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

text:
    Orr v. Walker.
    5-1493
    310 S. W. 2d 808
    Opinion delivered March 10, 1958.

      Jack Holt and John F. Park, for appellant.

      Rose, Meek, House, Barron & Nash and Phillip Carroll, for appellee.
   Paul Ward, Associate Justice.

Appellee, Crane Walker, sued appellant, Verble Orr, a Little Rock City Policeman, for actual and punitive damages because of an alleged assault on Mm (appellee) in connection with a double parking incident, From a jury verdict awarding appellee actual damages in the. amount of $100 and punitive damages in the amount of $400 Orr has appealed.

For a reversal, appellant urges four separate grounds which we now discuss.

One. This ground questions the sufficiency of the evidence to support the verdict and judgment. Under the well established rule that this court will not disturb the verdict of the jury if there is substantiál evidence to support it, we hold that the judgment must be sustained on this point. Also, in reviewing the testimony as we will presently do, we construe it in the light most favorable to appellee, since it is the province of the jury and not this court to resolve all conflicts in the testimony. See: United Van Lines v. Haley, 214 Ark. 938, 218 S. W. 2d 715; Wallis v. Stubblefield, 216 Ark. 119, 225 S. W. 2d 322, and, Pate v. Fears, 223 Ark. 365, 265 S. W. 2d 954.

Appellee, a 19 year old student in the University of Arkansas, testified in substance: I double parked on Main Street in Little Rock, between 5th and 6th street to pick up my wife who works at Pfeifers and who was standing on the sidewalk with two other women; 1 thought she eonlcl get in the car in two or three seconds; at this time appellant came np and told me to move on; by that time my wife was getting in the car; appellant told me to pnll to the curb and he was going to give me a ticket; I pulled to the curb at the nearest place, and walked back to where appellant was; appellant told me to back up the car to where he was, and I told him the car wasn’t moving, he could give me a ticket as I was in a hurry; appellant said you are under arrest; I said all right and that is when he slapped me twice and hit me in the face with his fist doubled up; my eyes were swollen and within 3 hours my eye was closed; a crowd of about 200 was present. Mrs. Elizabeth Huckaby, who was present and who said she had never seen appellee or his wife before, corroborated ap-pellee’s testimony. She said, in substance: I heard an officer blow his whistle and appellee got out of his car and came back and they said something to each other, and the officer hit appellee, then hit him again, and hit him the third time with his fist; I stepped off the sidewalk and said don’t hit this boy again, you are in the wrong, and he said “get back up there on the side walk or I will arrest you”, and I obeyed; appellee’s wife ran down there, crying, and said to the officer “don’t hit him again, don’t hit my husband”, the officer kept telling appellee to move the car or park the car or did he want it drug in, and ap-pellee said “I don’t want it moved again, just give me a ticket and let me go”; appellee kept saying “tell me what you want”, and the officer kept saying “you will find out.” Rowe Huggins, a brother-in-law of the appellee, who was in the car also, corroborated the testimony of the other witnesses.

Appellant was the only witness present at the time of the alleged assault who contradicted the testimony set out above. He admitted hitting or slapping appellee once, but claimed he did so to prevent appellee from hitting him. He also stated that when he took appellee by the arm to go across the street to a call-box appellee jerked loose from him.

The above testimony was sufficient to sustain the verdict of the jury both as to actual and punitive damages, under proper instructions.

“Whether punitive damages should be awarded in a given case is a matter ordinarily resting within the discretion of the jury, under proper instructions, if the defendant is shown to have been guilty of excesses accompanied by conduct indicating a wanton disregard of the rights of the adverse party.” See: McGlone v. Stokes, 193 Ark. 1008 (at pages 1014-1015), 104 S. W. 2d 191. As we shall later see, the instructions here were proper and there was, we think, substantial evidence to make a jury question. We realize the difficult situations which often confront a law enforcement officer, and, even though we might not in some cases agree with the result reached by a jury, we cannot, as appellate judges, assume to take its place in our judicial system.

Two. Next it is urged by appellant that the court erred in excluding certain testimony of three witnesses, to-wit: Officer Moore, Assistant Chief Eugene G. Smith, and R. E. Glasscock. We find no reversible error, in either instance, as presently explained.

Appellant states that the court refused to allow Moore to testify that Rowe Huggins, brother-in-law of appellee, was trying to fight appellant when he went over to them, but a careful search of the record fails to reveal a proper objection to the court’s ruling as is required by section 21, Act 555 of 1953, and Koelsch v. Arkansas State Highway Commission, 223 Ark. 529, 267 S. W. 2d 4.

After the alleged assault had been committed and the arrests made on Main Street, between 5th and 6th streets, appellee was taken in a squad car to police headquarters. Appellant offered to prove by Smith and Glasscock that while the difficulty was being discussed at headquarters appellee called appellant a . .liar, and he also said to Orr “I’ll see you later.” The offer of this testimony was refused by the court. We understand from appellant’s brief that he considers the proffered testimony admissible under the res gestae rule, but it is not specifically so stated. At any rate, we think the testimony was not admissible under that rule. Such words were not spoken at the time or place the assault was made, and constituted no part of it. See: 20 Am. Jur. Evidence, § 662; Coca Cola Bottling Co. v. Carter, 202 Ark. 1026, 154 S. W. 2d 824; Toney v. Raines, 224 Ark. 692, 275 S. W. 2d 771, and; Williams v. Martin, 226 Ark. 431, 290 S. W. 2d 442. It is also urged that said testimony should have been admitted to show appellee’s insulting behavior and disrespect for the law, but we cannot agree. After all, the question was did appellant use more force than was necessary in dealing with appellee, and, in doing so, did he act wilfully and maliciously? It might well be that if appellee does have no respect for the law (although the words he is alleged to have used do not necessarily so indicate) he would be inclined to resist appellant’s effort to arrest him and cause trouble in general, but it was proper for the jury to consider only what appellee did and not what he might have been inclined to do.

Three. Instruction No. 1 given by the court reads as follows:

“In making the arrest of a person for a misdemeanor or in preventing his escape, a police officer may exert such physical force as is necessary on the one hand to effect the arrest by overcoming the resistance be encounters, if any; or, on the other hand to subdue the efforts, if any, of the prisoner to escape.”
“If you find, therefore, from a preponderance of the evidence, that the defendant, Verble Orr, used more force than was necessary in making the arrest of Crane Walker or in subduing the efforts, if any, of Crane Walker to escape, and that such force was not necessary to save his own life or to prevent great bodily harm to himself, and if you further find that as a result of the use of such unnecessary force, if any, the plaintiff, Crane Walker, was injured and damaged thereby, you should return your verdict in favor of the plaintiff, unless yon find for the defendant under some other instruction of the court. ’ ’

Appellant’s specific objections to the above instruction were: (a) There was no evidence that appellee attempted to escape. We find, however, that appellant himself said he thought appellee “was just taking off, ignoring my order. I took his license number . . (b) It is objected that there is not any evidence at all to substantiate that any great bodily harm was done to appellee. The testimony we have heretofore set out shows this objection to be without merit, (c) We see no merit in appellant’s objection that the instruction “leaves the impression or inference with the jury that Officer Orr had no right to use any force at all in making the arrest of the plaintiff, unless such force was necessary to save his own life or prevent great bodily harm to himself.” The first paragraph of the instruction copied above negatives any such impression or inference. We found no reversible error in the instruction.

Four. There was no reversible error in the court’s refusal to give appellant’s requested instruction No. 10. The last portion of this instruction reveals its inherent defect. It reads:

“. . . so if you find from the evidence in this case that the plaintiff violated the law, and that he resisted his arrest or assaulted the officer attempting to arrest him then you are instructed to find for the defendant, even though you should also find from the evidence that the plaintiff did receive some injury.”

This instruction would excuse appellant even though he used more force than was necessary, and did so maliciously. This requested instruction, if it had been given, would have clearly been in conflict with instruction No. 1 previously copied and approved.

Since we find no reversible error indicated in any of the grounds relied on by appellant, the judgment of the trial court must be, and it is hereby, affirmed.

Affirmed.

Holt and George Rose Smith, JJ., not participating; RobiNsoN, J., dissents.

Sam RobiNsoN, Associate Justice,

dissenting. The principal issue in this case is whether Officer Orr used more force than necessary in placing Walker under arrest. If the officer did use excessive force, then there arises the question of whether Walker provoked the assault. If so, then such provocation should be considered on the issue of the amount of damages. It will be recalled that the jury verdict is for only $100 actual damages, but $400 punitive damages.

In arriving at the verdict, the jury should have had the benefit of all competent, relevant and material evidence offered at the trial shedding light on whether Walker provoked the assault. In my opinion, the proffered testimony of Chief of Police Gene Smith and Officer Glasscock is enlightening and would have been helpful to the jury in arriving at the verdict. The proffered testimony would have shown that at police headquarters a few minutes after Walker was arrested, he cursed Officer Orr with a vile oath. It would have shown Walker’s belligerent attitude and would have shed light on who was the probable aggressor. In determining whether the occurrence at police headquarters is admissible, other evidence should be taken into consideration.

