author: Carleton Harris, Chief Justice. Jim Johnson, Associate Justice,

text:
    Mountaire Processing Co. v. Colvin.
    5-3632
    396 S. W. 2d 938
    Opinion delivered November 29, 1965.
    [Rehearing denied January 10, 1966.]

      Wright, Linclsey, Jennings, Lester $ Shults, for appellant.

      Shaw & Shaio, John B. Hainen, for appellee.
   Carleton Harris, Chief Justice.

This is a Workmen’s Compensation case. Mrs. Anna Marie Colvin was employed by Mountaire Processing Company as a trimmer. Her work was performed in a large room where there were evisceration lines. This worker stood on a platform, about two feet long and two feet wide, facing a trough about three feet wide and six to ten inches deep. Overhead was a moving mechanical line, with chickens hung on it. To the right of the worker was a wash basin. Mrs. Colvin’s job was trimming bruises from the chickens as they passed by on the line. On February 26, 1963, appellant fainted, while engaged in the work mentioned above,, and, while falling, was caught by Ed Slough, an employee of the United States Department of Agriculture, assigned to Mountaire Processing Company, Mr. Slough working alongside of Mrs. Colvin. Other employees assisted in removing her from the work line. Dr. Roger Dickinson was called, gave her an injection of thorazine, and Mrs. Colvin was taken home by her husband. She continued to work thereafter until March 5, at which time she went to the Dickinson Clinic, complaining of pain in the lumbosacral region of her back. She was subsequently referred to Dr. Paul Hughes, orthopedist at the Southern Clinic of Texarkana, who, in April, 1963, performed a partial laminectomy on the right side at the L4-L5 interspaces, and a large extruded mass of fibrous tissue was removed from the spinal canal. She was discharged five days later to return home, and Dr. Hughes continued to see her from time to time until September, 1963.

Mrs. Colvin signed a “statement of claim” form for benefits from the General American Life Insurance Company, the claim form denoting that her claim was due to sickness which began approximately March 5; as a result of this claim, benefits were paid to her for thirteen weeks. Thereafter, Mrs. Colvin filed a claim for Workmen’s Compensation benefits, asserting that the herniated disc was the result of her fall at the plant on February 26. The referee allowed her claim, but this finding was reversed by the full commission, which found that the extruded disc was not the result of an accidental injury arising out of and in the course of her employment with Mountaire on February 26, 1963. The commission finding was appealed to the Sevier County Circuit Court, and that court reversed the commission, holding that there was no substantial evidence to support the findings of fact made by the commission, and the court further found that the injury to claimant arose out of, and in the course of, her employment, and that she was entitled to Workmen’s Compensation benefits. From the judgement so entered, Mountaire and its insurance carrier, Fidelity and Casualty Company bring* this appeal.

We are only concerned here with whether there was substantial evidence to support the finding of the commission. Claimant testified that while she was working, she felt a “dizzy spell coming on;” that she had previously had the flu, and that she thought, “Well, I’m going to faint.” She said that she was standing on a narrow platform, slipped, and “that throwed me kind of backwards and I hit this wash basin and tried to catch forwards to keep from falling back on the concrete floor. ’ ’ The witness stated that she lost her balance, and fell back, the lower region of her back striking the wash basin. This is the evidence relied upon to establish the compensable injury, but claimant’s version is not corroborated by any other witness, including those offered by Mrs. Colvin. Mr. Slough testified, “Well, I just glanced to one side and I noticed that she was just dropping down, just suddenly wilting and I reached over and grabbed her and moved her back away from the trough.” He stated that she just fell “straight down,” and that he did not see her strike the wash basin. Mr. Henry W. Shook, another government inspector, who was working opposite Mrs. Colvin on the line, likewise testified:

“Well, she sort of wilted right in front of me just over on the trough down beside of that washbasin that was out beside the trough. She just sort of wilted right down the side and over the trough.”

Prank Halter, the plant foreman, testified that he looked at claimant while she was being held up by Mr. Slough, and that her feet were still on the platform at the time.

Mrs. Colvin testified that Dr. Roger Dickinson came out to the plant, and gave her a shot, and later gave her some pills; that she went back to work the following day, and worked the balance of the week. Claimant said that she first noticed pain in her back the next day, as she started to take off her boots, and that from that time on, the pain gradually grew worse; that she then consulted Dr. Bill Dickinson. She testified that the doctor asked if she had had any fall, and that she told him about falling on the 26th, and also told him that Dr. Roger Dickinson knew about it. She also testified that, upon being sent to Dr. Hughes in April, she told this doctor about the fall, and slipping and striking her back on the basin.

Dr. Bill Dickinson testified that his records did not show, and he had no recollection of Mrs. Colvin’s telling him that she received an injury at the plant. He testified that ordinarily, when receiving a complaint like that of Mrs. Colvin, he would have made inquiry (whether she had received an injury). He also stated that normally, if an injury had been reported, he would have notified the plant, but that he had not given the plant any notice in this case.

Dr. Roger Dickinson, brother of Bill, testified that he went down to the plant after receiving a call, around 8:00 or 8:30 in the evening (February 26), and that he gave Mrs. Colvin a shot of thorazine (“to try to settle her down so that she could go home and go to sleep”). He stated that he inquired- as to what had happened, and was told that she had gotten sick and fainted. The doctor stated that he did not remember Mrs. Colvin’s ever having given a history of being injured, or of having injured her back Avhile at the plant.

Dr. Hughes did not testify, but a disability insurance form, which had been signed by him and Mrs. Colvin Avas introduced into evidence by the claimant. Neár the top of the form is a clause as folloAvs:

“Claim is) 0 Sickness Avhich'commenced on ‘ [typed in] approx Mar. 5, 63’
Due to) □ Accident which occurred on .......................................... At..!......................................

It Avill be observed that an “x” is placed in the square by ‘ ‘ Sickness. ’ ’

On Page 2 there is a question, “Did this sickness or injury arise out of the patient’s employment?” There aré then two spaces for the answer, one marked, “Yes,” and one marked, “No,” and the “No” is checked.

To summarize, claimant testified that she fell against the wash basin, her back striking it. This is not verified by any witness; in fact, both Edwin Slough and Henry Shook, whose testimony was offered by appellee, stated that she “wilted” and “dropped down,” and neither saw her strike the -wash basin. The Dickinson brothers, though stating that inquiry was normally made as to possible injuries, when examining and interviewing patients with a back ailment such as that complained of by Mrs. Colvin, had no recollection of claimant’s relating any injury, and their medical records did not reflect any such information. The claim form, filled in by Dr. Hughes, and signed by Mrs. Colvin, affirmatively shows that her insurance claim was designated as being due to sickness, rather than an accident, and further reflects that the ailment did not arise out of her employment. No doctor testified that her condition was due to her fall or to an injury.

Of course, it is immaterial what this court would find if we were trying the case ele novo, for the commission is the trier of the facts, and we review the findings of that body in the light most favorable to its findings if same are supported by substantial evidence. Burrow Construction Co. v. Langley, 238 Ark. 992, 386 S. W. 2d 484. In the light of, what has been set out in this opinion, we are unable to agree with the learned Circuit. Judge that there was no. substantial evidence to support the findings of the Compensation Commission.

The judgement of the Sevier County Circuit Court is therefore reversed, and that court is directed to reinstate the order of the Workmen’s Compensation Commission denying compensation.

It is so ordered.

Robinson, Johnson and Holt, J. J., dissent.

