text:
    Elizabeth ARMSTRONG v. Betsy Martindale BUTLER et al
    76-256
    553 S.W. 2d 453
    Opinion delivered July 11, 1977
    (Division II)

      Joe H. Purcell, Stark Ligón of Smith & Peters, and David L. Armstrong, Louisville, Ky., for appellant.

      J. L. Kidd, of Dodds, Kidd & Ryan and Wayne R. Foster, for appellees.
   John A. Fogleman, Justice.

Anna Elizabeth Love Evans died testate May 22, 1972, leaving surviving her as her heirs at law, her daughter, Anna Elizabeth Armstrong and three grandchildren, Betsy Martindale Butler, Nancy Martindale Tolleson and Jud B. Martindale, Jr., the children of a deceased daughter, Gwendolyn Martindale. Mrs. Evans left a will dated April 30, 1970, which was duly attested, authenticated and admitted to probate on June 16, 1972, without notice, upon the petition of Mrs. Armstrong, who was named as executrix in the will and appointed as such. The grandchildren above named were listed as heirs in the petition for probate. The executrix filed a final accounting on March 21, 1974, which was approved by the probate court on March 25, 1974. The court’s order of approval recited that appellant had distributed the assets of the estate. It discharged the executrix. The will probated read, in pertinent part, as follows:

That I, Anna Elizabeth Love Evans, being of sound and disposing mind and memory do hereby make, publish and declare this to be my last will and testament, hereby revoking any and all other wills by me at anytime heretofore made.
1. I hereby nominate, constitute and appoint my daughter, Anna Elizabeth Armstrong, now living at 624 West Main, Madison, Indiana, as sole executrix hereof, without bond.
2. I hereby direct that all my just debts and funeral expenses be paid as soon after my death as possible.
3. I hereby give, bequeath and devise to my daughter, Anna Elizabeth Armstrong, and unto her heirs and assigns forever, all of my property, both real and personal, regardless of where located.

The grandchildren, who were the children of the deceased daughter, and heirs of the testatrix, were nowhere mentioned in the will, either by name or as a class.

On September 12, 1975, appellant, apparently as executrix, although she had been discharged as such, activated by a suit by the named grandchildren, as pretermitted heirs, for the partition of real estate, filed her petition for the reopening of the estate, the reappointment of appellant as executrix, and a direction to her as personal representative to carry out the wishes of the testatrix expressed in an alleged holographic will dated March 21, 1967. This purported will was attached to the petition. Although appellant was probably proceeding under the provisions of Ark. Stat. Ann. § 62-2122 (a) (Repl. 1971), there was no prayer that the original order of probate be reopened or that the document presented be admitted to probate.

The instrument presented was an unusually odd one, even for a “homemade” will. It was satisfactorily shown that the two pages of which it consisted were both in the handwriting of the testatrix. The ink used on the two pages is obviously of different colors and it is clear that the words, “Signed” and “March 21, 1967”, on the second page are in ink which is a different shade of blue from that in which the text of that page is written. The top page, as the instrument was presented, reads as follows:

Last Will and Testament
I, Elizabeth Love Evans of Hempstead County, Arkansas, being over the age of twenty-one years and of sound and disposing mind and memory, do hereby make, publish, and declare this to be my Last Will and Testament, hereby revoking all wills heretofore made by me at any time.
1. I direct that all my just debts be paid as speedily as possible.
2. I give, devise and bequeath, after the payment of my just debts, all the rest and residue of my estate, real, personal and mixed and wheresoever situated to my daughter, Elizabeth Evans Armstrong.
March 21, 1967.

On the bottom page, the following appears:

Betsy Martindale ) Nancy Martindale ) Children of my deceased daughter, Jud Martindale, Jr.)Gwen Evans Martindale
Since the death of their mother, these children have shown no consideration for me as their maternal grandmother — so I do not include them in my will.
Signed:
March 21, 1967.

The probate judge, over objections of the appellees, authorized the reopening of the estate, found that the instrument dated March 21, 1967 (both pages) was a holographic testamentary instrument, that it was not newly discovered evidence, that the formal will and the holographic one should not be considered as one instrument, that the later will revoked the earlier one, that appellees were pretermitted heirs, that the doctrine of dependent relative revocation, if accepted in Arkansas at all, was not applicable in this case and that the proffered holographic will came too late.

Appellant first contends that the probate court erred in holding that appellees were pretermitted children and entitled as such to recover from the devisees in the 1970 will under Ark. Stat. Ann. § 60-507(b) (Repl. 1971). Appellant points out that the purpose of the statute is to insure that there be no unintentional disherison of a child or issue of a deceased child and to guard and provide against testamentary thoughtlessness. She makes the rather novel argument that appellees were not omitted form the 1970 will by its revocation of all prior wills and that the 1967 will clearly shows that there 'was an intentional disherison and not testamentary thoughtlessness, because the earlier instrument showed that Mrs. Evans intended that appellees take nothing and stated her reasons.

We simply cannot accept this ingenious argument. Nothing could be clearer than the language of the revocation in the 1970 instrument. But appellant contends that Ark. Stat. Ann. § 60-507(b) has been broadened by judicial interpretation in Kinnear v. Langley, 209 Ark. 878, 192 S.W. 2d 978. We do not agree that this decision broadened the effect of the statute sufficiently to support appellant’s argument, or to overcome the impact of Ark. Stat. Ann. § 60-408 (Repl. 1971). That section provides that no part of any revoked will can be revived without re-execution, or the execution of another will in which the revoked will or portion thereof is incorporated by reference.

In the first place appellant argues that under Kinnear, the revocation in the 1970 will constituted a specific reference to the 1967 will. The holding does not support this argument. Under Kinnear, it was held that an existing instrument can be incorporated into a will by reference. It was clearly pointed out there, however, that the extrinsic instrument must be definitely identified in the will into which it is to be incorporated. See also, Montgomery v. Blankenship, 217 Ark. 357, 230 S.W. 2d 51, 21 ALR 2d 212; Comment, Wills — Incorporation By Reference Pretermitted Child Statute, Bowe, 1 Ark. L. Rev. 180; Case Note, Wills, Incorporation of Extrinsic Documents by Reference, 6 Ark. Law Rev. 496. By no stretch of the imagination can we say that the general language of the 1970 will definitely identifies the 1967 instrument. The revocation clause refers to “any and all wills by me at any time heretofore made”. Furthermore, the reference must clearly show the testator’s intention to incorporate the existing document. 2 Page on Wills (Bowe-Parker Revision) 88, 112, §§ 19.18, 19.30; 79 Am.Jur. 2d 423, Wills § 202; 94 CJS 954, Wills, § 163.

Revocation is the antithesis of intention to incorporate. As applied to a will, to revoke is to recall, cancel, set aside, annul, nullify, set at naught, declare null and void. Ford v. Greenawalt, 292 Ill. 121, 126 N.E. 555 (1920); In re Barrie’s Will, 393 Ill. 111, 65 N.E. 2d 433 (1946); In re Walters Estate, 60 Nev. 172, 104 P. 2d 968 (1940). Ordinarily, a revocation in toto by express declaration amounts to annulling, voiding or invalidating the prior instrument. Jackson v. Cannon, 266 S.C. 198, 222 S.E. 2d 494 (1976). “[H]ereby revoking any and all wills by me at any time heretofore made” had a clear, definite and unmistakable meaning.

Appellant seeks to avoid the effect of the express revocation of all prior wills, again on the reasoning of Kinnear v. Langley, 209 Ark. 878, 192 S.W. 2d 978, wherein it was held that a codicil revoking a section of a prior will did not have the effect of making a daughter referred to in the revoked section a pretermitted child. There is a great distinction in the effect of a revocation of a will in toto and a codicil. That distinction is apparent from the language of our opinion in Kinnear. There we said:

A codicil is not an entirely new will. A codicil is, rather, a postscript to the will showing something added by the testator to the original document. Just as a postscript to a letter may show a new idea of the writer or a change, or amendment to a thought, expressed in the letter: so a codicil may express a new bequest or a change or modification of a bequest in the will. Just as the postscript does not physically or literally erase or expunge whatever it affects in the letter: so, also, the codicil does not physically or literally erase or obliterate whatever it affects or changes in the original will. The will is probated along with the codicil; together they constitute the “last will and testament ” of the testator or testatrix.
... A section of a will does not literally and physically cease to exist merely because the section is revoked in the codicil. The revoked section continues to be in actual éxistence, but is given no effect in construing or interpreting the will, since the codicil revokes the section. In some of the cases construing and interpreting wills, there may be found statements to the effect that, when a section in a will has been revoked by a codicil, the testament is construed as though the revoked section did not exist. Such statements are true in construing and interpreting wills and testaments, but these statements do not mean that the revoked section of the will does not exist in fact. The revoked section is not obliterated: it is merely rendered nugatory.

Appellant also relies on testimony of her husband, some of the appellees, her own testimony and that of the scrivener to show that Mrs. Evans had not changed her mind about her grandchildren when she made the 1970 will. The scrivener simply testified that Mrs. Evans did not mention or discuss these grandchildren in any way or the revoking of any previous will but did tell him she wanted appellant to have everything. This testimony was not sufficient to overcome the presumption that Mrs. Evans knew the contents of the will she executed. See Meek v. Bledsoe, 221 Ark. 395, 253 S.W. 2d 369.

