text:
    Ark. Farmers Assn., Inc. v. Towns.
    5-2220
    342 S. W. 2d 83
    Opinion delivered January 16, 1961.

      Thompson & Thompson, for appellant.

      Carroll C. Cannon, for appellee.
   Ed. F. McFaddin, Associate Justice.

On December 19, 1960 we sustained appellee’s motion to dismiss the appeal; and appellant has filed a petition for rehearing. Because there seems to be some confusion about the point here involved, we believe it is proper to deliver a written opinion for future guidance.

The judgment of the Trial Court was entered on February 25, 1960. Notice of appeal was filed by appellant the same day; and contemporaneously the Trial Court granted the maximum of seven months for filing the appeal and record in this Court. Such time expired in September, 1960. Entirely disregarding such matters as (a) appellee’s right to file “amended designation” for partial record after first designating the entire record, (b) appellant’s failure to designate the points as regards the partial record and (c) appellee’s power to waive the statutory requirements as to the time for filing the designation, we come to the vital point of the case.

The appellant filed designation for only a part of the record. The appellee within ten days thereafter (Section 8 of Act 555 of 1953, Ark. Stats., § 27-2127.2) filed his designation for additional record, specifying: “All of the pleadings, the testimony and exhibits of all of the witnesses, and the instructions given and refused by the Lower Court, the verdict of the jury on the complaint and the judgment on the complaint.” On September 21, 1960 appellant filed in this Court a record consisting of nineteen pages of pleadings and court orders, and a transcript of twenty pages of testimony and exhibits, certified by the official stenographer as, “. . . the evidence taken of all of the witnesses testifying on behalf of the plaintiff in the case of Arkansas Farmers Association, Inc. v. Homer Towns, all exhibits introduced in evidence and offered in evidence and refused and all objections made by counsel for both sides, said evidence being in plaintiff’s case in chief.” (Emphasis our own.)

No additional record was ever filed; and on December 1, 1960 appellee filed motion to dismiss the appeal because the appellant had failed to file the complete designated record. "We granted the motion to dismiss in a per curiam; but appellant vigorously seeks a rehearing, claiming that it filed a pleading praying the Court, “. . . that any additional testimony and record designated by appellee be paid for by appellee until the determination of this case, since no additional record is necessary or desirable in determining the questions to be presented by appellant on appeal.” The appellant, by making such quoted claim, cannot avoid its obligation to file in this Court the record as designated by both appellant and appellee. Section 9 of Act 555 of 1953 (§ 27-2127.3, Ark. Stats.) says:

“If there be designated for inclusion any evidence or proceeding at the trial or hearing which was steno-graphically reported, the appellant shall file ... a copy of the reporter’s transcript of the evidence or proceedings. ... If the designation includes only part of the reporter’s transcript, the appellant shall file a copy of such additional parts thereof as the appellee may need. . . .”

The appellant, as the party seeking a reversal of the judgment of the Trial Court, had the duty to file in this Court, within the prescribed time, the record as designated by the appellee, just the same as to file the record designated by appellant. When the appellant attempts to appeal he may designate the portion of the record he desires, but if the appellee insists on additional portions then the appellant must also furnish what the appellee designates; and when the case is decided by us the appellant may ask that the cost of the unnecessary record be taxed against the appellee. Spikes v. Hibbard, 226 Ark. 93, 288 S. W. 2d 38. In Manila School Dist. v. Sanders, 226 Ark. 270, 289 S. W. 2d 529, we said: “If appellee, Sanders, had desired any additional portion of the record to be brought up, he had only to follow the provisions of Act 555.” See also Drewry v. Sykes, 226 Ark. 539, 291 S. W. 2d 258. In short, we hold that, in the absence of a court order to the contrary, the appellant must file in this Court the record designated by both parties or suffer the appeal to be dismissed for failure to file the designated record and appellant cannot, on his own determination, cast on appellee the burden of paying for the additional record designated. This has been our consistent holding under Act 555. Heretofore we have merely made per curiam orders showing the result. In order to avoid misunderstanding, we now render this opinion; and the appellant’s petition for rehearing is denied.


source: Caselaw Access Project

author: Ed. F. McFaddin, Associate Justice. Ward J.,

license: Public Domain

text:
    Malvern Brick & Tile Co. v. Hill.
    5-2268
    342 S. W. 2d 305
    Opinion delivered January 16, 1961.

      Joe W. McCoy, Wootton, Land & Matthews, for appellant.

      James C. Cole and Gerald W. Scott, for appellee.
   Ed. F. McFaddin, Associate Justice.

Appellee, A. J. Hill, filed this action for damages for malicious prosecution, naming as defendants Every Mendenhall, F. P. Garvan, and Malvern Brick & Tile Company. There was a jury verdict and judgment for the plaintiff against all of the defendants for $750.00 actual damages and $250.00 punitive damages; and this appeal challenges the said judgment.

Malvern Brick & Tile Company (hereinafter sometimes called “Malvern”) — as its name implies — is a company engaged in the manufacture of brick and tile in Malvern, Arkansas; F. P. Garvan at all times herein involved was the executive vice-president of the said Company; and Every Mendenhall was an employee of the said Company. In September 1959 there arose a labor dispute between Malvern and its employees. Some of the workers went out on strike and formed a picket line, but Mendenhall continued to work notwithstanding the strike. Some time during the night of October 10, 1959 several shots were fired into the home of Mendenhall, and he saw some persons running away from his house, entering an automobile, and driving away. Mendenhall drove in his car from his home to a store nearby for the purpose of calling law enforcement officers to make an investigation. After he reached the store and as he was enroute from his car to the telephone, Mendenhall was assaulted and beaten by a group of persons. He claimed to have recognized his assailants. Mendenhall’s wife and father-in-law had followed him in another car, and they arrived on the scene in time to stop the fight before serious injuries were suffered by anyone.

The foregoing occurred on Saturday night, October 10,1959. On Monday morning, October 12th, Mendenhall went to the office of Malvern and reported the occurrence to Mr. Garvan and named the persons whom he said had assaulted him. After a short time, Garvan and another employee took Mendenhall and another worker to the office of the Prosecuting Attorney in Malvern; and Mendenhall related what he said the facts were, and signed an affidavit for a warrant of arrest against seven persons, being: J. L. Watkins, Charlie James Carroll, Ralph T. Junior, J. W. Blackmon, Willie Carroll Williams, M. T. Dedmon, and A. J. Hill. The persons named in the affidavit were charged with assault and battery. The prosecution was not on information filed by the Prosecuting Attorney, but on an affidavit for warrant of arrest made by Mendenhall; and Malvern posted approximately $100.00 as advance court costs to insure the prosecution of the seven named persons. Bach was arrested and tried in the Municipal Court of Malvern; and all of those named were found guilty of assault and battery with the exception of A. J. Hill: he was acquitted because he testified that he was not present at the time and place when Mendenhall was assaulted.

Then, on January 21, 1960, A. J. Hill filed the present action for malicious prosecution against Mendenhall, G-arvan, and Malvern. As aforesaid, the verdict and judgment in the malicious prosecution case was in favor of Hill and against each of the defendants for $750.00 actual damages and $250.00 punitive damages; each of the defendants has appealed; and each urges in this Court that the evidence was insufficient to support the verdict. Before discussing the situation as to each appellant, it is well that we state the applicable law. In an action for malicious prosecution the burden is on the plaintiff to establish that the defendant acted maliciously and without probable cause, in prosecuting the plaintiff. In short, malice and want of probable cause are essential elements in an action for malicious prosecution. Foster v. Pitts, 63 Ark. 387, 38 S. W. 1114; Kable v. Carey, 135 Ark. 137, 204 S. W. 748, 12 A.L.R. 1227; Keebey v. Stifft, 145 Ark. 8, 224 S. W. 396; Wm. R. Moore D. G. Co. v. Mann, 171 Ark. 350, 284 S. W. 42; Gazzola v. New, 191 Ark. 724, 87 S. W. 2d 68. At the close of the testimony, each defendant moved for an instructed verdict; and the question presented is, whether the evidence was sufficient to take the case to the jury, either (1) as against Mendenhall, or (2) as against Garvan and Malvern. We discuss these points separately.

I. Was The Evidence Sufficient To Support The Verdict Against Mendenhall? We have previously sketched some of the background facts, but there were other facts shown which have a direct bearing on the question here posed. Mendenhall caused Hill’s arrest for assault and battery alleged to have been committed on Mendenhall on Saturday night, October 10th. Hill was acquitted of the charge of assault and battery; and then instituted the present malicious prosecution proceedings, claiming that Mendenhall, in prosecuting Hill for assault and battery, was guilty of malice and had acted without probable cause. Watkins, Junior, Blackmon, Carroll, Williams, and Dedmon were the other six persons named by Mendenhall in his affidavit for the warrant of arrest. Each of those persons was convicted; and yet in the present case each one of those persons testified that A. J. Hill was not present when Mendenhall was assaulted. Hill and his wife testified that they were either at home or visiting with friends a short distance from their home on the night of October 10th and were all the time a considerable distance from the place where Mendenhall was assaulted. Thus, there was evidence from which the jury could have found — as it apparently did — that Hill was not a party to the attack on Mendenhall.

Did Mendenhall have probable cause for naming Hill as one-of his attackers? If Mendenhall had testified that he was so excited by the attack that he mistook some other person for Hill, then the jury might have thought that Mendenhall had acted with probable cause. But at this malicious prosecution trial, Mendenhall stoutly insisted that Hill was one of his attackers, and Mendenhall called his wife and his father-in-law to substantiate his testimony as to Hill’s participation in the attack. Thus, when the jury in the case at bar found that Hill was not one of Mendenhall’s assailants, the jury could have also found that Mendenhall had acted without probable cause in naming Hill, and also the jury might well have inferred that Mendenhall had named Hill as one of the assailants and obtained the supporting testimony, all out of a spirit of malice, if there was no probable cause shown for naming Hill. We have several cases which say that malice may be inferred when there is lack of probable cause, even though there was no express showing of malice. Hall v. Adams, 128 Ark. 116, 193 S. W. 520; Williams v. Orblitt, 131 Ark. 408, 199 S. W. 91; and La. O. Ref. Corp. v. Yelton, 188 Ark. 280, 65 S. W. 2d 537.

