author: John A. Fogleman, Justice. John A. Fogbeman, Justice.

text:
    Arthur Dorey, Jr. et al v. Harry McCoy and Monte Ne Shores, Incorporated
    5-4952
    442 S.W. 2d 202
    Opinion Delivered June 9, 1969

      Doris Duty for appellants.

      Hardy C rood on for appellees.
   John A. Fogleman, Justice.

Appellants instituted an ejectment action in which they claimed that appellees had constructed a road across appellants’ lands (consisting of lots 20, 22 and 40) for a connection with appellees’ adjacent lands. Included in the complaint was a prayer for damages in the sum of $5,000. It was not seriously disputed ihat appellees had caused such a road to he constructed, the old road having been inundated by the waters of Beaver Lake. The principal items in dispute were the location of the particular lots in relation to the road and the amount of damages. Luring the trial the court permitted the jury to view the premises. The court instructed them to stay together under the charge of the bailiff and to talk to no one about the case. One of the jurors left the group and proceeded to the site on his own in advance of the others.

Appellants introduced the testimony of Harold J. Pranter, who was a consulting engineer and land survey- or, together with a survey of the lands in question prepared by him. The survey indicated a road superimposed over portions of lots 20, 21, 22, 30 and 40. On cross-examination the witness indicated that the lot lines were not certain from an engineering standpoint because the plats available did not contain bearings or distances. He testified that his survey was predicated on calculations based on the Corps of Engineers’ estimate of where the original town of Monte Ne was placed on their grid map. Mr. Pranter calculated that the portion of the road shown on his survey constituted roughly 12,000 square feet and was 300 feet long.

Marvin Head, who was in the earth moving business, testified on behalf of appellants that removal of the entire road would involve moving 2,000 yards of material at a cost of $1.00 to $1.10 per yard.

Arthur Dorcy, Jr., one of the appellants, testified on cross-examination that approximately one-quarter of the road is in lot 21 which they did not claim.

Appellees’ witness Bob Crafton, civil engineer and land surveyor, testified that no lot on the W. T. Patterson plat could be located with any degree of accuracy and that basically everything in Monte Ne is a guess. lie stated that b}r the method of scaling and estimating and assuming some information he could possibly get within five hundred feet but that he could not get as close as a hundred feet to the actual lines.

At the close of the evidence the case was submitted to the jury which returned a verdict in favor of appellants for damages in the sum of $1,800 and a judgment ■ejecting appellees from the lands in question. Thereafter, appellees made a motion which alleged that the undisputed testimony established that $2,200 was the maximum figure introduced into evidence for the cost of removing the entire road and that appellees had admitted on cross-examination that one-quarter of the road was on lot 21 which appellees did not claim; therefore the judgment should be reduced to $1,650 notwithstanding the verdict of the jury. The court granted this motion and a judgment was entered in the amount of $1,650 against appellants.

Subsequently, appellees made a motion for a new trial and as grounds therefor alleged, among others, that the verdict or decision was not sustained by sufficient evidence and was contrary to law, and that after entry of said judgment it became known to appellees that a member of the jury had, in violation of specific instructions of the court, independently proceeded to the situs of the property and arrived there approximately one hour prior to the other jurors. Accompanying the motion was an affidavit by the bailiff which reiterated the substance of the allegation in the motion. The court granted the motion for a new trial on the grounds that the verdict was excessive and because of the action of the juror in leaving the body of the jurors in violation of the court’s instruction. Appellants appeal from the granting of the new trial and from the granting of the motion to reduce the jury verdict from $1,800 to $1,650.

Appellants argue, that the trial court erred in granting appellees’ motion for a new trial for excessiveness of the verdict. Arkansas Statutes Annotated § 27-1901 (Rept. 1962) provides, in part, that a new trial may be granted when there, is “error in the assessment of the amount of recovery, whether too large or too small, where the action is upon a contract or for the injury or detention of property.” Whenever a trial judge grants a motion for a new trial we will not reverse his ruling unless it appears that he abused his discretion. Bobbitt v. Bradford, 241 Ark. 697, 409 S.W. 2d 339; Meyer v. Bradley, 245 Ark. 574, 433 S.W. 2d 160.

In order to sustain an action in ejectment plaintiff must establish that he is legallty entitled to possession of the property. Ark. Stat. Ann. § 34-1401 (Repl. 1962). Plaintiff must succeed, if at all, on the strength of his own title and cannot depend on the weakness of the defendant’s title. Bunch v. Johnson, 138 Ark. 396, 211 S.W. 551; Knight v. Rogers, 202 Ark. 590, 151 S.W. 2d 669. The evidence in this case does not establish hr a clear preponderance where lots 20, 22, and 40 are in relation to the road. Appellants’ witness admitted Ins fuirvey, which purported to show those portions of the lots which had been taken by the road, had been prepared upon the assumption that the Corps of Engineers’ plat was correct, and he stated that he had no personal knowledge whether it was correct or not. He .further testified that if he were told to locate lot 1, block 54, or any lot in any part of Monte Ne, he could not find and stake out that lot with any reasonable degree of certainty. He admitted that his survey was based on the only available information. This witness’s testimony actually agreed with appellees’ witness, Bob Grafton, except that they differed as to the degree of error likely in trying to locate the lots in question. Because of this uncertainty, the trial judge obviously felt there was error in the amount of damages awarded. We cannot say that he abused his discretion in granting a new trial.

Inasmuch as the court’s action in granting a new trial on the basis of insufficient ¡evidence to support the verdict was not an abuse of discretion, we need not consider the question of whether the granting of a new trial because of the actions of the juror was an abuse of that discretion.

Appellants argue that it was error for the court to grant the motion for a new trial after it had already granted the motion to reduce the jury award. Appellants style the first motion as a motion for a judgment notwithstanding the verdict and argue that it is inconsistent to grant both. Actually, the first motion was in the nature of a request for a remittitur such as is provided for in Ark. Stat. Ann. § 27-1903 (Repl. 1962) and not a motion for judgment notwithstanding the verdict. See Fulbright v. Phipps, 176 Ark. 356, 3 S.W. 2d 49. The two motions would not be inconsistent because, under the statute, the alternative to remittitur is a new trial. If there was error in granting the motion for reduction of the verdict it ivas harmless error in view of the fact that the trial judge did not abuse his descretion in granting a new trial.

Supplemental Opinion on Rehearing July 14, 1969

Even if this motion were considered as one for a judgment notwithstanding the verdict it would not have been inconsistent with a motion for a new trial. In Montgomery Ward & Company v. Duncan, 311 U.S. 243, 61 S. Ct. 189, 85 L. Ed. 147, it was said, “A motion for judgment notwithstanding the verdict did not, at common law, preclude a motion for new trial. And the latter motion might be, and often was presented after the former had been denied.”

The judgment is affirmed.

Byrd, J., concurs.

Arthur Dorey, Jr., et al, v. Harry McCoy and Monte Ne Shores, Incorporated

5-4952

442 S.W. 2d 202

Davis Duty for appellants.

Hardy Croxton for appellees.

John A. Fogbeman, Justice.

In their petition for rehearing, appellants call our attention to a statement in our original opinion that they appealed from the trial court’s action reducing the damages awarded by the jury from $1,800 to $1,650. This statement was erroneous, even though one of the points relied- upon by appellants here was the sufficiency of the evidence to support the jury award of $1,800. The opinion should have slated that appellants appealed from the granting of the new trial and argued, on appeal, that the evidence was sufficient to support the jury’s award of $1,800 in damages.

Appellants also allege that we have totally disregarded evidence adduced by appellants tending to show adverse possession of the lands on which the road in question was located in holding that there was such uncertainty as to the location of the lots upon which they claimed the road in question had been placed that we could not say that the trial judge abused his discretion by granting a new trial for error in the' assessment of the amount of recovery. There was testimony by one of the appellants that the laud occupied by his father, under whom appellants claim, included the road. On cross-examination this witness admitted that he never knew the exact boundary lines other than his father’s house and its immediate environment. On redirect examination, these questions were asked and answers given:

“Q. You have stated you didn’t know exactly where your boundaries were until the survey was run ?
A.- That’s right.
Q. Did you have a general idea of the land that you claimed?
A. I know what my father claimed, yes.
Q. Did the land that your father, and you subsequently, claimed the land that now has a road on it?
A. Yes. I couldn’t verify that till afterwards, though.
Q. Pardon?
A. 1 say I couldn’t verify it till after, but it was the part that wc thought was ours.
Q. The land you claimed is the part the road is on?
A. Yes.”

The same witness then admitted that approximately one-quarter of the road was on a lot not claimed by appellants. We agree with appellants’ statement in tlieir original brief that evidence as to the portion of the road located on lands other than those claimed by appellants was not direct or definitive and that it might have left the jury wandering in the realm of conjecture. We do not agree with appellant that the burden of producing direct and definitive evidence on this essential element of appellants’ measure of damages was upon appellees. Even though this evidence was not specifically mentioned in our original opinion, it. was considered. Wc are still unable to say that the evidence so clearly preponderated in appellants’ favor on the question of damages that the trial judge, abused his discretion by granting a uew trial. Under such circumstances, we sustain the action of a trial court granting a motion for new trial. Bobbitt v. Bradford, 241 Ark. 697, 409 S.W.2d 339.

Appellants also vigorously urge that the trial court acted under Ark. Stat. Ann. § 27-1903 (Repl. 1962) and ■was thereby barred from granting a new trial after having ordered a reduction of the damages. Although it was stated in the original opinion that appellants’ motion for reduction of the verdict was in the nature of a motion under that section, neither the appellants, the trial court nor this court categorized the motion as having been filed under that section. That section is not the basic authority for reduction of a jury verdict by a trial court. Such action is within the inherent powers of the trial court aside from and independent of that statute. Dierks Lumber & Coal Company v. Noles, 201 Ark. 1088, 148 S.W. 2d 650. Section 27-1903 only purports to limit that basic power in certain cases. This court has reversed the judgment of a trial court and ordered a new trial in a case wherein tiie appellee’s attorneys offered to file a remittitur in the amount by which the trial'judge found the verdict to be excessive. See Jamison v. Spivey, 197 Ark. 698, 125 S.W. 2d 453. AVhile it is true that this court found that that verdict was still excessive, there would be no reason why the trial court could not grant the same relief, if it felt that there was still error in the assessment of damages in actions upon contracts or for injury to or detention of property.

