author: Car.t.ETON Harris, Chief Justice.

text:
    Mrs. Eleanor Cruce, Gdn. v. Ark. State Hospital
    5-4068
    409 S. W. 2d 342
    Opinion delivered December 19, 1966

      James A. Boss and Jamies A. Boss Jr., for appellant.

      Clifton Bond and Pope, Pratt, Shamburger, Buffalo & Byan, for appellee.
   Car.t.ETON Harris, Chief Justice.

This appeal relates to the validity of claims filed by the Arkansas State Hospital against the estate of Mrs. Hattie Martin, incompetent. Corporal Alex Martin, a native of Drew (County, Arkansas, was serving with the armed forces when the Japanese invasion of the Philippine Islands occurred. Martin was captured in the islands by the Japanese, and died in a prison camp on November 22, 1942. He was the son of D. G. Martin, who died about 1930, and Mrs. Hattie Martin, who is an incompetent ward at the Arkansas State Hospital, having been confined there since about 1933. Corporal Martin was unmarried, had no children, and was survived by the mother and one brother, Elgin, a resident of Drew County. Several persons have served as guardians for Mrs. Martin, and the current guardian, Mrs. Eleanor Cruce, was appointed on Junq 16,1958. In 1962, appellant’s attorney, James Ross, undertook the recovery of monies believed to have been deposited by Alex Martin at the Albuquerque National Bank in Albuquerque, New Mexico. After correspondence and the filing of necessary papers, Mrs. Cruce, as guardian of Mrs. Martin, was forwarded a check in the sum of $1,450.00, representing the bank account of Alex Martin. In 1963, the guardian applied to the Veterans Administration for benefits that might be-due by reason of Corporal Martin’s military service,, and awards were subsequently made as hereinafter set out.

In 1942, Public Law 667 of the 77th Congress, 56 Stat. 657 was passed, amending the National Service Life Insurance Act (NSLIA) as follows:

“ (B) Any person in the active service who on or after December 7, 1941, and prior to April 20, 1942, has been or shall be captured, besieged, or otherwise isolated by the forces of an enemy of the United States for a period of at least thirty consecutive days and extending beyond April 19, 1942, and at the time of such capture, siege or isolation by the enemy did not have in force insurance in the aggregate amount of at least $5,000 under the "War Risk Insurance Act, as amended, the World War Veterans’ Act, as amended, or this Act, shall be deemed to have applied for and to have been granted, effective as of the date of such capture, siege, or isolation, National Service Life Insurance in an amount which together with any such insurance then in force shall aggregate $5,000 of insurance, and such insurance shall remain in force and premiums on such insurance shall be waived during the period while such person remains so captured, besieged, or isolated, and for six months thereafter: ’ ’

Under the present provisions of the NSLIA Mrs. Cruce, as guardian of Mrs. Martin, received in August, 1964, the sum of $7,347.15 from the Veterans Administration. This lump sum payment was made to take care of all back payments due under Public Law 667, and represented the sum of $28.15 per month from the date of the death of Corporal Martin. An award was also made by the Veterans Administration to Mrs. Martin of $75.00 per month, because she was a dependent of the deceased veteran, and the monthly payments under this award commenced on March 1, 1964.

In the meantime, the Arkansas State Hospital had started, on September 25, 1955, filing claims with the guardian of the estate of Hattie Martin for maintenance. On this date claims were filed for maintenance at the rate of $50.00 per month from September 1, 1955, to March 1, 1958, for a total of $1,500.00, and at the rate of $90.00 per month from March 1, 1958, to September 1, 1958, for the sum of $540.00, or a total claim of $2,-040.00. A second claim was filed against the estate at the rate of $90.00 per month from September 1, 1958, to January 1, 1963, for a sum of $4,590.00, and a third claim was filed covering the period from January 1, 1963, to January 1,1965, in the amount of $2,160.00. The total bill claimed against the estaté is $8,790.00. After several separate hearings, the court held that the estate was liable to the hospital for claims filed from March 1, 1958, and allowed amounts totaling $6,750.00. From the judgment so entered, appellant brings this appeal. Appellee cross-appeals from the court’s failure' to allow the full amount sought. Several points are urged by appellant for reversal, and we proceed to discuss these alleged errors, though not necessarily in the order listed.

It is asserted that the hospital claim is barred by the statute of limitations, but we have held to the contrary. See Alcorn v. Arkansas State Hospital, 236 Ark. 665, 367 S. W. 2d 737. It is further contended that appellee did not comply with Ark. Stat. Ann. § 59-230 (1947). Pertinent portions of that section provide as follows:

“If any patient admitted to the State Hospital be found, upon examination, to possess an estate, over and above all indebtedness, more than sufficient for the support of his or her dependents, his or her natural or legally appointed guardian shall pay out of such estate into the office of the business manager of the State Hospital, in advance, an amount equal to one [1] month’s maintenance, at a rate to be fixed by the Board of Control [State Hospital Board] from time to time on the basis of maintenance costs, and in addition, shall supply the patient with sufficient and suitable clothing, and shall remove said patient when so required and notified by the Superintendent. If the patient remains in the State Hospital more than one [1] month, such payments shall be made, monthly in advance, for the whole period during which the patient remains in the State Hospital. If the patient has no such estate of his own, then his obligation shall exist against any person who is legally bound to support such patient. * * *

“The business manager, following the admission of a patient into the State Hospital, shall make an investigation to determine the extent of the estate, if ■ any, owned by the incompetent patient, and whether he has a duly appointed and acting guardian to protect his property and his property interest. The business manager shall also make an investigation to determine whether the patient has any relative or relatives legally responsible for the payment of maintenance, and shall ascertain the financial condition of such relative or relatives to determine whether in each case such relative or relatives are in fact financially able to pay sneh charges. All reports in connection with such investigations, together with the findings of the business manager, shall be kept in the Business Office and may be inspected by interested relatives, their agents, or representatives at -any time upon application.”

Appellant cites the case of Arkansas State Hospital v. Kestle, 236 Ark. 5, 364 S. W. 2d 804, in support ■of her argument that an investigation is required prior to any liability. That ease, as well as Alcorn v. Arkansas State Hospital, supra, only dealt with procedure where .a patient had no estate of his own, and recovery was sought against persons having the legal obligation of ■ support. The section seems to primarily relate to the duty ■of the business manager of the hospital to make an investigation as a matter of determining if the patient is able to pay for his or her maintenance in advance. Of ■course, the requirement that reports in connection with investigations be filed in the business office for the inspection of interested relatives is for the benefit of a .guardian or person responsible for the maintenance of the patient who might dispute that the estate (or relative) had sufficient monies to provide maintenance for the patient. The report would enable such a person to determine where the hospital received its information, and to point out any discrepancies or errors in the report. In the case before us, though filing' claims, the State Hospital never made any effort to enforce payment against either the estate or relative, so no one has been prejudiced by the failure to file reports back in the '1950’s. Undoubtedly, the business manager of the hospital did not push the matter of enforcement during that period, because he knew the estate did not possess the requisite amount of funds. For that matter, an investi- . gation was conducted in 1958, for a letter appears in the record wherein the hospital inquired of the guardian of ’ Mrs. Martin, as to the financial status of the estate. The statute referred to, of course, does not negate the liability of the estate. It might also be mentioned that, following our holding in Arkansas State Hospital v. Kestle, supra, the General Assembly of the State of Arkansas enacted Act No. 266 of the Acts of 1963 [Ark. Stat. Ann. § 59-230.2 (Supp. 1965)], which appears to have nullified at least a part of that opinion. We find no merit in this contention.

■ The main issue is whether the money received under the NSLIA is exempt from seizure under judicial process by reason of our own statute, Ark. Stat. Ann. § 30-208 (Repl. 1962), the pertinent portions of which provide as follows:

“All moneys paid or payable to any resident of this state as the insured or beneficiary designated under any insurance policy or policies providing for the payment of life, sick, accident and/or disability benefits shall be exempt from liability or seizure under judicial process of any court, and shall not be subjected to the payment of any debt by contract or otherwise by any writ, order, judgment, or decree of any court * * *.”

Appellant asserts that the money obtained under the NSLIA is exempt from claim or debt, because it is derived from insurance, while appellee just as stoutly contends that the proceeds were not paid under an “insurance policy” as defined by § 30-208. At the time the state statute was enacted (1933), the NSLIA was not in existence. Counsel for each side present excellent briefs, but state that they have found no cases relating to the federal act which discuss the question here presented.

Appellee, in its brief, discusses the various meanings of the word “insurance.” Among others, it mentions that found in 44 O. J. S., Section 25, Page 484:

‘ ‘ Life insurance is a mutual agreement by which one party agrees to pay a given sum on the happening of a particular event contingent on the duration of human life, in consideration of the payment of a smaller sum immediately, or in periodical payments by the other party.***''

Appellee emphasizes that a policy of insurance is a written agreement between two parties whereby the insurer agrees that, on the payment of premiums by the insured, the insurer will pay a certain sum upon the happening of a certain event. It is pointed out that National Service Life Insurance embodies all the characteristics of commercial life insurance, i. e., a serviceman makes an application designating the amount of insurance and the beneficiary; the application is processed and approved; a certificate of insurance is issued; and a stipulated premium is paid each month by the serviceman. Appellee states:

“In the instant case Corporal Alex Martin, deceased, never made a written application for National Service Life Insurance, there was never an agreement between him and the United States, whereby the Government agreed for a stipulated premium to pay a certain sum in the event of the serviceman’s death and a policy or certificate of insurance was never issued by the United States.

It is merely provided that under Public Law 667 of the 77th Congress, that as between the Government, the serviceman and the statutory beneficiaries (after the death of the serviceman) there was in existence a statutory contract of insurance termed ‘National Service Life Insurance, ’ upon which the beneficiary could maintain a claim against the Government in the event of the death of the serviceman.”

We do not agree with this contention. While, as stated,'no.-.cases have been mentioned to us (and we have found none), which relate to an interpretation of the point involved in the federal statute, here discussed, there are decisions relating to a somewhat similar act. A statute was passed in 1917, relative to persons serving in World War I. This act, known as the War Risk Insurance Act, contained a section (Section 401, 40 Stat. 409) providing “automatic” insurance, said section reading in part, as follows:

“Any person in the active service on or after the sixth day of April, 1917, who, while in such service and before the expiration of one hundred and twenty days from and after such publication, becomes or has become totally and permanently disabled or dies, or has died, without having applied for insurance, shall be deemed to have applied for and to have been granted insurance***.''

