text:
    Sisters of Mercy of Warner Brown Hospital v. Nellie Joe Robertson
    5-4104
    411 S. W. 2d 3
    Opinion delivered February 6, 1967

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

      Brown, Compton & Prewett, for appellee.
   J. Fred Jones, Justice.

This case involves the proceeds paid by two separate insurance companies under two separate family group- hospitalization policies on the hospital bill of one of the family group covered in both policies. The payment by both companies resulted in an over-payment of the account, and the question pertains to the disposition of the over-payment.

At the outset we agree with appellant, as well as the appellee, that this case is unique.

Ralph Robertson and Nellie Joe Robertson were husband and wife living in El Dorado. Mr. Robertson was employed by the Lion Oil Company and he and his family were covered by a group hospitalization policy Avith Metropolitan Insurance Company procured through his employer. Mrs. Robertson was employed by the El Dorado school district and also carried a family group hospitalization policy procured through her employer.

Mr. Robertson was hospitalized in Warner Brown Hospital operated by Sisters of Mercy, and on August 15, 1965, his account with the hospital amounted to $7,-006.88. Mrs. Robertson Avas also a patient at the hospital from April 12 until May 21, 1965, and incurred a bill in the amount of $1,503.30.

On June 28, 1965, Blue Cross-Blue Shield paid the hospital $1,283.30 for credit to the accomit of Mrs. Robertson, leaving a balance of $220.00 due on Mrs. Robertson’s account.

On July 28, 1965, Metropolitan also paid the hospital $1,433.89 on Mrs. Robex-tson’s account, and on August 4, 1965, paid the additional sxxm of $59.25, making a total over-payment on Mrs. Robertson’s account in the amount of $1,273.14. Metropolitan filed a claim with the hospital for a refund of $305.56 erroneously overpaid under its policy.

When Mrs. Robertson was admitted to the hospital, she and Mr. Robertson were separated, and on August 12, 1965, she instituted suit against Mr. Robertson in the Union County Chancery Court for separate maintenance.

On August 17,1965, the Sisters of Mercy of Warner Brown Hospital filed an intervention in the separate maintenance action claiming the amount of over-payment on Mrs. Robertson’s account should be applied on Mr. Robertson’s account, less the $305.56 claimed in over-payment by Metropolitan on its policy.

The case was submitted to the court on stipulation of facts and the court decreed that $967.64 be paid over to Mrs. Robertson, and that $305.50 be paid into the registry of the court subject to the claim of Metropolitan.

Sisters of Mercy of Warner Brown Hospital brings this appeal contending as their only point relied on, “that the chancellor erred in holding that the plaintiff, Nelly Joe Robertson, is entitled to the over-payment made by husband’s hospital insurance carrier, Metropolitan Insurance Company, to the Sisters of Mercy of Warner Brown Hospital on the plaintiff’s account.”

We are of the opinion that the chancellor was correct in holding that the over-payment on Mrs. Robertson’s account should be reimbursed to Mrs. Robertson,

Neither of the group policies, nor abstracts of their provisions, are of record in this case and subrogation between insurance companies is not involved. Appellant’s right to intervene in appellee’s separate maintenance action is not questioned by appellee and will not be questioned by us. Appellants do not contend that appellee is liable in any manner for her estranged husband’s hospital bills.

Appellants have offered no proof that the money paid on appellee’s account, under a group policy procured by the husband through his employer, at any time belonged to the husband, and certainly appellants have offered no proof that the over-payment belonged to them.

The chancellor’s decree is not against the preponderance of the evidence and must be affirmed. •

Decree affirmed.


source: Caselaw Access Project

author: Conley Byrd, Justice. John A. Fogleman, Justice,

license: Public Domain

text:
    Mark Block v. Ben Allen et al
    5-4210
    411 S. W. 2d 21
    Opinion delivered February 6, 1967

      Carl Langston and John Langston, for appellant.

      Robinson, Thornton, McGloy & Yovmg, for appellee.
   Conley Byrd, Justice.

This litigation arises as a result, of the “one man, one vote” decisions of the United States Supreme Court, and the case of Yancey v. Faubus, 238 F. Supp. 290 (E. D. Ark. 1965). Appellant Mark Block, a qualified voter, has brought this declaratory judgment action against the five Senators of the eighteenth senatorial district to determine whether the Senate must be divided into two classes by lot in accordance with Section 6 of Amendment 23 to the Constitution of the State of Arkansas. Appellees, Ben Allen, Max Howell, Dan Sprick, Joe Ford and Oscar Alagood, being the five Senators of the eighteenth senatorial district, filed a demurrer to the complaint which the trial court sustained.

In sustaining the demurrer, the trial court held that Amendment 23, Section 6, the Senate must be divided of Arkansas was not applicable. While we agree that the demurrer should have been sustained, we do not adopt the theory of the trial court.

Appellant contends that the apportionment made by The Board of Apportionment following the cases of Yancey v. Faubus, supra, and Faubus v. Kinney, 239 Ark. 443, 389 S. W. 2d 887 (1965), is but an apportionment following the 1960 federal census, and that under Amendment 23, Section 6, the Senate must be divided into two classes by lot. Appellant’s theory is that Amendment 45 has been voided in its entirety by the “one man, one vote” decisions, since the sole purpose of Amendment 45 was to freeze the senatorial apportionment existing at the time of its adoption in 1956. Appellees first take the position that Amendment 45 is controlling and that under that amendment a Senator is elected for a term of four years. For their alternative position, appellees contend that even if we should decide that Amendment 23 is the controlling law, by virtue of the provisions of Section 4 thereof the Senate will not be required to divide itself into two classes by lot until after an apportionment is made following a federal census.

The historical background out of which this problem arose is hereinafter set out to give a better understanding of the problem involved.

The 1874 Constitution of Arkansas, Art. VIII, § 2, provided that the legislature should from time to time divide the state into convenient senatorial districts, having not more than 35 nor less than 30 Senators. Article V, § 3 provided that at the first session the Senators should divide themselves into two classes by lot, in which case the first class would hold office for two years only but thereafter all Senators would be elected for four-year terms.

In 1936, Amendment 23 to the Constitution of Arkansas was adopted. This amendment, providing for 35 Senators, set up a Board of Apportionment, consisting of the governor, secretary of state, and attorney general. The Board of Apportionment had the imperative duty to make apportionment of the Representatives and Senators in accordance with population as shown by the federal census within 90 days after January 1, 1937, and thereafter on or before February 1 immediately following each federal census. Section 6 of this amendment provided that at the next general election following any .¡such apportionment, the Senators and Representatives should be elected in accordance with the apportionment, and furthermore, that the Senate at the first regular session succeeding any apportionment so made “. . .shall be divided into two classes by lot, eighteen of whom shall serve for a period of two years and the remaining seventeen for four years, after which all shall be elected for four years until the next apportionment hereunder.” This amendment also prohibited the division of a county in the formation of senatorial districts.

As far as the problem here is concerned, Amendment 23 was before this court twice following the 1940 decennial census. No change was made in any senatorial district following the 1940 census, and in Bailey v. Abington, 201 Ark. 1072, 148 S. W. 2d 176 (1941), and Butler v. Democratic State Comm., 204 Ark. 14, 160 S. W. 2d 494 (1942), we held that where no change was made in the geographical boundaries of any senatorial district, it was not necessary to elect an entirely new Senate nor for the Senate to divide itself into two classes by lot as provided in Section 6 of the amendment. We there held, however, that if there was any change in any senatorial district following a decennial census, an entirely new Senate must be elected at the next general election and that at the first regular session following such election it would be necessary for the Senate to divide itself into two classes by lot as provided in Amendment 23, Section 6.

Following the 1950 decennial census, senatorial apportionment was again before this court in Smith v. Board of Apportionment, 219 Ark. 611, 243 S. W. 2d 755 (1951), and Pickens v. Board of Apportiomnent, 220 Ark. 145, 246 S. W. 2d 556 (1952). These two cases were direct appeals from the action of The Board of Apportionment pursuant to Amendment 23, Section 5, which confers original jurisdiction on this court in such matters.

The 1950 reapportionment and the subsequent division of the Senate into two classes by lot, for the purpose of the two- and four-year term provisions of Section 6 of Amendment 23, were not popular with members of the Senate. The Senators who ostensibly were elected to a four-year term in 1950, and some whose districts were not affected, found themselves running* for office again in 1952, and some of them subsequently found themselves running for office again in 1954 because ■ of the “division into two classes by lot” required by Section 6 of the amendment.

In 1956 the problem of apportionment was temporarily solved by the passage of Amendment 45 to the Constitution of Arkansas. By this amendment the senatorial districts were frozen in the manner set out in Pickens v. Board of Apportionment, supra, and the Senate was removed from the jurisdiction of The Board of Apportionment. Following the “one man, one vote” decisions of the United States Supreme Court, that portion of Amendment 45 which froze the senatorial districts was declared void by a three-judge federal court in Yancey v. Faubus, supra.

' Since the “oneman, one vote” decisions voided so many sections of our Constitution, the decision by this court in Faubus v. Kinney, supra, was expedited through ■ the courts to get a judicial determination to see if the .portions of Amendment 45, which established 100 members in the House of Representatives and 35 members in the Senate, were still valid and, if so, whether the apportionment ordered by the federal court in Yancey v. Faubus, supra, should be made by the legislature or by The Board of Apportionment. We there held that the portions of Amendment 45 which provided for 100 members in the House of Representatives and 35 members in the Senate were still valid and that The Board of Apportionment set up thereunder was the proper body to reapportion the legislature as directed by the federal court in Yancey v. Faubus, supra.