If it is applicable at all, ^ 27-1903 might have prevented the filing of a motion for new trial, if appellees had offered, or could be required, to file and enter of record a release of all errors that may have accrued at the trial upon appellants’ remitting the amount by which tin1 judgment was held to be excessive. There is no indication that appellees waived any errors in the trial nor is there any allowing that appellants remitted the excess. The requirement that a litigant surrender his right of appeal as a condition upon which he may accept the reduction of an excessive verdict by the trial court has been held to be beyond the power of the legislature as a violation of Article 7, Section 4 of our Constitution. St. Louis & N. A. Rd. Co. v. Mathis, 76 Ark. 184, 91 S.W. 763, 113 Am. St. R. 85. If we accepted appellants’ theory that the two motions were so inconsistent that the motion to reduce precluded a motion for new trial, we would be imposing the same penalty upon a litigant. There is no logical reason why this court could so deny the right of appeal under the constitutional provision if the General Assembly could not.

Not only did appellants fail to enter a remittitur in the amount found excessive by the trial court, but they argue here that the court erroneously treated the jury’s verdict of $1,800 as excessive. Their action is tantamount to a refusal to enter the remittitur, and would have justified the granting of a new trial, if § 27-1903 applies. Kroger Baking Company v. Melton, 193 Ark. 494, 102 S.W. 2d 859. Appellants cite no authority for their position that the filing or granting of a motion to reduce n verdict precludes the granting of a motion for a new trial.

Appellants also insist that the first motion was for judgment notwithstanding the verdict. Ordinarily ■that motion is for the purpose of obtaining a judgment reaching the opposite result from the jury’s verdict, e.g\, a judgment for defendant when the verdict was for the Plaintiff. It can only be granted when the judgment sought by the movant is the only result that could be reached on the basis of the pleadings or ■the undisputed evidence. Fulbright v. Phipps, 176 Ark. 356, 3 S.W. 2d 176; Spink v. Morton, 235 Ark. 919, 362 S.W. 2d 665. A motion for judgment notwithstanding the verdict- may only be .entered before the entry of Judgment. Oil Fields Corporation v. Cubage, 180 Ark. 1018, 24 S.W. 2d 328. A litigant should not be required to waive the right to seek a new trial, in order to ask for judgment notwithstanding the verdict, when the latter relief cannot be sought after judgment is entered. Failure to make a timely motion to reduce a verdict would constitute a waiver of .that relief.

While .there .are some decisions to the contrary, it is held in a number of- jurisdictions that a successful or ■unsuccessful motion for judgment notwithstanding the verdict does not constitute a waiver of or bar to the granting of a new trial. See Jolley v. Martin Bros. Box Co., 158 Ohio St. 416, 109 N.E. 2d 652 (1952), and cases cited therein. See also Sallden v. City of Little Falls, 102 Minn. 358, 113 N.W. 884, 13 L.R.A. (n.s.) 790, 120 Am. St. R. 635 (1907). The case cited in the original opinion, even though based upon the Federal Rules of Civil Procedure, supports this position. The Supreme Court of the United States there held that a trial court should pass on an alternative motion for new trial even though it granted judgment notwithstanding the verdict. Partial support for that holding was found in the common law rule quoted in the original opinion. Even if the motion here is properly one for judgment notwithstanding the verdict, it did not bar the granting of a new trial.

While it may well be that the trial court in instances such as this would not err in giving a moving party his election of a induction of a verdict or a new trial, we still cannot say that his failure to do so is an abuse of discretion.

      This section may be applicable only to those cases wherein the damages are not susceptible of definite pecuniary measurement, as in cases involving pain and suffering, etc.


source: Caselaw Access Project

author:
J. Fred Jones, Justice.
      Conley Byrd, Justice.

license: Public Domain

text:
    Bernie (Burnnie) Edward Fields v. State of Arkansas
    5-5419
    441 S.W. 2d 803
    Opinion Delivered June 9, 1969

      Claude Carpenter, Jr. for appellant.

      Joe Purcell, Atty. Gen. and Don Langston, Ass’t. Atty. Gen. for appellee.
   J. Fred Jones, Justice.

On November 26, 1968, the appellant, Bernie (Burnnie) Edward Fields, was tried and convicted in the Pulaski County Circuit Court for the crime of armed robbery, and on December 3, 1968, he was sentenced to prison for 21 years with seven years to be served before becoming eligible for parole. He has appealed to this court and relies upon the following point for reversal:

“The trial court erred in failing to grant appellant motions to dismiss the charge here in issue under the provisions of Arkansas Statute 43-1708 which provides for charges to be dismissed if not brought to trial prior to the end of two terms of court following the filing of the indictment or information.”

Arkansas Statutes Annotated § 43-1708 (Repl. 1964) is as follows:

“If any person indicted for any offense, and committed to prison, shall not be brought to trial before the end of the second term of the court having jurisdiction of the offense, which shall be held after the finding of such indictment, he shall be discharged so far as relates to the offense for which lie was committed, unless the delay shall happen on the application of the prisoner.”

The terms of the Pulaski County Circuit Court begin on the 4th Monday in September and the 1st Monday in March of each year and each term extends to the beginning of the next term. Ark. Stat. Ann. § 22-310 (Repl. 1962).

On February 12, 1967, appellant was arrested in Pulaski County on two charges of robbery and one charge of assault with intent to kill. He waived preliminary hearing on arraignment and before informations were filed by the prosecuting attorney in Pulaski County, he was surrendered by the sheriff of Pulaski County to the authorities in Lonoke County where on February 20, 1967, he was tried and convicted on felony charges pending against him in that county, and was sentenced to four years in the Arkansas Penitentiary. On February 28, 1967, the prosecuting attorney of Pulaski County filed informations charging the appellant with two counts of robbery and one count of assault with intent to kill committed in Pulaski County. A bench warrant was issued on these informations and mailed to the superintendent of the penitentiary where the appellant was incarcerated under his sentence from Lonoke County.

On March 30, 1967, the appellant wrote a letter to the trial judge as follows:

“Dear Sir,
The reason I’m writing this letter is too ask you when I’ll be able too appear in your court.
I went too a preliminary hearing on are about Feb. 13,1967, and at that time I waved perliminary hearing and was bound over too your court. But was not notified of when my court date was. I would like very much too appear in your court witli end the next (30) days if possible, so I can clear the Books.”

On May 1, 1967, the appellant was brought before the Pulaski County Circuit Court, where attorney Harry Robinson was appointed to defend him. A plea of not guilty was entered to each charge and the cases were passed to October 6, 1967, for jury trial. On September 5, 1967, the cases were passed to October 2, 1967, to be reset. On October 2,1967, the appellant was brought before the court and the cases were passed to March 27, 1968, for a jury trial, and on February 29 the appellant’s attorney was advised b^r the prosecuting attorney that case No. 66886 (robber) would be tried on March 27, 1968.

On March 15, 1968, the court ordered the appellant brought from the penitentiary for.the purpose of trial on March 27. The record is vague as to what happened on March 27,1968, but on April 1,1968, the appellant was brought before the court, his previously appointed attorney Harry Robinson was relieved, and attorney Claude Carpenter was substituted. The case was passed to April 24, 1968, for a hearing on appellant’s motion to dismiss, and the appellant was remanded to the Pulaski County jail pending the hearing.

On April 24, 1968, appellant’s written motion to dismiss pursuant to Ark. Stat. Ann. § 43-1708, supra, was filed, heard and overruled by the court and the cases were passed to May 10, 1968, for jury trial. The docket entry on this date is as follows:

“This day comes the State of Arkansas by James R. Howard, Deputy Prosecuting Attorney, and comes the defendant in proper person in custody of the Sheriff and by his Attorneys, Harry Robinson and Claude Carpenter, appointed by the Court, and defendant’s Motion to Dismiss is hereby filed, heard and overruled and the cases are passed to May 10, 1968, for a jury trial.”

On June 10, 1968, an appeal from the order of April 21, overruling appellant’s motion for dismissal, was prayed and granted. The appellant was given an additional 60 days for perfecting Ms appeal to this court and was given 45 days to prepare his bill of exceptions. The bill of exceptions was approved and certified.by the trial judge on July 2, 1968, but was not filed in this court until March 14, 1969, when it was filed as a part of the record on this appeal.

On October 29, 1968, the appellant filed a petition in this court for a writ of prohibition to the trial court permanently prohibiting any further prosecution on the informations filed against the appellant and we denied this petition on November 18, 19.68. On November 4, 1968, the appellant was brought before the trial court and his case was passed to November 18, 1968, for jury trial. On November 18, 1968, the case was reset for jury trial on November 26, 1968.

When this case finally came to trial on November 26, 1968, the appellant renewed Ms motion to dismiss. The motion was overruled and the trial resulted in the jury verdict and judgment thereon forming the basis for this appeal.

The appellant’s motion for a new trial is entirely directed to the jury verdict and is as follows:

“The defendant respectfully moves the Court for an order granting Mm a new trial in this matter and for cause states:
1. The verdict is contrary to the law.
2. The verdict is contrary to the evidence.
3. 'Tiie verdict is contrary to the law and the evidence.
4. The defendant moves the Court for au order setting the jury’s verdict aside and for either a new trial or a directed verdict notwithstanding.”

The evidence in this case was more than sufficient to sustain the verdict of the jury and the judgment rendered thereon.

Mrs. Mattie Nix identified the appellant as the person who came into her cafe and while drinking a cup of coffee made numerous inquiries about the liquor store across the street. She saw the appellant leave her cafe, walk across the street and enter the liquor store. She saw the appellant come out of the liquor store and walk down the street. Mrs. Nix testified that a short time after she saw the appellant come out of the liquor store, she saw the owner of the liquor store, Joe Bauer, come out of the back part of the liquor store “bloody all over.”

Joe Bauer positively identified the appellant as the man who came into his liquor store and ordered a half pint of brandy. He says that when he turned to face the appellaut after looking for the brandy, the appellant was pointing a pistol at him. He testified that the appellant forced him into a back room of the liquor store, robbed him of the money in his pocket, forced him to wait on a customer and then robbed the cash register. He testified that, after the appellant, robbed the cash register be again forced him to the rear of the liquor store and told him that he, the appellant, was going to have to put him to sleep, whereupon the appellant struck him twice on the head with the pistol and that when he fell to the floor, the appellant left the store.

