author: Ward, *J.

text:
    Chiotte v. Chiotte.
    5-686
    279 S. W. 2d 296
    Opinion delivered May 23, 1955.

      Wright, Harrison, Lindsey & Upton, for appellant.

      Jack Holt and John P. Park, for appellee.
   Ward, *J.

This appeal presents two issues: (a) Res judicata, and (b) sufficiency of the evidence to establish bona fide residence in a divorce action.

On July 26,1954, appellee, John E. Chiotte, filed suit for divorce against appellant, Angela M. Chiotte, alleging eight years separation. On August 20, 1954, appellant appeared specially and moved ¿he court to dismiss appellee’s complaint on the ground that he was not a bona fide resident of Arkansas. On September 1, 1954, appellant appeared specially and filed an amendment to her original motion to dismiss, stating that appellee filed a petition for divorce on June 1, 1953, which petition he voluntarily dismissed, and that appellee filed another petition for divorce on January 29, 1954, which the court dismissed for want of jurisdiction. The chancellor deferred action on the motion and amended motion to dismiss until after he heard appellee’s testimony on his divorce petition, and on September 28, 1954, he dismissed said motion and amended motion and entered a decree of divorce in favor of appellee. This appeal followed.

(a) Res judicata. We cannot agree with appellant that the disposition made of the first two divorce suits is res judicata of this action. The record shows that the second divorce suit was dismissed by the court for lack of jurisdiction on May 17, 1954, which simply means that the trial court, as of that date, was of the opinion that the testimony did not show appellee to he a bona fide resident of Arkansas. The first divorce action was voluntarily dismissed by appellee less than a year before this suit was instituted. As stated in 30 Am. Jur., page 918, § 174, ‘ ‘ In the application of the doctrine of res judicata, if it is doubtful whether a second action is for the same cause of action as the first, the test generally applied is to consider the identity of facts essential to their maintenance, or whether the same evidence would sustain both. . . . If, however, the two actions rest upon different sets of facts ... a judgment in one is no bar to the maintenance of the other. It has been said that this method is the best and most accurate test as to whether a former judgment is a bar in subsequent proceedings between the same parties, and it has been designated as infallible.” The above stated rule, which is generally recognized, is peculiarly applicable to the case under consideration. Bearing in mind that, as we have heretofore held, the facts constituting residence must exist at the time a divorce suit is filed, it is obvious that the facts relative to appellee’s being a bona fide resident of Arkansas might he [and they are] entirely different on July 26, 1954, when the present action was begun from those existing on June 1, 1953, and January 29, 1954, when the former divorce suits were filed respectively. For this Court to hold otherwise would lead to an absurdity, for then, if a person once failed to establish a residence in this state, he would forever be precluded from doing so in the future. Appellant recognizes, in her brief, the validity of this principle, but insists it does not apply here because the facts [indicating residence] are identical in both instances. We cannot agree with appellant. When this suit was filed appellee had not only resided longer in Arkansas but he had indulged in additional activities indicating a bona fide residence.

(b) Sufficiency of the evidence. The testimony on' behalf of appellee, uncontradicted by any testimony on behalf of appellant, is substantially as follows: Appellee and his wife lived together in Peoria, Illinois, until they separated in the early part of 1947. After that Mrs.. Chiotte resided in her home and appellee moved to a hotel where he lived until March 1953 when he moved to Little Bock. During the years mentioned appellee was the principal owner and president of the Western Coal and Fuel Company, from which business he was drawing a salary of $833 per month. He drew this same salary after coming to Little Bock until January 1954. From this date until August 1954 he drew a salary of $400 per month after which time he has been drawing a salary of $200 per month. As heretofore stated he filed the first divorce suit against his wife on June 1,1953, which he voluntarily dismissed, and filed the second suit January 29, 1954, which the court dismissed because of lack of jurisdiction. After his separation appellee kept company with Mrs. Mildred Schwiette in Peoria, and in December 1953 he and Mrs. Schwiette purchased the Betreat Café on West Seventh Street in Little Bock for $6,000, $2,000 of the purchase price being paid at the time. The two have jointly owned and operated the café continuously since the date of purchase. Mrs. Schwiette lives in North Little Eock and appellee lives in rooms adjoining the café, and they have a joint bank account at the Union National Bank. Appellee works regularly in the café except that he takes off occasionally for fishing or recreation. Since coming to Arkansas he has gone back to Illinois only twice, the first time for three months in the latter part of 1953 and the second time for four days in August 1954, when he attended a board meeting.

Appellee states that he is afflicted with arthritis and for that reason came to Arkansas for his health, and that he intends to make this his permanent residence. Appellee testified that he has assessed his property and paid Ms taxes here, has bought State and City automobile licenses, and has purchased or renewed business licenses five times. Several other witnesses corroborated appellee as to the fact that he works in the café and purchases supplies for the same and that he has continuously lived in Arkansas since early 1953.

Under the above factual situation as disclosed by the record we cannot say that the chancellor’s finding that appellee was a bona fide resident of Arkansas is not supported by the evidence. It is true, as stated in May v. May, 221 Ark. 585, 254 S. W. 2d 957, that appellee 4‘must in fact and in truth be a bona fide resident of Arkansas and that such residence must be shown by overt acts sufficient to demonstrate a real and bona fide intent to acquire such a residence.” However, the question of whether appellee is a bona fide resident of Arkansas with the intention of remaining here and making this State his home is, as stated in Walters v. Walters, 213 Ark. 497, 211 S. W. 2d 110, “purely a question of fact.” Obviously no court can look into the mind of a person and say with confidence what his intentions are, therefore the necessity of looking to “overt acts” for corroboration or contradiction of the person’s expressed intentions. In determining this difficult question of fact in similar cases this Court has frequently followed the decision of the trial court and lias always done so unless the testimony shows the trial court to have held contrary to the weight of the testimony.

The facts in the case under consideration are somewhat similar to those in the ease of Knaus v. Knaus, 223 Ark. 517, 267 S. W. 2d 16. In the cited case the parties lived in Pennsylvania and had not lived together since 1945. The husband came to Little Bock in June 1952 and filed suit for divorce on August 28, 1952. Testimony in his behalf showed that he had moved his belongings to Arkansas, opened a bank account, rented an apartment, paid taxes and had done other things tending to show that he had become a permanent resident of this State. In an effort to discredit his testimony it was shown that when he came to Arkansas a divorce suit was still pending in Pennsylvania and also that he had been absent from Arkansas approximately twenty-eight days. The trial court in the cited case concluded that a bona fide residence had been shown and we approved that finding. In doing so we said: “As in most cases of this kind, turning upon a question of subjective intent, the issue is not free from doubt and might with some plausibility be decided either way. The chancellor concluded that the appellee is acting in good faith, and we cannot say that his conclusion is contrary to the weight of the testimony. ’ ’

Appellant, in support of her contention for a reversal, cites Walters v. Walters, supra, May v. May, supra, and Hart v. Hart, 223 Ark. 376, 265 S. W. 2d 950, but we think these cases are obviously distinguishable and are in harmony with the conclusion we have reached. In the first case the opinion shows that appellant virtually admitted he claimed to be a resident of Nebraska at the time he filed his suit in this state, and in the latter two cases the evidence [tending to show residence here] was different from [and weaker than] the evidence in this record, and, also, we upheld the trial court in both instances.

Finding no error, the decree of the trial court is affirmed.


source: Caselaw Access Project

author: Robinson, J.

license: Public Domain

text:
    Spain v. Jean.
    5-681
    279 S. W. 2d 283
    Opinion delivered May 23, 1955.

      L. B. Smead and McKay, Anderson & Grumpier, for appellant.

      Bernard Whetstone, for appellee.
   Robinson, J.

The property line between neighbors is the issue. In December, 1934, appellants M. C. Spain and his wife, Daisy Spain, acquired by purchase from the Tri-State Savings & Loan Association a lot in El Dorado, hereinafter referred to as Lot 3. At that time, the lot adjoining on the north, herein called Lot 2, was owned and occupied by people named Schaff. Lot 2 is now owned by appellees Grady Jean and his wife Sallie.

The agent for the Savings & Loan Association pointed out what he claimed was the property line between the two lots. This line extends from the door facing on the Jean’s servant’s house on the west to a large crack in the sidewalk on the east. There is a large oak tree a few feet south of the crack in the sidewalk. A straight line from the southeast corner of the servant’s house to the crack in the sidewalk would be diagonal to the true dividing line between the lots as shown by the plat; but a line from the corner of the servant’s house to the center of the oak tree would be parallel to the east and west property line. As shown by a survey, the correct line dividing the two lots is 7 feet 8 inches south of the line from the southeast corner of the servant’s house to the oak tree. According to the plat, this 7 feet 8 inch strip is part of Lot 2.

The Chancellor held that the Spains, owners of Lot 3, had acquired this strip by adverse possession. The Spains appealed, contending that they have acquired by adverse possession that part of Lot 2 up to the crack in the sidewalk which is about 4 feet north of the oak tree. The appellees, Grady Jean and his wife Sallie, have cross-appealed, contending that the evidence does not justify a finding that the Spains have acquired any part of Lot 2 by adverse possession.

According to the plat, the northeast corner of Spain’s house is on the property line, and the northwest corner is only about six inches from the line. If the plat is correct, and there is no showing to the contrary, a mistake as to the proper line must have been made at the time the Spain house was built. In the circumstances existing here, where there does not appear to be any good cause for building right up to the property line, it is unreasonable to believe that the house was intentionally constructed in that manner. No average person would suspect that a house had been built right on the line, and when the agent for the Savings & Loan Association pointed out the line as being several feet north of Spain’s house, .there was no reason to question his statement. At the time Spain made the deal for the property, there was a rose,trellis which extended east from the southeast corner of the servant’s house. This trellis appeared to indicate the line between the two lots. At that time there was also a large hedge at the rear of the west side of Lot 3 which extended north to a point about six inches past the south side of the servant’s house on Lot 2.