Following Faubus v. Kinney, supra, The Board of Apportionment, pursuant to the directions of Yancey v. Faubus, supra, reapportioned the state upon the basis of ‘1 one man, one vote, ’ ’ but in doing so left unaffected the districts of nine Senators who had ostensibly been elected to a four-year term in 1964. In Catlett v. Jones, 240 Ark. 101, 398 S. W. 2d 229 (1966), we held that these nine Senators could serve out the remainder of .their four-year terms without standing for re-election in 1966.

While there is logic and apparent merit in appellees’ contention that we cannot hold Section 6 of Amendment 23 applicable at this session if we follow our previous. decisions— i. e., Bailey, Butler and Catlett, supra — we do not at this time find ourselves in a position to make a final determination upon the merits. There is an obvious detect in the parties defendant, since only 'five members of the Senate are made parties to this declaratory judgment action. See Ark. Stat. Ann. § 34-2510 (Bepl. 1962), which provides as follows:

“Parties. — When the declaratory relief is sought, all persons shall be made parties who have or claim any interest which would be affected by the declaration, and no declaration shall prejudice the rights of persons not parties to the proceeding. . . [Acts 1953, No. 274, § 10, p. 802.]” •

Consequently, the decree of the trial court will be affirmed upon the ground that the demurrer should have been sustained because of the defect in the parties defendant.

The gravity of this defect is pointed up by reason -of the fact that any decision as to these five members could not control the action of the Senate. The constitutional provision sought to be invoked would require action by the Senate, not individual Senators. Thus, no effective relief could have been granted to either party in this case.

Affirmed as modified.

Harris, C. J., and Fogleman, J., concur.

AMENDMENT NO. 23

Sec. 1. Board of apportionment created — Powers and duties. — A board to be known as “The Board of Apportionment,” consisting of the Governor (who shall be Chairman), the Secretary of State and the Attorney General is hereby created and it shall be its imperative duty to make apportionment of representatives and senators in accordance with the provisions hereof; the action of a majority in each instance shall'be deemed the action of said Board.

Sec. 2. One hundred members in house of representatives. — Apportionment.—The house of representatives shall consist of one hundred members and each .county existing at the time of any apportionment shall have at least one representative; the remaining members shall be equally distributed (as nearly as practicable) among the more populous counties of the State, in accordance with a ratio to be determined by the population of said counties as shown by the Federal census next preceding any apportionment hereunder.

Sec. 3. Senatorial districts — Thirty-five members of senate. — The Senate shall consist of thirty-five members. Senatorial districts shall at all times consist of contiguous territory, and no county shall be divided in the formation of such districts. “The Board of Apportionment” hereby created shall, from time to time, divide the State into convenient senatorial districts in such manner as that the Senate shall be based upon the inhabitants of the State, each Senator representing, as nearly as practicable, an equal number thereof; each district shall have at least one Senator.

Sec. 4. Duties of board of apportionment. — The Board shall make the first apportionment hereunder within ninety days from January 1, 1937; thereafter, on or before February 1 immediately following* each Federal census, said Board shall reapportion the State for both Representatives and Senators, and in each instance said Board shall file its report with the Secretary of State, setting forth (a) the basis of population adopted for representatives; (b) the basis for senators; (c) the number of representatives assigned to each county; (d) the counties comprising each senatorial district and the number of senators assigned to each, whereupon, after thirty days from such filing date, the apportionment thus made shall become effective unless proceedings for revision be instituted in the Supreme Court within said period.

Sec. 5. Mandamus to compel board of apportionment to act. — Original jurisdiction (to be exercised on application of any citizens and taxpayer) is hereby vested in the Supreme Court of the State (a) to compel (by mandamus or otherwise) The Board to perform its duties as here directed and (b) to revise any arbitrary action of or abuse of discretion by The Board in making any such apportionment; provided any such application for revision shall be filed with said Court within thirty days after the filing of the report of apportionment by said Board with the Secretary of State; if revised by the Conid, a certified copy of its judgment shall be by the clerk thereof forthwith transmitted to the Secretary of State, and thereupon be and become a substitute for the apportionment made by the Board.

Sec. 6. Election of senators and representatives. —At the next general election for State and County officers ensuing after any such apportionment, senators and representatives shall be elected in accordance therewith and their respective terms of office shall begin on January 1 next following. At the first regular session succeeding- any apportionment so made, the Senate shall be divided into two classes by lot, eighteen of whom shall serve for a period of two years and the remaining seventeen for four years, after which all shall be elected for four years until the next reapportionment hereunder.

AMENDMENT NO. 45

§ 1. Board of apportionment created ■ — • Powers and duties. — A Board to be known as “The Board of Apportionment,” consisting of the Governor (who shall be Chairman), the Secretary of State and the Attorney General is hereby created and it shall be its imperative duty to make apportionment of representatives in accordance with the provisions hereof; the action of a majority in each instance shall be deemed the action of said board.

§ 2. One hundred members in house of representatives. — Apportionment.—The House of Beprésentatives shall consist of one hundred members and each county existing at the time of any apportionment shall have at least one representative; the remaining members shall be equally distributed (as nearly as practicable) among the more populous counties of the State, in accordance with a ratio to be determined by the population of said counties as shown by the Federal census next preceding any apportionment hereunder.

§ 3. Senatorial districts — Thirty-five members of senate. — The Senate shall consist of thirty-five members, Senatorial districts as now constituted and existing, as heretofore directed by the Supreme Court of Arkansas in the case of Piclcens v. Board of Apportionment, 220 Ark. 145, 246 S. W. 2d 556, shall remain the same and the number of Senators from the districts shall not be changed.

§ 4. Duties of board of apportionment. — On or before February 1 immediately following each Federal census, said Board shall reapportion the State for Bepresentatives, and in each instance said Board shall file its report with the Secretary of State, setting forth (a) the basis of population adopted for representatives; (b) the number of representatives assigned to each'county; whereupon, after 30 days from such filing date, the apportionment thus made shall become effective unless proceedings for revision be instituted in the Supreme Court within said period.

§ 5. Mandamus to compel board of apportionment to act. — Original jurisdiction (to be exercised on application of any citizens and taxpayers) is hereby vested in the Supreme Court of this State (a) to compel (by mandamus or otherwise) the Board to perform its duties as here directed and (b) to revise any arbitrary action of or abuse of discretion by the Board in making such apportionment; provided any such application for revision shall be filed with said Court within 30 days after the filing of the report of apportionment by said Board with the Secretary of State; if revised by the Court, a certified copy of its judgment shall be by the clerk thereof forthwith transmitted to the Secretary of State, and thereupon he and become a substitute for the apportionment made by the Board.

§ 6. Election of senators and representatives.— At the next general election for the State and County officers ensuing after any such apportionment, Representatives shall be elected in accordance therewith, Senators shall be elected henceforth according to the apportionment now existing, and their respective terms of (office shall begin on January 1 next following. Senators ishall be elected for a term of four years at the expiration of their present terms of office.

Carleton Harris, Chief Justice, concurring. I concur in the opinion handed down by the court, since I would also affirm, but for an additional reason. I agree that there is a defect of parties, and, strictly speaking, other members of the Senate should have likewise been named party defendants. However, this matter was mentioned to counsel during oral argument, and I gained the impression, at that time, that the entire Senate was interested, and desired a decision on the merits. The defect of parties is not raised in the briefs.

In Faubus, Governor v. Kinney, 239 Ark. 443, 389 S. W. 2d 887, we held only those provisions of Amendment 23 to the Constitution of Arkansas invalid, which were in conflict with the Federal Court decision of Yancey v. Faubus, 238 F. Supp. 290 (E. D. Ark. 1965). The provision, hereafter quoted, of Section 6 of Amendment 23, was not affected in Faubus v. Kinney, supra. That provision is as follows:

“* * * At the first regular session succeeding any apportionment so made, the Senate shall be divided into two classes by lot, eighteen of whom shall serve for a period of two years and the remaining seventeen for four years, after which all shall be elected for four years until the next reapportionment hereunder.”

The words, “any apportionment,” refer to the reapportionment made following the Federal csnsns; Section 4 of Amendment 23 provides:

“The Board shall make the first apportionment hereunder within ninety days from January 1, 1937; thereafter, on or before February 1 immediately following each Federal census (my emphasis), said Board shall reapportion the State for both Representatives and Senators,* *

In Butler v. Democratic State Committee, 204 Ark. 14, 160 S. W. 2d 494, we held that Amendment 23 was intended to apply only to apportionments of the House and Senate made after each Federal decennial census in the state, and further held that, if no change was -required in the geographical boundaries of any senatorial district (as a result of an apportionment made pursuant to this census), no drawing of lots for two and four-year terms was necessary, and each Senator would be entitled to serve a four-year term.

Accordingly, it is my view that it would be improper to draw lots for two and four-year terms at the present session of the General Assembly; rather, there is no occasion for a drawing until at least after the 1970 Federal census has been taken.

I therefore agree with the trial court to the extent that Amendment 23 does not require a drawing for terms at this session of the Legislature.

John A. Fogleman, Justice,

concurring. I concur in the result reached in this case without any reservation, but I would also affirm the action of the trial court because appellant had no right to be protected or .interest sufficient to provide the justiciable controversy necessary for an action such as this, either individually or as a citizen, taxpayer and elector of one senatorial district.

A litigant can question a statute’s validity only when and insofar as it is being, or is about to be applied to his disadvantage and a demurrer properly raises this point. Dowell v. School Dist. No. 1, 220 Ark. 828, 250 S. W. 2d 127; Arkansas Power & Light Co. v. West Memphis Power & Water Co., 184 Ark. 206, 41 S. W. 2d 755; Ferguson v. Hudson, 143 Ark. 187, 220 S. W. 306; Lienhart v. Burton, 207 Ark. 536, 181 S. W. 2d 468; Citizens Pipe Line Co. v. Twin City Pipe Line Co., 178 Ark. 309, 10 S. W. 2d 493; Connor v. Blackwood, 176 Ark. 139, 2 S. W. 2d 44; Priest v. Mack, 194 Ark. 788, 109 S. W. 2d 665.