The federal courts were asked several times to determine whether this World War I automatic insurance was an insurance contract. In United States v. Jackson, 89 F. 2d 572, (Fourth Circuit) the court stated:

‘ ‘ The basic contention * * * with regard to the first point is that the automatic insurance provided by the War Bisk Insurance Act was a gratuitous death or disability allowance and not a contract. It is pointed out that the insured paid no premiums and received no written certificate or policy of insurance, and hence it is said that the provisions of the act come within the scope of Section 17 of the Economy Act, which repealed ‘all public laws granting medical or hospital treatment, domiciliary care, compensation and other allowances, pension, disability allowance, or retirement pay to veterans and the dependents of veterans of the * * * World War.’ ”

Further:

“It is obvious that Congress chose to consider the induction of the soldier into the service and his disability or death within 120 days thereafter as equivalent to an application for and a grant of insurance, so that a contract of insurance of equal validity to those for which applications should be made would come into existence; and since Congress accepted the military service as the basis of the contract, it is of no moment that no written document was issued to the soldiers * * *.’■

Likewise, in Cunningham v. United States, 67 F. 2d 714 (1933), the Federal Circuit Court of Appeals said of automatic insurance:

“ * * * It is true that the grant is a gratuity in the sense that no premium is exacted of the soldier whose case it fits; but this is the only sense in which it is true. What is granted is a contract of insurance, having in all other respects than the requirement of premiums the same incidents, entitling the holder to the same rights and remedies, and governed by the same rules as contracts of insurance issued on applications and with the payment of premiums. The place where the language is found, the fact that it is an integral part of the act granting war risk insurance, the language itself ‘any person * * * shall be deemed to have applied for and to have been granted insurance, ’ under the plainest principles of statutory construction compels this conclusion. Any other would do the greatest violence to the act. Indeed, the matter is so plain that the suability of these contracts has been assumed without question. [Citing cases.]”

Similar decisions could also be cited. These holdings are quite persuasive in the instant litigation, for it is apparent that the pertinent sections in the two acts were enacted for the same purpose, i.e., the protection of the individual in the armed forces (and his family) who never had an opportunity to apply for service life insurance. In the ease before us, the act repeatedly terms the coverage, here under discussion, “insurance,” provides for a waiver under certain conditions (as in many insurance policies), gives an option for manner of payment preferred, and actual payments to the beneficiary are made as under an insurance policy. We hold that the coverage afforded Corporal Alex Martin was insurance.

In addition to the aforementioned argument, appellee argues that, even though the money paid to the guardian be held to have been derived from insurance, still such proceeds are not exempt from the hospital’s claim (as appellant contends) by virtue of Section 30-208 of our statutes. The basis of this argument is that Mrs. Martin’s debt to the hospital is not a “debt by contract or otherwise;” rather, it is contended that the debt is based upon statute, and is therefore simply a statutory claim. It is not necessary that we discuss whether Mrs. Martin’s maintenance by the hospital is based upon a contract, for we are firmly convinced that the words “or otherwise” exempt the insurance money from the claim. In Ponder v. Jefferson Standard Life Insurance Company, 194 Ark. 829, 109 S. W. 2d 946, in referring to the statute under discussion, we said:

“The statute exempts from' seizure under judicial process ‘any debt by contract or otherwise.’ This language exempts all debts of whatever nature and in whatsoever manner incurred. (Emphasis supplied)”

However, we do not agree with appellant that all payments received from the federal government by the guardian of Mrs. Martin are exempt from the claim for maintenance by the State Hospital. Here, we have reference to the $75.00 per month benefit awarded Mrs. Martin as a dependent of Corporal Alex Martin. The pertinent statute is 72 Stat. 1229 (1958), 38 U. S. C. § 3101 (1964), which provides that:

“* * * (a) Payments of benefits due or to become due under any law administered by the Veterans’ Administration shall not be assignable except to the extent specifically authorized by law, and such payments made to, or on account of, a beneficiary shall be exempt from taxation, shall be exempt from the claim of creditors, and shall not be liable to attachment, levy or seizure by or under any legal or equitable process whatever, either before or after receipt by the beneficiary. * * *

We agree with the Drew County Probate Court that the position of the Wisconsin Supreme Court in the case of In re Bemowski’s Guardianship, 3 Wis. 2d 133, 88 N. W. 2d 22 (1958) is sound and logical, and we adopt that court’s view.

From that opinion:

“We will first consider the effect of the federal exemption statute independently of our own state exemption statute. Said sec. 454a, Title 38 [now 38 U. S. C. § 3101], at the times material to this appeal, provided in part as follows:

“ ‘Payments of benefits due or to become due shall not be assignable, and such payments made to, or on account of, a beneficiary under any of the laws relating to veterans shall be exempt from taxation, shall be exempt from the claims of creditors, and shall not be liable to attachment, levy, or seizure by or under any legal or equitable process whatever, either before or after receipt by the beneficiary.’

“In Lawrence v. Shaw, 1937, 300 U. S. 245, 57 S. Ct. 443, 81 L. Ed. 623, 108 A. L. R. 1102, the United States Supreme Court considered the application of the exemption provided in sec. 454a to pension benefits of a veteran, which benefits were attempted to be subjected to tax. In the opinion of the court, Chief Justice Hughes made this significant statement (300 U. S. at page 250, 57 S. Ct. at page 445):

“ ‘These payments are intended primarily for the maintenance and support of the veteran.’ * * *

“Therefore, in interpreting sec. 454a, the question is whether Congress intended to classify the state as a ‘creditor’ within the terms of such statute. The courts of California, Michigan and New York in a number of well reasoned opinions have held that Congress did not intend to classify states, which have provided support in state institutions to incompetent veterans under guardianship as ‘creditors’ * * * [Cases cited]

“We adopt the reasoning of the Michigan court so well stated by Mr. Chief Justice Wiest in In re Lewis’ Estate, supra, as follows (287 Mich, at page 186, 187, 283 N. W. at page 24):

“ ‘We are not here concerned with actions by creditors seeking to turn the pension to satisfaction of their demands, but only with the question of reimbursement of the state for care and maintenance. Certainly the pension protective law does not intend the fund for the welfare of the beneficiary and then, under restrictions thereof, after receipt by the beneficiary, prevent employment thereof for care and support of the pensioner. ***"

‘ ‘ ‘ The state, under humanitarian legislation, has assumed the care and maintenance of the insane pension beneficiary and, by statute, has provided means and measures for reimbursement and we do not think that, under such circumstances, Congress intended to consider the state in the class of barred creditors. The exemption in the pension law serves its purpose in holding that in the hands of the guardian and under order of the court, of which the beneficiary is a ward, the money is not exempt from employment in reimbursing the state, under statutory provisions, for the expense of care and maintenance of the ward.’ ”

We hold that these funds are not exempt from the claims of the State Hospital.

As to the cross-appeal, our holding under Point One settles that issue. We have said that the statute of limitations does not run against these claims, and we have shown why Ark. Stat. Ann. § 59-230 (1947) is not applicable to the situation here presented. We think the court erred in refusing to allow the claim from September 1, 1955, to September 1, 1958, in the amount of $2,040.00.

Summarizing, we hold that the court erred in finding that the monies received under Public Law 667 of the 77th Congress did not constitute proceeds from insurance; further, we hold that the court erred in not granting the State Hospital claim from September 1, 1955, to September 1, 1958. Because of these errors, the cause is remanded to the Drew Probate Court with directions to enter an order not inconsistent with this opinion. In all other respects, the judgment is affirmed.

       72 Stat. 1151 (1958), 38 U. S. C. § 716 (1964).

       The guardian for Mrs. Martin selected an optional settlement which guaranteed the amount of $28.15 monthly for a minimum period of ten years, and further provided that that sum would be paid for the remainder of Mrs. Martin’s life.

       The exact authority for this award is not shown in the transcript or briefs, but same was apparently made under 72 Stat. 1122 (1958), 38 U. S. C. §§ 321-322 (1964), which includes a dependent parent.


source: Caselaw Access Project

author: Ed. F. McFaddin, Justice.

license: Public Domain

text:
    Andrew J. Walker et ux v. George Willis Dibble et ux
    5-4026
    409 S.W. 2d 333
    Opinion delivered December 19, 1966

      Garner & Parker, for appellants.

      Chester P. Leonard, for appellees.
   Ed. F. McFaddin, Justice.

This case results from a real estate transaction between the parties. Appellants, Mr. and Mrs. Walker, owned a farm or ranch of approximately 1,025 acres in Washington County. Some time in October 1963 they agreed to sell the property to the appellees, Mr. and Mrs. Dibble, with possession to be delivered on January 1, 1964. After the Dibbles took possession they filed this suit against the Walkers to recover for waste committed by the Walkers in allowing timber to be cut from the land after the execution of the sales contract and before delivery of possession. Trial in the Chancery Court resulted in a decree in favor of the Dibbles for $5,000.00; and the Walkers bring this appeal, urging three points, which we will consider in the order listed:

“I. The Chancery Court does not have jurisdiction of this case.
“II. Appellees did not testify as to any injury or damage to them.
“III. The judgment of $5,000.00 is excessive and not supported by the evidence.”

I. Equity Jurisdiction. The Dibbles first filed actions in the law court, claiming damages. When demurrers were sustained to the complaints, the Dibbles then amended to allege that, after a binding sales contract had been signed by the Walkers, and pending the delivery of the deed and payment, the Walkers committed waste by allowing timber to be cut from the land. On this theory the Dibbles moved that the cause be transferred to the Chancery Court, which was done, over the objections of the Walkers, who now urge a lack of equity jurisdiction.

There are at least two answers to appellants ’ position. When the cause reached chancery, the Walkers filed no motion to retransfer to law: instead, they filed answer and proceeded to trial in equity. Our cases hold that any objection to trial in equity is waived by failure to move to retransfer to law. Hemphill v. Lewis, 174 Ark. 224, 294 S. W. 1010; Aetna Cas. & Surety Co. v. State, 174 Ark. 988, 298 S. W. 501; and Gray v. Brewer, 177 Ark. 486, 9 S.W. 2d 81. Furthermore, and at all events, the equity court had jurisdiction to try the case. The quotation later to be made in this opinion from Newman v. Mountain Park Land Co., 85 Ark. 208, 107 S.W. 391, is a direct holding on this point. So we find no merit in appellants’ first point.

