jim Parrish and four other individuals to act in behalf of the petitioners, and the other preliminary statutory procedure for incorporation was carried out. No one appeared in opposition to the petition at a hearing held by the county court, so the petition was granted and an order of incorporation was entered by the county court under authority of Ark. Stat. Ann. § 19-103 (Repl. 1968).

John Heidgen and J. Madison White filed this action to have the order of incorporation declared invalid. They alleged that the petition and notice in the incorporation proceeding did not accurately describe the area or territory proposed to be included within the corporate limits, which is a ground for injunctive relief under the provisions of Ark. Stat. Ann. §§ 19-105 and 19-106 (Repl. 1968). They also alleged that the petition for incorporation was not filed with a good-faith intention of establishing a town or city, but only for the purpose of preventing the territory from being annexed to the city of Russellville, which had already commenced annexation proceedings. Additional allegations were: the nature of the land and terrain was not of such character as to form an incorporated town, so that taxation levied for municipal purposes would constitute the taking of private property without mailing just compensation to the owners; the proposed incorporated town would be incapable of affording them with municipal services, thus depriving them of protection of life, liberty and property.

The circuit court found that the description of the proposed limits of the town of Quita was vague and indefinite. 'That court also found that, from the testimony offered by the incorporators, it was apparent that there was no actual desire on the part of the residents living within the area proposed to reside in a municipal corporation. The court further found that the evidence showed conclusively that the proposed incorporation would be unable to offer any services as a city, the anticipated annual income from a five-mill general purpose tax amounting to less than $500. The cir-cu.it judge based Ms concMsions that the order of incorporation was void and that the complaining parties were entitled to an injunction upon our decisions in Waldrop v. Kansas City Southern Ry. Co., 131 Ark. 453, 199 S. W. 369 and Arkansas and Ozark Ry. Co. v. Town of Busch, 223 Ark. 27, 264 S. W. 2d 54.

Appellant relies on the following points for reversal:

“The Court erred in admitting the plat (Tr. 47) attached to Plaintiff’s Exhibit No. 1 and in finding that the limits of the Town of Ouita are vague and indefinite.
That the incorporation was not in good faith; that the Town of Ouita would not be able to offer services as a city; and that the property of Plaintiff, John Heidgen, would he taken by taxation without protection or just compensation.
That the Court erred in declaring the Order of the County Court of Pope County, Arkansas, entered on June 11, 1968, null and void and in enjoining the incorporators of the Town of Ouita from further proceedings.”

We find no reversible error on the latter two points for reversal and consequently affirm the judgment. Although it appears that there is error in the court’s finding that the description of the proposed corporate limits was vague and indefinite, this would not call for a reversal since our holding on the other two points would require affirmance of the judgment regardless of whether the description in the petition was totally void or was perfect.

It would only prolong this opinion to set out in detail the testimony adduced at the hearing before the circuit court, but Mr. John Heidgen testified that he is an owner of an undivided interest in nine acres included within the designated limits of the proposed corporation and that none of the benefits usually derived from a municipal corporate entity such as streets, sewers, water mains, fire and police protection, is available, or likely to become available, if the town of Guita is incorporated.

We have sustained attacks on orders of incorporation on the grounds relied upon by appellees and the trial court. See Waldrop v. Kansas City Southern Ry. Co., 131 Ark. 453, 199 S. W. 369; McCarroll v. Arnold, 199 Ark. 1125, 137 S. W. 2d 921, Arnold v. McCarroll, (same case) 200 Ark. 1094, 143 S. W. 2d 35.

The Waldrop case was a suit for injunction against the collection of taxes from a railroad in the purported town of Ogden, alleged by the taxpayer to be nonexistent. The trial court found the order of incorporation to be void. One of the bases for this finding was that the land was not of such character as could form an incorporated town. Since it was manifest that the owners of the lands involved could not derive any benefit from being placed within the limits of the town, and that the town was only incorporated for the purpose of organizing a school district, we said that the attempted organization was void as an arbitrary and unreasonable exercise of power. This, we held, constituted, insofar as a property owner and taxpayer was concerned, the taking of private property for public use in the form of taxation without giving any compensation, by way of protection to life, liberty, property, or otherwise. Similarities in this case and Waldrop are so great that it constitutes binding precedent here.

It is admitted by appellants that: the 925 acres sought to be incorporated as the Town of Ouita are either open farmland, pastureland or timberland, on which there are rural homes; there are no platted areas other than a few lots on one corner; and the area is not generally what one would think of as urban territory. There is testimony by one of the representatives of the incorporators which supports the trial court’s findings. He said that the people in the area involved were interested in agricultural pursuits and decided upon a movement to incorporate the Town of Ouita to avoid restrictive municipal ordinances such as would be imposed upon them if a proposal to annex the territory to the City of Russellville were effectuated. The testimony of the only other incorporator called as a witness was of the same tenor. He stated that he would rather be in Ouita than in Russellville. There was also substantial testimony that an incorporated town with the revenues that could be anticipated by Ouita could not furnish any municipal services. Closely parallel factors were considered in Waldrop to render the order of incorporation void. Upon similar evidence the incorporation of Omaha was held void in Arnold v. McCarroll, 200 Ark. 1094, 143 S. W. 2d 35.

We do not say that a desire for corporate government and services by a new municipal corporation rather than by annexation of the territory to an existing municipality could not be a legitimate reason for incorporation. We do say that the evidence that petitioners did not desire corporate government was substantial, and that a preponderance supports the findings made.

The circuit court’s finding, that the proposed incorporation was not in good faith, did not reflect on the personal honesty and integrity of the petitioners. As a matter of fact their recorded testimony compliments their personal honesty and integrity. "While, at best, their testimony is vague and indefinite as to why they do want to incorporate the town of Ouita, it is amply clear that they simply do not want their lands annexed to Russellville where their property would be subject to corporate taxes and ordinances regulating the use of their property. It is obvious from the record that the incorporators concluded that they could best remove the threatened annexation to Russellville by incorporating their own town where their own town ordinances, if any, would not interfere with their rural farming operations. In other words, they sought incorporation to avoid municipal handicaps rather than to obtain municipal benefits.

The judgment is affirmed.

      No question was ever raised here or in the trial court as to the propriety of the exercise of this jurisdiction by the law court, rather than the chancery court, by objection, motion to transfer or otherwise. Since the trial court reached a correct result, there would be no basis for reversal even if the case should have properly been filed in or transferred to the equity court. Bank of Midland v. Harris, 114 Ark. 344, 170 S. W. 67; Shaphard v. Lesser, 127 Ark. 590, 193 S. W. 262, 3 A. L. R. 247. This is not a case in which the circuit court is without any power to act on the subject matter. Furthermore, no question was raised as to the standing of appellees to bring this action.


author: J. Feed Jones, Justice.

text:
    Bill STOUT v. STATE of Arkansas
    5444
    448 S. W. 2d 636
    Opinion delivered January 12, 1970

      Sexton & Wiggins, for appellant.

      Joe Purcell, Attorney General; Don Langston, Asst. Atty. Gen., for appellee.
   J. Feed Jones, Justice.