While these authorities have to do with statutes, we apply the same rules to constitutional provisions as we do to statutes when called upon for construction.

If appellant has any litigable right at all, there is no showing of any kind what the Senate, as distinguished from five of its members, intends or is about to do in the matter.

If appellant has any litigable rights, they are political rights,, not civil or property rights, and were not Within the jurisdiction of the chancery court; so the demurrer. should have been sustained for that reason. Gladish v. Lovewell, 95 Ark. 618, 130 S. W. 579; Walls v. Brundidge, 109 Ark. 250, 160 S. W. 230; Davis v. Wilson, 183 Ark. 271, 35 S. W. 2d 1020; Seabolt v. Moses, 220 Ark. 242, 247 S. W. 2d 24.

Of course, a question of jurisdiction of the subject matter cannot be waived by the parties, can be raised at any time and even if not raised, must be determined by the court. McCain, Commissioner of Labor v. Crossett Lumber Co., 206 Ark. 51, 174 S. W. 2d 114.

The declaratory judgment act is not intended to be the vehicle for advisory opinions to persons not having a justiciable controversy with their apparent adversaries by a court having no jurisdiction. It is far better, in my opinion, that important questions, particularly constitutional ones, be pounded out on the anvil of advocacy by persons whose interests are vitally real, not academic, with all interested parties before the court.

       The reapportionment was directed under the authority of several cases, decided by the United States Supreme Court, viz., Baker v. Carr, 369 U. S. 186, decided in 1962, and the following cases, decided in 1964: Reynolds v. Sims, 377 U. S. 533; WMCA, Inc. v. Lomenzo, 377 U. S. 633; Maryland Committee for Fair Representation v. Tawes, 377 U. S. 656; Davis v. Mann, 377 U. S. 678; Roman v. Sincock, 377 U. S. 695; Lucas v. Colorado General Assembly, 377 U. S. 713.” Faubus v. Kinney, 239 Ark. 444, Footnote 2.

       Amendments 23 and 45 are set out in full as an appendix to this opinion.


author: Carleton Harris, Chief Justice. John A. Fogleman, Justice,

text:
    Old Equity Life Insurance Co. v. Hattie Mae Crumby
    5-4099
    411 S. W. 2d 292
    Opinion delivered February 13, 1967

      George K. Cracraft Jr., for appellant.

      David Solomon, for appellee.
   Carleton Harris, Chief Justice.

Appellee, Hattie Mae Crumby, a 72-year-old widow, purchased two policies of insurance from appellant insurance company on April 6,1964. One policy provided hospital benefits, and the other provided reimbursement for medical and surgical expenses. Appellee was not required to take a physical examination prior to issuance of the policies, the company only requesting a statement from appellee that she was in good health, along with a statement of her past medical history. On March 30, 1965, while visiting in Memphis, Tennessee, Mrs. Crumby, at the insistence of her children, went to Sanders Clinic for a general “check-up” and physical examination, her only complaint relating to a condition totally unconnected with the issue in this litigation. During the examination, Dr. Strain observed several tumors on her forehead, and this doctor sent her to another member of the clinic, Dr. Eugene Nobles, for a further examination of the tumors. Dr. Nobles diagnosed these (also termed ulcers) as malignant, the pathology report terming them “basal cell carcinoma,” or in “laymen’s language,” skin cancer. Surgery was performed, and the tumors removed. Mrs. Crumby sought payment of the benefits provided by the two insurance policies heretofore mentioned, but the company declined to pay on the basis that the hospitalization policy provided that the company was not liable for cancer unless that sickness originated after the policy had been in force for three months preceding the date of the origin; as to surgical benefits, the policy provided no compensation due to surgery for cancer, unless the sickness originated six months after the policy had been in force. The company contended that this condition was in existence at the time the policies were taken out by appellee and refused to make payment. Suit was instituted by Mrs. Crumby, and on hearing, the Circuit Court, sitting as a jury, found that appellee was entitled to a judgment against appellant in the amount sued for, $695.00, and was entitled to 12% penalty, a reasonable attorney’s fee, interest, and costs. From the judgment so entered, appellant brings this appeal. For reversal, only one point is relied on, viz:

“A disease originates within the meaning of the exclusionary clause of a policy of medical insurance when it becomes active and so manifests itself and displays sufficient symptoms from which a reasonable and accurate diagnosis can be made whether or not the insured is aware of the consequences of these symptoms or has actual knowledge that the disease exists.” ■

Both sides rely upon the same cases, each contending the cases strongly support their view. These cases are: State National Life Insurance Compamy v. Stamper, 228 Ark. 1128, 312 S. W. 2d 441; American Insurance Company of Texas v. Neal, 234 Ark. 784, 354 S. W. 2d 741; and United Insurance Compamy of America v. Wall, 233 Ark. 554, 345 S. W. 2d 927. In the Stamper case, Mrs. Stamper had purchased a similar policy, with a similar exclusion clause. A little over a year after the purchase, she began to suffer pain in her neck and shoulders. At first thinking it was caused by her teeth, she had them extracted, but this did not bring relief. During most of her life, she had had a small bony ■growth or knot on the back of her head, but had suffered no ill effects whatever from the growth until August, 1955 (fourteen months after the policy had been taken out), when it was determined that this growth had increased in size to the point where it was causing the pain suffered. The company contended that this knot had been present for a long number of years, and it was not liable for surgical and hospital benefits. The trial court held against this contention, and we affirmed. A similar situation was involved in American Insurance Company of Texas v. Neal, supra, and we likewise affirmed a judgment for the policyholder, citing Stamper, and stating:

“The decision in the above case was in line with the decided weight of authority that the condition should be deemed to have had its inception either at the time it became active, or when sufficient evidence existed to allow a reasonably accurate diagnosis even though disease germs, infection, or physical condition might have been present in the body prior to the excluded time if the condition was latent, inactive, and perhaps undiscovered.”

Likewise, in United Insurance Company of America v. Wall, supra, a similar exclusion was raised as a defense, it being contended that the policyholder had suffered from a circulatory ailment for a long period of time before the policy was taken out. This ailment finally resulted in Wall’s having both legs amputated. On trial, Wall obtained judgment and we affirmed. At once, it is noticeable that in all three of these cases, relied upon by both parties, the policyholder recovered.

The testimony in the case before us consists entirely of that of Mrs. Crumby and the deposition of Dr. Nobles. Mrs. Crumby testified (and none of her testimony is disputed) that the tumors had been on her forehead for a long number of years, but had never given her any trouble. Apparently one had formed from an old scar occasioned by an injury received when she was three years of age. Appellee mentioned consulting another physician six or eight years before the visit to Sanders Clinic, at which time, she showed the growth to that physician (though she was consulting him about another matter), “and he said that it was all right to leave it alone. ’ ’ She stated that prior to her visit to Dr. Strain in 1965, she had had “No trouble at all. Dr. Nobles said he didn’t know whether they would have to be removed until he took X-rays.”

Dr. Nobles testified that he could not say how long the tumors had been malignant, but when asked if he could tell whether the malignancy had reached the point where it might have been diagnosed earlier than March 30, 1965, as cancer, he replied:

“Yes, undoubtedly, if a biopsy had been taken, which is a removal of a small portion of a lesion for pathological examination, the diagnosis could have been made at an earlier time.”

The doctor stated that he was expressing his personal feeling, that he had no idea how long the tumors had been malignant, but when asked if a qualified medical doctor could have made a reasonable or accurate diagnosis of her condition, as much as six months before he (Dr. Nobles) saw her, the witness replied, “I would say this is correct.” He further stated, “I feel that this ulcer had become malignant before a year ago. I think that a year prior to her admission here it was malignant at that time.” Dr. Nobles also testified that Mrs. Crumby was unaware of any malignancy; that he knew of no previous treatment that she had had relative to this condition. This was all of the proof offered in the case.

Mrs. Crumby’s case, in many respects, is really a stronger case for recovery than the three heretofore mentioned. For instance, in United Insurance Company of America v. Wall (the amputation case), we pointed out that “the fact that appellee had experienced some symptoms before the policy was issued was no indication that the disease would advance to a state causing total disability.” In Stamper, the policyholder had the small bony growth or knot on the back of her head for a long number of years, and had suffered pain in her neck and shoulders, but thought it was caused by bad teeth. Here, it is undisputed that the tumors had grown on appellee’s forehead for a long number of years (the first commencing when she was a child); that they had been viewed by a physician some years before that, the physician finding no cause for alarm, and appellee had never suffered one moment of pain from these growths.

What is meant by the expression that a “condition should be deemed to have had its inception either at the time it became active, or when sufficient evidence ■existed to allow a reasonably accurate dis gnosis 1 (Emphasis supplied) * * *” A reasonably accurate diagnosis by whom? A specialist? A general practitioner? As stated, Mrs. Crumby had, some years before, mentioned the matter to her doctor, and in her application for the policies, she had given the name and address of the family physician. It will be, of course, noted that Dr. Nobles? connected with a very fine medical clinic, was only expressing his opinion. Would the fact that Dr. Nobles was able to diagnose appellee’s condition mean that any general practitioner could have made the same diagnosis, particularly when no discomfort had been caused by the tumors? We do not think that Dr. Nobles’ testimony was conclusive proof that her condition could, or would, have been diagnosed as cancerous by any other physician.

Here, there is no question of fraudulent or misleading statements. Furthermore, Mrs. Crumby gave the name and address of her physician, and her permission for him to disclose any knowledge or information that he might have relative to her condition. Likewise, she was 72 years of age, an age that might have caused some companies to, at least, check on the state of her health. It might be also mentioned that appellee paid a substantial premium for protection under these policies, approximately $181.00 per year.