Jim Johnson, Associate Justice,

(dissenting). I do not agree' with the majority view. The referee who conducted the hearing"in this case concluded from the evidence presented that:

“It is not disputed that claimant received an operation for a herniated disc. The difficult question therefore is whether this herniated disc arose out of claimant’s employment with respondent. The referee is of the opinion that the evidence reflects that such is the case. Claimant testified that she fainted while trimming poulry in respondent’s plant on February 26, and that before she passed out she remembered falling backward and striking her back against the wash basin which was located to her right and slightly to the rear of her work area [about six inches from her]. She further stated that she attempted to pitch forward to prevent herself from falling striking the floor, and that the following evening when removing her work boots, she noticed pain in the lumbo-sacral' area [where her back struck the basin]. The evidence reflects that this pain became progressively worse during the next eight or ten days, culminating in the necessity of claimant being placed in traction for a period of eight days. It was not disputed that claimant did faint while working on respondent’s poultry line. Mr. Ed Slough testified that when he first noticed claimant she was falling toward the trough, and that he caught her before she struck the floor. While none of the witnesses testified that they had observed claimant striking the wash basin, [none denied it happened], all of them did testify that they did not observe claimant until the line was stopped, at which time she was being held up by Mr. Slough. Thus we have claimant’s testimony that she had never been bothered with her back prior to the fainting episode; that she struck her back as she fell; that the following night she noticed soreness and pain in her lumbo-sacral region; that this pain became progressively worse; and approximately ten days subsequent to her fainting episode, she had to be carried to the hospital and placed in traction.
“While the record does not reflect that claimant definitely gave the Drs. Dickinson a history of having injured her back on the job, the record does reflect that claimant testified that she naturally assumed that the doctors would relate her back injury to her fall, and the record does reflect that the doctors both at a later date connected claimant’s trouble up with her fall and fainting episode there at the plant. Dr. Roger Dickinson’s notes reflect that ‘Dr. Roger was called to the plant the night this lady fell, gave her an injection, and let her go home.’ Dr. Roger Dickinson testified that this was in Dr. Bill Dickinson’s handwriting. This would tend to reflect that the doctors eventually connected the fainting episode with claimant’s herniated disc.”

Without the benefit of additional evidence, the full commission almost summarily reversed the award.

On appeal to the circuit court this matter received a through review. The circuit court, obviously aware of the limited scope of its authority in workmen’s compensation cases, rendered a most conscientious and comprehensive opinion both as to the law and the facts. The court said, inter alia:............

‘ ‘ The record of the hearing before the Referee shows that the claimant is thirty-six years old and had been employed by the respondent processing company for appro vimately three years. That on the night of February 26, 1963, while trimming poultry on the evisceration line in respondent’s plant, and after having worked for six and one-half hours that day, she became dizzy, which produced a sensation of faintness, and in her words: ‘Well, I had become dizzy and I thought “Well, I’m going to faint,” I just felt so bad and I turned to look to see if I could get someone to take my place. You see, when I would leave the line, it would be stopped and I slipped on this thing I was standing on and that threw me back against this wash basin and then I, you know, tried to catch forward and that’s the last I knew.’ She further testified that she definitely and positively remembered striking that Avash basin.
“The undisputed testimony before the Commission shoAvs that she Avas carried from the processing room of the plant to the plant lunch room; that she was treated in the plant lunch room by Dr. Roger Dickinson, administered a sedative, and sent home.
“The claimant continued to work the remainder of the week, which was three days; that she worked the next week; that the pain and sorness became progressively worse; that on the 5th day of March, 1963, she went to the Dickinson Clinic and Dr. Bill Dickinson prescribed sedatives by reason of the pain and soreness in her back; that Dr. Bill Dickinson, on March 11, 1963, placed her in the DeQueen Clinic where she was confined in traction for a period of eight days; that she did not improve and was subsequently referred by Dr. Dickinson to D'r. Robert Hughes in Texarkana. Dr. Hughes first saw claimant on April 2, 1963, and a diagnosis of herniated nucleus pulposis was made; the claimant was admitted to St. Michael’s Hospital in Texarkana on April 9, 1963, at which time a myelogram was done, which showed almost complete occlusion of the spinal panal in the level of the L4-L5 interspace; that on April 10, 1963, a partial laminectomy on the right side was done at the L4-L5 interspace, and a large extrudal mass of fibrous tissue was removed from the spinal canal.
“To substantiate the testimony of the claimant, the Commission heard the testimony of her husband, Joe Colvin, who testified that following her alleged injury and all the next week, his wife complained a little more every day about her back, and it finally reached the point where she eouldn’t even lift her right leg. ’ ’

The court set out additional testimony substantiating appellee’s claim and concluded that:

“There is no evidence and no opinion to the effect that claimant’s injury was not or could not be caused by the fall she unquestionably sustained. None of the three doctors who treated her, including the one who operated on her, was ever asked if the injury could have been caused by the fall she sustained on the job, and none expressed an opinion about the matter one way or the other.
“The record of the hearing before the Commission affirmatively shows that the claimant sustained no known injury or any other incident prior to or after February 26, 1963, which contributed in any way to her disability. The question before the Court, therefore, is whether the action of the Commission in denying compensation for claimant’s disability is supported in the record by substantial evidence.”
“After having examined the entire record in this case day after day, this Court can find no substantial evidence to support the findings of fact of the Commission. On the contrary, this Court finds from the record in this case that said findings of fact are speculative and conjectural.” Clark v. Ottenheimer Brothers, 229 Ark. 383, 314 S. W. 2d 497.

From all of which this case in my view falls squarely within the rule announced in Hall v. Pittman Constr. Co., 235 Ark. 104, 357 S. W. 2d 263, as follows:

“If the claimant’s disability arises soon after the accident and is logically attributable to it, with nothing to suggest any other explanation for the employee’s condition, we may say without hesitation that there is no substantial evidence to sustain the commission’s refusal to make an award. ’ ’

For the reasons stated, I respectfully dissent. Justices Robinson and Holt join in this dissent.

       Mrs. Colvin worked about a week after consulting Dr. Bill Dickinson at the clinic.

       This claim was referred to earlier in the opinion; Mrs. Colvin drew benefits from this group insurance plan for thirteen weeks in the amount of approximately $25.00 per week.


source: Caselaw Access Project

author: Ed. P. MoPaddin, Associate Justice.

license: Public Domain

text:
    Cummings v. State.
    5134
    396 S. W. 2d 298
    Opinion delivered November 29, 1965.

      Slcillman & Webb, for appellant.

      Bruce Bennett, Atty. General, By: Farrell E. Faubus, Asst. Atty. General, for appellee.
   Ed. P. MoPaddin, Associate Justice.

The appellants, Jesse Cummings and John Teal, were jointly charged, tried, and convicted of the possession of burglary tools (Ark. Stat. Ann. § 41-1006 [Repl. 1964]). They bring this appeal assigning nine points for reversal, and we will mention only those which seem to possess any merit.

I. Habitual Criminal Statute. In their Point No. II the appellants say:

“The Court erred in denying the motion of the Defendant, John Teal, to withhold reading of that part of the amended information relative to a charge against the said John Teal of being an habitual criminal until after the jury had determined the guilt or innocence of the Defendant, John Teal.”

We find merit in this point. The information charged the defendants jointly with possessing a considerable number of burglary tools. In excess of fifteen items were all carefully listed. Then the information said, as regards the previous conviction of John Teal:

“The said John Teal, alias J. M. Billy Teal, an habitual criminal having previously, in cause No. 3162, been convicted in the Osceola District of Mississippi County, Arkansas, Criminal Division of the Circuit Court, of the Crime of Grand Larceny, such conviction having been on March 30, 1950, and said defendant having served such sentence and released upon pardon or parole as reflected in Criminal Judgment Record Book No. 5, Page 74.'”

The Trial Court, in the exercise of its discretion (Ark. Stat. Ann. § 43-1802 [Repl. 1964]), refused to grant the defendants a severance; and then in advance of the trial each defendant requested the Court to suppress, until guilt or innocence had been established, all reference to the habitual criminal allegation concerning John Teal. These separate requests of Teal and Cummings were denied in toto In the course of the trial the previous conviction record of Teal was shown; the Court instructed the jury on the habitual criminal statute; and the Prosecuting Attorney in his summation to the jury commented on the previous criminal record of Teal. All of this was done over the objections of the defendants.

