text:
    Levine, Adm’r v. Newlander.
    5-2852
    362 S. W. 2d 698
    Opinion delivered December 17, 1962.

      Levine & Williams, for appellant.

      Brockman & Brockman, for appellee.
   Jim Johnson, Associate Justice.

The issues involved in this appeal are the construction of a clause in a deed and whether there was an effective gift.

On April 1, 1957, Mrs. Maggie J. Ksir executed a deed retaining a vendor’s lien to secure the $21,000 unpaid balance of the purchase money, evidenced by a promissory note bearing 4% interest payable in monthly installments of $130 each, commencing May 1, 1957, and continuing until the principal and interest were paid in full. The deed was duly recorded in Jefferson County. The grantees of the deed, John and Mary Ann Walker, were not related to the grantor or to the niece and nephew mentioned in the deed. In addition to the customary terms used in a deed and in addition to the retention of the vendor’s lien, the following language was set forth:

“At the time of the death of the Grantor, if any portion of the balance of the purchase money note and interest remains unpaid, the Grantees are hereby authorized to make such payments of the balance of said unpaid purchase money note and interest to Joe Ksir, 3010 East Ballard Street, Boswell, New Mexico, and Ethel New-lander, 422 Carlisle Avenue, Albuquerque, New Mexico.
“The Grantor herein transfers said balance and interest to said nephew and niece above named, and they to receive said balance and to acknowledge satisfaction of the full payment when made and release said lien herein retained upon the records of Jefferson County, Arkansas; and they, Joe Ksir and Ethel Newlander, to become the owners of said balance, share and share alike; and in case of default, may foreclose on said lands for any balance-due. ’ ’

Joe Ksir and Ethel Newlander, appellees here, were-the nephew and niece of the deceased husband of Mrs.. Maggie Ksir. They were not apprised of Mrs. Ksir’s action until after her death when they received a letter of' notification from the personal representative of her estate.. At Mrs. Ksir’s death, there was a balance due on the purchase money note of $17,000. The personal representative refused to give the note to appellees, holding it to be an asset of the estate. Appellees filed a petition in the probate court seeking to require delivery of the note in accordance with the terms of the deed, together Avith the money-collected by the administrator.

The administrator, appellant here, answered, contending that the alleged transfer or gift of the balance of' the debt accruing after Mrs. Ksir’s death was ineffectual and void, because (1) there Ayas no contractual relationship between the parties, nor were there present in the transaction any of the essential elements to constitute it an inter vivos gift; and (2) as a testamentary bequest, it was devoid of any of the formalities made prerequisite under our statutes relating to wills.

The Chancellor ruled that the alleged gift was an effective gift at the date of the deed, not a gift of a future interest contingent upon the death of Mrs. Ksir. He concluded his opinion by finding that: “It would be impossible to deliver in 1957 when a gift was made, the balance of the note due at the time of the death of the donor for there was no way of knowing when the donor’s demise would occur. The language contained in the deed to one who is a stranger both to donor and donees shows convincingly and clearly that Maggie J. Ksir intended to make a gift to a nephew and niece named therein. The effect of this language was to constitute the grantees in the deed as the trustees of the donees for the purpose of making the gift effective.”

For reversal, appellant relies upon two points: (1) the provisions in the deed did not constitute a valid inter vivos gift to appellees; and (2) the attempted gift was merely a void testamentary gesture lacking the formalities of a will.

The fact situation here is strikingly similar to Coley v. English, 235 Ark. 215, 357 S. W. 2d 529, decided a few weeks after the decree in the instant case. In the Coley case, Mrs. Ann H. T. Coley contracted to sell some real property in 1957. In the contract was the following provision :

“It is further mutually agreed between the Parties, Seller and Purchasers, in the event the said Seller, A. H. T. Coley, shall depart this life before the entire purchase price shall have been paid, as herein agreed, the contract shall continue in force provided all its conditions have been promptly met by the said Purchasers, and all subsequent payments, which would and should have been paid to A. H. T. Coley, Seller, had she lived, will be paid to her husband’s nephew, Walter Lee Coley, who at the time of the making of this contract, lives in Dayton, Ohio.”

This contract was in full force and effect in 1960 when Mrs. Coley died testate. Her will was admitted to probate and Walter L. Coley, the same person named in the contract above, was appointed executor. The purchasers asked for and were granted specific performance of the contract. The probate court directed Walter Coley, as executor, to convey the lands to the purchasers pursuant to the contract. The balance owing on the property, $7,000, was paid into the registry of the court. The court thereafter ordered the $7,000 paid to Walter Coley as executor, to be distributed to the residuary legatees named in Mrs. Coley’s will. Walter Coley appealed from this order in his individual capacity, contending that he was a third party beneficiary and claiming the $7,000 as a gift under the contract.

This court has held that the conditions which must exist in order to constitute a valid inter vivos gift are: (1) the donor must be of sound mind; (2) must actually deliver the property to the donee; (3) donor must intend to pass title immediately, retaining no future control of the subject matter; and (4) the donee must accept the gift. Tucker v. Peacock, 216 Ark. 598, 227 S. W. 2d 929; Carlson v. Carlson, 224 Ark. 284, 273 S. W. 2d 542.

In the Coley case, this court held:

“In the case before us now, the promisee [Mrs. Coley] retained full control over the contract and, had she lived, she would have been the sole beneficiary or recipient of the full consideration due on the contract. At no point does appellant show an actual or constructive intent on the part of the promisee to relinquish such control of the contract as would cause a presumption that appellant was entitled to anything until the promisee’s death. The terms of the contract clearly stated that appellant was to receive nothing until the death of Arm H. T. Coley, and then only such amount (if any) as might be remaining due on the contract. This provision of the contract clearly shows an intent on the part of Ann H. T. Coley to make a testamentary disposition of property contrary to the solemn requirements of a will. From the clear language of the contract there is no inference of an intent on the part of Ann H. T. Coley to convey a present interest in the contract to appellant as would constitute a valid gift inter vivos. See Baugh v. Howze, 211 Ark. 222, 199 S. W. 2d 940.”

Despite the very able brief of counsel for appellees, and the Chancellor’s fine opinion, we are unable to distinguish the case at bar from the Coley case, and we must, therefore, reverse.


source: Caselaw Access Project

author: Neill Bohlinger, Associate Justice.

license: Public Domain

text:
    Savage v. Spicer.
    5-2815
    362 S. W. 2d 668
    Opinion delivered December 17, 1962.

      Bernard Whetstone, for appellant.

      Brown & Compton, for appellee.
   Neill Bohlinger, Associate Justice.

This case stems from an automobile accident in which Richard Savage, a minor, was alleged to have been injured while the occupant of a car driven by Ronnie Spicer, a minor. The complaint alleges that the appellant, Eichard Savage, and appellee, Eonnie Spicer, were students at the El Dorado High School and members of the high school band and while preparing to go as members of the band to a football game they were assigned by the band director to go in the car belonging to Charles E. Spicer and driven by Eonnie Spicer in order to carry their large instruments to relieve the congestion on the regular school bus.

The appellant, Eichard Savage, for himself and father prayed $75,000.00 in damages. The defendants answered and thereafter the appellants filed their first amendment to the complaint in which they alleged that the band director had specifically delegated to Eonnie Spicer the task of transporting Eichard Savage and his instrument and that the band director was the authorized agent of the El Dorado School District; that the El Dorado School District was the holder of a public liability policy issued by the Hartford Accident and Indemnity Company and prayed the issuance of a summons against the Hart-for Accident and Indemnity Company and that they have judgment under said policy.

It further alleged in said amendment that the appellee, Charles E. Spicer, carried a public liability policy at the time of the accident but the name of the carrier was unknown to the appellant and prayed that the insurance carrier for Spicer be made a party defendant to the end that judgment might be entered against such carrier.

The Hartford Accident and Indemnity Company demurred to the amended complaint on the grounds that the amendment to the complaint did not state facts sufficient to constitute a cause of action against the Hartford Accident and Indemnity Company. The court sustained this demurrer and the first point presented here is the question as to whether or not the court erred in sustaining the demurrer to the amendment to the complaint. We conclude that it did not.

The ancient doctrine that the king can do no wrong and hence could not be guilty of tort has come down to us through the years and is embodied in our constitution under the phrase that the sovereign state will never be made a defendant in its courts. This immunity from being made a defendant has been extended to the various arms and branches of the state government through which the sovereign state discharges its functions.

Time was when the functions of the school were comparatively simple and the pupils walked to school and returned to their homes without assistance from the school district. In a time fraught with change, conditions have so altered that today it is necessary for the school districts to transport pupils to and from school, in some instances a considerable distance, and to this end they operate now on the thoroughfares of the state large numbers of school buses, trucks and private vehicles to accomplish the diverse activities of the school. As would normally be expected, accidents ensued and the citizens that suffered loss in such accidents were confronted with a situation wherein there was no redress in the courts against the districts.

To correct this injustice, the Legislature of 1947 provided that if liability insurance was carried by an immune agency, the person suffering loss or damage covered by such insurance could have a direct cause of action against the insurer.

Ark. Stats. § 66-517. Liability insurance carried by nonprofit organization or public agency — Direct action against insurer. — "When liability insurance is carried by any * * * school district, * * * and any person, * * * suffers injury or damage to person or property on account of the negligence or wrongful conduct of any such organization, * * * its servants, agents or employees acting within the scope of their employment or agency, then such person, firm or corporation so injured or damaged shall have a direct cause of action against the insurance company * * * with which said liability insurance is carried * # *”

The emergency clause of the act (Act 46, Acts of 1947) reads:

“ Section 5. Whereas liability insurance policies are being written and issued to associations, corporations and organizations which cannot be sued on torts and premiums are being collected by liability insurance companies on such policies without any benefit either to the insured or whoever may be injured and damaged, this act, being necessary to the public peace, health and safety, an emergency is hereby declared to exist, and this act shall be in effect from and after its passage. ’ ’

In this case we have such a liability policy but, like other insurance policies, it provided that the insured would pay a certain sum of money and the insurer would protect against certain liabilities in connection with the operation of the specific vehicles set forth in the policy. Each vehicle which the insurer is covering is specifically described and the policy further provides that the insurance afforded by such policy is in respect to the vehicles listed in the policy and for which a premium charge has been or is to be paid. The car operated by the appellee is not listed in that policy.