Under appellant’s contention, an applicant for insurance, in order to feel safely covered by his policy, would have to take a physical examination before applying for insurance — and, of course, even then, some condition might not be properly diagnosed by the examining physician, though some other physician might subsequently state that that condition could have, and should have, been correctly diagnosed at that time.

We are of the view that Mrs. Crumby’s testimony that she had never had any pain, nor experienced any difficulty with these growths, nor been advised that the growths should receive attention, constituted substantial evidence to make a jury question of when sufficient symptoms were present to permit a reasonably accurate diagnosis that the tumors were malignant. The trial court, sitting as a jury, determined that question.

Affirmed.

Fogleman, J., concurs.

John A. Fogleman, Justice,

concurring. While it 'may not have been necessary in reaching the conclusion set out in the principal opinion, I feel that it is appropriate to add that the proper meaning of the word sickness in the exclusionary clause of the policy in question here requires some manifestation of a diseased condition which would make one aware of his condition, not just that the condition has originated. There are many definitions of the word sickness in cases involving these exclusionary clauses requiring* some confinement of the patient or restriction or limitation of his normal work occupation, avocation or activities, or of the normal functions of his body or organs.

A dormant condition (fistula) which existed from birth of an insured until about six months, after a policy was issued has been held not to be a sickness which was excluded as a pre-existing one. Horace Mann Mutual Ins. Co. v. Burrow, 213 Tenn. 262, 373 S. W. 2d 469 (1963).

A hernia discovered before his policy lapsed ."but which did not cause an insured any pain or inconvenience or prevent him from carrying on his noffiial activities until after a lapse and reinstatement of the policy but for which he underwent surgery on the, advice of his family doctor, was held not to be excluded because it pre-existed the reinstatement. Old National Insurance Co. v. Johnson, 312 S. W. 2d 715 (Tex. Civ. App. 1958).

The presence of malignant cells in an insured’s colon for many months before an application for insurance was held not to exclude him from coverage when surgery, because of abdominal cancer, was required within two weeks after the expiration of the exclusionary period. Fuller v. Aetna Life Ins. Co., 259 F. 2d 402 (5th Cir. 1958).

Many other cases could be cited along these lines. These holdings are not in conflict with the Arkansas cases. While it was said in State National Life Ins. Co. v. Stamper, 228 Ark. 1128, 312 S. W. 2d 441, that there was an annotation in 53 A. L. R. 2d 687 and that the weight of authority was that the sickness should be deemed to have had its inception at the time it first manifested itself or became active, or when sufficient symptoms existed to allow a reasonably accurate diagnosis of the case, so that recovery can be had, even though the disease, germ, or infection was present in the body prior to the excluded time, if the condition was latent, inactive, and perhaps not discovered, our decisions have turned on the active manifestation of the condition and not on the ability to diagnose.

The Stamper case was one which involved a bony growth from childhood of the insured and the decision was based upon the fact that she did not have any condition causing her disability which manifested itself prior to its causing her pain, well after the expiration of the exclusionary period. In American Ins. Co. of Texas v. Neal, 234 Ark. 784, 354 S. W. 2d 741, the court found that there was a jury question when the condition causing insured’s surgery and hospitalization had not given her any trouble until after the exclusionary period. In United Insurance Co. v. Wall, 233 Ark. 554, 345 S. W. 2d 927, the emphasis was upon the fact that even though the insured had some symptoms of arteriosclerosis before the policy was issued, there was no indication that the disease would advance to a state causing total disability. The cancer of appellee was at least as latent as the condition of the insured in Home Life Insurance Co. v. Allison, 179 Ark. 65, 14 S. W. 2d 229, where this court ¡held that such a latent condition would not cause a subsequent disability therefrom to be excluded.

We have not applied the “diagnosis” test heretofore and I find scant support for it in the annotation from which it was quoted. It seems that most, if not all, of these cases required that there be a diseased condition known to be such by the insured. Stipulations in insurance policies exempting insurer from liabilty under certain conditions are always construed strictly against the insurer, since such policies are issued on printed forms prepared by experts at insurer’s instance and insured has no voice in their preparation. Benham v. American Central Life Ins. Co., 140 Ark. 612, 217 S. W. 462. Exceptions and limitations are strictly construed against the insurer. Washington Fire & Marine Ins. Co. v. Ryburn, 228 Ark. 930, 311 S. W. 2d 302.

I think it is definite that before a sickness can be said to be excluded, there must at least have been sufficient manifestation of it to make the insured seek a diagnosis and that it be of such a nature that a reasonably accurate diagnosis could have been made with reasonable medical certainty. That was not the condition in this case.

       The record discloses that the growths are referred to hoth in the singular and plural. Apparently, there were several, one being somewhat larger than the others.

      These were not at once apparent to a mere glance from other persons, since Mrs. Crumby, as a matter of appearance, had followed the practice of combing her hair over the tumors.


author: George Eose Smith, Justice.

text:
    Arkansas Valley Industries, Inc., et al v. Della Giles et al
    5-4082
    411 S. W. 2d 288
    Opinion delivered February 13, 1967

      Mobley & Bulloch, for appellant.

      White & Young, for appellee.
   George Eose Smith, Justice.

The appellees, Della Giles and her husband, brought this action for personal injuries and property damage suffered in a collision in Eussellville between the Giles car and an AVI truck. The jury awarded the plaintiffs $10,100. The appellants complain of error in three of the trial court’s rulings.

Mrs. Giles was driving north on Denver Street. The AVI truck was traveling west in the outer righthand lane of Main Street, a fonr-lane thoroughfare. The disputed issue of fact was the point of impact. Mrs. Giles testified that she crossed Main Street and had left its intersection with Denver when the AVI driver turned to his right and struck her car. The truckdriver testified that his vision had been obstructed by a third car to his left. He said that when that car went on past him Mrs. Giles appeared in front of him so suddenly that he was unable to avoid hitting her car while it was still crossing the righthand lane of Main Street.

Two of the appellants’ arguments relate to a police report about the accident. Officer McCarley investigated the collision and took notes that were not available at the trial. From those notes another officer completed a form of report that had spaces for certain information on one side and a blank diagram for a sketch of the accident on the other side.

Officer McCarley was called as a witness by the defendants. In the course of his testimony the court at first held the report to be admissible, but the next morning, in chambers, the court changed its mind and decided to exclude the exhibit (which apparently had not been seen by the jury). Later on, in the courtroom, counsel for the plaintiffs asked the court to instruct the jury that the plat had been withdrawn from their consideration. There followed this ruling and objection:

‘ ‘ The Court: It has been — after I examined it this morning. It has certain information that he [Mc-Carley] couldn’t possibly testify to, and for that reason I held it in confidence [incompetent]. “Mr. Mobley: Let the record show that the defendants object and except to the ruling of the Court and to the comments of the Court.”

We do not agree with the appellants’ insistence that the court’s ruling involved a prejudicial comment on the weight of the evidence. Apparently the court was referring to the report as a whole. Yet only a photostatic copy of the diagram is in the record; so we cannot tell whether the court’s remark was justified by the other side of the report. Moreover, a mere objection to the court’s comment was not sufficient. Counsel should have asked the court to instruct the jury to disregard the remark. See St. Louis, I. M. & S. Ry. v. Coke, 118 Ark. 49, 175 S. W. 1177 (1915); Southern Cotton Oil Co. v. Campbell, 106 Ark. 379, 153 S. W. 256 (1913); Jones v. Bank of Horatio, 102 Ark. 302, 143 S. W. 1060 (1912). We have no doubt that such a request, had it been made, would have been granted.

Next, the appellants insist that the court was in error in holding the diagram, apart from the rest of the report, to be inadmissible. We find no abuse of the court’s discretion, because no witness testified that the exhibit accurately portrayed what it purported to show. The defense, in offering the plat, relied upon a statement made by Mrs. Giles, in her discovery deposition, that a diagram which was handed to her depicted the position of the vehicles after they collided. At the trial, however, Mrs. Giles was unable to say that the diagram then shown to her was the same one that she had seen on the other occasion. We find no positive statement in the record sufficiently establishing the accuracy of the exhibit. Hence we cannot say that the court erred in withdrawing the diagram from the jury’s consideration.

Lastly, the appellants contend that John Booher was a surprise witness who should not have been permitted to testify. At the taking of the discovery depositions the opposing lawyers exchanged the names of their witnesses and orally agreed to disclose to each other the names of any additional witnesses that might be found. A day or two before the trial Mr. White, the plaintiffs’ attorney, learned through his clients that Booher had seen the position of the cars after the collision. White’s partner was being taken to the hospital, and in the confusion White forgot to report the name of the new witness to his adversary. He did mention the matter during the trial, however, and defense counsel interviewed the witness before he took the stand. The court allowed Booher to testify.

We see no prejudicial error. The trial court unquestionably has a wide discretion in a situation of this kind. There is no reason to doubt White’s explanation of the oversight. Opposing counsel did interview the witness before he took the stand. Apparently counsel were not surprised, for they made no request for a continuance. Taking the circumstances as a whole, we are unwilling to say that the court should have ruled inflexibly that the plaintiffs had forfeited their right to use Booher’s testimony.

Affirmed.


author: Paul Ward, Justice.

text:
    Metropolitan Life Insurance Company v. Paul K. Roberts
    5-4052
    411 S. W. 2d 299

      Coleman, Gantt, Ramsay & Cox, for appellant.

      Frank W. Wynne, for appellee.
   Paul Ward, Justice.

A complaint was filed by Attorney Paul K. Eoberts (appellee, represented by another attorney) to collect a fee from the Metropolitan Life Insurance Company (appellant) based on legal services rendered in an attempt to collect on an insurance policy written by appellant in which his client was the beneficiary.

A jury trial resulted in a judgment in favor of appellee for $1,000, and this appeal follows.