The intention of a testator is to be gathered from the four corners of the instrument itself, considering the language used and giving meaning to all its provisions, if possible to do so. Wall v. Bevis, 242 Ark. 644, 414 S.W. 2d 863. The intention of the testator as expressed in the language of his will prevails if consistent with the rules of law. Lewis v. Bowlin, 237 Ark. 947, 377 S.W. 2d 608. We must assume that Mrs. Evans knew what the words in the revocation clause meant and that she was aware of the clause. The courts must apply the clause according to its legal effect and not make a will for her, which might be more nearly in accordance with the testator’s expressed intentions. Lewis v. Bowlin, supra. Oral testimony is admissible for the purpose of showing the meaning of words used when they are ambiguous, but not to show what the testator intended, as distinguished from his express words. Vaught v. Vaught, 247 Ark. 52, 444 S.W. 2d 104; Hardy v. Porter, 245 Ark. 729, 434 S.W. 2d 61. it is true that if there is uncertainty about the intention of the testator when the words of the will are considered in their ordinary sense, the court must read language in the light of circumstances existing when the will was written including relationships with his family and the beneficiaries named, the motives which may be reasonably supposed to influence him and other such matters. Martin v. Simmons First National Bank, 250 Ark. 774, 467 S.W. 2d 165. Extrinsic evidence was not admissible to show that the testatrix intended to disinherit a pretermitted child. Hare v. First Security Bank, 261 Ark. 79, 546 S.W. 2d 427. See also, Duensing v. Duensing, 112 Ark. 362, 165 S.W. 956.

Our statute (§ 60-507) is of the “Missouri type” which operates in favor of the pretermitted child without regard to the real intention of the testator in regard to the omission. 79 Am. Jur. 2d 735, et seq., §§ 643, 644. Under such a statute, extrinsic evidence of the testator’s intent is not admissible. 79 Am. Jur. 2d 739, § 645. There simply was no occasion to consider extrinsic evidence of the circumstances. By the clear words of the 1970 will, Mrs. Evans revoked any and all wills previously made and parol testimony could not be used to show that she meant something entirely different.

Appellant also argues that we should adopt the doctrine of dependent relative revocation. There is no place for the application of the rule here, as we understand it. In Starnes v. Andre, 243 Ark. 712, 421 S.W. 2d 616, we stated that this doctrine is applied to render ineffective a will revocation made with a present and clear intention of the testator to make a new disposition as a substitute, when the new disposition is not made or is ineffective; and is based upon the presumption that a testator, under the circumstances, would prefer the revoked will to intestacy. We said that we did not then know of the doctrine having been applied in Arkansas and we do not now. Here, as there, we are unable to find facts to justify its application. If Mrs. Evans remembered the 1967 will sufficiently to intend to incorporate it and still intended that her grandchildren be disinherited, it is difficult to see why she would make a new will and eliminate any mention of them and the reason for their disinheritance, and yet make exactly the same disposition as she made in the earlier will, unless she had, indeed, forgotten either the grandchildren or any reason for disinheriting them. Mrs. Evans certainly knew the necessity for specifically disinheriting these grandchildren in 1967. She must not have felt as strongly about the matter in 1970 as she did in 1967. It is unlikely that she would have forgotten this necessity if she had. Revocation is indicative of a change of mind about some feature of the revoked instrument.

Appellant points out that her argument is harmonious with the general rule that, if possible, a will should be construed so as to avoid partial intestacy. This is an artificial rule of construction, created judicially, to be resorted to when the intent of the testator cannot be determined by giving the words used their usual meaning. Cross v. Manning, 211 Ark. 803, 202 S.W. 2d 584. It has no application when the language of the instrument compels a different result. Bakos v. Kryder, 260 Ark. 621, 543 S.W. 2d 216. Furthermore, opposed to that aid to construction is the statutory presumption against the disherison of a child or the issue of a deceased child. The statutory presumption is at least as great weight as the rule of construction, if the latter is even applicable. In re Werlich, 230 N.Y. 516, 130 N.E. 632 (1921); Jacobsen v. Farnham, 155 Neb. 776, 53 N.W. 2d 917, 33 ALR 2d 543 (1952); In re Bigony’s Estate, 397 Pa. 102, 152 A. 2d 901 (1959). Although there is a split of authority as to which should prevail, the better view seems to be that the presumption against intestacy should at least be no stronger than the presumption against disherison. Jacobsen v. Farnham, supra; Nichols v. Todd, 20 Tenn. App. 564, 101 S.W. 2d 486 (1936). It has been held that where the two conflict, the will should be interpreted without regard to either. In re Loving’s Estate, 159 Pa. Super. 339, 48 A. 2d 39 (1946). In re Bigony’s Estate, supra. It seems logical that the presumption against intestacy should be subordinate in Arkansas, because Ark. Stat. Ann. § 60-507 goes much further than creation of a presumption. It states the effect of pmission of a child or the issue of a deceased child in clear and distinct language, without admitting of any exception. In any event, neither “presumption” will be permitted to overcome the intention of the testator as expressed in plain words or as it appears by clear implication. In re Walker’s Estate, 376 Pa. 16, 101 A. 2d 652 (1954); In re Bigony’s Estate, supra. An express revocation clause is ordinarily operative even if the effect of the later will and the revocation of the earlier one results in a partial intestacy. 2 Page on Wills 410, § 21.42.

Another factor that militates against the application of the doctrine is the fact that pretermitted children are said to take under the will from which they have been omitted, not against it. Trotter v. Trotter, 31 Ark. 145. See also, Farmers Cooperative Ass’n. Inc. v. Webb, 249 Ark. 277, 459 S.W. 2d 815, Yeates v. Yeates, 179 Ark. 543, 16 S.W. 2d 996. It is only rendered ineffectual when the omitted persons are the only surviving descendants who would be heirs at law. See Crossett Lumber Co. v. Files, 104 Ark. 600, 149 S.W. 908; Bloom v. Strauss, 70 Ark. 483, 69 S.W. 548, 72 S.W. 563.

The decree is affirmed.

We agree: Harris, C.J., and Roy and Hickman, JJ.

       In this connection, see Ark. Stat. Ann. § 62-2116(b) & (c) (Repl. 1971).


source: Caselaw Access Project

author: John A. Fooleman, Justice.

license: Public Domain

text:
    Dean THOMAS, Sp. Adm. v. Thomas Clayton NEWMAN
    76-284
    553 S.W. 2d 459
    Opinion delivered July 11, 1977
    (Division II)

      James C. Cole, for appellant.

      Barber, McCaskill, Amsler & Jones, for appellee.
   John A. Fooleman, Justice.

Appellant Dean Thomas, father of Bradley Thomas, deceased, is Special Administrator of his son’s estate and, as such, he was the plaintiff in a wrongful death action against appellee Thomas Newman. This appeal is from a judgment on a directed verdict in favor of Newman in that suit. The sole point for reversal is the propriety of that verdict. We find error in that action and reverse.

In reviewing the trial court’s action, we must view the evidence in the light most favorable to appellant, drawing all reasonable inferences favorably to him. Wheeless v. Eudora Bank, 256 Ark. 644, 509 S.W. 2d 532; Little Rock Land Company v. Raper, 245 Ark. 641, 433 S.W. 2d 836. In stating the evidence, as we see it, we will do that.

Bradley, or tírad, as he was known, was 13 years of age on April 5, 1975, when he died as a result of being struck by an automobile driven by Newman on State Highway 7 south of Bismarck. Brad had accompanied his father and uncle, J. L. Thomas, on a trip to Reuben Hardin’s farm to cut firewood. His younger sister and a cousin also went along. The journey was made in a pickup truck owned and driven by J. L. Thomas. Brad rode in the bed of the truck along with his little sister. His brother Kelly and cousin Dennis rode in the cab with the two adults. When the party arrived at the Hardin farm along Highway 7, at about 12:30 p.m., J. L. Thomas turned the truck off the highway and stopped at a gate, which was an entrance to the farm. Brad’s father got out of the truck and went to open the gate. Brad told his cousin Bill that he knew where they could find some bottles. In spite of being told by his uncle not to leave the truck, Brad was observed on the opposite side of the highway near a highway sign on its shoulder by his father, who looked in that direction as he was about to close the gate after the truck had been driven through it. The father called to the lad to return to the truck, and then turned his attention to the gate. The father had not seen any automobiles on the highway in either direction when he called to his son, but almost immediately he heard brakes squealing and a “bump,” and turned and saw Brad “still at the car.” He said the car threw Brad “in the air” down the pavement. He ran to the boy, picked him up from the southbound traffic lane (in which Newman had been traveling), and, with the help of J. L. Thomas, put him in the back of the truck and took him to the hospital. Brad died within a few hours.

Brad was 5’6” or 7" tall and weighed 110 to 120 pounds. When seen by his father, he was on a 7 Viz-foot shoulder of the highway. Newman, in approaching the place where Brad was, had clear visibility of the highway, its shoulder and the sign warning of a curve, for quite a distance on a straight stretch of an otherwise crooked highway. He admitted that he had seen the boy standing on the shoulder of the highway as he approached the point where his car had struck the lad. He could have seen all but the lower three feet of the boy’s body from a distance as great as 578 feet, although his full body may not have been visible for more than 330 feet. It was a clear day and the sun was shining.