It is suggested, however, that since the appellees ’ car was being operated as an adjunct or substitute for one of the vehicles listed in the policy that' direct action against the insurer should be accorded to the appellants. We do not agree.

While it is true that a substitution of vehicles is contemplated by the policy, it is further provided that the substitution is permitted where the insured automobile is withdrawn from normal use if the school district notifies the company of the substitution. There was no substitution here or any showing that the insured vehicle was withdrawn from service.

In addition to the demurrer by the Hartford Accident and Indemnity Company, the appellees, Ronnie and Charles E. Spicer, moved that paragraphs eight (8) and nine (9) of the amendment to the complaint be stricken. These paragraphs alleged that the appellants were informed and believed that the appellees carried a public liability policy at the time of the accident, the limits of the policy and the name of the insurance company being unknown to the appellants and that the definition of the word “insured” in such policy applied to “organizations legally responsible for the use of the appellees’ car.” The appellants contended that this clause extended coverage to the school district; asked that the name of the insurance carrier of the appellees be divulged and it be made a joint defendant under the direct action statute; and that they have judgment against such insurance carrier.

The court sustained the appellees’ motion to strike these paragraphs and in that we agree.

The direct action statute, quoted above, provides that if a school district carries liability insurance and causes injury to any person, that person may bring suit directly against the school district’s insurance carrier. The purpose of the statute is set out in the emergency clause quoted above. The direct action statute applies only to insurance companies issuing policies to such immune organizations. The purpose of the statute is clear and that purpose is not served by extending the act to allow a direct action against the insurer of an individual.

There is no question of procedure here involved and we pass only on the action of the court in sustaining the general demurrer to the complaint against the Hartford Accident and Indemnity Company and in deleting the paragraphs in the amended complaint which sought to make an insurance policy carried by private individuals come within the statute which permits direct suit against insurers of agencies that are immune to such action.

The decision of the trial court in both of these actions is affirmed.


author: Neill Bohlinger, Associate Justice. Sam Robinson, Associate Justice

text:
    Townsend v. Standard Industries, Inc.
    5-2854
    363 S. W. 2d 535
    Opinion delivered December 17, 1962.
    [Rehearing denied February 4, 1963.]

      J. Wesley Sampier and Jeff Duty, for appellant.

      Crouch, Blair & Cypert, for appellee.
   Neill Bohlinger, Associate Justice.

Tbis is an action brought by appellant, John Townsend, in the Benton County Circuit Court to recover damages to which he alleged he was entitled by reason of a breach of contract by the appellee, Standard Industries, Inc.

The appellant, in his complaint, pleaded an oral agreement under which he stated that the appellant and appellee had operated from December, 1960 until April, 1961. He alleged the agreement was that he would move his sawmill onto certain lands owned by the appellee and would drag or haul timber from appellee’s land after the timber had been felled by the appellee, and saw the same to size and dimension as directed by the appellee and that from December, 1960 to April, 1961 he had so performed.

The complaint states further:

“And that on or about the 20th day of April, 1961, the parties signed a written contract embodying the terms and provisions of their agreement under which they had been performing and complying, since sometime during the month of December, 1960, and which said written contract was prepared by the defendant, Standard Industries, Inc., a copy of which, marked Exhibit “A”, is attached hereto and made a part hereof fully as though set out word for word herein. ’ ’

It is the contention of the appellant that under the agreement appellee was to cut all the timber on what is roughly designated as the appellees ’ land comprising approximately 800 acres of timber land and appellant was to haul it to his mill, cut it to specification and sell it to appellees for a certain price.

The appellant’s complaint alleges that after a lapse of time he was notified that no more timber would be bought and that he then moved his mill from the farm and brought this action for damages in the amount of $8,565.49 which he alleges he sustained by reason of the appellees’ breach of contract.

The plaintiff, in his complaint, set out an oral agreement under which the parties operated from December, 1960 until April, 1961, as stated supra, but then stated that they had signed a written contract embodying the terms and provisions of their agreement.

The writing which appears as Exhibit “ A ” and which was incorporated in the complaint as if set out word for word is as follows:

“I, John Townsend, agree to set my sawmill on Standard Industry Farm, Rt. 1, Rogers, Ark. I will pick up logs from the farm, haul them to mill & will cut lumber as desired for $4 per 100 board ft.
I will cut, split & haul all white oak that will make Staves or heading for 2/3 amount received.
/s/ John Townsend
Standard Industries Farm
/s/ Grover Fuller
I, Grover Fuller, will check lumber each Saturday & move it from mill — and count Board feet—
/s/ Grover Fuller ”

The appellees [defendants below] filed a demurrer to the complaint on grounds it failed to allege facts which would constitute a cause of action, which the trial court sustained.

For the purpose of determining the sufficiency of the complaint on demurrer, the allegations contained in the pleadings must be taken as true. Moore v. North College Avenue Improvement Dist. No. 1 of Fayetteville, 161 Ark. 323, 256 S. W. 70. In the instant case it appears that the parties proceeded on the strength of some conversations in regard to the cutting of appellees’ timber. In April, however, there was a writing signed by both the parties hereto and appellant’s complaint sets forth the written document as “embodying the terms and provisions of their agreement under which they had been performing and complying” which document is “attached hereto and made a part hereof fully as though set out word for word herein. ’ ’ Therefore, whatever had been discussed or contemplated by the parties is brought within the focus of a writing signed by the parties and the appellant has a cause of action only if this writing is a contract.

The rule that in law cases an exhibit will not be considered in determining the sufficiency of the complaint on demurrer is not applicable here because the alleged contract is made a part of the complaint ‘ ‘ as though set out word for word herein.” Therefore, the terms of the writing are the very essence of the complaint and is the basis on which the action is predicated.

This is not a case in which parol evidence may be introduced to contradict or vary the terms of the written contract because from the allegations it purports to be a complete contract embodying all the terms and provisions of the agreement, and the rule as stated, in Graves v. Bodcaw Lumber Co., 129 Ark. 354, 196 S. W. 800 is that:

“* * * it is Hornbook law that all prior negotiations leading np to the written contract are merged therein, and, further, that evidence of contemporaneous parol agreement is not competent to vary the terms of the written agreement.” [Citations omitted]

There is no allegation made that this is a severable contract so it must be considered as a whole.

From the terms of the writing, this is not a contract for the sale of all the output of the mill, nor is it a contract for the sale of all the timber on a given tract of land. Nothing in the writing, into which all the agreements have been merged, provides how much timber is to be cut nor when it is to be cut. There is no agreement to provide any specific logs for Townsend to cut, hence there is no mutual agreement. The quantity of logs to be cut is neither expressed nor implied in the alleged contract and thus cannot be ascertained.

The most that can be said is that the parties had agreed on a plan of operation but they did not make a contract.

As was said in El Dorado Ice & Planing Mill Co. v. Kinard, 96 Ark. 184, 131 S. W. 460:

“A contract to be enforceable must impose mutual obligations on both of the parties thereto. The contract is based upon the mutual promises made by the parties; and if the promise made by either does not by its terms fix a real liability upon one party, then such promise does not form a consideration for the promise of the other party. As is said in the case of St. Louis, I. M. & S. Ry. Co. v. Clark, 90 Ark. 504, ‘mutuality of contract means that an obligation must rest on each party to do or permit to be done something in consideration for the act or promise of the other; that is, neither party is bound unless both are bound. ’ A contract, therefore, which leaves it entirely optional with one of the parties as to whether or not he will perform his promise would not be binding on the other. Such are the contracts wherein one promises to buy all that the other may desire to sell; or wherein one promises to sell or deliver all that he may desire or choose to sell or deliver. Davie v. Lumberman’s Mining Co., 93 Mich. 491; Cummer v. Butts, 29 Am. Rep. 530.

And such, too, is the nature of the contracts wherein the quantity sold can not be made reasonable to appear or is incapable of an approximately accurate estimate. Campbell v. American Handle Co., 117 Mo. App. 19.

But a contract to sell and deliver to another all that one party may require in an established business, or all the product that the other party may produce for a definite period from a certain mill or plant, does impose such a fixed obligation as to save the mutual character of the promise. In such cases the quantity sold can be made to reasonably appear, and is capable of an approximately accurate estimate. And so a contract for the sale of the entire output of a mill of a known capacity for a definite period would be binding, although the amount so sold is not definitely ascertained.” [Citations omitted]

The demurrer to the amended and substituted complaint was properly sustained and upon failure of the appellant to plead further the action was dismissed with prejudice. This action of the lower court is affirmed.

McFaddin, Robinson & Johnson, JJ., dissent.

Sam Robinson, Associate Justice

(dissenting). According to any reasonable construction of the complaint in this case it alleges that the plaintiff and defendant entered into an oral contract whereby, for a stipulated amount, the appellee employed appellant to saw into lumber all of the logs from 800 acres of timberland. The complaint further alleges that at a later date the oral agreement was reduced to a written contract; that appellant performed part of the contract and had stood ready, willing and able to complete his part of the contract if he had been permitted to do so by appellee, but that appellee had breached his part of the contract by failing to furnish the logs to be sawed into lumber.

The majority is holding that the writing does not constitute a contract, but that appellee is bound by the terms of this unenforceable agreement and can not introduce parol testimony to add to the writing to show that the parties actually did enter into a valid contract. In my opinion, the majority has improperly applied the parol evidence rule. Before this rule is applicable, there must be a valid written contract between the parties. The majority holds, and I agree, that there is no such contract.

In 20 Am. Jur. 954 it is said: “The rule, commonly known as the ‘parol evidence rule,’ which excludes evidence of prior or contemporaneous oral agreements which would vary a written contract presupposes the existence of an existing valid written contract. Speaking generally, if the parol evidence attacks the legality ... of the contract, it does not fall within the condemnation of the so-called ‘parol evidence rule’.” (Emphasis ours.) And, on page 955 of the same volume of Am. Jur., it is said: “The rule that parol evidence is inadmissible to contradict or vary a written contract applies only to a written contract which is in force as a binding obligation.”

In 32 C.J.S. 823 it is said: “It is of course necessary to the application of the parol evidence rule to contracts that there shall be a complete written contract between the parties.”