On October 18, 1965 we decided the case of Miller et al. v. State of Arkansas (239 Ark. 836, 394 S. W. 2d 601), in which we discussed at length the habitual criminal statute and how any reference to previous convictions should be handled in jury trials. Under the holding in Miller v. State it is clear that the Trial Court committed error in the case at bar in allowing the evidence, instructions, and arguments to go to the jury about the previous conviction of Teal. It is only fair to the learned Circuit Judge to point out that this present case was tried on December 2, 1964, which was several months before our holding in Miller v. State on October 18, 1965. But, even so, the present appellants are entitled to claim the benefits of our holding in the Miller case.

Even though Teal was the only defendant with a previous criminal record alleged, we feel that the proof of Teal’s criminal record likewise adversely affected the interest of his co-defendant Cummings. Cummings had been denied a severance, and the jury might have inferred that Cummings ’ association with a known criminal was some indication of his own status. In Moore et al. v. State, 227 Ark. 544, 299 S. W. 2d 838, four defendants were jointly tried, and we held that the introduction of evidence incompetent as to two of the defendants was prejudicial to the other two defendants. So we reverse the convictions both as to Cummings and as to Teal.

II. Exhibition Of Pistol. Appellants say in their Point No. Y:

“The Court committed error in permitting a .38 caliber pistol to be exhibited to the jury without same being introduced into evidence or identified by the witness, Charles Faulkner.”

There is no need for us to recite in detail all of the various matters about this particular pistol and how it was exhibited to the jury. The point is that the pistol was not admitted in evidence; and until it was admitted it should not have been exhibited before the jury. We do not reverse the case because of this point; but in view of the likelihood of a new trial we call attention to what was said by us regarding showing a pistol to the jury in Rush v. State, 238 Ark. 149, 379 S. W. 2d 29:

“The very fact that the pistol was admitted in evidence could have had a tendency to confuse the jury, notwithstanding there is no contention on the part of the State that the pistol was used in the killing. In these circumstances we do not think the pistol was admissible in evidence. Everett v. State, 231 Ark. 880, 333 S. W. 2d 233.”

We have examined all the points urged by the appellants, and find none to possess merit except the two mentioned.

Reversed and remanded for a new trial.

       The Court order regarding Teal reads as follows: “Now on this 1st day of December, 1964, comes on to be heard the motion of the' Defendant, John Teal, to suppress Reading of Habitual Criminal Allegation until Guilt or Innocence has been- Determined; the Court, after hearing argument of counsel, and other things, matters and proof before the Court, finds the motion to be without merit and the same is hereby denied. The exceptions to the ruling of the Court and the Defendant’s reasons therefor have been duly entered on the record of this cause and made a part of the record.”
      The Court order regarding Cummings is similar to the above.

       On Tr. 180, just before the instructions to the jury, this occurred:
      “MR. SKILLMAN: Your Honor, did His Honor understand, we renewed the motions heretofore made, we made previous to this time that were considered and ruled on by the Court prior to the impanelling of the jury. We are renewing the motions.
      “THE COURT: I understood, you are not waiving the motions.”


author: George Rose Smith, J.

text:
    Greyhound Lines v. Harmon.
    5-3692
    396 S. W. 2d 291
    Opinion delivered November 29, 1965.

      Smith, Sanderson, Stroud\ & McGlerkin, for appellant.

      McKay, Anderson d Grumpier, for appellee.
   George Rose Smith, J.

This is an action for personal injuries sustained by the appellee while she was riding* as a passenger on one of the appellant’s buses. The jury’s verdict was for the plaintiff in the sum of $4,000. The appellant’s only contention is that it was entitled to a directed verdict.

The incident occurred after midnight. The bus driver, H. TV". Fielder, was the only eyewitness to testify. He said that he was traveling at 55 or 60 miles an hour, with his bright headlights on. As he crested a slight rise in the highway the beam of his lights came back down on the road and revealed the presence of two mules, one in each traffic lane, about 75 feet ahead. Fielder testified that to avoid the animals he was compelled to swerve sharply to his right and travel partly on the shoulder of the road. According to him, if he hadn’t swerved “that mule would have been inside the bus with us.” Mrs. Harmon, who was asleep, was thrown to the floor of the bus and suffered painful injuries.

Fielder’s testimony, which cannot be regarded as undisputed, presented an issue of fact. He stated that his headlights shone farther than 75 feet. In fact, the statute requires headlights to be of sufficient intensity to reveal a person at a distance of at least 350 feet ahead. .Ark. Stat. Ann. § 75-713 (Repl. 1957). If the rise in the road was not high enough to block Fielder’s view of the road beyond the rise, the jury could have found that his failure to see the mules until they were only 75 feet away indicated that he was not keeping a proper lookout. On the other hand, if the rise was high enough to block Fielder’s view of the road ahead it was his statutory duty to reduce his speed in approaching the crest of the hill. Act 307 of 1959, § 33 (d). (This section of Act 307 amended Ark. Stat. Ann. § 75-601, but by an oversight the compiler failed to include subsection (d) in the 1965 pocket supplement.)

As a common carrier the appellant was under a duty to use the highest degree of care for the safety of its passengers. Missouri Pac. Transp. Co. v. Shepherd, 203 Ark. 412, 157 S. W. 2d 501 (1941). There was no negligence whatever on Mrs. Harmon’s part. Her injuries unquestionably resulted from the manner in which Fielder drove the bus. It was for the jury to say whether, in view of the circumstances, Fielder was completely' free from negligence.

Affirmed.


author: Paul Ward, Associate Justice.

text:
    Williams v. Jones.
    5-3678
    396 S. W. 2d 286
    Opinion delivered November 29, 1965.

      J. G. Moore and Felver A. Rowell, Jr., for appellant.

      Gordon & Gordon and George J. Gambiano, for appellee.
   Paul Ward, Associate Justice.

Jeff Williams (appelant) filed a complaint against Susie Jones (appellee) alleging he bought forty acres of land on June 3, 1959 from the State Land Commissioner; that the lands were sold to the State for the taxes of 1945; that he had been in adverse possession for twelve years;' that he had placed valuable improvements thereon, and; that appellee claimed some interest in said land. The prayer was to have his title confirmed.

To the above complaint appellee (through her guardian, Prank Jones) denied all allegations therein, and alleged that appellant had rented the land from her; that appellant had acted in bad faith when he made said improvements because he knew she was insane, and; that she had been insane and confined in the State Hospital for Nervous Diseases since December 15, 1945. Her prayer was that she be allowed to redeem the land in her name.

At a hearing held on November 3, 1963 the court found appellee was a co-tenant as an heir of Louisa Pay-ton Stevenson; that at the time of the tax sale in question appellee was incompetent; that the tax deed to appellant be cancelled, and; that appellee’s guardian should redeem said lands from the State. The hearing was then continued for an accounting between the parties.

Oil January 9, 1965 the court entered an order, with all parties present or represented, giving appellant a lien on the land to secure payment of $225 spent for taxes; $9500 spent for improvements, and; $405 paid for the State deed. The court held appellee “is entitled to a rental of $85 per month from the date of the petition to redeem . . . .”

On appeal appellant urges four points for a reversal but we find no merit in any of them for the reasons hereafter mentioned.

1. There is no testimony from which the trial court could have found that appellant or any of his predecessors in title had held adverse possession of the land for seven years before appellee became insane. This point was never raised in the pleadings, and also it was shown that appellant paid rent to appellee.

2. It is not disputed that appellee has a living sister who has never been adjudged incompetent and who was not made a party defendant. It is contended by appellant that appellee could not (in any event) redeem more than her undivided interest. This contention was never raised by the pleadings, nor could it have been successfully maintained under Mitchell v. Chester, 208 Ark. 781, 187 S. W. 2d 899 and Hunt v. Ellis, 219 Ark. 353, 242 S. W. 2d 146. While the decisions in these cases dealt with the right of minors to redeem, they were based on Ark. Stat. Ann. § 84-1201 which applies alike to minors and insane persons.