The police officers found a broken piece from a pistol handle grip in Bauer’s place of business following the robbery and assault, and when appellant was arrested while hitchhiking out of Little Bock, a pistol with a broken handle grip was found on his person. The piece of pistol grip found in the liquor store matched the part missing from the pistol the appellant was carrying.

If the jury believed the state’s witnesses, as they evidently did, there was substantial evidence to sustain the conviction.

The appellant’s argument on this appeal, however, is primarily directed to his contention that the trial court committed reversible error in overruling his motion to dismiss. The appellant did not perfect his appeal from the judgment of April 24, 1968, as he had a right to do. (Ware v. State, 159 Ark. 540, 252 S.W. 934.) Instead of perfecting his appeal, the appellant filed a petition in this court for a writ of prohibition.

The appellant is correct in his statement that “Article 2, Section 10, of the Arkansas State Constitution provides for a speedy trial in criminal matters with Arkansas Statutes 43-1708 implementing this constitutional provision.” But, neither Article 2, Section 10 of the constitution, nor Ark. Stat. Ann. § 43-1708 automatically entitles a prisoner to discharge at the end of the second term of the court having jurisdiction of the offense. There' are statutory exceptions to such rule. Section 43-1708, supra, ends with the phrase “unless the delay shall happen on the application of the prisoner.”

Ark. Stat. Aim. § 43-1709 (Repl. 1964) provides:

“If any person indicted for any offense, and held to bail, shall not be brought to trial before the end of the third term of the court in which such indictment is pending, which shall be held after the finding of such indictment, and such holding to bail on such indictment, he shall be discharged, so far as relates to such offense, unless the delay happened on his application.”

And Ark. Stat. Ann. §43-1710 provides:

“Nothing in the two preceding sections shall be so construed, as to discharge any person who may have been indicted for any criminal offense, on account of the failure of the judge to hold any term of the court, or for the want of time to try such person at any term of the court. ’ ’

The statutory exceptions are the reasons that alleged error in overruling a motion for discharge under the statute must be reached by appeal on the record rather than by prohibition as a matter of law.

After the appellant wrote his letter to the trial judge on March 30, 1967, he appeared in court on May 1, 1967, an attorney was appointed to represent him and he entered his plea of not guilty. There is no question that the appellant was represented by court appointed counsel at all stages of the procedure after May 1, 1967, and there is no evidence that he requested a speedy trial after he was represented by counsel, and there is no evidence that he, or his counsel, objected to the postponements of his trial. The state contends that the delays in trial happened on the application of the appellant and the appellant contends that he made no such application and did not authorize his attorneys to do so. The record before us is fairly complete as to the events that did occur, but the record is woefully inadequate as to why they occurred. At the hearing on motion to dismiss, the record, in part, is as follows:

“the court;
On 9-5-67 it was passed to October 2nd to be reset.
MR. ROBINSON:
Wasn’t it set for a jury trial on 9 something?
the court:
On 5-1-67 it was set for a jury trial.
MR. ROBINSON:
But the record doesn’t show who passed it, or why.
THE COURT:
You know who passed it. I know, too. Yon did.
MR. ROBINSON;
You did it because you wanted to set something else on that day.
the court:
Maybe I did.”

Mr. Robinson, the appellant’s court appointed counsel, testified on cross-examination as follows:

“Q. Is it your recollection that you weren’t in court at any time these cases were passed, that the docket reflects?
A. Jim, I wouldn’t say.
Q. Do you recall the case ever being passed while you were not in court at any of these dates that are on this docket?
A. It is my recollection, the best I can remember, that the case was passed in October while it — I mean passed in September when it had been set for jury trial in October, and it was passed for some reason convenient to the State — The State or Court, I won’t testify which. I wouldn’t swear to which one by my recollection.
Q. Your testimony is that these dates here where it says the case was passed were not done at your request?
A. Absolutely not.
Q. Did you raise any objections to these passages at any time?
A. I did not. I had no opportunity, according to my recollection of it.”

The appellant in this case was serving a penitentiary sentence from another county on conviction for a separate and different offense when the informations were filed against him in Pulaski County. The record before us indicates that the appellant was represented by an attorney each time his case was continued. Although appellant’s attorney says that he did not request a continuance, he admits that he raised no objection to a continuance and states: “I had no opportunity, according to my recollection of it.”

After attorney Robinson was relieved as appellant’s attorney on April 1, 1966, and Mr. Carptenter was substituted, both attornejrs continued to represent the appellant by mutual agreement. After an appeal was granted on June 10, 1968, from the judgment overruling appellant’s motion to dismiss, instead of perfecting the appeal to this court the appellant filed his petition for a writ of prohibition which was denied. The appellant then renewed his motion for dismissal at the trial of the case and now contends, after trial and conviction, that he is entitled to be discharged from the penalty of his conviction because he was not tried within two tei'ins of the court as provided by statute and was not given a speedy trial as required by the constitution.

The verdict of the jury is sustained by substantial evidence and from the state of the record before us, we are unable to say, as a matter of law, that the trial court erred in refusing to discharge the appellant on motion when no appeal was perfected from such refusal and the alleged error is not brought forward in appellant’s motion for a new trial.

In Randall v. State, 239 Ark. 312, 389 S.W. 2d 229, we said:

“To duly preserve a point for presentation to this court in a felony ease, like the one here, there must be: (1) an objection; (2) an exception; and (3) the point must be carried forward in the motion for new trial.”

In the earlier case of Yarbrough v. State, 206 Ark. 549, 176 S.W. 2d 702, this court had occasion to explain the necessary procedure in preserving a point on appeal, and we did so in these words:

“On appeal from the circuit court, this court only reviews errors appearing in the record. The complaining party must first make an objection in the trial court, and this calls for a ruling on his objections. An exception must be taken to an adverse ruling on the objection, which ‘directs attention to and fastens the objection for a review on appeal.’ The matter complained of, together with the objections and the exceptions to the ruling of the court, must be brought into the record by a bill of exceptions; and the motion for a new trial can serve no other purpose than to assign the ruling or action of the court as error.”

Of course, a new trial would avail the appellant nothing in the case at bar on the only point he designates for reversal and on which an appeal was originally granted but never perfected.

The judgment is affirmed.

Byrd, J., dissents.

Conley Byrd, Justice.

As I read tlie record here there is ample evidence to sustain the jury’s finding that appellant Bernie Edward Fields is guilty of armed robbery. The record also shows without contradiction that he was not brought to trial before the end of the second term of the court after the filing of the information against him.

Since 1 concede that the evidence is sufficient to sustain the jury’s finding that appellant is guilty of armed robbery, the question arises as to why I should say lie ought to be discharged. My answer is that the law says:

“If any person indicted for any offense, and committed to prison, shall not be brought to trial before the end of the second term of the court having jurisdiction of the offense, which shall be held after the finding of such indictment, he shall be discharged so far as relates to the offense for which he was committed, unless the delay shall happen on the application of the prisoner.” [Ark. Stat. Ann. § 43-1708 (Repl. 1964)].

I find it abominable to me to say that this man must go to prison under such circumstances that he can legitimately and truthfully say, “There ain’t no justice according to law in the Courts of this State”. The matter is further compounded when we crutch our decision on the basis that no appeal was perfected within the time allowed and the alleged error was not properly brought forth in the motion for new trial, because with the ordinary defendant for whom counsel is appointed, such failures only occur because of negligence or failure of counsel or because of incompetenev of counsel. Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967); Entsminger v. Iowa, 386 U.S. 748, S. Ct. 1402, 18 L. Ed. 2d 501 (1967). Further, I think that the motion for new trial here which asserted that the conviction was contrary to the evidence and contrary to the law is sufficient to raise the issue.

The statute here involved comes to us from the Revised Statutes of 1838 (Ch. 45, § 169) and is an obvious implementation of Article 2, § 10 of the Constitution of Arkansas which provides:

:iIn all criminal prosecutions the accused shall enjoy the right to a speedy and public trial by impartial jury of the county in which the crime shall have been committed;... ”

Therefore I would discharge the prisoner in accordance with the statute.


author: J. Fred Jones, Justice. Conley Byrd, Justice.

text:
    Fireman’s Fund Insurance Company v. Fort Smith Pizza Company
    5-4872
    442 S.W. 2d 238
    Opinion Delivered June 9, 1969
    [Rehearing denied July 14, 1969.]

      Barber, Henry, Thurman, McCashill & Amsler for appellant.
    27. B. ¡Bubblefield for appellee
   J. Fred Jones, Justice.

This is an appeal by Fireman’s Fund Insurance Company from an adverse decision of the Pulaski County Circuit Court, Second Division,. in a suit by Fort Smith Pizza Company on an insurance policy.

The appellant insurance company entered into a contract with the appellee pizza company, agreeing to insure the appellee with a coverage of $2,500 against loss of money and securities by the actual destruction, disappearance or wrongful abstraction thereof within the premises or within any banking premises or similar recognized places of safe deposit.

The appellee alleged in its complaint:

“That from July 14, 1967, to July 20, 1967, inclusive, during which time said insurance policy was in full force and effect, plaintiff suffered a loss of money and securities in the amount of $1,757.57 (being $388.07 on 7/14/67; $395.91 on 7/15/67; $145.52 on 7/16/67; $191.68 on 7/17/67; $211.60 on 7/18/67; $181.14 on 7/19/67 and $243.65 on 7/20/67) by actual destruction, disappearance or wrongful abstraction thereof for which loss defendant is liable to plaintiff under the provisions and within the meaning of the aforementioned insurance policy.”

A jury was waived and the case was tried before the trial judge sitting as a jury. Judgment was rendered for the full amount sued for, together with statutory penalty and attorney’s fee, and on appeal to this court the appellant relies upon the following point for reversal:

“The trial court should have found for the defendant, as a matter of law. ’ ’

We agree with the appellant. The appellee attempted to prove that the separate deposits listed in its complaint, totaling $1,757.57, mysteriously disappeared from the night depository of the Merchants National Bank of Fort Smith after being deposited there. We find uo substantial evidence in the record before us that any part of said amount ever reached the bank.

