text:
    Benefit Assn. of Railway Employees v. France.
    5-1460
    310 S. W. 2d 225
    Opinion delivered February 24, 1958.

      Bethell & Pearce and Laivson Cloninger, for appellant.

      Robert R. Cress, Tulsa, Okla., and Theron Agee, for appellee.
   Sam Robinson, Associate Justice.

Appellee, Otis France, filed this suit against appellant, Benefit Association of Railway Employees, to recover on a policy of accident and health insurance. There was a judgment for France, and the insurance company- has appealed. For reversal appellant argues three points, namely, (1) failure of the insured to give proper notice of the alleged injury, (2) insufficiency of the evidence to prove total disability continuously within ten days of the accident and (3) that the action was filed prematurely.

The policyholder was a railway brakeman. On the night of the 23rd day of February, 1955, he was riding in the cupola of the caboose attached to a freight train, when the train collided with a truck heavily loaded with oil. Immediately following the collision, appellee went to the hospital in an ambulance along with the fireman, who had been injured in the wreck, and appellee claims that at that time he had his head dressed for injuries he received. He returned to work the next day and reported for work with considerable regularity until the 19th of April, at which time he went to a hospital and later notified the insurance company that he had been injured in the train wreck of February 23rd. The insurance company accepted his proof of loss, although it contends that it was paying him indemnity for disability due to tick fever .rather than any injuries received, and paid the insured indemnity at the rate of $80 per month for a period of six months, which is the limitation provided by the policy for' liability of the company for disability due to illness., ' The insured filed suit, alleging that he was totally disabled due to accidental injuries within the meaning of the policy from the time of the train wreck; that he was still totally disabled by reason of his alleged injuries, and that the insurance company is indebted to him for indemnity at the rate of $80 per month during the total time of such disability.

The policy provides: (Part IY, Section (a)) “When ‘such injury’ shall, independently of any and all other causes, within ten (10) days of the happening of the accident, totally and continuously disable the Insured and prevent the Insured from performing' any and every kind of work or occupation for wages or profit,, the Association will pay for actual loss of time from the date of first medical treatment, while so disabled, for the period of such. continuous total disability,, not exceeding twenty-four (24) consecutive months, : Accidental Indemnity at the rate per month.specified in Part I.”

(Part IV, Section (b)) “Or, if ‘such injury’ shall not within ten (10) days from the date of the accident wholly disable the Insured, but shall within Ninety (90) days thereafter wholly disable him, or shall, commencing on the date of the accident or immediately following total loss of time, prevent him from performing a substantial part of the duties of his occupation, the Association will pay for such period of continuous partial disability or such delayed total disability at the rate of one-half (1/2) the monthly Accident Indemnity, not exceeding three (3) months.”

The first point to be considered is whether, there is substantial evidence to support the jury verdict .that the insured was totally disabled continuously within ten days of the time the injuries occurred. This was a question of fact to be resolved by the. jury. Pacific Mutual Life Ins. Co. v. Dupins, 188 Ark. 450, 66 S. W. 2d 284. If there is any substantial evidence to sustain the jury verdict, it must be affirmed, and the evidence must be viewed in the light most favorable to the appellee. Pate v. Fears, 223 Ark. 365, 265 S. W. 2d 954.

Appellee testified that although he returned to work the day following the collision he did so because he had to support his family; that he was suffering great pain, and others assisted him with his work, and that he could do no physical work such as the job required. It was shown that during the whole time he attempted to work he suffered pain and that he was actually unable to do the work required by his job, and that other members of the train crew assisted him and relieved him from doing the heavy lifting required by the job in unloading freight, etc. The evidence is convincing that when the insured went to the hospital along in April he had a ruptured intervertebral disk and that this condition was caused by the train wreck of February 23rd. The appellee had worked for the railroad company for years and had carried his policy with the insurance company since 1949. There is absolutely no evidence that he had suffered with any back trouble whatever prior to the train wreck of February 23rd. Moreover, it is undisputed that he now has a ruptured disk; that he had the ruptured disk when he was examined in April; and expert testimony was introduced to the effect that the nature of the injuries he received in the train wreck was sufficient to cause a ruptured disk.

In reaching a conclusion as to whether there is substantial evidence of total disability during the first ten days following the injuries, we must consider the meaning of the term “total disability” in a policy of accident and health insurance. In Aetna Life Ins. Co. and Pacific Mutual Life Ins. Co. v. Orr, 205 Ark. 566, 169 S. W. 2d 651, it is" pointed out that an injury which might totally incapacitate a person engaged in one occupation might not totally disable another person engaged in a different occupation. And the court quotes from Aetna Life Ins. Co. v. Spencer, 182 Ark. 496, 500, 32 S. W. 2d 310: “ ‘Total disability is generally regarded as a relative matter which depends largely upon the occupation and employment in which the party insured is engaged. This court has held that provisions in insurance policies for indemnity in case the insured is totally disabled from prosecuting his business do not require that, he shall be absolutely helpless, but such a disability is meant which renders him unable to perform all the substantial and material acts of his business or the execution of them in the usual and customary way’.”

Among the cases relied on by appellant is Southern Surety Co. v. Penzel, 164 Ark. 365, 261 S. W. 920. There the insured developed blood poisoning three days after receiving an injury. The court points out that blood poisoning is caused by a foreign substance entering the blood and the time when it develops would depend both upon the condition of the blood and the nature of the foreign substance entering it. There was no showing that the insured suffered any disability whatever during the first three days, whereas in the case at bar there is substantial evidence that the insured was totally disabled within the meaning of the policy of insurance immediately following the collision, and that such a disability continued thereafter. And in Lyle v. Reliance Life Ins. Co., 197 Ark. 737, 124 S. W. 2d 958, it was held that the insured did not make out a case of total disability when he continued to work at his regular job, without the aid of others, to the satisfaction of his employer. Here it is shown that the insured was able to continue his employment only with the aid of his fellow employees.

In Mutual Life Ins. Co. of N. Y. v. Dowdle, 189 Ark. 296, 302, 71 S. W. 2d 691, it is said: “One is ordinarily able to perform the duties of his employment, or he is unable to do so; and the fact that indulgent relatives might continue compensation for partial performance is not the final test of capacity, but is only a circumstance to be considered along with all other testimony. Nor does the law require one to perform duties at the peril of his life or health, nor to perform them if their performance entails pain and suffering which a person of ordinary prudence and fortitude would be unwilling and unable to endure.”

In Pacific Mutual Life Ins. Co. v. Dupins, 188 Ark. 450, 454, 66 S. W. 2d 284, the insurance company contended that the insured was not totally disabled prior to July 15, 1931, because up to that time he was engaged in light work in railroad shops. The court said: “* * * This is not a conclusive test of total and permanent disability, as has many times been held by this court.” And the court quotes from Industrial Mutual Ind. Co. v. Hawkins, 94 Ark. 417, 127 S. W. 457, as follows: “ ‘ Total disability exists, although the insured is able to perform occasional acts, if he is unable to do any- substantial portion of tbe work connected with .Ms occupation’.”

Tbe court further said (in the Dupins case): “Again we beld in Mutual Benefit H. & A. Association v. Bird, 185 Ark. 445, 47 S. W. 2d 812, that, altbougb tbe insured endeavored to do some work, this was not tbe exclusive test to be applied. • Tbe true test seems to be that total disability exists where tbe injuries are of such character and degree as to wholly disable tbe insured from doing all tbe substantial and material acts necessary to be done in tbe prosecution of bis business, and when common care and prudence would require a man in bis condition to desist from tbe kind of labor be bad performed prior to bis injury. When tbe rule is thus stated and analyzed, it will be seen that tbe mere fact that the insured performs certain labor, when common care and prudence require otherwise, does not of itself demonstrate a lack of total disability. This exact question was again before this court in Missouri State Life Ins. Co. v. Johnson, 186 Ark. 522, 54 S. W. 2d 407, wherein tbe doctrine, as heretofore stated, was reannounced and approved.”

In Occidental Life Ins. Co. of Calif. v. Sammons, 224 Ark. 31, 33, 271 S. W. 2d 922, 923, the policy bad a clause providing that indemnity would be paid only “if tbe insured is absolutely unable to leave the bouse and yard”. Tbe insured filed suit, alleging be was disabled within tbe meaning of tbe policy. It was shown by stipulations and testimony, and the trial court, sitting as a jury, found: “(1) that during tbe entire period for which plaintiff seeks recovery herein, tbe plaintiff followed tbe practice of leaving bis bouse and tbe yard situated immediately around tbe bouse frequently for tbe purpose of taking rides, walking for recreation and visiting with friends at various places of business, but that all such activities were engaged in upon the advice of Dr. J. N. Compton, plaintiff’s physician; (2) that tbe plaintiff did not engage in any remunerative work during tbe period for which be seeks recovery herein until the year 1950 during which year he worked a few Saturdays hut such work was irregular; that he worked between November 11, 1950 and December 30, 1950 and earned by reason thereof $180.00, and that since that time he has worked as an extra salesman; (3) that the plaintiff became ill of heart disease and that his heart condition will not substantially improve, and that plaintiff will never be able to resume full time work as a clothing salesman; (4) that the work which the plaintiff did was all done upon the advice of his physician. ’ ’ .

The court points out that whether the insured was disabled within the meaning of the policy was a question for the jury and that Arkansas, along with about 27 other states, applies a ‘‘.liberal” construction to policies of disability insurance, whereas other states have adopted the “literal” view. Here we cannot say.there is no substantial evidence to sustain the jury’s verdict that the insured was totally disabled within the first ten days following his injuries.

The next proposition is whether the insured gave notice of his disability according to the terms of the policy. The policy provides: (Paragraph (4) of Standard Provisions) “Written notice of injury or .of sickness on which claim may be based must be given to the Association within twenty (20) days after the date of the accident causing such injury or within ten (10) days after the commencement of disability from such sickness. In event of accidental death immediate notice thereof must be given to the Association.”