J. L. Thomas did not hear the sound of a horn at any time. Nor did he hear the sounds characteristic of the braking of an automobile to check its speed prior to hearing the “squealing,” which probably was caused by skidding of the vehicle’s tires on the pavement. The right-hand skid marks were less than three feet from the edge of the 22-foot wide pavement. The right rear tire skidded 89 feet, only 52 of which were in a straight line, and about 25 feet north of the sign. The left rear tire skidded only 83 feet, and it appears that this wheel started skidding earlier than the right rear wheel. Both front tires skidded 60 feet, on a line curving toward the driver’s left at which point the front of the vehicle appears to have left the pavement on the left-hand side. The rear of the vehicle may not have left the highway at all. The front wheel skid marks probably did not commence until the front of the vehicle was opposite the highway sign. A fair inference could be drawn that no diversionary action was taken by the driver of the Newman vehicle until its front had passed beyond the highway sign. Blood spots about three feet apart were found in the southbound lane between 3-1 /3 and 4 feet from the center line of the pavement. Marks on the vehicle indicate that the lad was struck by the part of the vehicle near its right front headlight.

The circuit judge granted the motion for a directed verdict on the theory that the evidence on behalf of the plaintiff could only leave the jury to speculation as to the events that led up to the occurrence. Viewing the evidence as we do and considering that no evidence had been offered to overcome any permissible inferences, favorable to appellant, that might be drawn from the testimony, we disagree.

In considering the propriety of this action at the conclusion of the evidence, we give the testimony its highest probative value. Ellsworth Brothers Truck Lines v. Mayes, 246 Ark. 441, 438 S.W. 2d 724. There is no question about the existence of evidence which would justify a jury, at least in the absence of other evidence, in finding that Newman was guilty of negligence. The allegations of negligence in the complaint were failure to keep a proper lookout, to exercise ordinary care in anticipating the acts of a 13-year-old child-pedestrian along the highway, to keep the vehicle under such control as to be able to check its speed or stop it when it became necessary to avoid colliding with the pedestrian and failure to exercise ordinary care after discovering the child-pedestrian in a position of danger. We think there was evidence from which the jury might well have found that Newman failed to keep a proper lookout, to exercise proper control of his vehicle, and to exercise ordinary care to avoid injury to Brad Thomas. There was also evidence from which a jury might infer that the Newman vehicle was being driven at an excessive speed.

It is well recognized that pedestrians and motorists have equal rights to use the public highways and each must act with regard to the presence of the other. Bennett v. Staten, 229 Ark. 47, 313 S.W. 2d 232, Williamson v. Garrigus, 228 Ark. 705, 310 S.W. 2d 8; Haralson v. Jones Truck Lines, 223 Ark. 813, 270 S.W. 2d 892, 48 ALR 2d 248; Brotherton v. Walden, 204 Ark. 92, 161 S.W. 2d 391. A motorist must keep a constant lookout to avoid injury to pedestrians, and should anticipate their presence. Williamson v. Garrigus, supra; Lion Oil Refining Co. v. Smith, 199 Ark. 397, 133 S.W. 2d 895. The care exercised must be commensurate with the danger reasonably to be anticipated. Brotherton v. Walden, supra; Lion Oil Refining Co. v. Smith, supra. A person operating an automobile and seeing children ahead must exercise such care as a man of ordinary prudence would exercise under the circumstances, i.e., care commensurate with the danger to be anticipated. Self v. Kirkpatrick, 194 Ark. 1014, 110 S.W. 2d 13.

In viewing the evidence in the light we must and in considering the law applicable, we will consider Brad as a child. We have not established definitive rules for determining whether an injured party is a child in a negligence case. Appellee contends that a 13-year-old youth is not a child for the purpose of measuring appellee’s action against reasonable care standards. But we have held that AMI, Civil, 605 should have been given when a minor between 14 and 15 years of age was involved. Holcomb v. Gilbraith, 257 Ark. 32, 513 S.W. 2d 796.

The failure of the driver to sound his horn, or to take earlier diversionary action, or to sooner apply his brakes are significant on the question of speed, control and lookout. See Breashears v. Arnett, 144 Ark. 196, 222 S.W. 28. Ark. Stat. Ann. §§ 75-725 (a) (Supp. 1975) and 75-628 (a) and (d) (Repl. 1957) are pertinent on these questions and on the question whether appellant, having the opportunity to see the 13-year-old boy along the highway, used reasonable care commensurate with a danger reasonably to be anticipated. See Oliphant v. Hamm, 167 Ark. 167, 267 S.W. 563. A 13-year-old boy is not an adult and it has been said that it is universally recognized that he has not reached a state of physical and mental maturity sufficient to warrant the belief that he is no longer apt to be daring, thoughtless and reckless. Thompson v. Anderman, 59 N.M. 400, 285 P. 2d 507 (1955); Paschka v. Carsten, 231 Iowa 1185, 3 N.W. 2d 542 (1942). See also, Fightmaster v. Mode, 31 Ohio App. 273, 167 N.E. 407 (1928).

Brad obviously came upon the roadway before he was struck. It appears that he was not at any time very far from that portion of the highway ordinarily used for vehicular traffic. Newman saw him on the shoulder. A pedestrian, insofar as § 75-628 (d) is concerned, is any person afoot. Ark. Stat. Ann. § 75-409 (b) (Repl. 1957). The duty of a motorist to sound his horn when approaching one on foot along a highway is not wholly dependent upon the statute.

The failure of a driver to give a pedestrian on or near a highway a warning signal is a circumstance to be considered in deciding whether the driver operated his vehicle with reasonable care in the circumstances presented him. Graff v. Louis Stern Sons, Inc., 103 NJL 13, 135 A. 335 (1926); Nunnelley’s Adm’r. v. Muth, 195 Ky. 352, 242 S.W. 622, 27 ALR 910 (1922). Even in the absence of any statute, a duty to sound a signal of his approach rests on the operator of an automobile approaching a pedestrian who is in danger of being struck unless warned, particularly if it appears that the pedestrian is oblivious of the approach of the automobile. Izor v. Brigham, 111 Vt. 438, 17 A. 2d 236 (1941); Healy v. Moore, 108 Vt. 324, 187 A. 679 (1936); Roberts v. Cain, 365 P. 2d 1014 (Okla., 1961); Samples v. Trimble, 165 Va. 306, 182 S.E. 247 (1935); Wright v. Kidwell, 14 S.W. 2d 499 (Mo. App., 1929); Pryor’s Adm’r. v. Otter, 268 Ky. 602, 105 S.W. 2d 564 (1937); Cervillo v. Manhattan Oil Co., 226 Mo. App. 1090, 49 S.W. 2d 183 (1932). Whether the signal to pedestrians is required in the exercise of reasonable care in the circumstances is usually a question for the jury. Halbert v. Lange, 313 Ky. 648, 233 S.W. 2d 278 (1950); Healy v. Moore, supra; Birch v. Strout, 303 Mass. 28, 20 N.E. 2d 429 (1939); Wright v. Kidwell, supra; Collett’s Guardian v. Standard Oil Co., 186 Ky. 142, 216 S.W. 356 (1919).

In considering the failure of a motorist to blow his horn when he sees a child on the roadside, the rules which would be applicable if the child were of mature age and judgment are not necessarily applicable to him, and if the sounding of the horn might have prevented a collision between the vehicle and the child, the question of proximate cause is for the jury. Wickman v. Lundy, 120 Wash. 69, 206 P. 842 (1922); Nunnelley’s Adm’r. v. Muth, supra; Gillis v. Singer, 86 S.W. 2d 352 (Mo. App., 1935). It must be remembered that the sounding of the horn is designed, not only to warn of the approach of the automobile, but to give warning of the danger arising therefrom. Gillis v. Singer, supra.

Appellee’s argument that the statute requiring the sounding of an automobile horn when children are on the roadway should not be considered because there was nothing to indicate that the driver knew that conditions requiring use of the horn prevailed. This argument overlooks the fact that Brad should have been visible to appellee for a distance of 578 feet and that one keeping a proper lookout should have known that he was on the shoulder of the road and certainly must have seen him leave the shoulder before he was struck. It also ignores the fact that appellant puts greater reliance on Ark. Stat. Ann. § 75-725 (Supp. 1975), which requires the driver to give an audible signal with his horn when reasonably necessary to insure safe operation.

It has been held that a statutory requirement such as § 75-725 (a), that an automobile be equipped with a horn, implies that it should be used when necessary for the safety of pedestrians. Vannett v. Cole, 41 N.D. 260, 170 N.W. 663 (1919); Roberts v. Cain, 365 P. 2d 1014 (Okla., 1969). The phrase “to insure safe operation” in the statute has been held to mean operation of the motor vehicle in such manner as, in all reasonable probability, it will not injure the motorist, those riding with him, or persons, or property rightfully on or using the highway; and the words “reasonably necessary” call for the same conduct as a reasonably prudent person would use under the same circumstances; therefore, failure to sound a horn would be negligence if such a person would do so. Lawson v. Fordyce, 234 Iowa 632, 12 N.W. 2d 301 (1943). See also, Roberts v. Cain, supra. We take this to be a proper construction of Ark. Stat. Ann. § 75-725 (a).

Appellee also argues that § 75-628 (a) requires a pedestrain, crossing a highway at a point other than a marked cross-walk, to yield the right-of-way to an approaching vehicle. This is probably correct, but violation of that section does not relieve the driver of an approaching vehicle of the obligation to exercise ordinary care to avoid colliding with the pedestrian and to give warning by the sounding of a horn, when necessary. Roberts v. Cain, supra.