Officer Orr, speaking of the arrest, testified: ‘4 Then I told him,4 You are under arrest.’ When I told him he was under arrest, I took him by the left arm with my right hand, started across the street. My intention was going to the call box at 5th and Main. When I took about three steps, he jerked loose and said, ‘I am not going with you anywhere,’ and he was in motion which I thought at the time he was fixing to hit me, so I with my left hand open, I more or less pushed the fellow, I slapped him and pushed him at the same time on the right side of his face. That was to throw him off balance to keep him from hitting me and when he didn’t put up any further fight, I took him by the arm again and took about three steps when his brother-in-law run up from behind me.”

Even at the trial of the case Walker showed his belligerent character. He testified: “I told him [meaning Officer Orr] the car wasn’t moving.” And he further testified that even at the time of the trial he would like to hit Officer Orr a few blows. It was shown from the testimony that after Officer Orr placed Walker under arrest, Walker’s wife and his brother-in-law interfered. Officer Orr placed them under arrest. Walker testified that the officer grabbed his wife by the arm, told her that she was under arrest, and Walker added: * * the officer grabbed her by the arm and told her she wasn’t going anywhere, she was under arrest and then I grabbed her by the arm and pushed him away and told him to keep his hands off my wife. ’ ’ Walker further testified:

“Q. What did you mean when you told the officer not to put his hands — take his hands off your wife?
“A. I meant I probably would have killed him if he laid his hands on and hurt my Avife.
“Q. Would you have used the pocket knife?
“A. I would have probably used anything at my means to protect my wife. ’ ’

The proffered testimony of Chief Smith and Officer Glasscock was to show the mental attitude of Walker at the time, as shedding light on the question of Avhether Walker provoked the difficulty. In Missouri Pacific R. Co. v. Heard, 185 Ark. 1055, 1062, 50 S. W. 2d 971, this Court said: “Where there are no circumstances Avhich tend to mitigate or excuse insulting and profane language to another, malice will be implied, * * The rationale of this statement is that circumstances may mitigate exemplary damages. Certainly, if Officer Orr, without fault or carelessness on his part, believed he Avas about to be struck by Walker, and acting on such belief, struck Walker, such action on Orr’s part would not be without mitigating circumstances. The proffered testimony of Chief Smith and Officer Glasscock, if admitted in evi-. dence, Avould have had a tendency to show Walker’s belligerent character and attitude at the time of his arrest, and would have aided the jury in determining whether there were mitigating circumstances in connection with Officer Orr’s action in striking "Walker.

In 15 Am. Jur. 794, it is said: “Since exemplary damages are given only by way of punishment to an evil doer, all circumstances tending to prove that the defendant was without evil design, or though such design is admitted, to mitigate its existence are admissible in evidence, either to show that punitive damages should not be allowed, or if allowed, that they should be more restricted than if he had acted without provocation and in the absence of mitigating circumstances. ’ ’

In my opinion the proffered testimony should have been admitted in evidence, and the case should be reversed because the evidence was excluded.


source: Caselaw Access Project

author: Sam RobiNsoh, Associate Justice.

license: Public Domain

text:
    Chicago Mill & Lumber Co. v. Smith.
    5-1480
    310 S. W. 2d 803
    Opinion delivered March 10, 1958.

      Daggett & Daggett by Ronald A. May, for appellant.

      Wright, Harrison, Lindsey & Upton; R. D. Smith, Jr., for appellee.
   Sam RobiNsoh, Associate Justice.

Warren Smith was killed accidentally in the due course of his employ-meat in Phillips County, Arkansas. He left surviving Ms widow, Irene Smith; Walter Griffin, Jr., the son of Irene Smith by a previous marriage; Marjorie Smith, a legitimate daughter by a marriage other than the marriage to Irene; and Bobby Gene Smith, an acknowledged illegitimate child. The Workmen’s Compensation Commission awarded compensation to the three children mentioned, but disallowed the claim of the widow, Irene, on the theory that she was not a dependent within the meaning of the Workmen’s Compensation Act. The Commission’s findings were affirmed in the circuit court. The employer, Chicago Mill & Lumber Company, has appealed from the award to the children, on the theory that none of them was a dependent within the meaning of the Workmen’s Compensation Law and that Walter Griffin, Jr., the son of Smith’s widow, Irene, by a former marriage, is not a stepchild of the deceased within the meaning of the statute. Irene Smith has cross-appealed from the order denying her compensation.

There is substantial evidence to sustain a finding that at the time of his death Warren Smith was not contributing to the support of his wife or any of the children mentioned. Notwithstanding this fact, we think the widow and children are entitled to compensation under the Workmen’s Compensation Law.

Ark. Stat. § 81-1302 (j) provides: “ ‘Child’ means a natural child, a posthumous child, a child legally adopted prior to injury of the employee, a step-child, an acknowledged illegitimate child of the deceased or spouse of the deceased, and a foster child. ‘Child’ shall not include married children, unless wholly dependent upon the deceased.”

It will be noticed that the Act does not classify a married child as ‘child’ unless he is wholly dependent upon the deceased. Here none of the children is married. This section of the Act is fairly open to the construction that unmarried cMldren are entitled to compensation although the deceased parent was not supporting them at the time of his death, but married children are not entitled to compensation unless they were wholly dependent on deceased.

The employer contends that Ark. Stat. § 81-1315 (c) limits the payment of compensation to those who were wholly dependent on the employee at the time of his death. The statute provides: “Subject to the limitations as set out in section 10 (§ 81-1310) of this act, compensation for the death of an employee shall be paid to those persons who are wholly dependent upon him in the following percentage of the average weekly wage of the employee, and in the following order of preference. * # *”

It would be possible to construe this provision of the Act as depriving a widow or child of any compensation when, as here, the husband and father was completely void of any sense of his family obligation. But it is a rule that remedial legislation shall be liberally construed. We believe the Legislature used the term “wholly dependent” in the sense of applying to those ordinarily recognized in law as dependents, and this would certainly include wife and children. Moreover, the Act is clear as to when dependency shall cease. Section 81-1315 (d) provides: “Terminations of dependence. In the event the widow remarries before full and complete payment to her of the benefits provided in subsection (c), there shall be paid to her a lump sum equal to compensation for fifty-two (52) weeks, subject to the limitation set out in section 10 {% 81-1310) of this Act. A physically or mentally incapacitated child, grandchild, brother or sister shall be entitled to compensation as a dependent of the deceased employee without regard to age or marital status, but if physically or mentally capacitated to earn a livelihood, dependency shall terminate with the attainment of eighteen (18) years of age or upon marriage.”

In Holland Construction Co. v. Sullivan, 220 Ark. 895, 251 S. W. 2d 120, in construing the 1940 Workmen’s Compensation Law it was held that the child of a deceased natural parent was entitled to compensation, although he had not been dependent on the natural parent — in fact, the child, had been adopted by another person, who was supporting him. Appellant contends that the 1948 "Workmen’s Compensation Act amended the 1940 Act to the extent that the child of a deceased parent cannot recover when the parent at the time of his death was not contributing to the support of the child. True, the Act could be so construed, but such a construction would leave unsolved the meaning of Ark. Stat. § 81-1302 (j), which says that a married child does not come within the definition of “child” unless wholly dependent. Nor do we think that § 81-1315 (c), dealing with partial dependency, precludes recovery by the wife and children who are dependents within the usual meaning of the word. There is no contention in this case that the mother or children are capable of taking care of themselves. For all the record shows, they perhaps are the objects of charity.

In Triebsch v. Athletic Mining & Smelting Co., 218 Ark. 379, 381, 237 S. W. 2d 26, we said: “* * * We have many times held that the Workmen’s Compensation Law should be broadly and liberally construed; and that doubtful cases should be resolved in favor of the claimant. See Hunter v. Summerville, 205 Ark. 463, 169 S. W. 2d 579; Elm Springs Canning Co. v. Sullins, 207 Ark. 257, 180 S. W. 2d 113; Nolen v. Wortz Biscuit Co., 210 Ark. 446, 196 S. W. 2d 899; and Batesville White Lime Co. v. Bell, 212 Ark. 23, 205 S. W. 2d 31. * * •”

It is the further contention of the employer that Walter Griffin, Jr., son of Warren Smith’s widow by a previous marriage, is not the stepson of the deceased because Walter had been living with his mother separate and apart from Smith for several years. The statute provides for compensation for a stepchild. Webster defines stepchild as “A child of one’s wife or husband by a former marriage”. Here, Walter Griffin, Jr., comes within that category. Appellant cites Kempson v. Goss, 69 Ark. 235, 62 S. W. 582, as authority for the proposition that the Griffin child is not a stepchild of the deceased within the meaning of the Act. But we do not think the case sustains that contention. It is onr conclusion that the widow and all the children who are parties in this case are entitled to compensation.

Affirmed on appeal; reversed on cross-appeal.


author: CarletoN Harris, Chief Justice.

text:
    Wood v. McCoy (McCorvey).
    5-1462
    311 S. W. 2d 755
    Opinion delivered March 17, 1958.
    [Rehearing denied April 28, 1958]

      J. Hugh Wharton and J. R. Wilson, for appellant.

      Spencer & Spencer, for appellee.
   CarletoN Harris, Chief Justice.