The appellant, Bill Stout, was charged on information filed by the prosecuting attorney in the Crawford County Circuit Court with the crime of murder in the first degree in the shooting of Winfred Lee Jones on March 27, 1967. This is the third appeal to this court following as many trials. Stout’s first trial resulted in a verdict of guilty of manslaughter with a penitentiary sentence of two years. This court reversed, Stout v. State, 244 Ark. 676, 426 S. W. 2d 800. The second trial also resulted in a verdict of guilty of manslaughter with a sentence of five years. This court again reversed, Stout v. State, 246 Ark. 479, 438 S. W. 2d 698. At his third trial Stout was again found guilty of manslaughter and his punishment fixed at two years in the penitentiary. On this appeal he relies on the following points for reversal:

“The court erred in permitting the prosecuting attorney to withdraw his peremptory* challenge to two jurors after the jury panel had been exhausted and at a time when defendant had only one peremptory challenge available to him.
The court erred in overruling defendant’s motion for change of venue.”

The facts remain practically the same as detailed in the earlier decisions, supra. Stout and Jones had known each other and had been on friendly terms for some time prior to March 27, 1967. On that date Jones went to Stout’s home about 11:30 a.m. Jones had been drinking when he arrived at the Stout home and he and Stout consumed additional beer while they worked on a kitchen cabinet during the afternoon. When Stout left for work about 3:30 p.m., he requested Jones to also leave and Jones went to his automobile as if to leave but he returned to the Stout home after Stout left for work. Jones and Mrs. Stout purchased additional beer during the afternoon and Jones continued to drink beer in the Stout home in the presence of Mrs. Stout and her teenage daughters and a 20 year old male relative. Mrs. Stout also drank some of the beer. The evidence is in some conflict as to Jones’ conduct during the afternoon. Mrs. Stout testified that Jones forced her to accompany him on the trip for additional beer, but other evidence is to the effect that one of the daughters also went along.

In any event Stout learned by phone that Jones was still at his home, so about 6:30 p.m. during a work rest period, Stout returned home and demanded that Jones leave. The evidence is in some conflict as to exactly what was said and done, but about 7:30 p.m. Stout shot and killed Jones with a pistol. The sufficiency of the evidence is not questioned on this appeal so for that reason we do not set it out in detail.

The record is not perfectly clear as to the sequence of events in the selection of the jury leading up to appellant’s allegation of error under his first point. After four of the jurors had been excused for cause and eight jurors including Mrs. Rastall had been selected, the appellant had exercised seven peremptory challenges including that of juror W. F. Arnold, and the state had exercised none. At this point the record is as follows:

“MR. ROGERS: We haven’t had an opportunity to talk to the Joneses, but Mr: Arnold is related and they wanted to get him off.
THE COURT: You have a right to exercise challenges so long as it is done before he exhausts his challenges.
MR. SEXTON: I have just exhausted mine, Your Honor.
THE COURT: You have not. You have exercised six challenges. You have not exhausted your challenges.
MR. SEXTON: I thought the Defendant had six.
THE COURT: The Defendant has eight. The State has six.
MR. ROGERS: We excuse Mrs. Rastall and Mr. Arnold.
MR. SEXTON: We object and except to the Court forcing us to challenge before he exercises his ehallengé.
THE COURT: The Supreme Court has held that the Prosecuting Attorney may exercise a challenge on a juror previously accepted provided he exercises his challenge before the defendant has exhausted his challenges. The Court so holds.
MR. SEXTON: Note our exceptions.
(Back in the hearing of the Jury)
MR. SEXTON: Who did he challenge1?
THE COURT: Mrs. Rastall and Mr. Arnold.”

The parties continued the examination of the jurors on voir dire, and after one was dismissed for cause, three additional jurors were selected. The appellant exorcised one additional peremptory challenge and the state exercised three including Everett Young (who had sat as a juror in a criminal case where appellant’s attorney had represented the defendant -who was acquitted).

At this point the appellant moved for a mistrial or in the alternative for a continuance and stated his reasons as follows:

“The jury Commissioners of Crawford County duly and regularly elected or rather selected a list of alternates as jurors which list was delivered to the Clerk and that the jurors in attendance this morning have been summoned from the list and that the panel has been exhausted. We have been unable to obtain a jury, and that the Court has reviewed the list and that there are a number of persons on the list who are not in attendance upon the Court this morning, and that the Court as we understand it proposes to order the appearance of a number of those who are not in attendance but not all of those who are not in attendance; and that such procedure would deny to the defendant the right to have a jury of his choice from the panel selected by the Jury Commissi oners. ’ ’

The Court overruled the motion with the following explanation:

“Let the record show that at this time the State and the Defendant have selected ten jurors in the case, and that the Court is about to order the Sheriff to summon some of the jurors whose names appear upon the regular and special lists, that have been previously excused by the Court for various reasons, mostly because it would have been a great inconvenience for the jurors to attend at some previous Court Session during this term.”

Then the following colloquy occurred and the record is as follows:

“MR. SEXTON: And we wish to make it plain that we do not object to the Court’s calling additional jurors but our objections goes to the Court’s selecting the additional jurors that are to he called. We believe all jurors that have been excused ought to have been called because it is the defendant who has the right to select from the panel and not the Court.
THE COURT: The Court thinks it is unnecessary and impractical to summons all jurors who may not be here at the present time when only a few are needed.
MR. SEXTON: We would respectfully point out to the Court that the Defendant still has one peremptory challenge and we have two jurors to select and the State still has three peremptory challenges remaining, and none of us can know the qualifications of the jurors that are to be called but it would appear that there is a distinct possibility that at least six jurors would be required, and we believe especially in view of the last legislative act of our legislature referring to random selection of jurors that we are prejudiced by our inability to have the jurors that was from the entire panel that was selected by the Jury Commissioners and the selection to he made by the defendant and the prosecution rather than by the Court.
THE COURT: The motion is overruled.
MR. SEXTON: Note our exceptions.
MR. ROGERS: I wish to withdraw the challenges on Jurors Young and Rastall.
THE COURT: Mr. Sexton, since the State has withdrawn its challenges to the two jurors, that appears to make the full panel.
MR. SEXTON: What was Mr. Young’s first name?
THE COURT: Everett, Everett Young.
MR. SEXTON: And we object to the Court’s action in permitting the State to withdraw its objections to the two jurors, Mrs. Alma Lee Rastall and Mr. Everett Young.
THE COURT: You have previously accepted Mrs. Rastall and you have not yet exhausted all your challenges.
(Now back in the hearing of the Jury)
THE COURT: The Clerk will call the names of the jurors and as your name is called, please stand and remain standing until the call is complete.
THE CLERK: Mrs. Jean Peer, Charles Pratt, Jerry Thomas, Mrs. George Shook, Alma Lee Rastall, Doyle Telaar, Clara Storey, Mrs. Mary Cluck, Geneva Releford, Everett Young, Troy Robertson, Mrs. Charles Lewis (All remain standing.)”