After Spain bought the property, he maintained it and cut the grass to the line pointed out by the Savings & Loan agent. He fertilized the yard and planted various kinds of grass as well as a rose bush and a banana fruit tree up to the line he now claims. Spain and Schaff, the former owner of Lot 2, never had a dispute over the dividing line. However, it also appears that Schaff actually claimed past the crack in the sidewalk up to the oak tree. L. W. McGaugh testified that he worked in the yard for Schaff and was instructed to work up to a line from the servant’s house to this oak tree.

When Jean, the present owner of Lot 2, decided to build a wall separating the two lots, the workmen he employed stretched a string from a few inches south of the servant’s house to the center of the oak tree, indicating the place Jean intended to build the wall and that he was also claiming to that point.

The Chancellor made a trip to the property and looked over the situation. After considering the entire case, he made a finding that Spain had acquired by adverse possession the south 7 feet 8 inches of Lot 2. When this strip is added to Lot 3, it appears that the dividing line would then be about where Jean intended to build the wall in the first place. We cannot say the Chancellor’s finding is contrary to a preponderance of the evidence.

Affirmed on appeal and on cross-appeal.

Mr. Justice George Rose Smith dissents as to affirmance on cross-appeal.

The Chief Justice not participating.


author: J. Seaborn Holt, J.

text:
    Pierce v. Stirling.
    5-691
    279 S. W. 2d 840
    Opinion delivered May 30, 1955.

      Rose, Meek, House, Barron £ Nash, Phillip Carroll, Little Rock, for appellant.

      Robert J. White, Russellville, for appellee.
   J. Seaborn Holt, J.

March. 31, 1954, appellant Pierce, a resident of Albuquerque, New Mexico, brought suit against appellee Stirling, an Arkansas resident, alleging in his complaint that: ‘ ‘ During a period including February, 1949, to July 29, 1949, plaintiff was a G-eneral Agent for Reserve Loan Life Insurance Company of Texas and defendant was appointed by the plaintiff as a special agent of that company.

“During the aforementioned period, Reserve Loan Life Insurance Company of Texas, at the request of the plaintiff (Pierce), made cash advances to the defendant (Stirling) as follows: . . .,” in the amount of $2,125.

“On July 29, 1949, Reserve Loan Life Insurance Company of Texas (including its accounts receivable) was purchased by Southland Life Insurance Company. Plaintiff and defendant continued in the same capacity with the new company.

‘ ‘ Thereafter, the following cash advances were made to the defendant by Southland Life Insurance Company at the request of the plaintiff,” in the amount of $600.

“The total of all advancements made to defendant is $2,725. Defendant is entitled to credits in the amount of $903.15, leaving a balance owing of $1,821.85.

“On April 25, 1951, it became apparent that the defendant was not going to liquidate the account and the last mentioned balance was transferred to the account of the plaintiff who thereby became primarily obligated under the terms of his contract with the insurance company, and said account was paid by the plaintiff. ’ ’

Stirling answered denying every material allegation in the complaint and alleged that he was employed by Pierce at a guaranteed salary of $300 per month for a period of three years beginning February 1949, that on July 25, 1949, his contract of employment by mutual agreement with Pierce was terminated and all obligations thereunder cancelled and settled.

“That under the terms of said agreement, the defendant was to be paid a guaranteed salary of $300 per month, against which would .be credited all earnings of the defendant from the sale of life insurance, and that in the event the earnings or commissions should exceed the minimum guaranteed salary, the excess should be paid to the defendant.

“That upon the sale of the Reserve Loan Company to the Southland Company, a complete account and satisfaction was had by plaintiff and defendant, and thereafter, plaintiff became general agent for the Washington National Life Insurance Company, and a new contract was entered into by plaintiff and defendant, which continued until the defendant left the employment of plaintiff in the year of 1952.” He further pleaded as a defense the statute of limitations as a complete bar.

Trial was had and at the close of all the testimony the court granted the motion of Stirling for a directed verdict in his favor on the ground that the debt was barred by the statute of limitations as a matter of law. This appeal followed.

For reversal appellant says: “The Court erred in holding that the plaintiff’s (Pierce) cause is barred by the Statute of Limitations because plaintiff’s original relationship was one of surety to the defendant (Stirling) on the defendant’s obligation to the Reserve Loan Life Insurance Company. Plaintiff made payments on his principal’s obligation before the Statute of Limitations had passed on his principal’s debt, tolling the Statute of Limitations as to him, the surety. Thus, the payments later made by the surety, which are the subject of this suit, were all made within the period of the Statute of Limitations. . . .

“This suit, brought by the surety to recover from his principal on the implied obligation of indemnity, was filed within three years of the time of payment by the surety.” In short, Pierce argues that the trial court erred in taking from the jury the disputed fact question, (a) whether appellant’s relationship to Stirling was one of surety for Stirling on Stirling’s alleged obligation to the insurance company, and also, (b) whether Pierce had released Stirling from any and all liability. The testimony on these two issues appears to be conflicting.

It is well settled that when this court is called upon to determine the correctness of the action of a trial court in directing a verdict for either party, the rule is that where there is. substantial evidence to establish an issue in favor of the party against whom the verdict is directed, it is error to take the case from the jury, and in determining this question that view of the evidence must be taken that is most favorable to the party against whom the verdict is directed. Gray v. Magness, 200 Ark. 163, 138 S. W. 2d 73, and cases there cited. Guided by the above rule, after reviewing the evidence, we have concluded that the court erred in taking the case from the jury.

In Fausett Builders, Inc. v. Globe Indemnity Co., 220 Ark. 301, 247 S. W. 2d 469, we defined surety in this language : ‘ ‘ Suretyship may be defined as a contractual relation whereby one person engages to be answerable for the debt or default of another. . . . The terms of the contract of which the surety promises performance must be read into his own contract. The principal’s contract and the bond or undertaking of the surety are to be construed together as one instrument. . . . The suretyship contract must be express, as the surety’s promise will never be enlarged to cover the implications growing out of the language employed.”

Pierce testified in effect that he arranged with his principal, Insurance Company, to make the advances by its voucher direct from the insurance company to Stirling, and they were so made. They were not made first to Pierce and then advanced to Stirling. He testified that he acted only as surety for repayment to his principal insurance company of all these advances. Pierce’s general agent’s contract provided: “RESPONSIBILITY : You will be fully responsible for the life insurance accounts and activities of agents appointed by you or transferred to you by the Home Office. ’ ’ The sequence of happenings after the last advance made by the insurance company on September 15, 1949, appear to be: From September 15, 1949, to April 25, 1951, credits were applied by the insurance company to the account from Stirling’s renewal commissions. Pierce was called upon by the company to satisfy Stirling’s indebtedness and it applied Pierce’s renewal commissions on Stirling’s account to the extent of $848.89 during the remainder of 1951. During 1952 $930.92 of Pierce’s commissions were applied on the account and on January 1, 1953, a balance of $42.04 due on the account was taken from Pierce’s commissions and the account paid in full. February 16, 1953, Pierce called upon Stirling to reimburse him (Pierce), and Stirling refused. Pierce then, as indicated, sued Stirling on March 31, 1954.

While Pierce’s general agent’s contract with his principal insurance company was entered into in New Mexico, the Arkansas statute of limitations, the law of the forum, must and does control. Chicago, R. I. & Pac. Railway Co. v. Lena Lumber Co., 99 Ark. 105, 137 S. W. 562. See, also, 11 Am. Jur., Conflict of Laws, § 191, p. 505.

Pierce’s testimony Avhich is sharply disputed by Stirling was that the advances, or loans, were made to Stirling and that he, (Pierce), guaranteed their repayment to the company, and that he had never released Stirling from any liability. It appears that Pierce was called upon by the company to pay the balance due on Stirling’s account about nineteen months after the last advance was made to Stirling, and beginning on April 25, 1951, Pierce’s renewal commissions were credited as indicated on the Stirling account until it was paid in full in January, 1953. Thus more than four and one-half years had passed since the last advance to Stirling when suit was filed. If, as Pierce testified, the advances were made to Stirling by the company and Pierce as surety guaranteed their repayment, then his cause of action against Stirling to be reimbursed by Stirling, if Pierce had any such right, was not according to Pierce’s testimony, then barred. The fact that the statute of limitations might bar any claim of the company against Stirling did not necessarily prevent Pierce, if he were in fact a surety for Stirling, and after he had paid the account to the company, from claiming that Stirling should indemnify him, within the three-year period of limitations. “It is held in many jurisdictions that if the surety pays a debt which is at the time barred by limitation as against the principal, but is a valid obligation against the surety, such surety may recover against the principal, or against his estate in case of his death. The right of action in favor of the surety arises when he pays the debt, and is not based upon the original debt itself, but upon the implied contract of indemnity which exists by law between the principal and surety.” 50 Am. Jur. 1062 (Suretyship, § 237). And, in Elder, Steam’s Law of Suretyship 523 (5th Ed., 1951), we find this language: “Where, for example, the running of the period of limitations has barred recovery from the principal, but not from the surety, the non-liability of the former does not impair the surety’s right of indemnity. Thus, where no claim is asserted by the holder of a note against the maker, but judgment is obtained against the surety, who pays the judgment after the right of action by the holder against the maker is barred by the statute of limitations, the surety may recover from the principal.

Accordingly, the judgment is reversed and the cause remanded for a new trial.

George Rose Smith, J., not participating.


author: Ed. E. McFaddin, Justice.

text:
    Woodruff Electric Co-op v. Weis Butane Gas Co., et al.
    5-667
    279 S. W. 2d 564
    Opinion delivered May 30, 1955.

      Norton & Norton and John D. Eldridge, Jr., for appellant.

      Daggett & Daggett, Mann S McCulloch, Ronald A. May and Wright, Harrison, Lindsey S Upton, for appellee.
   Ed. E. McFaddin, Justice.