3. Wé find no merit in the contention the court erred in charging appellant $85 per month rent on the dwelling. There was testimony that a reasonable rent was as high as $95 per month. In allowing rent the court relied on the fact that appellant continued to work on the house and lived in it after this suit was filed and after he had been admonished by the court not to do so, and also on the fact that appellant was given credit for such additional improvement.

4. Finally, we find no testimony which would have justified the trial court in giving appellant' a larger amount for improvements. In fixing the amount the court apparently followed the proper rule announced in Wallis v. McGuire, 234 Ark. 491, 352 S. W. 2d 940, where we approved the following statement:

£i ‘The measure of the value of betterments is not their actual cost, but the enhanced value they impart to the land, without reference to the fact that they were desired by the true owner, or could not be profitably used by him-.’ ”

It would serve no useful purpose to set out detail all the testimony regarding the many improvements and the cost or value thereof. We have carefully read the same and feel it does not justify a greater alloAvance than that made by the trial court.

In vieAv of Avhat we have said above it folloAArs that the decree appealed from should be, and it is hereby, affirmed.

Affirmed.


author: Sam Robinson, Associate Justice.

text:
    Jonesboro Investment Corp. v. Cherry.
    5-3644
    396 S. W. 2d 284
    Opinion delivered November 29, 1965.

      Edward L. Westbroolce, for appellant.

      Gentry £ Gentry, Dulaney £ Dulaney, Tunica, Mississippi, for appellee.
   Sam Robinson, Associate Justice.

This is a suit for specific performance filed by appellants, Jonesboro Investment Corporation and M. Gr. Spurlock, against appellees, James C. Cherry and his wife, Frances D. Cherry. The plaintiffs, appellants here, allege in the complaint that appellees offered to sell and convey a 2,400 acre plantation and equipment thereon to appellants for the consideration of $900,000; that appellants closed the contract by accepting the offer; that appellees breached the contract by refusing to convey the property. Appellees, Mr. & Mrs. Cherry, the property owners, demurred to the complaint on the ground that it shows on its face that the alleged contract is barred by the statute of frauds. The demurrer was sustained. The statute of frauds may be invoked by demurrer. Stanford v. Sager, 141 Ark. 458, 217 S. W. 458; Moore v. Exelby, 170 Ark. 908, 281 S.W. 671.

The pertinent part of the statute of frauds, Ark. Stat. Ann. § 38-101 (Repl. 1962) provides:

“No action shall be brought ... to charge any person upon any contract for the sale of lands, tenements, or hereditaments, or any interest in or concerning them . . . unless the agreement, promise or contract upon which such action shall be brought, or some memorandum or note thereof, shall be made in writing, and signed by the party to be charged therewith, or signed by some other person by him thereunto properly authorized.”

To affirm the chancellor’s action in sustaining the demurrer, the appellees contended that the statute of frauds is applicable because the property to be sold is not sufficiently described; that the memorandum or note relied on by appellants is not sufficient to take the contract to sell out of the statute of frauds insofar as appellants’ alleged right to purchase is concerned; and that the written memorandum is not sufficient because it does not show the terms and conditions of the sale and time for payment.

We need to discuss only one of the points involved, and that is the question of whether the alleged contract is barred by the statute of frauds because it does not state the conditions and terms of the sale and the time of payment. At first blush it would appear that there can be no valid objection to the contract on this ground. The sale price is given at $900,000 “to be paid according to the price and terms herein given. ’ ’ The price is stated but not the terms. The listing contract was prepared by filling in spaces on a listing contract form. That part of the contract form designated “terms,” to be used in showing encumberances, the down payment, balance owed and how it was to be paid, was left blank.

Appellants argue that in a situation of this kind it is presumed the agreement is for the payment of the entire purchase price in cash and cites Kempner v. Gems, 87 Ark. 221, 111 S. W. 1123. This case does appear to sustain appellants ’ view. But there, apparently the court determined that the contract did provide for the terms and conditions of the sale. This court said: “The price was to be $35,500 payable $10,000 cash and the balance to be arranged to the satisfication of the owners.”

Appellants also cite Sturdivant v. McCorley, 83 Ark. 278, 103 S. W. 732, as holding that where no time is “set for payment, the debt was, in law, payable on demand.” In that case, ten years aftfer a note was given showing no due date the question arose as to when it was due, and the court held that in the circumstances it was due on demand, and since it was due on demand, it was due immediately after it was signed and delivered. Hence, it was barred by the statute of limitations. The case is somewhat analogous to the situation here, but in view of many other decisions of this court it cannot be said to be controlling. In the Sturdivant case the money. had been loaned, the note given, and the only question on this point was the due date. The statute of frauds was not involved.

All of our cases directly in point with the case at bar hold that the terms and conditions of the sale must be stated in the written memorandum in order to take the transaction out of the statute of frauds.

Perrin v. Price, 210 Ark. 535, 196 S. W. 2d 766, is in point. There, the memorandum in question provided: “Pocahontas, Arkansas, March 5, 1945. Received from W. F. Perrin $100, payment on town lots, north Pocahontas, at a price of $1,500, known as the J. W. Price pasture lots. (Signed) Clifford Price, Executor.” We said: “We think the memorandum or receipt in question here is totally lacking as to the time within which payment was to be made and the method and conditions of payment.”

In Kromray v. Stobaugh, 212 Ark. 377, 206 S. W. 2d 171, the court said: “In our recent case of Perrin v. Price, 210 Ark. 535, 196 S. W. 2d 766, we had occasion to discuss thé essentials required of a memorandum to fulfill the Statute of Frauds. Some of our cases are reviewed therein. It may be true, as counsel state, that we have gone further than most courts, to require that all the. essential provisions of the contract be in writing in order to satisfy the Statute of Frauds; but at all events, such is our holding, and to it we will adhere. ’ ’

In Wyatt v. Yingling, 213 Ark. 160, 210 S. W. 122, this court quoted from 49 Am. Jur. 354 to the effect that it is not sufficient that the note or memorandum express the terms of a contract; it is essential that it completely evidence the contract which the parties made by giving all of the essential terms, and the court states: “This statement of the law accords with our recent case of Perrin v. Price, 210 Ark. 535, 196 S. W. 2d 766, and other opinions of this court on the subject there cited. In one of these, that of Tate v. Clark, 203 Ark. 231, 156 S. W. 2d 218, the headnote reads: ‘A contract for the sale of land which fails to show the terms and conditions of the sale, the price to be paid and the time for payment is not sufficient to satisfy the requirements of the statute of frauds.’ ” To the same effects are the cases of Schuman v. Hughes, 203 Ark. 395, 156 S. W. 2d 804, and Lindsey v. Hornady, 215 Ark. 797, 223 S. W. 2d 768.

The listing contract on which appellants rely was made an exhibit to the complaint. As heretofore pointed out, it does not show the terms- and conditions of the sale and the time of payment. The chancellor was, therefore, correct in sustaining the demurrer and dismissing the complaint.

Affirmed.


author: Jim Johnson, Associate Justice.

text:
    Spencer v. Plainview Lumber Co.
    5-3675
    396 S. W. 2d 943
    Opinion delivered November 29, 1965.
    [Rehearing denied January 10,1966.]

      John D. Harris, Tulsa, Oklahoma, Garner & ParJcer, for appellant.

      Harper, Harper, Young <& Burden, for appellee.
   Jim Johnson, Associate Justice.

This workmen’s compensation appeal deals with compensability for a heart attack suffered on the job and the resultant disability.