II. Sufficiency Of The Evidence. The appellants insist that since the Dibbles failed to testify they should therefore lose their case. But if the Dibbles made their case by other witnesses they may still recover; and this necessitates a brief review of the evidence.

The Dibbles, who live in Phoenix, Arizona, went to Fayetteville to see about buying some land. A real estate agent, Mr. Gibson, showed them the Walker farm. Later, the Walkers listed the farm with Gibson as their agent for sale, and the Walkers signed a contract of sale dated October 28, 1963, which Gibson took to Arizona, and which the Dibbles signed on or about October 29th. The total sale price was to be $75,000.00 to be handled by (a) the assumption of an existing mortgage, (b) the execution of a second mortgage to the Walkers, and (c) a payment of the cash balance in excess of $17,000.00. When Mr. Dibble signed the contract of purchase on or about October 29th, he deposited $7500.00 earnest money with Gibson, who was the agent of the Walkers, and who promptly notified the Walkers that he had the money. The contract provided: “Deed shall be delivered on or before January 1, 1964.” So from the date of the signing of the contract by both parties and the deposit of the money, there was a binding contract.

Before January 1, 1964 the Dibbles executed all the papers required of them and paid the cash balance. The warranty deed from the Walkers to the Dibbles, dated December 19,1963, and acknowledged the same day, was delivered to the Dibbles on December 31, 1963. Thereafter it was learned by the Dibbles that in November and December 1963 the Walkers had sold timber from the land to a Mr. Evans, who testified that he cut 122 trees from the land, being 38 oak trees, 44 soft wood trees, and 40 walnut trees. It is for this cutting of the timber that the Dibbles filed this suit on the theory of waste.

The case of Newman v. Mountain Park Land Co., 85 Ark. 208, 107 S.W. 391, is full authority to support a recovery by the Dibbles. In that case Newman had contracted to buy lands from the Mountain Park Land Company and after the execution of a binding contract, and before Newman obtained deed and possession, the Mountain Park Land Company sold timber from the lands. This Court held that Newman had a cause of action against the Mountain Park Land Company. Mr. Justice Battle, writing for a unanimous Court, reviewed numerous holdings and text writers and covered every facet in that case, as well as in the case at bar. We quote:

“ ‘Where a vendor sells lands, takes the notes of the vendee for the purchase money, and executes to him a bond for title, the effect of the contract in equity is to create a mortgage in favor of the vendor upon the land to secure the purchase money, subject to all the essential incidents of a mortgage.’ (Smith v. Robinson, 13 Ark. 533; Harris v. King, 16 Ark. 126; Strauss v. White, 66 Ark. 167.) If he (vendor) be in possession of the land, he ‘must not make other than ordinary use of the land, and he will be enjoined from committing waste, such as cutting trees, carrying or removing soil.’ 6 Pomeroy’s Equity Jurisprudence, § 857. Mr. Pomeroy says: ‘Vendor may be liable for deterioration. This rule is well stated by Lord Coleridge: “During the interval prior to completion the vendor in possession is a trustee for the purchaser, and as such has duties to perform towards him not exactly the same as in the case of other trustees, but certain duties, one of which is to use reasonable care to preserve the property in a reasonable state of preservation, and so far as may be, as it was when the contract was made”; or as Lord Kay expressed it, “to take reasonable care that the property is not deteriorated in the interval before completion.” ’ 6 Pomeroy’s Equity Jurisprudence, § 858.

‘ ‘ The rule in this ease is correctly stated in the syllabus of Worrall v. Munn, 53 N. Y. 185, as follows: ‘Where waste has been committed by a vendor of land, pending a contract of purchase, by cutting down and carrying away timber, or by removing other valuable materials belonging to the freehold, the diminution in the value of the land is not the exclusive measure of damages. In equity everything forming a part of the inheritance belongs to the vendee from the date of the contract, and the rights and liabilities of the parties will be adjusted upon that assumption, and the vendee is entitled to recover the value of the materials so removed.’ This right is based upon the contract of the vendor with the vendee. 2 Warvell on Vendors (2 Ed.), %% 956, 957.

“In taking the deed from the vendor the appellant did not waive damages. The complaint fails to show anything in his acceptance of the deed to the land from the vendor inconsistent with his claim for damages. Appellant alleges that the trees and timber were cut and removed without his knowledge or consent. He is not estopped from claiming the damages. He is entitled to the land and the timber, and there is nothing inconsistent in his claiming both. There was nothing to indicate an intention to surrender or abandon either at any time; and there was no consideration upon which to base a waiver. ’ ’

The cited case is full authority for recovery by the Dibbles in the case at bar, and their evidence parallels that offered in the cited case.

III. The Amount Of The Recovery. There was substantial testimony that the lands the Dibbles purchased were worth $5000.00 less because of the waste committed by the Walkers. Just because the Walkers sold the timber for a small amount of money does not necessarily determine the measure of damages. In Newman v. Mountain Park Land Co., supra, Mr. Justice Battle said, “. . . the diminution of the value of the land is not the exclusive measure of damages.” Thus, the diminution in value of the land has been recognized as a measure of damages.

Affirmed.


text:
    Chird Bobbitt v. W. L. Bradford et ux
    5-4054
    409 S.W. 2d 339
    Opinion delivered December 19, 1966

      John M. Lofton Jr., for appellant.

      Gordon &'Gordon, for appellees.
   Ed. F. McFaddin, Justice.

This is an appeal from the order of the Circuit Court granting a new trial (Ark. Stat. Ann. § 27-2102 [Repl. 1962], as amended by Act No. 547 of 1963).

Appellees, Mr. and Mrs. Bradford, filed this action against appellant, Chird Bobbitt, for damages alleged to have resulted from his negligence in a traffic mishap. Trial to a jury resulted in a verdict for Mrs. Bradford for $3,000.00 and for Mr. Bradford for $100.00 The Bradfords filed a motion for new trial, which the Court granted. Appellant resisted the motion for new trial and has appealed from the order granting it, urging one point:

“The Circuit Court erred in setting aside-the verdicts of the jury and in granting a new trial.”

We find no reversible error committed by the Trial Court in granting the new trial in this case. Ark. Stat. Ann. § 27-1901 (Repl. 1962) authorizes the Trial Court to grant a new trial for any of eight grounds. The fifth and sixth of these grounds are:

“Fifth. Error in the assessment of the amount of recovery, whether too large or too small, where the action is upon a contract or for the injury or detention of property.
“Sixth. The verdict or decision is not sustained by sufficient evidence, or is contrary to law.”

In the case at bar, in granting the new trial the Court said: “It is the opinion of the Court that the verdict of the jury is against the weight of the evidence and that a new trial should be granted.”

Appellant cites us to such cases as Smith v. Arkansas Power & Light Co., 191 Ark. 389, 86 S. W. 2d 411; and McAdams v. Stephens, 240 Ark. 258, 399 S. W. 2d 504. These cases hold that where substantial damages are awarded, a judgment will not be reversed because of inadequacy of the damages unless there be some other error committed by the jury in measuring the damages. These cases are not applicable to the situation in the case now before us because (a) no judgment was entered on the jury verdict; and (b) even if there had been a judgment entered on the jury verdict, the Trial Court had inherent power during the term to set aside its own judgment. Union Saw Mill v. Langley, 188 Ark. 316, 66 S. W. 2d 300; Hill v. Wilson, 216 Ark. 179, 224 S. W. 2d 797; Big Rock Co v. Hoffman, 223 Ark. 342, 344 S. W. 2d 585.

In the recent case of Beeler v. Walters, 241 Ark. (adv. sh) 358, 407 S. W. 2d 739, we had occasion to consider the action of the Trial Court in setting aside a jury verdict, and we there said:

“In a case of this kind we sustain the trial court’s order unless the verdict is so clearly supported by the preponderance of the evidence as to indicate abuse of discretion on the part of the trial judge. Koonce v. Owens, 236 Ark. 379, 366 S. W. 2d 196 (1963). In this instance we find no abuse of discretion.”

The language just quoted is ruling here.

Affirmed.


author: G-eorge Rose Smith, Justice.

text:
    John E. Williams v. James E. Davidson, etc.
    5-4033
    409 S.W. 2d 311
    Opinion delivered December 19, 1966

      Wright, Lindsey & Jennings, for appellant.

      Johnston & Martin, for appellees.
   G-eorge Rose Smith, Justice.

This is an action brought by the appellee, individually and as nest friend,to recover damages for injuries sustained when his ten-year-old son Bobby was struck in the eye by a pellet fired from a BB gun. The plaintiff’s theory is that the defendant, John E. Williams, was negligent in failing to supervise and control his own ten-year-old son David, who owned the gun, and his eleven-year-old daughter Libby, who was holding the weapon when the accident happened. The jury returned verdicts for the plaintiff totaling $12,500. The appellant’s only contention here is that he was entitled to a directed verdict.

There is hardly any dispute about the facts. Williams owned a 32-unit motel, where his family had living-quarters. David, since the time he ivas eight, had owned three or four BB guns. About two months before the incident now in question there had been a complaint by a motel guest about David’s handling of such a gun. According to this guest, David and another boy were bouncing BB’s off ice that had formed on the motel swimming pool. One pellet hit the guest; others hit windows, breaking one of them. Upon receiving that complaint Williams instructed his son to put the gun away and not to take it out on the motel premises. Thereafter the gun and the BB’s were kept in a clothes closet. There is no evidence that David had disobeyed his father’s instructions before the night when Bobby was hurt.

On that night the Davidsons were visiting the Williamses at the motel. (Mrs. Davidson and Mrs. Williams are sisters.) The accident happened at about ten o’clock. Earlier that evening the two boys had tried to take the gun out, but Mrs. Williams saw them with the weapon and made them put it back. Later on, however, they succeeded in getting the gun and taking it outside, where all three children took turns in target practice. At the moment of the accident Bobby, thinking it to be his turn, was reaching for the gun. Libby, who was holding it, pulled it back to keep Bobby from getting it. The gun went off accidentally and struck Bobby in the right eye, causing a permanent partial loss of vision. The court’s instructions, which are not questioned, included AMI 606, explaining a parent’s duty to exercise reasonable means to control his child. Bieker v. Owens, 234 Ark. 97, 350 S.W. 2d 522 (1961).