“The trial court assumed that such testimony was incompetent under the rule that parol testimony is not admissible to'vary the terms of a written contract. While this is the law, it does not necessarily apply here, for if appellant’s construction of the transaction is correct, no contract was entered into.” Marshall Motor Service v. Norm Co., 194 Ark. 805, 109 S. W. 2d 662. Likewise in the case at bar, if there is no written contract, there is nothing to prohibit proof of an oral contract.

The majority points out that there is no written contract between the parties, and then cites Graves v. Bodcaw Lumber Co., 129 Ark. 354, 196 S. W. 800, to the effect that parol evidence is not admissible to vary the terms of a valid and binding written contract. In that case there was a valid written contract; the Court said: “The writing sued on here showed a complete contract. ’ ’

Appellant alleges in the complaint an oral agreement constituting a valid contract. Only recently, in the case of Donham, Commissioner v. Neeley, Law Reporter of November 12, this Court held that an entire complaint is not demurrable if any good cause of action is stated, and that in testing the sufficiency of a pleading against a general demurrer, every reasonable intendment should be indulged to support the pleading.

In my opinion the complaint in this cause states a valid oral contract. The parol evidence rule, which is actually a rule of substantive law because of rights acquired under a written contract, is not applicable because there is no valid written contract. I would, therefore, reverse the judgment.

Johnson, J., joins in this dissent.


text:
    Purnell v. Missouri Pacific Ry. Co.
    5-2861
    362 S. W. 2d 674
    Opinion delivered December 17, 1962.

      Griffin Smith, for appellant.

      Pat Mehaffy and W. A. Eldredge, Jr., for appellee.
   Neill Bohlinger, Associate Justice.

The appellant brought this action alleging that as an employee of the appellee railroad he was injured in the course of his employment through the negligence of appellee and sought damages under the Federal Employer’s Liability Act [commonly referred to as FELA].

The trial resulted in a verdict for the appellee and the appellant prosecutes this appeal, presenting an abbreviated record and relying upon the following points:

“Appellee’s Instruction No. 3 was prejudicially erroneous in (1) instructing in terms of common-law proximate causation instead of the much broader terminology of the FELA; (2) omitting any definition of proximate cause, when it was couched in binding terms; (3) excluding speculation as to injury and damages; and (4) excluding presumptions as a basis for inference of negligence. ’ ’

Appellee’s instruction No. 3, the one here challenged, is as follows:

“You are instructed that no presumption arises from the mere happening of an injury to a railroad employee and you cannot guess, surmise or speculate on the issues of negligence, proximate cause or damages. The burden of proof is on the plaintiff to establish by a preponderance of the evidence all of the following: (1) that the defendant railroad was guilty of negligence; (2) that such negligence, if any, was a proximate cause of the plaintiff’s injury and damage, if any.

If you find and believe that the evidence on any one of these points does not preponderate in favor of the plaintiff, or that the evidence in regard thereto is evenly balanced, then your verdict must be in favor of the defendant, Missouri Pacific Eailroad Company.”

The appellant objected, both generally and specifically, to the giving of this Instruction No. 3 as follows :

“ (The court gave such instruction over the general objections of the plaintiff. The plaintiff further specifically objected to said instruction because it erroneously states there is no presumption from the happening of an accident, when under FELA it has been frequently held that the rule of res ipsa loquitur freely applies; further, since there is evidence of negligence an instruction in terms of legal presumptions is misleading and superfluous; it erroneously tells the jury that plaintiff has the burden of proving that the negligence of the railroad was a proximate cause of the plaintiff’s injury, which places a higher burden on plaintiff than the statute requires, since the statute only requires a showing that negligence ‘in whole or in part’ caused injury; the instruction is predicated on a 1947 decision which was long since qualified or overruled.) ”

This appeal poses the following question: Is negligence which is “a proximate cause” of an injury the same as negligence which “in whole or in part” causes an injury?

It is well settled that when the correctness of instructions to a jury is a question, the instruction complained of must be examined in conjunction with all the instructions given. The appellant in this case requested four instructions which were given as follows:

“Plaintiff’s Instruction No. 2. The Federal Employers Liability Act, which was in force at the time of this occurrence, provides that whenever an employee of a railroad is injured while engaged in the course of his employment, and the injury results in whole or in part from the negligence of any of the officers, agents or other employees of the railroad, then the railroad shall be liable in damages to the injured employee. (Emphasis added) * * *
* * * No. 4. Under the terms of the Federal Employers Liability Act, in any action brought against a railroad to recover damages for injury to an employee, the employee shall not be held to have assumed the risks of his employment in any case where the injury resulted in whole or in part from the negligence of any of the officers, agents or employees of the railroad. (Emphasis added) # # *
* * * No. 6. If you find from a preponderance of the evidence that defendant railroad failed to use ordinary care to provide plaintiff a reasonably safe place to work and was therefore negligent and such negligence, if any, in whole or in part caused plaintiff to be injured, your verdict should be for plaintiff. (Emphasis added) * * #
* * * No. 8. If you find from a preponderance of evidence that plaintiff was injured and that defendant was negligent, and that such negligence, in whole or in part, caused plaintiff’s injury, then the fact that because oí a previous injury in the same area of his body plaintiff may have been susceptible to injury than would otherwise have been the case, if you so find, would not affect Ms right to recover for his present injury, if any (Emphasis added) * * *”

Therefore the jury was instructed that if the defendant’s negligence, in whole or in part, caused plaintiff’s injury the railroad company would be liable in damages. We do not conclude that defendant’s (appellee’s) instruction No. 3 is in conflict with the four instructions which the appellant requested and which were given, nor does instruction No. 3 vary “the injury results in whole or in part”, as given in appellant’s instructions.

It is noted that the court said, in instruction No. 3: “ (1) that the defendant railroad was guilty of negligence; (2) that such negligence, if any, was a proximate cause of the plaintiff’s injury and damage, if any. * * *” [Emphasis added]

The use of the indefinite article “a” in connection with “proximate cause” was before this court in the case of Lydon, et al. v. Dean, 222 Ark. 367, 260 S. W. 2d 465, where we found error in an instruction in which the trial court changed the reading of the instruction by changing “a proximate cause” to “the proximate cause.”

Reading appellant’s four instructions in connection with appellee’s instruction No. 3, which is complained of here, we find no variance or conflict.

Appellant contends, however, that under PELA the happening of an accident justifies a presumption of negligence as the doctrine of res ipsa loquitur applies.

The phrase, res ipsa loquitur, is a picturesque way of describing a balance of probability on a question of fact on which little evidence either way has been presented. It is true that the U. S. Supreme Court has applied res ipsa loquitur in PELA cases, but only where there is present recognized requirements of extraordinary unusual occurrences. The application of res ipsa loquitur in FELA cases is well set forth in Herdman v. Pennsylvania Ry. Co., 77 S. Ct. 455, 1 L. Ed. 2d 508, 352 U. S. 518:

<<# # * The proofg j0 no-(; meet the tests laid down by this Court in Jesionowski v. Boston & M. R. Co., 329 U. S. 452, 91 L. Ed. 416, 67 S. Ct. 401, 169 A.L.R. 947, 21 N.C.C.A. N. S. 563. The employee’s injuries in the Jesionowshi Case resulted from a derailment. This Court held that derailments are ‘ extraordinary, not usual, happenings, ’ so that when they occur ‘a jury may fairly find that they occurred as a result of negligence.’ ”

The extraordinary circumstances that make applicable She doctrine of res ipsa loquitur are absent in this case. The appellant pinpoints the cause of his injury; thai is, that the journal box was defective, requiring extraordinary force and that when the lid of the journal box gave way he stepped back suddenly and stepped back on same object that he alleged the appellee had left at that location and that he was therefore not furnished with a safe place to work. The doctrine of res ipsa loquitur does not apply in this case.

The judgment of the trial court is, therefore, affirmed.


author: Carleton Harris, Chief Justice.

text:
    Dednam v. American Machine & Foundry Co.
    5-2862
    363 S. W. 2d 419
    Opinion delivered January 7, 1963.

      Howell, Price & Worsham, for appellant.

      Riddick Riffel, for appellee.
   Carleton Harris, Chief Justice.

This is a Workmen Compensation case. Herbert H. Dednam was employed by A. M. & F. Company from February, 1956, to September, 1957. He contends that he sustained temporary total disability in September, 1957, by reason of dermatitis, occasioned by his employment. Appellees take the position that the dermatitis was not the result of Dednam’s employment. The claim was first heard before a referee in February, 1959, and a subsequent hearing was held in April of that year. Upon the referee finding for appellees, an appeal was taken to the full commission, at which time additional evidence was submitted. From an adverse ruling by the commission, appellant appealed to the circuit court, and thereafter filed a motion to remand the cause to the commission for further development of medical testimony, and to require the appellees to produce and make available certain chemical specimens and samples. The circuit court denied the motion to remand and entered its judgment affirming the decision of the Workmen’s Compensation Commission. From such, judgment, comes this appeal.

Dednam testified (February, 1959) that when he commenced working for the company, his duties consisted of polishing and buffing metal, but he subsequently “worked on the acid chain and on the nickel plated chain.” Part of the duties of the latter task consisted of placing rejected parts in a large vat of acid (which removed paint from the parts). He stated,

“Well, it had a strong smell to it, and when I first discovered that this, when it started taking effect on me it felt like a bunch of pins and things, everytime I was around these machines, like a bunch of pins and things, it would feel like it was sticking in my skin when I would start sweating.”

Dednam testified that this only happened when he was around the acid;

“It formed just like heat would form on a person’s body. And everytime I would sweat it would burn and swell up. * * * Well, it would swell up; my ankles and legs swoll up where I couldn’t work.”

Appellant first went to the company doctor (Dr. Hall) in August or September of 1956, and was later treated by Dr. J. A. Johnson. Dr. Johnson rendered a report on October 2, which he sent to the insurance carrier, stating,

“Patient has lesions on lower legs for past six weeks. Started out itching and now has a large number of lesions that look like an allergy. Not a permanent defect— Allergy.”