(Paragraph (5) of Standard Provisions) “* * * Failure to give notice within the time provided in this policy shall not invalidate any claim if it shall be shown not to have been reasonably possible to give such notice and that notice was given as soon as was reasonably possible.”

As heretofore pointed out, the insured continued to try to work after he received the injury. He thought his trouble was merely a sprained back and that he would improve, but Ms condition grew steadily worse, and be was compelled to go to tbe hospital in St. Louis. While there he sent the insurance company a notice of his disability. The notice stated that he had been injured while working as a brakeman on February 23rd and that he quit work on April 19th. Upon receipt of this notice, the insurance company sent him forms upon which to make his proof of disability. One side of the form was to be filled in by the insured and the other side by his attending physician. There was also a place for the employer to show loss of time. In the insured’s statement on his proof of disability form, he says that his disability is due to a back injury he received while working as a brakeman on a train when the train collided with a truck. In his statement, the doctor gave a “Diagnosis of ILLNESS or nature of INJURY — Acute Tick Fever”. Incidentally, an insect bite has been held to be an injury within the meaning of a policy of accident and health insurance. Omberg v. U. S. Mut. Assn., 101 Ky. 303, 40 S. W. 909. The doctor stated, also, that there was a “Low Back Injury”. The proof of loss was received by the insurance company June 3 (1955) and the insured was then paid for two months’ disability. Thereafter in each statement the insured furnished the insurance company as proof of his disability, he said he Avas injured in the train wreck of February 23rd. On the 20th day of June, Frisco Employees’ Hospital Association furnished a statement to the insurance company, giving a diagnosis of the cause of insured’s disability as “Compression fracture, Old L-2-3. Old Herniated Disk, L-5”. The insurance company continued to pay the insured $80.00' per month for six months. Payments were then discontinued on the theory that the insured’s disability was due to tick fever, which condition the company claims is an illness.

The company contends that the insured cannot recover for the injuries he received on February 23rd because notice of such injuries Avas not given in accordance with the terms of the policy. True, the policy provides that the notice must be given Avithin twenty days of the time the injury was received, but the policy further provides that “Failure to give notice within the time provided in this policy shall not invalidate any claim if it shall be shown not to have been reasonably possible to give such notice and that such notice was given as soon as was reasonably possible.” The-question is, did the insured give notice as soon as was reasonably possible to do so? It will be recalled that for about two months following his injury, he continued to try to work. He did not realize that he had a “compression fracture and herniated disk” in his spinal column, hut just as soon as he discovered what was causing his disability he promptly notified the insurance company. Although the company claims to have been paying the insured because of tick fever, the insured had said from the time of the filing of the first notice of disability that his condition was due to injuries, and the hospital had given the insurance company notice on June 20th that the disability was due to “compression fracture and herniated disk”. True, this report describes the fracture and ruptured disk as “old”, hut the report was dated June 20th, and the injuries had been received on February 23rd. There is no showing that “old” was intended to mean more than four months old.

In its contention that the insured failed to give notice of his injury in accordance with the terms of the policy, appellant relies heavily on the case of Business Men’s Assur. Co. v. Selvidge, 187 Ark. 1040, 63 S. W. 2d 640. In that case the insured claimed to have lost an eye on the 12th day of August, 1932. Notice was not given to the insurance company until November 12,1932. The court held that the late notice was due to the negligence of the insured and was not given as soon as reasonably possible. That case is easily distinguished from the case at bar. There the insured knew of the loss of his eye when it happened and it was three months later that he gave notice to the insurance company. Here the insured thought that he had a sprained hack which would improve, and he continued to try to work. It was only when the condition did not improve and he was compelled to go to a doctor that he discovered that he had a ruptured disk and fractured vertebra. Appellant also cites Commercial Fire Ins. Co. v. Waldron, 88 Ark. 120, 114 S. W. 210, but that case has no “reasonably possible” clause, and this was also the case in Pacific Mutual Life Ins. Co. v. Butler, 190 Ark. 282, 78 S. W. 2d 813.

The purpose of giving notice of a claim of disability is to furnish the insurance company an opportunity to investigate. National Casualty Co. v. Johnson, 226 Ark. 737, 293 S. W. 2d 703. In the case at bar when the insured notified the insurance company on June 3rd that he had been injured in a train wreck on Febimary 23rd, the insurance company immediately began making payments to indemnify the insured for his disability, although the insurance company stated that they were paying him for tick fever, as had been reported by the doctor. The insured had given notice of his injuries and had furnished the information as to the time and place that he received the injuries, and it will be recalled that on June 20th the hospital gave the insurance company notice that the insured was disabled due to a ruptured disk and a compression type fracture. Upon receipt of all this information the insurance company continued to pay the insured the full $80.00 per month for a six months period.

In Pacific Mutual Life Ins. Co. v. Dupins, 188 Ark. 450, 455, 66 S. W. 2d 284, there was a provision in the policy for giving notice, almost identical with the provision in the policy in the case at bar. There, on September 11th appellant notified the insurance company that he was suffering a total disability which began prior to July 15, 1931. The court said: “The question as to whether or not appellee gave the notice as soon as was reasonably possible was submitted to the jury as a question of fact, and its findings in behalf of appellee should be sustained, if supported by substantial testimony. On this question appellee testified that he did not know that he had tuberculosis until immediately prior to the institution of this suit; that the first information he had came from his physician at that timé.” Likewise, in the case at bar appellant did not know that he had a ruptured disk and fractured vertebra until he went to a doctor along about the middle of April, and upon learning what his injuries consisted of, he notified the insurance company. In these-circumstances there was substantial evidence to 'support the jury finding that the insured gave notice of his disability as soon as reasonably possible.

The policy, provides that no action at law or' in equity shall be brought to recover on the-policy prior to the expiration of sixty days after proof of. loss has been filed.- Appellant contends that at the time suit was filed, June 18, 1956, the insured had not notified the company of his disability beginning' on February 23, 1955. On June 3, 1955, the insured gave notice that he had been injured in an accident on February 23rd. In response to this notice, the insurance company furnished him forms on which to make his proof- of loss, and there the policyholder clearly states that he had a back injury as a result of a train wreck on the 23rd of February, and the doctor also gives the information that the insured has a “low back injury” .and on June 20th the Hospital Association gave the insurance company information that the insured had a compression fracture and a herniated disk.

In American Central Lf. Ins. Co. v. Palmer, 193 Ark. 945, 104 S. W. 2d 200, the court held that' the proof of disability is sufficient if it justifies the presumption of disability to an intelligent judgment, reasonably and fairly exercised. We think the case at bar fits that picture. . Here the insured had been- in a train wreck and it was determined that as a result thereof he had a ruptured disk and fractured vertebra. The insurance company furnished forms on which to make the proof of loss, accepted such proof, and made monthly payments to the insured. We do not believe the suit was filed prematurely.

Affirmed.


source: Caselaw Access Project

author:
Nabors Shaw, Special Associate Justice.
      Paul Ward, Associate Justice,

license: Public Domain

text:
    Farris v. Ark. State Game & Fish Comm.
    5-1293
    310 S. W. 2d 231
    Opinion delivered February 24, 1958.

      Charles A. Walls, Jr.; Bailey, Warren & Bullion, Charles A. Broton and William and Williamson, for appellant.

      Ed E. Ashbaugh, Neill BoMinger and Wood & Smith, for appellee.
   Nabors Shaw, Special Associate Justice.

The question here presented is the power of appellee, Arkansas State Game and Fish Commission, to prohibit the sale of game fish raised by appellants in their vocation of fish farming in their privately owned reservoirs.

Appellants are two, of many persons, who have become engaged in the vocation of raising dish on their privately owned lands to be marketed for profit. In order to profitably raise so called, “rough fish,” it is a recognized practice in fish farming to raise game fish in reservoirs to feed upon and reduce the number of “rough fish” so that the remaining “rough fish” will mature faster from the available vegetable and plant life in the reservoirs. It is when these cultivated fish are ready to be harvested, that the real issue is presented. The appellants contend that they should be permitted to sell the game fish just as they are permitted to sell their other fish, not classified as game: fish, and for the Commission to prohibit their sale-of game fish raised in private waters, is an infringement upon their rights as the owners of property to' such an extent that it amounts to a taking of their private property without due process of law, or for public use; and without just compensation. The Commission contends to the contrary; that it has the power to make such regulations as it deems necessary for the conservation and protection of the wild life and game of the state; and that it is a valid exercise of the police power of the state to prohibit the sale of game fish in the; furtherance of the program of conservation.

Prior to July 1, 1945, the effective date of Amendment 35 to the Constitution of Arkansas, by which the’ Arkansas Game and Fish Commission was created, the sale of game fish was regulated by the Legislature. One-of the earlier attempts on the part of the Legislature to regulate the sale of game fish was Act No. 157 of the Acts of 1925, Pope’s Digest, Section 5935. Then Act No. 151 of the Acts of 1927, and which appears as Section 47-511 of the Arkansas Statutes was enacted. This Section provided: ‘ ‘ Sale of game fish prohibited— Regulations permitting sale of game fish raised in private waters — Penalty — It shall he unlawful to sell, offer for sale, or possess for sale in this State, any game fish commonly known as black, striped, or white bass, or rock, or war-mouth,, or calico bass, crappie, bream, perch, pike, or jack-salmon. Provided, the Arkansas Game and Fish Commission may, under such rules and regulations as are necessary, issue a permit, in. writing, authorizing the sale of game fish raised in a private hatchery or private water. The fee for such privilege shall be Five ($5) Dollars per year. A violation of any provisions of this Section or of any rule or regulation promulgated hereunto shall constitute a misdemeanor and persons convicted thereof shall be fined in any sum not less than Twenty-Five ($25) Dollars, nor more than Three Hundred ($300) Dollars, and shall forfeit any permit the terms of which are violated.”