Facts. The basic background facts, about which there is no dispute, are as follows. On November 1, 1950 appellant issued its policy to George 0. Henley undertaking to pay, at his death, the sum of $5,000 to liis wife, Mrs. Lela M. Henley. Mr. Henley died January 5, 1964 and when payment was not promptly paid Mrs. Henley on July 22, 1964, employed appellee to effect settlement, agreeing to pay a fee. Appellee promptly gave appellant notice of his employment and forthwith began writing letters and gathering information, with appellant’s knowledge and consent, in an effort to effect payment. These activities by appellee continued until March 4, 1965 when he was notified by Mrs. Henley that his employment was terminated. This information was also made known to appellant.

On May 12, 1965 appellant wrote appellee it would pay Mrs. Henley the $5,000 when she executed certain forms and returned them, which she did. On June 3,1965 appellee wrote appellant that he had ‘ ‘ expended a great amount of labor and time in the prosecution of Mrs. Henley’s claim”, and that he was impressing a lien, under Ark. Stat. Ann. § 25-301 (Eepl. 1962) on the proceeds of the policy. Eeplying to this letter on June 10,-•196'5 appellant wrote appellee stating, in substance, that Ms claim had no merit, and that it would pay the $5,000 to Mrs. Henley “unless within ten days from the date of this letter you are able to restrain the company from doing so by legal process”. The money was paid to Mrs. Henley and appellee filed this action on July 7, 1965, asking for a reasonable attorney’s fee on a quantum meruit basis.

On appeal appellant urges only two points for a reversal.

One. It is that “appellee was not entitled to an at7 torney’s lien because he failed to comply with requirements for notice in the statute”.

The statute mentioned above is Ark. Stat. Ann. § 25-301 (Repl. 1962). This statute is a lengthy one and it would serve no useful purpose to quote it in full, espe7 cially so due to the point here raised. Suffice to point out th.e following language:

“From and after service upon the adverse party a written notice signed by the client and by the attorney ... to be served by registered mail . . . .” (Emphasis ours.)

Referring to the above language it is appellant’s sole contention that the notice given by appellee in his letter written on June 3, 1965 (mentioned previously) was not signed by the client, Mrs. Henley. It is true that Mrs. Henley did not sign the notice, but we cannot agree that this omission is fatal.

As we interpret the intent and purpose of the statute it was enacted to make sure (in this case) that appellee represented Mrs. Henley and that appellant would be aware of appellee’s intention to claim a lien, for his fee, on the proceeds of the litigation before they were paid to the client (Mrs. Henley). We hold that the notice here given by appellee was a substantial compliance with the above provision of the statute, under the undisputed facts as previously set out. Here appellant was fully, aware of appellee’s claim before paying the money to Mrs. Henley. This view is supported by language found in the emergency clause of Act No. 306 of 1941 (said; act being 25-301), where it explains the reason for avoiding the “necessity of filing suit under existing laws in order to establish the lien of attorneys. . .” This Court has held that a statute of this kind should be liberally construed: St. Louis, Iron Mountain & Southern Railway Company v. Hays and Ward, 128 Ark. 471 (p. 478), 195 S. W. 28; Slayton v. Russ, 205 Ark. 474 (p. 476), 169 S. W. 2d 571, and Whetstone v. Daniel, 217 Ark. 899 (p. 901), 233 S. W. 2d 625.

Having concluded that the notice here given by appellee was a substantial compliance with the statute, it follows that appellee is entitled to a “ reasonable fee for his services ’ ’, as was held in Whetstone v. Travis, et al, 223 Ark. 856 (p. 858), 269 S. W. 2d 320.

Two. We find no reversible error based on this point, which is that the statute does not cover an unmatured contract right. The thrust of appellant’s argument appears to be that no liability or cause of action attached against it until proof was furnished that Mr. Henley was continuously disabled from 1961 to the time of his death (as provided by the terms of the policy), pointing out such proof was not furnished here before appellee gave notice of his claim. It is then pointed out that section 25-301 provides for an attorney’s lien upon his clients cause of action.

We cannot agree with the above contention. In the case of Metropolitan Life Insurance Company v. McNeil, 192 Ark. 978 (p. 984), 96 S. W. 2d 476, where this same question was under consideration, we said:

“The rule is that liability attaches upon the happening of total and permanent disability, although not recoverable until due proof of disability was made”.

In this case there can he no question about “due proof” being made, because the full claim was paid by appellant.

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

Affirmed.


text:
    Ark. Highway Comm. v. Wesley L. Warnock, et ux
    5-4107
    411 S. W. 2d 283
    Opinion delivered February 13, 1967

      George 0. Green and Don Lcmgston, for appellant.

      Robinson & Rogers and N. D. Edwards., for appellee.
   Paul Ward, Justice.

This is an eminent domain proceeding brought by the Arkansas' State Highway Commission (appellant) to condemn (for highway purposes) approximately 15% acres across 140 acres of land owned by Wesley Warnock and wife (appellees).

Appellant deposited in the trial court $8,000 as estimated compensation for the taking, but the jury awarded compensation in the amount of $30,000.

On appeal to this Court appellant relies on only one ground for reversal: There is “no substantial evidence” to support the verdict.

It is correctly stated by appellant that the question of whether or not there is substantial evidence to support a verdict is not a question of fact but one of law.' It was so held in Arkansas State Highway Commission v. Byars, 221 Ark. 845, 256 S. W. 2d 738.

Mr. Warnock testified, in substance:

I am a licensed real estate broker and have been active as such since 1959; I have owned ten or twelve pieces of property in this county during the past three years; I purchased the subject property in June 1964 for $32,500 for the purpose, of raising cattle; I felt like it ,was a bargain — that it was worth between $45,000 and $50,000; I have improved the land since buying by clearing and sodding about forty acres and putting it in lespedeza and clover, and have also built a stock pond; most of the" land (about ninety five acres) is north of the new highway and is now isolated from it; since I bought the land there has been installed a six inch water line to it from Alma which is located three miles away and which has increased the value of adjacent land. In arriving at the value of his property appellant took into consideration other sales in that vicinity. It is my opinion that this property was worth $58,-000 at the time of taking.

Bobby Geliy (a witness for appellees) has been a licensed real estate broker since 1957 with an office in Van Burén, and sells between sixty and seventy five parcels of property each year; He is acquainted with the subject property and thinks it was worth $54,000 on June 30, 1965 (the time suit was filed). He explained how he arrives at the value by comparing it with sales of other property, and by the fact that property in general, in that vicinity, has increased in value during the past year. Mack Bolding, a witness for appellee's, testified, in substance: He has lived at Alma fifty seven years, and is in the cattle business; he has been a licensed real estate broker since 1962; he has known subject property all his life; in his opinion the property was worth $52,000 at the time of the talcing. He based this opinion on other sales. He also stated that about 98 acres nort,h of the highway was not accessible except through a culvert which is not suitable for cattle to pass through. E. K,. Bagge, who handles real estate transactions and claims to be a qualified real estate appraiser, valued the land at $58,000 before the taking, based on what other property had sold for in that vicinity. In his opinion part of the land could possibly be subdivided for residential purposes in the near future due to the water line. J. W. Polk, also a licensed real estate broker, who has made about forty sales per year, was of the opinion that appellee’s property was worth $52,000 before the taking.

In opposition to the above testimony, appellant placed in evidence the testimony of two professional real' estate appraisers who are employees of the Highway Commission (Walker and Hays). Walker thought the land was worth $33,000 before the taking and Hays thought the value was $35,000 before the taking. Each witness also based his opinion on the sale of other property in the vicinity. However one witness thought the highest and best use of the property was for residential purposes — especially “the front part”.

In the light of the record as reflected above, we are unwilling to say there is no substantial evidence to support the verdict of the jury.

As previously pointed out appellant frankly admits, in effect, that there is substantial evidence to show appellees’ property was worth only $20,700 after the taking. It must follow, therefore, that this case must be affirmed if there is substantial evidence for the jury to find the property was worth as much as $50,700 before the taking.

We are unwilling to say, as a matter of law, there is no such evidence in this case. Two witnesses placed the value at $52,000, one witness at $54,000, and two at $58,000.

It is true, as pointed out by appellant, that the jury must consider the price paid by appellant for the land. See: Meyers v. Ark. State Highway Comm., 238 Ark. 734, 384 S. W. 2d 258, and Ark. State Highway Comm. v. Snowden, 233 Ark. 565, 345 S. W. 2d 917. We cannot, however, say they failed to do so in this case.

We are aware of the fact that we have held opinion testimony as to the value of land “must be considered, in connection with related facts upon which the opinion is based”. Arkansas State Highway Commission v. Byars, 221 Ark. 845, 256 S. W. 2d 738. To the same effect see Ark. Highway Comm. v. Ptak, 236 Ark. 105, 364 S. W. 2d 794.

There are, we think, sufficient “related facts” present here to give substantiality to the opinion testimony of appellees’ witnesses, as is above set out. It is true that appellees’ testimony is contradicted by appellant’s testimony, but that presents a question for the jury. In the Byars case we restated the well settled rule that “evidence must be viewed in the light most favorable to appellee”.

Affirmed.


text:
    O. K. Processors, Inc. v. Charles Dye
    5-4120
    411 S. W. 2d 290
    Opinion delivered February 13,1967

      Harper, Harper, Young & Durden, for appellant.

      D. L. Oraoe, for appellee.
   Paul Ward, Justice.

We are here called on to construe certain provisions of Ark. Stat. Ann. § 81-1313 (Bepl. 1960) (a part" of’the Workmen’s Compensation Act) relative to multiple permanent partial disabilities to :the body'as a whole.