According to Dednam, he received treatment from Dr. Johnson for about six months, and subsequently was referred by Dr. Hall to the Cazort-Johnston Allergy Clinic for allergic studies. Dr. Thomas G. Johnston of the clinic gave numerous patch tests, and on September 19, 1957, submitted a report, observing, inter alia, that the dietary history indicated certain foods caused asthma when Dednam was small, and stating in his report,

“His past history is quite significant in that he has had fall hay fever for the past seven to eight years. His hay fever, as he remembers it, starts in late August and lasts to October or middle November * * * In 1953, 1954, and 1955 he had hay fever from May until October. He also had small bumps on his skin but they would tend to come and go and did not tend to form infected areas.”

Dr. Johnston diagnosed appellant’s condition as atopic dermatitis, adult form, severe. He stated,

‘ ‘ On examining his skin we found a tremendous amount of excoriated lesions with a purplish hue chiefly on his lower extremities. These did not have the characteristic appearance of a contact dermatitis, and would have been and are characteristic of the adult form of atopic dermatitis.”

Included in the report were recommendations for treatment, including dietary suggestions. Dr. Johnston summarized his impressions, as follows:

“In our opinion this is not an occupational dermatitis. There is no question but that Mr. Dednam would have trouble, in our opinion, regardless of where he worked, unless he was able to spend 24 hours a day in an air conditioned place. He obviously would do much better out on the desert or on the sea as was the case while in the Navy. We have explained to him that with treatment it might be possible that he could live a comfortable life here in Little Rock, but the adult form of atopic dermatitis is extremely difficult to manage, and if there is the possibility of his obtaining a job elsewhere, he should make an attempt to do so. We do not feel that his employment has anything to do with the cause of his skin problem. ’ ’

In conformity with the recommendation, Dednam went to California in October, and stayed in that state for approximately two and one-half months. According to his testimony, his condition (rash and swelling) remained the same, and he only worked for about one week. He returned to Arkansas around the first of December, and testified that he had since been unable to resume any work, “no more than trying to pick up a little change here and there to take care of my family. * * * I helped my dad do a little carpenter work, and he helped me in that way, and he also helped support me and my family.” Dednam was subsequently treated at the Veterans’ Hospital by Dr. W. P. Scarlett, and was discharged by the hospital on June 26, 1958, with Dr. Scarlett making a final diagnosis of “atopic dermatitis, adult form, probably aggravated by chemicals, treated, improved.”

Peona Dednam, wife of appellant, testified that her husband had not been bothered by any sort of allergy before he started working for A.M.F. Cycle Company.

In April, testimony was resumed before the referee. Frank Ford, a fellow employee, testified as to when Dednam’s ailment commenced, and Nathaniel Dednam, a brother, verified the condition of appellant. Jerry Williams, job foreman, testified that appellant was never assigned to work at the vat regularly, but only worked in that capacity when the regular operator was absent, or was behind on the job. He stated positively that Dednam did not work at the vat as much as once a week during the period of his employment.

During the proceedings at the second hearing, the referee inquired if counsel would like to have the compounds, used in the tank, and around the buffing department, provided ‘ ‘ so that some allergist can check them to see if the claimant is allergic to it, or if it could be, in his opinion, the cause of this dermatitis.” Counsel for both sides agreed that this could be done. It was suggested that the chemical components and sample of “M-629 ’ ’ be obtained. However, no order was entered directing that samples be obtained, or requiring further tests to be made.

Subsequently appellees’ attorney advised by letter that Dr. Johnston has gone to the company plant, and made tests relative to the sulphuric acid. The letter further set forth that the substance, “M-629” was not used until July, 1957, which was, of course, nearly a year after appellant’s complaint commenced. However, it was stated,

“If there is any rational reason why it is necessary to test this claimant with the M-629 substance, we would not object to doing so, but since it was not being used when the claimant first began having dermatitis I could see no useful purpose in this additional test.”

Appellant made known his objection to Dr. Johnston’s further testifying, unless the samples were furnished. Thereafter, on July 7, 1959, counsel for appellant directed a letter to the referee as follows:

‘ ‘ This will confirm our telephone conversation of yesterday in which I advised that inasmuch as the respondent has withdrawn its request for an additional hearing, the claimant also is willing for an opinion to be rendered on the evidence in the case as it now stands, and we do not desire additional hearing.”

Following the referee’s decision in behalf of appellees, the matter was appealed to the full commission where Herbert’s father testified in support of his son’s contentions, and a letter was offered by appellant from Dr. H. Ray Fulmer of Little Rock, wherein Dr. Fulmer agreed that the diagnosis of atopic dermatitis was correct. Pertinent portions read as follows:

“I do not feel that the man’s occupation played any significant part in causing this trouble or in influencing its course. The only manner which I can conceive of his work influencing the dermatitis would be that any type of local irritant such as acids or acids fumes would aggravate any already existing dermatitis. Such aggravations, of course, would be primarily a subjective aggravation; i.e., it would produce more itching, stinging, etc. and such aggravation would be expected to cease when the patient was no longer in contact with the irritating substance.”

Upon the commission affirming the referee, appellant appealed to the circuit court. Here, a motion to remand the cause to the commission for the consideration of newly discovered evidence, was filed. The motion alleged that the chemical components of the various solutions used by the company in its tanks and vats were unknown to appellant, were under the exclusive control and knowledge of the company, and the company had failed and refused to divulge the components of such solutions or to make same available for the purpose of allergy tests on Dednam. Attached to the motion was a statement from Dr. Calvin J. Dillaha, skin specialist of Little Bock, directed to appellant’s counsel, as follows:

“I have recently spent some time reviewing the two briefs on Herbert Dednam and I am convinced if it is still possible to reopen his case, that we could demonstrate that his work was indeed a factor in the development of his cutaneous problem. I should be happy to discuss this with you or one of your associates at a convenient time. I feel with adequate preparation this could be presented to the commission or a court in such a fashion that it would be most convincing.”

The court was asked to remand the cause and to require the company “to produce and make available to the claimant’s physician and skin specialist” samples of the solutions used by appellee in its plant during the period in question. The circuit court denied the motion, finding that appellant

“has failed to show that he exercised due diligence in the discovery of the evidence upon which he predicated his motion. He further failed to show that such evidence is not cumulative and that it would justify a different result than reached by the Commission without said evidence.”

The court then found that the decision of the Workmen’s Compensation Commission denying compensation benefits was supported by competent, substantial evidence, and affirmed tbe commission’s decision.

For reversal, it is first argued by appellant that “the findings of the commission are not supported by the weight of evidence.” Of course, we cannot concern ourselves with whether the commission’s findings are supported by the weight of evidence, for compensation cases are not tried de novo. Rather, we examine the record with the view of determining whether there was substantial evidence to support the commission’s findings. As herein set out, Dr. Thomas G-. Johnston was of the opinion that Dednam’s condition was not an occupational dermatitis, and he did not feel that the employment had anything to do with causing appellant’s skin problem; in fact, he stated there was no question but that Dednam’s trouble would have occurred, irrespective of where he worked “unless he was able to spend 24 hours a day in an air-conditioned place.” It will be observed that Dr. Fulmer’s report which was offered by appellant is far from positive; the doctor stated that any local irritant would aggravate the already existing dermatitis; however, he added that11 such aggravation would be expected to cease when the patient was no longer in contact with the irritating substance. It is noticeable that Dednam’s dermatitis did not cease when he left his employment; in fact, it continued during the period that he was in California and through the commission hearing, which was close to three years after the condition first appeared. At any rate, on the one hand, we have the positive testimony of Dr. Johnston, and, on the other hand, the statement of Dr. Fulmer, and a statement by Dr. Scarlett that the dermatitis was “probably aggravated by chemicals.” We think, and particularly since his views are supported by the circumstances herein mentioned, that Dr. Johnston’s findings and opinion constituted substantial evidence. Appellant complains that appellee failed to produce the samples of various chemicals involved, as per the arrangements made before the referee at the April, 1959, hearing, and argues that this failure to produce the evidence (which it had the power to produce), creates a presumption that the evidence would be detrimental to appellees. The cases cited by appellant have no application to the fact situation herein, and as previously stated, we find no order requiring appellants to furnish these samples, nor any order directing further tests. The sulphuric acid test was made by Dr. Johnston, the doctor’s findings being adverse to appellant’s contention, and counsel for appellees reported that the M-629 was not in use when Dednam’s skin trouble commenced. Be that as it may, appellant did not insist upon an order, or compliance with the agreement, but rather, through counsel, advised the referee that “the claimant also is willing for an opinion to be rendered on the evidence on the case as it now stands, and we do not desire additional hearing.” Let it also be remembered that the discussion, relative to the obtaining of samples, took place before the referee ever rendered his decision, and no further effort was made between then and the time of the hearing by the commission (or at the time of the commission hearing) to obtain an appropriate order. We find no merit in appellant’s first contention.

As to appellant’s motion to remand to the commission, we think the court acted correctly in denying same. In Mason v. Lauck, 232 Ark. 891, 340 S. W. 2d 575, this court pointed out the conditions under which a circuit court could properly grant the relief herein sought. From the opinion,

“The ‘proper conditions’ referred to are, for example, that the movant has exercised due diligence, that the evidence is not cumulative, and that the new evidence would justify a different result.”

The Pulaski Circuit Court, as reflected in its order, heretofore quoted, held that these conditions had not been met. We find no evidence in the record that would indicate this finding to be erroneous. Of course, as pointed out in the Lauck opinion, to permit the losing party to bring in new evidence after a final award by the commission (unless the proper conditions are present to justify a remand) would greatly hamper the finality of proceedings before the compensation commission. In sncb event a “claimant eonld await the Commission’s decision, and if it was adverse, then search for new evidence in an effort to set aside the Commission’s Award.”

The judgment of the Pulaski Circuit Court is affirmed.

       Appellant denied that he told Dr. Johnston that he suffered from hay fever from May until October in the years mentioned or that he had told Dr. Johnston of dietary trouble with certain foods.

       At the time of the first hearing before the referee in February, 1959, appellant had resumed visits to Dr. Thomas Johnston for treatment.


author: Ed. F. McFaddin, Associate Justice.

text:
    West v. Carter.
    5-2875
    363 S. W. 2d 415
    Opinion delivered January 7, 1963.