There is, of course, no contention that Williams is liable for the conduct of his children merely because he is their father. Instead, the appellee insists that Williams was himself at fault in keeping both the gun and the ammunition in a place readily accessible to the children, after having notice of David’s earlier carelessness. Counsel invoke the principle, announced by many authorities, that a person may he held responsible for harm resulting from his negligence in allowing a young or inexperienced child to get possession of a firearm such as a shotgun or .22 rifle.

Counsel for the appellant, though conceding the force of that principle of law, insist that a BB gun or an air rifle is merely a toy comparable to a pocketknife, a how and arrow set, or a baseball bat, all of which may he used in such a way as to inflict serious injuries. Specifically, four cases are cited in support of the appellant’s position. We have examined those cases, and many others, hut they do not convince us that the appellant was entitled to a directed verdict.

The first case relied upon by the appellant is an 1891 decision, Chaddock v. Plummer, 88 Mich. 225, 50 N.W. 135, 14 L.R.A. 675, 26 Am. St. Rep. 283. On its facts that case has no resemblance to this one. There the defendant had given an air-gun to his son, but neither had anything to do with the injury to the plaintiff. The defendant’s wife, who was not a party to the case, let another child, who seems to have come to the house to deliver vegetables, borrow the gun. It was this second child who fired the shot that injured the plaintiff.

The Chaddock decision, handed down seventy-five years ago, was effectively circumscribed by a 1966 Michigan decision, Whalen v. Bennett, 4 Mich. App. 81, 143 N.W. 2d 797. There, much as in the case at bar, the defendant’s eight-and nine-year-old sons had taken BB guns from an unlocked rack without parental permission. While they were playing with two other boys of about their age the gun was discharged while in the hands of the third boy, and the fourth was hurt. The trial court, relying upon the Chaddock case, entered a summary judgment for the defendant, but the Court of Appeals (an intermediate court) reversed that judgment, distinguishing the Chaddock opinion and holding that there was an issue of fact for the jury. The Whalen case is perhaps more similar to the present case than any other one we have found.

The appellant next cites Harris v. Cameron, 81 Wis. 239, 51 N. W. 437, decided in 1892. There the court described an air-gun as a toy, likening it, as we have already indicated, to a pocketknife, a bow and arrow set, and a baseball bat. We disagree with that reasoning. Those other toys are capable of inflicting serious injury when they are intentionally used for that purpose. It goes without saying that whenever children play together it is a practical impossibility for their parents to deny them access to objects that may be used to inflict intentional harm. The significant difference here is that an air rifle may cause serious accidental injury as well as serious intentional injury. It is more comparable to a firearm than to a harmless toy.

Moreover, the Harris case, like the Chaddock case in Michigan, cannot be regarded as the law today. In Gerlat v. Christianson, 13 Wis. 2d 31, 108 N. W. 2d 194 (1961), in a case not materially different from that now before us, the court upheld a verdict for the plaintiff, holding that it was for the jury to say whether the defendant father was negligent in allowing his son to have access to an air rifle. In distinguishing the Harris ease the court said: 1 ‘ The only question involved in that case was whether the purchase and presentation of an air gun by the father to his son constituted negligence.” The court also observed that the classification of an air gun as a toy had been changed by statute.

The third case relied upon is Capps v. Carpenter, 129 Kan. 462, 283 Pac. 655 (1930). There the court did say that a BB gun is not a dangerous agency, but that statement was qualified by this language later in the opinion: “When a chattel is itself a dangerous thing, probable harm from its use is foreseeable, and precaution must be taken accordingly. When probability of harm depends upon the immaturity, incompetence, inexperience, recklessness, or ferociousness of the person to whom a chattel is given for use, quite a different issue is presented. The person receiving the chattel is the dangerous agncy.” Upon that basis the court concluded that there was a jury question as to the defendant’s liability for having allowed his eight-year-old son to have a BB gun, upon proof that the child was cruel and savage toward other children. It will be seen from the paragraph we have quoted that the court would have taken the same position if, as here, the child had been reckless.

Fourth, counsel cite Lane v. Chatham, 251 N. C. 400, III S. E. 2d 598 (1959), but again the only comfort afforded to the appellant is the court’s statement that an air rifle is not a dangerous instrumentality per se¡. The court in fact sustained a verdict against the child’s mother on the ground that she, “after learning of Raymond’s misuse of his air rifle, breached her legal duty by failing to exercise reasonable care to prohibit, restrict or supervise Raymond’s further use thereof.” Furthermore, there is much practical sense in these sentences from Justice Higgins’s concurring opinion: “I concur in the opinion. However, court decisions that air rifles are not per se dangerous weapons are as out of date as the horse and buggy. Marvelous advances have been made both in the precision and power of pneumatic arms. Sporting magazines on practically every newstand carry stories and advertisements of air rifles capable of driving a lead slug through a three-quarter-inch pine board. It is time for the courts to find out what the public, or at least those interested in such matters, has known for some time — that a well manufactured air rifle is now not only a dangerous, but a deadly weapon.”

We do not mean that the appellant’s contention is without support in the cases. There are undoubtedly a few courts that would approve a directed verdict in a case such as this one. See, for instance, Norlin v. Connolly, 336 Mass. 553, 146 N. E. 2d 663 (1957). But we think the better-reasoned cases, and especially the more recent ones, support the view that the proof in the case at hand raised a question of fact for the jury. In at least two cases an air rifle has been found to be a dangerous instrumentality. Phillips v. D’Amico, 21 So. 2d 748 (La. App., 1945); Archibald v. Jewell, 70 Pa. Super. 247 (1918). We do not feel called upon to say that no jury should be permitted to reach that conclusion.

In the present case the appellant, with knowledge that his son had misused a BB gun in the past, left the weapon and the ammunition in an unlocked closet. His conduct may be contrasted with that of the father in Tatum v. Lance, 238 Miss. 156, 117 So. 2d 795 (1960), who won a directed verdict upon proof that he had hidden the BB’s for his son’s gun under some clothes in an upstairs dresser drawer, where the child found them only by searching the house in his parents’ absence. We conclude that the trial court was right in letting the case go to the jury.

Affirmed.


author: George Bose Smith, Justice.

text:
    Bale Chevrolet Co. et al v. Louie Armstrong
    5-4075
    409 S.W. 2d 328
    Opinion delivered December 19, 1966

      Barber, Henry, Thurman, McCaskiU & Amsler, for appellants.

      Cockrill, Laser, McGekee, Sharp & Boswell, for appellee.
   George Bose Smith, Justice.

This is another in a series of recent workmen’s compensation cases involving heart attacks. Here the commission’s award of compensation was approved by the circuit court. The principal question on appeal is whether there is any substantial evidence to support the commission’s finding that the connection between the claimant’s work and his heart attack was causal rather than casual.

Armstrong was a used-car salesman. While he was at work on July 29, 1964, he suffered a heart attack. After a period of hospitalization and bed rest he was able, by late November, to resume work for a few hours a day. Though remaining under a doctor’s care Armstrong continued to increase his workday until his employer discharged him on January 14, for asserted misconduct. The next, day his doctor found, during a regularly scheduled visit, that Armstrong’s condition was decidedly ' worse. Total disability unquestionably existed when the case was heard a few months later by the referee.

Both of the doctors who actually treated Armstrong were of the opinion that his work contributed to the heart attack. Their case histories showed that for two days before the attack occurred Armstrong had suffered chest pains which they considered to be indicative of the onset of the attack. It was their conclusion that his continuing at work during those two days contributed to the myocardial infarction that occurred. The appellants’ medical witnesses, who did not treat the patient, were of the opposite opinion.

On the face of it, the testimony of the claimant’s attending physicians is substantial proof supporting the award. Rebsamen West v. Bailey, 239 Ark. 1100, 396 S. W. 2d 822 (1965). The appellants insist, however, that the doctors ’ opinions rest entirely upon the case history of earlier chest pains and that the accuracy of that ease history (obtained, of course, from the patient) is completely destroyed by this excerpt from the early part of Armstrong’s direct examination:

“Q. Now, prior to this time [July 29, 1964], had you had any indications of a heart condition? Did you have any change or any symptoms of a heart condition?
“A. If I did, I didn’t know it.”

The answer to this argument is that we must resolve all doubts in favor of the commission’s decision. The commission could fairly have concluded that the doctors recognized the chest pains to be symptomatic of a heart condition even though Armstrong, in his own words, “didn’t know it.”

There is one other point in the case. When Armstrong’s attack occurred on July 29,1964, his employer’s insurance carrier was United States Fidelity & Guaranty Company. On the following January 1 the employer placed its insurance with another company. The U.S. F. & G., still insisting that the attack of July 29 was not caused by Armstrong’s employment, suggests that the claimant’s disability should be attributed to the emotional stress of his discharge on January 14, so that the second insurance carrier would be liable. Inasmuch as the commission properly found that the July attack was the cause of disability, this argument is without merit. The original carrier continues to be liable despite the change in coverage. Moss v. El Dorado Drilling Co., 237 Ark. 80, 371 S. W. 2d 528 (1963).

Affirmed.

Cobb and Amsler, JJ., not participating.


author: George Rose Smith, Justice.

text:
    St. L. SW. Ry. Co. v. Frances W. Farrell, Adm’x.
    5-4184
    409 S.W. 2d 341
    Opinion delivered December 19, 1966

      J. C. Deacon, for appellant.

      Shaver & Shaver, for appellee.
   George Rose Smith, Justice.

In this action for wrongful death the appellee recovered judgment for $70,000. The appellant filed its notice of appeal, hut the record was refused by the clerk of this court, who thought that the notice of appeal had been filed too late. Under Supreme Court Rule 5 the appellant filed the present motion for a rule to require the clerk to docket the case. The motion involves a new procedural statute, which we have not had occasion to construe. Act 123 of 1963; Ark. Stat. Ann. § § 27-2106.3 to 27-2106.6 (Supp. 1965). We have concluded that an opinion might be helpful to the bar.

Act 123 was evidently intended to remedy an awkward situation created by Act 555 of 1953. Act 555 provided that in civil cases no motion for a new trial should be necessary, § 27-2127.5 (Repl. 1962), and that the notice of appeal should be filed within thirty days after the entry of the judgment or decree. Section 27-2106.1. However, motions for a new trial were not abolished. Experience under Act 555 disclosed this difficulty: Not infrequently the losing party might think that he had a. sound reason for asking the trial judge to grant a new trial. Nevertheless, he had to file his notice of appe'al within thirty days. Often that interval was not sufficient for a motion for a new trial to be prepared, briefed, and acted upon; so that procedure had to be abandoned.