■'•Undisputed Facts. On February 8, 1964 Charles Dye (appellee)-, an employee of O.K. Processors, Inc. (appellant), received an injury to an area of his lower back. Previously, he had received somewhat similar injuries, on two occasions, while working • for. another employer in Oklahoma. For the first injury he was adjudged to have received a 5% permanent partial disability to the body as a whole, and for the second injury lie was similarly adjudged to have received a 20% disability. He has received full payment for these injuries.

For the injury on February 8, 1964 the Referee found that appellee had suffered a maximum disability of 15% to the body as a whole. However, he also found that appellee was not entitled to any compensation because his injury of 15% did not exceed the two previous injuries totaling 25%.

The Commission reversed the Referee and awarded appellee compensation on the basis of 10% disability to the body as a whole, holding (in essence) that the 20% injury was to a different part of his body but that the 5% injury was not. Accordingly the Commission held that the 5% injury should be deducted from the last injury of 15%. On appeal to the circuit court the Commission was affirmed.

For reasons hereafter set out we have concluded the circuit court must be affirmed.

The statute referred to previously (Section 81-1313) deals with “The money allowance payable to an injured employee for disability . . . .” Subsection .(e) of the statute deals with “scheduled permanent injuries”. It is agreed that the three injuries involved here are? not classified as scheduled injuries. Subsection (d) deals with “other cases” where there is a permanent partial disability (as were these three) and says such “shall be apportioned to the body as a whole. ...” Subsection (f) deals with a “permanent disability arising from a subsequent accident”, as is the case here. Subparagraph (2) [under (b) above] applies where a subsequent injury occurs under a different employer — as is the case here. Finally, under “ii” of subparagraph (2) it is provided that “the injured employee shall be paid compensation. ...”

(In the case here there is no dispute over the amount of compensation, if any is due).

It is our opinion that appellee, is covered by the provision “ii” above.

However, appellant raises another issue that must be resolved. In essence, appellant here insists that appellee is not entitled to compensation because the injury on February 8, 1967 was to the same portion of the body as was the previous 20% injuries in Oklahoma. Ve do not agree that this is true. We think it was a fact question for the Commission to decide.

The Commission found that the 20% permanent partial disability was to “the cervical spine which involved the neck and head”. This finding is not questioned. The Commission further found that “the present disability is distinct and separate from the previous disability due to the specific locations of the injured areas. ...” This finding is supported by Dr. Martin who testified that appellee’s leg went through a hole in the wall; that he fell on his elbow; that he was injured in the area of the pelvis, and; that his leg was injured.

It is well settled by numerous decisions of this Court that we will sustain the Commission’s finding of a fact question if it is supported by substantial evidence. We find there is such evidence in this instance.

It appears that the conclusion above reached is in accord with Larson’s interpretation of this portion of the statute. In volume 2 of his treatise on Workmen’s Compensation Law, § 59.42, he says:

“The capacities of the human being cannot be arbitrarily and finally divided and written off by percentages. The fact that a man has once received compensation as for 50% of total disability does not mean that ever after he is in the eyes of compensation law but half a man, so that he can never again receive a compensation award going beyond the other 50% of total.”

Affirmed.


author: Lyle Brown, Justice.

text:
    Planters Lumber Co., Inc. v. The Wilson Co. Inc.
    5-4108
    413 S. W. 2d 55
    Opinion delivered February 13,1967
    (Supplemental opinion on denial of rehearing delivered April 10, 1967, p. 1100.)

      H. B. Stubblefield, for appellant.

      Owens, McHaney & McHaney and Robinson, Thornton, McCloy & Youmg, for appellee.
   Lyle Brown, Justice.

This appeal questions the correctness of the decree of the chancellor, declaring the mortgage lien of appellee, The Wilson Company, Inc., superior to the materialman’s lien of appellant, Planters Lumber Company, Inc. Wilson advanced certain monies to Boy Stillman under a construction mortgage. Upon default by Stillman, Wilson brought foreclosure proceedings and made Planters a party, the latter having filed a lien for materials supplied in the construction of a house on each of the two lots mortgaged. The bill for materials and its timely filing are not in dispute. Both parties were awarded judgment against Stillman; he does not appeal.

Separate foreclosure suits were filed, one involving* Lot 2, Darby’s Subdivision, Pulaski County, and the other involving Lot 4 in the same subdivision. The cases Were consolidated for trial. The causes are so similar that they need be considered separately only briefly.

Lot- 2: Wilson Company conveyed to Stillman by warranty deed dated October 9, 1964, reciting* $100.00 and other consideration paid. A week later Stillman executed a construction mortgage to Wilson Company, which was promptly recorded. Wilson pledged $15,000.00 for construction money. However, Wilson withheld $3,-200.00, the purchase price of the lot, and delivered $11,-800.00 to the disbursing agent. Also, during the course of construction, Wilson directed the disbursing agent to return $465.81 to Wilson for accrued interest owed by ' Stillman on' the note.

Lot 4: Wilson Company conveyed to Stillman by warranty deed dated January 6, 1965, reciting $100.00 and other consideration paid. Stillman executed a construction mortgage, dated December 14, 1964, to Wilson Company, which was immediately recorded. Wilson pledged $14,400.00 for construction money, but delivered to the disbursing agent only $11,200.00, having withheld $3,200.00 for the purchase price of the lot. Also, during the course of construction, Wilson directed the disbursing agent to return $394.28 to Wilson for accrued interest owed by Stillman on the note.

As, .to both lots, Arkansas Abstract Company, the disbursing agent designated by Wilson, paid out the balance of the construction monies for construction pur.poge.s,. except for some minor expenses incident to the venture; these expenditures are not questioned. All bills for-labor and materials were paid except those forming the;r,basis of Planters’ claim.

■Both,.parties to this appeal base their claims to priority on Ark. Stat. Ann. § 51-605 (1947). This section, in conjunction with Ark. Stat. Ann. § 51-601, gives to a materialman a lien upon the improvement for which the materials are furnished. The lien is in preference to any prior lien existing upon said land or building, unless the prior lien was given for the purpose of raising money with which to make the improvement, in which event the lien is prior to the lien given by these two sections.

We hold that, as to Lot 2, Wilson Company has a valid lien for construction money advanced, in the sum of $11,334.19, calculated by taking the sum of $11,800.00, which was turned over to the disbursing agent, and subtracting therefrom the sum of $465.81, which Wilson directed the disbursing agent to return to Wilson for interest on the loan. We further hold that Planters Company is entitled to a second lien on Lot' 2 in the principal sum of $2,834.57, the full amount of its materials''bill.

We hold that, as to Lot 4, Wilson Company has a valid lien for construction money advanced in the sum of $10,805.72, calculated by taking the sum of $11,200.00, which Wilson turned over to the disbursing agent,'and subtracting therefrom the sum of $394.28, which Wilson directed the disbursing agent to return to it as interest on the loan. We further hold that Planters is entitled to a second lien on Lot 4 in' the principal sum of $2,181.95, the full amount of its materials bill.

The ' essence of our modification of the decree of the chancellor is to deny to Wilson Company a lien prior to that of the materialman, first, for money advanced to purchase the lot, and, second, for money owed to it by Stillman for interest on the loan.

The Purchase Price of the Lots. Wilson delivered to Stillman a warranty deed which recited a paid Consideration and mentioned no encumbrance. Secondly, Wilson caused to be executed and placed of record identical mortgages on the two lots, except £or: the amounts pledged for construction. We' shall, úse.! the mortgage on' Lot 4 to recite certain pertinent provisions:

“TO HAVE AND TO HOLD The same, with all and singular the tenements, hereditaments and appurtenances thereunto belonging, unto the said Grantee, and to its successors and assigns forever. “And the said Grantor does hereby covenant and agree that Grantor is the lawful owner of the premises above granted, and seized of a good and indefeasible estate of inheritance therein, free and clear of all incumbrances, and that Grantor will warrant and defend the same in the quiet and peaceable possession of said Grantee, its successors and assigns forever, against the lawful claims of all persons whomsoever.
“PROVIDED ALWAYS, That this instrument is made, executed and delivered upon the following conditions, to-wit:
“FIRST: Grantor has applied to the Grantee for a loan in the principal sum of Fourteen Thousand Pour Hundred and No/100 Dollars ($14,400.00) to be used solely for and in construction of a one-family residence on the lands above described, and the Grantee has agreed to make said loan for such purposes, and the Grantor is justly indebted to the Grantee for advances made or to be made hereafter by Grantee to Grantor from time to time for such purposes, aggregating the principal sum aforesaid, each such advance to be evidenced by a negotiable promissory note of Grantor, payable to the order of Grantee, of even date with the date such advance is- made and in the principal sum thereof, and each such note to bear interest from date until maturity at Six % per annum and from maturity until paid at 10% per annum, said notes to be due and payable as follows: On or before June 14, 1965. Grantee agrees that the acceptance and recordation of this mortgage binds Grantee, its successors and assigns, absolutely and unconditionally, to make said loan and advances. Such advances will be made as requested by Grantor as such work progTesses.”

Sucli recitations in these two instruments, the deed and the mortgage, constitute notice to the world that Stillman owns Lot 4 free and clear of any encumbrances. Further, Wilson warrants, not only to Stillman, but to possible laborers, materialmen, and other creditors who may be asked to participate in construction, that Wilson is bound absolutely and unconditionally to make the advances as the work progresses.

With this information gleaned from the record, an alert materialman might desire to make another financial check as the work progresses; namely, to check with the disbursing agent to get the total expended for construction. Had Planters so inquired, it would have found the running account to have shown ample funds unexpended. The disbursing agent had no record of a lot payment; although it may have been aware that Wilson customarily withheld such payments, the disbursing agent would have no cause to know the amount. At least, it is not so reflected in the record.

In phrasing the terms of the construction mortgage, Wilson was seeking to establish a priority for its expenditures. See the proviso in Ark. Stat. Ann. § 51-605, and Shaw v. Rackensack Apt. Corp., I74 Ark. 492, 295 S. W. 966 (1927).