This is the second appeal of this case. The first appeal involved only the matter of venue: the present appeal challenges the giving and refusing of certain instructions in the trial. The appellant is Woodruff Electric Cooperative Corporation (hereinafter called “Woodruff”). The appellees are Woodrow James (an individual) and Weis Butane Gas Company (hereinafter called “Weis Butane”).

This case resulted from a series of traffic mishaps which occurred on U. S. Highway 79 about 2% miles west of Marianna. At the place of the traffic mishaps the highway runs in an east and west direction; the concrete pavement is 23 feet wide with a suitable gravel shoulder, dirt shoulder and borrow pit on each side of the highway. About 6 p. m. February 27,1951, a Chevrolet sedan, going-west, collided with a Farmers’ Supply truck going east, causing several persons to be injured. The Farmers’ Supply truck went off the highway into the south side borrow pit and the Chevrolet sedan came to rest crosswise the highway, occupying all of the south lane of the concrete slab and a small portion of the north lane.

Immediately after this traffic mishap a Nash car driven by Captain and Mrs. Fagan, arrived at the scene and stopped on the north side of the highway, either on the concrete slab or the gravel shoulder. The Fagan car, facing west and with its headlights on, stopped a short distance west of the Chevrolet sedan. The Fagans stopped so that they could render aid to the injured parties. At about the same time the Weis Butane truck going east stopped on the gravel shoulder on the south side of the highway just west of the Chevrolet sedan. Woodrow James, the driver of the Weis Butane truck, also stopped to render aid to those injured in the Chevrolet sedan-Farmers’ Supply truck mishap. Woodrow James and Captain and Mrs. Fagan assisted in loading the three injured parties into a vehicle going to Marianna ; and the Fagans Avere in the process of giving their names and addresses to James, when the Woodruff truck came from the west and crashed into the rear of the Weis Butane truck, resulting in the claims and counter-claims that are involved in the present case.

Woodruff filed action against Weis Butane and Woodrow James for damages to the Woodruff truck, and claimed: (1) that James had stopped on the highway, without having his rear lights burning or without putting out flares; and (2) that the headlights of Captain Fagan’s car caused the driver of the Woodruff truck to be unable to see the Weis Butane truck. After the venue question was settled in the first appeal, as previously mentioned, Weis Butane and Woodrow James each filed answer and cross-complaint alleging: (1) that the driver of the Woodruff truck was solely negligent, and (2) that such negligence resulted in property damage to Weis Butane and physical injuries and loss of earning capacity to Woodrow James. Trial to a Jury resulted in a verdict and judgment for Woodrow James for $6,250 and Weis Butane for $2,500. Woodruff brings this appeal and presents four points, all relating to the giving or refusing of instructions. The total instructions given by the Court consume 17 typewritten pages in the transcript.

1. Defendant’s Instruction No. 6. This instruction, as given by the Trial Court, reads:

(A) “You are instructed that, as a general rule, the test of whether one is to be charged with negligence because of his acts in particular circumstances is to be measured by a legally established standard of conduct; that is, whether he acted as a reasonably prudent person would have acted under the same or similar circumstances.

(B) “You are instructed, however, that when one is impelled by humanitarian impulses, those human instincts which prompt people to aid others who are in danger, the law itself makes allowances within the scope of the established standard for his acts in such circumstances, and he is not held to as high a degree of care or caution as he would ordinarily be.

(C) “So, in this case, if you should find from a preponderance of the evidence that at the time of the collision complained of, Woodrow James was acting under the stress of a situation with which he was suddenly confronted, and as a result of which he might reasonably have thought others were in peril of substantial injury or loss of life, and further find that he acted as he did in an endeavor to render aid to those he reasonably thought were injured or in danger; and, if you further find that in so acting he did as the ordinarily prudent person would have done when confronted by the same circumstances and conditions, then you are instructed that you should take all of these factors into consideration in determining whether Woodrow James was guilty of negligence as charged in the complaint. ” (Paragraph letters and italics are our own.)

Appellant objected in the Trial Court to this instruction for three reasons which we now list and discuss:

1. The first objection was that the instruction “. . . ignores the fact that it is possible that the emergency had passed at the time of the accident here involved. ’ ’ The testimony showed that Captain and Mrs. Pagan stopped their car at practically the same time that Woodrow James stopped the Weis Butane truck; that James and the Pagans supervised the loading of the three injured persons into a passing vehicle and sent them to Marianna for medical aid; that Captain Pagan stated that he was en route to Pt. Hood, Texas, on military orders for arrival at a definite time and could not delay any longer; that he offered to give his name and address to Woodrow James to be delivered to the proper persons; and that while James and the Pagans were writing out this information the Woodruff truck drove into the rear of the Weis Butane truck causing the injuries and damages involved in this present litigation. Thus only a few minutes elapsed from the time of the arrival of James and the Pagans until the Woodruff-Weis Butane collision. Paragraph (C) of the instruction submits ■to the Jury the decision of the question, whether “. . . at the time of the collision - complained of Woodrow James was acting under the stress of a situation, . . .” etc. If Woodrow James stopped because of the “rescue doctrine” and was continuing to act for such reason then the objection to the instruction is without merit. The “rescue doctrine” is now to be discussed.

2. The second objection to the Instruction No. 6 is “. . . that it is not pertinent to the situation.” We find this objection to be without merit. This Instruction No. 6 is framed to submit to the Jury the “rescue doctrine.” In Central Coal & Coke Co. v. Porter, 170 Ark. 498, 280 S. W. 12, we had occasion to consider this doctrine and Mr. Justice Humphreys, speaking for the Court, there said:

“Under the rescue doctrine, human life being involved, a liberal rule prevails with relation to contributory negligence. In such cases one is called upon to act quickly AYithout much time to consider results, and is not held by the law to as strict account as AAdien performing-ordinary acts in doing his Avork. The laAv excuses him when engaged in extraordinary duties or emergencies to save the life of human beings, unless his act is rash and reckless. The rescue doctrine is Avell stated in syllabus No. 1 in the case of Corbin v. Philadelphia, 195 Pa 461, 45 A. 1070, 49 L. R. A. 715, 78 A. S. R. 825, which is as follows: ‘A rescuer Avho, from the most unselfish motives, prompted by the noblest impulses that can impel man to deeds of heroism, faces deadly peril, ought not to hear from the May Avords of condemnation of his bravery, because he rushes into danger to snatch from it the life of a felloAY creature, imperiled by the negligence of another, but he should rather listen to Avords of approval unless regretfully Avithheld on account of the unmistakable evidence of his rashness and imprudence.’”

In the case at bar, Woodrow James had stopped to render aid to the injured parties. He had driven the Weis Butane truck entirety off the concrete slab and on the gravel shoulder of his extreme right side of the highway and had left all of his front, rear and side lights burning. Thus Woodrow James was certainly in the role of a rescuer and some instruction on the rescue doctrine was clearly pertinent to the situation existing at the time James received his injuries.

3. The third objection offered by appellant to the Instruction No. 6 was “. . . that it unduly singles out for consideration the humanitarian instinct of the driver of the Butane truck, Woodrow James, and Captain and Mrs. Fagan, the driver of the Nash.” We find no merit in this objection. In stopping to render aid, the Fagans and Woodrow James did only what , good people have been urged to do ever since the parable of the Good Samaritan as contained in Holy Writ. As previously mentioned, there were many instructions in the case. The Court had prefaced all of them by saying :

“You are instructed that you are not to single out any one of these instructions and consider it alone, but you are to take the instructions altogether and consider them altogether as one harmonious whole as the law in this case.”

Then, after other instructions, the Court had told the Jury:

‘ ‘ If you find from a preponderance of the testimony that Woodrow James was guilty of any negligence and that such negligence was the proximate cause of the collision in which plaintiff’s truck was damaged then you will find for the plaintiff, Woodruff Electric, in such amount as will fairly compensate it, under the other instructions of this Court, unless you should find that the plaintiff was guilty of negligence which caused or contributed in any degree, however slight, to the collision, in which event the plaintiff cannot recover.”

The Court then gave a series of instructions on the applicable traffic Statutes; and in Instruction No. 5, said:

“The Court in these instructions has referred to certain traffic laws of Arkansas. If you find that any party or parties violated any traffic law or laws as defined in these instructions, such violation,' if any, does not constitute negligence in and of itself, but is only evidence for you to consider, along with all other evidence in the case, in determining whether such party was guilty of negligence.”

Immediately following the last quoted instruction the Court gave the Instruction No. 6 here challenged. We give all of the foregoing to show that Instruction No. 6 did not “. . . unduly single out for consideration the humanitarian instinct.....” While the Instruction No. 6 is long and not worded as smoothly as it should have been, and certainly not to be used as a model in other cases, nevertheless it is a good instruction against the objections made by the appellant. What the instruction really says is, that what the ordinarily prudent person would do in an emergency situation is the test in rescue matters, rather than what the ordinarily prudent person would do in a non-emergency situation. The language that saves the instruction from fatal error is found in the last paragraph thereof, and heretofore italicized by us, to-wit:

“. . . and if you further find that in so acting he did as the ordinarily prudent person would have done when confronted by the same circumstances and conditions. . . .”

The conduct of the ordinarily prudent person under the same or similar circumstances was used as the yardstick by which to measure the conduct of Woodrow J ames.

II. The Trial Court Refused to Give the Plaintiff’s Instruction No. 12, which reads:

“If you find that Woodrow James violated any of the State laws referred to, and you find also that the violation was the proximate cause of the collision, then your verdict should be for the plaintiff, unless you are convinced by a preponderance of the evidence that defendant was not guilty of negligence, or, by á preponderanee of the evidence, that plaintiff was guilty of contributory negligence.”