Appellant argues that there was no evidence that he was exceeding the speed limit of 55 miles per hour, and this is probably correct. But this is not all that is required of drivers in the exercise of ordinary care. Speed of a vehicle is regulated by Ark. Stat. Ann. § 75-601 (a) and (d) (Supp. 1975), reading as follows:

(a) No person shall drive a vehicle on a highway at a speed greater than is reasonable and prudent under the conditions and having regard to the actual and potential hazards then existing. In every event speed shall be so controlled as may be necessary to avoid colliding with any person, vehicle, or other conveyance on or entering the highway in compliance with legal requirements and the duty of all persons to use due care.
(d) The driver of every vehicle shall, consistent with the requirements of paragraph (a) drive at an appropriate reduced speed when approaching and crossing an intersection or railway grade crossing, when approaching and going around a curve, when approaching a hill crest, when traveling upon any narrow or winding roadway, and when special hazard exists with respect to pedestrians or other traffic or by reason of weather or highway conditions.

A driver is bound to be constantly vigilant for persons along a highway and exercise reasonable care to avoid injuring them. Williamson v. Garrigus, 228 Ark. 705, 310 S.W. 2d 8; Loda v. Raines, 193 Ark. 513, 100 S.W. 2d 973; Northwestern Casualty & Surety Co. v. Rose, 185 Ark. 263, 46 S.W. 2d 796. Whether the speed at which the Newman vehicle was proceeding at the time under the circumstances shown by plaintiff’s evidence was reasonable and prudent was a question for the jury. See Lebkicher v. Crosby, 123 Cal. App. 2d 631, 267 P. 2d 361 (1954). Perhaps a jury might find that appellee should have checked his speed when approaching a 13-year-old boy near the edge of the main traveled portion of the highway. The increased vigilance required of a motorist when he knows or should know that a child is likely to come into his course of travel does not mean that he is required to exercise a degree of care higher than reasonable care under the circumstances, but it does mean that he must exert greater effort in respect to lookout, speed management and control to fulfill his duty to exercise reasonable care. Binsfeld v. Curran, 22 Wis. 2d 610, 126 N.W. 2d 509 (1964).

The burden of proof on the element of causation was on appellant and he was required to produce proof beyond mere speculation and conjecture, but he was not required to entirely negate the possibility that appellee’s conduct was not a cause. It was not required that appellant eliminate every possible cause other than the one on which he relied; it was only required that the proof eliminate such other causes as fairly arise from the evidence. Hill v. Maxwell, 247 Ark. 811, 448 S.W. 2d 9. He was not required to eliminate the possibility that Brad’s negligence caused or contributed to his injury and death, and the physical facts are not sufficient to show that Brad, a child, was negligent, as a matter of law; or, if so, that he was as negligent as appellant.

There was no burden on appellant to show that his decedent was free from negligence. The party injured is presumed to be free from negligence until the contrary is made to appear, when, as here, res ipsa loquitor is not invoked. Little Rock & Ft. Smith Ry. Co. v. Eubanks, 48 Ark. 460, 3 S.W. 808, 3 Am. St. Rep. 245; Little Rock & Ft. Smith Ry. Co. v. Atkins, 46 Ark. 423. See 11 Blashfield, Automobile Law and Practice 96, § 417.2 (Revised Third Ed.).

The presumption in the absence of evidence to the contrary is particularly applicable when the injured party dies as a result of his injuries, at least where the question is whether a verdict should be directed. Orbach v. Zern, 138 Cal. App. 2d 178, 291 P. 2d 120 (1955); Eaton v. Hewitt, 171 Wash. 260, 17 P. 2d 906 (1933); Oxborough v. The Murphy Transfer & Storage Co., 194 Minn. 335, 260 N.W. 305 (1935); Jacques v. Dayton Power & Light Co., 80 Ohio App. 258, 74 N.E. 2d 211 (1947); Odgers v. Clark, 41 Del. 232, 19 A. 2d 724 (1941); Scholl v. Philadelphia Suburban Transp. Co., 356 Pa. 217, 51 A. 2d 732 (1947). Even though the physical evidence may have indicated some negligence on the part of the deceased boy, it certainly cannot be said that it equalled or exceeded Newman’s negligence as a matter of law on the motion made for a directed verdict. A different standard applies in determining whether this youth was guilty of negligence. He would only be required to exercise that degree of care which a reasonably careful minor of his age and intelligence would use under similar circumstances. Garrison v. St. Louis, I.M. & S. Ry. Co., 92 Ark. 437, 123 S.W. 657.

Of course, a motorist cannot rely upon the assumption that a child pedestrian will act with the same degree of care, caution and circumspection or will remain in a place of safety or obey the rules of the road to the same extent he could if an adult were involved. Baker v. Richardson, 201 Va. 834, 114 S.E. 2d 599 (1960); Simmons v. Holm, 229 Or. 373, 367 P. 2d 368 (1961); Pullen v. Novak, 169 Neb. 211, 99 N.W. 2d 16 (1959); Ross v. Roberts Express Co., 100 N.H. 98, 120 A. 2d 335 (1956); Kennedy v. Banks, 117 Ga. App. 197, 160 S.E. 2d 208 (1968). See also, Walker v. Byrd, 258 N.C. 62, 127 S.E. 2d 781 (1962). We cannot say that there was sufficient evidence of Brad’s negligence in the testimony presented by appellant to bar recovery by appellant or to say that his negligence, if there was any, was the sole proximate cause of his death. The burden of proving negligence on the part of Brad rested upon appellee. Bates Coal & Mining Co. v. Mannon, 205 Ark. 215, 168 S.W. 2d 408.

We do not consider McKim v. Northwestern National Casualty Co., 256 Ark. 109, 505 S.W. 2d 756, relied upon by appellee, as applicable here. In the first place, a child was not involved. Furthermore, there was nothing to indicate that the motorist in that case ever saw or was able to see the pedestrian, and the collision occurred in the middle of a city block, where the driver would have a right to anticipate there would be no pedestrians in the street. The driver of the automobile may or may not have sounded his horn, or checked his speed. There was nothing in McKim to give any indication of speed or failure to keep a lookout.

For error in the direction of the verdict, the judgment is reversed and the cause remanded.

We agree. Harris, C.J., and Roy and Hickman, JJ.

Byrd, J., dissents.

       75-725. Horns and warning devices — Flashing lights on emergency vehicles. — (a) Every motor vehicle when operated upon a highway shall be equipped with a horn in good working order and capable of emitting sound audible under normal conditions from a distance of not less than 200 feet, but no horn or other warning device shall emit an unreasonably loud or harsh sound or a whistle. The driver of a motor vehicle shall, when reasonably necessary to insure safe operation, give audible warning with his horn but shall not otherwise use such horn when upon-a highway.
      75-628. Pedestrians crossing at other than crosswalks — Drivers to use due care. — (a) Every pedestrian crossing a roadway at any point other than within a marked crosswalk or within an unmarked crosswalk at an intersection shall yield the right-of-way to all vehicles upon the roadway.
      (d) Notwithstanding the provisions of this section every driver of a vehicle shall exercise due care to avoid colliding with any pedestrian upon any roadway and shall give proper warning by sounding the horn when necessary and shall exercise proper precaution upon observing any child or confused or incapacitated person upon a roadway.


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

text:
    Bennie S. ROGERS v. MFA MUTUAL INSURANCE COMPANY
    76-196
    554 S.W. 2d 327
    Opinion delivered July 11, 1977
    (In Banc)
    [Rehearing denied September 19, 1977.1

      Bradley & Coleman, by: Douglas Bradley, for appellant.

      Barrett, Wheatley, Smith & Deacon, by: Stephen M. Reasoner, for appellee.
   Conley Byrd, Justice.

Following the reversal and remand in Rogers v. Watkins, 258 Ark. 394, 525 S.W. 2d 665 (1975), Watkins renewed his action against Judy Sue Rogers and her mother Alma Lowanda Dial. Before the case came on for trial, State Farm Mutual Insurance Company settled the Watkins’ claim within its policy limits and dismissed the action as to all parties. This litigation was then brought by Rogers against MFA Mutual Insurance Company to recover the $2,500 he had been out in attorney’s fees. Upon a stipulated record, the trial court ruled in favor of MFA, and Rogers appeals.

The stipulated facts show that appellant and Alma Lowanda Dial were formerly husband and wife and that in the divorce proceedings custody of Judy Sue Rogers was awarded to appellant. By mutual agreement Judy Sue was permitted to visit her mother. On one such visit Judy Sue, a minor, collided with Watkins while driving her mother’s automobile which was insured by State Farm. Watkins filed suit against Judy Sue Rogers, Mrs. Dial and appellant Rogers because of his liability under Ark. Stat. Ann. § 75-315 (Supp. 1975). When appellant received the summons he delivered it to the agent for State Farm and also properly notified MFA who had issued to him an automobile liability insurance policy upon his own automobile. Thereafter, neither State Farm nor MFA filed an answer for appellant which resulted in the former litigation in this court, Rogers v. Watkins, supra. It is stipulated that Judy Sue was not on a personal or business mission for appellant at the time of the collision.