Appellants instituted suit in February, 1944, against appellees asserting that they were the owners of approximately 21 acres (20.97) of land in Union County, and that appellees were trespassing on their property, though claiming title under a deed obtained by them in December, 1941; that such deed conveyed no title since the grantors were not owners of the property conveyed. Appellants prayed that appellees ’ deed be cancelled and set aside; that ap-pellees be enjoined from further going upon said lands or in any way asserting control or possession; that appellants he awarded damages for timber cut and removed by appellees, and that title to the 21 acre tract he quieted in them. Appellees answered, asserting a deed from their parents, Henry McCoy (McCorvey) and Jeannie McCoy, and alleging that the said Henry and Jeannie McCoy, together with appellees, had been in open, notorious, adverse, and peaceable possession of the property since the fall of 1932, or more than 11 years. The case remained pending, and subsequently, Jeannie McCoy died. After the filing of additional pleadings, the cause proceeded to trial on February 18, 1957. At the conclusion of the trial, the court dismissed the complaint of appellants and quieted and confirmed title to the 21 acres in Robert McCoy, Kine McCoy, Frank McCoy, Nettie McCoy, Jimmie McCoy, and Lee McCoy as against appellants N. N. Wood, W. L. Furlow, Aubert Martin and J. R. Wilson. From such decree comes this appeal.

Appellants designate sis points for reversal; however, several of these are argued together, and we do not consider that the others have any relevancy to a determination of the litigation. In rendering its opinion, the trial court stated, “The crux of the lawsuit, as I see it, is in the question of adverse possession.” We fully agree with the Chancellor that the determination of the litigation depends upon whether appellees had established adverse possession, and other matters argued are extraneous. The proof shows that Henry and Jeannie McCoy (McCorvey) lived on the property and claimed title from at least 1933 until the filing of the suit in 1944. A house that had originally burned down was replaced on the property in 1933. According to the testimony, appellees, their mother and father, since 1933, had farmed in both directions to the east and north . . . had a garden on the east and pasture on the west . . . the timber had been cnt three or four times . . . timber had been sold . . . fire wood was cnt over the place . . . some wire fences were bnilt. The parents lived on the land nntil they died, and claimed ownership at all times nntil their death. According to Jim McCoy, <£I’ve plowed there many a day.” The parents owned cows which were pastured on the place . . . the timber was openly cnt ... a brother and sister still live on the place. Three witnesses, apparently disinterested, testified as to the possession of the McCoys (McCorveys). Daniel Lee Staples, age 63, testified that he had been familiar with the land since “I was big enough to go out there,”; that the land was known as the “Jeannie McCorvey” land, and that the McCoys (McCorveys) had lived there continuously nntil the present time . . . that they had cnt the timber off and hauled it out . . . that he had had occasion to be around the property during the summer about once a week . . . that Jeannie McCorvey ‘ ‘worked for us all my life” and he would go by to see her. “He had patches and garden and raised potatoes, you know, like a farmer would. He had cows and it was just like a farm house.” D. L. Staples, Jr., stated that he had been familiar with the land for approximately 25 years. When asked “Q. Who has been in possession of that land since you have known it. A. Aunt Jeannie and Uncle Henry lived on it and also Bobbie and his sisters. * * * Q. What use have they made of the land other than just living on it? A. I guess they have used it for a source of wood, heating, and gardens and patches, small rotation crops, peanuts and potatoes and things like that.” Ira E. Adams, age 65, testified that he lived about half a mile from the property and had been familiar with it all his life. From the testimony: “Q. And ever since you have known this land Jeannie and Henry McCorvey have been in possession of it? A. They have. * * * Q. During all that period of time, have they claimed to be the owners of tbia laud ? A. Yes, sir. Q. Since Jeannie and Henry’s death, have the boys claimed to be the owners of it? A. Yes, sir. Q. What use have they made of the lands, Mr. Adams, other than just living there? A. Well, they farmed some around there, truck patches. * * * they have cut off a good bit of timber there and hauled it out of there. * * *”

It is true that appellants have paid the taxes on this 21 acres since 1939, but, as stated by the Chancellor, the payment of taxes is only a circumstance to be considered along with other circumstances. It also appears that Henry and Jeannie McCoy (McCorvey) held no record title to the property, the record title being in appellants. While the foregoing testimony-relating to appel-lees’ control of the property is not too much in dispute, it is argued by appellants that the whole tract was not under fence, and that occupancy and acts of control were not exercised over the entire 21 acres. This same contention was raised in Cooper v. Cook, 220 Ark. 344, 247 S. W. 2d 957, a case similar in many respects to the instant cause. This Court said:

“The rule of actual possession is to be applied reasonably in view of the location and character of the land claimed and it is ordinarily sufficient if the acts of ownership are of such a nature as a claimant would exercise over his own property and would not exercise over anothers, and that the acts amount to such dominion over the land as it is reasonably adapted to. * * *
“Appellants say the testimony of appellees is too indefinite to show actual possession of the entire eighty acres and complain that their repeated references to occupancy, cultivation and timber cutting as being ‘on the land’ and ‘of the land’ could have been made with reference to the other 120 acres owned by them and contiguous to the eighty acres in dispute. This is true in some instances while in others it is clear that such statements bad reference to tbe lands in controversy only. * * *
“Here we bave continuous residence upon parts of tbe land and sucb use and dominion over tbe balance as it was reasonably adapted to, and that a lawful owner might make, for more than seven successive years after tbe deed to Hooten.”

Tbe final paragraph in that opinion perfectly fits the facts in this case.

Appellants further urge that certain necessary persons were not made parties to tbe suit, sucb parties allegedly bolding an interest in some other portion of tbe 80 acres. Tbe suit was brought by appellants, and they are only interested in tbe 21 acres. Be that as it may, persons claiming an interest in tbe lands and who were not made parties, of course, are not bound by tbe decree. In fact, tbe decree itself quiets title in appellees as against appellants.

In summary, we quote from tbe opinion of tbe trial court. ‘ ‘ Hentlemen, as I see it I think these plaintiffs bave * * * let these defendants quiet title to this by adverse possession. Tbe proof shows they bave lived there, they bave cultivated it, they bave sold timber, exercised control over it for long beyond tbe statutory period of time. As I see it, I think they * * * let them acquire title by adverse possession.” We entirely agree.

Affirmed.

       Petition for revivor was filed, and O. E. Bishop, special administrator of the estate of Jeannie McCoy, was made a party defendant.

       The decree actually quieted title in 80 acres, but appellants are only claiming the 21 acres.

       A second house was built on this 21 acres in 1944, and a plat introduced shows the houses, yard fence, and garden, located approximately in the center of the 21 acres.

       Frank McCoy testified: “A. We paid the taxes up until I come into the office up here and the tax collector in the office told me that Mr. Wilson told him not to take no more money from me, so they wouldn’t take it. I sent this boy over there in and they wouldn’t take it from him.”


author: J. SeaborN Holt, Associate Justice.

text:
    Ray v. City of Mountain Home.
    5-1485
    311 S. W. 2d 163
    Opinion delivered March 17, 1958.

      H. J. Benton, for appellant.

      Roy E. Banuser and Totvnsend .& Toivnsend, for appellee.
   J. SeaborN Holt, Associate Justice.

Proceeding under the provisions of Secs. 20-101 et seq. Ark. Stats. 1947 Sewer Improvement District No. 1 was organized by Mountain Home, Arkansas, on a petition of two-thirds majority of the property owners within the dis-triet, and was created by Ordinance 104 on March 28, 1950. The estimated cost of the improvement was $230,-000, of which $120,000 was to be furnished by issuing revenue bonds to be paid from charges made for sewer services, and the remaining $110,000 to be paid by improvement district bonds which were to be paid from the levy upon the assessment of benefits. On September 5, 1950, the city duly enacted Ordinance 105 levying a rate of assessment of benefits on property in the district. Thereafter, on September 21, 1950, the city passed Ordinance 107 which provided for the above $120,000 in revenue bonds to aid in completing the sewer system of the district and further provided for additional revenue bonds in the amount of $40,000 to enlarge the water works system, a total of $160,000. Later on Sewer District No. 1 issued $111,000 in sewer improvement bonds which were secured by the assessment of benefits provided in Ordinance No. 105 above, and also under Ordinance No. 107 the city issued $160,000 in water and sewer revenue bonds secured by the water and sewer rates for water and sewer services provided in the ordinance. It thus appears that there were two distinct bond issues, the first secured by an assessment of benefits upon the lands embraced in the district, and the second by the collection of service charges from users of water and sewer services within the city.

On February 20, 1956, appellant, O. H. Ray, who owned land within the district, brought the present suit attacking the assessment of benefits against his property. He alleged, in effect, that the assessment of benefits was not authorized by the revenue bond act, was an illegal exaction in violation of his constitutional lights, and that said assessment of benefits in the sewer improvement district and its bond issue were void because these issues were not submitted to the electors for adoption or rejection, and prayed for judgment against appellees for $555.09, the amount of assessments of benefits he had previously paid.

A trial before the court (sitting as a jury) resulted in a judgment in favor of appellees. The court found that Sewer Improvement District No. 1 was properly formed on March 28, 1950, by Ordinance 104, upon petitions signed by two-thirds in value of the owners of real property in the district; that the assessment of benefits was levied by Ordinance 105 on September 5, 1950; that the period within which appellant could protest the assessment of benefits had long since expired and that Ordinance 107 provided for the issuance of revenue bonds and was independent of Ordinance 105. This appeal followed.