The Trial Court was correct in refusing to give this instruction. It was a binding instruction and one designed to emphasize a claim that the burden of proof shifted in the ease. Certain language of this Court in Herring v. Bollinger, 181 Ark. 925, 29 S. W. 2d 676, was seized on by the appellant as the basis for this instruction. But such language in the cited case was not designed to support such an instruction. Insofar as the Instruction No. 12 was correct it was covered by the defendant’s Instruction No. 5 which was given and which reads:

“The Court in these instructions has referred to certain traffic laws of Arkansas. If you find that any party or parties violated any traffic law or laws as defined in these instructions, such violation, if any, does not constitute negligence in and of itself, but is only evidence for you to consider, along with all other evidence in the case, in determining whether such party was guilty of negligence.”

III. The Court Gave the Defendant’s Instruction No. 8 which permitted the Jury to consider as an element of damages, Woodrow James’ loss of earning, past, present and future; and the appellant complains of the instruction. The complaint alleged the loss of earnings, past, present and future. There was evidence that Woodrow James had been in the hospital and incapacitated for a considerable period of time; and the appellant introduced into the record a medical report dated May 4, 1951 (more than 60 days after the accident), which report said of Woodrow James: “Patient may return to his old occupation with a permanent loss of 5%> of his earning-capacity.” In view of the foregoing, and also of other evidence in the record, we hold that the Trial Court committed no error in giving defendant’s Instruction No. 8.

IY. Along with other instructions on the highway safety statutes and the traffic laws, the Court, gave an instruction to the Jury almost verbatim from % 75-652, Ark. Stats., concerning more them three people in the driver’s seat of a car. Appellant says that this instruction should not have been given; but the evidence shows that four men were riding in the front seat of the Wood-ruff truck at the time it drove into the rear of the Weis Butane truck. One of the four persons testified that he could not see to the left because the head of one of his companions was in the way. In view of this testimony, and other in the record, the case of Warren v. Hale, 203 Ark. 608, 158 S. W. 2d 51, is authority for the Court to give the instruction herein challenged.

Affirmed.

       For first appeal, see Woodruff Electric Cooperative Corporation v. Weis Butane Gas Company and Woodrow James, 221 Ark. 686, 255 S. W. 2d 420.

       For Annotations on the rescue doctrine see 19 A. L. R. 4 and 158 A. L. R. 189. See. also, American Law Institute’s Re-Statement on “Torts,” Vol. 2, § 472; and 166 A. L. R. 752.


author: Minor W. Millwee, Justice. Bobinson, J.,

text:
    Alphin, Excr. v. Alphin.
    5-694
    279 S. W. 2d 822
    Opinion delivered May 30, 1955.
    [Rehearing denied June 27, 1955.]

      J. S. Brooks, Spencer S Spencer and Wright, Harrison, Lindsey S Upton, for appellants.

      L. B. Smead, Robert C. Compton and Walter L. Brown, for appellees.
   Minor W. Millwee, Justice.

Appellee, J. Hendricks Alphin, brought this suit against appellant, Sam D. Alphin, individually and as executor of the last will of James A. Alphin, deceased, seeking specific performance of an alleged oral contract between appellee and the said James A. Alphin whereby the latter agreed to execute a will leaving to appellee one-half of the property received by James A. from his father J. S. Alphin, who was also the father of appellee and appellant. In the decree appealed from, the chancellor found that a valid oral contract was made and a will executed pursuant thereto; and that appellee was entitled to specific performance of the contract which had been fully performed on his part.

Appellee is the son of J. S. Alphin by his first wife who died in 1909. Sam D. and James A. Alphin are the sons of J. S. Alphin by a second marriage to Mary Armstrong who died in 1929 leaving a sizable separate estate to her two sons. The three sons are the sole heirs of J. S. Alphin who died in 1943. Appellee is 28 years older than appellant and 30 years older than James A. who died suddenly of polio in 1952.

J. S. Alphin was a successful businessman in El Dorado, Arkansas, for many years and owned considerable real property in and around that city. Because of his age and poor state of health he transferred all his property to his three sons by gift deed in 1937. Although appellee and appellant had previously been made trustees of the estate, appellant and James executed power of attorney to appellee who assumed the primary responsibility of managing and directing the estate which was left intact and operated under the name of “Alphin Properties.” At the time of the transfer J. S. Alphin was indebted to appellee in the sum of approximately $41,000 and owed the other two sons jointly about ■ $50,000. There was other indebtedness of about $12,500 against properties valued at more than $400,000. The loan by appellee was from funds realized from an investment in oil producing land and the joint loan by the other two sons was from funds inherited from their mother. Appellee also inherited from his mother a block in the city of El Dorado which he deeded to his father in 1912. This block subsequently became the most valuable single tract of Alphin Properties. In discharging the family indebtedness appellee was paid interest on his loan to his father but no interest was paid to Sam and James on their loan.

Appellant and James were in school and military service much of the time from 1937 to 1945. During this period appellee had exclusive management of Alphin Properties for the three owners and also directed management of the household of their father until his death in 1943. Sam married and after 1945 lived in El Dorado and assisted in the operation of the properties. In addition he was interested in the ownership and operation of a cold storage plant and a well drilling outfit. After his discharge from the military service James continued in school for a time. In the spring of 1948 he and appellant became the owners of a soft drink bottling company in Monterrey, Mexico, where James spent most of the time in managing and operating the plant until his death in 1952. He was never married.

In operating Alphin Properties appellee disposed of approximately 5,000 acres of rural lands and reinvested the proceeds in business and residential properties in El Dorado. The residential units were then sold and more business buildings constructed, and the subsequent operation of the propérties consisted primarily of collection of rentals and sale of oil and gas leases on the rural lands, the minerals under which had been reserved.

Alphin Properties maintained offices in El Dorado at all times after 1937 and had regular employees who collected rentals and kept the books and records of the business. These employees also kept appellee’s personal books without pay from him and he transacted his personal business from the offices rent free. The office phone was listed in his name bnt paid for by Alphin Properties. In addition to management of the properties appellee was local manager of Anderson Clayton Cotton Company until 1945 at a salary of $500 per month. He was also vice-president of an oil company and director of a bank. He also spent from 3 to 6 months each year from 1938 to 1951 in New Mexico in the management and operation of his 48,000-acre cattle ranch. He was active in state and local politics every two years and would postpone his trips to New Mexico until after the second primary election. He would occasionally return to El Dorado to look after some business of Alphin Properties but the expenses of these trips were paid out of personal funds. At the time of the trial Alphin Properties had a value in excess of a million dollars.

James A. Alphin made three wills. The first was executed in March, 1948, in which the bulk of his estate was left to appellant. The second was made April 14, 1948, in which, after specific bequests to relatives and churches, the Armstrong estate properties inherited by James from his mother were left to Sam and the residual estate was divided equally between Sam and appellee. The third will was made in February, 1950, in Monterrey, Mexico. After specific bequests similar to those in the second will, including a bequest of $1,000 to appellee, the bulk of the estate was left to appellant as in the first will.

After the death of James in June, 1952, the 1950 will was offered for probate in August, 1952. Appellee first filed a petition in the Union Probate Court on December 15, 1952, contesting probation of the will. No hearing was ever held on the petition which was dismissed following the decree in the instant case. In the latter part of 1953 appellee filed suit in the Union Circuit Court, Second Division, to enforce the alleged oral contract to make a will. The filing in circuit court was apparently by mistake and there was a transfer to Union Chancery Court, Second Division, and a subsequent voluntary dismissal in that court. The instant suit was then filed in the first division of Union Chancery Court on February 25, 1954.

It is undisputed that there was never any agreement or claim for compensation of any kind by appellee for services rendered in connection with his management of Alphin Properties prior to April, 1948. It is also admitted that appellee never sought nor expected compensation for services to Sam which were practically identical to those rendered to James. The instant suit is based on an alleged agreement between appellee and James shortly prior to the making of the second will on April 14, 1948. Appellee was permitted to testify, over appellant’s objections, that he had several conversations with James at that time when only the two were present; that James told him of violent quarrels with Sam because the latter charged him room and board; that Sam had “high-pressured” him into making the March will; and that when appellee expressed a desire to get away from their quarrels and suggested a division of the Alphin Properties by arbitration, James said: “I will tell you what I will do, I need you here. While I love Sam dearly, I don’t want to turn my part of the business over to him, and I am gone away from here quite a bit; I will will you half of the stuff that comes from papa if you will stay on and look after this business.” Appellee agreed and a few days later James handed him a copy of the April, 1948, will on the streets of El Dorado in the presence of Judge G-us W. Jones.

In corroboration of appellee’s testimony he offered the testimony of several close personal, political and business friends relative to the splendid manner in which he had managed Alphin Properties and concerning the actual execution and delivery of the April, 1948, will; also some general discussion of family arguments and a possible division of the estate about the time the will was executed. Only two of these witnesses gave any testimony bearing directly upon the making of the alleged oral contract. S. B. McCall, El Dorado postmaster and lifelong personal and political friend and associate of appellee, testified that he had a casual conversation with James in the lobby of the post office in the spring of 1948 in which the latter told him about making the will to appellee because lie had looked after and agreed to continue to look after the estate and hold it together. Witness described James as a distant and peculiar person who had little to say to anybody. He could not remember the substance of any other conversation with James and never mentioned the one in question to appellee or anyone else until he told it to appellee’s attorney after the instant suit was brought. Mr. McCall experienced difficulty recalling some of the exact provisions of the oral agreement.

Bruce Bennett testified that he and another person, now deceased, went to appellee’s office in the spring or summer of 1948 seeking appellee’s political help in obtaining certain jobs, Bennett being interested in an appointment as deputy prosecuting attorney. Sam and James were in the office but Sam left and “the atmosphere was charged.” When Bennett asked what was wrong, James said: “I have made a will leaving one-half of papa’s property that I inherited to Big Brother and I have left the other half to Sam.” Bennett then asked what was wrong with that and James replied: “I don’t know.” James then said he wanted appellee to continue taking care of the properties and had made a will under the agreement as related by appellee. Bennett attended summer school at Vanderbilt University in 1948. While he was on friendly terms with each of the Alphin brothers he admitted that he tried several times to persuade appellant to talk with counsel for appellee about probating the April, 1948, will. Appellee was a close friend and made loans and a donation to Avitness in his successful campaign for prosecuting attorney. He admitted having a conversation Avith appellant in Little Rock AAThen Burney Dumas Avas present but denied their testimony to the effect that he then stated that appellee was his friend and he Avould testify to whatever was necessary to help him.