Act 123 remedied that defect in Act 555. The new statute applies not only to motions for a new trial but also to other specified post-judgment proceedings. We shall not try to set forth all the provisions of Act 123. For the purposes of this case all that we need to do is to show that the applicable provisions of the act were complied with.

Section 1 of Act 123 requires that any motion for a new trial be filed within the' time provided by law. That time is ordinarily a period of fifteen days after the rendition of the verdict. Section 27-1904. Here the verdict was returned on April 20, 1966, and the motion for a new trial was filed on May 5; so it was timely.

Next, Section 2 of Act 123 requires the party to present the motion to the trial court within thirty days after its filing. If the matter cannot be heard within that period of thirty days the party must, within that period, request the court either to take the motion under advisement or set a definite date for the motion to be heard. If neither of those steps is taken within the thirty days it shall be deemed that the motion has been finally disposed of at the expiration of the thirty days, and the time for filing a notice of appeal begins to run.

Here counsel for the appellant tracked the statute to the letter. The motion for a new trial was promptly presented to Judge Light. On May 7 Judge Light informed counsel by letter that he could set the motion for a hearing in May. He suggested instead that the matter be submitted on written briefs.

On May 25, still within thirty days after the filing of the motion, the appellant’s attorney took the precaution of asking Judge Light to send him a letter stating that he had taken the matter under advisement. This request was wise; for, to avoid the uncertainties of oral testimony, it is evidently desirable that a docket entry, order, or other written, dated record be made at this point. On May 27 Judge Light wrote counsel that he had taken the motion under advisement.

Section 2 of Act 123 also provides that where the motion is taken under advisement or set for a hearing, the motion shall not be deemed to have been disposed of until the court enters its order granting or denying the motion. When such an order is entered any party desiring to appeal shall then have ten days in which to file his notice of appeal. Here Judge Light denied the motion for a new trial on June 28, and the appellant filed a timely notice of appeal on July 2.

It may be added that counsel for the appellant not only kept Mr. Shaver, the opposing’ attorney, informed of every step that was taken but also requested him to express any disagreement he might have with the procedure being followed. Mr. Shaver, in the best tradition of the bar, not only made no objection but generously stated that he thought the procedure being followed was correct. In that same spirit he has not resisted the present motion for a rule on the clerk.

The requested rule is granted, the parties’ time for filing briefs to run from today.


author: Osro Cobb, Justice.

text:
    Doyle H. Stone et ux v. Elmer J. Halliburton
    5-4017
    409 S.W. 2d 829
    Opinion delivered December 19, 1966
    [Rehearing denied January 23, 1967.]

      Moses, McClellan, Arnold, Owen & McDermott-. By James B. Howard, for appellants

      Charles L. Carpenter, for appellee.
   Osro Cobb, Justice.

This appeal involves adjacent owners of suburban residential properties in Pulaski County, the dispute arising from the erection of a fence which closed appellants’ driveway.

The law question raised is as to the propriety of the Chancellor in sustaining a demurrer to appellants’ evidence and in dismissing appellants’ complaint.

The facts at issue relate to the establishment by appellants and their predecessors in title of a prescriptive right of use of a driveway which runs for approximately twenty feet across the land of appellee in order to reach what is known as “Redding Lane”, which is surfaced with asphalt.

Two knowledgeable witnesses, A. M. Duncan and Mrs. Bessie Turley, testified that the driveway had been used by them and the general public, without obstruction or interference, since 1952. The driveway was open to use when appellants purchased their property in 1962. In June of 1965, appellee erected a fence across the driveway and appellants immediately thereafter instituted this action in Chancery Court for relief.

We have concluded that the evidence of appellants was sufficient to make a prima facie case as to their claims as to an established prescriptive right of use of the driveway as situated, and that the trial court erred in sustaining the demurrer to the sufficiency of appellants’ evidence. Moreover, appellee offered no proof on his own behalf, nor did his counsel indicate to the trial court at the conclusion of appellants’ evidence that appellee rested. If this had been done, the trial court would have been required to weigh the evidence and make findings thereon binding as as to all parties. Since this did not occur, the rule announced in Werbe, et al v. Holt, 217 Ark. 198, 229 S. W. 2d 225 (1950) is applicable and requires us to reverse and remand the case for further proceedings.

Reversed and remanded for further proceedings.


text:
    Marshall Hodge v. Villa Hodge
    5-4073
    409 S.W. 2d 316
    Opinion delivered December 19, 1966

      Fred A. Newth, for appellant.
    No brief, for appellee.
   Osro Cobb, Justice.

This appeal involves supplemental proceedings following a decree of divorce.

Appellant petitioned for a reduction in alimony payments to appellee and for other relief, based upon an alleged change in his earnings.

The trial court sustained a demurrer to appellant’s evidence and dismissed the case. From this action appellant has prosecuted an appeal.

Appellee was granted a divorce from appellant in 1964. The decree was not made a part of the record but the testimony and comments of the Court during the hearing indicate that a property settlement may have been incorporated into the decree.

We have many times held that when a property settlement is embraced in a decree of divorce, including an award of alimony, that the Court is powerless to change the alimony award irrespective of changes in the economic situation of the parties. Bachus v. Bachus, 216 Ark. 802, 227 S.W. 2d 439 (1950).

Appellant and his 19-year-old daughter, who lives with him, were the only witnesses to testify. Appellant testified that he had earned nothing in 1966. On cross-examination he admitted that his rent for living quarters was $65.00 per month; that his groceries were $20.00 per week or $90.00 per month; that he and his daughter had traded in a 1963 Mercury for a 1965 Mustang sports car; that the payment on the Mustang was $65.80 per month; that appellee had advanced to him $1,000.00 of her own funds for use in purchasing a filling station business; that in the decree of divorce a lien in said amount was fixed for the benefit of appellee; that notwithstanding the terms of the decree, which were well known to appellant, he sold the business and paid appellee nothing from the proceeds; that he is in arrears in his alimony payments in an undisclosed amount.

The daughter of appellant on cross-examination testified that appellant was working regularly and he had told her he was making $60.00 a week. The daughter received a nominal allotment from her husband, who was in service overseas.

No substantial evidence was given relating to appellee’s economic situation as of the time of hearing. From the verified pleadings on behalf of appellee, it appears her income was less than at the time of divorce.

Had appellee’s attorney rested at the conclusion of appellant’s testimony and before the making of the motion to dismiss, the trial court would have been required to weigh the evidence and make findings binding upon both parties. However, this did not occur. The case, therefore, is controlled by Werbe, et al v. Holt, 217 Ark. 198, 229 S. W. 2d 225 (1950), from which we do not recede.

We are, therefore, compelled to reverse this case for further proceedings. This will afford the trial court an opportunity to examine the decree of divorce to ascertain whether it included a property settlement. It will also provide the trial court an opportunity to fix and assess an appropriate fee for counsel for appellee for services rendered.

Eeversed and remanded.


author: Guy Amsler, Justice.

text:
    James W. Miller, d/b/a A. & A. Const. Co. v. John T. Garner et ux
    5-4035
    409 S.W. 2d 336
    Opinion delivered December 19, 1966

      Harper, Harper, Young & Durden, for appellant.

      Robinson & Rogers, for appellees.
   Guy Amsler, Justice.

Appellees John T. Garner and Ms wife granted the City of Fort Smith a right-of-way easement for a water line across a small portion of their property in Crawford County, Arkansas, in 1964. Appellant James W. Miller, d/b/a A & A Construction Company was the subcontractor who excavated the ditches and laid the line across the Garner property. Appellant used dynamite and ammonium nitrate in loosening up the shale and granite while digging the ditches. Appellees contend that the blasting damaged their home and filed suit for $9,500.00 against appellant (and the contractor) in Crawford Circuit 'Court. The Court dismissed the case against the principal contractor and there was no appeal from this action.

The jury returned a verdict for damages in the sum of $4,950.00, on which judgment was entered and this appeal followed.

For reversal, appellant urges two points: (1) there was no substantial evidence to support the jury’s verdict; and (2) the court erred in permitting the jury to complete its verdict in open court and that the court’s action constituted an invasion of the province of the jury.

A brief review of the evidence indicates that point one is not well taken. Appellee John T. Garner testified that there were no cracks in his house prior to the blasting and that numerous imperfections, appeared while the work was in progress, some 80 feet from his house. He complained to those in charge and was given assurances that if damage was done it would be taker care of.

The stone mason, carpenter and building contractor who inspected the house for appellees found cracks (some of them as wide as a pencil) and all three were of the opinion that the imperfections were not due to the foundation settling. Witnesses for both sides pretty well agreed that cracks in houses, due to settlement, usually occur during the first year after a structure is erected. Appellant’s witnesses found some defects but were of the opinion that they “ could” have resulted from causes other than the blasting.

On the question of damages the jury accepted the lowest estimate ($4,950.00) given by a witness for appellees (the man who built the house). His testimony was not as detailed as might be desired but we are unwilling to say that it is not of a substantial nature. Another qualified witness estimated the damages at $5,000.00 to $6,000.00.

The evidence as a whole was sufficient to carry the case to the jury and that being true we follow our long established rule of not overturning a jury verdict that is based on substantial evidence. Duty v. Gunter, 231 Ark. 585, 331 S. W. 2d 111; Williams v. Cooper, 224 Ark. 317, 273 S. W. 2d 15.

Point two is bottomed on these happenings: The jury brought in a verdict that read: “We, the Jury, find for the plaintiffs.” Then this colloquy between the court and jury occurred:

“THE COURT: But you haven’t fixed any amount.
FOREMAN: They said the amount that they asked for.
THE COURT: Now, did they say the amount asked for or the amount that was testified to?
JUROR: $4,950.00.
THE COURT: Is that the amount you agreed on?
FOREMAN: It is, Tour Honor.
THE COURT: Was the verdict unanimous?
THE FOREMAN: It was.”

The Judge then amended the verdict to show $4,-950.00 as plaintiffs’ damages and discharged the jury.