To summarize: in the malicious prosecution case Mendenhall attempted to prove Hill’s guilt in the assault case as a complete defense to the malicious prosecution action (Whipple v. Gorsuch, 82 Ark. 252, 101 S. W. 735, 10 L.R.A., N.S. 1133); and when Mendenhall failed to prove such guilt, the failure showed want of probable cause, and also boomeranged into an inference of malice. We have detailed sufficient evidence to support the verdict against Mendenhall on the point urged by him.

II. Was The Evidence Sufficient To Support The Verdict Against Garvan And Malvern¶ As heretofore stated, before Hill could recover from these defendants he had to establish (1) that they acted without probable cause and (2) that they acted with malice, in aiding Mendenhall as they did: i. e., taking him to the Prosecuting Attorney, advancing the court costs, and being present — if they were — at the criminal trial. See Gordon v. McLearn, 123 Ark. 496, 185 S. W. 803. What is the evidence against Garvan and Malvern? Mendenhall told them that Hill was one of his assailants. Not only did Mendenhall tell them that Hill was one of the assailants, but Mendenhall made an affidavit to that effect. Garvan and Malvern acted only as a good employer would have acted under such circumstances. In malicious prosecution cases we have defined the words, "probable cause,” as, “such a state of facts known to the prosecutor, or such information received by him from sources entitled to credit, as would induce a man of ordinary caution and prudence to believe, and did induce the prosecutor to believe, that the accused was guilty of the crime alleged, and thereby caused the prosecution.” Hitson v. Sims, 69 Ark. 439, 64 S. W. 219; Whipple v. Gorsuch, 82 Ark. 252, 101 S. W. 735, 10 L.R.A., N.S. 1133. "When Mendenhall told Garvan and Malvern that he had been assaulted, he also told them that bullets had been fired into his house. Garvan went to the house and found where the bullets had been fired into it. It was not Garvan’s duty to consult with each of the named assailants before taking Hill’s word for the statements. Kans. & Tex. Coal Co. v. Galloway, 71 Ark. 351, 74 S. W. 521, 100 Am. St. Rep. 79. In the annotation in 43 A. L. R. 2d p. 1048, cases from several jurisdictions are cited to sustain this statement: “Where the defendant in good faith has relied on an apparently sound identification by some other person, the Courts have held that there is no liability in malicious prosecution.”

Furthermore, the evidence established without contradiction that when Mendenhall went to the office of Malvern on Monday morning, October 12th, and told Garvan of the assault, then before doing anything, Gar-van consulted immediately with the regular retained attorneys of Malvern. Garvan and Malvern relied on the advice of competent and qualified counsel. We have a long list of cases in Arkansas — and the general rule over'the country is to the same effect — that when one recites the full facts to a competent attorney and acts on the advice of such attorney, such is a complete defense against the charge of acting without prohable cause. Kans. & Tex. Coal Co. v. Galloway, 71 Ark. 351, 74 S. W. 521, 100 Am. St. Rep. 79; L. B. Price Merc. Co. v. Cuilla, 100 Ark. 316, 141 S. W. 194; Redmon v. Hudson, 124 Ark. 26, 186 S. W. 312; Jennings Motors v. Burchfield, 182 Ark. 1047, 34 S. W. 2d 455. In view of these cases, it is clear that Garvan and Malvern, by acting on the advice of competent counsel, entirely dispelled any claim that they acted without probable cause; and until Hill could establish that Garvan and Malvern acted without probable cause, he could not hold them liable in this malicious prosecution action. Therefore, as to Garvan and Malvern, the judgment is reversed and dismissed.

The net result of the entire case is, that the judgment against Mendenhall is affirmed at the cost of Mendenhall; and that the judgment against Garvan and the Malvern Brick & Tile Company is reversed and dismissed at the cost of Hill.

Holt, Ward & Robinson, JJ., dissent as to the affirmance.

Ward J.,

dissenting.

I respectfully dissent to that part of the majority opinion which affirms the judgment against Mendenhall. In my opinion there is no substantial evidence in the record to sustain the judgment.

To properly understand the exact issue in this case, a true picture of the facts is necessary. Briefly, but essentially, it is as the following:

Some people in an automobile fired shots into Mendenhall’s home on a Saturday night. He, his wife, and his father-in-law then went up town in an effort to apprehend the raiders. There several people jumped on him and gave him a severe beating. He had Hill and five other men arrested. All were found guilty except Hill. Then Hill sued Mendenhall for malicious prosecution.

Before Hill was entitled to recover lie had the burden of proving Mendenhall did not have reasonable grounds to believe Hill was present and took part in the fight. See: St. Louis, I. M. & S. Ry. Co. v. Tyus, 96 Ark. 325 (at page 331), 131 S. W. 682, where the applicable rule was stated by this court in these plain and concise words: “While slight and groundless suspicion would not be sufficient, a belief or suspicion, well founded or based upon reasonable and probable ground, would be.”

What did Hill prove in this case to show Mendenhall did not have a good reason to think he was present? Merely and solely that five of Hill’s co-defendants didn’t see him there. Some of them said it was too dark to see everyone; some said they only meant that Hill was not in the car with them. At best, this was negative testimony.

In my opinion the above was not sufficient to sustain a judgment against Mendenhall. In the case of McNeal v. Millar, 143 Ark. 253, 220 S. W. 62 and also in 34 Am. Jur. at page 783, it is made clear that it is of no significance that, on the trial of Hill, he came clear. This is true because it has nothing to do with Mendenhall’s good faith. Likewise and for the same reason no significance should be attached to the fact that the jury, in this case, found Hill was not guilty or was not present. Hill’s own witness testified that Mendenhall had no reason to be mad at Hill.

What positive evidence was there to show Mendenhall acted in good faith in having Hill arrested? One, his wife said Hill was present. Two, his father-in-law said Hill was present. Three, he said Hill was present and that Hill was the one who kicked him most when he was on the ground.

Could Hill have been present? The uncontradicted evidence shows that he left his house that night at a time consistent with his presence at the fight.

The majority opinion in effect says that if Mendenhall had just told the jury he was honestly mistaken the result might have been different. This is an admission that it was not sufficient for the jury to find Hill was not there. Yet the burden was on Hill and still all he tried to prove was his absence and nothing more. In my opinion all of the positive proof in this record tends to show Mendenhall acted in good faith.

The reason why I lay such stress on this matter is that I think the implications of the majority opinion tend to discourage good citizens from cooperating in law enforcement, and they could lead to great injustices. A simple example will illustrate. Three hoodlums, A, B, and C rob and beat D (who is wealthy) in the presence of his wife and son. D has the hoodlums arrested and A sues D for malicious prosecution. B and C swear A was not present, and D and his wife and son swear they saw A. Then what? I shudder to think of this court sanctioning a rule that would allow A to win. Yet, in some way, I think this is what the majority opinion has done.

       It is conceded that the first affidavit for warrant of arrest was defective in failing to have the completed jurat; and that an affidavit containing the same names was subsequently completed.

       In 43 A.L.R. 2d p. 1048, there is an annotation entitled: “Liability in malicious prosecution for instigation or continuation of prosecution of plaintiff mistakenly identified as person who committed an offense.”

       Here is Garvan’s testimony, -which stands nncontradicted:
      “. . . he showed me a bullet that had been removed from a wall outside. I called Mr. Glover, the Prosecuting Attorney; but, before doing that, I called Wootton, Land and Matthews over in Hot Springs.
      Q. For what purpose?
      A. To ask them as to what procedure we should take, as they are counsel for the firm, for the Malvern Brick & Tile Company.
      Q. Mr. Garvan, you, I believe, are an attorney yourself, are you not?
      A. I am.
      Q. At the time that you were involved in this incident were you making these legal decisions and judgments for yourself, or were you relying upon the attorneys’ advice?
      A. No. I relied upon the attorneys’ advice, sir. I do not act as attorney for the company; I act as an executive for the company and we have outside attorneys for the company.
      Q. Were you directed by your attorneys as to what should be done?
      A. Yes.
      Q. Did you follow their advice and directions that were given to you?
      A. I did.”


author: George Rose Smith, J.

text:
    McGuire v. Benton State Bank.
    5-2284
    342 S. W. 2d 77
    Opinion delivered January 16, 1961.

      J. B. Milham, for appellant.

      Fred E. Briner, for appellee.
   George Rose Smith, J.

In 1959 the appellant and his wife were living apart from each other and had the sum of $6,075 on deposit in a joint savings account in the appellee bank. Mrs. McGuire obtained possession of the passbook, and for that reason the bank refused to permit the appellant to draw money from the account. The appellant brought this suit against the bank, asking either that the account be changed to his name only or that he have judgment for the sum on deposit. The bank filed an answer bringing Mrs. McGuire into the case and offering to pay out the money in accordance with its regulations, which require a presentation of the passbook. In the course of the first trial the bank offered to pay the money into court, but the appellant’s attorney refused this offer. At the close of the plaintiff’s proof the chancellor sustained a demurrer to the evidence, but on appeal we directed that the ownership of the funds be determined on the merits. McGuire v. Benton State Bank, 231 Ark. 608, 331 S. W. 2d 258.

At the time of the final hearing the proof showed that there was then only $1,900 left in the account, the rest of the money having been withdrawn by Mrs. McGuire. Her withdrawals were of two sorts: First, on the day after the chancellor sustained the demurrer to the evidence Mrs. McGuire drew out half the money in the account. Secondly, in a pending suit for separate maintenance Mrs. McGuire had been awarded temporary alimony and attorney’s fees. McGuire v. McGuire, 231 Ark. 613, 331 S. W. 2d 257. It appears that in the interval between the two trials that were had in the case at bar Mrs. McGuire collected the sums due her by cashing checks drawn against that half of the account remaining in the bank.

At the conclusion of the final hearing the chancellor delivered an oral opinion holding that the original account of $6,075 belonged equally to the husband and wife and, further, that the $1,900 still on hand should be held in the registry of the court until McGuire’s exact indebtedness to his wife could be determined in the separate maintenance suit. The final decree, entered several months after the trial, confirmed the equal division of the account, directed that the remaining $1,900 be paid to McGuire, and absolved the bank from any liability to McGuire. This appeal is from that decree.