We find no error in this procedure. Ark. Stat Ann. §§ 39-220.1 — 39-221 (Repl. 1962) are as follows:

“Deficiencies in the regular panel of the petit jury shall be filled by selecting jurors from the special panel provided for in section 3 [39-220] of this act and when in the trial of any case the regular panel is exhausted the court shall direct the summoning of a sufficient number of jurors from the special panel to complete a jury for the trial of said cause. In no event, except by consent of the parties, shall bystanders be summoned.
Said list so provided shall be enclosed and sealed in an envelope and indorsed ‘Special Panel of Petit Jurors’ by the jury commissioners, delivered to the clerk in open coxirt and filed by the clerk. When in the opinion of the court it appears that a regular panel cannot be completed from the list of regular and alternate jurors selected by the jury commissioners or that the regular panel will be exhausted during the trial or prior to the trial of any case the court shall order the clerk to open the panel of special jurors in open court and shall direct the sheriff to summon such number of special petit jurors from said list as may be needed either as regular petit jurors or as special jurors in the trial of any case.”

A defendant does not have the right to have a jury of his choice from the panel selected by the jury commissioners, he only has a right to a competent, fair and impartial jury. The privilege of peremptory challenge in selecting a jury is not a right of selection, it is a privilege of rejection. (See 47 Am. Jur. 2d, Jury, § 233). •Challenges for cause are unlimited.

Now as to the crux of appellant’s contention on his first point. The record indicates that he actually had two peremptory challenges left when ten jurors had been selected. When the appellant objected to the court exercising its statutory authority and duty in obtaining additional jurors from the regular or alternate panel who were not in attendance on the court, the. state simply withdrew its peremptory challenge to Mrs. Rastall, whom the appellant had previously accepted, and to Mr. Young, who had stated on voir dire examination that he had previously served on a jury where appellant’s attorney had represented a defendant in a criminal case and the defendant was acquitted.

The appellant cites two cases in support of his contentions under his first point. The case of Furman v. Applegate, 23 N. J. Law 28, was an 1850 New Jersey case holding that the trial court did not err in refusing to permit the defendent to challenge a talesman juror and then after another talesman was called,, and also peremptorily challenged, withdraw his challenge and reinstate the first juror. We agree with the New Jersey court that such procedure would he fraught with mischief. Under the sparse facts of that venerable case it would appear that through the process of challenge and withdrawal, the defendant was attempting to do what the appellant contends, in the case at bar, he is entitled to do — obtain a jury of his choice from all of those summoned as prospective jurors. In the case at bar the withdrawal of the state’s challenge made up the jury and no additional talesman was called because no additional jurors were challenged for cause and the defendant exercised no further peremptory challenge.

The second case relied on by the appellant, Biddle v. State, 10 A. 794, was an 1887 Maryland case in which one Ferguson was accepted as a juror by the state but was challenged peremptorily by the accused. After-wards, and before the panel of 12 jurors had been obtained, but after 11 jurors had been sworn; after the accused had fully exhausted his peremptory challenges, and the state had only exhausted two challenges, a talesman was summoned and his name made known to the accused. No cause was suggested as ground of challenge to the talesman but the accused proposed to withdraw his challenge to Ferguson and to allow him to be sworn in as the 12th juror. The New Jersey trial court sustained the state’s objection to this procedure and the Supreme Court sustained the trial court saying: “The right of peremptory challenge is a right not to select, but simply to reject, jurors, without cause assigned.” The distinction between that case and the one at bar is obvious. In the case at bar the state withdrew its challenges to two jurors in order to make up a jury from the panel in attendance. The defendant had already indicated his acceptance of one of these jurors and the other one had originally been rejected by the state apparently because he had sat on a jury which had rendered a verdict favorable to a client appellant’s attorney was representing. The state did not withdraw its challenges in an attempt to select one juror in preference to another juror. It withdrew its challenges for the purpose of making up the jury from the panel in attendance on the court and to avoid the delay in summoning other veniremen over the objections of the appellant. The appellant could have eliminated either or both of these jurors by the mere exercise of his right of peremptory challenge. This he did not do.

The appellant never did exhaust his peremptory challenges, neither did he save his exceptions to the court’s action in permitting the state to withdraw its peremptory challenges to the two jurors. The appellant received the minimum sentence permissible under the law for the crime on which he was tried and the jury recommended that half of that sentence be suspended. Certainly the appellant has not shown wherein he has been prejudiced.

As to appellant’s second point, Ark. Stat. Ann. § 43-1501 (Repl. 1964), states as follows:

“Any criminal cause pending in any circuit court may be removed by the order of such court, or by the judge thereof in vacation, to the circuit court of another county, whenever it shall appear, in the manner hereinafter provided, that the minds of the inhabitants of the county in which the cause is pending are so prejudiced against the defendant that a fair and impartial trial cannot be had therein.”

Ark. Stat. Ann. § 43-1502 (Repl. 1964), provides as follows:

“The application of the defendant for such order of removal shall be by petition setting forth the facts on account of which the removal is requested; and the truth of the allegations in such petition shall be supported by the affidavits of two (2) credible persons who are qualified electors, actual residents of the county and not related to the defendant in any way. Reasonable notice of the application shall be given to the attorney of the State. The court shall hear the application and, after considering the facts set forth in the petition and the affidavits accompanying it and any other affidavits or counter affidavits that may be filed and after hearing any witnesses produced by either party, shall either grant or refuse the petition according to the truth of the facts alleged in it and established by the evidence.”

A motion for change of venue is addressed to the sound discretion of the trial court. Bailey v. State, 204 Ark. 376, 163 S. W. 2d 141. It has been uniformly held that unless the trial court has abused its discretion in overruling a motion for a change of venue, the order is conclusive on appeal. Bryant v. State, 95 Ark. 239, 129 S. W. 295; Ford v. State, 98 Ark. 139, 135 S. W. 821; McElroy v. State, 100 Ark. 301, 140 S. W. 8; Spear v. State, 130 Ark. 457, 198 S. W. 113; Adams v. State, 179 Ark. 1047. 20 S. W. 2d 130.

In Maxwell v. State, 236 Ark. 694, 370 S. W. 2d 113, we held that on a motion for a change of venue the burden is on the movant to make credible proof to support his motion and in Bailey v. State, supra, we said:

“This court has ruled that, in order for an affiant to qualify as a credible person under the statute, he must be cognizant of the prejudice existing throughout the whole county, and not merely in portions thereof. Hedden v. State, 179 Ark. 1079, 20 S. W. 2d 119; Dewein v. State, 120 Ark. 302. 179 S. W. 346; Speer v. State, 130 Ark. 457, 198 S .W. 113; Williams v. State, 162 Ark. 285, 258 S. W. 386; Mills v. State, 68 Ark. 1005, 272 S. W. 671.”