Section 1 of Amendment No. 35 Provides: “The control, management, restoration, conservation and regulation of birds, fish, game ■ and wild life resources of the State, including hatcheries, sanctuaries, refuges, reservations and all property now owned or used for said purposes and the acquisition and establishment of same, the administration of the laws now and/or hereafter pertaining thereto, shall be vested in a Commission to be known as the Arkansas State Game and Fish Commission, to consist of 8 members.” Section 8 of the amendment, further provides, “The Commission shall have the exclusive power and authority to issue licenses and permits, to regulate bag limits and the manner of taking game and fish and fur-bearing animals, and shall have the authority to divide the State into zones and regulate seasons and manner of taking game and fish and fur-bearing animals therein, and fix penalties for violations.” Section 8 further provides, “All laws now in effect shall continue in force until changed by the Commission. ’ ’

The Commission, pursuant to authority vested in it, under Amendment No. 35, adopted Article 124 of its General Rules and Regulations, which provides Sale of game fish prohibited — Penalty. It shall be unlawful to sell, offer for sale, or possess for sale in this state any game fish commonly known as black, striped or white bass, or rock-war-mouth, or calico, crappie, bream, perch, pike, or jack-salmon, except green sun fish, (commonly known as Ricefield Slicks), four (4) inches in length may be sold for fish bait only. A violation of any provisions of this Section shall constitute a misdemeanor and any person convicted thereof shall be fined in any sum not less than Twenty-Five ($25) Dollars.”

Subsequent to the promulgation of Article 124 of the General Rules and Regulations by the Commission, and subsequent to the commencement of .these two consolidated causes of actions, the Legislature enacted Act 65 of the Acts of 1957 entitled, “An Act to Define Domestic Fish and to Declare the Policy of the State in Regard Thereto.” Act-65 defined “Domestic” fish to mean fish that are spawned and raised in privately owned waters, declared such “domestic” fish to be private property of the owners of the privately owned waters, in which they are found, declares the sale of such “domestic” fish to be lawful; as of common right, not as a privilege, and then declared that the sale of “domestic” fish could not be prohibited or restricted, or licensed by the State or any of its agencies; except as was provided for in Section 3 of said Act, which Section 3 laid down a set of rules and regulations for the Game and Fish Commission to follow in permitting the sale of “domestic” fish. Section 4 of Act 65 provided that all laws and parts of laws, which are in conflict herewith are, to the extent of such conflict, hereby repealed.

Thus we have a direct conflict between Article 124 of the Commission’s Rules and Regulations, and Act 65 of the Acts of 1957. One of the principal questions presented for this court to decide is which branch of the State Government, the Legislature or the Game and Fish Commission has the power to legislate on the sale of game fish from privately owned waters!

A majority of this court has concluded that this power is now vested in the Commission as opposed to the Legislature with the Adoption of Amendment 35. The only power reserved to the Legislature is the power to appropriate moneys for the use of the Game and Fish Commission from the Game Protection Fund, and the power to increase the resident hunting and fishing license from $1.50 annually, to a greater amount. The Amendment expressly provided that all laws in effect as of July 1, 1945, would continue in force until changed by the Commission, the foremost purpose of Amendment 35, is to conserve the wild life of this state, and to place this duty with the Commission, thereby divesting the Legislature of this duty. The Amendment clearly divests the Legislature of all of its powers to conserve the wild life resources of this state, except those powers expressly reserved therein, being the power to make appropriations and to increase the annual resident hunting and fishing licenses. Amendment No. 35, by its provision, “All laws now in effect, shall continue in force until changed by the Commission,” strongly implied that the Commission, not the Legislature, is empowered to change, modify or promulgate new rules and regulations pertaining to the conservation of the wild life resources of the state. Where there is a divesting of legislative authority and an investing of constitutional authority, it is likely to give rise to many controversial matters. Although these powers may be well defined, still there is usually a gradual realization of these powers due to the few instances in which this Court is called upon to pass upon the questions of fact and to construe the applicable laws. It is noticed that only in a few instances has the Legislature, by the enactment of legislative acts other than appropriation measures, attempted to invade the powers of the Commission under Amendment No. 35; this, even though expressions direct from the Legis-¡ature are bound to have considerable influence upon tbe Commission in tbe performance of its duty to conserve tbe wild life resources in tbis state.

Tbis court lias consistently upheld the powers of tbe Commission as opposed to tbe powers of tbe Legislature in tbe field of conservation of tbe wild life resources of tbis state. In the case of W. R. Wrape Stave Company v. Game and Fish Commission, 215 Ark. 233, 219 S. W. 2d 948, we held, “The Game and Fish Commission has been given very broad discretion in determining bow wildlife shall be preserved; that Amendment No. 35 is complete within itself, and that prior Legislative Acts, whether directive or restrictive in measure, have been superseded. It seems to have been tbe purpose of those who wrote tbe Amendment to cover tbe whole subject and to either provide or leave to tbe Commission methods for reaching these ends.” This Court has upheld the powers of the Commission to enact laws different from those provided by the legislature in other instances, such as the power to fix the amount of license fees on hunting hounds, State v. V. Casey, 225 Ark. 149, 279 S. W. 2d 319, also wherein the Commission refused to recognize the validity of a 1949 legislative act which provided for counties and state to pay an equal bounty for the killing of wolves. Arkansas State Game and Fish Commission v. Edgmon, 218 Ark. 207, 235 S. W. 2d 554. Obviously, the people, by enacting this amendment, intended that the Commission should have the power to control, manage, restore, conserve and regulate the fish, game and wild life resources of the state, with the exception of the power expressly reserved to the Legislature to make appropriations and to fix the amount of the annual resident hunting and fishing license. Even though a majority of this Court is of the considered opinion that it is highly advantageous to that commendable business of fish farming to raise game fish, along with other fish, which the fish farmers are permitted to raise and market for a profit, still the Commission, through its broad discretionary powers in conservation measures, has determined that to market these game fish would hamper if not make it impossible to enforce its rules and regulations so directly concerned with carrying out its duties in the- conservation of the wild life resources of the state. The Commission is a trustee for the people of this State, charged with the duty of conserving the wild life resources. Its powers are not unlimited, but until such time as it is more clearly shown that the Commission has abused its broad discretionary powers in matters of conservation, then it cannot be contended that the Commission has exceeded the limits of its powers.

It is settled law that fish and fishing rights in waters entirely within land of a single owner, without means to migrate belong to the owner of the land. ‘ ‘ The owner of the land has a right to take fish and wild game upon his own land, which inheres in him by reason of his ownership of the soil. It is a property right, as much as any other distinct right incident to his ownership of the soil. It- is not, however, an unqualified and absolute right, but is bounded by these limitations: That it must always yield to the state’s ownership and title, held for the purposes for regulation and preservation for the public use. These two ownerships are rights • — • that is to say, the general ownership for one purpose, and .the qualified or limited ownership of the individual, growing out of his ownership of the soil are entirely consistent with each other, and in.no wise conflict.” Arkansas State Game and Fish Commission v. Storthz, 181 Ark. 1089, 29 S. W. 2d 294; State v. Mallory, 73 Ark. 236, 83 S. W. 955. The owner is free to do whatever he desires to do with such game fish, just as long as he does not undertake to use them in such a manner as would conflict with the purposes of the general ownership of the state; which purposes are to regulate and preserve the wild life resources of the state for the people. Here the Commission has determined that for the owners of game fish raised in their privately owned waters to be permitted to sell them, would inevitably create an enforcement problem. The opinion of the learned trial judge in this respect is amply supported by the evidence.

It is contended by appellants that the Commission by its Regulation, Section F, has determined that, “It shall be unlawful for any person to abandon or to permit to go to waste the edible portion of any game or fish in this state at any season of the year;” That this is likewise a regulation promulgated by the Commission and in the same category as the regulation prohibiting the sale of game fish. As previously stated, the powers and authority of the Commission are not unlimited. The Commission must exercise its powers in a reasonable and just manner. It cannot arbitrarily make rules and regulations in complete disregard of the property rights of others without some real basis, which has a direct relationship with the purpose to conserve the wild life resources of this state. In view of the evidence in these causes, it is clear that the enforcement of Regulation F would work an extreme hardship on those engaged in the vocation of fish farming, subject them to unreasonable penalties, and would result in an artibrary taking of their property without due process of law; therefore, Regulation F in so far as it affects the fish farmers, is invalid. By so holding the Court does not mean or imply that the Commission’s Regulation F would be invalid as to the sports fishermen: To hold Regulation F valid as applicable to fish farmer would, with certainty, result in the taking of private property without just compensation, and without due process of law. Even though Constitutional Amendment No. 35 gives broad powers to the Commission; nevertheless, the Commission is subservient to, and bound by, Art. 2, Section 22 of the Constitution, which reads: “ * * * Private property shall not be taken, appropriated or damaged for public use, without just compensation therefore.” See Shellnut v. Arkansas State Game and Fish Commission, 222 Ark. 25, 258 S. W. 2d 570.