The policy issued by MFA provides:

“I — DEFINITIONS
* * *
“(6) ‘Non-owned automobile’ means any automobile other than (a) the described automobile or (b) an automobile owned in whole or in part by, or furnished or available for regular use of, either the named insured or any resident of the same household.
* * *
“II — AUTOMOBILE LIABILITY INSURANCE
“1. COVERAGE A — Bodily Injury Liability; COVERAGE B — Property Damage Liability — The Company will pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of:
A. Bodily injury sustained by any person;
B. Property damage sustained by any person; caused by accident and arising out of the ownership, maintenance, or use of the described automobile or a non-owned automobile, and the Company shall defend any suit alleging such bodily injury or property damage and seeking damages which are payable under the terms of this policy, even if any of the allegations of the suit are groundless, false or fraudulent; but the Company may make such investigation or settlement of any claim or suit that it deems expedient.
* * *
4. Persons Insured — With respect to the insurance afforded under Coverages A and B, the following are insureds:
Jfc % *
(b) With respect to a non-owned automobile, (1) the named insured and, if an individual, his spouse, provided his or her actual operation or (if he or she is not operating) the other actual use thereof by the named insured or his spouse is with the permission, or reasonably believed to be with the permission, of the owner of such automobile and is within the scope of such permission, and (2) any other person or organization not owning or hiring the automobile, but only with respect to his or its liability because of acts or omissions of the named insured or his spouse under (b) (1) above.”

Appellant does not contend that the policy furnished coverage to Judy Sue but only that the policy furnished coverage to him. To avoid any liability under the policy, MFA states the issue in this language:

“The question presented is whether coverage under the MFA policy insures appellant for a statutory liability, imputed to him, for the alleged negligence of Judy while driving an automobile, owned by his ex-wife, and insured by another company. A comparison of the policy language involved in cases where coverage for imputed liability has been found with the policy language in the MFA policy will show that the answer to the question is in the negative, because the MFA policy requires ‘actual use’ of the non-owned automobile by the named insured.”

Ark. Stat. Ann. § 75-315 (Supp. 1975) provides:

Application of minors for instruction permit or operator’s license. — (a) The original application of any person under the age of eighteen (18) years for an instruction permit or operator’s license shall be signed and verified before a person authorized to administer oaths by both the father and mother of applicant, if both are living and have custody of him, or in the event neither parent is living then by the person or guardian having such custody or by an employer of such minor, or in the event there is no guardian or employer then by other responsible person who is willing to assume the obligations imposed under this act [§§ 75-301 — 75-311, 75-315 — 75-321, 75-324 — 75-348] upon a person signing the application of a minor. For purposes of this act, duly authorized agents of the Commissioner of Revenues shall be authorized to administer oaths without charge.
(b) Any negligence or wilful misconduct of a minor under the age of eighteen (18) years when driving a motor vehicle upon a highway shall be imputed to the person who has signed the application of such minor for a permit or license, which person shall be jointly and severally liable with such minor for any damages caused by such negligence or wilful misconduct.
(c) If any person who is required or authorized by Subsection (a) of this Section to sign the application of a minor in the manner therein provided, shall cause or knowingly cause or permit his child or ward or employee under the age of eighteen (18) years to drive a motor vehicle upon any highway, then any negligence or wilful misconduct of said minor shall be imputed to such person or persons and such person or persons shall be jointly and severally liable with such minor for any damages caused by such negligence or wilful misconduct. The provisions of this Subsection shall apply regardless of the fact that a drivers license may or may not have been issued to said minor. For purposes of this act, a minor is hereby defined to be any person who has not attained the age of eighteen (18) years.
(d) The provisions of this Section shall apply in all civil actions, including but not limited to both actions on behalf of and actions against the person or persons required or authorized by Subsection (a) of this Section to sign the application in the manner therein provided.”

We cannot agree with MFA’s interpretation of its policy. “Actual use” as used in the policy obviously does not mean that the non-owned automobile must be operated by the named insured — the language of policy provides:

“With respect to a non-owned automobile . . . provided his . . . actual operation or (if he . . . is not operating) the other actual use thereof by the named insured . . .” [Emphasis ours.]

Since actual use then must mean something more than operation it becomes ambiguous and subject to the interpretation that it would include that use which is imputed to an individual through what is known in law as vicarious liability. MFA intimates that the policy language is subject to that interpretation by accentuating that Judy Sue was not on a personal mission for her father. Since Ark. Stat. Ann. § 75-315 (Supp. 1975), supra, with reference to damages caused by the negligent operation of an automobile by a minor child, places a parent in the position of an actual user of an automobile any time the parent knowingly permits a minor to drive an automobile upon a highway, we must conclude that appellant was a user of the non-owned automobile within the meaning of the policy at the time of the collision with Watkins and that the trial court erred in ruling to the contrary.

MFA also contends that the trial court was correct because its policy provides that “Coverages A and B do not apply to . . . liability assumed by the insured under any agreement.” We find no merit to this contention because the liability imposed upon appellant, as a parent having custody of a minor, is by statute and not as the result of any agreement, Klatt v. Zera, 11 Wis. 2d 415, 105 N.W. 2d 776 (1960).

Since the parties stipulate that the $2,500 paid by appellant to his attorney was reasonable for the services performed, it follows that the trial court should enter a judgment for that amount together with interest, the statutory penalty of 12%, and an attorney’s fee in the amount of $1,250 to be taxed in addition to the other costs in the case.

Reversed and remanded.

George Rose Smith, Fogleman and Hickman, JJ., dissent.

John A. Fogleman, Justice,

dissenting. I cannot agree with the majority opinion in this case. No one suggests that Judy Sue Rogers was a named insured or a person insured. Appellee was under no obligation to defend appellant, her father, or to pay the cost of his defense unless the suit was for damages which, under the allegation of the complaint, were payable under the policy. See Paragraph II B. I cannot see how the damages in this case could have been payable under the policy. In order for these damages to have been payable under the policy there must have been actual use of the non-owned automobile by the named insured (appellant) with the permission of the owner. I can agree with the proposition stated in the majority opinion that “actual use” in the policy terms means something more than “actual operation.” I cannot conceive of “actual use” being broad enough in scope to cover the use of the automobile by appellant’s daughter, a member of appellant’s household, when that use was not for the benefit of the insured (appellant). As a matter of fact, there is nothing in the record [even if Ark. Stat. Ann. § 75-315 (Repl. 1957) is of any significance] to indicate that appellant knowingly caused or permitted his daughter to drive her mother’s automobile. It was and is important to know that Judy Sue was not on an errand or mission for her father. If she had been, the use would have amounted to “actual use” by the father and vicarious liability would have attached. But not every situation in which there might be statutorily imposed vicarious liability makes the use of a motor vehicle actual use by the one held vicariously liable.

I do not see how the term “actual use” is ambiguous. I certainly do not see how emphasizing the fact that the daughter was not using the vehicle for her father’s benefit makes it appear to be ambiguous.

“Actual use” in the context of similar clauses in automobile liability policies refers to the use being made of a vehicle at the time of the incident or occurrence on which the liability hinges. Hartford Accident & Indemnity Co. v. Peach, 193 Va. 260, 68 S.E. 2d 520 (1952); Laroche v. Farm Bureau Mutual Automobile Insurance Co., 335 Pa. 478, 7 A. 2d 361 (1952); Messer v. American Mutual Liability Insurance Co., 193 Tenn. 19, 241 S.W. 2d 856 (1951). It has been said that it can mean nothing else. Johnson v. Maryland Casualty Co., 34 F.S. 870 (D.C. Wisc., 1940). The term has been said to mean the “particular use.” Maryland Casualty Co. v. Marshbank, 226 F. 2d 637 (1955); Conrad v. Duffin, 158 Pa. Super. 305, 44 A. 2d 770 (1945); Laroche v. Farm Bureau Mutual Automobile Insurance Co., supra. In such contexts, “actual” has been said to mean in fact and not constructively. Gronquist v. Transit Casualty Co., 105 N.J. Super 363, 252 A. 2d 232 (1969). It was aptly said as early as 1949 that the newer and majority rule was that the term meant the use to which the automobile is being put at the time of the accident and the use of the car at the time under consideration. Gulla v. Reynolds, 151 Ohio St. 147, 85 N.E. 2d 116. In United Services Auto Ass’n. v. United States Fire Insurance Co., 36 Cal. App. 3d 765, 111 Cal. Rptr. 595 (1973), hearing denied Feb. 27, 1974, the court said:

* * * The term “actual use” must be construed to mean “present or active use” or a “use existing in fact or reality” (see definition of “actual,” Webster’s Third New Internat. Diet.) as distinguished from an imputed or constructive use.

While the policy language here is not identical with that in any of the cited cases, and the issues are not identical, certainly it would be unreasonable to say that “actual use” had a different meaning in different factual situations even though the context in which the term is used is similar. If the accepted definition of “actual use” is applied in this case, there is no way that the actual use could have been by appellant. Thus, there is no way that appellant could have been liable for the damages resulting in this case, and it logically follows that under the terms of this policy, appellee owed him no defense.

I would affirm the judgment.

I am authorized to state that Mr. Justice George Rose Smith and Mr. Justice Hickman join in this opinion.


author: Elsijane T. Roy, Justice. Conley Byrd, Justice,

text:
    George ELKINS Jr. v. Jackie Marie Short ELKINS
    77-59
    553 S.W. 2d 34
    Opinion delivered July 11, 1977
    (Division I)

      Warner & Smith, by: James M. Punn, for appellant.