The appellant relies on the Florida ease of Singer v. State, 109 So. 2d 7, and argues that “in the exercise of its discretion the trial court must give the defendant the benefit of any doubt as to the state’s ability to give the defendant a fair and impartial trial.” We have never adopted such rule in Arkansas (Bailey v. State, supra). But even so, in the Singer case the court points out that prejudice in the minds of the members of the public was brought out on voir dire examination of the jury after the cout had ruled on the motion for change of venue. In the case at bar none of the jurors knew anything about the case and one of the jurors testified on voir dire that he had never heard of the case. Certainly the penalty assessed by the jury verdict was not indicative of prejudice. The appellant obtained 14 form affidavits in support of his motion for a change of venue, but only four of the affiants appeared for examination by the court at the hearing on the motion. One of the affiants, Theo Baxter, Jr., testified that he had carried affidavits over the county to be signed, but no one would sign them. He testified that several people had told him that the defendant could not obtain a fair trial because he had already been tried twice. He could not remember the names of anyone he talked to except his mother and “one of the McMaster boys.”

“A. I just asked him what he thought about the Stout trial.
Q. What did lie say to that?
A. To my knowledge, I don’t know his exact words. He just left the impression that it would just have to go the way it was and he wasn’t going to get involved in it.
* #
Q. You stated yourself that you didn’t think he could get a fair trial?
A. Well, personally, I think when a man had been tried in Court twice and the case had been reversed, I don’t think that the third time makes any difference.”

Darrell Johnson had discussed the matter with no one outside Van Burén Township. Albert Smith testified that he had spent the previous night in Van Burén “up here in a shed”; that he knew nothing about the Bill Stout case and had talked to no one in Crawford County about the case. Mae Bostick testified that from what she had heard she is of the opinion that Stout could get a fair and impartial trial in Crawford County. We are of the opinion that the appellant fell far short of sufficient proof in support of his motion for change of venue, and that the trial court did not abuse its discretion in denying the motion.

The judgment is affirmed.


author: J. Fred Jones, Justice.

text:
    Herndon HARRIS v. SOUTHERN FARM BUREAU CASUALTY INSURANCE COMPANY et al
    5-5098
    448 S. W. 2d 652
    Opinion delivered January 12, 1970

      Murphy & Carlisle, for appellant.

      Putman, Davis & Bassett, for appellees.
   J. Fred Jones, Justice.

This is an appeal by Herndon Harris from a summary judgment in favor of Southern Farm Bureau Casualty Insurance Company entered by the Washington County Circuit Court in a suit by Harris against Southern Farm on an uninsured motorist policy. The question presented is whether Harris can recover from Southern Farm on a policy issued to him and also recover on a policy issued to the owner of a vehicle he was driving.

While Harris was driving a pickup truck owned by Bartholomew he was injured in a collision caused by the negligence of Browning, an uninsured motorist. Southern Farm had issued an uninsured motorist policy to Harris with maximum coverage of $10,000, and Truck Insurance Exchange had issued a similar policy with a similar maximum coverage to Bartholomew. The injuries sustained hy Harris resulted in damage in excess of $20,000, or the combined maximum coverage of both policies. Truck Insurance Exchange paid its maximum coverage of $10,000 and Harris sued Southern Farm for $10,000. Southern Farm denied liability under the ‘ ‘ other insurance” provisions of its policy providing as follows:

“With respect to bodily injury to an Insured while occupying an automobile not owned by a Named Insured under this endorsement, the insurance hereunder shall apply only as excess insurance over any other similar insurance available to such occupant, and this insurance shall then apply only in the amount by which the applicable limit of liability of this endorsement exceeds the sum of the applicable limits of liability of all such other insurance.
With respect to bodily injury to an Insured while occupying or through being struck by an uninsured automobile, if such Insured is a Named Insured under other similar insurance available to him, then the damages shall be deemed not to exceed the higher of the applicable limits of liability of this insurance and such other insurance, and the Company shall not be liable under this endorsement for a greater proportion of the applicable limit of liability'of this endorsement than such limit bears to the sum of the applicable limits of liability of this insurance and such other insurance.
Subject to the foregoing paragraphs, if the Insured has other similar insurance available to him against a loss covered by this endorsement, the Company shall not be liable under this endorsement for a greater proportion of such loss than the applicable limit of liability hereunder bears to the total applicable limits of liability of all valid and collectible insurance against such loss,”

•The trial court granted Southern Farm’s motion for summary judgment and Harris relies on the following point for reversal:

“The ‘other insurance’ clause in appellee’s policy is contradictory to the provisions of Ark. Stats. 66-4003 et seq. and is also void as against public policy.”

Ark. Stat. Ann. § 66-4003 (Repl. 1966) provides as follows:

“No automobile liability insurance, covering liability arising out of the ownership, maintenance, or use of any motor vehicle shall be delivered or issued for delivery in this State with respect to any motor vehicle registered or principally garaged in this State unless coverage is provided therein or supplemental thereto, in not less than limits described in Section 27 of Act 347 of 1953 [§ 75-1427], as amended, under provisions filed with and approved by the Insurance Commissioner, for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles because of bodily injury, sickness or disease, including death,resulting therefrom; provided, however, that the coverage required under this section shall not be applicable where any insured named ih the policy shall reject the coverage.”

Ark. Stat. Ann. § 75-1427 (Supp. 1967), as amended, reads as follows:

“No policy or bond shall be effective under Section 26 [§ 75-1426] unless issued by an insurance company or surety company authorized to do business in this State, except as provided in subdivision b of this section, nor unless such policy or bond is subject, if the accident has resulted in bodily injury or death, to a limit, exclusive of interest and costs, of not less than $10,000 because of bodily injury to or death of one (1) person in any one (1) accident and subject to said limit for one (1) person, to a limit of not less than $20,000 because of bodily injury to or death of two (2) or more persons in any one (1) accident, and if the accident has resulted in injury to, or destruction of property, to a limit of not less than $5,000 because of injury to or destruction of property of others in any one (1) accident.”

We agree with the appellee that this case is controlled by our decision in M. F. A. Mutual Ins. Co. v. Wallace, 245 Ark. 230, 431 S. W. 2d 742. We fully disposed of the specific point relied on by Mr. Harris in the case at bar, when in the Wallace case we said:

‘ ‘ The cases interpreting uninsured motorist statutes go both ways on the issue of stacking multiple policies covering the same accident or injury, Safeco Insurance Company v. Robey, 399 F. 2d 330, (8th Cir. 1968). However, in looking at the terms and purpose of our statute, we find that the ‘other insurance clause’ is not repugnant to Ark. Stat. Ann. § 66-4003, supra. Here MFA furnished uninsured motorist coverage ‘in not less than limits described . . .’ in the Safety Responsibility Act. Furthermore, since the purpose of the statute is ‘for the protection of persons insured . . . who are legally entitled to recover damages from owners or operators of uninsured motor vehicles. . .’ it is obvious that the statute was not designed to provide the insured with greater insurance protection than would have been available had the insured been injured by an operator with a policy containing the minimum statutory limits required by the Motor Vehicle Safety Responsibility Act, Ark. Stat. Ann. § 75-1427 (Snpp. 1967). See Maryland Casualty Company v. Rowe, 106 N. H. 422, 213 A. 2d 420 (1965).”

We conclude that the judgment of the trial court must be affirmed. To hold otherwise, under the facts of this case, would permit an insured to obtain double coverage for the price of one by the simple process of exchanging automobiles. Courts may enforce legal contracts or void illegal ones, but courts may not expand contracts beyond their terms and the intent of the parties.