In substance the appellant urges two points for reversal. First, it is contended that the chancellor was in error in holding that the amount originally in the account should be divided equally. McGuire proved that all the money on deposit came from his earnings through the years as a railroad employee. On the basis of this proof he insists that the money was entirely his and that his wife should receive none of it, or at most not more than the one third allowed by statute in divorce cases. Ark. Stats. 1947, § 34-1214.

We think the chancellor’s decision was correct. A joint bank account such as this one has been held to constitute an estate by the entirety in the sense that upon the death of either spouse the title passes to the survivor. Dickson v. Jonesboro Trust Co., 154 Ark. 155, 242 S. W. 57; Black v. Black, 199 Ark. 609, 135 S. W. 2d 837. But while both spouses are alive the estate is not a true common-law tenancy by the entirety, for, as we observed in the cases cited, either of the owners may extinguish the joint estate as to any part of the money that is withdrawn from the account and reduced to separate possession. Hence in a case like this one the intention of the parties and all other pertinent circumstances must be considered in determining the- question of ownership.

We do not agree with McGuire’s contention that the issue of title is to be decided solely as between him and the bank, without regard to the fact that Mrs. McGuire is a party to the suit and the additional fact that a separate maintenance case is shown to be pending. On the first appeal we recognized the existence of a dispute between the McGuires, saying: “It is self-evident that there is a controversy between Mr. and Mrs. McGuire as to the ownership of the money. . . . The ownership of the money will have to be determined sometime, and there is no good reason why it cannot be done in this litigation.” The judgment in this case will be res judicata in any other proceedings between the husband and the wife. Hence the issue should not be confined to the dispute between the appellant and the bank.

Upon the proof as a whole we cannot say that the chancellor was wrong in finding that the funds belonged equally to Mr. and Mrs. McGuire. At the time of their separation the couple had been married for twenty-two years. Although Mrs. McGuire did not contribute directly to the bank account it is quite evident that the family’s ability to save was due in a substantial measure to her assistance in supporting the household. The McGuires lived for years upon a homestead that Mrs. McGuire had received from her first husband. Mrs. McGuire had no children of her own, but she brought up Mr. McGuire’s two children by an earlier marriage. The money she earned' by taking in washing and ironing and by baby sitting was used to meet household expenses. The couple had kept their savings in a joint account since 1947. We are of the opinion that Mrs. McGuire was legally and equitably an equal co-owner of the account.

The appellant’s second contention is that the bank, by honoring Mrs. McGuire’s cheeks during the pendency of this suit, rendered itself liable to him for the full amount of her withdrawals. In making this argument the appellant relies upon two statutes. First, Ark. Stats., § 67-521, permits a bank to make payments from a joint account to either depositor “prior to the receipt by said bank of notice in writing signed by one of such joint tenants not to pay such deposit in accordance with the terms thereof.” It is suggested that the appellant’s complaint constituted the requisite written notice. Secondly, Ark. Stats., § 67-523, provides that notice to a bank of an adverse claim to a deposit standing to the credit of any person shall be effectual if the claimant procures a process against the bank in a cause wherein the person to whose credit the deposit stands is made a party. It is contended that the summons served upon the bank constituted a process within the meaning of the statute.

We think it to be immaterial whether the bank violated either or both of the statutes in question, for even if it be assumed that a violation occurred it does not necessarily follow that the bank has incurred any liability to the appellant. The purpose of the statutes is to require the bank to keep the deposit intact until its ownership can be determined. If that course had been followed it does not appear to us that the appellant’s position would be any better than it is now. That is, the court should still have awarded half the account to Mrs. McGuire and, by consolidating the two pending eases, could still have charged McGuire’s half of the account with his delinquent indebtedness for alimony and attorney’s fees. Thus the appellant has not sustained the burden of proving that he has been prejudiced by the bank’s action in honoring Mrs. McGuire’s checks. We do not find in the two statutes any legislative intention that a merely technical violation, resulting in no actual loss to the complainant, should entail either a penalty against the bank or a windfall to the depositor. Hence the chancellor was right in dismissing the complaint against the bank.

Affirmed.


author: Paul Ward, Associate Justice.

text:
    Auto Salvage Co. v. Rogers.
    5-2269
    342 S. W. 2d 85
    Opinion delivered January 16, 1961.

      Barter, Henry, Thurman & McCaskill, for appellant.

      Murphy & Arnold, for appellee.
   Paul Ward, Associate Justice.

This is a Workmen’s Compensation case, and the sole question is whether there is substantial evidence to support the finding of the Commission which ruled the claim to be noncompensable. This finding of the Commission was reversed by the Circuit Court, and this appeal is prosecuted by the employer. The facts are not materially in dispute except for the expert medical testimony and the conclusions to be drawn therefrom.

W. E. Rogers, claimant and appellee herein, began working for the Auto Salvage Company sometime in 1956. His duties as a manual laborer included the use at times of an electric torch in cutting up scrap iron such as automobiles. In the early spring of 1958 a piece of metal lodged in claimant’s ear, causing considerable injury and requiring extensive medication and treatment. The result of this injury was that claimant underwent an operation and has suffered pain somewhat continually up until the beginning of this litigation, although he resumed his regular work a few weeks after the injury. He has been paid in full for this injury, loss of time and medical treatment.

On Wednesday, October 29,1958, while claimant was working at his regular job he noticed symptoms indicating a heart condition, when at about 4 p.m. he suffered pains in his chest. After resting a few minutes he resumed work until quitting time. On Thursday and Friday the chest pains continued, and on Friday the pains were constant until about 9 p.m. On Saturday claimant reported for work at the usual time, still feeling uains, and shortly thereafter he informed his employer that he was going to a doctor. He reported to Dr. Charles Taylor of Batesville at about 8 o’clock that morning. After a somewhat thorough examination Dr. Taylor diagnosed claimant’s condition as a coronary thrombosis and had Mm hospitalized for about two weeks, after which claimant returned to Ms home for rest.

It is conceded that claimant suffered a heart ailment, correctly diagnosed as coronary thrombosis, that this condition still exists, and that he has not been able to work at Ms regular job since November 1, 1958.

The Referee found that the injury was not compensable and later the Commission, after reviewing the evidence taken before the Referee and additional evidence presented to it, found that claimant had not proved that Ms heart attack occurred by reason of and in the course of his employment.

There is some testimony in the record to the effect that claimant first felt the chest pains on Wednesday (previous to the attack on Saturday) while he was engaged in trying to move a 450 pound scrap of metal. The Commission found that this fact was not substantiated by all of the evidence, and we think correctly so. Therefore, we consider this case as if there was no showing of unusual exertion on the part of the claimant. However, in accordance with our previous announcements, it is conceded that this is no bar to compensation. In other words, it is recognized that if claimant’s normal working activities caused or contributed to his heart attack compensation may be established.

To sustain the judgment of the Circuit Court (which reversed the Commission) appellee’s most serious contention is that his heart condition was caused or aggravated by the work in which he was regularly engaged, by the stress on his nervous system resulting from the injury to his ear, and by the anesthetic administered in connection with the ear operation. Specifically, then, appellee contends that there is no substantial testimony in the record to support the finding of the Commission. Appellant contends, of course, just to the contrary. The decisive question then is: Was claimant’s heart attack caused or contributed to by all or any of the incidents previously mentioned, and the answer to this question depends largely upon the medical testimony.

Dr. Taylor stated that, basically, coronary thrombosis is a disease of the arteries that supply the heart muscle with nourishment and oxygen, and it is the result of a pre-existing coronary disease called arteriosclerosis. In his opinion the claimant had a pre-existing arterial disease, and it was his opinion that claimant’s work was a contributing factor to the coronary thrombosis; it was also his opinion that the stress caused by the ear injury was a contributing factor.

“Q. . . . I’ll ask you if it is your opinion that but for this additional stress placed upon his heart by this infection and, also, by the emotion and worry and pain that the heart attack would not have occurred at the time it did in your opinion?”
“A. In my opinion, I think that the heart attack would have been postponed into the future had it not been for additional factors mentioned here of stress and additional work load placed on his circulation mechanism. ’ ’

Dr. Taylor was asked if it was possible, with any degree of medical certainty, to tell what causes a coronary thrombosis, and his answer was:

“You asked me if there was any certainty of what precipitation cause could cause thrombosis. My answer to that is no, not exactly.”

The doctor was also of the opinion that the anesthetic incident to the ear operation was a contributing cause but on cross-examination he stated that an anesthetic affects the heart only a few days or possibly a week after its administration.

Dr. Drew Agar of Little Rock, a specialist in internal medicine and diagnosis, testified as an expert but made no examination of the claimant. At the end of a long hypothetical question propounded to him relative to claimant’s condition, was asked:

“Q. . . . Doctor, could you express an opinion as to whether or not the work which this man was doing, a normal work that he was doing, was the cause or a precipitating factor of a coronary thrombosis?”
“A. Well, it would be my opinion that the work in no way contributed to the coronary occlusion.”

Dr. David T. Hyatt, a recognized authority in heart diseases with extended experience, who examined claimant on March 23,1959, at his office in Little Rock, stated that the electrocardiogram showed evidence of an old cardiac damage found in coronary thrombosis of long standing. After testifying at length he was asked and answered the following questions on cross-examination:

“Q. You certainly wouldn’t say to this Commission that you know with a reasonable amount of certainty that if these factors had not been present in Mr. Rogers that he would have had the attack anyway.”
“A. No; nobody but the Lord himself could say what’s going to happen to anybody. All you can go by on that type of thing is the fact that many hundreds and thousands of other people go through the same type of things and don’t have one.”
“Q. Then you can’t say that his work, his infection and his worry did not cause the heart attack, can you?”
"A. I can’t say it didn’t; but I can say I don’t believe it did.”
“Q. If you add, Dr. Hyatt, to the fact that Mr. Rogers was doing his normal work, if you add to that strain which the heart was already under the infection, the pain, worry, concern, is there any way of saying, in your opinion that those factors were not related to his heart attack?”
“A. Well, I don’t know whether they’re related to his heart trouble or not. We simply know that many hundreds of patients his age develop coronary thrombosis. Some of them are sitting at a desk in a-bank and doing nothing much except mental work; some of them are doing hard physical work; some of them have this and that, and I don’t know. I don’t know if he’d had an attack, if he had not had this or that.”