      Shackleford & Shackleford, for appellant.

      A. A. Thomason, for appellee.
   Ed. F. McFaddin, Associate Justice.

The appellants insist that they were entitled to an instructed verdict in their favor. That is the only issue presented.

The appellants are J. A. West et al., doing business as West Lincoln-Mercury Company, and the appellee is Harry Carter, an individual. Carter contracted to purchase from appellants a used 1958 Pontiac automobile. To complete the transaction, Carter delivered to appellants a 1955 Chevrolet automobile and signed a conditional sales contract which, with insurance and carrying charges, was for a total amount of $1,332.96, and which was payable in monthly installments of $55.54. Within a few days after the transaction, Carter reported to appellants that the Pontiac car was not in good “A-l condition,” as it had been represented to him; something was wrong with the A-frame; one door would not stay closed ; the car had a tendency to “dart” in the steering. Appellants assured Carter that the Pontiac would be put in good condition, and did undertake repair work on the car on three different occasions over a period of as many months; and the repair bill amounted to an excess of $100.00.

Appellants had transferred the conditional sales contract to the Universal C.I.T. with recourse. When the first monthly payment became due, Carter told appellants he would not make the payment because the car was defective; but appellants assured Carter that if he would make the payment, appellants would repair the car to Carter’s satisfaction. On such repeated promises and representations Carter made three monthly payments; but then refused to make any more, since the Pontiac remained unsatisfactory. Thereupon, appellants reacquired the conditional sales contract from Universal C.I.T. and filed action against Carter for the balance on the contract, plus $60.51 balance on open account for repairs. Carter’s defense was that appellants had been guilty of false representations as regards the condition of the Pontiac, in that it had been wrecked and was never put in good condition, as represented. Trial to a jury resulted in a verdict and judgment thereon; that appellants should return to Carter the 1955 Chevrolet, or its value of $400.00; and that Carter should return to appellants the 1958 Pontiac, or its value of $1,012.62; and that Carter recover his costs. To reverse that judgment, appellants bring this appeal, urging only one point: “The Court erred as a matter of law in failing to direct a verdict in favor of appellants for the relief sought.”

The appellants urge (a) that Carter admitted executing the conditional sales contract; and (b) that Carter admitted making three payments on the contract after learning that the Pontiac was defective. Because of these matters, appellants claim that Carter waived any and all defects in the Pontiac car; and appellants cite and rely on three cases, to-wit: Hignight v. Blevins, 220 Ark. 399, 247 S. W. 2d 996; Teare v. Dennis, 222 Ark. 622, 262 S. W. 2d 134; and Advance Aluminum Co. v. Davenport, 224 Ark. 440, 274 S. W. 2d 649. To these cases, others might be added, one of which is Kern-Limerick v. Mikles, 217 Ark. 492, 230 S. W. 2d 939, wherein we cited Pate v. McWilliams, 193 Ark. 620, 101 S. W. 2d 794:

“In Pate v. McWilliams, supra, the seller brought suit on a title retaining contract involving automobiles; and the buyers cross complained for damages, because of alleged fraudulent misrepresentations inducing the sale. The evidence showed that the buyers used the cars from May until December; and after having received full knowledge that the alleged representations were not true, the buyers continued to make payments on the automobiles. On such evidence the trial court instructed a verdict for the seller in his action for the balance of the contract price; and this Court affirmed, saying:
“ ‘ ... appellants waived the right to defend on the ground of a fraudulent procurement of the contract, by making no complaint and by using the trucks and making monthly payments thereon long after they claimed to have discovered that the Dodge truck consumed more gas and oil than the Chevrolet trucks had consumed.’
“See, also, McDonough v. Williams, 77 Ark. 261, 92 S. W. 783, 8 L. R. A., N. S. 452, 7 Ann. Cas. 276, as a case involving waiver; and also 24 Am. Jur. 34, et seq.; 56 Am. Jur. 122, et seq.; and 67 C. J. 289, et seq. Other cases on waiver involving sales are collected in West’s Arkansas Digest, ‘Sales,’ key number 50.”

It is true that we have repeatedly held that where a buyer continues to make payments without protest, after learning of the misrepresentations inducing the sale, then such payments constitute a waiver. But, in the ease at bar, the evidence clearly reflects that Carter made the payments only after he was repeatedly assured by the appellants that they would repair the Pontiac and fulfill their representations. Such assurances by appellants to Carter caused him to make the payments which he made; and this evidence differentiates the case at bar from the cases cited by appellants.' In Pate v. McWilliams, supra, we held that the purchaser waived his defense, of fraudulent representations inducing the contract, when, after learning the representations to be false, he (a) continued to make the monthly payments and (b) made no complaint. In the case at bar, the purchaser (a) made repeated complaints, (b) the seller undertook to repair the defects, and (c) the purchaser made the monthly payments only after the seller had promised to remedy the defects. Thus the cases holding that payments after discovery of defects justify an instructed verdict for the seller can have no application here because of the factual situation. The issue was fairly presented to the Circuit Judge when the appellants made the motion for an instructed verdict. Here is the language of the appellants ’ attorney, and the Court’s reply thereto:

“(By Mr. Shackleford): The basis for the motion for a directed verdict for the Plaintiff is upon the fact that the Defendant has waived any right to ask for a recision of the contract based upon fraud or misrepresentation of the Plaintiffs by virtue of this actions in keeping the vehicle in his possession and making payments thereon pursuant to the provisions of the contract. ’ ’
“ (By the Court): I would agree that you are right except for the fact that the defendant testified that the plaintiff, or the plaintiff’s manager, told him to go ahead and make the payments, that they would repair this vehicle and put it in proper shape; and I think that does away with any right of pleading waiver. ’ ’

The ruling of the Trial Court was in line with the language of the Georgia Court of Appeals in Kimbrough v. Adams, 16 S. E. 2d 96:

“The making of any payment by the defendant to the plaintiff on the purchase price, if the defendant made any, before the truck was finally returned, and pending the efforts of the plaintiff to make the repairs, would not as a matter of law constitute a waiver by the defendant of any fraud of the plaintiff inducing the contract. In Couch v. Thompson, 34 Ga. App. 383 (3), 129 S. E. 794, 795, the court held: ‘Where, after discovering the fraud, the purchaser paid the purchase money under an agreement with the seller that the seller would make good to the purchaser any damage resulting from the fraud, there was no waiver of the fraud.’ ”

In short, the question of whether Carter relied on the statements of the appellants in making the payments was a proper matter for the jury; but, under the evidence in the record, the Court was correct in refusing an instructed verdict in favor of appellants.

Affirmed.

Holt, J., not participating.

       In Sirmon v. Roberts, 209 Ark. 586, 191 S. W. 2d 824, there is a definition and discussion of “waiver.”


author: George Rose Smith, J.

text:
    Gilbert v. Swilley.
    5-2863
    363 S. W. 2d 412
    Opinion delivered January 7, 1963.

      John L. Wilson and James H. Pilkinton, for appellant.

      W. S. Atkins, for appellee.
   George Rose Smith, J.

This case involves the custody of Kelly Gilbert, the three-year-old daughter of the appellant John G. Gilbert and the appellee Gayle Gilbert Swilley. When the couple were divorced in February of 1961 the court awarded the custody of the child to the other two appellants, Mr. and Mrs. Glen Gilbert, who are John G. Gilbert’s father and stepmother. After the divorce the child’s mother married Conrad Swilley. Early in 1962 Mrs. Swilley filed a petition asking that she be given the custody of her child. The chancellor granted that relief. In seeking a reversal the principal appellants, Mr. and Mrs. Glen Gilbert, insist that the appellee failed to prove a sufficient change of circumstances to justify the court in modifying the original decree.

The appellee was only sixteen years old when she and John G. Gilbert were married in 1956. Their child, Kelly, was born in August of 1959. The couple lived in Winnfield, Louisiana, until their separation in April or May of 1960. John then returned to Hempstead county, Arkansas, and placed the child in the- care of Mr. and Mrs. Glen Gilbert. There is some dispute about whether Gayle Gilbert voluntarily surrendered her child at the time of the separation.

In June of 1960 John G. Gilbert filed suit for divorce on the ground of indignities. The case was pending for about eight months. During the latter part of that time Gayle, who was still living in Winnfield, became intimate with her present husband. The two candidly admit that Gayle was three months pregnant when Gayle’s husband obtained his divorce on February 6, 1961. Gayle Gilbert and Conrad Swilley were married five days later. There is ample testimony to support the conclusion that their home in Winnfield is a suitable Christian place for the child. Swilley joins Ms wife in asking for the care and custody of Kelly Gilbert.

The child’s father lives in Hope. He, too, remarried soon after the divorce, but he and Ms present wife do not ask for custody of the child. Instead, Gayle’s petition is resisted primarily by the Glen Gilberts, wise insist that the ehiid be permitted to remain with them. Their home, too, is a suitable one for the child.

We do not think the chancellor’s finding of changed conditions to be against the weight of the evidence. When the divorce decree was entered the appellee had no home of her own and was hardly in a position to ask for Kelly’s custody. Now that the appellee has remarried and established a home the situation is completely changed. As the chancellor observed, if this petition should be denied the little girl will grow up without ever really knowing her own mother.

Nor do we find merit in the appellants’ contention that a change of custody is not for the best interest of the child. As between a mother and grandparents the mother is entitled to the custody of her child in the absence of a showing that she is unfit to be entrusted with the child’s care. Duncan v. Crowder, 232 Ark. 628, 339 S. W. 2d 310. That showing has not been made here. The appellants put much stress upon the appellee’s relationship with Swilley before their marriage, but infidelity .on the part of a wife is not necessarily a sufficient reason for depriving her of the precious privilege of bringing up her own child. Blain v. Blain, 205 Ark. 346, 168 S. W. 2d 807. In this case we cannot say that the chancellor, who had the advantage of seeing the parties as they testified, reached the wrong decision.

Affirmed.

McFaddin, J., not participating.


author: Paul Ward, Associate Justice.

text:
    Corruthers v. King.
    5-2865
    363 S. W. 2d 413
    Opinion delivered January 7, 1963.

      J. B. Milham, for appellant.

      Hall, Purcell & Boswell, for appellee.
   Paul Ward, Associate Justice.