Appellant first contends that the provisions of the Municipal Improvement District Statutes (Secs. 20-101 et seq., Ark. Stats. 1947) were abrogated and repealed by Amendment 13 to the Constitution of Arkansas. We do not agree. Amendment 13 specifically provides that: ‘ ‘ This amendment shall not repeal or affect any law relating to the organization of improvement districts.” Obviously, we think, this amendment left the above sections relating to Municipal Improvement District Statutes intact. Our Constitution further provides in Art. 19, Sec. 27: “Nothing in this Constitution shall be so construed as to prohibit the General Assembly from authorizing assessments on real property for local improvements in towns and cities under such regulation as may be prescribed by law, to be based upon the consent of a majority in value of the property holders owning property adjoining the locality to be affected; but such assessments shall be ad valorem, and uniform. ’ ’ Here the sewer district in question was validly created, upon the consent by petition of two-thirds in value of all the property owners in the district. It was established by Ordinance 104, above, on March 28, 1950, under which, assessment of benefits was properly made and filed with the City Clerk, and the assessment Ordinance 105 was duly enacted on September 5, 1950, levying the rate of collection. But appellant argues that the consent of the people here to be taxed should have been procured by an election and not by petition signed by two-thirds in value of the owners of property within the district. The answer to this contention is that Sec. 20-104 above, specifically provides that consent shall be obtained by petition signed by two-thirds in value of owners of property within the district. We, therefore, hold that here proper consent of the property owners was obtained and an election was not required.

Appellant next contends that the above Municipal Improvement District Statutes (Secs. 20-101 — 456, Ark. Stats. 1947) were repealed and abrogated by Act 132 of 1933 (Chapter 41 Secs. 19-4101 et seq., Ark. Stats. 1947). We do not agree. The above Municipal Improvement District Statutes (Secs. 20-101 et seq., above), and the Sewer Revenue Bond Statutes (Secs. 19-4101 el seq., above) we hold, do not cover the same field and are not repugnant. It will be observed that the Municipal Improvement District Statutes provide not only for construction of sewers by improvement districts, but further provide for many other improvements such as streets, water works, light plants, etc., and the bonds issued by such districts are payable solely from the assessment of benefits on property located therein. Act 132 of 1933 (Secs. 19-4101 et seq., above), our Sewer Revenue Bond Statute, is limited to the construction, acquisition and maintenance of a sewer system alone, and provides for no other improvements. It provides that cities and towns may acquire and maintain within the corporate limits of said town or city a sewer system and issue revenue bonds to pay for the cost thereof, these bonds to be paid from revenues derived from service charges only to people who use the sewer system, and not by assessment of benefits on the property within the district. If one is not connected to the system he pays no sewer rate for service. It thus clearly appears that these statutes are not repugnant to each other, provide for entirely different securities for the bonds authorized, and neither repeals the other.

We further hold that the trial court correctly held that the present suit was barred by statute. As pointed out, the assessment ordinance 105, was enacted September 5, 1950 and duly published in the Baxter Bulletin September 7, 1950. The present suit was not filed until February 20, 1956, something over five years later. Sec. 20-416 Ark. Stats. 1947 above provides: “Within thirty (30) days after the passage of the ordinance mentioned above (assessment ordinance), the recorder or city clerk shall publish a copy of it in some newspaper published and having a bona ficle circulation in such town or city for one time, or if no newspaper be published in said city or town, then in some newspaper published in the county; and if no newspaper he published in the county then by posting it at least ten (10) conspicuous places in the city or town. Within thirty (30) days after such publication the district or any property owner may bring suit in the chancery court of the county for the purpose of correcting or invalidating such assessment; hut if such suit is not brought within that time all objections to the creation of the district or the validity of the assessment shall he forever barred and precluded.” Here, as indicated, appellant’s suit was clearly an attack upon the benefits in Improvement District No. 1.

The above section of the statute has been consistently upheld by this court. See Laflin v. Bd. of Commrs., Street Imp. Dist. No. 8 of Mena, 205 Ark. 24, 166 S. W. 2d 653 (and the cases there cited). We there said: “This court said in the case of Ingram v. Thames, 150 Ark. 443, 234 S. W. 629 that: The Statute requires that within 30 days after the passage of the ordinance mentioned above (assessment ordinance) the recorder or city clerk shall publish a copy of it in some newspaper published in such town or city for one time. And all persons who shall fail to begin legal proceedings within 30 days after such publication for the purpose of correcting or invalidating such assessment shall be forever barred and precluded. Section 5668, Crawford & Moses’ Digest. The allegations of the appellant’s -complaint show that it is an attack upon the assessment of benefits. The appellant did not comply with this statute, and therefore his cause of action is barred, (citing cases).’ ”

Appellant also argues that, “. . . the levying and collection of benefits against the properties of the Sewer District are made contingent upon a condition that has not happened. That is, Sec. 13 of Ord. 107 provides for assessment of benefits against the lands of the Sewer District upon an expressed contingency, a eon-tingent assessment, one limited to take effect npon a dnbions and uncertain event, which may never happen or which may not happen until after all water and sewer bonds are paid in full, which case such contingency can never take effect. . . . that a surplus exists in the water and sewer fund of the city sufficient to pay all bonds as they may mature and the contingency provided for, which would authorize the assessment and collection of benefits on the lands of the district, has not arisen . . .” To support this contention appellant offered the city’s audit, December 31, 1955, showing under “1955 Operating Statement — Revenue—"Water and Sewer Dept. $49,800.30 Operating Expense, Water & Sewer Dept. $26,627.03 Leaving a net worth increase of $23,173.27,” and he contends that after paying all bonds maturing and expenses prior to January 1, 1956, a surplus of $23,173.27 had accumulated and that until this surplus was depleted no assessment of benefits could be levied in the district.

We do not construe Section 13 of Ordinance 107 as containing any such contingency as appellant claims, nor do we find that either the assessment of benefits of Sewer Improvement District No. 1 or the rate of levy in Ordinance 105, was subject to any contingency in Section 13 of Ordinance 107. By the above exhibit appellant claims, as indicated, that the net worth increase of the water and sewer department amounts to $23,173.27, or a surplus in that amount. The exhibit does not show, however, what part of the revenues has gone to the other funds provided by Ordinance 107, such as the water and sewer depreciation fund (Sec. 10 thereof) or the water and sewer revenue bond fund (Sec. 11 thereof). Appellant contends that the said surplus is sufficient to pay all bonds for 1956 through 1960, but the record appears not to sustain this contention. The bond schedule of the revenue bond ordinance, No. 107, reflects that the total principal and interest requirements, of the revenue bonds alone, for the years 1956 through 1960 amount to $43,-931.25, obviously much more than the surplus. It further appears that the record is silent as to the principal and interest requirements of the improvement district bond issue for the same period. At every step we must hear in mind that the assessment of benefits in Sewer Improvement District No. 1 has been pledged to the payment of the sewer district improvement bonds and the city would not be permitted to take any action which would impair the district’s obligation and the assessment of benefits, the levy of same, and the pledge of it are not contingent. "We hold, therefore, that appellant’s contention is without merit.

Finding no error, the judgment is affirmed.


author: Ed. P. McFaddiN, Associate Justice. Sam Robinson, Associate Justice,

text:
    Phillips Cooperative Gin Co. v. Toll.
    5-1481
    311 S. W. 2d 171
    Opinion delivered March 17, 1958.

      Wood & Smith, for appellant.

      Thorp Thomas and Tom Gentry, for appellee.
   Ed. P. McFaddiN, Associate Justice.

This appeal stems from a traffic mishap: a truck-trailer driven by W. T. Jackson collided with a car driven by Richard F. Toll, Sr., causing injuries which resulted in Mr. Toll’s death. The appellees (administratrix and administrator of Toll’s estate), as plaintiffs, obtained judgment against W. T. Jackson and also against the appellant, Phillips Cooperative Gin Company (hereinafter called “Gin Company”), as the employer of Jackson. The Gin Company has appealed; and on the record before us, only two points are designated for our review.

I. Appellant’s Request For Instructed Verdict. At the conclusion of all the evidence the' Gin Company moved for an instructed verdict in its favor; and the motion was overruled. The point we now’' consider is whether an instructed verdict should have been given. Viewing the evidence in the light most favorable to the appellees, as is our rule in cases like this one, these facts appear:

The Phillips Cooperative Gin Company is located at or near Lexa in Phillips County, and C. IT. Martin is the general manager of the gin. The Gin Company had accumulated a quantity of cotton seed, which it sold from time to time to various oil mills. On September 27, 1955, W. T. Jackson carried a load of cotton seed by truck-trailer from the Gin Company to the Southern Cotton Oil Mill in North Little Rock. After the seed had been delivered to the cotton oil mill, W. T. Jackson started back to his home; and on such return journey there occurred the traffic mishap which resulted in Mr. Toll’s death. The Gin Company claimed that Jackson was an independent contractor; and the plaintiffs — appellees — claimed that the relationship between the Gin Company and Jackson was that of master and servant. We are not concerned with any questions of negligence or amount of the verdict, hut are considering what was the relationship between the Gin Company and Jackson at the time of the traffic mishap.