Equity dictates that one who seeks a priority of this nature should live up to the clear prerequisite of the requirement that the privileged funds be raised to make such erections and improvements or to build such buildings.

Wilson Company relies strongly on Ashdown Hdwe. Co. v. Hughes, 223 Ark. 541, 267 S. W. 2d 294 (1954). In this case, J. C. Stewart owned six acres on which there was a residence. It was subject to an outstanding mortgage of $4,500.00. No laborer or materialman could pierce the priority of this mortgage. Hughes loaned Stewart the money with which to satisfy this mortgage and took a mortgage from Stewart covering this loan. In addition, Hughes committed himself to advance $,5-500.00 with which to build four cabins. Hughes, in clearing the land and residence of the mortgage for $4,500.00, succeeded to the same enviable position as the original mortgagee to whom Stewart had mortgaged the premises, that is, Hughes held a lien which no laborer or materialman could pierce. As stated in the concurring opinion by Justice McPaddin, Hughes’ mortgage for the $4,500.00 that he advanced was superior to any material-man’s claim for materials which might be furnished after the date of the mortgage. The majority opinion in that case concedes that this advancement was- not used for construction purposes but reasons that it enhanced the owner’s property, leaving the impression that this fact justified giving Hughes priority. We think the principle of subrogation, mentioned by Justice Me-' Paddin, would have more appropriately described the basis for Hughes’ priority.

Wilson Company’s position is entirely -different from that of Hughes. Wilson caused a deed to Stillman to be recorded, which reflected full consideration having been paid. Then Wilson obtained a mortgage wherein the advancement of stated construction funds was guaranteed. Wilson “padded” the mortgage with the price of the lot and retained the money. In the Ashdown case, Hughes actually advanced the money to clear the Steward lot and recited in his (Hughes’) mortgage that Stewart was indebted to Hughes’ “separate estate” in that amount.

Wilson Company would defend its use of a part of the funds for payment of the lots and for interest, on the theory that a construction money mortgage has been held to be superior, notwithstanding the use of the money for other purposes. Wilson cites two cases on this point, namely, Shaw v. Rackensack Apt. Corp., 174 Ark. 492, 295 S. W. 966; and Sebastian B. & L. Assn. v. Minten, 181 Ark. 700, 27 S. W. 2d 1011 (1930). We are not unmindful of the fact that it is the “purpose” and not the “use” of the funds that is controlling. It’ is also recognized .that the purpose, as stated in the mortgage, is paramount. But where it is not disputed, as here, that the lender withheld from the amount of construction funds stated in the mortgages, the cost of the two lots, and withdrew from advancements to the disbursing agent the interest monies, the lender cannot be held to claim priority in these amounts. The “purpose” doctrine cannot he used to prohibit a showing that the amount stated in the mortgage was never advanced.

On appeal, and for the first time, Planters makes the contention that Wilson Company is liable to it for the amounts withheld, plus the money returned to Wilson for interest. Planters cites Lyman Lamb Co. v. Union Bank of Benton, 237 Ark. 629, 374 S. W. 2d 820.

In its answer and cross complaint, Planters did not seek personal judgment against Wilson Company; Planters pleaded its lien and prayed that Wilson Company’s lien he declared inferior to Planters’; it prayed for personal judgment against Stillman, and asked for a sale of Stillman’s property if the judgment be not paid within the time fixed by the court.

Planters contends that this court should treat the pleadings as amended to conform to the proof, and cites Railway Co. v. Triplett, 54 Ark. 289, 15 S. W. 831, 16 S. W. 266; Kansas City Southern Ry. v. Rogers, 146 Ark. 232, 225 S. W. 640; and Thomas v. Spires, 180 Ark. 671, 22 S. W. 2d 553. These holdings justify the trial court in treating pleadings as amended, when the defects supplied by the proof are germane to the issues actually pleaded. But here, Planters’ proposed amendment, which it seeks from this court, would border on stating a new eause of action.

In the early stages of the trial, Wilson’s first witness revealed that Wilson had withheld the purchase price of the lots from the funds pledged in the mortgage for construction. Notwithstanding this development, Planters at no time asked the trial court to treat the pleadings as amended so Planters conld pursue Wilson for these funds withheld. So naturally the trial court had no opportunity to rule on this point.

Again, just before all testimony was concluded, counsel for Wilson stated that the only question in controversy was the question of priority of the lien of his mortgagee client, as compared to the materialman’s lien of Planters. Equity would dictate that at this point Planters should have appraised court and counsel of a claim for judgment against Wilson for the money Wilson diverted from the construction funds.

Under these circumstances, we hold that Planters’ contention for judgment in personam against Wilson — ■ being raised for the first time in this court- — -must be denied.

The cause is remanded, with directions that the décree of foreclosure be modified in such respects as are necessary to harmonize with the rulings herein, and in order that final proceedings of foreclosure and disbursement may be conducted.


author: John A. Fogleman, Justice. J. Fred Jones, Justice,

text:
    Ark. State Highway Comm. v. J. R. Owen et ux
    5-4098
    411 S. W. 2d 304
    Opinion delivered February 13, 1967

      George 0. Green- and Phil Stratton, for appellant.

      Robert J. White and James K. Young, for appellee.
   John A. Fogleman, Justice.

Appellant contends that the trial court committed error in granting a new trial to appellees, landowner defendants in an action brought by appellant in eminent domain for acquisition of right-of-way for Interstate Highway No. 40.

The case was tried to a jury on June 17, 1966 on evidence of differences in value ranging from $4,250.00 to $24,150.00. The jury returned a verdict for appellees in the amount of $6,250.00. Appellees filed a motion for a new trial alleging that the verdict was inadequate and not supported by the preponderance of the evidence. An amendment to the motion for new trial states newly discovered evidence as cause therefor. Appellees contend that after the trial they learned that a large drainage structure, discharging drainage water from the north side of the proposed highway onto their residual tract of one and one-half acres south of the highway, was to be installed. They asserted diligent but unsuccessful effort in obtaining construction plans. They allege that a subpoena duces tecum was issued by the trial court over the resistance of appellant and that plans and specifications were brought into court, pursuant to the trial court’s order, two days before this trial, while the attorney for appellees was engaged in the trial of another case involving the same right-of-way across other lands. Appellees say that their attorney was unable to avail himself of the chance to inspect the plans offered by appellant, due to the trial previously set and that appellant removed the plans and specifications before the end of this trial, leaving appellees with no opportunity to learn of the proposed drainage structure. They also alleged that no work was done toward digging á ditch for the drainage tile until after the trial. They claim that the extent of the damage by reason of the location of this drainage tile, being* greater than appellees believed would result, was prejudicial.

Appellant’s response to the amendment to the motion for new trial states that the plans on file'and used as exhibits in the case clearly showed the location of the drainage structures; that the order of the court requiring appellant to produce construction plans was issued in another case to be tried on June 15th, while the trial in this case was held on June 17th; that the subpoena duces tecum only called for production of a contract between appellant and its contractor, whjch was produced in open court in the trial of another case on June 15th, along with construction plans, and that appellees’ attorney made use thereof during the previous trial; and that the right-of-way plans clearly showed the location of culverts with respect to appellees’ residual properties.

The trial judge, after a hearing on the motion and an inspection of the premises, granted a new trial, setting aside the jury verdict on the ground of newly discovered evidence. In so doing, we find that he committed reversible error.

In order for a party to be entitled to a hew trial because of newly discovered evidence, the statute re-quires that it be evidence that he could not, with reasonable diligence, have discovered and produced before the trial. Ark. Stat. Ann. § 27-1901 (Repl. 1962); Medlock v. Jones, 152 Ark. 57, 237 S. W. 438; Turner v. Richardson, 188 Ark. 470, 65 S. W. 2d 1071; Southern National Ins. Co. v. Heggie, 206 Ark. 196, 174 S. W. 2d 931.

Appellant’s complaint filed December 14, 1965, alleged that the plans were on file at the Arkansas State Highway Department at Little Rock. Appellees’ petition for subpoena duces tecum, filed on June 9, 1966, only sought to have produced the general specifications for the sources of -bars, pits and quarries, and copies of contracts in force between appellant and its contractors. Subpoena duces tecum was issued for these documents only, pursuant to order of the trial court.

Appellant’s Exhibit No. 1, showing right-of-way limits and outlining proposed roadways, control of access and location of existing improvements, clearly indicates what appears to be drainage structures near appellees ’ stock pond. Appellee J. R. Owen examined this exhibit, testified in relation to it, and its accuracy was approved by appellees’ attorney. While appellees’ amendment to their motion for new trial mentions a subpoena duces tecum for construction plans, a, search of the record reveals no subpoena or petition therefor in the record, other than those above described.

Appellees’ attorney stated during the hearing on the motion for new trial that when they called the Highway Department, they were told that if they wanted to see the construction plans they could come to Little Rock and see them. He also stated that appellant brought in the plans and specifications during the trial of a preceding case in which he was engaged and that he checked them on the tract then involved. Furthermore, -he said that the tile “was laying down there like they were going on the land. ’ ’ There- is nothing to indicate that appellees ever called for these plans at any other time or in any other way, nor is there any indication that .they were referred to in the trial in any way. The only excuse offered by appellees for not pursuing the matter further was appellant’s alleged continued contention that these plans and specifications were not material.

Appellees did not avail themselves of many discovery procedures provided by which they might have obtained these documents so important in a partial taking case. No discovery depositions by oral examination or written interrogatories [provided for by Ark. Stat. Ann. § 28-348 (Repl. 1962)] were taken. No interrogatories [§ 28-353] were attached to appellees’ answer, nor were any [§ 28-355] served on appellant. The only effort was their motion for subpoena duces tecum, which might better have been a motion for production of documents [§ 28-356]. Even then appellees did not follow up on the motion filed by calling for either the witness subpoenaed or the documents called for, and as pointed out hereinabove, this subpoena did not even call for the construction plans.