The action of the Commission in prohibiting the sale of game fish raised in private waters is a valid exercise of the police powers of this state. The control, management, restoration, conservation and regulation of birds, fish, game and wild life resources of the state is a proper function of the police power of the state. A majority of this court has determined that the Game and Fish Commission as opposed to the Legislature, is vested with the power to make such rules and regulations as is deemed necessary to protect and conserve the wild life resources of the state. In the exercise of its police power the Commission has determined that it should prohibit the sale of game fish from private impoundments of water. The Commission has a wide discretion within which it may determine what the public interest demands, and what measures are necessary to secure and promote such requirements. The only limitation upon this power to formulate these rules and regulations, which tend to promote the protection and conservation of the wild life resources of the state, and which tend to promote the health, peace, morals, education, good order and welfare of the public is that the rules and regulations must reasonably tend to correct some evil, and promote some interest of the commonwealth, not violative of any direct or positive mandate of the constitution. Under the evidence adduced in these causes, the majority of this court cannot say that the Commission has abused its wide discretion. The commission, as trustee for the people of this state, has the responsibility and is charged with the duty to take whatever steps it deems necessary to promote the interest of the Game and Fish Conservation Program of this state; subject only to constitutional provisions against discrimination, and to any valid exercise of authority under the provisions of the Federal Constitution. The record and the excellent briefs show conclusively that the business of fish farming is of long standing and a very worthy vocation; that it is advantageous to fish farming and essential to the proper'cultivation of “domestic” fish to have in each impoundment of water, game fish. It is further noted that this state has made rapid progress in the business of fish farming and that thousands of acres of land are now put to this use. No doubt, the fish farmers knew of the rules of the Commission in prohibiting the sale of game fish from public as well as private waters of the state at the time that they were becoming engaged in this comparatively speaking new type of farming in this state. So, it cannot be said that the fish farmers have been misinformed or misled. The fish farmers may still utilize their game fish in any manner most advantageous to them; however, they cannot sell these game fish in violation of the rules and regulations of the Commission, which prohibit the sale of game fish.

It follows that the General Assembly exceeded its legislative powers in enacting Act No. 65 of the Acts of 1957, by attempting to exercise legislative powers pertaining to a subject matter, which was not expressively reserved in the Legislature by Amendment No. 35; therefore, a majority of this court holds that Act 65 of the Acts of 1957 is invalid. The contention of appellants that they have been deprived of their property without due process of law and without just compensation, in violation of the Constitution of this state and of the Federal Government, is without merit. The majority of this Court recognizes that appellants and the other fish farmers own the game fish raised in their private waters; that this is a property right as much as any other distinct right incident to their ownership of the soil. That it is not, however, an unqualified and absolute right, but is bounded by the limitation that it must always yield to the state’s ownership and title, held for the purposes of regulation and preservation for the public use. Since the appellants have only a qualified ownership in the game fish raised in their private waters, which is subject to the general ownership of this state for the purposes of regulating and protecting the wild life and game for the common good of all the people; then it can be reasoned that the appellants cannot be deprived of that which they have never owned.

Accordingly, these causes are affirmed with the modification that the Commission’s Regulation F is invalid, as applied to fish farmers. The issue in main, having been resolved in favor of appellees, the costs are taxed against appellants.

Harris, C. J., disqualified and not participating; McFaddiN and Ward, JJ., dissent.

Paul Ward, Associate Justice,

dissenting. My reasons for dissenting to tlie opinion of the majority may be grouped under the following headings: One, Amendment No. 35 did not give the Commission any authority over privately produced fish; and two, the Commission’s power to regulate does not include the power to destroy.

Very briefly, this litigation arose as follows: Appellants filed a complaint in the Chancery Court of Pulaski County stating that they were about to take from their own privately owned reservoirs fish [meaning, when herein used, the, kind of fish forbidden to be sold] and sell them at private or public sale, but that the Commission, unless enjoined, will subject them to prosecution and will confiscate their fish. The Commission answered: Unless enjoined it will prevent appellants from selling said fish; it is necessary to confiscate (emphasis supplied) said fish to protect the fish in the waters of the state, and; if the sale of game fish from private ponds is permitted, it will be impossible for the Commission to police and prevent the sale of game fish taken from public waters, causing the stock of game fish in public waters to be depleted.

From the above it is clear, of course, that the Commission is not attempting to reg%date but to destroy—

One. To begin with, the Commission, in promulgating rules relative to the fish in question, is dealing with property over which it was given no jurisdiction by Amendment No. 35. I believe this statement cannot be successfully controverted. Sec. 1 of the amendment defines the scope of the Commission’s jurisdiction in this respect. It includes control over “birds, fish, game and wildlife resources of the state.” Even the majority opinion recognizes that such fish is not a resource of the state, for it states: “. . . this [speaking of such fish] is a property right as much as any other distinct right incident to their ownership of the soil.” So, if such fish belong to the individuals who raise them it must follow, as day follows night, that they do not belong to the state.

Two. ■ In view of what was pointed out above, it follows that the only power the Commission could have over such fish would be the same right the state had [before the passage of Amendment No. 35] — the right to regulate. The right which the state had is clearly pointed out in State v. Mallory, 73 Ark. 236 [at page 248], 83 S. W. 955. It was there said: “We therefore conceive it to he settled by authority and by long recognition in the law that the owner of land has a right to take fish and wild game upon his own land, which inheres to him by reason of his ownership of the soil. It is a property right, as much as any other distinct right incident to his ownership of the soil. It is not, however, an unqualified and absolute right, but is hounded by this limitation, that it must always yield to the State’s ownership and title, held for the purposes of regulation and preservation for the public use.’’ (Emphasis supplied.)

I consider it fundamental to a correct disposition of the question under consideration to recognize the importance of protecting private property — a matter which the majority seems to have-overlooked. Art. 2, § 22 of our Constitution says “The right of property is before and higher than any constitutional sanction, and private property shall not be taken . . . without just compensation. ’ ’

Since the Commission makes no pretense of compensating appellants, it is important to examine the situation to ascertain if the Commission is actually taking appellants ’ property. It is, of course, not denied that the Commission assumes the power to prevent appellants from selling their property or otherwise disposing of it for profit. Under the law this amounts to a taking. It is a rule so well established by the courts as to require no citations that the right to own property carries with it the right to dispose of it.

It is my view therefore that the maximum right the Commission has in this case is to regulate the sale of game fish raised by appellants. From the standpoint of simple justice there is a grave responsibility upon the Commission to exert every reasonable effort, by the promulgation of strict regulations, to make it possible to allow the growing industry of fish farming to continue in business on a profitable basis. At least the Commission should be willing to make every possible effort in that direction. If the regulations provided in Act 65 of 1957 are not sufficient, the Commission has ample power to promulgate additional ones. If, however, after applying all reasonable regulations, still some damage results to the game fish in the public streams, that result cannot justify the taking of private property without just compensation in violation of the Constitution.

Incidentally I do not at all agree with the majority’s announcement that the legislature has been stripped of all legislative authority except to appropriate money for the Commission and to increase resident hunting and fishing licenses. This conclusion of the majority is apparently based on a sentence in Amendment No. 35 which reads: “All laws now in effect shall continue in force until changed by the Commission.” This language is found in Section 8 of the Amendment, as pointed out by the majority, and clearly has reference only to the powers given the Commission by that section. The majority view ignores the language in Section 1, which gives the Commission the power to administer “. . . the laws now and/or hereafter pertaining thereto.” (Emphasis supplied.) This language, to my mind, clearly implies that the people meant for the legislature to retain some power.

To my mind it is a matter of grave concern and importance that the majority opinion has now constituted the Fish and Game Commission an independent law making body.

I submit that, in the name of simple justice and according to the clear letter and spirit of the law, this case should be reversed and remanded to the trial court with directions to order the Commission to promulgate reasonable rules that will allow the growing industry of fish farming to continue as a profitable business. It is common knowledge that there is now considerable nation wide agitation in favor of fish farming, and Arkansas is most favorably situated to profit by such an industry.


author: Carleton Harris^ Chief Justice. Paul Ward,' Associate Justice,

text:
    Wilson v. Wilson.
    5-1458
    310 S. W. 2d 500
    Opinion delivered March 3, 1958.

      N. D. Edwards, for appellant.

      Ralph W. Robinson, for appellee.
   Carleton Harris^ Chief Justice.

This is a child custody ease. The child, Lee Irene Wilson, age six, is the daughter of David Lee Wilson,'Jr., and stepdaughter of Sara Marie Wilson, appellants herein. Wilson was divorced from his first wife, mother of the child, in August, 1952, and was given permanent custody of Lee at the time. In November of the same year, Wilson entered military service. While in service, his parents, David Lee Wilson and Bessie Wilson, appellees herein, kept Lee in their home. Wilson, Jr., married his present wife in March, 1955. In September, 1955, the younger Wilson and Sara Marie, his wife, established a home in Memphis, and took the child to such home. Upon being discharged from service, David Wilson, Jr., returned to Tulsa, Oklahoma, to reclaim his job with Douglas Aircraft Company. Appellants had the custody of the child from September, 1955, until May 30, 1957, when appellees brought her to their home in Crawford County for a visit. Appellants sought to take the child on May 31st, but were prohibited from doing so by the elder Wilsons. David, Jr., and Sara Marie filed their petition for writ of ha-beas corpus in the Crawford County Chancery Court, and the writ was issued on June 1, 1957. On June 3rd, the Cause was heard, at the conclusion of which, appellants’ petition was denied, and the court ordered: “* * * that the minor child, Lee Irene Wilson, be given into and remain in the custody of the defendant grandparents, David Lee Wilson, Sr., and Bessie Wilson, for a period of six months and until further orders of court * * * .” From such decree comes this appeal.