Opposed to the foregoing is the testimony of appellant, his wife and several other close personal and business friends of James. The effect of their testimony is that the close brotherly relation and association existing at all times between Sam and James never existed between the latter and appellee; that appellee became very-angry when be learned of the March, 1948, will and threatened to have a bank loan by James called unless he changed the will which he was forced to do but with the intention to again change it in accordance with his own wishes as expressed in the 1950 will; and that James never at any time mentioned any agreement or contract with appellee to make a will to any of said witnesses. Medlock Harbison was a close friend of James and his constant companion for about 4 years in the operation of the bottling company in Mexico. He drafted and was named co-executor of the 1950 will which was in his possession when James died. He testified about ill feeling between appellee and James and the close relationship between the latter and Sam who was present when the 1950 will was made. James never said anything to Harbison about any agreement to make a will to appellee.

One reason advanced by appellee for James contracting to will his property to one who was 30 years his senior is that James was a “blue baby” and in poor health, but this was refuted by uncontradicted medical evidence and appellee admitted that James served in the armed forces for several years with distinction and apparently without any serious illness. In all fairness it máy be said that many of the material witnesses on both sides made little effort to conceal their bias or interest in favor of the party for whom each was testifying.

"We first consider the admissibility of the testimony of appellee regarding his conversations and transactions with James relative to the making of the alleged oral contract relied upon. We agree with appellant’s contention that this testimony was inadmissible under Schedule II of the Arkansas Constitution, commonly called “The Dead Man’s Statute.” Appellee is here seeking judgment against the appellant as executor for both real and personal property of the estate. In his answer appellant claimed all the personal property for the purpose of paying debts. His further assertion that it was necessary to use part of the real estate to pay debts is denied by appellee. An almost identical situation was presented in Jensen v. Housley, 207 Ark. 742, 182 S. W. 2d 758. After holding that the legal title to personal property of which a decedent died possessed vested in the administrator or executor upon his appointment, the court said: ‘ ‘ Since a judgment against the administrator for the personal property of the deceased was prayed by appellant in her complaint, it is obvious that, regardless of the situation as to the real estate, the administrator was a necessary party to this suit and that it was an action in which the testimony of a party as to transactions with the decedent was declared incompetent under the provisions of § 5154 of Pope’s Digest, supra. Therefore, appellant was not a competent witness to establish the contract relied upon by her.” See, also, Page on Wills, § 1751.

Appellee relies upon certain decisions both prior and subsequent to the Jensen case in which it is insisted that testimony similar to that in the instant case was given, apparently without objection. The privilege of the statute is waived when testimony is introduced without objection. Lisko v. Hicks, 195 Ark. 705, 114 S. W. 2d 9, Moreover, the question of admissibility was not raised or decided in those cases and we adhere to our holding in the Jensen case which is controlling here.

The principal remaining issue is the sufficiency of the evidence to support the decree for specific performance with this testimony excluded. While a valid oral contract to make a will or deed to real estate may be made, it is well settled that the testimony to establish such contract must be clear, cogent, satisfactory and convincing. Walk v. Barrett, 177 Ark. 265, 6 S. W. 2d 310; Kranz v. Kranz, 203 Ark. 1147, 158 S. W. 2d 926. In most all the cases sustaining oral contracts to devise or convey lands upon performance of the consideration therefor, the plaintiffs have performed usually at sacrifices to themselves and performed services not easily compensated in money. Crowell v. Parks, 209 Ark. 803, 193 S. W. 2d 483. Another generally accepted rule is stated in 69 A. L. R. 133, as follows: “It seems that in order for part performance to operate to take a contract of the kind under consideration out of the operation of the Statute of Frauds, the services must be exceptional and extraordinary in character, or it must appear that the promisee’s whole course of life was changed by performance of the contract. A change in the status of the promisee, or the assumption of a relation with the promisor different from that theretofore existing or which would ordinarily exist in the absence of a contract, is very highly regarded by the courts as evidence of an alleged oral contract to devise or bequeath property.” The usual type of consideration is a promise by one party to change his place of abode and support and care for another during life in consideration of the party’s agreement to devise the property. Fred v. Asbury, 105 Ark. 494, 152 S. W. 155; Offord v. Agnew, 214 Ark. 822, 218 S. W. 2d 370.

It seems doubtful there was any change in the status quo of appellee in the instant case. It is also questionable whether his services were so exceptional as not to be subject to pecuniary estimate as to value. However, it is unnecessary to determine such questions. When the testimony of appellee concerning the transactions and conversations with decedent about the alleged contract is excluded, it is our opinion that the competent evidence does not measure up to that high standard of clarity and certainty which the law requires. The decree is accordingly reversed and the cause remanded with directions to dismiss the complaint.

Seamster, C. J., and Bobinson, J., dissent.

Bobinson, J.,

dissenting. In my opinion, the evidence, independent of Hendricks Alphin’s testimony as to the transaction with James Alphin, is clear and convincing that, James Alphin made a contract with his half-brother, Hendricks, whereby James would will to Hendricks one-half of the property James owned which came from their father.

In the first place, it is not unreasonable that James would enter into such a contract. Hendricks Alphin inlierited from Ms mother the most valuable portion of the property involved in this litigation. He deeded this property to his father without any consideration whatever. Also, it is shown by the testimony of J. K. Ma-honey, who had married the sister of Sam Alphin’s wife and who was thoroughly familiar with the Alphin properties, that all of the property would have been lost if it had not been for the good management of Hendricks Alphin.

S. B. (Pete) McCall, who has been postmaster of El Dorado for 19 years, testified that James Alphin told him that he (James) was gone from El Dorado a large part of the time and that Hendricks had made a good job of looking after the Alphin properties; that he wanted Hendricks to continue to look after the properties and had therefore willed to Hendricks one-half of his interests in the property that came from their father.

Bruce Bennett, a well-known lawyer in El Dorado and Prosecuting Attorney for the 13th Judicial District, testified that in a conversation with James Alphin, James stated: “I have made a will, leaving one-half oí Papa’s property that I inherited, to ‘big brother’; and I have left the other half to Sam . . . ‘Big brother’ has been taking care of this property for years, and I want him to continue to take care of that property, and I have made a will, under an agreement whereby Big Brother will keep taking care of the property, and I will leave him one-half of what I inherited from Papa, and Sam will get the other half.” Bennett’s testimony-is plain and unequivocal. It is clear and convincing.

Gus ~W. Jones is Judge of the First Division Circuit Court in El Dorado, and has been Judge in that community for 26 years. He knows Hendricks Alphin and knew James Alphin in his lifetime. He knows that a disagreement arose between James Alphin and Hendricks Alphin because James had made a will leaving all of his interests in the J. S. Alphin properties to Sam Alphin, and that they settled their differences and made an agreement that was satisfactory to both of them. James Alphin told Judge Jones that he had made a will in the office of Mahoney & Yocum whereby he had willed his interests in the Alphin properties half to Hendricks and half to Sam. In the presence of Judge Jones, James exhibited a copy of the will to Hendricks.

It is not disputed that James did make such a will in the office of Mahoney & Yocum. It is shown by Judge Jones that, in his presence, James exhibited this will to Hendricks. There can be no reasonable explanation of James exhibiting the will to Hendricks except the fact that he was proving to Hendricks that he had carried out his agreement. It is a matter of common knowledge that a person does not ordinarily go around exhibiting his will to the beneficiaries. Sam was also one of the beneficiaries named in the will, and there is no evidence that James exhibited the -will to him. James was showing Hendricks that he had carried out the agreement. In fact, it is practically conceded in this case that for a consideration James did enter into an agreement with Hendricks whereby James would will part of the property to Hendricks, but appellant Sam Alphin contends that James agreed to do so in consideration of certain credit arrangements.

Disregarding the testimony of Hendricks entirely, the testimony of Judge Jones, Bruce Bennett and Pete McCall is convincing. This evidence, coupled with the fact that James actually executed the will, leaving part of the property to Hendricks, and exhibited such will to Hendricks in the presence of Judge Jones, proves conclusively in my opinion that there was an agreement between Hendricks and James that, in consideration of Hendricks’ continuing to look after the property, James would leave to Hendricks part of the property which came to James from their father.

I am thoroughly convinced that the Chancellor’s decree is correct and that it should be affirmed.

Seamster, C. J., joins in this dissent.


author: George Rose Smith, J.

text:
    Mark v. Springs Investment Co., et al.
    5-690
    279 S. W. 2d 843
    Opinion delivered May 30, 1955.
    [Rehearing denied June 27, 1955.]

      J. B. Milham, for appellant.

      F. 0. Butt and A. J. Russell, for appellee.
   George Rose Smith, J.

This is the second suit that has been brought by the appellant, Anson Mark, Jr., for the purpose of enforcing a mortgage executed by Springs Investment Company. In this case the chancellor dismissed Mark’s complaint upon the ground that the decision in the first case was res judicata of the issues now presented.

In connection with the purchase of certain hotel property Springs Investment Company executed two mortgages, one to the appellant Mark and the other to Cecil Maberry. In Mark’s first foreclosure suit a principal issue was that of priority as between the two mortgages. The decision was in Maberry’s favor, Mark v. Maberry, 222 Ark. 357, 260 S. W. 2d 455, and the decree ordered the foreclosure of Maberry’s first lien. Mark obtained judgment only for the accrued interest upon his second mortgage, since the debt was not due and there was no acceleration clause.