The record reflects that- the usual procedure followed al the three pizza parlor locations was as follows: At each of the pizza parlors six hundred dollars, one hundred of which was in change, was kept on the premises at all times for operating expenses. At the close of each business day the local manager would count the daily receipts, put bade the $600 for the next day’s operation, and make out bank deposit slips in triplicate for the balance of the receipts to be deposited in the bank. A daily report form would then be made out showing the amount and kind of merchandise sold, the amount rece wed in each category, the total receipts, and the total cash to bank. A copy of this report, together with a copy of the bank deposit slip was mailed each day to the president of the appellee in Little Rock. The manager of the particular parlor would then make the actual deposits in the bank. More than one day’s receipts would sometimes be deposited at the same time. The usual procedure was to make the bank deposits at odd times for security reasons and usually by physical deposit in the drive-in night depository. Under this procedure no receipt was obtained from the bank when the deposit was made, but a receipted copy of the deposit slip would be returned by the bank when the deposit was credited to the account. These receipted deposit slips would bear the date they were prepared, and the date the amount was credited to the account but they would not bear the date they were placed in the night depository. Only ilie retained copy of the deposit slip, made out by the local manager, was mailed to the Little Rock office with the daily report.

Mr. George Batchelor, a certified public accountant, testified that he was doing the accounting work for the appellee during the time of the alleged loss. He identified daily reports with copy of deposit slips attached as having been sent in by the manager of the Fort Smith Parlor and testified that all the managers followed the same procedure. Mr. Batchelor testified that the amount's shown on the reports and copy of deposit slips made out and sent in by Mr. Blaloch, the local manager at Fort Smith, were never credited by the bank to appellee’s account.

Mr. John Bauman testified that lie was general manager of three Shakey’s Pizza Parlors owned by Mr. Murry, including’ the one at Fort Smith. He testified that a Mr. Blaloch was the local manager at Fort Smith and that he went to Foil Smith on Saturday, July 22 and discharged Mr. Blaloch. He testified that he went with Mr. Blaloch to the bank and they deposited the previous day’s receipts in the night depository; that the deposit slips for this deposit were dated July 21, and that this deposit was made on the 22nd and was credited to the account of the appellee the following Monday, Julv 24.

Mr. Ike Murry, majority stockholder and president of the appellee, testified, in part, as follows:

“Q. And is the same form of those daily reports that are introduced as Exhibits 8 through 14 required daily from each of your operations'?
A. That’s right. Same form.
Q. And including your operation there at Fort Smith?
A. Right.
Q. Nor only during this period but during each day’s operation?
A. That’s right. Each day we pick up a daily report from the three Fort Smith. I mean the three pizza parlors and attach to each one of them a deposit slip which has been executed by the manager indicating the money has been sent to the bank or that it will be sent to the bank.
Q. And are those daily reports in your regular course of business up there at Fort Smith?
A. That’s right.
Q. And the information shown thereon, quote— total casli to bank — end quote, is shown on each one of those daily reports?
A. That’s right.
Q. And I believe that’s required of your manager of each one of your operations?
A. That’s right.” (Emphasis supplied.)

On cross-examination Mr. Murry testified that the local manager of the business in Fort Smith would mail the daily reports, together with copy of deposit slip to him in Little Nook. lie also testified as to reasons for discharging the Fort Smith manager, but further recitation of the testimony would add nothing but volume to this opinion.

The only person who knew what went with the money indicated on the daily reports and copies of the deposit slips made out and mailed from Fort Smith to Little Nock by Mr. Blaloch, was Mr. Blaloch himself. He was the one who made out the reports indicating that the money had been or would be deposited in the bank and he was the one charged with the responsibility of depositing the money in the bank. Mr. Blaloch had been discharged and had gone to Tennessee before it was ever discovered that the amounts he reported had been or would be deposited in the bank were never credited to the appellee’s account.

The appellee relied entirely on Ark. Stat. Ann. §. 28-928 (Repl. 1962) which provides as follows:

“In any court of record of the State, any writing or record, whether in the form of an entry in a book or otherwise, made as a memorandum or record of any act, transaction, occurrence, or event shall he admissible as evidence of such act, transaction, occurrence, or event, if made in regular course of any business, and if it was the regular course of such business to make such memorandum or record at the time of such act, transaction, occurrence or event or within a reasonable time thereafter. All other circumstances of the making of such writing or record, including lack of personal knowledge by the entrant or maker, may be shown to affect its weight, but such circumstances shall not affect its admissibility. ’ ’

Mr. Blaloch did not testify in this case and his daily reports made out and mailed to his superiors in the regular course of business indicating the amount of money he collected and had or would deposit in the bank, certainly are no evidence at all that he ever reached the bank with the money he indicated he had or would deposit. It is clear from the evidence, including the daily records and deposit slips, that the daily records or reports were made out at the end of each day’s business reflected therein. The deposit slips were dated the same day the records were dated and obviously the deposit slips were made out before the deposit was actually made. The most these business records of the appellee could show is the amount of money on hand which the appellee’s manager indicated that he would deposit in the bank.

It appearing from the record that the facts in this case might be more fully developed on retrial, the judgment of the trial court is reversed and this cause remanded for that purpose.

Byrd and Holt, JJ., dissent.

Conley Byrd, Justice.

As I road the majority opinion I understand the facts to be that the manager Blaylock in the regular course of his daily business at the end of each day made out a deposit slip showing the amount of money deposited or to be deposited in the bank account and also a report which he mailed to the home office in Little Rock together with the deposit slips. I also understand that the deposits were made as soon after the close of the business day as security would permit. Under these circumstances it appears to me that the majority is doing violence to the Business Records statute or “shopbook rule.”

Even under the common law shopbook rule, the business records here introduced would have been sufficient evidence of delivery of the deposits to the night depository. See Mansfield v. Gushee, 120 Maine 333, 347, 114 A. 296 (1921). It was there held:

“Where the person making the entries is the only person having knowledge of the delivery of the goods or the performance of the services, and he is dead, insane, or out of the jurisdiction of the court, or unable to attend court to give his testimony or give his deposition, upon proof of his handwriting and that the books were kept in the regular course of business, and that it was his duty or practice to make such entries at or near the time of delivery of goods or performance of services, the books themselves, if they otherwise appear to be regularly and fairly kept may be sufficient proof of delivery of goods or services performed.”

In 30 Am. Jur. 2d Evidence § 950, the stated purpose of the Business Record Statutes such as Ark. Stat. Ann. § 28-928 (Repl. 1962) is as follows:

“The Model Act for Proof of Business Transactions, which has been adopted in a few states and by Congress, permits a writing or record made in the regular course of business to be received in evidence without the necessity of calling as witnesses all the persons who had any part in making it. In other words, the act does away with technical rulings which excluded records ordinarily used in business transactions when not formally identified by the makers.”

In Scowcroft & Sons Co. v. Roselle, 77 Idaho 142, 289 P. 2d 621, 55 A.L.R. 2d 1 (1955), there was involved an action by a wholesaler to recover for merchandise shipped and delivered to a store operated by the retailer’s agent. Under a statute similar to ours the court held:

“The records of account of respondent, introduced in evidence, constitute sufficient evidence to sustain a finding by the jury that respondent had sold and delivered to the Summitt Supply Company the merchandise therein listed for the price therein set out, and a finding as to the payments made upon the account and the balance due thereon.”

In our own case of Harrison v. Stale Farm Mutual Insurance Co., 230 Ark. 630, 326 S.W. 2d 803 (1959), the question involved was whether State Farm had cancelled an insurance policy by mailing a notice of cancellation addressed to Harrison. We there held that the business records of State Farm were evidence under Ark. Stat. Ann. § 28-928 of the mailing of the notice of cancellation.

The record here shows that the whereabouts of manager Blaylock was unknown to appellee at the time of trial. Under these circumstances it appears to me that llie records kept by Blaylock showing the deposits that he either made or was to make within a reasonable time of the making of the business record entry are sufficient either under common law or the statute to show delivery of the deposits to the night depository.

Since business records of State Farm in the Harrison case constituted evidence to show that State Farm had properly addressed, stamped and deposited a letter of cancellation in the post office, I am at a loss to understand why the records here are not sufficient to show a placing of the daily deposit in a hank’s night depository.

Therefore, I dissent.

Holt, J., joins in this dissent.


author: J. Fbeu Jones, Justice.

text:
    United States Fire Insurance Company v. State Farm Fire and Casualty Company and National Investors Fire and Casualty Insurance Company
    5-4924
    441 S.W. 2d 787
    Opinion Delivered June 9, 1969

      Crumpler, O’Connor, Wynne & Mays for appellant.

      Shackleford & Shackleford for appellees.
   J. Fbeu Jones, Justice.

This appeal arises from litigation between three insurance companies as to their proportionate liability under separate liability policies issued to three separate individuals. The facts giving rise to the litigation came about in this manner:

On April 19, 1965, several young people were water siding behind motor boats on the Ouachita River near Camden, Arkansas. Walter Horne owned a motor boat and Harry Parker III was driving the boat, with Horne’s permission. Parker was pulling Eric Davis on water skis behind the boat. In the course of this activity, one Gerald Carney sustained personal injuries and filed suit for damages against Horne, Parker and Davis. A jury trial resulted in a judgment against Parker and Davis for $40,000 and under instructions on separate interrogatories, the jury found that Parker and Davis were engaged in a joint enterprise and apportioned the negligence between Parker and Davis as 90% to Parker and 10% to Davis.

Horne’s boat was covered under a liability policy issued to him by State Farm Fire and Casualty Company with maximum coverage of $25,000 and with the following provision:

“To pajr all sums which the insured shall become legally obligated to pay as damages because of bodily injury sustained 'by other persons and property damages, arising out of the ownership, maintenance or use of owned watercraft, and the company shall defend any suit against the insured alleging such bodily injury or property damage and seeking damages which are payable under the terms of this policy, even if any of the allegations of the suit are groundless, false or fraudulent; but the company may make such investigation and settlement of any claim or suit as it deems expedient.”