Appellant Mack O. Spencer was employed by appellee Plainview Lumber Company as a millwright. His primary duty was sharpening and changing the saws as needed; secondarily, he would scale logs and see that the mill itself was running properly. On December 10, 1959, J. P. Moss, in charge of the mill in the absence of the owner, requested appellant’s assistance in the dry kiln. (The dry kiln is a heated building in which green lumber is placed for 72 hours to dry at a temperature of 160-180° P.) They opened the doors to the kiln and waited one and one-half to two hours for it to cool to about 100° P. This gas kiln had a concrete roof about eighteen feet high and had ten or twelve ceiling fans which hung about three feet below the ceiling. One of the fans had fallen to the ground. Moss and appellant made a platform with some two by sixes and raised the fan up onto the platform. The fan weighed 35 to 40 pounds. Working on the platform, they replaced the fan up on its shaft and lined it up, having to stoop as they worked. One wielded a sledge hammer, the other held a block of wood against the fan to avoid damaging the fan, and alternated using the sledge hammer. Replacing the fan took appellant and Moss fifteen to twenty minutes; the temperature remained about 100 degrees in the kiln. As soon as they were through they left the building, Moss to the office and appellant to the saw mill to return the sledge hammer and wrench. After appellant replaced the tools he felt bad and went to the planer shed and sat down and then laid down on some stacked lumber. He had pain in his chest, then in his left arm and finally had difficulty breathing. Moss came out where appellant was and took him to Ola to see a doctor. Not finding a doctor at Ola, they returned to Plainview where they met a doctor. He was taken to a hospital at Russellville that day and remained there three weeks. Appellant was allowed to return to work on March 22, 1960, for light work, and worked until February 2, 1961, when he had fluid on his lungs, and has not worked since on doctors’ advice.

A hearing was held September 6, 1962, before the workmen’s compensation referee, who found for appellant. On appeal to the full commission, the award of the referee was reversed. The commission ruling was affirmed by the Tell Circuit Court, from -which comes this appeal.

For reversal appellant contends that the commission erred in holding that appellant failed to prove by a preponderance of the evidence that there is a causal relationship between his employment and his injury and disability.

The general rule on hearing before the commission is that where a claimant establishes by a preponderance of the evidence that he received an accidental injury arising out of and in the course of his employment, he is entitled to the benefits of workmen’s compensation. On appeal we are bound by the substantial- evidence rule.

The facts here are uncontradicted. The testimony of both appellant and Moss is that appellant had pains within a few minutes (twenty minutes) after they finished their strenuous work in the dry kiln. Moss had immediately sought for him medical attention.

Appellant’s principal doctor testified in essence that while such a heart attack might occur anywhere, even while resting or sleeping, the pain appellant experienced following this work was the onset of a coronary thrombosis. Two dbctors who examined appellant once each some five years after his injury testified in effect that his usual work would not cause the injury. One of these doctors based his opinion upon a misconception of the facts; whereas the other concedes that such an attack could occur as a result of an unusual exertion.

Review of the record revels that there is no substantial evidence to support the commission’s findings. The evidence reflects that appellant’s injury arose out of and in the course of his employment, and that the injury resulted from the unusual exertion or strain in replacing the fan in the dry kiln. Appellant more than met his burden of proof. Claimant’s burden of proof is discussed in full in the landmark opinion written for this court by the late Justice Minor Millwee in Bryant Stave & Heading Co. v. White, 227 Ark. 147, 296 S. W. 2d 436. The sole issue in that case was “whether a disabling back strain suffered by a claimant while doing his usual work in the customary manner, and without any fortuitous external happening, constitutes a compensable ‘ accidental injury’ within the meaning of the Arkansas Workmen’s Compensation Law.” (Emphasis, ours.) The language and conclusion of the Bryant case are clear:

“If we should adopt a requirement that the work or strain be unusual or extraordinary we would . . . read into the law a requirement which greatly increases litigation to determine the elusory difference between usual and unusual strain or exertion. We would also, in effect, recast upon the disabled employee the burden of the old common law defense of assumed risk in specific violation of the statute (Sec. 81-1304). This result is illogical and contrary to the spirit and purpose of the compensation law and the liberal construction we have repeatedly resolved to give it. Birchett v. Tuf-Nut Mfg. Co., 205 Ark. 483, 160 S. W. 2d 574; 58 Am. Jur., Workmen’s Compensation, Sec. 2.
“Notwithstanding anything we may have said in prior cases, we hold that an accidental injury arises out of the employment when the required exertion producing the injury is too great for the person undertaking the work, whatever the degree of exertion or the condition of his health, provided the exertion is either the sole or a contributing cause of the injury. In short that an injury is accidental when either the cause or result is unexpected or accidental, although the work being done is usual or ordinary. ’ ’

The cause is accordingly reversed and remanded to the commission for further findings consistent herewith.


author: Frank Holt, Associate Justice.

text:
    Oliver v. Miller.
    5-3683
    396 S. W. 2d 288
    Opinion delivered November 29, 1965.

      Jonh M. Lofton, Jr. and Jack Yates, for appellant.

      Edgar Woolsey, Jr., Jeff Mobley, William R. Bullock, for appellee.
   Frank Holt, Associate Justice.

This appeal involves a head-on collision between two vehicles hilling both drivers, Mrs. Glenda Oliver and Stanley Miller, who were the only occupants of the cars. Appellant first contends that the present action is barred by a previous one.

The accident occurred on December 14, 1963. Six days later, or December 20th, Dow Oliver, husband of Mrs. Oliver on behalf of himself and their four children, filed suit against Leon Hoing, the special administrator of the estate of Mr. Miller, in the Circuit Court of Franklin County, Arkansas seeking damages for the alleged wrongful death of his wife. On that date Mrs. Miller was advised by letter that a special administrator of her husband’s estate had been appointed for the specific purpose of securing service of summons upon the administrator in that action. Within the time, to answer the special administrator filed a motion to quash the service of summons upon him. No further pleadings were filed in the case and on February 7, 1964 the suit was dismissed “without prejudice.” On the previous day an order was entered in the Probate Court of Franklin County appointing Dow Oliver the administrator of the estate of Glenda Oliver, deceased, and permitting him to settle with the special administrator the pending suit in circuit court for the sum of $8,500.00.

On February 26, 1964 Mrs. Miller, as administratrix of the estate of Stanley Miller, decedent, filed the complaint in the instant case against Dow Oliver as administrator of the estate of Glenda Oliver, decedent, in the Circuit Court of Johnson County, Arkansas. Mrs. Miller sought damages for the alleged wrongful death of her husband as a result of the same accident that was involved in the suit of Oliver v. Hoing, supra, which had been dismissed without prejudice. Upon a trial the jury found the issues in favor of the appellee and awarded her, as administratrix of her husband’s estate, the sum of $13,500.00. From the judgment on this verdict appellant brings this appeal.

For reversal it is urged that the court erred in refusing appellant’s motion to dismiss appellee’s complaint because of appellee’s failure to'file a counterclaim in the prior action which was between the same parties and involving the same issues of fad in the Franklin County Circuit Court. Appellant insists that the mandatory provisions of Act 54 of 1935 [Ark. Stat. Ann. § 27-1121 (Repl. 1962)] require that the appellee had to assert any of her rights by a counterclaim in the previous action in answer to appellant’s complaint. Therefore, by not so doing, the present action is barred by this statute. We cannot agree with the appellant that this statute is applicable or controlling in the case at bar. The dismissal of a cause of action without prejudice permits the bringing of a subsequent aetion for the same cause. Ark. Stat. Ann. § 37-222 (Repl. 1962); Campbell v. Coldstream Fisheries, Inc., 230 Ark. 284, 322 S. W. 2d 79; 27 C. J. S., Dismissal & Nonsuit §§ 72-73, p. 471.

In the case at bar the dismissal without prejudice occurred during the pendency of the motion to quash and before the time had expired for the appellee to answer or counterclaim. There was no adjudication on any issue. in the Franklin County Circuit Court action and consequently it cannot be said to be res judicata. Appellee’s right of action is not barred in the instant case.