      Robert P. Ridgeway, for appellee.
   Elsijane T. Roy, Justice.

Appellant George Elkins, Jr., and appellee Jackie Marie Short Elkins were divorced in January, 1971. Jackie Elkins was awarded permanent care and custody of the minor son, Mark.

Mark was 18 years of age on November 17, 1975, at which time appellant stopped all support and medical payments. On February 8, 1976, appellee filed a petition for contempt against appellant, and contended at the hearing on March 3, 1976, that appellant should be ordered to pay child support for so long as Mark was in college. Appellant contended Mark was physically able to support himself and that appellant’s legal obligation to pay child support terminated, at the latest, upon Mark’s graduation from high school. The chancellor by order dated March 3, 1976, required appellant to continue to make child support payments and to be responsible for Mark’s medical bills until his graduation from high school in June, 1976. The court retained jurisdiction to consider what further action should be taken in the event Mark was accepted in a college.

Mark was admitted into Arkansas State University at Beebe, and upon presentation of evidence to this effect the court ordered appellant to continue making child support payments in the amount of $45 each week and to continue to be responsible for medical expenses, so long as Mark is in college and satisfactorily pursuing his course of study or until further orders of the court. From said order this appeal is brought.

Appellant contends and Mark admitted that he was physically able to drive a car, to participate in sports and that he had held summer jobs. Appellant also contends Mark does not show the attention and affection a father should receive from his son. This was denied to some extent by Mark who contended his father did not reciprocate when he showed him attention.

In his testimony Mark tended to minimize his handicap, but it is undisputed Mark has dyslexia, an impairment of the ability to read due to a brain defect. The doctor described Mark’s condition more particularly in a letter written in response to an inquiry made by Mark’s father. The letter from Dr. John E. Peters, University of Arkansas Medical Center, contained the following information:

* * * Mark has shown ample signs through the years of brain impairment. From the history it is probable that this was due to bleeding during the pregnancy and to prematurity and very low birth weight.
As evidence of his continued brain impairment, we note his slow speech, poor performance on visual-motor coordination, poor sequential memory, and mild motor clumsiness. However, these findings are not the immediate reason for his coming to me. He came to me because of his short attention span, another characteristic of mild brain damage. For this I give him certain medications. * * *
* * *

Dr. Peters also expressed the opinion that Mark should be given the opportunity to go to college, and if Mark were unable to handle college then alternative education and work should be explored. Despite his brain impairment Mark’s ambition to go to college and become a forester caused him to take make-up courses and raise his grades so that he would be accepted for college.

Appellee was willing to do all she could to help Mark, but this help was limited because her take-home pay was only $89 per week. Appellant’s base pay was $230 a week, or approximately $11,960 per year.

Mark had medical bills for the year of 1975 several hundred dollars in excess of Blue Cross coverage and will need psychiatric care and prescription medicine for his lifetime. Without a college education it will be very difficult for him to earn sufficient sums for his support and medical bills. Mark will also need someone to read to him while he is in college, and this will add to the expense of a college education.

Jackie Elkins testified part of Mark’s school years had been in remedial classes, and she did not think Mark would be able to support himself adequately without further schooling and training. She also stated, “Mark has been an above average student considering his motor visual handicap and also dyslexia.” She testified he has been under a doctor’s care constantly since he was seven years of age.

Mark Elkins testified:

Q. Son, do you have any way to go to college when you graduate from high school ? Do you have any way of supporting yourself through college?
A. No, sir, not at the present time, I don’t.
Q. Are you able or have you been able to secure a job that pays substantial wages?
A. No, sir.
Q. Do you need help from your father to secure your education?
A. Yes, sir.

Appellant’s present wife, Grace Elkins, would like to see Mark receive more education, and she testified she thought “everyone should have the opportunity of attending college.”

Ark. Stat. Ann. § 34-1211 (Repl. 1962) provides that when a decree of divorce has been entered the court shall make such order concerning support and care of the child or children as may be reasonable.

In Upchurch v. Upchurch, 196 Ark. 324, 117 S.W. 2d 339 (1938), this Court stated: “It is, of course, the duty of the father to contribute to the support of his children even after they are of age if the circumstances are such as to make it necessary.”

In Jerry v. Jerry, 235 Ark. 589, 361 S.W. 2d 92 (1962), we stated:

* * * In Missouri Pacific Railroad Company, et al. v. Foreman, 196 Ark. 636, 119 S.W. 2d 747 ... we said: “Ordinarily, there is no legal obligation on the part of a parent to contribute to the maintenance and support of his children after they become of age.” * * * (Italics supplied.)

The word “ordinarily” denotes the Court realized there might be circumstances which could impose on a parent the ‘ duty to support a child after such child became of age.

In Petty v. Petty, 252 Ark. 1032, 482 S.W. 2d 119 (1972), we held that where a daughter of divorced parents was afflicted with epilepsy, was unable to drive a car, and was in need of specialized training to obtain employment the fact that she had reached majority did not warrant reduction in support payments by the divorced father.

In Petty we stated:

Webster’s Third New International Dictionary defines “disabled” as inter alia, “incapacitated by or as if by illness, injury or wounds: Crippled.” The word “handi-. capped” is defined inter alia, “A disadvantage that makes achievement unusually difficult. A physical disability that limits the capacity to work.” It is at once apparent that there is a similarity in these definitions, though the word “disabled” denotes a greater inability to function in a normal manner, but there is nothing in our cases indicating that a disabled person is entitled, after becoming an adult, to continued financial aid from the father while one who is only handicapped, is not entitled to such aid. * * *

The determination of whether continued support for an adult child is proper has to be made on the basis of the facts of each particular case. Petty v. Petty, supra, and Matthews v. Matthews, 245 Ark. 1, 430 S.W. 2d 864 (1968).

Although Mark Elkins’s physical health may be good, it will be most difficult for Mark to provide support for himself unless he is given the opportunity to secure additional education.

We have recognized that paternal duty involves something more than support until age 18 where a handicapped child is involved. After reaching age 18 further support should be given for educational purposes to prepare the handicapped child to pay his medical bills and support himself, instead of being a drain on the welfare of society, if the financial condition of the parents allows.

Among other things, Dr. Peters noted Mark’s slow speech. The chancellor had the opportunity to see and hear Mark on the witness stand; thus his assessment of Mark’s speech and other reactions would be much superior to ours from the cold record. We do not reverse the chancellor unless his findings are against the preponderance of the evidence.

In Neal v. Neal, 258 Ark. 338, 524 S.W. 2d 460 (1975), we said:

* * * A compelling reason for this well settled rule is the fact that the chancellor is in a better position to evaluate the testimony of the witnesses as he hears them testify and observes their demeanor while doing so. Dennis v. Dennis, 239 Ark. 384, 389 S.W. 2d 631 (1965). (Italics supplied.)

From the evidence heretofore detailed we find the decree of the chancellor is amply supported by the preponderance of the evidence.

Affirmed.

We agree. Harris, C.J., and George Rose Smith and Holt, JJ.

Byrd, J., dissents.

Conley Byrd, Justice,

dissenting. From a reading of the majority opinion one could conclude that appellant is a hardhearted and mercenary father that is more interested in his bank roll than he is the livelihood of his disabled son. However, the undisputed evidence shows that the son is not disabled. In fact he is capable of and does run ten miles cross-country in a day. The son, himself, testified that he was in good physical condition, and that he could do any kind of job requiring hard or light physical labor.

The root of the problem between this father and his son is the son’s bellicose attitude. The record shows that while the son visited for two days in Fort Smith where his father lived, the son did not bother to visit with the father who was still in bed recovering from an operation.

Acts 1975, No. 892, (Ark. Stat. Ann. § 57-103) provides:

“All persons of the age of eighteen (18) years shall be considered to have reached the age of majority and be of full age for all purposes, and until the age of eighteen (18) is attained, they shall be considered minors. . .

Consequently, the son is now an adult for all purposes except for the attitude of this Court that everybody ought to have a college education. I do not agree with that philosophy. While I agree that college is good for some people, between an adult son and a father, the issue of whether a son goes to college should be left to the father and son without any interference by the courts. One of the old adages of the hills where I grew up was the saying that “there’s no fool like an educated fool.”

The insinuation in the majority opinion that appellant’s present wife has made some support payments from her own funds because she disagrees with her husband’s position is not supported by the record which only shows that the payments were made by her from her funds during the process of writing checks for the monthly bills while the husband was off work due to illness or as an accommodation to Mark’s mother in making an early payment.

For the reasons stated, I respectfully dissent.

       We agree with the chancellor that both Mark and his father should make an effort to ameliorate the unfortunate partial estrangement. Both parties seemed to desire this result.

       In the two previous years appellant’s income tax returns reflected income of $24,000 and $17,000, but he testified he could no longer handle overtime work which resulted in his decreased income.

       When Mark became 18 and appellant discontinued payments, Grace Elkins, who was self-supporting, made several payments from her own funds.


author: Elsijane T. Roy, Justice.

text:
    Mary Jane Miller RIEGLER et al v. Nicholas W. RIEGLER, Jr.
    77-63
    553 S.W. 2d 37
    Opinion delivered July 11, 1977
    (Division I)

      H. B. Stubblefield, for appellants.

      C. Brantley Buck and W. Dane Clay of Rose, Nash, Williamson, Carroll, Clay <2? Giroir, for appellee.
   Elsijane T. Roy, Justice.