In Olin Mathieson Chemical Corp. v. Shirey, 226 Ark. 530, 291 S. W. 2d 250, we listed many of our cases on this matter of independent contractor v. master-servant relationship; and we said:

“The rule is well established that where fairminded men might honestly differ as to the conclusion to he drawn from facts, whether controverted or uncontrovert-ed, the question should go to the jury. St. L. I. M. & S. Ry. Co. v. Fuqua, 114 Ark. 112, 169 S. W. 786. It is also well established that it is proper to direct a verdict for the defendant only when, under the evidence and all reasonable inferences deducible therefrom the plaintiff is not — under the law — entitled to recover. Wortz v. Ft. Smith Biscuit Co., 105 Ark. 526, 151 S. W. 691.”

It must also be remembered that when it is shown that the person causing the injury was at the time rendering a service for the defendant and being paid for that service, and the facts presented are as consistent with the master-servant relationship as with the independent contractor relationship, then the burden is on the one asserting the independence of the contractor to show the true relationship of the parties. In Warren v. Hale, 203 Ark. 608, 158 S. W. 2d 51, we said:

“It is generally held by the courts, including our own, that if the employer claims that an employee is an independent contractor for whose acts he is not responsible, the burden is upon him to show that fact. It was so held in St. L. I. M. & S. Ry. Co. v. Davenport, 80 Ark. 244, 96 S. W. 994, ... In Dishman v. Whitney, et al., 121 Wash. 157, 209 Pac. 12, 29 A. L. R. 460, it was held that ‘Where the facts presented are as consistent with the theory of agency as with that of independent contractor, tlie burden is on the one asserting the independ-ency of the contractor to show the true relation of the parties. ’ Many other cases might be cited to the same effect. See 27 Am. Jur., p. 538, § 59.”

With all of the foregoing in mind, we come to the facts relied on by appellees to make a jury question on the issue of master-servant as opposed to independent contractor. We list some of the salient items:

1. The Gin Company sold a load of its cotton seed to the Southern Cotton Oil Mill. The cotton seed had to be delivered to the mill in North Little Rock. The Gin Company arranged with W. T. Jackson to transport the load of seed. On the way back to his home, Jackson had the traffic mishap here involved. The contract between the Gin Company and Jackson was entirely oral.

2. Jackson loaded the seed onto the truck-trailer at the gin at the place directed, but the load was never weighed until it reached the Southern Cotton Oil Mill. It was then for the first time ascertained how many tons of seed Jackson had loaded on the truck-trailer.

3. There is no evidence in the record that anyone except Jackson ever transported the seed of the Gin Company to any destination in the times here involved.

4. The Gin Company claimed that the purchaser of the seed (Southern Cotton Oil Mill, in this case) was to pay Jackson for transporting the seed, and that the amount Jackson was to receive was $4.20 per ton. The particular load here involved was on September 27,1955; and the record here shows that as late as October 5, 1955 the Southern Cotton Oil Mill addressed an inquiry to C. H. Martin (manager of the Gin Company) listing this load of seed by invoice number, pounds, rate for hauling, and gross amount, and showed the hauling item to be $65.66; and the Southern Cotton Oil Mill asked Martin in the inquiry of October 5th: ‘ ‘ This freight has not been paid to anyone. Advise how you want it handled.” Along with the load of September 27th there was another load of September 26th, on which the hauling amounted to $71.74; so the total of these two loads was $137.40. The September 27tli load was the load that Jackson had just hauled when he was returning home. The check of the Southern Cotton Oil Mill for $137.40 for hauling was made out to C. IT. Martin, dated October 5, 1955, and bore the notation: “W. T. Jackson Trucking.” The check was endorsed by C. IT. Martin and the Phillips Cooperative Gin Company; so the check never went through the possession of W. T. Jackson.

5. In explanation as to the inquiry made by the oil mill and as to why the check was made as it was, the appellant’s witnesses explained that the Gin Company had the custom of advancing money to Jackson and being repaid by collecting the amounts due Jackson from the various oil mills to which he had hauled seed from the Gin Company.

6. C. J. Jackson, the father of W. T. Jackson (the man here involved) is the president of the Board of Directors of the Gin Company. C. J. Jackson testified that he had no interest whatever in either the truck or the trailer used by W. T. Jackson; but it was nevertheless established that the trailer was registered and licensed in the name of C. J. Jackson.

7. W. T. Jackson testified that he did hauling “for the public”; that on September 26th, C. H. Martin, general manager of the Gin Company, told him to take a load of seed to the Southern Cotton Oil Mill in North Little Rock; that Jackson loaded the seed on the truck-trailer that night; that he began the trip to North Little Rock “about daylight on September 27th”; that he delivered the load of cotton seed to the Southern Cotton Oil Mill; and “the Southern Cotton Oil Mill paid me for the hauling. The checks were made out to me.” The photostatic copy of the checks in the record show that the checks were made out to C. H. Martin and that he endorsed the checks and passed them through the account of the Gin Company, as stated in paragraph numbered 4, supra.

8. A sharply disputed issue in the trial was the amount, if any, of control that the Gin Company retained over Jackson. Robert Dodd, who worked for Jackson on the truck-trailer, testified on cross-examination:

“Q. Have you been present when the manager of Phillips Gin, Phillips Cooperative Gin Company, would give W. T. Jackson instruction about where to haul the stuff!
A. Sometimes I would, sometimes I wouldn’t.
Q. Would they instruct him to take a load to such and such and come hack and take a load to such and such a place, do you remember anything about that!
A. No, sir, I don’t remember that. Anywhere they would tell him to carry a load he would carry it.
Q. They gave him instructions and directions!
A. Yes, sir.”

9. The Gin Company manager admitted there was no written contract with Jackson; but if the Gin Company should stop him with a load of seed enroute to Little Rock, and direct him to go instead to Helena, and if Jackson failed to obey the revised directions, then he would not be allowed to haul any more seed for the Gin Company.

The foregoing numbered paragraphs fairly reflect the evidence on the matter of independent contractor as opposed to master-servant. Two of our more recent cases on this are Barr v. Matlock, 222 Ark. 260, 258 S. W. 2d 540; and Olin Mathieson Chem. Corp. v. Shirey, 226 Ark. 530, 291 S. W. 2d 250; and in each of these cases we held ■ — ■ as we hold here — that the evidence offered by the plaintiffs showed facts as consistent with the theory of master-servant as with that of independent contractor; and that before the party asserting independent contractor relationship would be entitled to an instructed verdict, the evidence on the issue must present no factual question.

We conclude that all of the evidence reflected by the foregoing numbered paragraphs made a case from which reasonable men might draw the inference that Jackson was in fact the servant of the Gin Company rather than an independent contractor. So we find no error in the refusal of the trial court to grant an instructed verdict for the defendant Gin Company.

II. Appellees’ Instruction No. 5. We conclude that the giving of this instruction — later to be copied —■ constituted reversible error. In a series of instructions, not here challenged, the Court told the jury:

“Plaintiff contends that W. T. Jackson, at the time of the collision giving rise to this litigation, was an agent, servant or employee of Phillips Cooperative Gin Company and was acting in the scope of his employment. Phillips Cooperative Gin Company denies that W. T. Jackson was its agent, servant, or employee and contends that he was an independent contractor.
“An independent contractor is one who, in the course of an independent occupation, prosecutes and directs the work himself, using his own methods to accomplish it and represents the will of the company only as to the result of his work.
“Even though an employer’s control and direction over a contractor be retained the relation of master and servant is not thereby created unless such control and direction relate to the contractor’s physical conduct in performing the work with respect to the details thereof.
“A servant is a person subject to the command of his master as to the manner in which he shall do his work. The relation of master and servant exists only where the master can order the work and direct how it shall be done. When the person to do the work may do it as he pleases then such person is not a servant.
“If you find that W. T. Jackson at the time of the collision was not an agent, servant, or employee of Phillips Cooperative Gin Company but was an independent contractor as defined in these instructions, yon will find in favor of Phillips Cooperative Gin Company.”

In the foregoing instructions the jury was given, a definite set of rules by which to determine the relationship of W. T. Jackson and the Gin Company. But the appellees asked, and the Court gave, over appellant’s general and specific objections, the appellees’ Instruction No. 5 here challenged. This instruction reads:

“In determining whether W. T. Jackson was an agent, servant, or employee of the Phillips Cooperative Gin Co., you should determine from all the evidence in the case in whose business W. T. Jackson was engaged and who had the right to control and direct his conduct, and if you find from a preponderance of the evidence that W. T. Jackson was engaged in the business of Phillips Cooperative Gin Co. and that Phillips Cooperative Gin Co. had the right to control and direct his conduct, at the time of the collision, then you will find that W. T. Jackson was an agent, servant or employee of Phillips Cooperative Gin Co. regardless of whether or not he was selected or paid by Phillips Cooperative Gin Co.” (Italics our own.)

This Instruction No. 5 added confusion rather than enlightenment. It was a binding instruction in that it told the jury that if two points were found, then the jury would find for the plaintiff. We have repeatedly held that when a binding instruction is given, then it must incorporate all of the essential conditions in the case. See Reynolds v. Ashabranner, 212 Ark. 718, 207 S. W. 2d 304, and cases there cited.

The instruction undertakes to draw the line between the independent contractor relationship on the one side and the master-servant relationship on the other side, and then tells the jury that in deciding on which side of the line Jackson and the Gin Company were the jury would consider only two conditions: (1) in whose business Jackson was engaged; and (2) whom had the right to control and direct his conduct. There are other conditions which should not have been ruled out in the instruction; and one of these is the right to terminate the employment. In a number of cases we have held that the right to terminate the employment at any time is of considerable weight on the question of determining whether the worker is an independent contractor or a servant.