Appellant next contends that the evidence is insufficient to support the verdict. Upon this point the appellant succinctly states that: “The only issue actually in controversy was the question of the direction in which the two drivers were going at the time of the collision.” Appellant contends and presented evidence that Miller was driving westward and Mrs. Oliver was driving eastward when the collision occurred in her lane of traffic. Appellant argues there is no substantial evidence to the contrary. On appeal we must view the evidence in the light most favorable to the appellee and affirm if there is any substantial evidence to support the jury verdict. Menser v. Danner, 219 Ark. 130, 240 S. W. 2d 652; Jarrett v. Matheney, 236 Ark. 892, 370 S. W. 2d 440.

With this rule in mind we review the evidence. There was no eyewitness to the accident. Mrs. Miller testified as to her husband’s customary route and time of arrival in returning from Noel, Missouri, where he was employed, to their home in Clarksville, Arkansas. Darrell Lofton testified that Mr. Miller left Mr. Lofton’s office in Springdale, Arkansas at approximately 2:00 P.M. er route to Ms home on the date of the accident. Buddy Rogers testified that he personally knew Mr. Miller and observed him proceeding east on highway #64 traveling at a normal rate of speed toward Clarksville at a point approximately 7 miles west of Mulberry at about 3:15 or 3:20 P.M. on the date of the accident. The accident occurred about 1 mile east of Mulberry. State Trooper Williams stated that he was notified of the accident by radio at approximately 3:25 P.M. and that the collision occurred on the south side of the highway in the eastbound lane of traffic.

We cannot say that this evidence was not sufficiently substantial to support the jury’s verdict. Callaway v. Perdue, 238, Ark. 652, 385 S. W. 2d 4; St. Louis-Southwestern Ry. Co. v. Holwerk, 204 Ark. 587, 163 S. W. 2d 175; Harmon v. Ward, 202 Ark. 54, 149 S. W. 2d 575. The preponderance or weight of the evidence was a matter solely within the province of the jury. We do not determine the preponderance of the evidence but only its legal sufficiency. In Missouri Pacific Transp. Co. v. Sharp, 194 Ark. 405, 108 S. W. 2d 579, we said that we have long adhered to the universal application of the rule sustaining a jury verdict “where there is any substantial testimony to support it, although it may appear to the appellate court to be against the preponderance.”

Appellant’s final contention is that the court erred in refusing to admit a broken vodka bottíe into evidence. The trial court was correct. Officer Brown testified that he looked into the Miller automobile at the scene and did not see the broken bottle. He found the broken bottle in the Miller car some five hours later when he again checked it at a salvage yard to which it had been removed by other parties. Ño testimony was offered that Mr. Miller had been drinking or was intoxicated nor were there such allegations in the pleadings. The introduction of the bottle into evidence in these circumstances would have been prejudicial as being irrelevant and too remote since it was not a part of the res gestae. Christianson v. Muller, 239 P. 2d 835 (Ore. 1952).

The judgment is affirmed.


author: Carretón Harris, Chief Justice. Ed. F. McFaddin, Associate Justice

text:
    Wirges v. Arrington.
    5-3685
    396 S. W. 2d 292
    Opinion delivered December 6, 1965.

      G. Thomas Eisele, for appellant.

      Gordon & Gordon, for appellee.
   Carretón Harris, Chief Justice.

This litigation is a sequel to Wirges v. Bean, Judge, 238 Ark. 104, 378 S. W. 2d 641, decided by this court on May 11, 1964. In that case, Wirges sought a Writ of Mandamus to compel the Circuit Court to order the court reporter to transcribe proceedings occurring on March 19, 1963, when Wirges, in open court, was asked certain questions by the judge of that court, who also made certain remarks to him. Wirges contended that he had asked the reporter, Carl Lee Arrington, to furnish him with the transcript, but had been informed by the reporter that he (Arrington) would not furnish it unless and until the Circuit Court ordered him to do so. According to Wirges, Judge Bean refused, and he then sought the writ from this court. This court held that the court reporter was a necessary party to the litigation, and that Wirges’ remedy was to file a mandamus action against the court reporter. Thereafter, on September 2, 1964, appellant filed a mandamus action in the Conway County Circuit Court for the purpose of obtaining the desired transcript, and it appears that the summons was duly issued for Arrington to both the Sheriff of Conway County, and to the Sheriff of Johnson County, home of Arrington. On September 12, Arrington appeared specially, without entering his general appearance, and also filed a motion to quash service of summons. This motion was based on the contention that a summons could not be legally served on him except in Conway County. The record does not reflect any action by the court on either pleading. Thereafter, on September 23, 1964, Wirges filed a complaint, identical to the Conway County complaint, in Johnson County. The record reflects several letters from counsel for appellant to the Circuit Clerk of Conway County, to the sheriff-of Conway County, to Circuit Judge Wiley Bean, and to the sheriff of J ohnson County, inquiring if Arrington had been served with summons. These letters dated from the time of the filing of the Conway County action until January 22, 1965, at which time the Conway County Circuit Court entered the'following order:

“A petition was filed by Gene Wirges in the Circuit Court of Conway County, Arkansas, asking for a Writ of Mandamus, requiring the respondent, Carl Lee Arrington, Court Reporter within and for the 5th Judicial District of Arkansas, to furnish a purported transcript of the record in a case wherein no order nor judgment had ever been rendered. Thereafter, Case Number 2323 was filed in the Circuit Court of Johnson County, Arkansas, wherein the same parties and the same subject matter were involved. The Johnson County petition was apparently copied from the Conway County petition in that the paragraphs and verbiage are identical in both petitions.
“Service of Summons has been obtained on Mr. Arrington in the Johnson County case and a Motion by the respondent to Dismiss has been filed. Service of Summons has not been had in the Conway Circuit Court. Be that as it may, the law does not permit two suits by the same parties having the same subject matter to be maintained at the same time, and the Court finds that Case Number 5346-A, now pending in the Circuit Court of Conway County, Arkansas, should be dismissed.
“IT IS, THEREFORE, considered, ordered and adjudged by the Court that the Petition for a Writ of Mandamus, filed by Cene Wirges against Carl Lee Arrington, in Case Number 5346-A, Conway Circuit Court, should be, and the same is hereby, dismissed.”

Fi*om this order of dismissal, appellant brings this appeal.

It is contended that the court erred in dismissing the petition for a writ of mandamus upon its own intiative, and appellant is right in this contention. This is a transitory cause of action. Ark. Stat. Ann. §§ 27-1115 and 27-1119 (Repl. 1962) set forth the proper procedure to be used where actions are pending in different counties for the same cause. Section 27-115 provides that a defendant may demur to the complaint where it appears on its face, inter alia, “that there is another action pending between the same parties for the same cause; * * *” and Section 27-1119 provides:

“When any of the matters enumerated in Section 111 [§ 27-1115] do not appear upon the face of the complaint, the objection may be taken by answer. * * *”

As long ago as 1905, we passed on this question in Kastor v. Elliott, 77 Ark. 148, 91 S. W. 8. There we said:

statutes of this State provide what shall be done in such cases. They provide that when it ajjpears in the complaint that there is another action pending between the same parties for the same cause, the objection may be taken advantage of by demurrer; and if it does not appear in the complaint, it may be taken by answer, and if the objection is not taken by demurrer or answer the defendant shall be deemed to have waived the same.” -

Accordingly, the appropriate manner in which to raise this issue is for the adverse party to call it to the attention of the court by an appropriate pleading.