Parker was covered under a home owner’s liability policy issued by National Investors Fire and Casualty Company with a maximum coverage of $25,000, and Davis was covered by an identical policy issued by United State Fire Insurance Company. The two policies covering Parker and Davis contained identical provisions as follows:

“To pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of bodily injury or property damage...
Tf the Insured has other insurance against a loss covered by this policy, this Company shall not be liable under this policy for a greater proportion of such loss than the applicable limit of liability stated in the Declarations bears to the total applicable limit of liability-of all valid and collectible insurance against such loss, provided that with respect to loss arising out of the ownership, maintenance, operation, use, loading or unloading of . .,
(2) watercraft, this insurance shall not apply to the extent that any valid and collectible insurance, whether on a primary, excess or contingent basis, is available to the Insured.”

The $40,000 judgment against Parker and Davis was paid by the three insurance companies with State Farm paying the full amount of its primary coverage on the watercraft in the amount of $25,000. United States Fire paid $4,000 on its secondary liability, or excess coverage, for Davis’ 10% negligence and National Investors paid the remaining $11,000 on its secondary liability or excess coverage in satisfaction of the judgment. Upon satisfying the judgment, at the original trial, the insurance companies through their respective insureds, reserved the right by stipulated agreement, to adjust their proportionate liabilities under their policy coverages in subsequent litigation between themselves.

As a result of this agreement, United States Fire instituted the present litigation by complaint against State Farm and National Investors setting out the above facts and alleging as follows:

“[Tjhat the coverage available to the said Harry Parker III, under the foregoing provision was excess to that of the aforementioned Horne Policy; that the defendant, National Investors Fire and Casualty Company, is liable for contribution under the Judgment described above to the extent of ninety per cent (90%) of any amount remaining on said Judgment in excess of the coverage provided by said Horne Policy, or the sum of $13,500.00.
[Tjhat the coverage available to the said Eric Davis under the foregoing provision was excess to that of the aforementioned Horne Policy; that the plaintiff is liable for contribution under the Judgment described above, to the extent of ten per cent (10%) of any amount remaining on said Judgment in excess of the coverage provided by said Horne Policy, or the sum of $1,500.00; . .
That plaintiff should be given judgment of and from the defendant, National Investors Fire and Casualty Insurance Company, for the sum of $2,-500.00 paid by it in contribution upon satisfaction of said judgment in. excess of that required under the terms of said policies and Judgment; that plaintiff should also be given judgment of and from said defendant for 12% penalty on said $2,500.00, together with a reasonable attorney fee;
That under the terms of the Horne Policy, the defendant, State Farm Fire and Casualty Company, was required to provide the said Eric Davis with a defense to said suit, and to pay all costs of said suit adjudged against Eric Davis; that the. said defendant failed to offer or provide Eric Davis with a defense, and this plaintiff was required to expend the sum of $2,981.38 to provide Eric Davis with such defense, and also contributed the sum of $64.49 toward payment of the court costs adjudged against the said Harry Parker III, and Eric Davis; that plaintiff should also be given judgment of and from the defendant, State Farm Fire and Casualty Company, in the amount of $3,045.87 for reimbursement of said costs of defense and court costs, together with a penalty of 12% of said sum and a reasonable attornev fee.”

United States Fire prayed judgment against National Investors for $2,500, together with penalty and attorney’s fee. Hnited States also prayed judgment against State Farm for $3,045.87, together with penalty and attorney’s fee.

State Farm answered admitting coverage on the boat to the extent of $25,000 which amount had been paid toward satisfaction of the $40,000 judgment. State Farm denied that it had failed to perform its full duties under its contract and "that if it had any duty to provide defense counsel for Davis, he waived such right by not requesting State Farm to defend him and is now es-topped to assert such claim.

National Investors answered by general denial and counterclaim against United States Fire for $3,500 contending' that Parker and Davis were equally liable for the judgment in excess of the $25,000 State Farm had paid, and that National Investors had overpaid its proportionate liability in the amount of $3,500. A jury was waived and the trial court entered judgment as follows:

“IT IS, THEREFORE, CONSIDERED, ORDERED AND ADJUDGED by the court that the complaint of the plaintiff be and the same is hereby dismissed with prejudice and the defendants are entitled to recover of and from the plaintiff their costs herein expended; and
IT IS FURTHER CONSIDERED, ORDERED AND ADJUDGED by the court that the defendant, National Investors Fire and Casualty Insurance Company, do have and recover of and from the plaintiff, United States Fire Insurance Company, the sum of $3,500 together with interest at the rate of 6c/o per annum until paid.”

United States Fire has appealed and relies on the following points for reversal:

“The Uniform Contribution Among Tort-Feasors Act applies to joint tort-feasors who are joint adventurers.
Appellant as an excess liability insurer, is entitled to contribution from appellee, National Investors. another excess insurer, in proportion to the relative degrees of fault of the respective insured.
As an excess liability insurer appellant is entitled to recover costs of defense of its insured from State Farm the primary carrier.”

The appellant contends that Parker and Davis were, joint tort-feasors and that the Uniform Contribution Among Tort-Feasors Act (Ark. Stat. Ann. § 34-1001 et seq [Repl. 1962]) applies to them even though they may have also been joint adventurers. The appellant contends that it liad paid for Davis more than his pro rata share of the loss and is entitled to contribution from Parker.

The appellee National Investors states its position, as well as that of the appellant, in its brief as follows:

“The arguments advanced by the appellant in its brief ignored the real issue before the Court. We are here concerned with relative rights between Davis and Parker. The claims of IT. S. Fire cannot exceed the rights of Davis against Parker, and, likewise, the claims of National Investors against IT. S. Fire cannot exceed those of Parker against Davis.
The most determinative factor to resolve this issue is the finding by the jury that Parker and Davis were engaged in a joint enterprise at the time of the occurrence. Thus, the rights as between them is determined from this relationship.
* * * [A]ppellant attempts to apply the contribution theory based upon the percentage of negligence attributable to each Davis and Parker. These terms are used where separate and distinct tortious acts, committed by different persons, unite and culminate in injurious results. It is a matter which goes to liability as between the injured party and the tortfeasors, not as to the rights between the tortfeasors.”

The pertinent provisions of the Contribution Among Tortfeasors Act are as follows:

“§34-1001. For the purpose of this act. . .the term ‘joint tortfeasors’ means two [2] or more persons jointly or severally liable in tort for the same injury to person or property, whether or not judgment has been recovered against all or some of them. § 34-1002. (1) The right of contribution exists among joint tortfeasors.
(2) A joint tortfeasor is not entitled to a money judgment for contribution until lie has by payment discharged the common liability or has paid more than his pro rata share thereof.
(3) A joint tortfeasor who enters into a settlement with the injured person is not entitled to recover contribution from another joint tortfeasor whose liability to the injured person is not extinguished by the settlement.
(4) When there is such a disproportion of fault among joint tortfeasors as io render inequitable an equal distribution among them of the common liability by contribution, the relative degrees of fault of the joint tortfeasors shall be considered in determining their pro rata shares solely for the purpose of determining their rights of contribution among themselves, each remaining severally liable to the injured person for the whole injury as at common law.
§ 34-1006. This act [§$ 34-1001 — 34-1000] does not impair any right of indemnity under existing law.
§ 34-1007 (5). As among joint tortfeasors against whom a judgment has been entered in a single action, the provisions of section 2, subsection (4) [§ 34-1002] of this act apply only if the issue of proportionate fault is litigated between them by cross-complaint in that action. ’ ’

The appellant has cited numerous cases recognizing’ the right to contribution between joint tort-feasors and recognizing that an insurer of a tort-feasor is entitled to seek contribution by subrogation from another tortfeasor or bis insurer.

Tiie appellees have cited numorous cases holding that the negligence of each member of a joint venture is imputable to the other and each is liable for one hundred per cent of the damages caused thereby and entitled to equal contribution from each other.

None of the cases cited reach the exact question presented here. The appellant contends that based on its 10% negligence as related to the entire judgment of $40,-000, it paid more than its proportionate share of the remaining $15,000 for which it and the appellee, National Investors, were liable in excess of the primary liability of *25,000 paid by State Farm.

The appellee, National Investors, contends that it has paid more than its proportionate share of the excess by its payment of the $11,000. It contends that since the jury found that its.insured Parker and the appellant ’s insured Davis were engaged in a joint adventure, llieir respective negligence was imputed to each other and that each of them, as between themselves, would be liable for 50% of tire $15,000 excess coverage. The appellee relies on the jury finding of joint enterprise, but overlooks the significance of the jury’s allocation of the negligence as between the joint tort-feasors.

The appellees cite the case of Shultz v. Young, 205 Ark. 533, 169 S.W. 2d 648, for the proposition of why apportionment should not be allowed under the Contribution Act, and the appellees cite a quote in that case from the National Conference of Commissioners on Uniform State Laws, as follows:

“The apportionment device is intended to work as follows: If the evidence indicates that there is a disproportion of fault as among the tortfeasors, the court shall instruct the jury that if it finds the tortfeasors to have been negligent, they si i all also fix their relative degrees of fault. Thus if the court believes that an apportionment of fault- is inappropriate in a particular case, none will be made 3 3

The Commissioners’ note continues as follows:

“Naturally, a court trying a case without a jury will itself make the apportionment of fault when appropriate. Under the English tort contribution act the court always makes the apportionment.; but. the draftsmen feel that in the United States this had best be left to a jury within the ordinary power of a court to keep the issue of negligence from a jury when the evidence indicates that submission thereto would not be ■warranted.”

The Shultz case was an action for damages against two defendants for an assault upon the plaintiff. Quoting from the opinion in that case:

“The court charged the jury that there might be a recovery against either or both appellants, and the jury was further told that the damages might be apportioned between appellants. The instructions also defined the conditions under which exemplary damages might be assessed. A verdict was returned against Shultz for $2,000 and a separate verdict was returned against Myrtle Liberto for $500, and from the judgments rendered upon these verdicts is this appeal.”

On appeal in the Shultz case, the appellants contended that as appellee was injured through the concurring willful acts of appellants, she cannot have satisfaction in a sum exceeding the smallest verdict returned against either of the tort-feasors, this upon the theory that damages for a joint tort must he assessed in a single sum, and the recovery of damages cannot be in excess of the smallest amount awarded against any one of the tortfeasors. The appellants relied on the case of Southwestern Gas & El. Co. v. Godfrey, 178 Ark. 103, 10 S.W. 2d 894, and other cases cited.