At the foreclosure sale, which was held on July 28, 1953, Maberry purchased the property for less than the amount of his judgment against the mortgagor. The sale was confirmed during the July, 1953, term of court. The exact date of confirmation is not shown, but it was necessarily before the term expired in January of 1954. Ark. Stats. 1947, § 22-406.

It was not until September 14, 1954, that Mark filed 'the present suit against Springs Investment Company, Cecil Maberry, and the purchasers to whom Maberry had sold the property. This proceeding is primarily an attack upon the validity of the 1953 foreclosure sale, it being alleged that proper notice of sale was not given, that the purchase price was inadequate, that Maberry was an officer of the defendant corporation and was therefore ineligible to bid at the sale, that the court’s commissioner reported the sale of certain personal property which he had in fact neglected to sell, etc. All these asserted irregularities in the conduct of the sale could have been interposed as objections to the order of confirmation. The chancellor was therefore correct in holding that the confirmation order is res judicata of these matters. Bank of Pine Bluff v. Levi, 90 Ark. 166, 118 S. W. 250.

The plea of res judicata is also a defense to the appellant’s present attempt to impose personal liability upon Cecil Maberry, since the issue of such liability was involved in the earlier case, supra, and is concluded by that decision. In one respect, however, Mark’s complaint should not have been dismissed upon the plea of prior adjudication. He asserts in his present complaint that the first note in the series executed by Springs Investment Company became due, in the sum of $500, on July 1, 1954, and is unpaid. By amendment to the complaint Mark states that he is entitled to judgment upon this $500 note. The defendants’ plea of res judicata does not reach this issue, since the principal of the debt had not yet matured when the first case was decided and was not involved in that litigation. It may be true that Springs Investment Company no longer bias any assets from which a judgment might be collected, but the plaintiff is nevertheless entitled to he heard upon his claim against the corporation. On this issue the decree is reversed and the cause remanded. Whether a receiver should be appointed for the corporation is a matter to he determined by the chancellor upon remand.


author: Ward, J.

text:
    Capitol Transit Co. v. Mitchell.
    5-697
    279 S. W. 2d 569
    Opinion delivered May 30, 1955.

      Bailey, Warren & Bullion, for appellant.
    Wto. J. Walker and Carl Langston, for appellee.
   Ward, J.

Appellee recovered a judgment for injuries received because of the alleged negligence of the driver of appellant’s bus at a street crossing. Appellant contends that the judgment should be reversed for two reasons: First, it is alleged that there is no evidence to support the allegation of negligence on the part of the bus driver; second, it is alleged the evidence shows that appellee was guilty of contributory negligence as a matter of law.

Appellee, Mrs. Leonard Mitchell, was injured about 6 :Q0 p. m. on November 21, 1953, while she was attempting to cross Main Street from west to east where said street intersects Fifth Street in the City of Little Rock. She was attempting to cross along the south side of Fifth Street. The testimony shows that Mrs. Mitchell waited for the traffic light to turn green and then stepped into the crosswalk or safety zone and proceeded east for the purpose of crossing Main Street. Main Street is 54 feet wide, and when Mrs. Mitchell was approximately 21 feet out into the street she was hit by the front bumper of appellant’s bus and knocked approximately 4 feet, landing prone on the pavement, and was injured.

Just previous to the said traffic light turning green on this particular occasion appellant’s bus had stopped, while traveling east on Fifth Street, several yards west of Main Street [in front of Franke’s Cafeteria]. On the caution signal [just preceding the said particular green light] the driver, Charles Holmes, put the bus in motion and proceeded toward Main Street, apparently arriving at the west line of Main Street at about the time the traffic light turned green. It is not entirely clear from the testimony whether the bus was stopped before it entered the intersection although there is testimony that it did not but proceeded on into the intersection at about the same time appellee started to cross the street. It was the intention of the driver, as he had a right, to make a right turn in order to proceed south on Main Street. The bus was 28 feet long [slightly more than one-half the distance across Main Street] and it appears that it was necessary for Holmes to proceed some distance out into Main Street before making the turn in order to avoid striking the curb. The point of impact of the bus with appellee was slightly to the left of the middle of the front bumper.

At this particular time it was raining and the windshield wipers on the bus were in operation. In one portion of Holmes ’ testimony it is stated that he saw appellee just before or at the time the bus struck her, but from other portions of his testimony the jury could have found that he didn’t see her at all. Holmes testified that immediately before and at the time of the impact the bus was moving 2 or 3 miles per hour and that appellee was knocked a distance of about 2 or 3 feet, but there was other testimony that the bus was traveling approximately 8 miles per hour and that appellee was knocked a distance of approximately 4 feet. Holmes stated that the bus moved about a foot after hitting appellee. He stated also that just as he was entering the intersection he saw two or three people standing on the sidewalk facing north but that he did not see Mrs. Mitchell or anyone else facing east, and he had no explanation of why he didn’t see Mrs. Mitchell.

The testimony does not show conclusively exactly how fast Mrs. Mitchell was walking as she was attempting to cross. Some testimony was to the effect that she was going fast or running and other testimony was that she was walking more or less normally. Mrs. Mitchell stated that she was crossing the street to buy a book at Walgreen Drug Store but doesn’t remember any of the details of how the collision occurred. She said she didn’t look for or see the bus after she entered the intersection. It is conceded that both Mrs. Mitchell and the bus entered Main Street on the green light and that they had a right to do so. The extent of the injuries or the amount of the judgment is not questioned.

Considering the factual situation above set forth and viewing the evidence in the light most favorable to appellee, as we must under our well established rule, we are unable to say as a matter of law either that there is no substantial evidence to support the allegation of negligence on the part of appellant, or that appellee was guilty of contributory negligence.

The jury would have, we think, been justified in finding that Holmes could and should have seen appellee preparing to cross the street in an easterly direction, should have seen her as she progressed across the street, should have seen her as he was turning his bus to the right when appellee was near the point of collision, and that be should have driven bis bus at a slower speed than be did. In weighing tbe degree of care exercised by tbe bus driver tbe jury could also take into consideration tbe late bour of tbe day and tbe condition of tbe weather. Holmes says that be stopped tbe bus within one foot after be struck appellee, so it would appear that bad be seen Mrs. Mitchell be might have been able to have avoided hitting her. The point of impact on the bus bumper is an indication that appellee was in such position that she could have been seen by tbe driver at least momentarily before she was bit.

What we have just said also substantiates our conclusion'that Mrs. Mitchell was not, as a matter of law, guilty of contributory negligence. Tbe evidence in this case does not present tbe same situation as obtained where we have held, in cases cited by appellant, that a person is guilty of contributory negligence as a matter of law where be steps into tbe line of traffic without looking. In tbe case of Ponder v. Carroll, 193 Ark. 1120, 105 S. W. 2d 72, this Court stated: “Appellee was negligent in stepping from tbe wagon without exercising ordinary precautions for bis own safety, and tbe trial court should have directed a verdict in favor of appellant.” It was there stated that appellee while riding across a bridge on a wagon stepped into tbe line of oncoming traffic without looking and was bit by a car approaching from the rear. Here it is not disputed that appellee bad a right to enter the intersection when she did or that she was in tbe crosswalk or safety zone. It is clear from tbe physical facts here that if appellee, at tbe time of stepping off tbe sidewalk preparatory to crossing tbe street, bad looked at tbe bus which was entering tbe intersection at the same time, there would have been no indication to her that tbe bus would cross her line of procedure. Due to tbe length of tbe bus it was necessary for it to proceed in a more or less straight line for some distance into tbe street before attempting to make a turn to the right. Tbe driver of tbe bus was of course aware of this and it imposed upon him tbe duty of exercising reasonable care before be changed the direction of tbe bus across tbe line alona1 which he knew pedestrians might be traveling. Having once entered the safety zone in her attempt to cross the street at a time when there was no apparent danger from the position of the bus, we cannot say, as a matter of law, that she was careless in thereafter failing to keep a continuous lookout for its movement.

Affirmed.


author: Robinson, J. Ed. F. McFaddiN, Justice

text:
    American Fidelity Fire Ins. Co. v. Winfield.
    5-688
    279 S. W. 2d 836
    Opinion delivered May 30, 1955.
    [Rehearing denied June 27, 1955.]

      E. J. Butter, for appellant.

      Fletcher Long, for appellee.
   Robinson, J.

This is a suit brought by appellee Ethel Lee Winfield against appellant American Fidelity Fire Insurance Company to collect on a policy of fire insurance covering an automobile which was destroyed by fire.

The insurance company contends that notice and proof of loss were not given according to the terms of the policy. The cause was tried before the court sitting as a jury and there was a judgment for the policyholder in the sum of $700.00. It is further maintained by appellant that the judgment is excessive.

Appellee lives on a farm, owned by C. B. Walker, which is about one and a half miles south of Whitmore, Arkansas. In July of 1952, she bought an automobile from the McCall Chevrolet Company in West Memphis. The purchase was financed through the Mid-Continent Finance Company, and that company procured the policy of insurance. Appellee never had any contact with the insurance company except through the finance company, and the policy was sent to her by the finance company. For its services in connection with the sale of the policy, the finance company was paid a portion of the premium by the insurance company.

On the 4th day of July, 1953, Walker, appellee’s landlord, borrowed her car to go down in the fields to inspect his crops. While on this trip the car caught fire and was destroyed. Mr. Walker, in behalf of appellee, undertook to notify the insurance company of the loss. He wrote to the finance company from whom appellee had received the policy in the first instance. Receipt of this letter was acknowledged. It appears from the evidence that he also wrote to the insurance company by sending a letter in accordance with the terms of the policy to the Central States Insurance Agency, 1 Brentwood Street, Clayton, Missouri. In this letter he requested that forms be furnished to make proof of loss. Although the insurance company contends this letter was not received, it was never returned to the sender.

Where a letter is properly mailed, it is presumed that it is received by the party to whom it was addressed, and that it reached him in due course of mail. Southern Engine & Boiler Works v. Vaughan, 98 Ark. 388, 135 S. W. 913; Ann. Cas. 1912D, 1062.