After the jury had departed the defendant made the following motion:

“The defendants move that the Court at this time declare the same to have been a mistrial, for the reason that' the Jury was properly instructed as to the form of the verdict and was instructed prior to their retirement to the jury room for deliberation that if they did, in fact, find for Plaintiffs on the issues in this case, that they should fix the sum or amount which would be required to reasonably repair the damages to Plaintiffs’ property. They failed to insert in the verdict such amount and only upon prompting by the 'Court upon the effect of the verdict, the Foreman stated that it was the intent of the Jury to find for the plaintiffs in the full amount sued for. Whereupon, the Court asked the Foreman, Mr. Sam Turner, if it was intended that the jury was to find for the full amount sued for or the amount that had been testified to, and in response, the foreman, Mr. Sam Turner, said that it was the amount testified, being $4,950.00, which was the testimony of one of the Plaintiffs’ witnesses, Willie Wikman. Whereupon, the Court inquired of the entire panel assembled before the bench whether that was the amount to which they had agreed. They nodded their assent and following which the Court inserted in the verdict, the phrase ‘the sum of $4,950.00.’ ”

Appellant contends, inter alia, that the jury should have been sent back for further deliberation on the amount of damages. Perhaps no one would gainsay that such is the more appropriate and acceptable practice. Had timely request been made of the capable trial judge he doubtless would have followed the customary procedure and had the jury retire for further consultation regarding the amount to be awarded.

The truth is that the verdict as to damages is an accurate expression of the jury’s finding and is not an expression of the judge’s views. In Fitzhugh v. Elliott, 237 Ark. 88, 371 S. W. 2d 533, we used a quotation from 53 Am. Jur., Trial, § 1094 that is pertinent here.

“While the practice of amending verdicts in matters of form is one of long standing, based on principles of the soundest public policy in the furtherance of justice, it is strictly limited to cases where the jury have expressed their meaning' in an informal manner. The court has no power to supply substantial omissions, and the amendment in all cases must be such as to make the verdict conform to the real intent of the jury. The judge cannot, under the guise of amending the verdict, invade the province of the jury or substitute his verdict for theirs. After the amendment the verdict must be not what the judge thinks it ought to have been, but what the jury intended it to be. Their actual intent, and not his notion of what they ought to have intended, is the thing to be expressed and worked out by the amendment.”

Some of our cases (which are readily distinguishable) dealing with questions of a related nature are: Womack v. Brickell, 232 Ark. 385, 337 S. W. 2d 655; Rice & Hoilman v. Henderson, 183 Ark. 355, 35 S. W. 2d 1016; Beckley v. Miller, 96 Ark. 379, 131 S. W. 876; and International Harvester Co. v. Land, 234 Ark. 682, 354 S. W. 2d 13.

Neal et al v. Peevey, 39 Ark. 337, is a ease of ancient origin which we consider decisive here. Peevey sued Neal and Miller for false imprisonment. The jury brought in a verdict which read, “We, the jury, find for the plaintiff, and assess the damages at $87.50 each. Joseph Savage, Foreman.”

We quote from the opinion:

‘ ‘ The court informed the jury that their verdict was not in proper form, and that whatever damages they found should be against both of the defendants jointly. Thereupon, the jury unanimously consented that the verdict should be modified so as to assess the damages at $175 against both defendants, and the modification was made by the court by erasure and interlineation, so as to make the verdict read as follows: ‘We, the jury, find for the plaintiff, and assess the damages at $175.
‘Joseph Savage, Foreman.’
“And, after reading the verdict as modified, the court asked the jury if that was their verdict, to which each juror answered in the affirmative. But the foreman did not sign the verdict after it was modified. ’ ’

This action of the trial court was one of the alleged errors contained in the motion for a new trial. This court, in affirming, held that, “It is the right and duty of the trial court to see that"the verdict is formal, and to amend it if it incorrectly expresses the intention of the jury.”

Prom what has been said it follows that this case is affirmed.


author: Hugh M. Bland, Justice.

text:
    John Henry Dokes and Sylvia Dokes v. State
    5224
    409 S.W. 2d 827
    Opinion delivered December 19, 1966
    [Rehearing denied January 23, 1967.]

      Delector Tiller, John W. Walker, Jack Greenberg, James M. Nabrit III, and Michael Meltsner, for appellants.

      Bruce Bennett, Attorney General; James G. Wood, Asst. Atty. Gen., for appellee.
   Hugh M. Bland, Justice.

The appellants are husband and wife and live in an apartment at 287 Granite Mountain Circle in the Booker Home Project.

On the night of January 30,1965 at about 11 o’clock p.m., Officer Jim Harris of the Little Rock Police Department, who was also employed as night watchman for the Little Rock Housing Authority, observed an unusual amount of traffic entering the Booker Home Project. Several of these automobiles first went to the liquor store across the street and the occupants made purchases. At his request, Officers Parsley and Terry came to the Project. As the three officers approached the apartment where all of the cars had congregated, two men and a lady came from the apartment. The officers identified themselves and Sylvia Dokes, one of these persons, invited them to the apartment. Upon entering the apartment, the officers observed several people in the living room, kitchen and storage room. In all three of these areas there were beer cans and mixed drinks. There were twenty-two people in the apartment, some were adults, some were minors, the youngest being a girl aged fourteen. Officer Parsley testified that this minor, aged fourteen, had the smell of liquor on her breath; Janet Kirspel, aged nineteen, had a mixed drink in her hand which was later claimed by Sylvia Dokes as her drink. Other adults in the party admitted to the officers that they had been drinking. The officers did not have a search warrant and did not have a warrant of arrest.

All twenty-two persons were taken to the Police Station and the adults were charged with Contributory Delinquency and the minors with possession of intoxicating beverages.

Appellants, after pleading not guilty to the charges against them, were tried in the Municipal Court of Little Rock on May 4, 1965, found guilty and fined $25.00 plus $10.50 costs each. An appeal was perfected by appellants to the Circuit Court of Pulaski County where they filed a motion to dismiss the information and to suppress the evidence. These motions were overruled by th Circuit Court. Trial was held on April 8, 1966 before a jury; both defendants were found guilty and a fine fixed at $200.00 each. Appellants filed a motion for new trial which was overruled and an appeal was perfected to this court.

An examination of the motion for new trial and the points relied upon for reversal reveals only two points that can be considered by this court: (1) The search was unreasonable and in violation of the Constitution of Arkansas, Art. 2, §15, and in violation of the Fourth and Fourteenth Amendments to the Constitution of the United States, (2) the State failed to prove the necessary facts to sustain the conviction for contributory delinquency.

The defendants did not challenge or put in issue the sufficiency of the evidence.

Was the appellants’ constitutional protection against unreasonable search violated by the officers? The officers, after identifying themselves as officers, were invited into the apartment by Sylvia Dokes, one of the appellants herein. No demand was ever made by her on the officers for a search warrant but the evidence clearly disclosed that she waived the right to a search warrant. Williams v. State, 237 Ark. 569, 375 S.W. 2d 375 (1964), quotes from 79 C.J.S. Searches and Seizures § 62, p. 816 et seq., which contains a discussion of waiver and consent and the holdings from the various jurisdictions, including the United States Supreme Court, are summarized as follows:

“The constitutional immunity from unreasonable searches and seizures may be waived, as by a voluntary invitation or consent to a search or seizure. Thus individuals may waive their immunity to illegal searches of their persons, possessions, or dwelling houses, as well as to the illegal search of their premises, places of business, and searches and seizures of books, papers, or records. Hence, one who has thus consented to a search cannot thereafter complain of irregularities in the search warrant, or question its sufficiency or the manner of its issuance, since an invitation or consent to the search dispenses with the necessity of a search warrant altogether.” [Also see 47 Am. Jur., Searches and Seizures, p. 547, § 71.]

We see no merit in appellants’ contention that there was an unlawful search.

As to appellants’ second contention, the State proved there was a congregation of adults and minors in appellants ’ apartment where intoxicating liquor was served. The statute on contributory delinquency, Ark. Stat. Ann. § 45-239 (Repl. 1964) provides that:

“Any person who shall, by any act, cause, encourage or contribute to the dependency or delinquency of a child * * * or who shall, for any cause, be responsible therefor, shall be guilty of a misdemeanor ***.”

Appellants contend that it was necessary for the State to prove that the minors in question were, in fact, delinquents before appellants could be found guilty of contributing to their delinquency. In Williams v. City of Malvern, 222 Ark. 432, 261 S.W. 2d 6, we held that a person may be found guilty of contributing to the delinquency of a minor, under our statute, by acts which directly tend to cause delinquency, whether that condition actually results or not. This follows the majority view as it was said in 4 Arkansas Law Review, p. 478:

“* * * egseilce 0f £he majority view is that requiring the child to have been a delinquent at the time the acts were committed or to be one as a consequence thereof would not be consonant with the beneficent purpose of the legislature, vis., to stamp out juvenile delinquency at its roots.”

We are committed to the rule that it is only necessary for the State to prove a condition or circumstances existing that would tend to cause, encourage or contribute to the delinquency of a child. The State met that burden and the conviction is Avell supported by the evidence.

All of the other points for reversal were not brought into the motion for a new trial and cannot be considered for the first time on appeal to this court. Watkins v. State, 222 Ark. 444, 261 S.W. 2d 274; Hardin v. State, 225 Ark. 602, 284 S.W. 2d 111.

Finding no error, the judgment of conviction is affirmed.


text:
    Bonnie Hunter v. James E. Dixon et al
    5-4002
    410 S.W. 2d 389
    Opinion delivered December 19, 1966
    [Rehearing denied February 6, 1967]

      Roy Mitchell, for appellant.

      E. C. Thacker and Wood, Ghesnutt & Smith and Michael B. Heindl, for appellees.
   Hugh M. Bland, Justice.

This is a suit to quiet title to 79.36 acres of land in Garland County Arkansas. At the time this suit was commenced (October 12,1964) record title to the property was in James E. Dixon and Shirley Dixon (appellees herein) by virtue of warranty deeds from Esther DePencier, Curtis Tarring Gardner, and M. G. DePencier, surviving husband of Mildred S. Gardner, deceased. (M. G. DePencier and Curtis Tarring Gardner being the only heirs at law of Mildred S. Gardner, deceased.)