In sustaining the judgments, this court said:

•‘These cases sustain this [appellants’] contention, but, subsequent to the rendition of those opinions, act 315 of the Acts of 1941, p. 788, was enacted. This is an act entitled: ‘An act concerning contribution among tort-feasors, release of tort-feasors, procedure enabling recovery of contribution, and making' uniform the law with reference thereto.’
The testimony is sufficient to sustain the verdicts, and the jury had the power to apportion the damages. As no error appears, the judgments must be affirmed, and it is so ordered.”

Prosser on Torts, Contribution, p. 278, § 47, par. 8, 3rd ed. says:

“Normally the apportionment of liability effected by contribution is on the basis that ‘equality is equity,’ which means that each tortfeasor is required ultimately to pay his pro rata share, arrived at by dividing the damages by the number of tortfeasors. In some instances, as where the owner and the driver of a car are joined as defendants, equity may require treating the two together as liable for a single sham, or that, the sham of a tortfeasor who is insolvent or absent from the jurisdiction be borne by the others. In some jurisdictions, however, either by express provision of statute or by interpretation of it, the distribution of the liability is in proportion to the comparative fault of the defendants.” (Emphasis supplied.)

Under the italicized sentence of the above paragraph, Prosser cites Little v. Miles, 213 Ark. 725, 212 S.W. 2d 935, as falling within this rule. The Miles case followed Shultz v. Young, supra, and in both cases jury verdicts apportioning the liability between joint tortfeasors were permitted to stand under the provision of the contribution among joint tort-feasor act providing’ that “When there is such a disproportion of fault among joint tort-feasors as to render inequitable an equal distribution among them of the common liability by contribution, the relative degrees of fault of the joint tortfeasors shall be considered in determining their pro rata share. ’ ’

As pointed out by Prosser “there is an important distinction between contribution, which distributes the loss among the tort-feasors by requiring each to pay his proportionate share, and indemnity which shifts the entire loss from one tort-feasor who has been compelled to pay it to the shoulders of another who should bear it instead.” Contribution, and not indemnity, is involved in the ease at bar.

„ The appellant, as well as the appellee National Investors, agreed by contract to pay what their respective insureds were legally obligated to pay. We can see no point in submitting the comparative negligence as between the two tort-feasors to the jury except in aid of an equitable distribution of the liability as between the two tort-feasors, and in arriving at their pro rata share of the loss for determining their rights of contribution among themselves.

As stated by Dr. Bobert A. Leñar in footnote 28 to his article “Contribution and Indemnity Between TortFeasors,” U. Penn. L. Rev., vol. 81 (1932-33), p. 136: “Law courts freely recognize the equitable origin and nature of the remedy of contribution.”

We agree with the appellant that the Uniform Contribution Among Tortfeasors Act applies to joint tortfeasors who are joint adventurers. If it were otherwise, Üie legisla ture would lmve surely excepted joint adventurers from the provisions of Ark. Stat. Ann. § 34-1002 (4) (Repl. 1962).

We hold that under the jury verdict, as between Parker and Davis, Parker was legally obligated to pay 90% of the excess amount of $15,000, amounting to $13,-500; and that Davis was legally obligated to pay 10% of the excess amount of $15,000, amounting to $1,500, and that the appellant and the appellee National Investors contracted to pay these amounts. We conclude that the appellant has paid more than its pro rata share of the $15,000 and is entitled to recover from the appellee National Investors the excess paid in the amount of $2,500. We are of the opinion that the trial court erred in dismissing appellant’s complaint and entering judgment for the appellee National Investors Fire Insurance ('ompany.

As to appellant’s third point, we agree with the appellees and the trial court. Each of the parties to this lawsuit agreed to defend the suits against their respective insureds. The appellant did defend its insured under its contract and cannot now render its account for services rendered to the appellee State Farm, who may have also been obligated to defend Davis under its contract with Horne if Davis was using the boat within the meaning of the policy. Neither Davis nor the appellant requested State Farm to provide a defense for Davis and State Farm was under no obligation to force its services upon Davis to the exclusion of Davis’ own insurance carrier who is the appellant in this case. Davis might have even considered that there would arise a conflict of interest between himself and his eodefendants and certainly he had a right to call on his own insurance carrier for his defense.

The judgment of the trial court is reversed as to the appellant and the appellee National Investors Fire Insurance Company, and is remanded for entry of judgmeiit consistent witli this opinion. The judgment ls affirmed as between the appellant and the appellee State Farm Fire and Casualty Company.


author: Conley Byrd, Justice.

text:
    Chicago, Rock Island & Pacific Railroad Co. v. Lois A. Lynch, Individually and as Executrix of the estate of Jude J. Lynch, Deceased
    5-4931
    441 S.W. 2d 793
    Opinion Delivered June 9, 1969
    Wright, Lindsey & Jennings by William B, Overton for appellant.

      Ilerrod & Cole for appellee.
   Conley Byrd, Justice.

In a wrongful death action by appellee, Lois A. Lynch, individually and as executrix of the estate of Jude J. Lynch, deceased, against appellant Chicago, Rock Island & Pacific Railroad Co., the jury returned a verdict finding the railroad 61% negligent and appellee’s decedent 39% negligent. By proper motion the railroad has raised in this court the sufficiency of the evidence to sustain the verdict.

The record shows that the railroad tracks in the city of Carlisle run cast-west, with the main line being immediately noi’th of a team line. Highway 13 crosses the railroad at right angles in a north-south direction. At the time of the collision, appellee’s decedent was driving north on Highway 13 when he was struck by a westbound freight train. The testimony when stated most favorably to appellee shows that the railroad grade crossing is frequently used by the traveling public, that trains pass over it at least five times a day, and that because of the surrounding circumstances, such as parked boxcars, a reasonably careful person could not use the crossing with safety in the absence of special warnings. However, it is on the issue of special warnings that we find appellee’s evidence to be insufficient to support the verdict.

Appellee’s and appellant’s witnesses all state that decedent approached the crossing from the south slowly and without ever stopping. Three motorists headed south had stopped north of the tracks and were waiting for the train to pass. The motorist closest to the tracks was Billie Sue Pereiful, behind her was Louis Lee and the third was Ethel Loftis. Louis Lee was called as a witness by appellee. Billie Sue Pereiful and Ethel Loftis were called as witnesses by the railroad. All three stated that the signal lights on the north side of the tracks to warn southbound motorists were working. Gwendolyn Medford, a. witness called by appellee, stated that she was about a block south of the crossing when she heard the impact and that when she parked her car near the signal lights for warning northbound motorists, the lights were blinking. Steve Carrick, a witness called by appellee, testified that he was on a motorcycle following right behind the decedent at the time of the accident. Steve Garrick said that as he approached the track behind decedent the blinker lights were working but that he did not hear the bell on the north side of the track nor did he hear the train coming until he heard the air-brakes.

In addition to the foregoing testimony, Billie Sue Perciful says that she saw the decedent slowly approach the crossing without ever stopping and that he was hit while looking' down the railroad tracks to his left.

In support of her contention that there was enough evidence on the insufficiency of the warning to go to the jury, appellee argues:

“...Because of the objection of the railroad company we were not allowed to show what suggestions the Mayor and City Council made to the railroad company in regard to changing* the signals or what the reasons were. But, even so the jury does not check its common sense when it goes into tin* jury box. Men of common sense know that Rock Island could have installed gates at the crossing or could have had a flagman at this crossing to warn of the abnormal dangers. The Court told the jury that if the crossing was abnormally dangerous, then the railroad company was required to use “ordinary care to give a warning sufficient to permit the traveling public to use the crossing with reasonable safety.” The jury knew of gates and flagmen. The jury did not have to speculate about such safety measures. We insist that the evidence made a jury question as to whether this was an abnormally dangerous crossing where Mr. Lynch was killed: And that disposes of appellant’s first point.”

However we find that the decision in this case is controlled by Missouri Pacific, Railroad Company, Thompson, Trustee, v. Carruthers, Admr. 204 Ark. 419, 162 S.W. 2d 912 (1942), where we said:

“... Rither he saw' and heard these signals and the noise of the approaching train and thought he could beat it across, or he was preoccupied with sometliing else and failed to see and hear what was plainly to be seen and heard and what every one else saw and heard, including his own witnesses. In cither case, there can be no recovery, because his own negligence was the proximate cause of his death. ’ ’

In view7 of the possibility of a newr trial we think it necessary to comment upon the testimony .introduced wdth reference to three other accidents at this crossing. The testimony shows that these accidents occurred in 1953, 1961 and 1964-, all of which involved northbound motorists and westbound trains. In Bush, Receiver v. Taylor, 130 Ark. 522, 197 S.W. 2d 1172, 7 ALR 262 (1917), wo pointed out that before such proof could be received, there must be a showing of such substantial similarity of conditions in the proof as to make it reasonable and probable that the same cause existed to produce the same result. The evidence here falls far short of the substantially similar conditions involved in St. Louis Southwestern Railway Co. v. Jackson, Admr., 242 Ark. 858, 416 S.W. 2d 273 (1967). There the proof showed that the Jackson automobile was the third car in a twowmek period to collide with a southbound train at the Pair Oakes crossing and that in each of the three collisions the automobiles wrere driving into the sun- either toward the east, in the. morning or toward the west in the afternoon. In each instance the automobiles hit either the second or third diesel of a southbound train and in each instance the automobiles hit the train with- considerable force after having skidded for a distance. Here the testimony with reference to other accidents is not only remote in time but there is little or no testimony to show7 that the same conditions existed at the time of each collision or that the automobiles were traveling under substantially similar conditions. Without attempting to itemize the many factors which might be introduced to show the substantially similar nature of the prior accidents, we have mentioned enough here to demonstrate that the proof made was not sufficient to make it reasonable and probable that the same cause existed to produce all the accidents involved.