Child custody cases are always difficult to determine, and this one is no exception. First, let it be said that there is no proof in the record which reflects in any manner upon the morals or character of any of the litigants herein. The father has a good job, and is well able to take care of Lee, as are appellees. Both the father and appellees seem devoted- to the child. There is evidence, however, that the child has not been properly cared for. The grandmother’s testimony largely related to the physical condition and mental attitude of her granddaughter. Much of her evidence related to matters told her by the little girl, which, of course, was inadmissible. She stated, “The child was all on edge,” and testified that Lee “looked to me like something out of a refugee camp. ' Concentration camp, I’ll get it right. * * * She just looked starved. * * * ITer little ribs sticking out. * * * ” Pictures were exhibited showing the child as she was at the time of leaving the grandparents to go and live with her father and stepmother, and she appeared “plump” and healthy looking. Mrs. Wilson, Sr., testified she had no intention of taking the baby away from the younger conple, bnt ‘ ‘ just want her eared for.” Her testimony was corroborated by the grandfather, who also stated that Lee had been taken to a baby specialist, and “the tests he made will be in the mail this morning,” and that they were to give her vitamins. Seven neighbors testified. Excerpts from snch testimony are as follows. A1 Meadows testified he did not recognize the child when he saw her . . . “She looked awfnl poor and skinny to me,” although she had been the picture of health when living with the elder Wilsons, approximately a year and a half earlier. Joel Mays, minister, testified that she had changed to an extent, during the year and a half, that he did not recognize her, though he had frequently seen her when she lived with the grandparents. Mrs. Lonnie Simmons: “Well, it seems to me that she looks awful bad.” Virginia Mae Meadows testified that she had known Lee since the latter was a tiny baby. ‘ ‘ She has lost an awfnl lot of weight. Q. Have you seen her body? A. Yes, sir, I did. Q. What condition is it in? A. Very poor, I think. Q. Are you able to count the little things ribs from the back? A: Yes, you are.” Mrs. Juanita Rush also testified she had known the little girl since babyhood and had had occasion to see and observe her frequently. “I didn’t know her when she came in the store Saturday afternoon.” Mrs. Fred Howard . . . known her since she was a baby. “I have seven children of my own, and when I saw Lee yesterday, it nearly broke my heart, because she didn’t look like the same little girl I used to know.” Raymond Johnston: “A year and a half ago, she was a live-wire. She was dancing around like a normal kid. I have got a lawn down there that’s about a four to one slope, and she’d run up and down it like a squirrel, but Sunday she was down there, and she couldn’t hardly get up and down. It was pitiful.”

Appellant, David "Wilson, Jr., stated that the understanding between him and his mother when he took the child was that he and his present wife “could have her as long as she was treated right,” and he testified that Marie treats Lee just like she does their other little girl, born of tbe second marriage, and “There couldn’t be a better wife and mother than she is.” He stated that Lee was not punished in a manner that “would do her any harm in any way.” The stepmother testified that she treated the child the same as her own, and that Lee had plenty to eat. She was critical of the meals given the child by the grandparents. “If she wanted sweets instead of a meal, she had it when she lived with them.” To a charge made by the grandmother, that she had placed the child on bread and water, she stated that it was only for one meal and because Lee was suffering with dysentery. When asked if she had deprived the child of dessert for a week, she replied: “If she sneaked any — she has done it on occasions. Eight after I punished her, she went without one day, without sneaking-some dessert. Find some and try to get into it, and I would say, ‘You don’t get any tomorrow either.’ ” During cross examination she was asked: “ Q. And she was a very plump child when she came to you? A. Yes, she was. Q. She is now very, very thin. Her ribs show. You can count each one of them separately. A. That is not due from not eating, sir. Q. I am not trying to diagnose it, but that is true? A. That’s true, yes.” She stated that Lee had “just recently gotten slim,” but had not been taken to a doctor since school started in September (eight or nine months earlier); at that time she ivas found to be in good physical condition.

The court found:

‘ ‘ In 1955, the little girl was healthy, plump, and full of energy. 18 months later, while David, Jr., and his family lived in Tulsa, Olda., the little girl is # * * so thin that her ribs can be counted from her back, gave the appearance of being starved, * * * . Nine witnesses testified as to this (for the respondents). * * * This little six year old girl is thin, nervous, frail, weak . . . being Avhipped, reared strictly (apparently Avith no affection from stepmother) by stepmother Avhile father is at work. * * * Under these circumstances, this court feels . . . after listening to seven disinterested witnesses . . . that the infant’s Aveifare demands that the grandmother keen the little girl here in Arkansas temporarily . . . for six months. At the end of six months we can have another hearing, and perhaps turn the child hack to the father # # #

Under the circumstances, we are unable to conclude that the action of the court, in taking the child from the father and stepmother for six months, was improper or erroneous. While we do not think it is within the province of this court, or any other court, to instruct parents how to rear their children . . . what they should eat . . . in what manner or how often they should he punished ... we are of the opinion that a court has the right, as well as the duty, to safeguard the health and welfare of a child, though it should he well established that the health or welfare of the minor is actually in jeopardy. Our thinking in this matter is influenced to a great extent by the fact that the order is only temporary. Let it also be remembered that this is not a case wherein total strangers invoke the aid of the court, but rather grandparents, who have had the actual physical custody of the minor for the greater part of her life. It might also be pointed out that this is not a controversy between grandparents and natural parents, for here involved is a stepmother. The chancellor saw and heard the witnesses, and all the parties to the litigation, and evidently saw the child, as the testimony reflects she was present. We know of no type of case wherein the personal observations of the court mean more than in a child custody case. The trial judge had an opportunity that we do not have, i. e., to observe these litigants and determine from their manner, as well as their testimony, their apparent interest and affection, or lack of affection for the child. Under our oft repeated rule that we will not disturb the findings of the chancellor unless they are clearly against the preponderance of the evidence, we affirm this temporary order.

Subsequent thereto, appellants filed á motion for a new trial, alleging that prior to the hearing, they did not know Lee had been examined by Dr. Shearer, a child specialist, on May 31st, and that ‘ ‘ * * * Dr. Shearer, if present and testifying, will testify that the defendants brought the minor child to his office on Friday, May 31, and advised him that the stepmother .of said child had been starving the said child and otherwise mistreating her and that the child had been known on occasions to eat food from garbage cans; that plaintiffs believe and therefore allege that Dr. Shearer will testify that he examined the minor child herein and that he found the child to be a normal child for her age, that he found no evidence to indicate that she was suffering from malnutrition, that he found nothing in his examination which would indicate that the said child had not been properly fed and cared for or that she had not received the proper diet * * * .” The court refused to allow the affidavit to be filed, or to enter an order either allowing or disallowing the motion for a new trial, taking the view that the court had lost jurisdiction as of the time of the filing of the notice of appeal. Appellants contend that the court should have permitted the affidavit to be filed, considered by the court in ruling on the motion for new trial, and after consideration, should have granted same. The consideration of this contention is presently immaterial, since the order of custody was only entered for a period of six months. In its opinion, the court stated that it would hold another hearing at the end of that time, and such period has already passed. So actually, the question as to whether the court’s order was proper is now moot, for under the order, another hearing will now be held. Undoubtedly, Dr. Shearer and any other witnesses with pertinent information will be given the opportunity to be heard.

Affirmed.

George Eose Smith, Ward and Eobinson, JJ., dissent.

Paul Ward,' Associate Justice,

dissenting. I feel so strongly that the majority is wrong and that it has perpetrated such a terrible injustice on a fine patriotic young father that it is difficult for me to calmly and dispassionately phrase this dissent. The only saving feature I can see about the opinion is that it cites no legal precedent, so there is hope it won’t he used in the fntnre to deprive some other person of his own flesh and blood.

The salient, undisputed, and almost unbelievable facts supporting the majority are these: David Wilson, Jr., secured a divorce from his first wife in 1952, and he was awarded the legal custody of his 2-year-old daughter, Lee Irene, who is the subject of this litigation. David was in the service of the United States Army overseas so he permitted his father and mother to take care of Lee Irene. When David returned from overseas in early 1955 he married his present wife with whom he has been living happily ever since. Six months later, after David returned from overseas the second time, he and his wife took Lee Irene to their home in Memphis. A few months later he, his wife, and Lee Irene moved to their present home in Tulsa, Oklahoma, where he had permanent employment with the Douglas Aircraft Company. There they lived in peace and happiness for nearly two years and until May 30', 1957, when they graciously and voluntarily took Lee Irene for a day’s visit with her paternal grandparents in Crawford County, Arkansas. The next day when David and his wife went to pick up Lee Irene for the trip hack to Tulsa, instead of getting her, David got a lick on the head and his wife got knocked to the floor.

Instead of David taking his little girl by force as many a person might have done under the same circumstances, he looked to the law of the land for redress, no doubt with confidence and assurance. He filed a petition for a writ of habeas corpus to obtain custody of his child. Appel-lees, strangely, filed no answer and no written petition for custody.

The ONLY reasons ever assigned by appellees for wanting to deprive David of his 7-year-old child was that she was not being properly treatecl [in her own father’s home] and was not being fed properly. I realize this sounds ridiculous and unbelievable but it is the record.

I have carefully read the testimony to support the above alleged reasons for wanting to deprive David of the custody of his child and, in my opinion, it boils down to what is summarized below.

As to Mistreatment. The proof showing Lee Irene was not treated right in the home of her father was based entirely on what the 7-year-old child told her grandparents, and the majority properly say this evidence was not admissible. Unless I have been laboring under a gross misapprehension of the law during the forty years I have been practicing and trying to interpret it, that disposes of the charge of mistreatment.

As to Not Being Fed Properly. The testimony to substantiate this charge falls under three categories.

(a) Seven neighbors, who hadn’t seen the child in two years or more and who had never been in David’s home, said the girl was not as fat as she once was.

(b) Four pictures were introduced in evidence showing Lee Irene to be rather chubby when she lived with her grandparents. There are no pictures showing what she looks like now.

(c) Appellees testified to what the little girl had told them.

To offset the above, David and his wife both said they loved Lee Irene, that they wanted to raise her in their home, and that they and Lee Irene had plenty to eat. David testified his doctor examined Lee Irene before the trial and it was his opinion that there was nothing wrong with her. The father offered to show by another doctor that she was normal in respect to height and weight.