In Travelers Insurance Company v. Thompson, 193 Ark. 332, 99 S. W. 2d 254, this Court quoted from the Southern Engine & Boiler Works case as follows: ‘ ‘ ‘ This presumption could he rebutted by testimony that it was not in fact received, but the positive denial by plaintiff that same was received would not be sufficient, as a matter of law, to nullify the presumption of its receipt. Such testimony simply left the question as to the receipt of the letter for the determination of the jury under all the testimony adduced at the trial. ’ ’ ’

Walker testified to the effect that he properly mailed the notice in accordance with the terms of the policy. This testimony, coupled with the presumption that it was received by the addressee, constitutes substantial evidence to sustain the court’s finding that the notice was in fact received by the company.

It being determined that the company received notice of the loss, the next question that arises is: Did the insurance company’s failure to acknowledge receipt of the notice of loss relieve the policyholder from furnishing proof of loss within the 60-day period provided by the policy?

When appellee received no reply to the letter written to the insurance company, she engaged an attorney to look after her interests. The attorney wrote to the insurance company at 7 Brentwood Street, Clayton, Missouri, the address given as the office of the insurance company’s agent, but the name of the insurance company was given as the addressee instead of the agency. This letter was .unclaimed and returned to the attorney. He then notified the finance company as follows: “On July 7th, you wrote Mr. Walker that this claim should be taken up with the insurance carrier involved. A letter written by me to the address shown on the policy has been returned. Unless you can put me in touch with the company at once and some adjustment can be made of this loss, it will be necessary for Ethel to sue American Fidelity Insurance Company.”

The finance company, which, had received part of the premium in the first instance as its commission in selling the policy to appellee, merely replied to the attorney that they thought an American Fidelity Insurance Company policy had been mailed to appellee. We do not reach the point, however, as to whether the finance company was acting as agent for the insurance company, because Walker’s testimony was sufficient to make a jury question as to the insurance company’s being notified directly.

The insurance company did not acknowledge receipt of the notification, and proof of loss was not furnished within the 60 day period as provided by the policy; but, in the circumstances, the company is not in a position to declare a forfeiture by reason of the failure of the policyholder to furnish proof of loss. On the subject of acts constituting waiver of proof of loss, it is said in Apple-man’s Insurance Law and Practice, Volume 5, § 3633: “It has been stated that unless there is a bona fide attempt by the company to adjust a loss, there is a refusal to pay. Therefore, the mere effect of silence or inaction might be sufficient to excuse compliance. ’ ’

In Ward v. Pacific Fire Insurance Company, 115 S. C. 53, 104 S. E. 316, it is said: “While there was no express or unequivocal denial of liability during the period of time prescribed in the policy within which proofs of loss were to be and might have been furnished, yet defendant’s silence, in the light of facts and circumstances, clearly warranted the inference that liability was and would be denied, as it was in fact denied, and plaintiff was warranted in so believing and in acting accordingly. . . . The company received the notice of loss in due time, and, in fairness, it should have notified plaintiff that he must furnish proofs of loss, as required by the policy, if it intended to pay the loss.”

In the case at bar, the court, sitting as a jury, found from substantial evidence that the company received notice of the loss. Having received such notice, and failing to acknowledge it or request proofs of loss, the company could not declare a forfeiture because proofs of loss were not furnished.

As to the value of the car, Ben Few, Jr., an expert, testified that in his opinion the automobile was worth somewhere between $695.00 and $795.00. There was no other testimony on evaluation. The testimony given by Few was substantial evidence of a value of $700.00.

Affirmed.

Justices McFaddiN and George Eose Smith dissent.

Ed. F. McFaddiN, Justice

(dissenting). I am of the firm opinion that the judgment in this case must be reversed because of the failure of the. insured (appellee) to file proof of loss. It is not claimed that a proof of loss was filed; and I can find no facts mating a case of waiver.

The policy sued on here provided:

“1. Insured’s Duties When Loss Occurs. When loss occurs, the insured shall -...(c) file proof of loss with the company within sixty days after the occurrence of loss, unless such time is extended in writing by the company, in the form of a sworn statement of the insured setting forth the interest of the insured and of all others in the property affected, any encumbrances thereon, the actual cash value thereof at time of loss, the amount, place, time and cause of such loss, the amount of rental or other expense for which reimbursement is provided under this policy, together with original receipts therefor, and the description and amounts of all other insurance covering such property.”

We have held somewhat similar provisions in insurance policies to be valid. One of the most recent cases is that of Cook. Comm. v. U. S. F. & G. Co.. 216 Ark. 743, 227 S. W. 2d 135, in which Mr. Justice Leflar, speaking for a unanimous Court, said:

“Our holding is that, assuming that .the plaintiff has rights under the contract, he still cannot recover because he has not complied with the proof of loss requirement in the contract.

“The proof of loss clause was a valid part of the insurance contract. Similar clauses have been many times sustained and enforced in this court. Teutonia Ins. Co. v. Johnson, 72 Ark. 484, 82 S. W. 840; New York Life Ins. Co. v. Moose, 190 Ark. 161, 78 S. W. 2d 64; Home Life Ins. Co. v. Swaim, 200 Ark. 819, 142 S. W. 2d 209; Brotherhood of Railroad Trainmen v. Drake, 204 Ark. 964, 165 S. W. 2d 947. The insurance company’s right to rely upon non-compliance with the clause is not waived by a general denial of liability asserted by 'the company after the period for filing a proof of loss has expired. Smith v. American National Ins. Co., 111 Ark. 32, 162 S. W. 772; Illinois Bankers Life Assn. v. Byassee, 169 Ark. 230, 275 S. W. 519, 41 A. L. R. 379. The clause is a'part of the contract under which plaintiff claims, and he cannot ignore it in making his claim.”

In the case at bar the majority opinion does not claim that any proof of loss was furnished; rather the majority says the proof of loss was waived. And how was it 'waived? The majority says the proof of loss was waived because the insurance company remained silent! ! ! Just why silence would be a waiver is too difficult for me to understand.

We have held that a denial of liability (within the time for filing proof of loss) is a waiver; we have held that sending blanks to the insured is a waiver of the time requirement; we have held that retaining the proof of loss is a waiver of its defects; we have held that questioning any attempted proof of loss is a waiver of its defects; now we are holding that the failure to do anything is a waiver of proof of loss. Thus the insurance company is really “between the rock and the hard place”: heretofore if the insurance company answered the letter and did anything at all, such was a waiver; and now if the insurance company does not do anything, it is a waiver. In short, the proof of loss requirement in an insurance contract is just about entirely eliminated by judicial destruction!

So far as T can find, the statement quoted in the majority opinion from Appleton on “Insurance”, (Vol. 5, § 3633) is based entirely on the South Carolina case of Ward v. Pacific Fire Ins. Co., 115 S. C. 53, 104 S. E. 316. I submit that the facts in that case differentiate it from the facts in the case at bar. A study of the South Carolina case discloses that the fire loss occurred March 31, 1916; and within three days the defendant insurance company was notified. On May 8th, the insurance agent forwarded a letter to the company; on July 21st the insured’s attorney wrote the company inquiring about the matter; and then on July 28th the insurance company wrote the attorney this letter: “We have for acknowledgment your favor of the 21st inst. under above loss, and beg to advise that the matter has had our attention”; and on the letter there was the pencil notation: ‘ ‘ Having attention”. When the suit was filed in January, 1917, the company claimed, inter alia, that no proof of loss had been filed. This claim was held to be without merit probably also because the South Carolina Court holds that denial of liability at the time of the trial is a waiver of the proof of loss. (See McBryde v. Ins. Co., 55 S. C. 589, 33 S. E. 729, 74 Am. St. Rep. 769.)

Our cases hold that denial of liability at the time of the trial is not a waiver of proof of loss. So the South Carolina case is not based on a line of authorities consonant with our own. Furthermore, in the South Carolina case, the insurance company lulled the plaintiff and his attorney into a feeling of safety by advising them that the matter was “having attention”. We find no such “lulling” in the case at bar; so I submit that the South Carolina case is not a good authority on which to base the holding of -waiver that the majority is making in the case at bar.

For the reasons herein stated, I respectfully dissent.

       Cases to sustain the foregoing statements regarding waiver are collected in West’s Arkansas Digest, “Insurance”, § 557-561, inc.


author: Lee Seamster, Chief Justice.

text:
    Turner v. State.
    4815
    279 S. W. 2d 818
    Opinion delivered June 6, 1955.

      Hendrix Rowell and William 1. P-urifoy, for appellant.

      Tom Gentry, Attorney General, and Thorp Thomas, Assistant Attorney General, for. appellee.
   Lee Seamster, Chief Justice.

This is a Petition for Writ of Error Coram Nobis. Petitioner was the appellant in the case of Turner v. State, 224 Ark. 505, 275 S. W. 2d 24; and our opinion was delivered on January 24, 1955.

The appellant in due time filed a petition for a rehearing in the case and the petition was denied on the 28th day of February, 1955. The appellant now complains of the action of the Circuit Court in this; that before the trial of the case the appellant on May 17th, 1954, filed a motion in the trial court that he be sent to the State Hospital for Nervous Diseases for a mental examination; that the trial court appointed two doctors to examine the appellant and report to the court their findings as to the sanity of the appellant at that time and on April 14th, 1954, the day the deceased was shot. The two doctors examined appellant and found him to be sane on both occasions. A Motion was filed in the trial court by Turner’s lawyers asking permission to cross-examine the doctors making the report. Their report does not go to the merits of the case and was never presented to the jury. The trial court appointed the doctors to examine the appellant as provided by law for the purpose of ascertaining whether the appellant had any symptoms of insanity at that time or at the time of the shooting, so that the court might determine the advisability of lending him to the State Hospital to have a psychiatric examination of the prisoner.