Actually, the court erred twice. In the first place, it had no authority, on its own initiative, to dismiss the complaint. In the next place, even if such authority existed, the wrong complaint was dismissed. The 1961 General Assembly enacted Act 32 (Ark. Stat. Ann. § 27-301 [Repl. 1962]), which reads as follows:

“A civil action is commenced by filing in the office of the clerk of the proper court a complaint and causing a summons to be issued thereon, and placed in the hands of the sheriff of the proper county or counties. If two [2] or more actions are commenced in different courts involved the same subject matter, where the venue is proper in each, then that court shall acquire jurisdiction, to the exclusion of the other, wherein a complaint was-filed and a summons issued thereon, and first placed in the hands of the sheriff of the proper county or counties, irrespective of the time of service of summons. Each clerk of court shall indorse on each complaint the exact date and time of day when the complaint was filed and a summons issued thereon and each sheriff shall indorse on each summons the exact date and time of day when the summons was placed in his hands.”

It is thus obvious that, if a summons was issued in the Conway County case and placed in the hands of the sheriff, even though it has not been served, the Conway Circuit Court is the court that has jurisdiction of this matter.

The transcript in this case is far from clear, and nothing is contained therein that definitely shows that summons was placed in the hands of the Conway County Sheriff. However, letters from counsel for appellant indicate that this was done; for instance, on November 25, 1964, a letter from counsel to the Sheriff of Conway County, states, “I am advised by Mr. Millard Richardson’s office [Circuit Clerk] that summons was placed in your hands some time ago to he served upon Mr. Carl Lee Arrington. * * *” Of course, if the clerk did not turn the summons over to the sheriff’s office, suit has not actually been commenced in that county, and appellant would he entitled to an early hearing in Johnson County on his motion (to obtain transcription of the proceedings on March 19, 1963). We proceed, in this opinion, on the assumption that the clerk did turn the summons over to the office of the Conway County Sheriff.

The record does not reflect the reason why summons has not been served on Arrington in Conway County, and it is possible that there is good and sufficient reason. However, since Arrington is the official court reporter, it seems that he would have been iu Conway County attending any court sessions held. At any rate, a motion filed on January 30, 1965, appears in the transcript, wherein the Conway Circuit Court is asked to issue its order directing the sheriff to serve summons upon the respondent in Conway County. This motion has apparently not been acted upon as yet, and, the summons having been purportedly issued nearly a year ago, appellant is certainly entitled to a prompt hearing.

The order dismissing the complaint is reversed, set aside, and held for naught, and the. Conway Circuit Court is directed to reinstate this complaint.

McFaddin, J., concurs.

Ed. F. McFaddin, Associate Justice

(concurring). I agree with the Majority that the judgment of dismissal should be reversed; but my reasons for such reversal are entirely different from those contained in the Majority Opinion; and I now give my reasons for reversal and the procedure which I think the Majority should have ordered in this case:

The transcript before us in this case shows that on September 11, 1964 Judge Wiley W. Bean (Judge of. the Conway Circuit Court) entered into an exchange agreement with Judge Paul X. Williams (Chancellor of the 14th Chancery District), which exchange agreement was filed in the records of this case on September 14, 1964, and reads as follows:

“By consent and agreement, Judge Paul X. Williams, Chancellor of the Fourteenth Chancery District, exchanges circuits with Judge Wiley W. Bean, Judge of the Fifth Judicial Circuit, for the trial and disposition of the case of Gene Wirges v. Carl Lee Arrington, pending in the Circuit Court of Conway County, Arkansas. This Exchange Agreement is to remain in full force and effect for such period as is found necessary for the trial and final disposition of the case herein designated.
‘ ‘ The Clerk of the Circuit Court is ordered and directed to enter upon the Circuit Court Records this Exchange Agreement, evidencing the exchange of circuits as herein set out.”

So far as the transcript before us shows, this exchange agreement is in full force. It is true that there appears to have been endorsed on the exchange agreement on October 14, 1964 these, words: “Cancelled October 14, 1964 Wiley W. Bean.” An exchange agreement cannot be cancelled by a unilateral action of one of the parties. Judge Bean and Judge Williams had mutually agreed to the exchange .agreement; and Judge Bean could not cancel by a unilateral action. So the exchange agreement, dated September 11, 1964 and filed September 14,1964, is valid and binding, and all further steps in this case should have been taken in the Circuit Court by Judge Paul X. Wiliams. Yet, without any further pleadings having been filed and without motion having been made or notice given or entered, and order of dismissal was made in this cause on January 22, 1965 by Judge Wiley W. Bean; and from that said order of dismissal Wirges prosecutes this appeal.

I would reverse the order of dismissal. It was not made by the Judge to whom the case had been assigned by the exchange of circuits agreement. The petition for mandamus is still pending in the Conway Circuit Court; and I feel sure that Judge Paul X. Williams, the Judge on Exchange, would (if my views were adopted) take prompt steps to see that summons be duly served on Arrington in Conway County, and that the petition for mandamus be promptly and speedily heard; and exercising our supervisory powers under Art. VII, Sec. 4 of the Constitution, I think this Court should direct that Judge Paul X. Williams, Judge on Exchange, have jurisdiction of this case until it is concluded in the Conway Circuit Court.

       The special pleading is as follows: “That * * * Carl Lee Arrington has been advised that a petition for a -Writ of Mandamus has been filed against him in the Conway County Circuit Court, Conway County, Arkansas. That he is entitled to ten (10) days notice of any hearing and no notice has been served upon him although he has been advised that the matter is to be heard on September 19, 1964. That the petitioner should be required to give him ten days notice and that the cause should be continued until such notice is given.”

       An exchange agreement was executed between Judge Wiley W. Bean, Judge of the Fifth Judicial Circuit, and Judge Paul X. Williams, Chancellor of the Fourteenth Chancery District on September 11, 1964, for the trial and disposition of the case of Wirges v. Arrington, but there is a notation on the order, “Cancelled October 14, 1964. Wiley W. Bean.”

       This complaint does not appear in the transcript, but a subsequent court order refers to it, and appellant and appellee mention it in their briefs. The Johnson County complaint is pertinent to the issue herein.

       The transcript itself does not show that service has been obtained on Arrington in Johnson County.

       Ark. Stat. Ann. § 27-602 (Repl. 1962) provides, inter alia, that an action against a public officer for an act done under color of office, or for neglect of official duty, must be brought in the county where the cause arose. However, a court reporter is not .a public officer, but only an officer of the court. See Ark. Stat. Ann. § 22-351 (Repl. 1962).

       The statutes referred to in this opinion are 6093 and 6096, Kirby’s Digest of the Statutes of Arkansas, which were the same as the present statutes, Sections 27-1115 and 27-1119.

       It is pointed out in 12 Ark. L. Rev. 178, 181 (1958) in a comment by H. Clay Robinson, that, though some jurisdictions will take judicial notice of the pendency of more than one suit on the same •subject matter, this procedure is not permissible in Arkansas. Southern Farmers Assn., Inc. v. Wyatt, 234 Ark. 649, 353 S. W. 2d 531, and cases cited therein.

       Emphasis supplied.

       For statutes on exchange of circuits and districts see Ark. Stat. Ann. § 22-340 et seq. (Repl. 1962).

       Attention is here called to Act No. 496 of 1965, which had not been enacted at the time of the matters here involved.


author: Ed. F. McFaddin, Associate Justice.

text:
    Baber v. Williams Ford Co.
    5-3691
    396 S. W. 2d 302
    Opinion delivered December 6, 1965.

      J. B. Milham, for appellant.
    No brief filed for Appellee.
   Ed. F. McFaddin, Associate Justice.

Appellee filed action against appellant to recover the deficiency claimed on a sales contract. On August 10, 1964 appellee Williams Ford Company (hereinafter called “Williams”) sold to appellant Richard Baber a 1959 model Ford automobile. The written contract recited that Baber owed a balance of $882.90, payable in instalments of $49.05 per month beginning September 12, 1964. When appellant Baber failed to make the monthly payments due, the car was repossessed and sold to a wholesale secondhand car dealer for $210.00. Then, after giving credit for unearned interest, etc., Williams filed this action against Baber for $596.12 as the deficiency on the contract.