The judgment is affirmed.


author: Conley Byrd, Justice. J'ohn A. Fogleman, Justice,

text:
    D. T. HARGRAVES, Jr. v. CONTINENTAL ASSURANCE COMPANY
    5-5055
    448 S. W. 2d 942
    Opinion delivered January 12, 1970

      W. G. Dinning, Jr., for appellant.

      Anderson & Anderson, for appellee.
   Conley Byrd, Justice.

Appellant D. T. Hargraves, Jr., claimed that, under the terms and conditions of a group policy issued by appellee Continental Insurance Company to Interstate Grocer Company, he was entitled to recover medical expenses incurred by him. The trial court found that appellant was not a full time employee and therefore excluded under the terms and provisions of the policy coverage. For reversal appellant relies upon the following points:

“I. The appellant was insurable under the terms and conditions of the master policy and the application attached thereto.
II. After the issuance of the certificate of insurance and the acceptance of premiums thereon, the appellee had the burden of proof showing that the appellant came within the exclusion provisions of the policy.”

The record shows that Mr. Hargraves is a partner in the Hargraves Insurance Agency and as such is a general agent for appellee. In such capacity he had participated in placing the master policy here involved with Interstate Grocer Company in 1959. In 1966 he began to acquire stock ownership in Interstate Grocer Company and thereafter became a member of the Board of Directors. Later he was elected Vice President. A certificate of insurance under the group policy was issued to him in January, 1967, upon an application that made no inquiries about the status of the applicant relative to temporary or part time employment. With reference to his duties Mr. Hargraves testified as follows:

“Q. Now as a Vice President, which I believe you show that you are, what are your duties with the corporation?
A. My duties are, I would say, would be if you call them a duty, to consult with Mr. Max Moore, the principal, who is the President and generally operates the business. I have been going over there a couple of times at least a week and sometimes going over to sign checks when he wasn’t there, taking at times inventories, check over the accounts receivable, check over the accounts receivable on occasion, consult with him about the condition of the equipment, buildings, etc.
Q. Is that in your capacity as Vice President or member of the Board? Or as both?
A. It would be as both — as first Vice President and member of the Board.
Q. Do you have a fixed salary as Vice President?
A. No, I do not.”

The policy provision in question here provides:

(4) EUGmOITY:

(a) CLASSIFICATION AND DEFINITION: All Individuals in the following classes are eligible for insurance under the Policy:

(b) EXCLUSIONS: All individuals in ihe following classes are to be excluded from coverage:

We find more than ample evidence to substantiate the trial court’s finding, sitting as a jury, that appellant was not a full time employee.

It has been suggested that the phrase “Drivers and part time or temporary employees” can be construed, because of the disjunctive “or”, to exclude only those persons whose employment status is on a casual, transient or transitory basis without any idea of a permanent or prolonged status, rather than those whose regular employment is not full time. We do not agree. The phrase “part time” is defined by Merriam-Webster New International Dictionary (2d ed.) as:

“Less than full time. Also employment at less than the customary number of hours per week.”

On the other hand “temporary” is defined as:

“Lasting for a time only; existing or continuing for a limited time; not permanent; ephemeral; transitory; as, temporary relief; a temporary position.”

We think the better usage of the word “or” here is to mean in the alternative, Hines v. Mills, 187 Ark. 465, 60 S. W. 2d 181 (1933), because otherwise the term “part time” would add nothing to the class of persons excluded.

It is also suggested that Hargraves acquired a status of coverage under our decision in Palmer v. Standard Life & Accident Ins. Co., 238 Ark. 585, 383 S. W. 2d 285 (1964), not only with respect to his status as an employee but also in connection with the exclusion. We do not agree. The policy in the Palmer case provided:

“. . . Certifies that a Group Accident and Health Policy has been issued to the Employer shown below, and that the Employee named herein became eligible for benefits, subject to the terms of the Policy, on the Effective Date indicated . . . provided that on the Effective Date shown above he is then regularly performing the duties of his occupation; otherwise the Effective Date shall be the date of his return to active duty.”

The facts there showed that Palmer had a working arrangement with a grain company whereby he promoted sales of the grain company’s commodities and the grain company in turn made collections from farmers for Palmer’s work in dusting the crops. Since Palmer at the time of the injury was still performing the same occupation in the same manner as when the policy was issued, we held that he was an employee within the terms of the policy. In so doing we said: ‘ ‘. . . The great weight of authority is that the term ‘employment’, as used in a policy of group insurance, refers to a status rather than a contractual relationship.” We understand the Palmer case as saying just that and do not understand it to mean that when a person obtains a certificate of insurance he then has a status of coverage notwithstanding the exclusions of the policy.

Affirmed.

Fogleman, J., dissents.

J'ohn A. Fogleman, Justice,

dissenting. I respectfully dissent. I feel that the majority has not only misconstrued the effect of the holding in Palmer v. Standard Life & Accident Ins. Co., 238 Ark. 585, 383 S. W. 2d 285, but has also ignored a cardinal rule of construction of insurance contracts. I also feel that the majority has misconstrued appellant’s argument relating to the application of the Palmer case. It treats the contention of appellant as though he were asserting that the rule there followed would be applicable to a “status of coverage.” I do not so interpret the argument, but submit that appellant correctly asserts that the rule is applicable to his status as an employee other than a “part time or temporary employee.”

I consider testimony by Hargraves as to his status with the grocery company other than that set out in the majority opinion to have significance. Hargraves received no compensation from the company except. for fees paid for attendance at meetings of the board of directors. The only other payments made were the dividends paid him as a stockholder. He said that he signed company checks on numerous occasions and weekly payroll checks sometimes; that he would supervise preparation of the payroll and checks when Moore was absent ; that he consulted with Moore about the stock, the condition of the trucks, the progress of salesmen in making company sales; that he checked the accounts receivable and often assisted in collection of delinquencies. He estimated that the duties he performed on behalf of the company required an average of an “hour or so” per day. He spent most of his time at the company’s place of business during one week when both Mr. and Mrs. Moore were away because of illness.

The policy provided that individuals should become insured subject to policy provisions in accordance with applications for the policy. The policyholder, Interstate Grocer Company, was required to furnish the names of all individuals who from time to time became eligible for insurance. The individuals insured were defined as those who make written request to the policyholder on company forms and agree to contribute toward the payment of premiums, subject to certain conditions not here material.

Appellant asserts that he was insurable under the terms and conditions of the master policy. He also argues that appellee failed to meet its burden of proving that appellant was excluded from coverage under the policy, in view of the fact that appellee never denied that the certificate issued to him and for which premiums were accepted was in full force and effect until the loss claimed by appellant was suffered. He relies upon Palmer v. Standard Life & Accident Ins. Co., 238 Ark. 585, 383 S. W. 2d 285. In that ease, we held that an insurer was liable to one whose status was not shown to be different at the time of his injury from what it was at the time of the issuance of a certificate under a group accident and health policy to him as an employee of the company to which the group policy had been issued, even though there had been no employer-employee contractual relation between the parties at either time. We said that “employment,” insofar as an insurance policy of this type is concerned refers to a status rather than a contractual relationship. Palmer did not work for the company, but as the operator of a crop-dusting service, had a working arrangement with it, under which he indirectly promoted sales for the company, and it collected from customers for most of his work even though some of it was not done in application of materials purchased from the company. The services of Hargraves about which he testified seem no less those of an employee than those of Palmer.