This action involves a controversy between the trustee and the beneficiaries of a trust. Appellee, Dr. Nicholas W. Riegler, Jr., his father, Dr. Nicholas W. Riegler, Sr., and their wives executed a “Declaration And Agreement With Respect To The Doctors Riegler Trust” on June 28, 1957. The declaration provided that appellee and his father held title “as Trustees for their wives” to a certain parcel of real estate. The declaration authorized the trustees to borrow money and erect a medical clinic on the property which was to be leased to appellee and his father. In accordance with the terms of the declaration the clinic was constructed, leased and rent paid to the Riegler trust.

The declaration provided that one-half of the excess income of the trust was to be distributed to each wife during her lifetime, and thereafter to appellee’s children. Upon the death or disability of either trustee the other was to designate a Pulaski County bank as successor co-trustee. Upon the death or disqualification of both trustees, the bank was to serve as sole trustee.

Appellee, as trustee, without court approval, borrowed money and invested it, along with other trust funds, in a parcel of vacant land, which is now involved in this litigation. In 1968, appellee petitioned the chancery court for authority to borrow money to purchase 57 more acres of unproductive real estate. In the same petition he requested permission to borrow funds to erect a building on the previously acquired vacant land.

Appellants sought denial of appellee’s petition. Appellants further requested that Dr. Riegler, Sr., be declared physically disabled to serve as trustee and that Dr. Riegler, Jr., be removed as trustee due to the strained relations incident to his divorce from Mary Jane Riegler, a beneficiary of the trust.

On December 22, 1969, the chancellor on exchange denied appellee’s requests, removed Dr. Riegler, Sr., as a trustee but allowed appellee to remain as trustee, ordered him to designate a bank as successor co-trustee, and ordered appellee to restore to the trust the full cost of the vacant land with interest.

On September 17, 1975, the court extended the time for appellee to comply with the previous decree. The time for appellee to restore the cost, with interest, of the vacant land was extended to May 15, 1976; and the time for designating a bank as co-trustee was extended until March 15, 1976.

On November 22, 1976, a hearing was held, and the court removed appellee as trustee and appointed Union National Bank as sole trustee. The court ordered that the vacant land be sold by the trustee but found appellee not personally liable for the land’s cost with interest.

Both Dr. Riegler, Sr., and his wife died several years ago. Appellee’s five daughters and Mary Jane Miller Riegler, their mother, are now the beneficiaries of the trust. No beneficiary has yet received any income or distribution from the trust.

Appellants contend the lower court erred in allowing appellee to testify concerning previous court decrees and in not holding appellee personally liable for the purchase of the land. Since the admission of testimony is largely within the discretion of the trial court and under appellee’s theory his testimony was relevant, we do not find any abuse of discretion here.

Paragraph 2 of the decree entered December 22, 1969, states that the three vacant lots at the Northeast corner of Tenth and Rock Streets in Little Rock are unproductive, and “petitioner, Nicholas W. Riegler, Jr., individually has expressed his willingness to assume the same and restore to the Trust the full cost thereof with interest thereon at the rate of 6% per annum to date . . .; and such acquisition for such consideration has been approved by or for all the beneficiaries of the Trust; therefore, ‘The Doctors Riegler Trust’ without unnecessary delay will divest itself of said property by conveying same to Nicholas W. Riegler, Jr., individually upon his payment to the Trust of the sum of $43,742.65 with interest from date at the rate of $7.19 per day.”

The September 17, 1975, decree extends to May 15, 1976, “The time allowed said Nicholas W. Riegler, Jr., individually, to comply with the provisions of paragraph numbered two of said December 22, 1969 decree. ...”

At the hearing on November 22, 1976, appellants objected to appellee’s testimony as to reasons for failure to comply with the provisions of the aforementioned decrees. The trial court ruled, “That is what I want to hear is why he has not done it. ...*** I want to hear it all. It is going to be hard to explain to me why he has not done this in seven years.”

As to appellee’s testimony, in explaining to the court why he had not carried out the decree, he testified he just could not get any money at that time; that he still had the house on River Oaks which he did not sell until 1972; and that he agreed to pay them what was in it but he could not get the money together. Further testimony was that he could not borrow money on developed property much less undeveloped property; that this had been a real dragged out affair; and that he did not feel he was obligated to buy the property.

These excuses offered by appellee for his failure to comply with the court decrees reflect no legal reason for failure to comply with the court’s orders and cannot affect the duty of appellee to restore to the trust the cost of the land with interest.

On cross-examination appellee testified that he did not deny that he was trying to do everything he could to prevent his ex-wife from getting any money out of the trust. Appellee admitted that at the trial whch resulted in alimony to Mrs. Riegler being stopped on June 8, 1975, he testified in his opinion the value of the trust property was between $150,000 and $200,000 and that he considered his former wife a beneficiary of the trust at that time.

Without any authority from the trust instrument and without seeking approval from chancery court, appellee, as trustee, used trust funds to purchase unproductive vacant land of no value to the trust but in which he was personally interested. The unproductive land was purchased in 1964 in part with the trust’s cash and the balance paid by the delivery of a note and mortgage of the trust. The land has produced no income whatsoever for the trust since its purchase. However, the trust has paid interest on the note at various rates. The purchase constituted a breach of appellee’s duty to make the trust property productive.

It is well settled that a trustee is held to a high standard of good faith and prudent dealing. He owes a duty of loyalty to the beneficiaries. Restatement (Second) of Trusts § 170 (1959). This Court in Hardy v. Hardy, 222 Ark. 932, 263 S.W. 2d 690 (1954), quoting from 54 Am.Jur., Trusts § 311, p. 246 (1945), stated:

A trustee must act in good faith in the administration of the trust, and this requirement means that he must act honestly and with finest and undivided loyalty to the trust, not merely with that standard of honor required of men dealing at arm’s length in the workaday world, but with a punctilio of honor the most sensitive. * * *

In the same opinion, quoting from Hardy v. Hardy, 217 Ark. 296, 230 S.W. 2d 6 (1950), we further stated:

* * * In administering the trust, the trustee must act for the beneficiaries and not for himself in antagonism to the interest of the beneficiaries; he is prohibited from using the advantage of his position to gain any benefit for himself at the expense of the beneficiaries and from placing himself in any position where his self interest will, or may, conflict with his duties. * * *

See also Patterson v. Woodward, 175 Ark. 300, 299 S.W. 619 (1927); Lybarger v. Lieblong, 186 Ark. 913, 56 S.W. 2d 760 (1933).

Appellee stated the land was purchased as a future site for his own medical clinic. Clearly no benefit inured to the beneficiaries from this investment. This investment of trust funds was beneficial only to the trustee.

The declaration of trust provides that the excess income shall be paid to the beneficiaries at convenient intervals by the trustees. Although the trust consists of $60,495.24 of undistributed income, none of the beneficiaries have ever received a distribution.

A trustee has a duty to invest the trust assets in productive property. Restatement (Second) of Trusts §§ 181 and 240 (1959). The purchase of the lots by appellee for»his own personal use constituted a breach of trust.

Our cases hold that the beneficiaries may hold the trustee personally liable for a breach of trust. Clark, Trustee v. Spanley, Trustee, 122 Ark. 366, 183 S.W. 964 (1916); Davis v. Dickerson, 137 Ark. 14, 207 S.W. 436 (1918).

Restatement (Second) of Trusts § 210 (1959) provides:

(1) If the trustee purchases with trust funds property which it is his duty not to purchase, the beneficiary can
(a) charge him with the amount of the trust fund expended in such purchase, with interest thereon; or
(b) require him to account for the property so purchased.
* * *

On cross-appeal, appellee contends the lower court erred in removing appellee as trustee and appointing Union National Bank in Little Rock as sole successor trustee. We find no merit in this contention.

The acrimonious feelings between appellee and his former wife are reflected in part by the fact that this is the sixth appeal to this Court concerning matters arising from the divorce. The bitterness and ill will are further reflected by Dr. Riegler’s testimony that he would do everything he could to prevent his ex-wife, one of the beneficiaries, from getting any money out of the trust.

Restatement (Second) of Trusts, Explanatory Comments § 107 (1959), states several grounds for removal of a trustee, including the refusal to account and showing of favoritism to one or more beneficiaries.

In Hardy v. Hardy, 217 Ark. 305, 230 S.W. 2d 11 (1950), we stated:

One of the most fundamental duties of the trustee is that he must display throughout the administration of the trust complete loyalty to the interest of the cestui que trust. * # *
Where there are two or more beneficiaries of a trust, the trustee is under a duty to deal impartially with them [Restatement (First and Second) of Trusts § 183].

Here we note that Dr. Riegler purchased unproductive trust property without any authority; that he failed to comply with orders of the lower court for a number of years; that he refused to account to the beneficiaries for a long time after ordered to do so by the court; and that he has intentionally favored his children as remaindermen over his former wife as income beneficiary.

Accordingly, the decree of the chancellor is reversed as to the direct appeal and affirmed as to the cross-appeal.

We agree. Harris, C.J., and George Rose Smith and Holt, JJ.

       At the direction of the trial court and without objection, the accounting of Russell Brown & Company was introduced and indicates as of December 31, 1975, the undistributed income in the Doctors Riegler Trust was $60,-495.24.