The applicable rules by which we are governed in considering, on appeal, this, kind of a case are well established and need only to be stated without discussion.

The burden is on the claimant to show a causal connection between his heart attack and his employment. See: Pearson v. Faulkner Radio Service Company, 220 Ark. 368, 247 S. W. 2d 964. We must give the testimony its strongest probative force in favor of the action and findings of the full Commission. See: The Pearson case supra; Springdale Monument Company v. Allen, 216 Ark. 426, 226 S. W. 2d 42; and, Ark. Power & Light Co. v. Scroggins, 230 Ark. 936, 328 S. W. 2d 97. The findings of the Commission have the same force and effect on review as the findings of a jury, and must be sustained if supported by substantial evidence. See: Mosley v. Temple, 231 Ark. 502, 330 S. W. 2d 719.

After carefully reviewing all of the testimony in the record, including that set out above and, also, the testimony of the claimant himself, we are forced to conclude that there is substantial evidence in the record to sustain the full Commission in finding “that claimant did not prove by a preponderance of the evidence that his heart attack was an accident that occurred by reason of and in the course of his employment.”

To sustain the judgment of the Circuit Court (reversing the Commission) appellee has well presented some strong arguments to the effect that we should re-examine our decisions on what constitutes substantial evidence; that we should give more weight to the testimony of a doctor who had repeatedly seen and examined the claimant than to one who had not, and; that we should entirely discount and disbelieve the testimony of a certain doctor who testified. We find nothing in these contentions that justifies us in changing the conclusion above indicated. We have many times discussed what constitutes substantial evidence and we think no useful purpose would be served in re-examining those decisions at this time. It is true that in some circumstances there would be good reasons for giving additional weight to the testimony of a doctor who examined the patient on numerous occasions and we have recognized this fact. Certainly this would be the case if such doctor had knowledge of facts not known to other doctors. However, in this case, it appears to us that all doctors were equally in possession of all the significant facts bearing on the causes of claimant’s heart condition. Also, we have no way of knowing just what factors the Commission considered. It is not the province of this court to say which witness to believe or disbelieve. In the Pearson case, supra, we said: “The Commission had a right, just as a jury, would have had, to believe or disbelieve the testimony of any witness.”

From a careful study of appellee’s entire argument it seems he would have us hold that any time an employee, in the course of his regular employment, suffered a heart attack his claim should be compensable. Perhaps, due to the conflict and uncertainties in medical theories relative to the cause of heart attacks, this contention of appellee merits some consideration. However, any implementation of that contention is a matter for the legislature and not the judiciary. As the law now stands the burden is on the claimant to show a causal connection between his work and his heart attack. As we have frequently said in effect, the Workmen’s Compensation Act is not an insurance policy.

Since we have concluded that the Commission’s determination should be affirmed, it follows that the judgment of the Circuit Court must be and it is hereby reversed.

Reversed.

Johnson, J., dissents.


author: Sam Robinson, Associate Justice. Ward, J.,

text:
    The Travelers Indemnity Co. v. Hyde.
    5-2225
    342 S. W. 2d 295
    Opinion delivered January 16, 1961.
    [Rehearing denied February 13, 1961]

      Wright, Harrison, Lindsey & TJpton, for appellant.

      Gutensohn & Gutensohn, for appellee.
   Sam Robinson, Associate Justice.

This suit was filed by Imogene Hyde, administratrix of the estate of M. D. Hyde, against appellant, The Travelers Indemnity Company, on a policy of insurance issued and delivered to Mr. Hyde. Among other things the policy provides to indemnify Hyde in a sum not exceeding $2,000 for medical expenses incurred due to injuries received while occupying an automobile. Hyde was injured while driving a motor vehicle on the 17th day of July, 1959, and died a few days later as the result of such injuries. The insurance company admits the issuance of the policy and that an accident occurred which resulted in the death of Hyde. The insurance company further admits the expenditure of a sum in excess of $2,000 for medical, surgical, X-rays, ambulance, professional nursing, hospital, funeral and burial expenses. But the company denies liability on the ground that at the time of the accident Hyde was occupying an automobile furnished for his regular use.

The case was tried before the court sitting as a jury, and from a judgment in favor of the administratrix the insurance company has appealed.

The parties stipulated as follows: “It is stipulated and agreed that at the time of the accident which resulted in the death of M. D. Hyde, he was driving a motor vehicle furnished and owned by his employer, Fort Smith Couch and Bedding Company. Said vehicle was assigned to M. D. Hyde for his exclusive use and was the only vehicle driven by him in the course of his employment by Fort Smith Couch and Bedding Company. This vehicle was a tractor and trailer used for hauling furniture for said Company to various parts of the United States in the course of business for the Company, and was never used at any time for the personal use of M. D. Hyde.”

The controversial provisions of the policy provide: “The Travelers Indemnity Company . . . agrees with the insured ... To pay all reasonable expenses incurred within one year from the date of accident for necessary medical, surgical, X-ray and dental services, including prosthetic devices, and necessary ambulance, hospital, nursing and funeral services: . . . To or for the named insured and each relative who sustained bodily injury, sickness or disease, including death resulting therefrom, hereinafter called ‘bodily injury,’ caused by accident, while occupying or through being struck by an automobile.”

Under the heading “Exclusions” the policy also provides: “This policy does not apply under Part II [Medical Payments] to bodily injury: . . . sustained by the named insured or a relative . . . while occupying an automobile . . . furnished for the regular use of either the named insured or any relative, other than an automobile defined herein as an ‘owned automobile.’ ”

Appellant contends that the truck Hyde was driving at the time he was injured was furnished for his regular use within the meaning of the exclusion provision and that the insurance company is therefore not liable. The sole point raised on appeal is whether the automobile was furnished to Hyde for his regular use within the meaning of the exclusion provision of the policy.

The provisions of the policy are ambiguous. First, the policy provides that the insured will be indemnified for medical expenses if he is injured while occupying an automobile. Here he was injured while occupying an automobile, but the policy further provides that the provision for medical payments does not apply if he is injured while occupying an automobile furnished for his regular use. These provisions of the policy render it ambiguous. Just what is meant by “for the regular use of either the named insured or any relative?” If “for his regular use” means personal use, it is one thing; if partly for his personal use and partly for the use of the employer, it could mean something else. If the insured was to use it in a certain area for one purpose, and he was injured while on a trip outside that area, for another purpose, then there could be a different meaning. Standing alone the terms of the policy are not sufficient to clear up the ambiguity, and the stipulation is not sufficient to enable the court to say as a matter of law what the ambiguous provisions really mean. True, the stipulation states the truck was furnished for the insured’s exclusive use. Perhaps it can be inferred that exclusive use means regular use. On the other hand, it could be exclusive without being regular. A jury could find that the wording in the policy “for the regular use of the insured” means personal use. This language certainly has that connotation. And the jury could reach the conclusion that the term means “for the benefit of the insured.” If this construction were put on the language by a jury, then under the facts as set out in the stipulation the insured would be entitled to recover.

Some cases, such as Davy v. Merchants Mut. Cas. Co., 97 N. H. 236, 85 A. 2d 388; Home Ins. Co. v. Kennedy, Del. Super., 152 A. 2d 115; Voelker v. Travelers Ind. Co., 260 P. 2d 275; and Farm Bureau Mutual Automobile Ins. Co. v. Marr, 128 F. Supp. 67, have been decided on the theory that “for his regular use” means practically any use by the insured. In the Farm Bureau case the insured had never before driven the car in which he was injured, and there was nothing to show there was any probability that he would ever have driven it again, yet the court held the car was furnished for his regular use. We think the better view is expressed in Pacific Automobile Ins. Co. v. Lewis, 56 Cal. App. 2d 597, 132 P. 2d 846. There the court said: “Whether an automobile is furnished by another to an insured for his regular use may reasonably depend upon the time, place and purpose for which it is to be used. One furnished for all purposes and at all times and places would clearly be for his regular use. One furnished at all times but strictly for business purposes alone could hardly be said to have been furnished for his regular use at a time and place when it was being used for personal purposes. It may be assumed that when a ear is furnished all of the time for business purposes, with permission to use the same for incidental personal purposes, all within a certain area, the car might be said to be furnished for regular use within that area. But when a car thus furnished for such a use is driven to a distant point on one occasion, with the special permission of the one furnishing the car, that particular use would hardly seem to be a ‘ regular use ’ of the car. It cannot be said, as a matter of law, that such a use on a particular occasion, which is a departure from the customary use for which the car is furnished, is a regular use within the meaning of these clauses of the policies. A question of fact is presented which calls for an interpretation of the language of the policies relating to the facts involved.”

And in Farm Bureau Mutual Automobile Ins. Co. v. Marr, 128 F. Supp. 67, in holding that a similar provision in a policy presented a question of fact to be determined by the facts of the particular case before the court, the court pointed out certain signposts to be looked for, as follows:

“1. Was the use of the car in question made available most of the time to the insured?
‘ ‘ 2. Did the insured make more than mere occasional use of the car?
‘ ‘ 3. Did the insured need to obtain permission to use the car or had that been granted by blanket authority?
“4. Was there a purpose for the use of the car in the permission granted or by the blanket authority and was it being used for such purpose?
“5. Was it being used in the area where such car would be expected to be used?”

There are two principles of law firmly established in this State that apply here: (1) Provisions of a policy of insurance “must be construed most strongly against the insurance company that prepared it, and if a reasonable construction could be placed on the contract that would justify recovery, it would be the duty of the court to so construe it.” Metropolitan Life Ins. Co. v. Guinn, 199 Ark. 994, 136 S. W. 2d 681; Phoenix Assurance Co. v. Loetscher, 215 Ark. 23, 219 S. W. 2d 629; Washington Fire & Marine Ins. Co. v. Ryburn, 228 Ark. 930, 311 S. W. 2d 302. (2) Where a written contract is ambiguous, its meaning is a question of fact for the jury and should be submitted to a jury. Fort Smith Appliance & Service Co. v. Smith, 218 Ark. 411, 236 S. W. 2d 583.