Appellee asserts, however, that these services could not qualify him as more than a part-time employee. Yet it was willing to accept him as an insured under the policy at the time of the issuance of the certificate and to accept premiums on his account for a full year. Bestitution of these premiums was not offered until January 16, 1968 — well after the present claim arose. The application signed by Hargraves as an employee of Interstate went to appellee. Only a copy was retained by the Hargraves agency. The premium payments were made each month, at least through November, 1967. While Hargraves himself took the original application and may be said to have known of the exclusion, his status as the agent of appellee and a partner in the Hargraves Insurance Agency when the certificate was issued was as well known to the company as to him. Appellant testified that he had been “licensed for them since about 1947” and that the agency relationship still existed at the time of the trial. A letter from appellee to the Hargraves agency dated January 17,' 1966, pertaining to the type of insurance involved here appears in the record. I find no reason why the holding in the Palmer case should not govern the employment status of Hargraves insofar as. the exclusion here is concerned as well as one’s status as an employee insofar as coverage is concerned.

Furthermore, the term “part time or temporary employees” can be construed to exclude only those persons whose employment status is on a casual, transient or transitory basis, without any idea of a permanent or prolonged status, rather than those whose regular employment is not full-time. The disjunctive “or” in this phrase may well be taken as the connection of an explanation of the words “part time” as meaning “temporary” rather than of two different alternatives. Such use is common and has been recognized by this court in many instances. This question has often arisen in connection with indictments. For example, the words “writing” and “paper” connected by the word “or” were held to mean the same thing, i. e., a written instrument. Blais v. State, 94 Ark. 327, 126 S. W. 1064. In South-wick v. State, 126 Ark. 188, 189 S. W. 843, a case involving-an indictment for pandering, we construed the penal statute, saying:

“The use of the disjunctive £or’ between the words ‘intimidation’ and ‘threats’ in the statute was not in the sense of indicating that they are two different things, but was only used as an alias to designate the same thing by different words. The use of the words ‘intimidation’ and ‘threats’ thus connected by the use of the word ‘or’ only means one and the same thing. If the word ‘or’ had been used in the sense of disconnecting the words ‘force,’ ‘fraud,’ and ‘intimidation,’ so as to indicate that the pandering was done in either one of these ways, then the indictment would have been uncertain, and hence defective.”

In Lemons v. State, 155 Ark. 59, 244 S. W. 1, involving a charge of manufacturing intoxicating liquors, we said:

“Appellant further contends that the indictment was defective because the disjunctive ‘or’ is used between the words ‘compound’ and ‘preparation’ and also between the words ‘bitters’ and ‘medicated liquors.’ It is obvious that the disjunctive ‘or’ between the words ‘compound’ and ‘preparation’ and also between the words ‘bitters’ and ‘medicated liquors’ as used in the statute (section 6160, C. & M.) and in the indictment, which follows the language of the statute, were not intended by the lawmakers nor by the pleader to designate separate and distinct offenses; but the word ‘or’ was used to connect different words meaning the same thing. The words ‘compound’ and ‘preparation’ in the statute are used synonymously, and likewise the words ‘tonics’ and ‘medicated liquors’ are synonymous. One of the most common uses of the conjunctive ‘or’ is to connect different terms expressing the same thing or idea.”

This construction is not confined to consideration of penal laws or indictments. The definition of the word ‘or’ in Black’s Law Dictionary reads, in part:

“A disjunctive particle used to express an alternative or to give a choice of one among two or more Things. It is also used to clarify what has already been said, and in such cases, means ‘in other words,’ ‘to-wit,’ or ‘that is to say.’ ”

See also Webster’s New International Dictionary, Second and Third Editions; The Random House Dictionary of the English Language, Unabridged Edition.

The words “chronic or persistent cough” contained in a question in a life insurance policy application were considered as synonymous in Blumenthal v. Bushire Life Ins. Co., 134 Mich. 216, 96 N. W. 17, 104 Am. St. R. 604 (1903). There the court said:

“* * * The word ‘or’ is not always disjunctive. It is sometimes interpretative or expository of the preceding word. So, it is often used in the sense of ‘to wit,’ ‘that is to say.’ We think it was so used in this sentence, and that as used in this connection the two words are or were intended to he used in the same sense, the word ‘chronic’ being defined, in effect, as meaning ‘persistent.’ ”

Such a construction was intended according to appellant’s testimony. He said that this particular wording of the final exclusionary clause was written at the home office. As to persons to be insured at the time of the original application for the master policy, he said:

“* * * All of the officers, all of the employees of the office, warehouse, everything other than the drivers; it was the intention that the drivers were not to be insured, and any part-time employees, such as on a rare occasion when there was a car that comes in to be unloaded on a siding, there are one to two semi-regular employees that they pick up to unload that car, and they didn’t feel that the drivers, nor those people that were strickly [strictly] part-time employees on occasion, would he insured, because the company paid a portion of the benefits.”

Of course, the trial court was not bound to accept appellant’s testimony explaining any ambiguity that might appear in the exclusionary clause. It was bound to construe the clause strictly against the insurance company and literally in favor of appellant, resolving all doubts in favor of the latter. Union Bankers Insurance Company v. National Bank of Commerce, 241 Ark. 554, 408 S. W. 2d 898; State Farm Mutual Auto Ins. Co. v. Baker, 239 Ark. 298, 388 S. W. 2d 920. An ambiguous clause in a policy is to be construed to justify a recovery by the insured if a reasonable construction will do so. United Equitable Insurance Company v. Vivion, 243 Ark. 287, 419 S. W. 2d 597. When this is done, appellant, under all the facts and circumstances, should not have been held excluded from coverage of “all employees” upon a finding that he was not “a full-time employee.”

The majority completely overlook the fact that the exclusion of “[d] rivers and part-time or temporary employees,” by use of the conjunctions “and” in one place and “or” in another, clearly places those to be excluded in only two, rather than three, categories. The majority construe the exclusion as if it read “drivers, part-time employees and temporary employees.” It would have been such a simple matter for the insurance company to have written the exclusion thus if it intended it to be so. I suggest that it would have done so.

We have recently held against the insurer in construing an exclusion clause which could have more easily been construed in favor of the insurer than this one. See Employers Mutual Liability Ins. Co. v. Puryear Wood Products Co., 247 Ark. 673, 447 S. W. 2d 139 (November 24, 1969). I would render judgment here for appellant, since there is no dispute about the amount of the claim.

      These words are not used anywhere in the policy.


author: Conley Byrd, Justice.

text:
    C. D. COLBERT et al v. Charles V. GANN et ux
    5-5108
    448 S. W. 2d 649
    Opinion delivered January 12, 1970

      Douglas Bradley, for appellants.