Appellant, Mrs. Sarah Corruthers (formerly Mrs. Sarah Bubbus), and appellees, E. M. King and J. W. Bennett, are adjoining landowners. Appellees built a fence across the road which appellant used to cross their land and she filed suit in chancery court to enjoin the maintenance of said fence. The trial court found appellant had been using the road by permission of appellees, dismissing her complaint, and this appeal follows:

Briefly stated, the material facts are as presently set out. In 1935 appellant and her first husband (Gus Bubbus) purchased 40 acres of land in Saline County and about the same time appellees each purchased land adjoining appellant’s land. The three families were friendly and neighborly until Mr. Bubbus died in 1945 when appellant (and her children) moved away. Up until about 1938 Mr. and Mrs. Bubbus drove to and from their home on the forty over a road across appellees’ land. There can be little doubt that this use of the road was permissive because appellees put a gate across the road, and then appellant and her husband opened up another road across appellees’ land which they used until appellant moved away in 1945. Since that time appellant used the road two or three times each year until appellees closed the road two years ago.

There is no definite or positive evidence to show the character of the use of the road after the first road was abandoned, showing whether it was adverse or permissive. However, the road was across unenclosed and unimproved lands of appellees and the law presumes its use by appellant was not adverse but permissive. See: Bridwell v. Arkansas Power & Light Company, 191 Ark. 227, 85 S. W. 2d 712; LeCroy v. Sigman, 209 Ark. 469, 191 S. W. 2d 461; Brundidge v. O’Neal, 213 Ark. 213, 210 S. W. 2d 305; and, Barbee v. Carpenter, 223 Ark. 660, 267 S. W. 2d 768. Under the holding in the O’Neal case, supra, the burden was on appellant to show the use of the road was adverse to the rights of the appellees and not with their permission.

It is our conclusion, therefore, that the trial court was justified in finding appellant’s use of the road was permissive, and in dismissing her complaint.

Affirmed.


author: Sam Robinson, Associate Justice.

text:
    Choctaw, Inc. v. Great American Insurance Co.
    5-2853
    363 S. W. 2d 410
    Opinion delivered January 7, 1963.

      Wright, Lindsey, Jennings, Lester & Shults, for appellant.

      John M. Lofton, Jr., for appellee.
   Sam Robinson, Associate Justice.

The Benton Plumbing Company, hereinafter called Benton, contracted with the City of Sparkman to do certain work and furnish materials in the construction of a water and sewer system. Appellee, Great American Insurance Company, made Benton’s performance and payment bond. Benton bought from appellant, Choctaw, Inc., materials used on the job. Money paid by Sparkman to Benton and in turn paid by Benton’s check to Choctaw, was credited to Benton’s account, but not all of it to the payment of the debt for the materials furnished for the Sparkman job.

Benton ran into financial trouble and Great American had to take over and complete the job. Choctaw filed this suit against Great American, asking judgment on the performance and payment bond in the sum of $3,-963.77 as the balance due for materials which had been furnished Benton for the Sparkman job. Great American answered and set up the defense that all of the account except $546.86 had been paid. The case was tried before the court sitting as a jury. Prom a judgment in favor of Great American, Choctaw has appealed.

The crediting by Choctaw of payments by Benton to purchases other than those on the Sparkman job came about in this manner: Benton had purchased materials from Choctaw for many years prior to the time that Choctaw was furnishing materials on the Sparkman job, and during the time the Sparkman job was in progress, materials were also furnished to Benton on other jobs.

On December 21, 1959, Benton sent to Choctaw a check in the sum of $3,871.83. There was nothing said about the job to which it should be credited. Choctaw inquired of Benton as to how the payment should be applied. Benton replied, “Just apply check to our account balance.” Choctaw, therefore, applied the check to the oldest items ordered by Benton. On February 7, 1960, Benton sent Choctaw a check in the sum of $1,-534.73 without any notation as to how it should be credited. Again, Choctaw made inquiry as to how the payment should be applied and was told by Benton to apply it to the plumbing account. When subsequent checks in the sum of $1,250.00 and $1,000.00 were received with no designation of how the payments should be applied, Choctaw applied them to Benton’s plumbing account. All of these payments were with money paid to Benton by Sparkman.

This is the issue: Assuming that there is substantial evidence to support a finding that Choctaw knew, or by the exercise of ordinary care should have known, that payments made by Benton were with money Benton had received from Sparkman, was Choctaw legally bound to credit the payments to the Sparkman job?

To sustain the judgment, appellee relies on the cases of Longbell Lumber Co. v. Auxer, 221 Ark. 672, 255 S. W. 2d 163, and Wells v. Planters Lumber Co., 230 Ark. 570, 327 S. W. 2d 1, but we do not think those cases are controlling here. Both of those cases were in Chancery Court and involved the proposition of the plaintiff lumber companies seeking to establish liens on the defendants ’ homes where the lumber companies had improperly applied payments made by contractors. In the circumstances of both of those cases it would have been inequitable for the Court to have enforced a lien. Moreover, in those cases the. property owners who had paid the money to the contractors were parties to the litigation and strenuously objected to the lumber companies having failed to apply the payments to the debt against the property; but here, Sparkman is not a party to this litigation and has made no complaint as to how the payments were applied.

Ordinarily, the debtor has a right to direct the application of payments. Harrison v. First National Bank of Huntsville, 117 Ark. 260, 174 S. W. 553. But, as pointed out in White River Production Credit Ass’n. v. Grif fin, 198 Ark. 249, 128 S. W. 2d 701, there is an exception to this rule, and that is if the creditor had notice that the money had been furnished his debtor upon an understanding, expressed or implied, that it was to be applied toward a particular debt, it could not be appropriated to the payment of another debt. Here, there is no showing that Sparkman made payments to Benton with the expectation or agreement, expressed or implied, that Benton would use the money to pay for the materials furnished on the Sparkman job. In fact, it would appear that Sparkman was not concerned with what Benton did with the money since it was fully protected by the bond furnished by appellee insurance company.

Assuming that Sparkman could have complained about the payments not being credited to its job, it does not follow that the bonding company can complain. In the above mentioned White River Production Credit Ass’n. case, the Court quoted with approval as follows from National Surety Co. v. Southern Lumber & Supply Co., 181 Ark. 105, 24 S. W. 2d 964: “The right to apply payments exists only between the original parties, and no third person, such as guarantor, surety, indorser or the like, has any authority to insist on an appropriation of the money in his favor where neither the debtor nor the creditor has made such appropriation.” The Court further said in the National Surety Co. case, “While the authorities are not entirely in accord, third persons, such as guarantors, sureties, indorsers, and the like, secondarily liable on one of several debts, cannot control the application which either the debtor or the creditor makes of a payment, and neither the debtor nor the creditor need apply the payments in the manner most beneficial to such persons. This rule applies as well to a corporation engaged in the business of writing surety bonds for a compensation, as to an ordinary accommodation surety.”

The payments were credited by Choctaw as directed by Benton; Sparkman has made no complaint. In the circumstances, Great American has no right to direct a change in the application of the payments.

Reversed.


author: Jim Johnson, Associate Justice.

text:
    Bingley v. State.
    5059
    363 S. W. 2d 530
    Opinion delivered January 7, 1963.
    [Rehearing denied February 4, 1963.]

      L. M. Alexander and W. M. Herndon, for appellant.

      Frank Holt, Atty. General, by: Jack Holt, Jr., Asst. Atty. General, for appellee.
   Jim Johnson, Associate Justice.

Appellant, Isiah Bingley, was charged by information with the crime of first degree murder for the killing of Henry L. Thomas. Appellant was tried by a jury, found guilty of the crime of voluntary manslaughter and sentenced to seven years in the state penitentiary. From such judgment comes this appeal.

For reversal, appellant argues that (A) there was no substantial evidence to sustain the jury verdict; (B) that the trial court erred in refusing to instruct the jury on involuntary manslaughter; and (C) that there was an irregularity in the filing of the information by the deputy prosecuting attorney which would render the information void under Amendment 21 of the Arkansas Constitution.

Ark. Stats. § 41-2208 is as follows:

“Voluntary manslaughter defined. — Manslaughter must be voluntary, upon a sudden heat of passion, caused by a provocation, apparently sufficient to make the passion irresistible.”

The evidence is amply sufficient to support the jury’s finding of guilt. In fact the evidence would have supported a finding of a more severe degree of homicide. It is not necessary in the case at' bar to view the evidence in the light most favorable to the state, as we must on appeals of convictions of violations of criminal statutes, Spears v. State, 173 Ark. 1071, 294 S. W. 66; Brown v. State, 208 Ark. 180, 185 S. W. 2d 274; Coffer v. State, 211 Ark. 1010, 204 S. W. 2d 376; Grays v. State, 219 Ark. 367, 242 S. W. 2d 701; to conclude that there is substantial evidence to sustain the jury verdict.

This appellant, who incidentally was college educated, armed himself with a .45 caliber army automatic pistol and visited Willie’s Cafe, a Negro beer tavern on Washington Avenue in the City of North Little Rock. This was on a Friday night and the place was crowded. By his own testimony, appellant came out of the rest room into the patron’s area of the cafe and was there talking to a friend when the deceased, Henry Thomas, touched him on the shoulder and engaged him in conversation. An argument ensued, between deceased and appellant, and, again by his own testimony, appellant believing that Thomas was about to pull a gun on him, drew his own gun from his pocket and fired two or three shots at deceased. The deceased died several days thereafter from a bullet wound and two other patrons suffered minor bullet wounds. Appellant left the scene of the shooting and was not picked up by the officers until sometime later. Appellant admitted lying to the officers and the inconsistencies in his statements, to say the least, were enough to cause a jury to question the veracity of his testimony. Out of all the people who were crowded into this place on the night of this shooting, not one testified in support of appellant’s version of how the shooting occurred. To the contrary, all of the testimony was to the effect that the deceased was not drunk, had used no loud or profane language, made no threats, was not in a belligerent mood. None of the witnesses testified to any misconduct on the part of Thomas. Not one witness testified that he saw a gun or any other weapon on Thomas either before or after he was shot. In fact, there was testimony which would have supported a conclusion that the deceased was shot while leaning upon a table with both hands, talking to a patron cf the tavern.