In the case at bar, undoubtedly the language “while occupying an automobile . . . furnished for the regular use of either the named insured or any relative” is ambiguous, and hence the true meaning of the language was a jury question. Here the cause was submitted to the trial court sitting as a jury, and the findings of the court have the same force and effect as a jury verdict. Occidental Life Ins. Co. of Calif. v. Sammons, 224 Ark. 31, 271 S. W. 2d 922; Gray v. Ford, Bacon & Davis, Inc., 210 Ark. 995, 198 S. W. 2d 508.

Affirmed.

Harris, C. J., and Ward, J., dissent.

Ward, J.,

dissenting. First I wish to point out two respects in which I cannot agree with the majority opinion. I now refer to these as briefly as possible consistent with clarity and without setting forth the controversial clauses.

(a) At pp. 1021-1022 in the majority opinion, there is language which appears to assume the existence of ambiguity in the policy. This assumption is based on the fact that one part of the policy says the Company is liable if the insured is “injured while occupying an automobile,” while another part says the Company is not liable if the insured is injured in an automobile provided for his regular use. Undoubtedly it cannot be said that an insurance policy is ambiguous merely because it contains a limitation clause. If this were true, then every insurance policy would be ambiguous. Therefore, we must start out with the proposition that if there is any ambiguity in the policy it is only in the limitation clause itself.

(b) The majority opinion misconstrues the effect of the holdings in every case cited in relation to the limitation clause here under consideration. I cannot help but feel certain that the majority, in considering the controversial words “for the regular use of” are confusing the purpose of the use of the automobile with the extent of the use. All of these cases referred to above and cited by the majority deal only with the extent and not the purpose of the use of the automobile. In the Davy case nothing was said about the purpose but only the extent of the use of the taxicab. The holding in this case is directly opposite the holding in the majority opinion to the extent that there the taxicab was used not for his personal use but for the use of his employer. The same thing is true in the Home Insurance Company ease where all of the discussion was relative to the extent of the use. And again, the holding in that case is contrary to the majority opinion. It is there said:

“Defendant agrees that he would be excluded from coverage if the pick-up truck had been furnished for his regular use. However, he argues, that ‘furnished for regular use’, under exclusion clause (d) (1) of Insuring Agreement Y, means he was entitled to an indiscriminate and unrestricted, full and complete use of the truck, and since his use of the truck was restricted by his employer to a ‘business use’, it was therefore not furnished to him for his ‘regular use’. Defendant then argues that ‘for regular use’ must mean indiscriminate and unrestricted use, . . . ”

In rejecting the above contentions the court there said:

“If defendant is right, then he would be getting insurance on the Dodge and the pick-up truck for the price of the insurance on the Dodge alone. Every day, two vehicles could be on the road at one time, the Dodge driven by his wife, and the pick-up truck driven by him in his occupation, covered by one policy. This would be a bargain, and not one that was intended by the policy.”

In the Voelker case the court considered only the extent and not the purpose of the use of the automobile. The gist of the reasoning given by the court is couched in the 3rd headnote which reads: “It is common knowledge that a greatly increased hazard against which the insured was protected under a liability policy would greatly increase the premium for such coverage.” It is too obvious for argument that the hazard would be the same regardless of the purpose for which an automobile is used. The holding in the Farm Bureau case is the same as in the other cases just mentioned. Again a good reason is given by the court where it said: “The purpose of the clause is to cover casual or occasional use of other cars. Any other interpretation would subject the insurance company to greatly added risk without the payment of additional premiums.” In no way was the court concerned with the purpose of the use of the automobile but only with the extent. Likewise in the Pacific Automobile Insurance Company case, a careful study of the opinion reveals that the court was concerned only with the extent and not the purpose of the use of the automobile.

A careful and extensive research reveals that there is no court decision which sustains the position taken by the majority opinion. On the other hand there are several decisions, and two recent ones in particular, which are in point as to the terms of the policy and very similar to this case on the facts. Home Insurance Co. v. Robert E. Kennedy, Jr., Del. Super., May 19, 1959, 152 A. 2d 115, cited above, and George Moore v. State Farm Mutual Insurance Co., Miss., June 13, 1960, 121 So. 2d 125.

In the Moore case the decision also appears to be in point here and is contrary to appellee’s contentions. The facts involved in the cited case were similar to the facts in this case and the pertinent parts of the policies are exactly the same. Appellant had a policy on his own automobile — a Family Policy —the same as here, and the same “Medical Payments” were involved. Also, there was the same “exclusion” involved there as here. Contained in the opinion is the following state of facts:

‘ ‘ For some two years prior to the accident later mentioned, insured was employed by Wade Tung Oil Company which owned some ten trucks. Insured drove trucks for his employer and had other duties, including operating a bulldozer, mechanical, tractor, and some carpenter work. He drove trucks for his employer two or three times a week; sometimes lie would haul machinery, and sometimes he would make trips to haul tung nuts. He was not assigned any particular truck the two or three trips a week he would make driving trucks. When he was not driving trucks, he would at times work on a truck as a helper.

The court, in holding there was no liability on the part of the insurer said:

“As-stated, the obvious purpose of the exclusionary clause is to limit the extension of medical payments coverage to casual or infrequent use or occupancy of automobiles other than the one defined in the policy, in this case the insured’s Chevrolet. It is regular use of other automobiles that brings the exclusionary clause into operation, . . . ”

Following the above the court also stated: “there is no ambiguity in the policy.”

There are, of course, many words in the English language which are susceptible to more than one interpretation. This does not mean that every sentence in which such a word is used is ambiguous. The normal and sensible thing to do is to look to the context to gather the intended meaning. The word “use” is such a word. Webster’s small dictionary gives 10 different uses of the word. The thing that makes clear the intended use of the word in the policy is the fact that the liability of the Company would be the same regardless of the purpose of the use. Therefore it makes no difference in the case under consideration whether the insured was using the automobile to haul furniture for his employer or take his family to church.


author: Jim Johnson, Associate Justice.

text:
    Curtis Circulation Co. v. Henderson.
    5-2276
    342 S. W. 2d 89
    Opinion delivered January 16, 1961.

      Wootton, Land & Matthews, for appellant.

      Walter J. Hebert and Curtis L. Bidgway, Jr., for appellee.
   Jim Johnson, Associate Justice.

This case arises out of a judgment for damages resulting from an automobile collision. The damages were rendered against the appellant because of the negligent acts of an individual who was driving appellant’s motor vehicle and who was at the time of the collision appellant’s employee. There are two principal issues on appeal: (1) Was appellant’s employee acting within the scope of his employment when the collision in question occurred? and (2) Was the jury properly instructed?

I.

It was undisputed that at the time of the collision an employee of appellant, driving a vehicle owned by appellant, collided with the vehicle owned and occupied by plaintiffs. Upon this showing, an inference or presumption of fact arose that at the time of the collision the employee was acting within the scope of his employment and in the furtherance of his master’s business, which presumption might be overcome by evidence to the contrary. See: Ford & Son Sanitary Co. v. Ranson, 213 Ark. 390, 210 S. W. 2d 508, and cases there cited. The point in issue on this appeal is whether this presumption was overcome as a matter of law or whether it was an issue of fact for the jury. The distinction between presumptions of law and fact is clearly drawn in Mullins v. Ritchie Grocer Co., 183 Ark. 218, 35 S. W. 2d 1010, where we said:

“We adhere to our ruling that the defendant’s ownership of the ear, coupled with proof that the driver at the time of the accident was in the regular employment of the defendant as salesman and had general charge of the car, raises a presumption that he was acting within the scope of his authority. In this connection it may he stated that there is a distinction between presumptions of law and presumptions of fact which is clearly and fully stated in Wigmore on Evidence, vol. 5, (2d Ed.) § 2491. To illustrate, we have a statute making railroads responsible for all damages to persons and property done or caused by the running of trains, and proof of the injury under the statute makes a prima facie case for the plaintiff. It is a presumption of law based upon public policy as declared by the Legislature. The presumption thus raised by law does not of itself possess probative weight. Hence, when evidence is introduced rebutting the presumption, it may be overcome, and, where the evidence of the basic facts is undisputed, the legal presumption will disappear and no longer exist.
‘ ‘ The presumption with which we are dealing in the present case is not a legal presumption, but is an inference or presumption of fact. Its existence is called into being by proof introduced on the subject and not by any statute dealing with the question. This being so, the opposing evidence must be weighed by the jury, for the reason that under Article 7, § 23, of our Constitution, the jury is the judge of the facts proved, . .”

In arguing that this presumption of fact in the case at bar was rebutted as a matter of law and that there was no question for the jury on this issue, the appellant relies, primarily, on the testimony of Marion B. Burk-halter, who was a party defendant, and the testimony of Martha Elmore, who was a passenger in appellant’s car at the time of the collision. Burkhalter’s testimony may not be taken as uncontradicted. He was a party and his testimony was contradicted as a matter of law. Cousins v. Cooper, 232 Ark. 605, 339 S. W. 2d 316. Mrs. Elmore was extremely vague about many things that occurred in a three day period when she was with the employee constantly and during which the collision occurred. In fact, she stated “That I don’t remember too much about,” when asked to detail what happened on the trip from Hot Springs to Malvern during which the collision occurred. She further stated that after the collision they went to Jones Mill but that she did not know where they went thereafter. The record shows that the employee was a married man with a family who was on a drunken spree with Mrs. Elmore as his companion. This relationship was obviously illicit and immoral. The fact that she could not remember much about occurrences on the night in question gives rise to the inference that she was also drinking. Therefore, even though she said that the employee transacted no business on behalf of the employer on the trip which resulted in the collision, such testimony did not require a finding that, as a matter of law, the employee was not acting within the scope of his employment. We have repeatedly held that a jury does not have to blindly accept everything that a witness may say. As we said in Reserve Loan Life Ins. Co. v. Compton, 190 Ark. 1039, 83 S. W. 2d 537:

“. . . It has long been the established rule in this state that the weight of the evidence and the credibility of the witnesses is solely within the province of the triers of fact. They may believe such part of the testimony or the testimony of any witness which they believe to be true and they may disregard such part of the testimony or such part of any witnesses’ testimony which they believe to be false, or they may disregard any part of the testimony of any witness about which the witness might be mistaken. See Gibson Oil Co. v. Bush, 175 Ark. 944, 1 S. W. 2d 88, and Warren & Saline River Railroad Co. v. Wilson, 185 Ark. 1063, 50 S. W. 2d 976.”