In. September of 1959 appellant was convicted of second degree murder and by opinion of this court dated May 30, 1960, Connelly v. State, 232 Ark. 297, 335 S. W. 2d 723, the judgment and conviction was reversed and remanded. On February 19, 1960 appellant, using- the name of her sister, Gwen Combs, entered into a handwritten sales agreement with Esther M. DePencier, agent for M. G. DePencier, administrator for Mildred S. Gardner estate, wherein she agreed to purchase subject property for $8,500.00, with a down payment of $500.00 and the balance to be paid at the rate of $50.00 per month. On February 27, 1960 she entered into a typed sales agreement with the same party for subject lands but this agreement showed the purchaser to be Royce L. Nichols, her brother. She admitted signing Gwen Combs’ name to the first agreement and Royce L. Nichols ’ to the second agreement. She was using their names to avoid action of her creditors in civil suits then pending.

In September of 1960 she was retried in Garland Circuit Court and convicted of manslaughter. This con viction was affirmed by this court on September 18, 1961, Connelly v. State, 234 Ark. 143, 350 S. W. 2d 298. (In both criminal cases she was tried under the name of Connelly.) In the case affirmed she received a three year sentence but after conviction she decided to become a fugitive from justice and left the state November 29, 1961. She was apprehended in Virginia and returned to Arkansas about March 15, 1962 to serve her three-year sentence. She was paroled on September 6, 1963.

Appellant made the monthly payments of $50.00 for a period of five months in the name of her brother, Royce L. Nichols. Just prior to leaving Hot Springs late in November 1961, the appellant confided in her brother, Royce L. Nichols, that she had placed the sales contract in his name and he moved to the farm property. The contract papers and receipts were kept by appellant’s 18-year-old daughter, Bonnie Jo Connelly.

On September 28, 1960 appellant prepared-an assignment of the sales agreement from Royce L. Nichols to Gwen Combs, forging the signatures of both parties. Through November 23, 1961 appellant made the monthly payments in the name of Gwen Combs. From that time until January 29, 1962 these payments were not made as appellant was a fugitive from justice and had no contact with her relatives.

In January 1962 the contract installment payments were in arrears. Bonnie Jo Connelly unsuccessfully tried to raise the money to pay them. She contacted both her aunt, Gwen Combs, and her uncle, Royce L. Nichols, without success and finally wrote the DePenciers in January 1962 under the name ‘ ‘ Gwen ’ ’ stating that she was unable to keep up the payments and that she would let the property go hack.

Upon learning of this delinquency in payments, Royce L. Nichols called Mr. DePencier and asked for additional time to pay the hack installments hut could not get the money, so he set about to sell the equity. A day or so prior to January 29, 1962 he contacted appellee, James Dixon, showed him the farm, informed him of the financial problem and sold him the equity in the farm for $500.00 less $150.00 to pay the three delinquent installments. Dixon assumed the balance of the contract indebtedness of about $7,800.00. After receiving the $500.00, less $150.00 for the delinquent payments, Nichols gave Bonnie Jo Connelly $150.00, kept $200.00 and left the state.

On January 29, 1962 Royce L. Nichols assigned the sales agreement for purchase of the property in question to appellee, Dixon, who took possession of the property on that date. Appellee Dixon refinanced the loan on the property in question and paid appellee De-Pencier in full. On November 29, 1963 appellee DePencier executed and delivered to appellee Dixon a warranty deed to the property in question.

After the property was sold to the Dixons, appellant’s daughter took the furniture out of the house and had it sold at auction.

Appellant claims the value of certain timber cut from the premises but the record shows that the timber was cut after the appellees had title and this claim is without merit.

After parole, appellant returned to the property and a dispute arose between her and the appellees as to title to the property. As a result, this suit was filed. After a lengthy hearing, the chancellor quieted title to the property in appellees, James E. Dixon and Shirley Dixon, subject to the mortgage of Arkansas First National Bank of Hot Springs, dismissed the cross com-plant and amendments of appellant, and dismissed the third party cross complaint against the third party defendants, the DePenciers.

From this decree the appellant prosecutes this appeal and for reversal relies on seven points as follows:

“1. The trial court erred in confirming the title to land in question in appellees, James E. Dixon and Shirley Dixon, his wife.
2. The trial court erred in dismissing cross complaint of appellant, Bonnie Hunter, against appellees, James E. Dixon and Shirley Dixon, his wife.
3. The trial court erred in dismissing third party complaint of appellant, Bonnie Hunter, against third party defendants, M. G. DePencier and Esther M. DePencier.
4. The trial court erred in not cancelling the following deeds, warranty deed from M. G. DePencier and Esther DePencier, dated November 29, 1963, to James E. Dixon and Shirley Dixon, his wife, recorded in Book 546, at page 117, warranty deed from Curtis Tarring Gardner to James E. Dixon and Shirley Dixon, his wife, dated November 5, 1963, and recorded in Book 546 at page 115 and warranty deed from Esther DePencier to James E. Dixon and Shirley Dixon, his wife, dated November 29, 1963, and recorded in Book 546 at page 113, and vesting title in appellant, Bonnie Hnnter, subject to mortgage held by Arkansas First National Bank of Hot Springs.
5. The trial court erred in not finding that the appellant, Bonnie Hunter, using the name Gwen Combs, was the legal and lawful purchaser of the lands in question under a valid sales contract from M. G. DePencier, as Administrator of the Estate of Mildred S. Gardner DePencier, deceased, dated February 27, 1960, using the name of Boyce L. Nichols, as purchaser and transferred back to Gwen Combs, this being ratified and accepted by M. G. DePencier.
6. The trial court erred in not rendering judgment for appellant, Bonnie Hunter, on her cross complaint against James E. Dixon and Shirley Dixon, his wife, for timber wrongfully cut from said lands.
7. The trial court erred in admitting into evidence as Exhibit 6, copy of letter dated January 22, 1961, claimed by appellee, M. G. DePencier to have been written and mailed to Gwen Combs.”

We see no merit in any of the contentions made by appellant. The appellees were purchasers in good faith for a valuable consideration of the subject property and the burden of showing that the purchase was made with notice of material defects was on appellant. Scott v. Carnes, 183 Ark. 650, 37 S. W. 2d 876; Smith v. Olin Industries, 224 Ark. 606, 275 S. W. 2d 439. This burden was not discharged by appellant.

When a person embarks on a course of conduct tending to mislead others, he does so at his peril. When appellant, seeking to avoid, hinder and delay her creditors, had the contract of sale drawn showing the purchaser as Grwen Combs, then as Eoyce L. Nichols, she gave them unlimited authority to do as they saw fit. 24 Am. Jur., § 119, p. 268, states:

“Property Purchased by Debtor in Name of Another. — The majority rule is that the courts will not aid one who has purchased property and caused the title thereto to be transferred to another, for the purpose of hindering, delaying or defrauding his creditors. As bearing on the right of the fraudulent purchaser to equitable relief, it has been held that there is no inherent difference between the act of a debtor conveying his property to another without consideration and that of a purchaser causing the title to the property purchased to be placed in the name of another, where the object of such transfers is to hinder, delay, or defraud creditors.”

Appellant refused to accept the three-year sentence of the jury and mandate of this court and fled the State of Arkansas instead of turning herself over to the prison authorities, thereby becoming a fugitive from justice for over three and one-half months. This particular act was most vital in effecting the default and loss of the subject property into the hands of her brother and daughter because she was unable to contact anyone during this period for fear of their becoming an accessory in her problems with the law. We feel that she realized this at the time she was leaving and, accordingly, we feel that she gave her brother, Eoyce L. Nichols, and her daughter, Bonnie Jo Connelly, the right and authority to deal with the contract and the property as they deemed fit and to her best interests.

In view of our ultimate conclusion, we feel it would unduly prolong this opinion to go into the question of laches, equitable estoppel and violations of equitable maxims such as, “He who comes into equity must come with clean hands.”

The chancellor resolved the issues in favor of appellees, James E. and Shirley Dixon The trial was long and tedious with conflicting evidence and disputed facts. This court has held in a long line of cases that while chancery cases are tried de novo in this court, a decree of the chancery court will not he reversed where there is a disputed question of fact unless the findings are clearly against the preponderance of the evidence. Little v. Holt, 229 Ark. 627, 318 S. W. 2d 157; Stricklen v. Mitchell, 234 Ark. 31, 350 S. W. 2d 319; Arkansas State Board of Pharmacy v. Fey, 235 Ark. 319, 357 S. W. 2d 658, and many other cases set out in West’s Arkansas Digest, Yol. 2-A, Appeal and Error, § 895 (2) pages 255-259 and § 1009 (1) pages 424-427.

The findings of the chancellor in this case are clearly in accord with and not against the preponderance of the evidence.

The decree of the chancery court is affirmed.


author: Carleton Harris, Chief Justice.

text:
    Billy Reeder v. Western Fire Ins. Co. et al
    5-4065
    410 S.W. 2d 122
    Opinion delivered January 9, 1967

      Garner & Parker, for appellant.

      Wayland A. Parker and Warner, Warner, Bag on & Smith, for appellees.
   Carleton Harris, Chief Justice.

This is an action, instituted by appellant, Billy Reeder, against nine insurance companies, to recover on policies as a result of a fire which occurred at the Stardust Club near Fort Smith, Arkansas. The contents of the building, including furniture, fixtures, equipment, supplies, improvements, etc., were insured in the amount of $18,500.00. Appellees, the nine insurance companies, answered, denying each material allegation, and pleading further, inter alia, that appellant should not recover for the reason that he had failed to comply with the provisions of the several policies of insurance, in that he had not filed a proof of loss within sixty days as provided by each policy. The cause proceeded to trial before a jury, and at the conclusion of appellant’s evidence, appellees moved for a directed verdict in their favor; the motion was granted, and the jury was instructed to return its verdict for the defendants. From the judgment so entered, appellant brings this appeal.

It is admitted that appellant did not file a proof of loss with the appellee companies, but Reeder’s contention is that appellees waived this requirement. The question therefore, presently before the court, is whether there was sufficient evidence of waiver offered by appellant to present a jury question.

As will be subsequently pointed out, there was evidently a suspicion that arson had been committed when the fire occurred, and, in fact, on the next day, Reeder and employees were called to the Prosecuting Attorney’s office to answer questions concerning the fire; thereafter, appellant was charged with arson, and on August 23 and 24, 1965, was tried for this offense in the Fort Smith District of the Sebastian County Circuit Court. The trial resulted in an acquittal.