Josie Carter, one of the patrons who was hit by a stray bullet, testified that appellant offered to pay her doctor bill, stating, “I didn’t go to shoot you.” However when she asked, “Why did you shoot that other boy?”, appellant replied, “I meant to shoot him.”

The state of the record being thus, it cannot be said that the trial court erred in giving an instruction on first degree murder and in refusing to give an instruction on involuntary manslaughter.

As to the question of whether the information was void under Amendment 21, it is admitted that the name of the prosecuting attorney was written on the information with a typewriter, followed by the typewritten word “by” and then signed by the deputy prosecuting attorney. Appellant contends this was error.

Section I of Amendment 21 is as follows:

“Prosecution by Indictment or Information. All offenses heretofore required to be prosecuted by indictment may be prosecuted either by indictment by a grand jury or information filed by the Prosecuting Attorney.”

In Johnson v. State, 199 Ark. 196, 133 S. W. 2d 15, this court held:

“It will be observed that the prosecuting attorney, in filing information, takes the place of the grand jury. It has been said that this is a great power carrying with it possibilities of great oppression if improperly used. There is some conflict in the authorities, but we are of opinion that under the above amendment to the Constitution [Amendment 21, supra], information charging one with a crime must be filed in the name of the prosecuting attorney. It is true that it is generally said that a deputy prosecuting attorney, legally appointed, is generally clothed with all the powers and privileges of the prosecuting attorney, but he must file the information in the name of the prosecuting attorney. In other words, it is the prosecuting attorney that is given the authority to file information, and not the deputy prosecuting attorney. The deputy, of course, may. file information in the name of the prosecuting attorney, but he signs the name of the prosecuting attorney, and then his name as deputy.” [Emphasis ours.]

In our view, there is no real distinction or deviation from normal practice in typing the name of the prosecuting attorney rather than writing it. Lesser-Goldman Cotton Co. v. Hembree, 163 Ark. 88, 259 S. W. 5; Leach v. Bald Knob State Bank, 163 Ark. 91, 259 S. W. 3. There is certainly no misuse of power for a deputy to file in-formations in the name of the prosecuting attorney, nor in the case at bar was there any action by the deputy repugnant to the holding in Johnson v. State, supra. The irregularity which the court spoke against in that case was the deputy’s signing his own name rather than that of the prosecuting attorney. We concede that this practice would be error but such is not the situation in the present case. Here the name of the prosecuting attorney rather than the deputy appeared in the information and the deputy merely signed for him in compliance with Amendment 21.

From what has been said relative to the points argued, and after a careful consideration of the assignments not argued, we find no error. The judgment is therefore affirmed.

Mr. Justice Holt disqualified.


text:
    Fields v. State.
    5052
    363 S. W. 2d 905
    Opinion delivered January 14, 1963.
    [Rehearing denied February 11, 1963.]

      George Holmes and Randall L. Williams, for appellant.

      Frank Holt, Atty. General, by Thorp Thomas, Asst. Atty. General, for appellee.
   Carleton Harris, Chief Justice.

Appellant, Charles Franklin Fields, was convicted of the crime of rape, and his punishment fixed at death by electrocution. From the conviction and judgment entered thereon, appellant brings this appeal. Since this is a capital case, we have not only examined each allegation' of error set up in the motion for new trial, but have, likewise, scanned the transcript, noting each objection made during the course of the trial.

Appellant, an inmate of the State Penitentiary at Tucker Prison Farm, served as a “trusty”. On January 15, 1962, Fields escaped, and, while at large, forced his way into the home occupied by the prosecuting witness, Mrs. Myrtle Taylor. According to the evidence, Mrs. Taylor was sitting in a chair, watching television, together with her four-year-old son. Her other children were at school and her husband was away from the home. Mrs. Taylor testified that Fields had a pistol in his hand, and that “He told me to be quiet and to do as he told me and I wouldn’t get hurt, but if I didn’t that he would kill me because he had just killed a man and what he was going to do now wouldn’t be any worse than what he had already done. * * * He pointed the gun at me and asked me if there was any place we could go and I told him ‘No’ and he said, ‘then it will have to happen right here in front of your son.’ ” Appellant then pushed Mrs. Taylor into the bedroom, and raped her. Thereafter, he made a cup of coffee, and searched for clothes that he could wear. In a short time, Mr. Taylor returned home, and Fields forced Mrs. Taylor out of the house, into the open, where her husband could see her, while he (appellant) remained behind the house. According to the testimony of the witness, she told her husband, “There is a man here that wants the keys to our truck ... if you don’t give him the keys he will kill me. ’ ’ Mr. Taylor then threw the keys to Fields, and the latter got in the Taylor truck and drove away. Mr. Taylor verified his wife’s testimony as to the events occurring after he reached the house.

Mrs. Taylor, who according to the evidence, was hysterical, was taken to the hospital, where she was examined by Dr. Charles Eeid, a physician of Pine Bluff. Dr. Eeid testified that he found evidence of recent sexual intercourse, and that Mrs. Taylor was crying and upset and required a sedative before she could be examined or questioned intelligently.

Other facts, hereinafter mentioned, served to substantiate the charge placed against appellant. The aforementioned evidence was sufficient to sustain a conviction ; in fact, the uncorroborated testimony of Mrs. Taylor, standing alone, under our decisions, was sufficient proof to justify the jury in finding that appellant had sexual relations with Mrs. Taylor by force and against her will. See Hodges v. State, 210 Ark. 672, 197 S.W. 2d 52, Bradshaw v. State, 211 Ark. 189, 199 S. W. 2d 747.

Appellant moved to strike that portion of the testimony given by Mrs. Taylor, wherein she stated that Fields said that he “had just killed a man, and what he was going to do now wouldn’t he any worse than what he had already done.” The court, over objections, admitted this testimony for the purpose of showing the intent and design of Fields. No error was committed in admitting this evidence. Certainly, the statement was a threat to the prosecuting witness of what would happen to her if she did not submit to his desires, and, for that matter, a rapist might well make such a remark, irrespective of whether it was true, as a way of frightening his intended victim. This was not a matter of admitting irrelevant evidence as a means of showing a criminal disposition, but rather, the statement was pertinent to the issue of whether Fields forced Mrs. Taylor to have intercourse with him.

It is asserted that the court erred by permitting Dr. Eeid to testify as to the emotional condition of the prosecuting witness at the time of his examination, but the assignment is without merit, for we held contrary to this contention in Snetzer v. State, 170 Ark. 175, 279 S. W. 9.

Appellant was overtaken and arrested shortly after he left the Taylor home, at which time he surrendered his pistol to the sheriff. While in the car with the officers, Fields was asked by Deputy Sheriff Buck Oliger of Jefferson County if he had raped Mrs. Taylor. Oliger testified that appellant answered, “If she said I did, I did.” Oliger also testified that he (Oliger) told appellant that Mrs. Taylor had said that he raped her twice, and Fields replied, “No, only once.” This evidence was objected to by appellant, but the court admitted the testimony solely for the purpose of identifying Fields as the man charged with rape. The statements were admissible. Prior to the taking of the evidence before the jury, the court had retired to chambers and heard testimony as to the voluntary nature of the statements. We have approved this procedure. Brown v. State, 198 Ark. 920, 132 S. W. 2d 15, McClellan v. State, 203 Ark. 386, 156 S. W. 2d 800. According to the testimony, the statements were entirely voluntary; in fact, there is no evidence anywhere in the record of threats, duress, intimidation, or mistreatment of any nature. Nor is there evidence of any promise of immunity from prosecution, or leniency, as an inducement to Fields to make the statements. While the court limited the evidence to identification of appellant, the testimony was actually allowable in a broader sense. We have held that any voluntary admission, tending to connect a defendant with a crime charged against him is admissible in evidence. McMillan v. State, 229 Ark. 249, 314 S. W. 2d 483, Smith v. State, 230 Ark. 634, 324 S. W. 2d 341.

During the examination of Gerald Taylor, husband of Myrtle Taylor, counsel for appellant asked the witness if he planned to file suit against the State of Arkansas for damages. The court would not permit the witness to answer the question, but Taylor replied, “I can’t answer that. ’ ’ Appellant asserts that he was attempting to show that the outcome of the instant case would have a material effect on a civil claim for damages against the State of Arkansas (based on the alleged attack on Mrs. Taylor). From appellant’s brief,

“If in fact a suit was planned or contemplated, the credibility of both the Taylors testimony would be lessened considerably because of their monetary interest in the civil action. If such action was planned by the Taylors, this fact should have been given to the jury and the evidence weighed by the jury along with the other evidence of the Taylors.”

It is unnecessary that we determine whether the question, or any answer that might have been given, was, or would have been, relevant, or admissible in the case before us, for no objection was made to the trial court’s ruling. In order for this court to consider the alleged error, it was necessary that an objection be made. As we stated in Jenkins v. State, 222 Ark. 511, 261 S. W. 2d 784:

“Appellant also argues the court erred in one of the instructions on the question of insanity, because it erroneously assumed appellant killed deceased. The record affirmatively discloses that no objections were made by either side to any instructions given by the court. Although Ark. Stats., § 43-2723, provides that in capital cases there need not be any exceptions saved to the rulings of the court, we have repeatedly held that objections must be made to the proceedings complained of, and that there can be no reversal on account of the giving of an erroneous instruction which was not objected to in the trial court. (Citing cases) This same rule is applicable to appellant’s contention that the court erred in permitting two witnesses on rebuttal to testify that appellant had requested a roadhouse band to play ‘Shotgun Boogie’ shortly before the killing. There was no objection to this and other testimony which the appellant now contends was erroneously admitted.”

The court gave fifteen instructions, including one (No. 10), which was requested by the appellant. A general objection was made to the other fourteen instructions. A general objection, of course, is only sufficient if an instruction is inherently erroneous; otherwise, it is necessary that the error of an instruction be specifically pointed out, in order that the trial court may have an opportunity to make any necessary corrections. Rutledge v. State, 222 Ark. 504, 262 S. W. 2d 650. Actually, the instructions appear to be entirely correct and proper; certainly, none can be classed as inherently erroneous.

As stated at the outset, inasmuch as this is a capital case, we have explored the record and given consideration to each objection made by appellant during the trial.