In Wright v. McDaniel, 203 Ark. 992, 159 S. W. 2d 737, we said: “ ‘The fact that the employer may at any time terminate the performance of the work by discharging the employee is of considerable weight as tending to show that the employee is not an independent contractor. Bristol & Gale Co. v. Industrial Comm., 292 Ill. 16, 126 N. E. 599’; 31 C. J. 475.” In Hollingsworth & Frazier v. Barnett, 226 Ark. 54, 287 S. W. 2d 888, we said: ‘ ‘ The power of an employer to terminate the employment at any time without liability is incompatible with the full control of the work which is usually enjoyed by an independent contractor and is a strong circumstance tending to show the subserviency of the workman.”

Other cases to the same effect could be cited; but the point is, that the issue of the Tight of termination of employment was entirely omitted from this binding instruction. The conclusion as to what was the relationship (independent contractor v. master-servant) must be drawn by the jury from all of the circumstances and proof (Ice Service Co. v. Forbess, 180 Ark. 253, 21 S. W. 2d 411). In Topic I, supra, in discussing the refusal of the Court to give an instructed verdict, we emphasized that all of the circumstances there mentioned — added together — made a question of fact for the jury. It would be a mistake for the Court to single out only two factors and give a binding instruction on those two factors alone; yet such was the effect of appellees’ Instruction No. 5.

Not only was this instruction binding, but it was argumentative, and also was a comment on the weight of the evidence, in that it said: “. . . regardless of whether or not he was selected or paid by Phillips Cooperative Gin Company.” The instruction also amounted to a comment on the weight of the evidence and was prejudicial because it assumed that someone other than W. T. Jackson had a right to control his actions. The words of the instruction, “. . . in whose business W. T. Jackson was engaged . . . .”, seemed to clearly imply that he was not engaged in business for himself: at least it is quite possible that the jury could have so construed the language. The instruction contained other defects ; but what we have said is sufficient to demonstrate that the instruction was erroneous, and that the judgment must be reversed for the error in giving the Instruction No. 5.

The final conclusion reached in this case is the composite result óf a variety of views on the two points decided. Justices Millwee, Ward, Robinson, and MoPad-din compose the majority on the first point decided (i. e. that the Trial Court was correct in refusing to give the Gin Company’s request .for an instructed verdict). The Chief Justice and Justices Holt, Ward, and McFaddin compose the majority on the second point, decided (i. e. that .the Court erred in giving appellees’ Instruction No. 5).

• Reversed and remanded.

Millwee and Robinson, JJ., dissent.

Sam Robinson, Associate Justice,

dissenting. I cannot agree that Instruction No. 5 requested by appellees is erroneous. In fact, I can see no valid distinction between that instruction and appellant’s Instruction No. 4. Ap-pellees ’ Instruction No. 5 merely told the jury that if they should find that W. T. Jackson was engaged in work of the Gin Company and that the Gin Company had the right to control and direct his conduct at the time of the collision, then in law Jackson was agent for the Gin Company. Instruction No. 4 given on behalf of appellant in effect told the jury the same thing. This instruction reads: “A servant is a person subject to the command of his master as to the manner in which he shall do his work. The relation of master and servant exists only where the master can order the work and direct how it shall be done. When the person to do the work may do it as he pleases then such person is not a servant. ’ ’

It appears to me that the meaning of the two instructions is the same and appellant is in no position to complain of the court’s giving an instruction on behalf of the appel-lees when an instruction carrying the same meaning was given on behalf of appellant.

The majority opinion states'that elements other than those mentioned in Instruction No. 5 are involved in this case in the relationship of master and servant, and that one of the elements omitted from the instruction is the right to terminate the employment. The fact that the employer may or may not terminate the employment at will may shed some light on the nature of the employment. Still, such right is not a distinguishing feature between an agent and an independent contractor. The right to terminate the employment at will may not exist, and yet the relationship could be that of master and servant. On the other hand, the contract of employment may not be can-cellable at will and yet the relationship be that of independent contractor. In my opinion the cases cited by the majority do not sustain the view that the right to terminate the employment is one of the elements of a master and servant relationship. Wright v. McDaniel, 203 Ark. 992, 159 S. W. 2d 737, merely states that the right to terminate the employment is evidence that it may be considered in arriving at a conclusion of whether the relationship is that of agency or independent contractor, and the same thing is true of Hollingsworth & Frazier v. Barnett, 226 Ark. 54, 287 S. W. 2d 888.

If the Phillips Gin Company had the right to control and direct the action of Jackson, the driver of the truck, at the time of the collision, then without a doubt Jackson was the Gin Company’s agent in driving the truck, and this is what the jury were told. In Olin Mathieson Chemical Corp. v. Shirey, 226 Ark. 530, 291 S. W. 2d 250, the right to direct and control the driver was the element considered in determining whether agency existed. In the case at bar the majority has pointed to no other element that should be considered except the right to terminate the contract of employment, and in my opinion this is not one of the elements of agency, but merely evidence of the relationship. The trial court instructs the jury on the law and not on the evidence.

According to the undisputed evidence in the case, the driver of the truck was employed by the Gin Company to move seed for the Company, and when the accident occurred he was on the return journey after delivering the seed as directed by the Company. There is only one issue: Was Jackson an independent contractor, or was he an agent of the Gin Company? This Court is holding that the evidence was sufficient to take the case to the jury on the question of agency. It was up to the trial court to instruct the jury as to just what facts would constitute agency in the circumstances of this case, and by Instruction No. 5 the court told the jury that if the Gin Company had the right to control and direct the conduct of the driver of the truck at the time the collision occurred, then the driver would be, according to law, the agent of the Gin Company. This was a correct statement of the law, and it is hard to understand just how the court could have informed the jury on this point of law in any clearer terms.

In Ark. Independent Oil Marketers Assn., Inc. v. Monsanto Chemical Co., 225 Ark. 620, 625, 284 S. W. 2d 127, there was the issue whether one Yates was the agent of the Lion Oil Company. It was held that he was the agent of the company and the case turned on the fact that the company had the right to direct and control his actions. The Court quoted from 116 A. L. R. 462, as follows : “ ‘ '* * * and in the majority of such cases it has been held that such operator is a “servant” or “employee” of the oil company, rather than an ‘ ‘ independent contractor ” as is commonly contended by the company, generally on the theory that although the terms of the written contract might indicate that the operator had the status of an “independent contractor, ’ ’ the company in actual practice retained such power to subject him and his employees to its will and direction that he was in fact a “servant,” “employee,” or “agent,” * * ”

And the Court quoted from Magnolia Petroleum Co. v. Johnson, 149 Ark. 553, 233 S. W. 680, as follows [225 Ark. 626] : “ ‘And the majority are of the opinion that the contract between the company and Smith, as interpreted by the conduct of the parties under it, shows that it was the purpose of the company to retain complete control of everything done in connection with the sale and delivery of the oil, and that the testimony, in its entirety, warranted the finding that the drivers of the wagon were themselves the servants of the company.’ ”

The wording of Instruction No. 5 simply means that if the G-in Company had the right to direct the driver of the truck as to the road to travel, the speed at which the truck should be driven, the caution which should be exercised, and other details pertaining to operation of the truck, then the driver of the truck was the agent of the Gin Company. True, the instruction does not point out all possible actions of the driver, but the words ‘ ‘ the right to control and direct his conduct” include such details. I have found no case sustaining the contention that Instruction No. 5 is erroneous, and none is cited by the majority. Surely the jury cannot be left to make its own rules as to just what set of circumstances will constitute the relationship of principal and agent. Certainly in the case at bar the jury had to be informed as to the distinction in law as between an agent and an independent contractor. In many cases the distinction is finely drawn, and no rule can be laid down which will fit every case, but here it is undisputed that the Gin Company employed Jackson, the driver of the truck, and the only question is: Did the Company have the right to control and direct his conduct at the time of the collision? If so, then Jackson was an agent, and that is what the court told the jury.

In Moore and Chicago Mill & Lbr. Co. v. Phillips, 197 Ark. 131, 120 S. W. 2d 722, in discussing the distinction between an agent and an independent contractor, the Court said: “ * * * The governing distinction is that if control of the work reserved by the employer is control not only of the result, but also of the means and manner of the performance, then the relation of master and servant necessarily follows. * * *” That is exactly the situation we have here. If the Gin Company had the right to direct and control the conduct of the driver at the time of the collision, then it necessarily follows that the relationship of master and servant existed, and that is what the court told the jury.

Neither do I think Instruction No. 5 was argumentative or a comment on the weight of the evidence.

For the reasons set out herein, I respectfully dissent.

Mr. Justice Millwee joins in this dissent.

       See Black & White Cab Co. v. Doville, 221 Ark. 66, 251 S. W. 2d 1005, and cases there listed.

       W. T. Jackson was not shown to have any permit irom the Public Service Commission. It was stated in the oral argument by appellant —and not denied by appellees — that W. T. Jackson came under some exemption clause of the law and was, therefore, not required to have a permit from the Public Service Commission.