It should be remembered that on appeal, in passing on the question of the correctness of the trial court’s action in directing a verdict, we must take that view of evidence most favorable to the party against whom the verdict is directed.

As stated in Barrentine v. The Henry Wrape Company, 120 Ark. 206, 179 S. W. 328:

“In determining on appeal the correctness of the trial court’s action in directing a verdict for either party, the rule is to take that view of evidence that is most favorable to the party against whom the verdict is directed, and where there is any evidence tending to establish an issue in favor of the party against whom the verdict is directed, it is error to take the case from the jury. [Citing cases] ”

Without discussing all of the testimony, we will mention two instances that, taken together with findings at the pre-trial conference, precluded the court from properly directing a verdict. Reeder testified that he was notified of the fire about 6:30 or 7:00 o’clock on the morning after it occurred; that he immediately went to the premises, arriving there about 7:30, and that Robert Smith, an insurance adjuster, was already there, together with the State Police. Later in the day he returned, and Smith was also present at that time. From appellant’s testimony:

“Well, Mr. Smith was out there then so we walked back in to the kitchen and I had one of those big meat boxes that was a freezer on one side and just a regular icebox on the other side so I opened it up to examine the meat and I could see that it was still frozen so I told him ‘lets inventory this out and maybe I can save some of it.’ And he said ‘No, you just lock it up, everything is just a total loss.’

“Q. And that was Robert Smith the adjuster for the insurance company?

“A. Right.”

The court had previously, in its pre-trial order of March 4, 1966, found:

“* * * It is conceded that Robert D. Smith is the Manager of the local branch office of General Adjustment Bureau. It is conceded that Smith was the adjuster for the defendant companies. The existence of an agency relationship between Mr. Smith and the defendant insurance companies does not appear to be in doubt, but the question of whether or not his conduct would operate as a waiver is reserved.”

Likewise, Earl Flaherty, appellant’s uncle, testified that, upon hearing about the fire, he went to the scene and saw Kit Barton, who was an insurance agent selling policies for the insurance firm of Sagely, Bennett, and Barton, and who had sold some of the insurance to Reeder. According to Flaherty, he was discussing the fire with Barton, and the latter said, “Well, he had just gutted it.” Flaherty then stated that they walked into the kitchen, and he (Flaherty) said that it did not look too bad in there, and Bartin replied, “No, he didn’t start it here in the kitchen where they ususally start them;” that when Flaherty asked if he should “stay around and see that nothing was bothered or destroyed,” “No, it was totaled out,” subsequently explaining to Flaherty that he meant that there was a total loss. The witness stated that Burton did not say who he was referring to as “he,” but when Flaherty mentioned that Reeder was his nephew, Barton “just turned around and started out the door.” It is emphasized by appellees that, according to Flaherty’s testimony, Barton never did state to whom “he” referred, but we think, under all the evidence, it could properly be considered that the reference was to Reeder. The pretrial order finds that Barton “is an agent selling policies for the insurance firm of Sagely, Bennett & Barton asserts that Mr. Barton cannot waive a proof of loss and on which policies the suit is brought. The defendant for his company. The defendant acknowledges, however, that if a proof of loss had been submitted it properly could have been submitted to Mr. Barton. The court stated that, under these circumstances, his authority to waive a proof of loss would be considered as established, although a ruling on whether or not his alleged conduct amounted to a waiver was not resolved.” It is our opinion that these findings, along with the testimony, particularly that of Smith, “Everything is just a total loss,” presents the question of whether there was a waiver.

In addition, a rather pertinent finding is made in Paragraph 12 of the pre-trial order. It sets out that appellant concedes that he did not file a proof of loss, and then states, “The defendant does concede that a notice of loss was given.” The record does not reflect how, or when, the notice of loss was given, but certainly, upon notice, the usual practice of an insurance company is to furnish proof of loss forms. In American Fidelity Fire Insurance Company v. Winfield, 225 Ark. 139, 279 S. W. 2d 836, the testimony reflected that appellee’s landlord wrote to the insurance company, advising that appellee’s automobile had been destroyed by fire. The company denied receiving such a letter, but this court held that the landlord’s testimony that he properly mailed the letter, together with the presumption that it was received by the addressee, constituted substantial evidence to sustain the court’s finding that notice was in fact received by the company. This court then said:

“It being determined that the company received notice of the loss, the next question that arises is: Did the insurance company’s failure to acknowledge receipt of the notice of loss relieve the policyholder from furnishing proof of loss within the 60-day period provided by the policy?”

In answering this question in the affirmative, we quoted from Appleman’s Insurance Law and Practice, Volume 5, § 3633:

“* * * ‘It has been stated that unless there is a bona fide.attempt by the company to adjust a loss, there is a refusal to pay. Therefore, the mere effect of silence or inaction might be sufficient to excuse compliance.’ ”

Further:

“In Ward v. Pacific Fire Insurance Company, 115 S. C. 53, 104 S. W. 316, it is said: ‘While there was no express or unequivocal denial of liability during the period of time prescribed in the policy within which proofs of loss were to be and might have been furnished, yet defendant’s silence, in the light of facts and circumstances, clearly warranted the inference that liability was and would be denied, as it was in fact denied, and plaintiff was warranted in so believing and in acting accordingly. . . . The company received the notice of loss in due time, and, in fairness, it should have notified plaintiff that he must furnish proofs of loss, as required by the policy, if it intended to pay the loss.’ ”

Here, there is a finding that a notice of loss was given.

For the reasons herein stated, we think there was a jury question as to waiver, and the judgment is accordingly reversed and the cause remanded for further proceedings not inconsistent with this opinion.


text:
    Carl A. Zajac v. George Harris
    5-4070
    410 S. W. 2d 593
    Opinion delivered January 9, 1967
    [Rehearing denied February 13, 1967.]

      Loftin, Eerrod & Cole, for appellant.

      Willis V. Leivis, for appellee.
   George Rose Smith, Justice.

The appellee, George Harris, brought this suit to compel the appellant, Carl A. Zajac, to account for the profits and assets of a partnership that assertedly existed between the parties for some two years. Zajac denied that a partnership existed, insisting that Harris was merely an employee in a business owned by Zajac. The chancellor concluded that Harris had met the burden of proving the partnership relationship. The court accordingly referred the case to a master for a statement of the partnership accounts. The essential question here is whether the chancellor’s recognition of the partnership is against the weight of the evidence.

At first blush the testimony appears to be in such hopeless conflict that the controlling issue at the trial must have been one of credibility. Upon reflection, however, we arrive at a somewhat different view of the case. The business association that is known in the law as a partnership is not one that can be defined with precision. To the contrary, a partnership is a contractual relationship that may vary, in form and substance, in an almost infinite variety of ways. The draftsmen of the controlling statute, the Uniform Partnership Act, tacitly acknowledged that fact by stating only in the most general language an assortment of rules that are to be considered in determining whether a partnership exists. Ark. Stat. Ann. § 65-107 (Repl. 1966).

In the case at bar there is the additional consideration that these two laymen went into business together without consulting a lawyer or attempting to put their agreement into writing. It is apparent from the testimony that neither man had any conscious or deliberate intention of entering into a particular legal relationship. When the testimony is viewed in this light the conflicts are not so sharp as they might otherwise appear to be. Our problem is that of determining from the record as a whole whether the association they agreed upon was a partnership or an employer-employee relationship.

Before the two men became business associates Zajac had conducted a combination garage-and-salvage company, filling station,- and grocery store in the Marche community in Pulaski county. This dispute relates only to the salvage branch of the enterprise.

In the salvage operation now in controversy the parties bought wrecked automobiles from insurance companies and either rebuilt them for resale or cannibalized them by reusing or reselling the parts. Harris, the plaintiff, testified that he and Zajac agreed to go into business together, splitting the profits equally — except that Harris was to receive one fourth of the proceeds from any parts sold by him. Harris borrowed $9,-000 from a bank, upon the security of property that he owned, and placed the money in a bank account that he used in buying cars for the firm. The profits were divided from time to time as the cars were resold, so that Harris’s capital was used and reused. He identified checks totaling more than $73,000 that he signed in making purchases for the business.

Zajac, by contrast, took the position that Harris was merely an employee working for a commission of one half the profits realized from cars that Harris himself had bought. Zajac denied that he had ever agreed that Harris would spend his own money in buying cars. “I told him, when you go out there, when you bid on a car, make a note that I will pay for it.” We have no doubt, however, that Harris did use his own money in the venture and that Zajac knew that such expenditures were being made.

Counsel for Zajac put much stress upon their client’s controlling voice in the management of the business. Zajac and his wife and their accountant had charge of the books and records. No partnership income tax return was ever filed. Harris was ostensibly treated as an employee, in that federal withholding and Social Security taxes were paid upon his share of the profits. The firm also carried workmen’s compensation insurance for Harris’s protection. In our opinion, however, any inferences that might ordinarily be drawn from these bookkeeping entries are effectively rebutted by the undisputed fact that Harris, apart from being able to sign his name, was unable to read or write. There is no reason to believe that he appreciated the significance of the accounting practices now relied upon by Zajac. They were unilateral.

We attach much weight to Zajac’s candid admissions, elicited by the chancellor’s questions, that Zajac paid Harris one half of the profits derived from cars that Zajac bought with his own money and sold by his own efforts. Zajac has insisted from the outset that Harris was working upon a commission basis, but that view cannot be reconciled with Harris’s admitted right to receive his share of the profits derived from business conducted by Zajac alone.

There is no real dispute between the parties about the governing principles of law. The ultimate question is whether the two men intended to become partners, as that term is used in the law. Brandenburg v. Brandenburg, 234 Ark. 1117, 356 S. W. 2d 625 (1962). Harris’s receipt of a share of the net profits is prima facie evidence that he was a partner, unless the money was paid to him as wages. Ark. Stat. Ann. § 65-107. Unlike the fact situation in Morrow v. McCaa Chevrolet Co., 231 Ark. 497, 330 S. W. 2d 722 (1960), Harris’s position does not rest upon the bare fact that he received a share of the profits. He invested, as we have seen, substantial sums of his own money in the acquisition of cars for the firm. Zajac concedes that Harris was entitled to a share of the profits from transactions that Harris certainly did not handle on a commission basis. When the testimony is reconciled, as we have attempted to do, it does not appear that the chancellor was wrong in deciding that a partnership existed.

Affirmed.

Byrd, J., not participating.