We come now to the question of whether to dismiss or remand. The motion of the Railroad Co. questioning the sufficiency of the evidence was both for judgment notwithstanding the verdict and for a new trial. Our procedure under Ark. Stat. Ann. § 29-111 (Repl. 1962) with reference to judgments n.o.v. is not exactly clear. See 17 Ark. L. Rev. 226. However, under the strongest interpretation given to a motion for judgment n.o.v., it constitutes nothing more or less than a request for directed verdict. We had the same issue before us in St. Louis Southwestern Railway Co. v. Clemons, 242 Ark. 707, 415 S.W. 2d 332 (1967), and we there pointed out that the general rule is to remand common law cases for a new trial. It is only in an exceptional case that reasons arise for a dismissal. Here there was an attempt to show that the Railroad had so operated its warning system that the traveling public had become justified in having a disrespect for the warnings given. Such evidence may be available. In accordance with the rule laid down in the Clemons case we remand this case for a possible new trial.

Reversed and remanded.


text:
    Missouri Pacific Railroad Company v. Dermott Grocery and Commission Company
    5-4955
    441 S.W. 2d 798
    Opinion Delivered June 9, 1969

      William J. Smith and Michael G. Thompson for appellant.
    TP. K. Grubbs, Sr. for appellee.
   Conley Byrd, Justice.

The issue on this appeal is whether the appellant Missouri Pacific Railroad Company is entitled to collect from appellee Dermott Grocery and Commission Company, as consignee, unpaid charges on intrastate shipments of freight on bills of lading marked “prepaid.” The Railroad claims an absolute right to collect the unpaid freight charges under Ark. Stat. Ann. §§ 73-1505—73-1507 (Repl. 1957). The consignee, after receipt of the goods, had paid consignor not only for the goods but also for the freight charges. On this basis it claims that the railroad is estopped to collect the charges.

The stipulated facts show that the Railroad, pursuant io Interstate Commence Commission Ex Parte Order No. 73, had extended a line of credit to the shipper, Horse Shoe Mills, Inc., and charged the freight bills herein sued for against the line of credit so extended. However, the Railroad has not received payment on the credit extended to Horse Shoe Mills, Inc., the latter having been adjudged a “no-asset” bankrupt.

This is a case of first impression under Arkansas law. Hovrever there are numerous authorities construing 49 U.S.C.A. § 3(2) containing’ language similar to the statute here involved. See Pitsburgh, C. C. & St. L. R. Co. v. Fink, 250 U.S. 577, 63 L. Ed. 1151, 40 S. Ct. 27 (1919). Even under the authorities construing this statute, appellant recognizes that it would be less than candid if it did not admit that there is a divergence of authoiñly on the estoppel issue. Here the record shows :

“1. That the carrier made the full and proper charge for the freight shipped;
“2. That the carrier itself marked the bills of lading ‘prepaid’ pursuant to a line of credit extended to the consignor under rules and regulations of the Interstate Commerce Commission; and
“3. The consignee has paid both for the goods and the freight charges to the consignor.”

Under these circumstances Ave are unable to see how the consignee received or retained any preference contrary to the statute and hence how the public policy against preferences is involved at all. In Griffin Grocery Co. v. Pennsylvania R. Co., 93 Ga. App. 546, 92 S.E. 2d 254 (1956), and in Missouri Pacific Railroad Co. v. National Milling Co., (D.N.J. 1967), 276 F. Supp. 367, one will find set forth the many reasons supporting the conclusion Ave have reached.

Affirmed.


author: Frank Holt, Justice.

text:
    F. L. Miles, et al v. F. A. Teague, et al
    5-4908
    441 S.W. 2d 799
    Opinion Delivered June 9, 1969

      Putman, Davis & Bassett for appellants.

      Hardy W. Croxton for appellees and cross-appellants.
   Frank Holt, Justice.

The appellees brought this action to foreclose a second mortgage. In January, 1966 the appellees sold their turkey and stock farm to the appellants for a total price of $140,000.00 which included some farm machinery and other personal properly. The appellants assumed an existing first mortgage in the amount of $42,500.00, payable $5,000.00 annually. They gave appellees a note for $47,500.00, secured by a second mortgage on the farm, payable at the rate of $4,-750.00 annually beginning on January 15, 1967. By oral agreement, the purchase price balance of $50,000.00 was considered as a down payment and to be paid by appellants as an unsecured open account.

Appellees filed their foreclosure suit in February, 1968 alleging that no payments had been made on the note and asked for judgment against the appellants in the sum of $47,500.00, plus accrued interest, costs and attorney fees. Appellees also alleged that the appellants had agreed to make a $50,000.00 down payment of which “the sum of $25,000.00 was to be allocated for the personal property and $25,000.00 for the real property.” In their answer the appellants denied the default and alleged that they were current in the payment of all installments due on the second mortgage and that they had made sufficient payments on the personal property to “entitle them to an agreed bill of sale. The appellants asked that the appellees’ complaint be dismissed and that appellees be ordered and directed to deliver to appellants the warranty deed, together with a bill of sale to the personal property. With the issues thus joined, the cause was submitted to the chancellor.

The appellants contended that according to the oral agreement their payments were first to b.e applied to the two mortgages and then any balances were to be applied to the payment of the personal property first and then to the real property. Further, that when the sum of $25,000.00 was paid on the down payment, appellees were to deliver a bill of sale to the personal property. Appellants admit that the $50,000.00 down payment has not been paid in full by them. The appellees assert, however, the oral agreement was that all of the net payment received from appellants was to be first applied to the full $50,000.00 down payment account and the deed and bill of sale were not to be delivered until there was payment in full; that there was a balance due on the full down payment; that all payments had been applied entirely to the down payment, with appellants’ knowledge; that no payments had been made on the second mortgage and, therefore, it was in default.

The chancellor found:

“That nothing had been paid upon the principal or interest on the note. That said note is now in default, and plaintiffs are entitled to a judgment on said note. That said note was secured by a real estate mortgage . ..
“The court finds that the agreement between the parties was that payments made by defendants would first be applied to the $25,000.00 sale price of the personal property, and payments would next be applied to the remaining $25,000.00 of the down payment.
‘! That the said plaintiffs shall have and recover from the said defendants the sum of [$54,981.25] principal and interest due and interest at the rate of 6 percent per annum from this date, and the additional sum of $4,750.00 for attorney fees and interest at the rate of six percent per annum from this date until paid. The Court finds that the defendants have paid the plaintiffs in full for the personal property described in said Bill of Sale, and the said plaintiffs are ordered to deliver the Bill of Sale to said personal property to the defendants and the title of said personal property is vested in the defendants.
“'While it is apparent that monies are due plaintiffs from the defendants in connection with the down payment, the defendants agreed to make upon the lands and property in addition to the debt evidenced by the note and mortgage, relief was not sought for this item in the pleadings. That the plaintiffs are not required to deliver the deed to the above lands to the defendants in the event of the payment of the judgment herein provided for, until the balance of the agreed down payment is paid in full...”

The chancellor ordered foreclosure of the second mortgage and delivery of the bill of sale.

On appeal, the appellants contend for reversal that the trial court erred in holding appellants in default on the note and mortgage and in rendering judgment for the appellees thereon, and, further, that the appellees are precluded by the doctrines of waiver and estoppel from accelerating the payment of the note and mortgage.

On cross-appeal, the appellees assert that the Court erred in holding that the payments made by the appellants would first be applied to the personal property and that the personal property pow belongs to the appellants. Further, that the Court erred in not sustaining the appellees’ motion and plea that the pleadings be amended to conform with the proof wherein appellees sought judgment for the balance of the down payment.

The appellants were permitted to take possession of the farm and personal property before making any payments. During 1966 appellants paid to the appellees $32,000.00 in cash. It is appellants’ position that during the years of 1966 and 1967 the appellees received from appellants a total of approximately $65,000.00 which included cash payments together with income from the operation of the farm by the appellants. Further, that appellees had refused a tender of a $20,000.00 cash payment about a month before the foreclosure action. The appellees’ position is, however, that during this period they had only received from the appellants the gross sum of $53,520.84 out of which the appellees had to pay the sum of $26,261.02 for agreed necessary expenses in the operation of the farm which included insurance, taxes, and other agreed items, leaving a balance of $27,259.82 as net receipts from the appellants.

There was evidence by the appellees that the oral agreement provided that the $50,000.00 down payment would be paid immediately; that appellees would first deduct from the receipts the payments of certain costs that would become necessary in the operation of the farm as well as taxes, insurance, etc.; that any net payments would then be applied to the $50,000.00 unsecured open account until it was fully paid; that this application of the payments was with the full knowledge of appellants, leaving a balance of $22,740.18 due on the down payment; that no payment had been applied on the second mortgage ; that no payment had been made by appellants on their note and mortgage; that appellants had been warned repeatedly by the appellees of the default and on two occasions appellees’ attorney had written appellants about their delinquency on payments on this mortgage ; that appellees had exercised forbearance during two and one-half years in bringing this foreclosure proceeding and further, in the collection of the full down payment; that appellees were to retain and not record the deed and second mortgage nor deliver the bill of sale to the personal property until the full down payment account was paid; that appellees Lad not agreed to accept a $20,000.00 cash payment a month before foreclosure; that if appellees had accepted such a payment and applied it according to their oral agreement there would still be a balance due on the open account.

The appellants do not dispute the $50,000.00 account as a down payment. They do dispute the oral agreement as to the priority in the application of their payments and as to when they would be entitled to the bill of sale to the personal property. They offered evidence that their payments were first to be applied to the two mortgages and then any balances were to be applied first to payment of the personal property; that whenever tlieir payments on the open account amounted to $25,000.00, it was understood that the bill of sale, which was itemized and completed, would be delivered to them; that this was necessary and so understood for purposes of needed collateral and additional financing which they had made an effort to do; that it was understood that appellants could not make a full and immediate down payment; that their payments depended upon the profits from the purchased farm and the sale of property they owned in another state; that appellants had offered a $20,000.00 down payment to appellees about a month before foreclosure proceedings were started and that appellees insisted upon a $25,000.00 payment plus a $4,-000.00 boat and a rewriting of the deed, note and mortgage, to which appellants would not agree.