       The appellant’s objections to the instruction are as follows: “To which said instruction defendant Phillips Cooperative Gin Company objected generally, and specifically because it fails to consider that W. T. Jackson had or would have terminated any supposed employment; it is misleading because it assumes that someone had a right to control W. T. Jackson when he was or could have been an independent contractor engaged in his own business; it fails to define scope of employment; and the final phrase, ‘regardless of whether or not he was selected or paid by Phillips Cooperative Gin Company’ is an incorrect statement of law as used in connection with master and servant, and amounts to a comment on the evidence by emphasizing certain factors.”

       In Hearn v. East Texas Motor Freight Lines, 219 Ark. 297, 241 S. W. 2d 259, we held that the proximity and arrangement of the instructions might be considered when one essential element — contributory negligence in that case — did not appear in the binding instruction. But the holding in the Hearn case finds no application in the case at bar because, here, all of the instructions were not designated for the record that is before us. The designations only contained the appel-lees’ Instruction No. 5 and the instructions asked by the Gin Company; so we cannot determine the matter of proximity and arrangement.


author: MiNor W. Millwee, Associate Justice.

text:
    Sykes v. Drewry.
    5-1500
    311 S. W. 2d 154
    Opinion delivered March 17, 1958.

      D. B. Bartlett and Mark E. Woolsey, for appellant.

      E. B. Covington, for appellee.
   MiNor W. Millwee, Associate Justice.

This is an aftermath of Drewry v. Sykes, 226 Ark. 539, 291 S. W. 2d 258, and involves the extent of the liability of appel-lees, R. E. Larkey and L. R. Ray, as sureties on the su-persedeas bond filed by appellees, L. E. Drewry and Harve Willis, as appellants on the former appeal.

In October, 1954, the appellant, Ralph Sykes, brought suit for dissolution, accounting and settlement of the affairs of a partnership composed of Sykes and the appellees, Drewry and Willis, for the purpose of operating a coal mine on a 40-acre tract belonging to Sykes in Johnson county. Sykes owned 5/8ths, Drewry l/4th and Willis l/8th interests in the partnership. On the former appeal we affirmed the action of the chancellor in dissolving the partnership, ordering the sale of partnership assets and directing that net sale proceeds he applied as follows: First, the smn of $542.19 to creditors other than partners; second, the sum of $8,082.01 to appellant Sykes as a creditor; and third, that if any proceeds remained after discharging said liabilities, the court would make further orders of distribution. The court also directed that if sale proceeds were insufficient to pay all liabilities, said partners should contribute to the payment of the unpaid balance according to their respective interests in the partnership.

As appellants on the former appeal, Drewry and Willis executed and filed a supersedeas bond with Larkey and Ray as sureties, as follows: c-

“BOND FOR SUPERSEDEAS
Whereas, the appellants, L. E. Drewry and Harve Willis, have taken an appeal from the decree of the Chancery Court, rendered on the 19th day of November, 1955, wherein the Court ordered the sale of the assets of the New Spadra Coal Company after advertisement for ten days by the Commissioner, and said appellants desire to supersede said sale until their rights may be determined by the Supreme Court of Arkansas:
Now, R. E. Larkey and L. F. Ray, as sureties, hereby covenant with said appellee that appellants will pay to appellee all costs that may be adjudged against appellants on such appeal, or, in the event of appellant’s failure to prosecute said appeal to final judgment in the Supreme Court, or if said appeal shall be, for any cause, dismissed, that said sureties shall pay to appellee all costs, and shall perform the judgment of the Court appealed from; also that said appeal shall be prosecuted without delay; also that they will satisfy all damages to appellee during the pendency of this appeal should the decree of the trial court be affirmed.”

After the filing of the mandate of this court on the former appeal a sale of partnership assets was held and subsequently confirmed at which appellant Sykes became the purchaser for $2,750.00. On February 27, 1957, Sykes filed in the trial court his motion against appellees for summary judgment on the supersedeas bond alleging that, after deducting the net sale proceeds from the total partnership indebtedness, there remained a deficiency of $6,074.70, one-fourth of which Willis was obligated to pay, and one-eighth of which Drewry was obligated to pay, along with Larkey and Ray as sureties on the supersedeas bond; and that, in addition, appellant had since the original trial expended $255.51 for electric power and pipe fittings for the preservation of the partnership property. In an amendment to his motion, appellant also asserted that during the pendency of the former appeal he had been further damaged in the sum of $75.00 per month by reason of certain services performed by him necessary to preserve the property; and that he had been otherwise damaged in the sum of $300 per month because of the delay occasioned by the appeal. Appellant prayed for a supplemental decree fixing the amount allegedly due him from all the appellees for said items.

On July 23, 1957, appellees filed a motion to dismiss appellant’s motion for summary judgment on the super-sedeas bond on the ground that there was no monetary judgment awarded either in the trial court or this court on the former appeal, said judgment, and the superse-deas issued thereon, being only for the sale of the partnership property; and that appellant had no valid claim against appellees under said bond other than for actual court costs on the former appeal. The instant appeal is from a decree sustaining appellees’ motion, and dismissing with prejudice appellant’s motion for summary judgment on the supersedeas bond for all items except court costs.

For reversal appellant first contends that under our statutes and the language of the supersedeas bond the appellees, Larkey and Ray, as sureties, bound and obligated themselves for the full performance and satisfaction of the decree. Hence, says appellant, the sureties were rendered liable to appellant on his motion for judgment in the snm of $2,278.01 which, represents 3/8ths of the $6,074.70 deficiency remaining after applying the net sale proceeds to payment of partnership liabilities. Appellant relies on that portion of Section 5 of Act 555 of 1953 (Ark. Stats., Sec. 27-2121.1) which provides that a supersedeas bond, “shall be conditioned for the satisfaction of the judgment in full, together with costs, interests, and damages for delay, if for any reason the appeal is dismissed or if the judgment is affirmed . . Appellant overlooks other provisions of the same section relating to the amount of the super-sedeas bond to be fixed to stay a sale of property, as well as Ark. Stats., Sec. 27-2125 which provides: “The su-persedeas may be issued to stay proceedings on a part of a judgment or order, in which case the bond shall be varied so as to secure the party superseded.” There was no repeal of this section by Act 555 of 1953. Just as a party may appeal from any part of a decree or judgment under Sec. 3 of Act 555 (Ark. Stats., Sec. 27-2106.2), he may stay only a part of the judgment or decree under Sec. 27-2125, supra.

As the chancellor pointed out, there was no monetary judgment rendered on the former appeal. Also, there had been no sale of partnership assets when the original decree was rendered, and the preamble of the supersedeas bond provided for a stay of only the sale of the assets and there is nothing in the second paragraph of the bond that binds said sureties for the payment of the unascertained deficiency to which the other appel-lees were required to contribute. In this connection we have held that it is not within the province of this court to adjust the equities between the parties by marshaling the securities or assets for the benefit of sureties on the supersedeas bond, for that would amount to an exercise of original jurisdiction. Kirby v. Young, 145 Ark. 507, 224 S. W. 970. See also, Stephens v. Shannon, 44 Ark. 178, where it was held that summary judgment may be given against sureties on a supersedeas bond only for costs where a decree for plaintiff merely fixed a vendor’s lien on land and there was no judgment against the appellants for the recovery of money. In the circumstances presented here the chancellor correctly concluded that the sureties on the supersedeas bond were not liable to appellant for the amount of the deficiency of $2,278.01 alleged to be due by the two principal appellees.

This brings us to the question of the liability of the sureties for alleged damages caused by delay pending the former appeal. At the hearing on the motion to dismiss appellant’s motion for summary judgment the chancellor declined to hear proof relating to such alleged damages. In sustaining the motion to dismiss without such proof the trial court, in effect, sustained a demurrer to appellant’s motion for summary judgment on this feature of the case. On this point it is noted that the second paragraph of the supersedeas bond binds the present appellees to, “satisfy all damages to appel-lee (Sykes) during the pendency of this appeal should the decree be affirmed.” Even where some particular element of recovery specified in the statute is not set out in the bond, this court has held that the provisions of the statute may be considered as written in it. See cases cited in Dover v. Henderson, 197 Ark. 971, 125 S. W. 2d 798. Since both the bond and the statute (Ark. Stats., Sec. 27-2121.1) cover damages for delay, we hold the trial court erred in summarily dismissing the motion for judgment on the bond without a hearing on this issue. To this extent the decree is reversed and the cause remanded for further proceedings to determine the amount of delay damages, if any, occasioned by the former appeal. In all other respects the decree is affirmed.


author: George Pose Smith, J.

text:
    Omohundro v. Erhart.
    5-1496
    311 S. W. 2d 309
    Opinion delivered March 17, 1958.
    [Rehearing denied April 14, 1958]

      Charles L. Carpenter, for appellant.

      Glenn F. Walther, for appellee.
   George Pose Smith, J.

The appellant, Lehte S. Om-ohundro, and the appellee, Delphine S. Erhart, are sisters. Their mother, at the time of her death in 1945, was serving as guardian for a third sister, Gladys M. Shader, who has been mentally incompetent for about forty-five years. After their mother’s death Mrs. Omo-hundro and Mrs. Erhart were appointed as guardians in succession and served in that capacity, despite much disharmony, for twelve years.