This court has consistently held from 1841 [See Robins v. Fowler, 2 Ark. 133] to the present date that one seeking a new trial must show that the evidence could not have been obtained with reasonable diligence on the former trial. In determining whether there has 'been such diligence, it is proper to consider that the trial was several months after the incident on which the litigation was based and that appellees had ample time to make a thorough investigation. Missouri Pacific Transportation Co. v. Simon, 200 Ark. 430, 140 S. W. 2d 129; Citrus Products Co. v. Tankersley, 185 Ark. 965, 50 S. W. 2d 582.

Failure to obtain the evidence by deposition was considered in Swift v. Lovegrove, 237 Ark. 43, 371 S. W. 2d 129. Failure to obtain evidence which could have been procured through discovery depositions, interrogatories, or further interrogatories propounded during- the trial of the case has been held to be an appropriate basis for denying a new trial. Nichols v. Freeman, 237 Ark. 536, 374 S. W. 2d 353.

That the matter sought to be shown by “newly discovered evidence” was a matter of public record has also been taken into consideration. Stockton v. Baker, 213 Ark. 918, 213 S. W. 2d 896. The fact that one seeking a new trial had some knowledge of the newly discovered evidence was considered sufficient for denial of of a new trial. Rutland v. P. H. Ruebel & Co., 202 Ark. 987, 154 S. W. 2d 578.

Failure of the moving party to seek a postponement or to take a deposition was held to justify the denial of a motion for new trial on newly discovered evidence. Arkansas Power & Light Co. v. Mart, 188 Ark. 202, 65 S. W. 2d 39.

Of course, we recognize that the granting or refusing of a motion for new trial on the ground of newly discovered evidence is within the sound judicial discretion of the trial court which will be interfered with only when it appears that this discretion has been abused. Arkansas Amusement Corp. v. Ward, 204 Ark. 130, 161 S. W. 2d 178. This discretion is not absolute, but is a sound judicial discretion which necessarily requires an appropriate factual basis for the exercise of that discretion.

In sustaining the lower court’s denial of a motion for new trial, this court, in Halbrook v. Halbrook, 232 Ark. 850, 341 S. W. 2d 29, said:

“We are not willing to say that the circuit court abused its broad discretion in the matter. Our pertinent cases are cited and discussed in a comment appearing at 4 Ark. L. Rev. 60. There the authors point out that a motion of this kind is not favored by the courts, owing to the manifest disadvantages in allowing the losing litigant a second trial after he has been afforded a fair opportunity to present his proof at the original hearing. Before granting sneh a motion the trial court should be convinced, among other things, that an injustice has been done, that the newly found evidence is not merely cumulative to that produced at the first trial, that the proof was not discoverable through the exercise of due diligence, and that the additional testimony will probably change the result.”

In view of all the circumstances in this case indicating the ability of appellees to have had the construction plans and specifications before the trial of this case, we find no evidence of diligence. We cannot see how appellees’ expert witnesses could have testified as to “before and after values” without having obtained information as to the construction proposed. Because of this and the disfavor in which the granting of such motions is held, we cannot help but conclude that the trial court’s action in granting a new trial was an abuse of discretion, •requiring that we reverse and reinstate tile original .judgment. ..... ¡

Jones, J., dissents.

J. Fred Jones, Justice,

dissenting. I do not agree with the majority view in this case. On June 23, 1966, appellees filed their motion for a new trial, alleging .that the verdict was grossly inadequate, that the verdict was against the preponderance of the evidence and that the verdict reflected that the jury did not understand {the testimony presented. On June 27, 1966, appellees filed an amendment to their motion for new trial, alleging what amounts to newly discovered evidence as additional grounds for a new trial.

It is obvious to me from the record before us, that this case was tried as the last in a series of three condemnation cases by tired counsel, with tired witnesses and before a tired judge. The broad discretion of a trial ■judge in granting new trials is not questioned. I feel that the trial court could have very logically granted a new trial on appellees’ original motion in this case without abuse of discretion, and it is my view that the trial court’s broad discretion was not narrowed to tbe point of abuse when it predicated its order for a new trial upon the amendment, rather than tbe original motion. I would affirm.


author: J. Fred Jones, Justice.

text:
    New York Fire & Marine Underwriters, Inc. v. G. B. Colvin, Jr., Judge
    5-4111
    411 S. W. 2d 657
    Opinion delivered February 13, 1967
    [Rehearing denied March 20, 1967.]

      Arnold & Hamilton, for appellant.

      Switzer & Griffin, for appellee.
   J. Fred Jones, Justice.

This case involves a peti'tion for a writ of prohibition directed to tbe Ashley County Circuit Court where a complaint was filed by an Asbley County resident against two insurance companies domiciled in another state. The suit was filed by Mrs. C. A. Hughes against New York Fire & Marine Underwriters, Inc., hereinafter called Underwriters, and Fireman’s Fund Insurance Company, hereinafter called Fireman’s Fund, and process was timely served on the Insuranee Commissioner as provided in Ark. Stat. Aim. § 66-2218 (Eepl. 1966).

Fireman’s Fund filed its answer but Underwriters appeared specially, and on a motion to quash, objected to the jurisdiction of the court on two grounds as follows :

“1. That this defendant has done no act to subject itself to the jurisdiction of this court under' the allegations of the complaint.
“2. That this court lacks jurisdiction both of this defendant and of the cause of action, if any, alleged in the complaint of the plaintiff.”

The motion to quash was overruled by the trial court and Underwriters has filed its petition here-for a writ of prohibition to prevent the Ashley County Circuit Court from assuming jurisdiction over the petitioner and the subject matter of the law suit.

It is admitted by stipulation that the insurance commissioner is the duly appointed agent of petitioner for service of process in Arkansas, and that the insurance commissioner was duly served with summons in this case.

Briefly stated, the facts are as follows:

The plaintiff, Mrs. C. A. Hughes, is a resident of Ashley County, Arkansas, and her daughter and son-in-law are residents of Louisiana. While riding as a passenger with the daughter and son-in-law in their automobile on a trip into Texas, Mrs. Hughes was injured in a collision between the automobile in which she was riding and one driven by a resident of Texas. Fireman’s Fund had issued an insurance policy to the son-in-law in Louisiana, insuring members of his family or anyone riding in his automobile, against damages such occupant would be entitled to recover against an uninsured motorist.

Mrs. Hughes filed suit against the petitioner in the Ashley County Circuit Court alleging damages in the amount of $8,000.00 for personal injuries sustained in the collision in Texas through the negligent acts of an uninsured Texas motorist and while she was riding in the automobile owned by her daughter and son-in-law, and being driven at the time by her son-in-law, Milbern Don Pennington. Mrs. Hughes then alleged in her complaint, that the petitioner, New York Fire & Marine Underwriters, Inc. had issued its family automobile liability policy to Milbern Don Pennington, Mrs. Hughes’ son-in-law, insuring “the named insured, any relative, or any other person while occupying the insured automobile with respects to damages she is entitled to recover because of bodily injury from the owner or operator of' ian uninsured automobile. ’ ’

Plaintiff then alleged that she had complied with all ,the conditions of the policy precedent to establishing liability of the defendant thereunder, that demand for payment had been made upon the defendant and that defendant had refused to even discuss payment.

The petitioner sets out one point on which it relies as follows:

“Lower court wholly lacks jurisdiction of subject matter and petitioner.”

The petitioner properly sets out in its brief, the office of the writ of prohibition. Petitioner then argues that it is-■doing no business in the State of Arkansas, maintains no office in this State, and that the policy sued on was written in the State of Louisiana with a Louisiana resident as the named insured. Petitioner contends that the plaintiff brought suit in Arkansas on an insurance contract written in Louisiana, when the cause of action actually arose in the State of Texas, and that the trial court is: without jurisdiction under § 11, article' 12 of the Arkansas constitution quoted by petitioner as follows:

“Foreign corporations may be authorized to do business in this State under such limitations and restrictions as may be prescribed by law; provided that no such corporation shall do any business in this state except while it maintains therein one or more known places of business and authorized agent or agents in the same, upon whom process may be served; and, as to contracts made or business done in this State, they shall be subjected to the same regulations, limitations, and liabilities as like corporations of this State.”

Petitioner cites several cases in support of its petition. but none of them involve an uninsured, motorist clause in an automobile liability policy where service is had on the insurance companies’ designated agent for ’service in Arkansas.

Whatever rights and benefits Mrs. Hughes may have under the terms of the policy are matters for determination by the trial court. In a transitory action such as this, Mrs. Hughes being a resident of Arkansas could sue the petitioner in this State, so we hold that the court had jurisdiction of the subject matter in this case. Equitable Life Assurance Society v. Mann, 189 Ark. 751, 75 S. W. 2d, 232.

Petitioner argues that even though it is authorised to do business in Arkansas, it is not actually doing business in Arkansas and therefore, the trial court has no jurisdiction of the petitioner.

In the early case of American Casualty Company v. Lea, 56 Ark. 539, 20 S. W. 416, this court said:

“The only question now here is, whether the circuit court obtained jurisdiction of the corporation by the service of the summons upon the auditor as its agent" If so, it can render a personal judgment against the corporation, if the pleadings and proof in the case warrant it. The service was in accordance with the statutes.”

Petitioner admits that the insurance commissioner was its duly designated agent for service in Arkansas, and we hold that when the petitioner became authorized to do business in Arkansas and designated the insurance commissioner its agent for service, it made itself subject to the jurisdiction of the Arkansas courts, and the Ashley County Circuit Court had jurisdiction of petitioner in this case.

The petition for a writ of prohibition is hereby denied.