The only reason assigned by the majority for depriving David of his child was the rule “that we will not disturb the findings of the Chancellor unless they are clearly against the preponderance of the evidence.” My answer to the application of this rule is that under such a process of reasoning the sacred ties of any family with small children are hereafter jeopardized in the jurisdiction of Arkansas. In fact no family in any state is safe any more if they permit one of their children to visit friends in Arkansas for only a day.

Giving the majority the benefit of the doubt, and assuming they meant to apply the oft used rule ‘ ‘ for the best interest of the child, ’ ’ still the opinion is legally indefensible. I have diligently searched our decisions dealing with this rule and find that it was never used independently as a criterion to determine custody. The rule is applicable only to tip the scale when the issue is otherwise in doubt. This is shown by our numerous decisions. See: Kimberling v. Rogers, 227 Ark. 221, 297 S. W. 2d 772; Roberts v. Roberts, 226 Ark. 194, 288 S. W. 2d 948; Reavers v. Smith, 223 Ark. 43, 264 S. W. 2d 617; Self v. Self, 222 Ark. 82, 257 S. W. 2d 281; Cooke v. Gentry, 220 Ark. 785, 249 S. W. 2d 848; Sage v. Sage, 219 Ark. 853, 245 S. W. 2d 398; Vengas v. Mascorro, 216 Ark. 173, 224 S. W. 2d 532; Smith v. Smith, 215 Ark. 862, 223 S. W. 2d 772; Pastor v. Sharp, 212 Ark. 328, 205 S. W. 2d 855; Adams v. Adams, 224 Ark. 550, 274 S. W. 2d 771; Hydrick v. Hydrick, 224 Ark. 712, 275 S. W. 2d 878; Tidwell v. Tidwell, 224 Ark. 819, 276 S. W. 2d 697; Cushman v. Lone, 224 Ark. 934, 277 S. W. 2d 72; Harris v. Gillihan, 226 Ark. 19, 287 S. W. 2d 569, and Coder v. Coder, 226 Ark. 478, 290 S. W. 2d 628.

In the case under consideration here the grandparents do not rely on any deep attachment they have formed for the child or the child for them, they do not even intimate that their son and his wife are not fitted morally or financially to have the custody of Lee Irene, and they do not pretend that she had been abandoned by her father and stepmother. They merely feel, as probably many grandparents do at times, that the child would be better off in their custody. I repeat, measured by the majority view, that every father [and mother] stands in jeopardy of losing his most sacred, G-od-given possession — his own children. The very thought of such a thing is so contrary to every enlightened concept of the laws of God and man that it is alarming to know this court would approve it.

The majority, perhaps with an unconscious sense of uneasiness, seemingly seek to lessen the blow to Lee Irene’s father by pointing out they are only approving a temporary order of the Chancery Court. I call attention to this: The court gave the child to appellees for six months and forever unless it changes its order. That, no doubt, sounds pretty final to David. Moreover every order dealing with the custody of children is treated under the law of this state as final, otherwise this appeal could not have been taken.

       Appellees also kept Lee from March, 1952, until David Wilson, Jr.’s divorce in August.

       According to an accompanying affidavit by Dr. Shearer.


author: J. Seaborn Holt, Associate Justice.

text:
    Benton-Bauxite Housing Co-Op. Inc. v. Benton Plumbing, Inc.
    5-1475
    310 S. W. 2d 483
    Opinion delivered March 3, 1958.

      Fred E. Briner, for appellant.

      Ben M. McCray, for appellee.
   J. Seaborn Holt, Associate Justice.

Appellee, Benton Plumbing, Inc., brought this suit against appellants alleging that both were Arkansas corporations with their principal place of business in Benton, Arkansas, and sought to recover from appellants $1,218.96 as balance due, together with a lien, for plumbing installations in houses built on, and service connections made to, some 30 lots belonging to appellants. Appellants answered with a general denial. Trial resulted in a decree for the amount prayed and a lien for said amount and a judgment in rem was declared against the real estate in question. This appeal followed.

For reversal appellants rely on the following points: “1. Service not valid on defendant, Benton-Bauxite Housing Co-op., Inc. 2. . No evidence to substantiate finding of court that appellee is entitled to judgment against defendants Benton-Bauxite Housing Co-op., Inc., and Adams and Howard Co., Inc. 3. Appellee not having ' entered into contract with owner of the property upon which services performed is not entitled to lien. 4. No evidence to substantiate finding of court that two individuals, Wesley Adams and Victor Howard who are not parties to this suit, were owners of the property upon which the services were performed. 5. No evidence that Benton-Bauxite Housing Co-op., Inc. was a subterfuge through which Adams & Howard Co., Inc., and individuals Wesley Adams and Victor Howard intended to defraud appellee.”

The record reflects that on August 26, 1954, the following contract was entered into between Benton-Bauxite Housing Co-op., Inc., and appellee, Benton Plumbing, Inc.: “Benton-Bauxite Housing Co-operation, c/o Adams & Howard, Benton, Arkansas Gentlemen: For the sum of twenty thousand two hundred fifty dollars ($20,-250.00) we propose to furnish the labor and material to install the plumbing and gas piping in thirty (30) houses you are to build in the Troutt Addition in Benton, Arkansas. This bid includes the following: (description of installations and services) . . . This bid includes gas piping for kitchen, bath, water heater and floor furnace, also connecting and vent floor furnace, but bid does not include furnishing floor furnace. Terms: 90 per cent estimate on first of each month.

“Bid accepted: .
Date
Benton-Bauxite Housing Co-op.
/s/ Wesley Adams, Pres.
Very truly yours,
Benton Plumbing, Inc.
/s/ M. W. Rommel
Pres.”

The following findings by the trial court, we think, are supported by the preponderance of the testimony. ‘ ‘ That on August 26, 1954, as alleged in Paragraph 2 of the complaint, Wesley Adams, purporting to be the president of Benton-Bauxite Housing Co-op., Inc., entered into a written agreement with the plaintiff for the plumbing on thirty houses in Troutt Addition to the City of Benton, Arkansas, for the sum of $20,250.00, and that the said plaintiff had also in the past done similar work in said addition for the defendant, Adams & Howard Company, Inc., the incorporators of whom were Wesley Adams and Victor Howard, who also carried on certain similar operations in said addition under an incorporation known as Parkwood Homes, Inc., and that the same persons, Wesley Adams and Victor Howard, were the owners, at all times mentioned in the complaint, of the lots described in the complaint filed herein upon which the plaintiff under the written contract signed by Wesley Adams as President of Benton-Bauxite Housing Co-op., Inc., and the oral agreement later entered into between them and plaintiff, performed the plumbing services mentioned in the complaint of the plaintiff.

“The court further finds that Benton-Bauxite Housing Co-op., Inc., was a proposed dummy corporation and never did actually come into existence but was a subterfuge through which Adams & Howard Company, Inc., and Wesley Adams and Victor Howard personally intended to defraud the plaintiff and defeat his lien for services performed upon the lots described in the complaint under the contracts mentioned therein, and that thereafter Adams & Howard Company, Inc., was dissolved and the assets of said corporation including the lots herein described, became the individual property of "Wesley Adams and Victor Howard, subject to the lien of the plaintiff herein for services performed under contract with the purported corporation Benton-Bauxite Housing Coop., Inc., and that as proposed President of such corporation the said Wesley Adams had (was) authorized to bind the stockholders of such proposed corporation and therefore to create a lien upon the lands herein described.

“That the plaintiff, acting in good faith under the terms of said contracts and without having knowledge of any intent to defraud it or of the manipulations of the owners of said lands mentioned in the complaint, rendered the plumbing services described in said complaint to each of the lots under authority from the defendant corporations, and by reason thereof held an absolute lien thereon for labor done and materials furnished under said contract at the time of the filing of the complaint, and which lien should be declared a lien against each and every lot described in the complaint of plaintiff, and that they should have judgment against the defendant corporations in the sum of $1,218.96, which judgment should be declared a lien against said lands and a judgment in rem against said lands, and the same should be foreclosed, and unless said judgment be paid within thirty (30) days said lands should be sold to satisfy said judgment.”

While it appears that appellant, Benton-Bauxite Housing Co-op., Inc., had failed to take all necessary steps to incorporate (Sec. 64-103 Ark. Stats. 1947), it and its incorporations had certainly held it out as a corporation, accepted the benefits of its contract above with appellee and it and its incorporators are, therefore, bound by its terms whether its corporate status had been completed or not; and, further are estopped, as we shall presently point out.

As indicated, the chancellor found, and we think correctly so, that Wesley Adams and Victor Howard were, in effect, joint owners of the lands in question, and while neither was made a party individually to this suit Adams, by signing the above contract -as president of a nonexistent corporation, thus inducing appellee to perform plumbing services on property which he and Howard jointly owned thereby increasing its value to their benefit, he, (Adams) was acting in privity with Howard .and both are estopped to question the judgment here. The rule announced in Collum v. Hervey, 176 Ark. 714, 3 S. W. 2d 993, applies with equal force here: “But to give full effect to the principle by which parties are held bound by a judgment, all persons'who are represented by the parties and claim under them or in privity with them are equally included by the same proceedings . . . The ground therefore upon which persons standing in this relation to the litigating party are bound by the proceedings to which he was a party, is that they are identified with him in interest; and whenever this identity is found to exist, all are alike concluded. Hence all privies, either in estate, in blood, or in law, are estopped from litigating that which is conclusive on him with whom they are in privity. Litchfield v. Goodnose, 123 U. S. 549, 8 S. Ct. 210, 31 L. Ed. 199 . . . As used when dealing with the estoppel of a judgment, privity denotes mutual or successive relationship' to the same right of property, and it is classified as privity in estate, privity in blood, and privity in law, in all of which kinds there must be an identity of interest. A privy in estate is one who derives title to property from another. He comes in by succession to property by contract or law. To make one person a privy in estate to another, that other must be predecessor in respect to the.property in question, from whom the privy derives his right or title. Examples of this class of privies are joint tenants, donor and donee, lessor and lessee, and successors in office. Privies in representation are illustrated by executor and testator, administrator and intestate. 15 R. C. L. 1015.”