II.

For reversal, appellant contends that the following instruction was error:

“The test of a master’s liability for wrongful acts of a servant is whether the act was done while on a mission or carrying out the purpose and object of the mater’s business and if you find in this case, from a preponderance of the evidence, that William C. Brown was so acting at the time of the collision in question, then you may return a verdict in favor of the plaintiffs in such sum or sums as you may determine to be due them under the other instructions given you herein.”

Appellant complains that this instruction was a “binding instruction” and was erroneous because it required a finding for plaintiff without a finding that the employee was negligent, which issue was omitted from the instruction. We cannot agree that this is a binding instruction. It should be noted that the instruction says that the jury “may” return a verdict for the plaintiffs. It does not say that the jury “shall”, “must”, or “will”, return such a verdict. Appellant cites Des Arc Oil Mill v. McLeod, 137 Ark. 615, 206 S. W. 655, as holding that a similar instruction was erroneous. Upon reexamination of the cited case we find that the case does not hold that the instruction is “binding”. The case does show that the trial court did not give a proper instruction on the defense of assumed risk and therefore the omission of this defense in the instruction quoted in the case did amount to error. However, the case does not hold that the error could not have been cured by a separate instruction properly stating the defense of assumed risk and the consequences of a finding that the risk was assumed. In the case now before us, we find that the defendant’s requested Instruction No. 4, which was given, and defendant’s requested Instruction No. 8, as amended and given, adequately advises the jury as to negligence and necessity of first finding that the employee was negligent before finding for the plaintiffs. In Roland v. Terryland, 221 Ark. 837, 256 S. W. 2d 315, we quoted 53 Am. Jur. Sec. 547, as follows:

“The . . . 4instructions given to the jury should be complete, and should cover all material issues supported by the evidence adopted . . . However, it is not necessary that the ihw applicable to all questions in a case be stated in each instruction in a series, it being sufficient if all, when considered as a whole, state the law correctly’.”

While we do not believe that the giving of plaintiff’s requested Instruction No. 2, as set out herein, necessitates a reversal, we do not wish to be understood as approving its form. Upon a retrial it should be revised to include the missing elements.

III.

Appellant complains of the giving of plaintiff’s requested Instruction No. 1, which reads:

“You are told that if the servant, at the time of inflicting the injury, was acting within the scope of employment, or apparent scope thereof, and such injury was proximately the result of some wrongful or negligent act, the improper conduct is attributable to the master. This is time, although the servant acted in wilful disobedience of orders or prescribed rules of conduct; but, if on the other hand, in disregard of the duties of his employment, he leaves his employer’s business, though momentarily, and engages in enterprises that are wholly his own, and while so engaged in accomplishing such individual desires or objectives, he wrongs another, he alone is responsible.”

The complaint is that the part of the instruction which reads: “or apparent scope thereof ’’ was abstract. In this, we agree. There was no evidence showing anything from which any inference as to “apparent scope of authority” could be drawn. Further, the doctrine of “apparent scope of authority” has no application in tort cases unless there has been a reliance upon apparent authority which caused the injury complained of. See: Restatement of Agency 2d, Sec. 265, Subsection 2, p. 575, and comment on same at page 576. For the error indicated, the case is reversed and remanded for a new trial.

Justice Robinson is of the opinion that the instruction discussed under point 2 herein is binding and the case should also be reversed for that reason.

Robinson, J., concurs.


author: J. Seaborn Holt, Associate Justice.

text:
    Palmer v. Sanders.
    5-2299
    342 S. W. 2d 300
    Opinion delivered January 23, 1961.

      J. B. Milham, for appellant.

      John L. Hughes, for appellee.
   J. Seaborn Holt, Associate Justice.

This is a suit for conversion of certain timber by a tenant in common. In 1930 A. B. Smith died leaving as his heirs eight children who took as tenants in common certain land (40 acres) of which he was seized. The appellant, Celestia Palmer, was an older daughter of Mr. Smith and after her father’s death she remained upon the premises, paid the taxes, cared for said land for more than twenty-five years, claiming it as her own. In 1959 the appellant sold the standing timber upon 20 acres of the tract for the sum of $3,000.00 and refused to pay her sister and tenant in common, Mrs. Annie Sanders, a proportionate share of the proceeds of the sale. Mrs. Sanders, appellee, filed suit against the appellant for conversion of the property and asked as damages one-eighth of the proceeds of the sale. Mrs. Palmer answered with a general denial and set np as a defense that she had gained title to the property through open adverse, hostile and continuous possession of the tract of land, occupying it as her home and having paid the taxes thereon for more than twenty-five years.

The cause was submitted to the court sitting as a jury and in its findings of fact the court said: “That the facts are uncontroverted that the defendant sold the timber from the lands which the legal title was in plaintiff and defendant as tenants in common. The defendant Palmer set out in her answer several equitable matters which the court advised her would not be considered, prior to the time of taking testimony herein. This court has no authority to examine further than as to the bare legal title to the lands; and in the absence of a finding of any court of acquired title by adverse possession, this court cannot consider this question.” The court, believing it could not consider the appellant’s defense of adverse possession, rendered judgment against the appellant in the amount of $375.00. This appeal followed.

For reversal the appellant relies upon three points but since our answer to the first point raised is decisive of the case, we discuss only this first point.

It thus appears that the trial court was of the opinion that the defense of adverse possession was not available to the defendant (appellant here — Mrs. Palmer) for the reason that the circuit court was without authority to examine further than as to the bare legal title to the land and since the defense of adverse possession is an equitable action and appellant’s attorney did not move to transfer the cause to equity, he could not assert it at law. We hold that this was error. Ark. Stats. (1947), § 37-101 makes adverse possession applicable to causes both at law and in equity. Adverse possession goes to title and a title acquired by adverse possession is a title in fee simple and as perfect a title as one by deed from the original owner, Stricker v. Britt, 203 Ark. 197, 157 S. W. 2d 18. Ordinarily whether adverse possession has been established is a question of fact for the jury, Lowe v. Cox, 210 Ark. 169, 194 S. W. 2d 892 and Couch v. Adams, 111 Ark. 604, 164 S. W. 728. In the present ease whether there was a conversion or not ultimately depended upon whether Mrs. Palmer (appellant) owned the fee. If she did own the fee there was no conversion. Whether she held title to the fee depended upon whether she had acquired title by adverse possession. The court should have allowed her to present her evidence on the question of adverse possession and it was error not to do so.

This court has, in a continuous line of cases, from its early beginnings held that equitable matters could be held in a court of law if no motion is made to transfer the cause to the chancery court. Here no motion was made to transfer to chancery. In Marsh v. Erwin, 155 Ark. 371, 244 S. W. 441, we find this language: “. . . equitable defenses may he interposed and tried in actions at law, if no motion is made to transfer the cause to the chancery court.” Citing Trulock v. Taylor, 26 Ark. 54; Nichols v. Shearon, 49 Ark. 75, 4 S. W. 167, and Gates v. Gray, 85 Ark. 25, 106 S. W. 974.

Accordingly, the judgment is reversed and the cause remanded.


author: Ed. F. McFaddin, Associate Justice.

text:
    Arnold v. State.
    4988
    342 S. W. 2d 291
    Opinion delivered January 23, 1961.

      George F. Edwards, for appellant.

      Bruce Bennett, Attorney General, by Thorp Thomas, Asst. Attorney General, for appellee.
   Ed. F. McFaddin, Associate Justice.

Bernard Arnold was convicted of robbery (§ 41-3601, Ark. Stats.) and sentenced to three years in the penitentiary. He brings this appeal and his motion for new trial contains nine assignments, which we group and discuss in convenient topic headings.

I. Sufficiency Of The Evidence. The prosecuting witness, Walter James, a Negro man 72 years of age, lived in Garland City in Miller County, and had known the accused, Bernard Arnold, for many years. James testified that about 9:30 p.m. on a certain night he was in bed when he was awakened by someone having a flashlight; that he saw and recognized Bernard Arnold and so informed him; that Arnold jumped on James as he lay in bed and beat him terribly, practically destroying the vision in one eye; that Arnold at the same time robbed James of $100.00; and that the robbery was reported the next day and Arnold was apprehended. That James was beaten, was corroborated by Callie Brooks, in whose home James had a room; and that Bernard Arnold was in the immediate neighborhood of Callie Brooks’ home shortly before the time of the robbery, was shown by two other witnesses. James admitted that his eyesight was poor, but stoutly insisted that he recognized Arnold as his assailant. Appellant argues with great seriousness that James could not have seen the person who robbed him because there was no other light in the room except the flashlight held by the robber. We need not consider whether the moon was shining, whether the flashlight would reflect, and such other matters, because those were for the jury. The evidence was sufficient to take the case to the jury. Weldon v. State, 179 Ark. 10, 14 S. W. 2d 245; Cathey v. State, 180 Ark. 1081, 24 S. W. 2d 971; Taylor v. State, 230 Ark. 809, 327 S. W. 2d 6.

II. The Information. The appellant insists that the information on which he was tried was signed only by the Deputy Prosecuting Attorney, and that the judgment should be set aside under the authority of Johnson v. State, 199 Ark. 196, 133 S. W. 2d 15. There are several answers to appellant’s insistence, either of which is sufficient. In the first place, we have caused the original information to be brought to this Court by subpoena duces tecum, and we find that the information was in the name of the Prosecuting Attorney and was manually signed, “Noyce Weisenberger, by John W. Goodson, Deputy Prosecuting Attorney,” and the proper jurat was completed before the Circuit Clerk. The case of Johnson v. State, supra, does not apply.

In the second place, the record shows that both the Prosecuting Attorney and the Deputy Prosecuting Attorney participated in the trial from which comes this appeal, and the issue now sought to be urged was not even mentioned until the motion for new trial. So the case of State v. Eason, 200 Ark. 1112, 143 S. W. 2d 22, settles the point adverse to the appellant.

III. Testimony Of Callie Brooks. When the prosecuting witness, Walter James, was on the witness stand, the following occurred:

“Q. Have you seen this defendant, Bernard Arnold since that beating?