      Eugene Sloan, for appellee.
   Conley Byrd, Justice.

In 1955 appellees Charles Y. Gann and Edith E. Gann purchased ‘ ‘ all that part of the SW% of Section 22, T. 15 N., R. 3 E. lying east of the Culberhouse Public Road, containing 15 acres more or less.” Based upon the assumption that the area contained only 15 acres, they conveyed the five acres off the north end to Elmo Russell and wife in 1960. The boundary line between them was partially marked by a fence running in a southeast-northwest direction. In March 1966, the Ganns advertised for sale a house and five acres of ground. Pursuant to the advertisement, appellants John P. Colbert and Myrtle Colbert, his wife, purchased the house and received a deed which described the property as the north five acres of the south ten acres of that part of the S% SW]4 of Section 22, T. 15 N., ft. 3 E. lying east of Culberhotise Public Boad in Craighead County. During the same month, appellees started construction of a new house on the remaining lands.

Appellees rented the house from Colbert until June 1966, when Mr. and Mrs. Colbert conveyed the property by the same description to their son and daughter-in-law, C. D. and Frankie Colbert. Thereafter, appellees rented the house from the son until they moved into their new house around the first of November, 1966.

After appellees had moved into their new house, C. D. Colbert suggested that the house was built on his property and caused Clay Kenward to survey the property. At this time it was discovered that there was 19.52 acres lying east of the Culberhouse Public Boad instead of 15 acres as recited in appellees’ original deed.

The Kenward survey showing the location of the fences and houses here involved is as follows:

Based upon the survey C. D. Colbert, et ux, brought suit against appellees to remove the new house as an encroachment on their land. Appellees counterclaimed and cross complained, bringing in John P. Colbert et ux, and asked that the deed descriptions be reformed to correctly describe the property sold to the Colberts. An alternative plea requested that the Colbert house, which according to the survey encroached on appellees’ property by 29 feet, be removed. The trial court characterized the controversy as a boundary dispute, found that the land which appellees intended to convey and appellants intended to buy was the 5.3 acres between the two fences and decreed that the descriptions in the two deeds should be corrected to so read.

For reversal appellants argue that reformation could not be had because appellees’ grantee no longer owned the property, having conveyed to a bona fide purchaser.

The record shows that appellees had advertised for sale a house and five acres of land. All parties concede that appellees and John Colbert contacted each other as a result of the newspaper advertisement.

Appellee Charles Y. Gann testified that he pointed out the Elmo Russell fence and the fence to the south thereof as the north and south boundaries of the five acres that were to go with the house. He said that their agreement was that if there were not five acres between the two fences, he was to set the south fence over until John P. Colbert did get five acres. Pursuant to the agreement reached, John Colbert gave appellees a $500 check for a down payment. Gann says that he then took his deed to an abstracter and told him that he was conveying to the Colberts the five acres next to Elmo Russell. Thereafter the Ganns and John Colbert’s daughter met at the abstracter’s office and consummated the sale upon the description drawn by the abstracter. While the Ganns were renting the property, they learned of the sale to the son, C. D. Colbert. Sometime in October C. D. Colbert and his son disked up the area between the two fences and sowed it in something.

Mr. John Colbert testified that Mr. Gann represented to him that the house was on this land, but that he refused to purchase the land between the two fences until Gann agreed to give him a deed to the north five acres of the south 10 acres — i. e., he thought Mr. Gann just owned ten acres and he was getting the north end of the ten. When he sold the land to Ms son, he represented that the house was on the description drawn by the abstracter. On cross examination Mr. Colbert stated that he expected the north five acres to go to the Russell line and that he would not have bought the property if the house had not been located on it — that was the reason he had the girl write on the $500 down payment check “house and five acres.” He further testified that he did not know that Mr. Gann was building his house on the described land until his son had it surveyed.

Mr. C. D. Colbert says that he was living in California when he purchased the property and that he never saw the property until around October 1, 1966, approximately three months after the purchase. On cross-examination C. D. Colbert readily admitted that according to his survey 29 feet of his house is north of the five acres he now claims that he bought, but now says that the house he bought was on the land when he bought it. He further testified that he bought the house and the five acres that the deed called for; that in October he disked up the land between the two fences; and that when he was disking the land, he thought it was Ms land but that he does not think so now.

As between appellees and John Colbert it is obvious that the abstracter did not properly describe the lands that appellees intended to sell or the lands that John Colbert intended to buy. When viewed in light of the dealings between John P. and his son C. D. Colbert and the fact that C. D. at first took possession of the property between the two fences, the evidence is most convincing that that was the property intended to be conveyed by the one and received by the other. Furthermore since C. D. Colbert at first took possession of the property between the two fences and at the time thought that was his property, we do not see how he is in the position of a bona fide purchaser for purpose of preventing a correction of an erroneous description in the deeds under which he holds.

In Tanner v. Manos, 160 Ark. 293, 254 S. W. 676 (1923), Mr. & Mrs. Hogan owned a sixty acre tract. In mortgaging the property to Manos, the mortgage while describing only thirty acres recited a total of sixty acres. Thereafter the Hogans obtained a divorce in which Mr. Hogan conveyed the property to his wife who subsequently conveyed to Tanner. In upholding a reformation of the mortgage description to describe the sixty acres as against Tanner, a subsequent grantee, we pointed out that it was sufficient to show facts which put him upon notice of the error. We know of no reason why that holding should not be applied to C. D. Colbert et ux, who at first admittedly took possession of the property between the two fences.

For the reasons stated, the judgment is affirmed.


text:
    Joe COOK et al v. SOUTHERN CREDIT CORP.
    5-5093
    448 S. W. 2d 634
    Opinion delivered January 12, 1970

      William H.. Arnold, for appellants.

      James Góle, for appellee.
   Conley Byrd, Justice.

The record here shows that appellant Joe Cook, on Oct. 22, 1966, purchased a 1966 Ford Thunderhird automobile from Gerald Harris. He traded in a 1964 Thunderhird and agreed to pay an additional $3,700.00 to consummate the sale. On that date Joe Cook signed a blank conditional sales contract and note which he gave to Harris with the understanding that Harris would hold the contract and note until he could furnish Cook the registration title and pink slip for the 1966 automobile. After approximately three weeks Cook returned the automobile to Harris because Harris could not furnish the title and pink slip as he had agreed to do. When the ’66 Thunderhird was returned, Harris had already sold or given up possession of the ’64 Thunderhird. At that time Harris agreed that he would get Cook a cheaper automobile.

Cook says that to his knowledge the conditional sales contract and note were never filled out. It is admitted that on Oct. 22, 1966, Harris took Cook’s conditional sales contract and note signed in blank to the offices of Southern Credit Corporation where Harris procured the services of a secretary of Southern Credit Corporation to fill in the blanks. Henry McClure, the Vice President of appellee Southern Credit Corporation testified that he had no knowledge of any defense or claim against the note at the time his company obtained it in good faith and for value.