Other points raised by appellants have been carefully considered and all found to be without merit. Affirmed.


author: En. F. McFaddiN, Associate Justice.

text:
    Miles v. Deisch.
    5-1490
    310 S. W. 2d 505
    Opinion delivered March 3, 1958.

      Daggett .& Daggett by W. H. Daggett, for appellant.

      Charles B. Roscopf, and Burke, Moore & Burke by J. G. Burke, for appellee.
   En. F. McFaddiN, Associate Justice.

This appeal is a continuation of the litigation between the Lee-Phillips Drainage District and the Beaver'Bayou Drainage District, and is the third appearance of these Districts in the present controversy.

In Beaver Bayou Drainage District v. Lee-Phillips Drainage District, 221 Ark. 550, 254 S. W. 2d 465, we held that there would have to be a plenary suit between the two Districts to determine the proportion of the amounts to be paid by each District for the cleaning out of Lick Creek. The plenary suit was filed; a decree was rendered ; and we found it necessary to reverse the decree in Lee-Phillips Drainage District v. Beaver Bayou Drain age District, 226 Ark. 105, 289 S. W. 2d 192. All the background information of the litigation is contained in the opinion written by Chief Justice Lee Seamstek.

When the case went back to the Chancery Court on remand the Commissioners of the two Districts (Lee-Phillips and Beaver Bayou) had a private meeting to try to settle the differences in the absence of their attorneys. An agreement (copied in extenso in the decree of June 18, 1957) was drawn by one of the Commissioners and signed by all of the Commissioners of both Districts; and they hoped that their litigation had ended. But when the attorneys studied the agreement, they found certain liabilities and rights thought to be undefined. Thereupon, the Chancery Court was again asked to pass on the rights and liabilities of the two Districts; and the following decree was entered:

“On this 18th day of June, 1957, this cause coming on to be heard on the Mandate of the Supreme Court of Arkansas, heretofore filed on the 8th day of May, 1956, plaintiffs appearing by their Attorneys, Burke, Moore and Burke and C. B. Roscopf, and the defendants appearing by their Attorneys, Daggett & Daggett, and this cause is submitted to the Court upon the Mandate, the Contract entered into by and between the Commissioners of the two Districts, dated December 18, 1956, and the testimony taken in open court of Lonn Mann, J. W. Yancey and E. G. Miles for and in behalf of the defendants, and the testimony taken in open court of George Brandon and Sam Scott for and in behalf of the plaintiffs, and the Court being well and sufficiently advised as to all matters of law and fact arising herein, does hereby Decree:
“1. That the injunction heretofore issued by this Court by Decree entered on the 27th day of September, 1955, he and the same is hereby dissolved.
“2. That since the issuance of the Mandate by the Supreme Court of the State of Arkansas, the Commissioners of the two Districts, in order to solve their problems and to avoid further litigation, did on the 18th day of December, 1956, enter into a written Contract, which is in the words and figures as follows, to-wit:
“ ‘AGREEMENT
“ ‘We, the members of the Beaver Bayou Drainage District and the Lee-Phillips Drainage District Board of Directors have arrived at the following agreement to be reduced to proper form by the Attorneys of the respective Districts.
“ ‘The Beaver Bayou Drainage District agrees to pay to the Lee-Phillips Drainage District, the taxes on the taxable acreage (approximately 3,200 to 3,500 acres) which drains in to the Lick Creek canals. Such taxes shall be paid by the Treasurer of the Beaver Bayou Drainage District on the taxable acreage drained in the Lick Creek Canal between the first day of October and the first day of November of each year. The amount of this tax to be the same per acre as that levied on lands in the Lee-Phillips Drainage District.
“ ‘It is expressly agreed and understood that the grubbing or ditching done, be started at the mouth of Lick Creek. This Agreement is entered into not only for the present clean-out or ditching, but is to continue in effect in the future for maintenance purposes or any improvements. As the taxes are increased or decreased in the Lee-Phillips Drainage District, they will be likewise increased or decreased in the Beaver Bayou Drainage District.
“ ‘We, the Directors of the Beaver Bayou Drainage District agree to obtain the right-of-way perinits for the grubbing or ditching of that part of Lick Creek which is situated in the Beaver Bayou Drainage District, and the Directors of the Lee-Phillips Drainage District are to obtain their own right-of-way permits for lands in their own District.
“ ‘In its inception, the idea is to grub the entire canal from the mouth to the upper end, to see if this will grant the necessary drainage. Should this be inadequate, it is understood and agreed that further improvements will be done immediately to alleviate this condition.
“ ‘Dated at Helena, Arkansas, on this the 18th day of December, 1956.
“‘APPROVED:
LEE-PHILLIPS DRAINAG-E DISTRICT
By: /s/ E. G. Miles
By: /s/ Lon Mann
By: /s/ Jas. W. Yancey
APPROVED:
BEAVER BAYOU DRAINAGE DISTRICT
By: /s/ George Brandon
By: /s/ Sam Scott
By: /s/ E. V. Wolfe
By: /s/ H. G. Stephens, Jr.
By: /s/ J. C. Campbell, Jr.’
“3. That the Contract entered into by the Commissioners of the respective Districts supersedes and supplants the Mandate heretofore issued by the Supreme Court of Arkansas.
“4. That the Contract entered into by the Commissioners of the respective Districts, above referred to, shall run for an indefinite period of time and not for the three years hereinafter referred to.
“5. The work to be done under the agreement and this Decree shall be done or contracted for by the Commissioners of the Lee-Phillips Drainage District. The main purpose of the agreement is to make it, possible to grab out (which means to clean ont) the ditches of both Districts, beginning at the month of Big Creek and con-tinning to the npper end of the Lee-Phillips District. If snch action grants the necessary drainage, then the Lee-Phillips District shall take steps to maintain and preserve snch condition, bnt if the results prove to be inadequate, further improvements will be done immediately to provide necessary drainage.
“6. There are 3,500 acres, of taxable land situated in the Beaver Bayou Drainage District that drain into that portion of Lick Creek canal situated within the Beaver Bayou Drainage District into which the, Lee-Phillips Drainage District canal empties. The Lee-Phillips Drainage District has collected an assessment of 3 per cent on the benefits of its District, for the. year 1956, and has levied a like assessment for the years 1957 and 1958. The Beaver Bayou Drainage District is hereby directed to pay to the Commissioners of Lee-Phillips Drainage District, in consideration of their undertaking and performing the work described in paragraph 5 hereof, thirty cents (30c) per acre for the 3,500 acres drained by its Lick Creek ditch for each of the years 1956, 1957 and 1958, and for such other period of time as may be neces- • sary to provide adequate drainage; provided, however, should the Lee-Phillips Drainage District assessment be raised or lowered from 3 per cent, then the Beaver Bayou Drainage District payment shall be increased or decreased accordingly at the rate of 10c. per acre for each 1 per cent increase or decrease In the levy of the Lee-Phillips District. Should the Lee-Phillips District levy no assessment, then no payment shall be due from the Beaver Bayou District for that respective year. The payments to be made by Beaver Bayou Drainage District to the Lee-Phillips Drainage District shall be paid annually on or before November 1st of each year, with the 1956 payment of $1,050.00 to be paid immediately upon the execution of a contract by the Lee-Phillips Drainage District.
“7. The cost of all present and fntnre improvements to afford necessary drainage shall be borne by the respective Districts on the basis above set ont.
“8. That the necessary rights-of-way are to be acquired at the expense of the respective Districts.
“9. That this Decree shall be binding upon the present Commissioners of the respective Districts and their successors.
“/s/ FORD SMITH, CHANCELLOR.”

The Commissioners of the Lee-Phillips Drainage District (appellants here) gave notice of appeal which says: “Notice is hereby given that . . . defendants above named hereby appeal to the Supreme Court of Arkansas from that portion of the decree . . . that requires defendants to pay for future improvements on the same basis as for the initial clearing-out project.”

At the outset we emphasize that the appellants appealed from only that portion of the decree “. . . that requires defendants to pay for future improvements on the same basis as for the initial clearing-out project.” Section 3 of Act 555 of 1953 is taken from Federal Rule 73(b), and concerns the notice of appeal. Our Statute says: “The notice of appeal shall specify the parties taking the appeal, and shall designate the judgment, decree, or part thereof appealed from . . .” (Italics our own.) In this case, the only portion of the decree from which the appellants appealed is the seventh paragraph of the decree which requires the defendants to pay all future improvements on the same basis as for the initial clearing-out project. "We consider only that one point because the notice of appeal was limited to that one point.

Coming then to the one issue: it will he observed that paragraph numbered 7 of the Chancery decree here involved said: “The cost of all present and future improvements to afford necessary drainage shall be borne by the respective Districts on the basis above set out.” "Was that provision within the agreement made by the parties ? The agreement recites: ‘ ‘ This agreement is entered into not only for the present clean-out or ditching, but is to continue in effect in the future for maintenance purposes or any improvements. As the taxes are increased or decreased in the Lee-Phillips Drainage District, they will be likewise increased or decreased in the Beaver Bayou Drainage District.” This quoted language from the agreement between the two Districts, clearly supports the paragraph No. 7 in the decree made by the Chancery Court, which paragraph reads: “The cost of all present and future improvements to afford necessary drainage shall be borne by the respective Districts on the basis above set out.”

Finding no error, the decree is affirmed.