It is a familiar rule of law that ‘ ‘ as between debtor and creditor, where the debtor fails to designate the debt and there are several debts to which the payment can be applied, the creditor may apply it as he chooses.” Cooper v. Sparrow, 222 Ark. 385, 259 S.W. 2d 496 (1953); Hawkins v. Hawkins, 200 Ark. 38, 137 S.W. 2d 904 (1940); Johnson v. Gammill, 231 Ark. 1, 328 S.W. 2d, 127 (1959); Snow v. Wood, 163 Ark. 280, 259 S.W. 733 (1924). Further, the burden was on the appellants, the debtors, to show that their payments were given and to be applied first in satisfaction of the installments due on the second mortgage rather than upon the agreed down payment. Hill v. Green, 127 Ark. 406, 192 S.W. 209 (1917). On this issue, as well as the other facets of this case, the evidence was in conflict as to the oral agreement between the parties. Their testimony and exhibits tended to support their respective contentions. When we, on appeal, consider the question of the preponderance of the evidence, the judgment of the chancellor will be considered as persuasive in situations where “the evidence is conflicting, and evenly poised, or nearly so.” Turnage v. Matkin, 227 Ark. 528, 299 S.W. 2d 831 (1957); City of Little Rock v. Newcomb, 219 Ark. 74; 239 S.W. 2d 750 (1951); City of Little Rock v. Tucker, 234 Ark. 35, 350 S.W. 2d 531 (1961). In Hunter v. Dixon, 241 Ark. 725, 410 S.W. 2d 389 (1966), we said:

‘ ‘ This court has held in a long line of cases that while chancery cases are tried de novo in this court, a decree of the chancery court will not be reversed where there is a disputed question of fact unless the findings are clearly against the preponderance of the evidence.”

Upon a review of the issues presented by the pleadings, the testimony and the exhibits in the case at bar, we cannot say that tlie findings of the chancellor are against the preponderance of the evidence.

Affirmed on direct and cross-appeal.


author: Frank Holt, Justice. Gauleton Harris, Gliief Justice.

text:
    The Millers Mutual Fire Insurance Company of Texas v. David Russell, et al
    5-4919
    443 S.W. 2d 536
    Opinion Delivered June 9, 1969
    [Rehearing denied August 25, 1969.]

      Wrighi, Lindsey & Jennings for appellant.

      Frank II, Coa■ for appellee (Russell).

      Hall, Tucker & Lovell and Jiose, Meek, Hou,se, Barron, Nash & Williamson for appellee (Nelson).
   Frank Holt, Justice.

The appellee, David Russell, brought this action to recover on a fire insurance policy in the amount of $9,000.00 together with a twelve percent penalty and attorney’s fee as provided by Ark. Stat. Ann. .§ 66-3238 (1966 Repl.). The appellee, Herman-Nelson, and the Veterans’ Administration, were made parties to the action for the purpose of determining their respective interests in the property destroyed by fire. The appellant insurer, the Millers Mutual Fire Insurance Company of Texas, denied coverage in its answer, relying upon the clause in the policy suspending the insurance “while the hazard is increased by any means within the control or knowledge of the insured.” The appellant cross-complained against appellee, Nelson, for any amounts which it might be adjudged to pay as a result of the suit on the policy. During the trial, the appellant admitted liability as to the interest of the Veterans’ Administration as a mortgagee. The trial court directed a verdict in favor of appellee Russell for the full amount of the policy coverage, including penalties and attorney fees. The trial court refused to direct a verdict in favor of appellant against appellee Nelson for any of the amounts it was liable to pay under the policy. The appellant’s claim against appellee Nelson -was submitted to the jury which returned a verdict in favor of appellant in the amount of $72.44. This represented an uncollected increase in premium.

For reversal of the judgment, the appellant contends that the lower court erred in failing to direct a verdict for appellant on its cross-complaint against appellee Nelson for the full amount of any judgment rendered against appellant. We do not agree.

When the policy Aras first issued by the appellant, the building was covered as a “frame, approved roofing, one-family, tenant dwelling.” It Aras owned by appelle.e Nelson, an independent insurance agent, who had been appellant’s agent since 1951. A standard mortgagee clause provided coverage for the Veterans’ Ad-minis (ration as a mortgagee. The policy contained the following provision:

“Conditions Suspending or Restricting Insurance. Unless provided in writing' adding’ hereto, this company shall not be liable for loss occurring
(a) While the hazard is increased by any means within the control or knowledge of the insured ; . .. ”

The insured building was used as a residence until it was sold in October, 1966 by appellee Nelson to appellee Russell who used it as a terminal for his trucking company until September, 1967 when it was completely destroyed by fire.

Nelson learned in February 1.967 of the change in the use of the building and promptly requested an inspection and rating from the Arkansas Inspection and Rating Bureau in order to determine the premium rate to he applied to the new use of the building. About the same timo, Nelson issued an endorsement which amended the name of the insured on the policy to read: “Herman Nelson, Vendor, David Russell, Vendee.” This endorsement was sent to the appellant. In March, Nelson received a rating notification from the bureau that the building was classified for insurance rating purposes as “office occupancy, frame, unprotected”, which is a risk unacceptable to appellant according to an underwriting guide for its agents.

This classification reflected an increase in the hazard and a corresponding increase in premiums if accepted. The change in rate was approximately six times greater than the rate that was being paid. Upon a routine billing by Nelson’s office, this lower annual premium Avas paid in April by the Veterans’ Administration, the mortgagee. This premium Avas forwarded by Nelson, less his commission, to the appellant. Nelson iioater notified appellant of the change in use or occupancy of the building. According to him, this was due to his understanding that appellee Russell was in the process of placing his insurance elseAvhere.

The issue of the negligence of appellant’s agent, appellee Nelson, AAms submitted to tiro jury upon proper instructions and ariproAmcl by the appellant. The jury found from an interrogatory that Nelson knew, or should have knoAvn, that the risk or hazard Avas increased by appellee Russell’s use of the building. In another interrogatory, the jury found that appellee Nelson did not know, nor should haAre known, that the risk in insuring the property as a truck terminal was a prohibited risk for which appellant would not extend coverage. As stated previously, the jury awarded $72.44 to the appellant for the increase in premium for the added risk.

In determining whether the trial court should direct a verdict, avc review the evidence on appeal most favorable to the party against Avhom the directed verdict is requested. It is not error for the trial court to refuse the request if there is any substantial evidence tending to establish the issue favorable to the party against whom the request is made. Home Mutual Fire Insurance Company v. Cartmell, 245 Ark. 44, 430 S.W. 2d 849 (1968); Barrentine v. The Henry Wrape Company, 120 Ark. 206, 179 S.W. 328 (1915); Yahraus v. Continental Oil Company, 218 Ark. 872; 239 S.W. 2d 594 (1951). In the case at bar, appellee Nelson had been an agent of appellant for approximately seventeen years. He admitted that he determined there Avas an increase due in the premium rate and that he failed to collect and forAvard the additional premium for Avhich the jury found him liable. However, other than the testimony of another agent, Nelson’s testimony stands practically undisputed that appellant would have accepted the additional coverage. He testified tliat he had placed a big portion of his general type business with appellant during his seventeen years as their agent; that from his experience and business practices with appellant it would have accepted an endorsement by him showing a change of occupancy and an increase in premium; that this was the only thing that was not done by him according to the usual business practices with the appellant. In substance, his testimony is -largely uncontradicted that, based upon his own experience and business practices with the appellant, if he had endorsed this policy to cover the new’ classification, and forwarded the additional premium, appellant -would have accepted it. We must-hold that there was substantial evidence to support the verdict on the issue as submitted to the jury and that the court properly refused to direct a verdict for the appellant.

Appellant next insists that the lower court erred in failing to direct a verdict in favor of appellant and against appellee Russell. Appellant argues that the. coverage was suspended as of the time of appellee Russell’s change in the use and occupancy of the building because of the undisputed increase in “the hazard” prohibited by the policy. We cannot agree. Appellee Russell, as an insured, paid and appellant received the annual premium on the policy. In Allemania Fire Ins. Co. v. Zweng, 127 Ark. 141, 191 S.W. 903 (1917), we said:

“Where an agent does anything within the real or- apparent scope of his authority it is as much the act of the principal as if done by the principal himself. ’ ’

We have consistently followed the general rule that a provision in a fire insurance policy included for the benefit of the insurer can be waived by the insurer through the conduct of its agent acting within the real or apparent scope of his authority. Capital Fire Ins. Co. v. Montgomery, 81 Ark. 508, 99 S.W. 687 (1907) and Queen of Arkansas Ins. Co. v. Faster, 108 Ark. 261, 156 S.W. 848 (1913) [warranty against incumbrances]; Kansas City Fire & Marine Ins. Co. v. Kellum, 221 Ark. 487, 254 S.W. 2d 50 (1953) [sole ownership clause]; Farmers Union Mutual Ins. Co. v. Hill, 205 Ark. 139, 167 S.W. 2d 874 (1943); Washington County Farmers Ins. Co. v. Reed, 218 Ark. 522, 237 S.W. 2d 888 (1951) and Peoples Indemnity Ins. Co. v. Mashburn, 233 Ark. 575, 345 S.W. 2d 922 (1961) [occupancy clauses].

It is undisputed in the ease at bar, that appellant’s agent was fully aware of the change in occupancy and the increased hazard in the use of the building by the insured.

Affirmed.

Harris, G.J., and Byrd, J., dissent.

Gauleton Harris, Gliief Justice.

I disagree with the majority insofar as this case relates to Nelson. Though the property occupied by Bussell was being used as a truck terminal as early as February, 1967, and though Nelson was familiar with this fact, he did not, at any time before the fire, on September 28, 1967, advise the company by letter, endorsement, new policy, or in any other manner, that the status of the property had changed from residential to commercial. He admitted that he had a duty as appellant’s agent to notify the company of the change of use, and his only defense was to say that the company would have accepted the policy, even though it had been endorsed to cover the new classification. This evidence is not only speculative, but is also contrary to the evidence offered by appellant.

James Arthur Dunaway, also an agent for appellant, testified that the company furnished an underwriting guide and handbook to its agents, which showed whether a particular company would or would not write insur¡mee on a particular type of risk. The witness said that the risk accepted by Nelson was on the Millers Mutual prohibited risk list.

The result of Nelson’s negligence in failing to notify appellant is that Millers Mutual Fire Insurance Company of Texas is liable under a risk that it did not know it held — ¡1 risk that it never had the opportunity to refuse. 1 am of the opinion that the company is entitled to recover from Nelson the full amount of the judgment rendered against it.

I. therefore respectfully dissent.

Byrd, J., joins in this dissent.