This same question was before the court on appeal. The opinion in this case takes up most of four closely printed pages discussing this very point. The last sentence is as follows: “But no rule of law requires that cross-examination be allowed of the doctors who make the examination in the first instance merely for the purpose of determining whether there are grounds for sending the defendant to the State Hospital for a mental examination. ’ ’ The appellant now complains that the order placed on the record of the trial court would indicate that the appellant or his attorneys selected the two doctors to examine the prisoner — The majority opinion clearly indicates that the two doctors were selected by the trial court and that they examined the prisoner, reported, their findings to the court for the court’s information, and for its action on appellant’s motion to be sent to the State Hospital for a sanity test.

The State has filed a response to the petition herein, and has attached to the response a detailed certified report from the State Hospital, covering the period from March 28th to May 11th, 1955 — The report finds that the prisoner is now and was at the time of the shooting and at the time of the trial sane.

The question raised here has been determined by this court on the appeal of the case from the Circuit Court.

The sworn affidavit of Dr. Rowland R. Robins is attached to the petition. He states, in substance that he has been Turner’s family doctor for 10 years. Has treated him for peptic ulcer and on a few occasions opiates were required to relieve him from severe pain; that he is emotionally frustrated and quick tempered from the slightest provocation. This behavior pattern suggests that there must be some psychotic tendencies. The record further reflects that Dr. Robins was in the court room and appellant’s attorney offered his testimony at the preliminary hearing when the court had before it the motion to send the prisoner to the State Hospital. The court refused to hear his testimony then, but did call two other doctors of the court’s choosing. Dr. Robins was present again at the trial (Tr. P. 544-548). He testified in chambers about the prisoner’s condition with reference to his ability to testify at that trial. He had administered medicine to him on the morning of the day he was to testify. Also gave him a nimbutal to make him sleep — The effects of which would be gone in about 3 hours. He thought because the prisoner had not slept the night before that he would be stronger mentally and physically, and his mind would be clearer after a night’s sleep. Dr. Robins was not used as a witness before the jury to testify as to the sanity of the appellant and did not question his sanity while testifying in chambers — It was his physical condition in question then, together with the mental dullness that goes with pain and lack of sleep.

In the recent case of Jenkins v. State, 223 Ark. 245, 265 S. W. 2d 512, we had occasion to consider and discuss the writ of error coram nobis; and what was there said applies here:

"We have also held that where there is a suggestion of the present insanity of the accused at the time of his trial, the failure of the trial court to then institute an inquiry into that question must be corrected, if erroneous, by appeal or writ of error and not by writ of error coram nobis. Kelley v. State, 156 Ark. 188, 246 S. W. 4; Sease v. State, 157 Ark. 217, 247 S. W. 1036.”

The appellant had a trial which was affirmed on appeal and a rehearing was denied — all the facts now alleged were set out in the transcript and fully discussed by the court in its opinion in this case. We hold that no error of fact has been shown to exist in this case. The Writ is denied.


author: J. SeaborN Holt, J.

text:
    State, ex rel. Wright v. Casey.
    5-702
    279 S. W. 2d 819
    Opinion delivered June 6, 1955.

      Tom Gentry, Attorney General; James L. Sloan and Thorp Thomas, Assistant Attorneys General, and Eel E. Ashbaugh, for appellant.

      II. G. Leathers, for appellee.
   J. SeaborN Holt, J.

This appeal involves the question of the right of the Arkansas Game and Fish Commission to adopt rules and regulations for the conservation and regulation of wildlife in Arkansas. Specifically the question is whether the Commission could promulgate a rule to require a license fee of $1.50 on each hound dog used for chasing foxes for pleasure, and also a penalty for failure to comply.

The question arose in this manner: Appellee Chester Casey was on March 31, 1954, charged in a Justice of the Peace Court with the offense of hunting foxes with a fox hound without first having- procured a license at a cost of $1.50 for said hound. Appellee, before trial was had in the Justice Court, filed petition in the Carroll Circuit Court alleging “that the Justice of the Peace was without jurisdiction to try said cause, for the reason the petitioner is not charged with an offense in violation of the laws of the State of Arkansas or any municipality therein and asked that said Justice of the Peace be prohibited and restrained from proceeding further in said cause.” Hearing was had on this petition January 29, 1955, and the court found that the petition should be granted “for the reason that Section J of the Game and Pish Commission Code No. 100 issued and effective January 1, 1953, is an attempt to abrogate, § 47-201, Sub-section K, of the Arkansas Statutes (1947) which fixes the fee at $.50 and that the Pish and Game Commission is without power to arbitrarily raise the fees for revenue purposes, fixed by the legislature.”

This appeal followed. In this court the appellant has waived any objection to the method of proceeding, by prohibition, in the circuit court, and that issue is not before us. Amendment 35 to the Constitution of Arkaiisas became effective July 1, 1945, by which the Arkansas Game and Pish Commission was created and given broad and comprehensive powers. This amendment “is complete within itself, and prior legislative Acts, whether directive or restrictive in nature, have been superseded. It seems to have been the purpose of those who ivrote the Amendment to cover the whole subject, and to either provide, or leave to the Commission, methods for reaching these ends,” W. R. Wrape Stave Co. v. Arkansas State Game and Fish Commission, 215 Ark. 229, 219 S. W. 2d 948.

Section 1 of the amendment provides “The control, management, restoration, conservation and regulation of birds, fish, game and wildlife resources of the State, including hatcheries, sanctuaries, refuges, reservation and all property now owned, or used for said purposes and the acquisition and establishment of same, the administration of the laws now and/or hereafter pertaining thereto, shall be vested in a Commission to be known as the Arkansas State Game and Pish Commission” arid in Section 8 we find this provision, “Resident hunting and fishing license, each, shall be One and 50/100 Dollars annually, and shall not exceed this amount unless a higher license fee is authorized by an Act of Legislature.”

We think it clear from this unambiguous language that the people in enacting Amendment 35 intended that the Game and Fish Commission should collect from all resident hunters and fishermen a license fee of $1.50 each for the privilege of hunting and fishing, until such time as the Legislature should authorize a higher license fee to he collected. The power to fix this license fee at more than $1.50 rested solely with the Legislature and not the Commission.

The Commission on January 1, 1953, promulgated in its ‘ ‘ Game and Fish Code ’ ’ the following rule and regulation in Section 22-J-100, “It shall he unlawful to hunt, pursue, chase or take any deer, rabbit, squirrel, raccoon, opossum, fox or other fur-bearing animal, wild turkey, wild duck, quail, snipe, woodcock or other wild fowl, game bird or wild animal or fur-bearing animal in this State with a dog without first procuring a license for each dog so used for which license the sum of $1.50 shall be paid.”

As indicated, Appellee argues and the trial court held that this Section J in so far as it raises the licénse fee on fox hounds used for pleasure in chasing foxes, from $.50 to $1.50, violates or abrogates § 47-201-K-Arkansas Stats. 1947, which section provides “It shall be unlawful to hunt, pursue,- chase, or take any deer, wild turkey, wild duck, quail, snipe, woodcock or other wild fowl or game bird in this state, with a dog, without first procuring a license for each dog so used, for which license the sum of one dollar and. fifty cents ($1.50) shall be paid, provided a special license, a.t a fee of fifty cents (50 cents), shall be procured for each dog used in chasing fox for pleasure.”

We do not agree. The above § 47-201-was enacted by the 1943 Legislature which was prior to the effective date of Amendment 35 (July 1,1945). This Amendment 35 in § 1, as pointed out above, gave the Commission broad power and authority to control, manage, restore, conserve and regulate the game and wildlife resources of Arkansas, including sanctuaries, refuges, reservations, and all property now owned or that may be acquired by the Commission and used for said purposes.

Section 8 of the amendment further provides, “The Commission ¿hall have the exclusive power and authority to issue licenses and permits, to regulate bag limits and the manner of taking game and fish, and fur-bearing animals, and shall have the authority to divide the State into zones, and regulate seasons and manner of taking game, and fish and fur-bearing animals therein, and fix penalties for violations.” Under these provisions of this amendment we hold that the Commission has been given full and complete administrative power and authority to promulgate rules and regulations necessary for the conservation and preservation of all wildlife including not only the power to establish a bag limit, set seasons in which to hunt and fish and the penalty for violations but also the power to levy a license fee on all hunting dogs, just so long as such license fees are not unreasonable or arbitrary and are for regulatory purposes — as appears here — and not for revenue. This power to levy and to fix the amount of license fee on each hound dog has been reserved to the Commission alone. Obviously the people by enacting this amendment intended that the Commission should have sufficient and ample funds with which to function in preserving and propagating wildlife in the manner provided therein. As pointed out above, it was the purpose of those who wrote this amendment to cover the whole subject relating to the wildlife conservation and to provide or leave to the Grame and Fish Commission methods of reaching those ends.

Section 8 above contains this further language “The fees, monies, or funds arising from all sources by the operation and transaction of the said Commission and from the application and administration of the laws and regulations pertaining to birds, game, fish and wildlife resources of the State and the sale of property used for said xmrposes shall be expended by the Commission for the control, management, restoration, conservation and regulation of the birds, fish and wildlife resources of the State, including the purchases or other acquisitions of property for said purposes and for the administration of the laws pertaining thereto and for no other purposes.”

We hold, therefore, that Amendment 35 vested in the Commission the power to fix the amount of license fees, with the exception that the fees for resident hunting and fishing licenses can be increased only by legislative act. With respect to other license fees, such as the one involved here, the Commission’s authority is clearly stated in this sentence in the Amendment: “All laws now in effect shall continue in force until changed by the Commission.’’ It follows that § 47-201-K of the statutes, which fixed the annual license fee for fox hounds at fifty cents, has been repealed and superseded by the Commission’s regulation raising the fee to $1.50 annually.

Accordingly the judgment is reversed and the ease remanded for further proceedings consistent with this opinion.

Chief Justice Seamster and Justice Millwee dissent.