       The opinion concluded with the following paragraphs: “We find that the trial court erred in its method of arriving at the respective cost to the parties on an acreage basis. The result under this method would require the appellant district to pay 93% of the cost of cleaning out the five and three-fourths miles of Lick Creek located in the appel-lee drainage district. The appellee district should be responsible for the costs of providing drainage for the natural flow of water through the Lick Creek Canal and the appellant district should be responsible for the costs that would be necessary for providing additional drainage for the extra flow of water through the canal that would be caused by the proposed improvement of its drainage district. The trial court will permit the parties to take additional evidence so that the cost to the parties may be pro-rated in accordance with the provisions set out in this opinion.”

       Two cases involving appeal on a particular point are: Carter v. Powell, 104 Fed. 2d 428; and Chlupsa, v. Posvic, 113 Fed. 2d 375.

       Should we consider any of the other points argued in the briefs, then the appellants would be extremely hard pressed to overcome ap-pellees’ motion to dismiss the appeal. The motion is based on a showing that the appellants have accepted some of the benefits of the decree. In their response to the motion to dismiss, the appellants pointed out that the only portion of the decree from which they were appealing was the point that required the defendants to pay for future improvements on the same basis as the initial clearing-out project.


author: MiNOR W. Millwee, Associate Justice.

text:
    Howard v. Etchieson.
    5-1478
    310 S. W. 2d 473
    Opinion delivered March 3, 1958.

      James M. Gardner, for appellant.

      Marcus Evrard and Macs B. Harrison, for appellee.
   MiNOR W. Millwee, Associate Justice.

This is a suit by seventeen residents and home owners in the city of Blytheville, Arkansas, to enjoin appellants from building and establishing a funeral home in a strictly residential section of the city. The appeal is from a decree granting the relief prayed.

Appellants applied to the City Engineer for a permit to construct the funeral home pursuant to an ordinance which.makes it unlawful to erect any building to be used for business purposes in a residential section, where property owners in the immediate vicinity protest, until a permit to do so is granted by the City Council. At a hearing before the Council at an adjourned meeting on November 19, 1956, a motion to deny the permit failed to pass by a vote 2 to 5, whereupon the Mayor declared the permit would be granted. All eight members of the council waived notice of a special meeting held December 3, 1956, at which a motion was made to revoke the permit previously granted. When the motion was put to a vote four of the six aldermen present voted for it, one against it and one abstained from voting. The Mayor expressed the belief that it required a majority of the elected aldermen to constitute a majority on any issue and indicated he would seek legal advice as to the validity of the proceedings.

Appellees, who own homes in the immediate vicinity of the lot Upon which appellants proposed to construct the funeral home, filed the instant suit on December 18, 1956, alleging that the City Engineer acted without proper authority in issuing a permit; and that the establishment of a mortuary or funeral honie on the lot in question would create and constitute a nuisance causing irreparable injury to appellees. Appellants’ answer contained a general denial and a reliance on the permit issued to them by the City Engineer.

The case was heard on the pleadings and certain stipulations and admissions of fact. ■ It was agreed that the testimony of appellees and other witnesses on their behalf would be to the effect that the funeral home would be located in the midst of a growing residential section of the highest type; that appellees had bought and constructed homes in the area because of its character as a purely residential section-; that establishment of the funeral’home would lower the value.of appellees’ properties, be a constant reminder of-death and very depressing, would restrict the play and activities of children in the neighborhood; and that it would have an.adverse effect generally on the. comfort and health of appellees and the use and enjoyment of their properties. It was also admitted that appellants ’ ambulances would be equipped with sirens which would sometimes be used in malting emergency calls and that appellánts had notice of ap-pellees’ objections to the project'before they purchased the proposed site for the funeral home. Appellants offered no proof in rebuttal of this’ evidence.

In the decree enjoining appellants from building a funeral home on the lot in question the' Chancellor found that the issuance of the permit by the City Engineer was without proper authority. Appellants earnestly insist this was error and that, the permit being legal, ap-pellees’ petition should have been dismissed for failure to prove a cause of action. On this trial de novo we find it unnecessary to determine whether the permit was either validly issued or effectively revoked at the subsequent special council meeting. An unrevoked permit issued by the city would not in itself constitute a defense to appellees’ suit to enjoin a nuisance. In Jones v. Kelley Trust Co., 179 Ark. 857, 18 S. W. 2d 356, a permit had been granted by a city commission to a company to operate a quarry and rock crusher and we held this was no defense to the company in a suit to enjoin such operation as a nuisance. See also, Fort Smith v. Western Hide and Fur Co., 153 Ark. 99, 239 S. W. 724, and cases from other jurisdictions to the same effect cited in 66 C. J. S., Nuisances, Sec. 120. So here, the mere fact that appellants held a permit from the city would not bar appellees’ right to enjoin the establishment of the funeral home if it constituted a nuisance.

According to the undisputed proof the proposed establishment of the funeral home by the appellants in an exclusively residential district constituted a nuisance which might be enjoined under this court’s holding in Powell v. Taylor, 222 Ark. 896, 263 S. W. 2d 906. There the area involved was held to be essentially, though not exclusively, residential. Also the evidence was in sharp dispute as to whether property values would be adversely affected and some of the residents involved had no objection to the proposal.

We find nothing in Act 241 of 1957, relied on by appellants, that deprives appellees of their right to maintain the instant suit. This act declares a funeral home to be a “service institution” when conducted in the manner set forth therein, but this does not mean that its establishment cannot be declared a nuisance and enjoined or abated. The erection of a church tabernacle or similar service institution may be enjoined if it is certain to become a nuisance. Murphy v. Cupp, 182 Ark. 334, 31 S. W. 2d 396. The Chancellor correctly enjoined the establishment of the funeral home under the proof presented, and the decree is affirmed.


author: George Rose Smith, J.

text:
    American Natl. Ins. Co. v. Laird.
    5-1491
    311 S. W. 2d 313
    Opinion delivered March 3, 1958.
    [Rehearing denied April 14, 1958]

      Cecil C. Matthews and Wright, Harrison, Lindsey & Upton, for appellant.

      Virgil Roach Moncrief and John W. Moncrief, for appellee.
   George Rose Smith, J.

On July 28, 1953, the Physicians Insurance Company, whose liabilities were later assumed by the appellant, issued to the appellee a policy insuring him to a limited extent against hospital and medical expenses. In 1955 Laird became ill and incurred hospital and medical expenses running to more than $1,400. The insurance company refused to pay the claim, on the ground that Laird’s condition existed before the effective date of the policy and was therefore not covered by the contract.

Laird, in bringing this action to recover $1,400, sued not upon the written contract but upon an alleged oral agreement by which Physicians Insurance Company as-sertedly insured Laird against hospital and medical expense without limitation as to amount. The complaint mentions the written contract only incidentally, it being averred that the insurer mailed an insurance policy to the plaintiff after the execution of the oral agreement. To this complaint the appellant filed a general denial and also charged Laird with having made false statements in the application for the policy. Trial before a jury resulted in a verdict for the plaintiff in the amount sued for.

We do not agree with the appellant’s contention that it was entitled to a directed verdict on the ground of fraud in the procurement of the contract. The statements in the application were not declared to be warranties ; so a misstatement would not avoid the contract if made in good faith. Universal Life & Acc. Ins. Co. v. Stuart, 219 Ark. 863, 245 S. W. 2d 219. On this issue the plaintiff’s proof presented a question for the jury.

There is, however, no substantial evidence establishing the existence of a binding oral contract of insurance, upon which alone recovery is sought. Laird testified that in 1953 he received an advertising circular from the Physicians Insurance Company and mailed a reply card that was enclosed. On July 17 the insurer’s agent, John Whatley, called at Laird’s home with the reply card and, after an extended discussion, took Laird’s application for the insurance. Laird testified that he told Whatley that the company would be expected to pay all hospital bills, and Whatley said that the policy would pay at whatever the hospital’s rate might be. Laird signed the application, which he says had not then been filled in, and gave Whatley a check for the first premium. The check was cashed on July 22, and the written policy was issued on July 28. Laird received the policy by mail but put it away without reading it. The written contract, which was introduced in evidence, provides only partial coverage for a number of expense items that Laird was permitted to recover in full.

We have repeatedly and consistently held that a soliciting agent does not have authority to make contracts on behalf of the insurer. American Ins. Co. v. Hampton, 54 Ark. 75, 14 S. W. 1092; Inter-Southern Life Ins. Co. v. Holzhauer, 177 Ark. 927, 9 S. W. 2d 26; Sadler v. Fireman’s Fund Ins. Co., 185 Ark. 480, 47 S. W. 2d 1086. Anri the burden is on the plaintiff to prove that such an agent has real or.apparent authority to bind his principal by contract. American Ins. Co. v Hampton, supra; American Ins. Co. v. Hornbarger, 85 Ark. 337, 108 S. W. 213; Jackson v. Farmers Union Mut. Ins. Co., 228 Ark. 233, 306 S. W. 2d 693.

That proof is altogether lacking. There is no direct evidence that Whatley was clothed with any authority beyond that ordinarily exercised by a soliciting agent. It is argued that the jury might have inferred the delegation of broader power from the fact that Whatley had in his possession the reply card sent in by Laird and from the fact that Whatley accepted the initial premium along with the application. This argument lacks force. The postal card was certainly not an indicium of authority as a general agent, and the collection of premiums is one of a soliciting agent’s ordinary duties. See the Hampton, Hornbarger, Holzhauer, and Sadler cases, supra.

The judgment must he reversed, and the cause is remanded for a new trial, it being appropriate for the trial court to permit such amendments to the pleadings as the parties may think necessary. Stewart-McGehee Const. Co. v. Brewster, 176 Ark. 430, 3 S. W. 2d 42; Stucker v. Hartford Acc. & Ind. Co., 222 Ark. 268, 258 S. W. 2d 544.

Reversed.