       An exhibit introduced at the November 22, 1976, hearing showed assets of the trust to be 1115,473.22 as of December 31, 1975.


text:
    Joe Edward THOMAS v. STATE of Arkansas
    CR 77-41
    553 S.W. 2d 32
    Opinion delivered July 11, 1977
    (Division I)

      Don Langston, Public Defender, by: Hubert Graves, Dep. Public Defender, for appellant.

      Bill Clinton, Atty. Gen., by: Joseph H. Purvis, Asst. Atty. Gen., for appellee.
   Elsijane T. Roy, Justice.

Appellant Joe Edward Thomas was charged with aggravated robbery and kidnapping in violation of Ark. Stat. Ann. §§ 41-2102 and 41-1702 (Crim. Code 1976). The information further charged him with employment of a firearm in furtherance of a felony (§ 41 - 1004) and as an habitual criminal (§ 41-1001).

On February 11, 1976, at about 10 p.m., appellant approached a parked car in Fort Smith, Arkansas, occupied by David Mayfield and Mary Ann Moore. He forced himself into the car at gunpoint and directed Mayfield to drive into Oklahoma. He forced Mayfield to stop the car on a deserted road, tied up and robbed Mayfield of his billfold and a watch and Miss Moore of her ring. Appellant also raped and shot Miss Moore.

On trial to a jury appellant was found guilty and sentenced to 35 years and a $10,000 fine on each of two counts of kidnapping and to 20 years and a $10,000 fine on one count of aggravated robbery, with all sentences to run consecutively.

On appeal only the aggravated robbery charge is involved, and appellant contends the trial court erred when it refused to direct a verdict on this charge. He argues that no element of the crime of aggravated robbery occurred in Arkansas, but that the entire criminal activity took place in Oklahoma, depriving the Arkansas court ofjurisdiction to try the matter. We do not agree.

. . . [AJcts done in one state as a preliminary to completion of a crime in a second state may be, and sometimes are, punished as crimes in the first state. * * *
Lefiar, American Conflicts Law, § 114, p. 273 (rev. ed. 1968).

The pertinent Arkansas statutes provide as follows:

§ 41-2102. Aggravated robbery. — (1) A person commits aggravated robbery if he commits robbery as defined in section 2103 [§ 41-2103] and he:
(a) is armed with a deadly weapon, or represents by word or conduct that he is so armed; or
(b) inflicts or attempts to inflict death or serious physical injury upon another person.
§ 41-2103. Robbery. — (1) A person commits robbery if with the purpose of committing a theft or resisting apprehension immediately thereafter, he employs or threatens to immediately employ physical force upon another.

Unlike previous Arkansas law which emphasized the taking or asportation of property, robbery under the Criminal Code shifts the emphasis to the threat of physical harm to the victim. The commentary on these statutory sections states:

Section 2103 defines robbery in a way that shifts the focus of the offense from the taking of property to the threat of physical harm to the victim. One consequence of the new definition is that the offense is complete when physical force is threatened; no transfer of property need take place.

According to the robbery statute then the elements of the crime are (1) intent to commit theft and (2) the employment of or threat to employ physical force.

Appellant argues that force was threatened in Arkansas for the purpose of requiring Mayfield to drive into Oklahoma and not to facilitate the theft. However, the actual circumstances clearly show there was one continuous threat of force applied by appellant against the victims of these crimes beginning when he commandeered the car at gunpoint in Arkansas and culminating in the actual taking of the property. The force was initiated in Arkansas, and extension of the acts into Oklahoma does not defeat Arkansas jurisdiction. Events which transpired later indicate the intent to commit theft was obviously formulated by appellant when he entered Mayfield’s automobile. This issue of appellant’s purpose and intent was properly submitted to the jury within the framework of our statute without objection, and appellant was found guilty.

Appellant next alleges it was error for the trial court to refuse to give the following requested instruction:

You are instructed that a conviction of aggravated robbery in the State of Arkansas in this case will not prevent the Defendant being tried for a violation of Oklahoma Criminal Statutes for any act committed in Oklahoma.

We find no error in the court’s refusal to give this instruction. The question for the jury’s determination was the guilt of appellant of the crimes charged according to the laws of Arkansas. The issue of appellant’s criminal responsibility in the State of Oklahoma under the circumstances here was not a proper subject for the jury’s consideration.

Affirmed.

We agree. Harris, C.J., and George Rose Smith and Hoi.t, JJ.


author: Darrell Hickman, Justice.

text:
    Jack Allen THOMAS v. STATE of Arkansas
    CR 77-62
    553 S.W. 2d 41
    Opinion delivered July 11, 1977
    (Division II)

      Skillman, Durrett & Davis, by: Vincent E. Skillman, Jr., for appellant.

      Bill Clinton, Atty. Gen., by: Terry R. Kirkpatrick, for appellee.
   Darrell Hickman, Justice.

The only question on appeal of this criminal case is the validity of the seizúre of several packets of heroin. The appellant, Jack Allen Thomas, was convicted of possession of heroin, a controlled substance, and sentenced by the Crittenden County Circuit Court to five years in the penitentiary.

The conviction hinged entirely on the admissibility of several packets of heroin found in the appellant’s brief case. We agree with the lower court the seizure of the heroin was proper.

The facts are unique. Thomas was a passenger in a car driven by a man named Davis. The two men stopped at a restaurant on the interstate highway between Marion and West Memphis. Two deputy sheriffs in plain clothes, driving an unmarked car, also stopped at the restaurant and became suspicious of Davis and Thomas. Good reasons for the suspicion are not in the record. Anyway, the officers followed the vehicle driven by Davis and while following, ran a vehicle license check. The report indicated the license tag should be on a 1975 Pontiac but was instead on a 1975 Ford. The officers stopped the car. Davis produced a valid temporary Tennessee driver’s license and Thomas a valid Arizona license. Davis could not produce registration papers and the officers requested them to follow the officers to the sheriff’s office. They did, and Davis and Thomas got out of the vehicle and locked it. Deputy Sheriff Doyle, while checking the identification number on the vehicle by looking through the window, saw a pistol in a holster on the right front floorboard. According to Doyle, the driver, Davis, consented to entry of the vehicle. Doyle got the gun, ran a check on it and received a report that the pistol was reported stolen in Phoenix, Arizona in 1968. Thomas was arrested for possession of stolen property and carrying a concealed weapon.

Officer Doyle also brought several other items from the vehicle into the sheriff’s office, including a locked brief case belonging to Thomas. After Thomas was arrested, but before he was placed in a cell, he told Doyle there was some money in his brief case and he wanted it inventoried. Doyle told Thomas that he could open the brief case but only he, Doyle, could reach into it to get the money. Doyle explained this was standard procedure for the protection of police officers against weapons.

Thomas opened the locked brief case and pointed to an envelope. It contained six St00 bills. Doyle saw a plastic packet containing a brown powdered substance in the case and took it. The packet, with several other packets found in the brief case, contained heroin. The packets were admitted into evidence.

These facts are all as related by Deputy Sheriff Doyle. There is no evidence in the record to refute them. The only other evidence in the record is the testimony of the health department official identifying the heroin.

This case is unique because it does not exactly fit the usual case of search and seizure. Where consent is the question, the officer states the defendant gave permission to search. The defendant denies the search was voluntary. See Martin v. State, 251 Ark. 1025, 476 S.W. 2d 235 (1972). Neither Doyle nor any other officer asked for permission to search the brief case and there is no evidence they intended to. Nor do these facts exactly fit the situation where consent is implied, such as contraband seized at an airport. U.S. v. Doran, 482 F. 2d 929 (July 10, 1973). The seizure of the gun in the car would apparently fit the situation where a police officer is entitled to seize any contraband or evidence in “plain view.” See Freeman v. State, 258 Ark. 617, 527 S.W. 2d 909 (1975). But that is not exactly the case with the heroin. It is a case where a defendant invites a police officer to look into a brief case that would otherwise remain closed. In such a cáse a defendant is not in a position to complain that the officer sees contraband and seizes it. To expect otherwise would be foolish. Thomas was told before the case was opened that Doyle would remove the money. Thomas, therefore, brought the seizure on himself because it was reasonable under the circumstances for the police officer to seize any contraband that he saw when he looked into the brief case. The constitution only prohibits unreasonable searches and seizures. Ark. Const. Art. 2, § 9.

The appellant argues that the officers had no reason to suspect the two occupants of the vehicle, follow them, or, in fact, hold them. It was learned several days later the pistol actually belonged to Thomas and he had reported it stolen but later recovered it.

According to the testimony, the officers did not stop the vehicle until a report indicated the license tags were not on the proper vehicle. The two men were not asked to follow the officers until no valid vehicle registration could be produced. Thomas was not arrested until it was reported that the gun was stolen. The heroin was not seized until Thomas opened the brief case and invited the officer to enter the brief case. This is according to undisputed testimony.

The fact that no warning of constitutional rights was given to Thomas is irrelevant to the seizure of the heroin. See Dixon v. State, 260 Ark. 857, 545 S.W. 2d 606 (1977). The fact that the gun was actually not stolen is irrelevant. The actions of officers, according to the undisputed testimony, were reasonable and proper at all times.

The state has the burden to prove that a seizure of evidence is legal and proper. The only evidence here is Doyle’s statement. We cannot say the trial court was wrong in finding that the state met its burden.

Affirmed.

We agree: Harris, C.J., and Fogleman and Byrd, JJ.