Finding no errror, the judgment is affirmed.

Mr. Justice Holt disqualified.

       Fields’ assignment at the prison farm consisted of feeding and caring for hogs located in an area near the back boundary or southeast side of the farm. He was permitted to carry a weapon for the purpose of protecting the stock from stray dogs that had been killing some of the young pigs. On the date in question, appellant simply walked away from the prison farm, with a pistol in his possession.

       The door was fastened by a latch, but Fields kicked it open. From the testimony of Mrs. Taylor, “Q. What brought your attention to the defendant Fields? A. My door being suddenly kicked open, the noise, he was inside the house when I first, at the first commotion the door was just suddenly busted open and there he stood.”

       The sheriff, together with a deputy, and the prison superintendent, were already in the vicinity, looking for Fields, and they observed him driving away from the Taylor home in the truck. Mr. and Mrs. Taylor were standing in the yard, and after a brief conversation with the Taylors, the officers started in pursuit. Appellant wrecked the vehicle, after driving about three miles, attempted to escape on foot, and was endeavoring to enter a house when the officers apprehended him. Fields threw his pistol into the air, and the sheriff picked it up off the ground.

         It is not clear from the record whether Taylor was stating that he did not know whether he would make a claim against the state, or whether his answer was based upon the court’s ruling.


text:
    Kersten v. Black.
    5-2856
    364 S. W. 2d 150
    Opinion delivered January 14, 1963.
    [Rehearing denied February 18, 1963.]

      A. James Linder and James M. Barker, Jr., for appellant.

      Williamson, Williamson & Ball, for appellee.
   Ed. F. McFaddin, Associate Justice.

This is a controversy, between appellant who claims “a common law lien,” and appellee who has a mortgage lien. Appellee, M. O. Black, is the father of James L. Black, who farmed lands rented from several owners. On August 28, 1960, James L. Black executed, acknowledged, and delivered to M. O. Black a mortgage to secure a note of $7,000.00 and all other advances. The mortgage was duly recorded the same day, and was on the then growing 1960 rice crop and soybean crop of James L. Black. The rights of M. O. Black under this mortgage form the basis of the present suit. The appellant, W. F. Kersten, is a feed and fertilizer merchant in Ashley County, and also a purchaser of rice and soybean crops. In 1960 James L. Black purchased rice and soybean seed and fertilizer from Kersten, apparently on open account; and at the time of the harvest season, the balance due by James L. Black to Kersten was $3,767.54. Kersten testified that James L. Black promised to pay Kersten the furnish account out of the proceeds of his 1960 crop; and such promise is an ingredient of appellant’s claimed common law lien.

When James L. Black’s 1960 rice crop was harvested and the rent paid, the remaining proceeds were insufficient to pay M. O. Black, and there was left a sizable balance. Then came the 1960 soybean harvest. Kersten purchased the soybean crop from James L. Black, and promptly in turn sold it to others in New Orleans and elsewhere. After Kersten paid the rent due the landowners there remained in Kersten’s hands $10,-869.46 proceeds of the soybean crop. By three checks in November 1960, Kersten disbursed to James L. Black a total of $800.00. On November 29, 1960, Kersten paid the appellee, M. O. Black, $5,500.00 as a part of the proceeds of the soybean crop; and from said amount, M. O. Black paid the Farm Home Administration $4,852.42, as the balance due on the James L. Black first mortgage, and retained the remaining $647.58 to apply on the indebtedness that James L. Black owed M. O. Black. On January 11, 1961, Kersten paid M. O. Black the further sum of $1,000.00 from the proceeds of the soybean crop. There remained in the hands of Kersten the sum of $3,569.46 as the balance of the soybean crop; and it was for the recovery of this amount that M. O. Black filed the present suit. Kersten claimed and testified that James L. Black owed him a total of $3,767.54, which was $198.08 more than the $3,569.46 that Kersten held in his hands as the balance of the proceeds of the soybean crop; and Kersten claimed the right to retain the $3,569.46 by virtue of a “common law lien.”

The Trial Court held that Kersten had a common law lien on the proceeds of the soybean crop, but had waived his common law lien in favor of appellee’s mortgage lien. From such holding as to the waiver, Kersten brings this appeal, claiming that there was no sufficient evidence to establish a waiver. To answer Kersten’s contention, the appellee claims (a) that his mortgage lien is superior to any common law lien that Kersten might claim; and (b) that if Kersten ever had any common law lien, he lost it by disposing of the soybeans, and also by recognizing the superior rights of M. O. Black’s mortgage.

I. The Lien of The Mortgage Held By M. O. Black. The mortgage from James L. Black to M. O. Black was duly executed, acknowledged, filed for record, and recorded on August 25, 1960. Under our statutory law, M. O. Black had a lien from that date which was notice to all the world. Section 51-1002 Ark. Stats, reads:

“Every mortgage, whether for real or personal property, shall be a lien on the mortgaged property from the time the same is filed in the recorder’s office for record, and not before; which filing shall be notice to all persons of the existence of such mortgage.”

Section 51-1004 Ark. Stats, reads:

“All mortgages executed on crops already planted, or to he planted, shall have the same force and effect to bind such crops and their products, as other mortgages now have to hind property already in being.”

Thus the lien of M. O. Black was superior to any subsequently acquired lien.

II. The “ Common Law Lien” of Kersten. Appellant claims that he had a “common law lien” on the 1960 soybean crop of James L. Black for all that Kersten furnished to enable Black to plant, cultivate, harvest, and market the said soybean crop; that such lien arose from possession; and that when Black delivered the soybeans to Kersten the “common law lien” became superior to the mortgage lien of M. O. Black, regardless of the fact that M. O. Black’s mortgage was of record prior to the delivery of the soybeans to Kersten. In Driver v. Jenkins, 30 Ark. 120 (1875), Mr. Justice Walker said of a common law lien: ‘' The lien rests upon the idea, that the party having it has a right in, or to, the property until his claim has been paid or satisfied by the owner of the property.” But when Kersten received possession of the soybeans (as purchaser and subsequently to be noted), even then there was of record the mortgage of M. O. Black, and Kersten’s claim was subject to the paramount right of that mortgage: so Kersten’s right, if any, could not become superior to the mortgage held by M. O. Black.

There are also other answers to the appellant’s claim. Under any concept of the “common law lien,” it arose only when possession was obtained, and existed only so long as possession was retained. Kersten did not take possession as a lien claimant, but as a purchaser of the soybeans. He promptly sold the soybeans and parted with possession, and thereby lost whatever common law lien he might ever have enjoyed. There is also the matter of the recognition of M. O. Black’s superior rights, on which point the Chancellor rested his opinion; and we find that ground to be sound. The evidence established that when Kersten paid M. O. Black the $1,000.00 in January 1961, Kersten promised to pay M. O. Black the balance of the proceeds of the soybean crop. This promise was clearly a recognition of the superior right of M. O. Black to the proceeds of the soybean crop.

A treatise of considerable length could be written on this matter of common law liens and how far they have been affected by statutory liens; but we summarize from our own holdings. In Bennett v. Taylor, 185 Ark. 794, 49 S. W. 2d 608, after reviewing our earlier cases, we said: “Indeed, we are of the opinion that the only common-law lien that has been recognized by the statutes or courts of this state is that which was recognized at common-law as artisans ’ lien by which a chattel which had been improved or repaired was impressed with a lien in favor of the workman so long as it remained in his possession. Gardner v. First National Bank, 122 Ark. 464, 184 S. W. 51.”

We conclude that the decree in favor of M. O. Black was correct; and it is affirmed.

Holt, J., not participating.

       James L. Black was originally made a defendant in this case; but he filed a voluntary petition in bankruptcy on April 29, 1961 and obtained his discharge in bankruptcy on June 30, 1961.

       Learned counsel for appellants succinctly states Kersten’s contention as to the “common law lien”; “. . . we feel it imperative to determine the nature of the right of lien. The authorities are almost unanimous in holding that the right of lien is not property right, neither a jus ad rem, nor a jus ad re. It is a personal prerogative or power that attaches to a person called a lienholder, which he may or may not exercise in order to retain possession of goods of his debtor until certain charges are met. Driver v. Jenkins, 30 Ark. 120; Burrow v. Fowler, 68 Ark. 178; Ruggles v. Walker, 34 Vt. 468; McCombie v. Davis (K.B. 1805), 7 East 5, 103 Eng. Reprint 3; Brown On Personal Property, Sec. 120 at Page 533. The right of a lien does not arrive until lienor accomplishes possession of the subject matter of the lien, and when this is accomplished, the duration of the lien is measured by the duration of the possession. Burnett v. Mason, 7 Ark. 253; Driver v. Jenkins, supra; Burrow v. Fowler, supra; Weber Implement and Auto Company v. Pearson, 132 Ark. 101. Thus, the authorities show that the lien at common law is founded upon the conception of possession and is highly personal in its nature.”

       For similar definitions of a common law lien see 33 Am. Jur. 425, “Liens” § 16; 37 C.J. 307, “Liens” § 3; 58 C.J.S. 836, “Liens” § 3; and Jones on Liens, 3rd Ed. § 3.

       See 33 Am. Jur. 434, “Liens” § 29; 37 C.J. 325 and 330, “Liens” § 33 and § 46; and 53 C. J. S. 853 and 859, “Liens” § 8 and § 12.

       In addition to the articles on liens in American Jurisprudence, Corpus Juris, and Corpus Juris Secundum, previously mentioned, there is also the volume, “Jones on Liens.” Some of our own cases not previously mentioned are worthy of study: Barnett v. Mason, 7 Ark. 253; Roberts v. Jacks, 31 Ark. 597; and Burrow v. Fowler, 68 Ark. 178, 56 S. W. 1061. Also we mention the following: 37 Mich. Law Review, p. 283: “Extent to which common-law artisan’s lien has been supplanted by statute”; note in 50 L.R.A. 719, “Liens depending on possession”; Sweet v. Pym, 16 Eng. Rul. Cases 142, and the English and American notes following the case. In Case and Comment for November-December 1957 (Vol. 62, No. 6), page 34, there is a most interesting article entitled, “Joseph Story’s Unsigned Article on ‘Common Law Liens,’” written by John Charles Hogan.