In 1957 Mrs. Erhart filed the present petition, stating that it would be to the ward’s best interest for both guardians to he removed and a successor appointed. After an extended hearing the probate court entered an order removing both the guardians and naming Clai-bourne W. Patty as their successor. In appealing from this order Mrs. Omohundro contends that the record does not support the court’s finding that she, as well as Mrs. Erhart, is unsuitable to act as guardian, is incapable of further performing her trust, and has failed to perform duties imposed upon her by law and by orders of the court. These findings, if sustained by the proof, concededly justified the court in removing the two guardians. Ark. Stats. 1947, §§ 57-621 and 62-2203.

It may be said at the outset that the trial court was undoubtedly right in concluding that a continuation of the dual guardianship would not promote the welfare of the ward. According to the testimony of both parties their joint control of their sister’s estate has been marked by continual bickering and at times by bitter quarrels. At least two attorneys are shown to have given up the attempt to represent the two sisters and to have resigned. In one instance a former probate judge felt compelled to leave the courtroom in the middle of one of many heated disputes between the coguardians. In 1956 the court took the unusual step of dividing the assets of the ward between the two guardians, with each to be responsible only for her allotted half, but this arrangement had no perceptible effect upon the parties’ constant wrangling.

Both sisters testified at length below; it is clear that their differences are beyond reconciliation. Each accuses the other of mismanagement of the estate. Each asserts that she has been forced, by the other’s obstinacy, to advance money for the ward’s care, although the ward’s estate is worth more than $200,000. Each charges the other with having obtained the entry of court orders without notice. Each insists that the other has contemptuously disobeyed the judge’s orders. The strife has even extended to the care of the helpless ward; the guardians have disagreed about the hospitals in which she should be placed and about the advisability of an operation upon her brain. There is little reason to think that Mrs. Erhart overstated the matter when she testified that Mrs. Omohundro “never agreed with me on anything. ’ ’

When it is remembered that the sole purpose of this guardianship is to further the well-being of the afflicted ward, it must be conceded that the trial court had no choice except to terminate the joint custody. The appellant, at least tacitly, admits this to be true; but she contends that she has been wholly without fault, that Mrs. Erhart alone has been the cause of all the difficulty, and that the court should therefore have removed only the latter.

This contention is not supported by the preponderance of the evidence. Many of the charges and counter-charges involve only an issue of credibility as between two interested parties; in this situation we are guided by the findings of the trial judge, who sees the witnesses at firsthand. Cowan v. Powell, 219 Ark. 498, 243 S. W. 2d 373. Much of Mrs. Erhart’s testimony, if credited, indicates that Mrs. Omohundro is temperamentally unsuited to act as a fiduciary.

Furthermore, it does not appear that the appellant has been entirely without fault in the performance of her duties. For some ten years after the dual appointment she seems to have left matters largely in the control of Mrs. Erhart, who says that Mrs. Omohundro would sign blank checks for use in the administration of the ward’s affairs. In 1956 Mrs. Omohundro began taking a more active interest in the proceeding and complained that no inventory of the estate’s investments had ever been lodged with the court and that the rents were not being properly accounted for. If these charges were true Mrs. Omohundro cannot be regarded as having been without blame in the matter. As a fiduciary it was her duty to participate in the management of the estate and to use reasonable care to see that no breach of trust was committed by her fellow guardian. Rest., Trusts, § 184. If breaches of trust had occurred she must either have approved the wrongful conduct or have failed through culpable inattention to see that the ward’s interests were being protected. She is thus not in a position to disclaim responsibility for all the misconduct that she now seeks to attribute to Mrs. Erhart. On the whole ease we are of the opinion that the chancellor did not err in finding both the guardians to have been at fault and in accordingly relieving them of their duties.

Affirmed.


author: Paul Ward, Associate Justice.

text:
    Manhattan Credit Co., Inc. v. Skirvin.
    5-1502
    311 S. W. 2d 168
    Opinion delivered March 17, 1958.

      Talley & Owen and William L. Blair, for appellant.

      Spencer & Spencer and Gentry & Gentry, for ap-pellee.
   Paul Ward, Associate Justice.

Appellee, A. Y. Skirvin, sued appellant, Manhattan Credit Company, Inc. for the conversion of an automobile, and was awarded actual damages in the amount of $500 and the same amount for punitive damages. For a reversal, appellant prosecutes this appeal.

Because of the disposition which we make of the several issues presented for decision, we deem it necessary to make only a summary statement of the facts leading up to this litigation. On April 9, 1955 appellee purchased a 1955 Ford from Rebsamen Motors in Little Rock, executing a conditional sales contract for a balance of $2,233.50, payable in monthly installments of $74.45 each. When, after several payments had been made, two installments became delinquent, appellant (transferee of the sales contract from Rebsamen Motors) repossessed the automobile in Dallas, Texas.

One. Appellant contends that there was a peaceable retaking of the car under the terms of the sales contract as construed by the laws o.f Arkansas. We find no merit in this contention for the very good reason that this question is by-passed by the verdict of the jury. Ap-pellee admits that two installments were past due when the car was re-possessed by appellant, but he testified that he had an agreement with appellant that it would extend the time for making said delinquent payments until a certain day — February 24, 1956 — and it is not denied that the car was repossessed before that date. Appellant denied entering into such an agreement, but the jury, under proper instructions, found otherwise. Although there was no consideration for appellant’s agreement for such extension of time to pay, as is contended by appellant, yet it was binding. See: General Motors Acceptance Corporation v. Hicks, 189 Ark. 62, 70 S. W. 2d 509. Thus we must conclude that there was a conversion of the automobile in question.

Two. It is strenuously insisted by appellant that appellee proved no actual damages, and we must agree. It is agreed that appellee owed a balance of $1,637.95 on the automobile when it was converted. The highest value placed upon the automobile at the time of taking, fixed by appellee’s own witness, was $1,595. This fact, however, did not preclude appellee from the right of showing other damages such as inconvenience, extra expense, embarrassment etc. We have carefully read the testimony of appellee and fail to find where any such damages were shown and certainly none were evaluated.

We hold, however, since there was a conversion and, consequently an invasion of appellee’s rights, he is entitled to nominal damages which we fix at $10. This procedure is authorized by Barlow v. Lowder, 35 Ark. 492; Dilley v. Thomas, 106 Ark. 274, 153 S. W. 110, and; Adams v. Adams, 228 Ark. 741, 310 S. W. 2d 813.

Threa. This question then arises: Will nominal damages support a judgment for punitive damages? We find the authorities in general are hopelessly in conflict on this question, but since the conversion in the case under consideration occurred in Texas we must look to the decisions of that state. See: 11 Am. Jur. page 490, Conflict of Laws § 182, and Leflar on Conflict of Laws page 200.

Of the numerous Texas decisions dealing with nominal and punitive damages, we have been able to find only two which are fairly well in point. They are Anderson v. Alcus, (Tex. Civ. App.) 42 S. W. 2d 294, and Postal Telegraph & Cable Co. v. Bacher, (Tex. Civ. App.) 90 S. W. 2d 620. In the first case Alcus sued for actual and punitive damages on the grounds of libel and slander. The jury allowed nothing for actual damages but gave $50 for punitive damages. The trial court gave judgment however for one dollar nominal damages. On appeal the Civil Court of Appeals of Texas had this to say:

“The jury having found that appellant was guilty of uttering the slanderous words charged, then in law appellee, in the absence of a finding of actual damages in his favor, was entitled at least to nominal damages, Avhich would have entitled him to judgment for the nominal damages found. See cases cited in Digest of Texas Reports, vol. 5, p. 839. Nominal damages are not actual damages, and will not support exemplary damages, as will actual damages. There is a clear distinction in the definitions of ‘nominal,’ ‘actual,’ and ‘exemplary’ damages. The words ‘actual damages’ are used as synonymous with ‘compensatory damages’; that is, damages given as an equivalent for the injury done. ‘ Exemplary damages’ are damages imposed by way of punishment, and are given for that purpose, in addition to the compensation for a loss sustained. ‘Nominal damages’ are a small and trivial sum awarded for a technical injury due to a violation of some legal right, and as a consequence of which some damages must be awarded to determine the right. 17 C. J. pp. 710-714. In numerous decisions of our own courts, it has been held that, on any invasion of a right, damages are inferred in law so as to justify the award of a nominal or trifling sum.”

In the Bacher case, supra, the cable company was sued for failure to properly transmit a message, and only nominal damages were shown. On appeal, the court said: “Plaintiff having shown a right to nominal damages only, there was no basis for exemplary damages.” On rehearing when it was pointed out that appellee had suffered actual damages in the amount of 60 cents paid for the message, the court further said: “But we believe that actual damages in the sum of 60 cents would not warrant the award of exemplary damages . . .”

Bour. On cross appeal it is urged by appellee that the conditional sales contract was void because of usury. The basis for appellee’s charge of usury is that he did not request life insurance and, also, that he was charged an excessive insurance rate based on a wrong occupational classification. In rejecting appellee’s contention we deem it sufficient to point out both items objected to involved questions of fact that were submitted to the jury under instruction No. 2 submitted by him, and given by the court over the objections of appellants. This being true he cannot be heard to complain on appeal.

In accordance with the views above expressed, the judgment of the trial court is reversed, and the cause is remanded with directions to enter judgment in favor of appellee for nominal damages in the sum of Ten Dollars.