A. Yes, sir, seen him every day.

Q. Have you and the defendant had an occasion to talk since that time?

A. No, sir.

Q. Do you understand what I’ve asked you?

A. You said had we talked any?

Q. Yes.

A. Oh, yes.

Q. Where was it, if you. talked with Bernard?

A. He talked with me. I ain’t talked with him.

Q. Where was this?

A. Up here at the courthouse.

Q. I’ll ask you did you have any other conversation with him?

A. Not that I remember. . . .

Q. Has your money been returned to you?

A. Not a nickel.

Q. Has anyone talked to you about returning your money?

A. No, sir.”

The next witness for the prosecution was Callie Brooks, the woman at whose house Walter James had a room. Over the objection of appellant Callie Brooks was permitted to testify that about ten days after Bernard Arnold had been arrested and made bond for the alleged robbery of Walter James, she heard Bernard Arnold say to James:

“ ‘Mr. Walter, I come to see you and talk to you, and I want to get you to tell the Judge that I didn’t take your money. You said I takened your money, but I didn’t take your money,’ and says, ‘if you tell the Judge I didn’t take your money, somebody else got it, I’ll pay you your money back.’ ”

The appellant contends that the Trial Court erred in admitting the testimony of Callie Brooks, as it was in opposition to and in impeachment of Walter James’ testimony, as previously abstracted. The State had a right to contradict the testimony of Walter James by independent evidence showing the facts to be different from those testified to by James. We said in Sharpensteen v. Pearce, 219 Ark. 916, 245 S. W. 2d 385:

“By offering a witness a party impliedly vouches for his credibility and cannot later impeach him. hy showing that his reputation for truth is bad. But this does not mean that if a witness has been false or mistaken in his testimony the party is forever precluded from proving the truth by other witnesses. On the contrary, a witness may be contradicted as to any fact about which he has given evidence. Midland Valley R. Co. v. Lemoyne, 104 Ark. 327, 148 S. W. 654.”

To the same effect, see Hamlin v. Darr, 220 Ark. 841, 250 S. W. 2d 532; and Western Union v. Byrd, 197 Ark. 152, 122 S. W. 2d 569. And see also 58 Am. Jur. 442, “Witnesses” § 797; and 98 C. J. S. 647, “Witnesses” § 630. The State was not precluded from showing the truth. The forgetfulness or misunderstanding of the witness Walter James did not preclude the State from showing the truth by other testimony.

IY. Argument Of Prosecuting Attorney. In his closing argument to the jury the Prosecuting Attorney, Mr. Weisenberger, in commenting on Walter James’ identification of Bernard Arnold as the person who had beaten and robbed James, took occasion to point out to the jury that each member had seen James walk into the courtroom from the witness room, so James still had some vision. Then, as to whether James’ identification should be believed, Mr. Weisenberger used these words:

“As I told you in the opening statement that there would be one witness that actiially knew what went on, as far as the robbery was concerned. We tried to bring you all of the witnesses. Walter James impressed me as an honest old darkie — the kind that your father and my father worked, respected, enjoyed the association with- — -a man with grey hair, coming on down in his declining years. Doubtless believing in his God. I don’t believe he went here and . . .”

At this point appellant’s attorney offered an objection and moved that the jury be admonished to disregard Mr. Weisenberger’s statement as, “. . . it called attention to racial tension.” After the objection was overruled, Mr. Weisenberger continued: “. . . he emphatically pointed out this man as the man that robbed him. ... I don’t believe he would lie to you, gentlemen, when he knows his time to meet his Maker is not too far off.”

In the briefs in this Court appellant contends that Mr. Weisenberger’s argument was, “. . . an appeal to racial tension.” We see no merit in such contention. The remarks of the Prosecuting Attorney were designed to show that Walter James was a truthful, law-abiding, God-fearing citizen, and worthy of belief.

We find no merit in any of the assignments in the appellant’s motion for new trial.

Affirmed.


author: George Rose Smith, J. Robinson, J.,

text:
    Kerby v. State.
    4993
    342 S. W. 2d 412
    Opinion delivered January 23, 1961.
    [Rehearing denied February 20, 1961]

      Martin, Dodds & Kidd, for appellant.

      Bruce Bennett, Attorney General, by Ancil M. Reed, Asst. Attorney General, for appellee.
   George Rose Smith, J.

The appellant was tried upon three counts of obtaining money by false pretenses. Ark. Stats. 1947, § 41-1901. The State charged that the accused, in order to sell stock in the United Standard Corporation, had made false statements to W. H. Flood, Howard Norton, and W. R. and Cora Bowling. The jury found the defendant guilty and sentenced him to serve three years in the penitentiary.

Kerby first questions the sufficiency of the evidence to support a finding of the requisite intent to defraud, but we consider the proof to be sufficient.

The appellant, after having engaged in the fire insurance business for half a century, began selling corporate stock at the age of seventy. In this venture he was working for James M. Dees, who had been an officer in one of the insurance companies that Kerby had represented. Kerby received from Dees a sales kit that included pamphlets and prospectuses about United Standard and its affiliated companies. The purchasers referred to in the information testified that Kerby, in selling the stock for cash, falsely represented that United Standard owned an aluminum plant in southeast Arkansas, that the company controlled a new process for the installation of airport runways, that the value of the stock would increase fivefold within a year, and that the purchasers’ money would he refunded if $100,-000 worth of the stock should not be sold.

Kerby disclaimed any firsthand knowledge about the affairs of the corporation, and it is accordingly argued that the State failed to prove that he knew his representations to be untrue. We think, however, that from the testimony as a whole the jury were entitled to draw an inference that Kerby was aware of the falsity of his statements. On the witness stand Kerby denied having made some of the representations attributed to him and insisted that he merely repeated information disclosed by his sales kit. The pamphlets and prospectuses were introduced in evidence. They do not contain the false statements about which the defrauded purchasers testified. Despite Kerby’s denials the jury could have concluded that the false statements were made, and since they were not borne out by the contents of the sales kit the jury were justified in believing that the misrepresentations were not innocently made. Apparently the jury reasoned that the accused had fabricated the false assertions, and it cannot be said that the record is devoid of substantial proof to sustain that conclusion.

The appellant’s second contention is that the court erred in permitting the prosecution to prove Kerby’s misrepresentations about matters relating solely to the future, such as the statement that the stock would increase in value within a year. It is conceded that the record contains sufficient evidence of misstatements of existing facts to support a conviction, but the appellant insists that the references to future events should have been excluded altogether.

This contention is not sound. It is true that misrepresentations relating solely to the future do not constitute an offense. Conner v. State, 137 Ark. 123, 206 S. W. 747. It does not follow, however, that such proof must be excluded from the jury’s consideration if it is otherwise relevant. Here the testimony was relevant, as it assisted the jury in understanding all the circumstances surrounding the sale of the stock. As we said in Baker v. State, 4 Ark. 56: “All the authorities concur, that the intention and design of the party are best explained by a complete view of every part of his conduct at the time, and not merely from the proof of a single and isolated act or declaration.” In its charge to the jury the court adequately protected Kerby’s rights by an instruction which explained that the false representations “must be representations of the existence of some fact or facts.”

A third contention is that the court erred in permitting the prosecution to prove that Kerby had made substantially similar false representations in the course of selling United Standard stock to other residents of the county. Cases such as Moore v. State, 227 Ark. 544, 299 S. W. 2d 838, and Alford v. State, 223 Ark. 330, 266 S. W. 2d 804, are cited for the general rule that the State cannot prove the commission of one crime by proof of the commission of another.

The cases cited are readily distinguishable from the case at bar. The Alford case, for instance, involved a charge of rape. The prosecutrix testified that the accused forcibly overcame her resistance and ravished her. If that testimony was true there was plainly no real question about the defendant’s intent, and consequently we held that the State could not, under the guise of proving intent, introduce evidence that the accused had upon a different occasion attempted to rape another woman.

On the other hand, in the case at hand Kerby’s actual subjective intent was of controlling importance. Guilty knowledge is an essential element of the crime, for Kerby would have committed no offense if he believed his statements to be true. In such circumstances proof of other similar conduct, not too remote in time, is admissible to aid the jury in determining the intent of the accused. “So, when it is material to show that a given act was done with a fraudulent intention, as,, for example, in a prosecution for obtaining goods by false pretenses, other disconnected false pretenses in which the presence of fraud is recognized may be proved solely to show the intent. To illustrate: Where the accused had used a fraudulent abstract of title to induce one to sell him goods in exchange for real estate, it may be shown that the accused had on the same day employed the same means to induce another person to sell him goods.” Underhill, Criminal Evidence, (5th Ed.), § 208. We applied the principle in Myers v. Martin, 168 Ark. 1028, 272 S. W. 856, which, although a civil case, is basically similar to the present case. There in a purchaser’s action to recover damages sustained in the purchase of certain bank stock as a result of the seller’s fraudulent representations it was held that the plaintiff could introduce proof to show that the defendant had made like misrepresentations in selling shares of the same stock to others. “It tended to show a motive and a general scheme to induce people to invest in the stock of the bank.”

Finally, the appellant complains of an instruction by which the jury were told that the accused’s intent might be inferred from any or all of the facts or circumstances “as shown by the testimony adduced in the case.” It is argued that the instruction should have mentioned documents and other evidence not falling within the definition of “testimony.” This asserted defect was not called to the court’s attention by a specific objection, however, and we do not find the instruction to be inherently erroneous either upon this ground or upon the other grounds that are argued in the brief.

Affirmed.

Robinson, J., dissents.

Robinson, J.,

dissenting. I dissent for the reason I do not think there is any substantial evidence in the record going to prove that Mr. Kerby intended to defraud anybody. He is over 70 years of age and had been engaged in the insurance business for more than 50 years. From the record it is clear that he knew no more about corporate stocks than the people to whom he was selling the stock. They were all dealing at arm’s length, and even though he may have made some statements about what the ■company owned and what it intended to do in the future, there is nothing to indicate that he did this with the intention of defrauding anyone. In my opinion the case should he reversed and dismissed, and I certainly think it is one where the Governor should give this man some relief.


text:
    Coslin v. The Crossett Company.
    5-2228
    342 S. W. 2d 303
    Opinion delivered January 23, 1961.

      William, H. Drew, for appellant.

      Arnold & Hamilton, for appellee.
   George Rose Smith, J.