The trial court entered judgment for appellee Southern Credit Corporation on the conditional sales contract and note. For reversal Cook raises three points, all of which are premised on the fact that appellee was not a holder in due course because it was aware that Harris had used a typewriter and one of appellee’s secretaries to fill in the blanks in the signed contract and note. We find appellant’s contentions to be without merit. Ark. Stat. Ann. § 85-3-304 (4) (Add. 1961) provides :

“Knowledge of the following facts does not of itself give the purchaser notice of a defense or claim
(a) . . .
(d) That an incomplete instrument has been completed unless the purchaser has notice of any improper completion; ...”

The committee comment to the Uniform Commercial Code with reference to subsection (4) (d) points out that the policy of the statute is premised upon the fact that a person in possession of an instrument signed in blank has prima facie authority to fill in the blanks. Therefore as we interpret the statute a purchaser of a commercial instrument is entitled to the status of a holder in due course even though he knows that the possessor of the signed instrument filled in the blanks.

Affirmed.


author: Frank Holt, Justice.

text:
    David REEME et al v. NATURAL GAS IMP. DIST. NO. 2 of Ashley Co., Ark. Mrs. Chas. RHODES v. NATURAL GAS IMP. DIST. NO. 2 of Ashley Co., Ark.
    5-5076 & 5-5077
    448 S. W. 2d 647
    Opinion delivered January 12, 1970

      Crumpler, O’Conner, Wynne & Mays, for appellants.

      W. P. (Billy) Switzer, for appellee.
   Frank Holt, Justice.

The appellants, David Reeme, his wife and their minor children, brought an action against the appellee to recover damages for their personal injuries caused by a gas explosion. The appellant, Mrs. Charles Rhodes, brought a separate action against the appellee to recover property damages as a result of her house being destroyed by the same explosion. The appellee is a suburban improvement district incorporated and established pursuant to the provisions of Ark. S'tat. Ann. § 20-701 et seq. (Repl. 1968). As a natural gas improvement district it operates a gas distribution system as a non-profit corporation and serves the residents in the unincorporated town of North Crossett, Arkansas.

The Reemes rented and moved into Mrs. Rhodes’s house. 'The next morning Mr. Reeme went to appellee’s office and requested from the appellee’s manager that gas service be furnished to his residence. The manager advised Mr. Reeme that he [Reeme] could turn on the gas without the necessity of appellee’s representative coming to the home. Mr. Reeme followed the manager’s instructions and turned the gas on at the outside gas meter. When Mr. Reeme returned home for lunch, an accumulation of gas in the house exploded when Mrs. Reeme lighted a cigarette. The gas had escaped through an uncapped gas line in one of the bedrooms in front of which a box had been placed during the moving procedure. Each of the appellants, the Reemes and Mrs. Rhodes, alleged that their damages were directly and proximately caused by the negligence of the appellee in failing to introduce into the natural gas a malodorant agent that would indicate by a distinct odor the presence of escaping gas in the building and, further, in failing to make an inspection of the premises to determine the existence of any leaks or the presence of gas in the house. The appellee filed a demurrer to each complaint on the basis that neither stated facts sufficient to constitute a cause of action. From the order sustaining appellee’s demurrer comes this appeal.

Appellants first assert that improvement districts had no immunity from tort liability at the time this incident occurred. The appellants admit that “at one time” improvement districts had immunity from tort liability. This doctrine is predicated on the theory that improvements districts are quasi public corporations which have no powers, duties or liabilities except those expressly conferred by statute. This exemption from liability, unless liability is accepted by a statute, is based upon the sovereign character of the state and its agencies. Board of Improvement of Sewer Dist. No. 2 v. Moreland, 94 Ark. 380, 127 S. W. 469 (1910); City of El Dorado v. Scruggs, 113 Ark. 239, 168 S. W. 846 (1914); Jones v. Sewer Improvement Dist. No. 3 of Rogers, 119 Ark. 166, 177 S. W. 888 (1915). Additional reasoning for non-liability of an improvement district, other than it being an auxiliary of the state, is the lack of funds to pay for tort damages and, therefore, liability could result in bankruptcy with the attendant frustration of the district’s intended public purposes.

The appellants, however, argue that by Act 64 of 1929, Ark. Stat. Ann. § 20-108 (Bepl. 1968) there is an express statutory waiver of the governmental immunity accorded to improvement districts. Appellants rely upon this language: “Such districts shall be bodies corporate and shall have power to sue and be sued and to contract by the corporate name.” Should we consider this statute applicable in the case at bar, we still cannot agree with this contention. Subsequent to the passage of this act we reaffirmed the doctrine of immunity from tort liability by improvement districts in Sewer Improvement Dist. No. 1. of Sheridan v. Jones, 199 Ark. 534, 134 S. W. 2d 551 (1939) and St. Francis Drainage Dist. v. Austin, 227 Ark. 167, 296 S. W. 2d 668 (1956). Furthermore, in Arkansas Valley Cooperative Rural Electric Co. v. Elkins, 200 Ark. 883, 141 S. W. 2d 538 (1940), we considered language similar to that now relied upon by appellants. There the act provided for the creation of electric co-operatives as non-profit-sharing corporations. The act provided authority for the cooperatives “to sue and be sued, complain and defend, in its corporate name.” We said that: “* * * True it may be sued to enforce contracts into which it might enter, but it cannot be made to respond in tort in the absence of statutory provision therefor.” We further said that the funds of a non-profit corporation are in the nature of a trust fund and must be controlled, managed and used only for the intended purposes of the corporation. Therefore, the corporation cannot be held liable when no provision is made for the expenditure of funds to respond for tortious acts. It is for the legislature to express the extent of the powers, purposes and liabilities of a non-profit corporation such as in the case at bar.

The appellants next contend that the doctrine announced in our recent case of Parish v. Pitts, 244 Ark. 1239, 429 S. W. 2d 45 (1968), should be extended to improvement districts. We cannot agree. That decision prospectively removed governmental immunity as to municipalities and was expressly limited to municipalities. At the very next meeting of the legislature, Act 165 of 1969 was enacted reaffirming the public policy of the State of Arkansas to be “that all counties, municipal corporations, school districts, special improvement districts, and all other political subdivisions of the State shall be immune from liability for damages, and no tort action shall lie against any such political subdivision, on account of the acts of their agents and employees.” In the recent companion cases of Sullivan v. Pulaski County, Arkansas, 247 Ark. 259, 445 S. W. 2d 94 (1969), and Chandler v. Pulaski County, Arkansas, 247 Ark. 259, 445 S. W. 2d 96 (1969), we recognized that Act 165 of 1969 is a declaration of the state’s public policy and the legislature’s power and intent with respect to the doctrine of governmental immunity. In St. Francis Drainage District v. Austin, supra, it was aptly said:

“There are many laymen, lawyers and judges who believe that, in all fairness, the State, its political subdivisions and quasi public corporations such as improvement districts created by the State, should be liable for torts committed. But the law, holding otherwise, has been firmly established for many years. * * # ¶ # * * This conclusion may appear to be harsh, but it has been the law of this State for many, many years that neither the State, its political subdivisions nor quasi public corporations such as improvement districts, are liable in tort. Neither the General Assembly nor the people have seen fit to change the law in that respect, and it should not be done by this court.”

Affirmed.