The appellee, The Crosseffc Company, is the record owner of the 318 acres involved in this case. The company brought this suit to cancel, as a cloud upon its title, a deed which the appellant obtained to the land in 1958, and to enjoin the appellant from trespassing upon the property. As her sole defense the appellant asserted title to the land by adverse possession. This appeal is from a decree rejecting this defense, as not sustained by the proof, and granting the relief sought by the plaintiff.

Many years ago the lands in question were owned by the appellant’s father, E. E. Callaway, who sold the property and surrendered possession in 1919. Some of the land may formerly have been under cultivation, but for twenty years or more it has all been unenclosed timberland. During its ownership the appellee has cut the timber from time to time and has replanted the land with seedling trees when necessary. It is stipulated that the appellee paid the taxes every year from 1921 through 1958.

This suit was filed in 1958 because in that year the appellant obtained a deed to the property from the other heirs of her father and also asserted her claim of ownership by posting notices upon the land itself. The appellant questions the jurisdiction of the chancery court, but if the land is wild and unimproved, as the chancellor found, then equity had jurisdiction to cancel the appellant’s deed as a cloud upon the appellee’s title. Rowe v. Allison, 87 Ark. 206, 112 S. W. 395.

The lands in dispute are not entirely contiguous. One hundred acres lie in a certain Section 20, while the remaining 218 acres are half a mile or more away, in Sections 21 and 22. Upon the controlling issue of adverse possession the appellant’s evidence falls far short of sustaining her claim to the 100-acre tract. According to her own testimony the appellant has never been in actual possession of any part of this tract. Her claim of adverse possession for seven years, extending from March of 1951 to the filing of this suit in October of 1958, rests upon her assertion that she patrolled the 100-acre tract, searching for trespassers, some two or three times a month. Merely safeguarding the property in that manner does not constitute adverse possession. Connerly v. Dickinson, 81 Ark. 258, 99 S. W. 82; Stokes v. State, 121 Ark. 95, 180 S. W. 492. It also appears •that the appellant executed an unrecorded hunting lease to G-. H. Oden, purportedly covering all the lands in controversy, but the lessee did not take possession of the property.

We are also of the opinion that the proof does not support- the appellant’s claim to the other 218 acres. Mrs. Coslin says that in March of 1951 she and her husband built an unfloored hut or shack upon a certain 40-acre subdivision within this tract. This hut was made of two-by-fours and galvanized sheet metal, was about ten by twelve feet in size, and had neither a water supply nor toilet facilities. Mrs. Coslin and her husband lived in this shack on weekends and at other times when "they were not employed. From April, 1952, to November, 1953, the Coslins were both working in Texarkana, Texas, and spent only two or three weekends a month upon the property. Mrs. Coslin says that on those visits •she patrolled all the lands in dispute, but it is not shown ■that she manifested her claim of ownership in any other way.

Late in 1956 or early in 1957 the appellee’s forester in charge, Arnold, noticed the shack. He describes it as containing no furniture except a bare bedstead, without a mattress. Arnold was unable to ascertain who •owned the structure, and in January of 1958 he had the shack pushed down. Mrs. Coslin says that she assumed the wind had blown the building down, and she •set it up again upon a different 40-acre subdivision. Shortly before the suit was filed she abandoned the shack and began living in a trailer that she moved upon the forty acres just mentioned.

Since the appellant had no color of title until 1958 her adverse possession could not extend beyond her actual occupancy, which was limited to the tiny hut. Langhorst v. Rogers, 88 Ark. 318, 114 S. W. 915. Even as to that area her claim of adverse possession is fatally defective in two particulars. First, an unoccupied shack such as Arnold describes would not, while the Coslins were away, meet the test of demonstrating to the world that they were still in control of the property. Norwood v. Mayo, 153 Ark. 620, 241 S. W. 7. Secondly, the shack did not remain upon the first 40-acre tract for quite seven years, and since the appellant had no color of title her possession at that location could not extend beyond its actual limits and therefore could not be tacked to her later possession upon a different forty acres. Consequently she has not shown actual adverse possession of any part of the property for a continuous period of seven years.

The appellee’s motion to be reimbursed for the cost of its additional abstract of the record is denied.

Affirmed.

Johnson, J., not participating.


text:
    Barham v. Ivy.
    5-2287
    342 S. W. 2d 293
    Opinion delivered January 23, 1961.

      Marcus Evrard, for appellant.

      Gardner S Steinsiek, for appellee.
   Paul Ward, Associate Justice.

This litigation involves a somewhat typical dispute over a dividing line between adjoining properties. Unfortunately, in this instance, the dispute is between two eminent and well known attorneys who have been on friendly relations for many years. Beulah S. Barham brought suit to enjoin Bruce Ivy from encroaching upon her property. The issue was resolved in favor of Ivy by the Chancellor, and this appeal follows.

To properly understand the issue a brief statement of the factual background leading up to the litigation will be helpful. About the year 1920 appellant purchased a strip of land 30 feet wide from east to west off of the east side of Lot No. 3 in Block 20, Osceola Town-site Addition to Osceola. Soon thereafter she erected an office building on said strip of land which has been occupied by her husband, A. F. Barham, as a practicing attorney up until this time. A few years later Massey & Sullenger acquired title to Lot 2 in said addition. Lot 2 lies immediately east of and adjoins said Lot 3. About the year 1926 Massey & Sullenger erected an office building on Lot 2, and this property was conveyed to appellee about the year 1944.

It is the contention of Mr. Barham (representing his wife, the appellant) that the west wall of the Ivy building extends over on Lot 3 a distance of two feet and eight inches. It is the contention of appellee that his property line runs midway between his building and appellant’s building. This contention would place the dividing line approximately three or four feet west of the west line of his building.

Appellant sought to establish the dividing line by the testimony of a surveyor, and appellee sought to establish his line by adverse possession and by showing the location of a fence acquiesced in for many years by appellant.

The Chancellor held in favor of appellee, in accordance with his contentions, and fixed the dividing line midway between the two buildings. In doing so the Chancellor announced that he was disregarding the testimony given by Mr. Barham and Mr. Ivy. The Chancellor had a right, we think, to conclude that the testimony of one off-sets the testimony of the other and perhaps this is what he had in mind, but he had no right to disregard their testimony entirely. However, we have concluded that the Chancellor reached the right result although on somewhat different grounds from those relied on to support our conclusions hereafter set out.

The testimony in this case is voluminous and much of it is in direct conflict. Under the view which we have taken it is unnecessary to set out in full this testimony or to comment on it extensively.

The Chancellor held, and we agree, that appellant failed to meet the burden of showing the location of the dividing line by the surveyor’s testimony. The Chancellor found, and we again agree, that no definite beginning point for the survey was properly established. The testimony on the part of appellee tending to show adverse possession and to show the establishment of the fence (running equi-distance between the two buildings) was voluminous and not entirely satisfactory, and it was pointedly denied by a large number of appellant’s witnesses. The Chancellor, who saw and heard the witnesses, found that their testimony established appellee’s claim. It is most difficult for us to say that the Chancellor was right or that he was wrong, but there are some other undisputed facts and circumstances not mentioned by the Chancellor, which we think, support the conclusions he reached. Those facts and circumstances are hereafter set out.

It is conceded that the width of appellant’s lot was 30 feet wide from east to west. In regard to the size and location of this building Mr. Barham testified:

‘ ‘ Q. What is the width of your building, if you know ?

A. Well, it is twenty — I have measured it but I can’t recall now. Twenty some odd feet.

Q. Do you have any recollection now when you built your building as to how much you would have on each side of your building, in regard to your lot?

A. Well, I intended, of course, to get the building in there on that lot so I would have some space on each side of it.

Q. Well, would it be a fair statement to say your intention was to have more or less an equal space on each side of the building?

A. Well, something like that.”

Mr. O. W. Gauss, a long time resident of Osceola and a civil engineer with 50 years experience, testified in behalf of appellant regarding the width of appellant’s building and the distance between the two buildings in question, after stating that he made a careful measure:

“Q. Now, what is the measurement?

A. I measured twenty-one feet six and one-half inches across Mr. Barham’s building, and the area is seven feet between the Ivy Building west wall and Barham Building east wall.

Q. An even seven feet?

A. Could be off one-sixteenth.”

The undisputed evidence shows that there is a concrete sidewalk along the west side of appellant’s building.

The above established facts strongly indicate that the dividing line could not have been more than four or five feet east of her building, depending on the width of the sidewalk referred to above. Or, approached from another viewpoint, wo find this situation: Appellant here contends that the dividing line is nine feet and eight inches east of her building. This distance added to the width of her building amounts to thirty-one feet and two inches, while she concedes her lot to be only thirty feet wide. Mr. Barham admitted that he did not know the location of the true dividing line and, based on Mr. Ivy’s contentions herein, it is apparent that he didn’t know either.

The Chancellor, who had the opportunity to see and observe the witnesses, concluded from the conflicting testimony that the dividing line is located equi-distance between the two buildings, and it is our conclusion that the facts above related strongly support the Chancellor’s conclusion. The decree of the trial court is therefore affirmed.


author: Sam Robinson, Associate Justice.

text:
    Royster v. Royster.
    5-2251
    342 S. W. 2d 302
    Opinion delivered January 23, 1961.

      Eugene Goffelt, for appellant.

      Duty <& Duty, for appellees.
   Sam Robinson, Associate Justice.

Appellant, Yol Royster, has a judgment in the sum of $315 against one R. S. Taylor. Leon W. Morris and Betty Lou Morris were indebted to Taylor for the balance due on the purchase price of a piece of real estate. Taylor assigned the debt to A. P. Royster. Subsequently Yol Royster filed garnishment proceedings against the Morrises in an attempt to collect the debt owed him by Taylor and attempted to show that the assignment from Taylor to A. P. Boyster is invalid. Yol Boyster has appealed from the decree of the chancellor holding that the assignment is valid.

The abstract of the evidence is inadequate and therefore it cannot be determined if the chancellor was in error. We have held repeatedly that this Court will not search the record; that it is not practical for the seven members of the Court to examine in detail the one record filed here. Commissioner of Labor, C. R. Thornbrough v. Danco Constr. Co., 226 Ark. 797, 294 S. W. 2d 336; Griffin v. Mo. Pac. R. R., 227 Ark. 312, 298 S. W. 2d 55.

Affirmed.