In his answer, the defendant Baber, after making a series of defensive claims not here material, specifically pleaded that Williams had failed to give Baber proper notice of the sale of the car. Here is the specific pleading in that regard:

“That defendant had no notice of the date of the sale of said automobile or to whom sold. That plaintiff did not comply with the terms of the Uniform Commercial Code; and that the acts and procedure of the plaintiff in the transactions in the sale to defendant and in the sale of the car after taking possession and all acts were not Commercially reasonable, .

In the trial to the jury Williams testified that after selling the car to Baber, Williams transferred the note and contract to Ford Motor Credit Company; that when Baber defaulted in the monthly payments due in October and November the Ford Motor Credit Company repossessed the car and delivered it to Williams and demanded of Williams the repayment of the amount Williams had received from Ford Motor Credit Company. With the matter in that state of affairs, Williams wrote Baber a letter dated November 30, 1964, reading as follows:

“November 30, 1964
“Mr. Richard Baber 507 E. Sevier Street Benton, Arkansas
“Dear Mr. Baber:
“As you know, on August 10, 1964, you purchased from us a 1959 Ford 4-Door bearing Motor # A9CG136757, and financed the balance with Ford Motor Credit Company of Little Rock, Arkansas. On November 24, 1964, Ford Motor Credit Company repossessed this automobile due to default of the October 12th and November 12th payments in the amount of $49.05 each, and returned the automobile to us. Under the terms of the Conditional Sales Contract, Ford Motor Credit Company has requested us to pay them the net balance owed which is $796.12. Due to the foregoing, we hereby give you seven days from receipt of this letter to pay off your contract and redeem the automobile, or we will sell it at private sale. Of course, if this action is necessary and the sale price is less than what you owe Ford Motor Credit Company, we will refer the deficiency to our local attorney for collection. If you have any questions pertaining to this matter, please call or contact us.”

Mr. Williams testified that Baber did not respond in any way to the letter and that Williams had the car placed on its lot for resale. Here is the Williams’ testimony :

‘ ‘ Q. What did you do ?
“A. We cleaned the car up and put it on the lot for resale. It sat there several weeks without a legitimate buyer for it. We took it wholesale to a used car dealer here in town.
‘ ‘ Q. Who was that ?
“A. Duvall Used Cars.
‘ ‘ Q. On the Bauxite highway ?
“A. At the time, it was on Military and Alcoa Road, at the intersection.
“Q. Did you attempt to sell it to him privately?
“A. We tried to sell it to several people. He was the highest bidder.
‘ ‘ Q. What did he pay for it ?
“A. $210.
‘‘Q. Was this a wholesale transaction?
“A. Yes, and it took us a long time to get $210. . .”

The only notice that Williams ever gave Baber concerning the resale of the car is the letter of November 30,1964, as above copied. The question raised by Baber’s answer was whether this letter of November 30,1964 was “reasonable notification of the time” (after which any private sale, etc. could be made), as required by Ark. Stat. Ann. § 85-9-504 (Add. 1961), which is a part of the Uniform Commerical Code.

At the conclusion of the evidence the Court, on its own motion, directed a verdict for the plaintiff for the amount claimed; and on appeal the appellant lists five points, but the only one which gives us any concern is Point No. 2, which reads:

“The Court erred in refusing to submit issues of facts to the jury and in directing the jury to return a verdict for plaintiff.”

Under Ark. Stat. Ann. § 85-9-504 (Add. 1961), in order for the secured party (Williams, in'this case) to hold the debtor (Baber, in this case) liable for any deficiency, the second party must give the debtor “reasonable notice,” as stated in Paragraph 3 of said section. Was the letter that Williams wrote Baber on November 30, 1964 such “reasonable notice”? That is the question. Baber specifically pleaded absence of notice. In instructing a verdict for the plaintiff the Court necessarily had to hold that, as a matter of law, Williams had given Baber reasonable notice.

We think, under the situation here existing, the question of whether the letter of November 30, 1964 was reasonable notice was a question for the jury to decide. The letter of November 30th shows that Williams had not then repaid the Ford Motor Credit Company, so was not in full possession of the car with right to sell. Not until Williams reacquired the paper from Ford, would Williams have had the right to sell the car. We have no brief for the appellee in this case, and our search has disclosed only one case decided by us on this matter of reasonable notice. That is the case of Hudspeth Motors v. Wilkinson, 238 Ark. 410, 382 S. W. 2d 191. We had no hesitancy in saying that the notice in the Hudspeth case was sufficient as a matter of law; but in the case here, the letter that Williams wrote Baber on November 30, 1964 was so vastly different from the notice in the Hudspeth case as to make a question of fact for the jury on the matter of reasonable notice of the sale of the car. Therefore, for -the error of the Court in instructing a verdict for the plaintiff the judgment is reversed and the cause is remanded.

       The written contract contained the following “terms and conditions”:
      “1. Seller shall have a security interest in the property and the proceeds thereof until all amounts due and to become due hereunder are fully paid in cash ....
      “9. In the event the Buyer defaults in any payment .... Seller shall have the right at its election to declare the unpaid portion of the time balance .... immediately due and payable. Further, in such event, Seller .... may take immediate possession of the property .... In event of repossession of the property, and if Buyer has not redeemed the same in accordance with law, Seller may either sell same at public sale .... or dispose of same by private sale in such manner and upon such terms as shall appear to the Seller to be reasonable without demand for performance, with such notice to the Buyer, if any, as may be required by law . . . The proceeds of any such sale .... shall he applied to the partial .... satisfaction of the Buyer’s obligations. The deficiency, if any, shall be paid by the Buyer to the Seller forthwith, upon demand . . . .”

       Prior to the adoption of the Uniform Commercial Code the Arkansas holdings were that if the seller exercised the right to repossess the car, as by replevin, then he waived the debt and could not recover for aniy deficiency. The adoption of the Uniform Commercial Code changed these Arkansas decisions. In 16 Ark. Law Review, p. 1 et seq., there is the report of an entire seminar discussion held at the University of Arkansas on the Uniform Commercial Code; and on page 151 of that volume there is the statement by Professor Mooney: “The most significant change in the law of conditional sales contracts is the final and conclusive eradication of the doctrine of election of remedies which has dogged conditional sellers and overjoyed conditional buyers almost since the founding of the State of Arkansas.”

       The text containing the germane language reads: “Unless collateral is perishable or threatens to decline speedily in value or is of a type customarily sold on a recognized market, reasonable notification of the time and place of any public sale or reasonable notification of the time after which any private sale or other intended disposition is to be made shall be sent by the secured party to the debtor.” For a case holding that a secondhand automobile does not have a recognized market value, nor is of a type which is the subject of widely distributed standard price quotation, see Alliance Discount Corporation v. Shaw, 171 A. 2d 548.

       In studying- the present case we went back to the original transcript in the cited case; and the kind of notice that Hudspeth gave Wilkinson was entirely different from the kind of notice given in the case at bar. Here is the notice that was contained in the Hudspeth case: “NOTICE IS HEREBY GIVEN: THAT HUDSPETH MOTORS, INC. will, on October 19, 1962, sell at its place of business in Harrison, Arkansas, the 2-ton Ford Truck, Motor # F69L7U38257, which was purchased by O. N. Wilkinson under an agreement executed between said O. N. Wilkinson and Hudspeth Motors, on the 13th day of February, 1962; and that in the event the amount received for said truck is less than the amount yet owing under the aforesaid agreement, Hudspeth Motors, Inc. will file suit to recover from the said O. N. Wilkinson the deficiency.”


text:
    Chicago, Rock Island & Pacific Railroad Co. v. Davis, Adm’r.
    5-3696
    397 S. W. 2d 360
    Opinion delivered December 6, 1965.
    [Rehearing denied January 24,1966.]

      Wright, Linclsey, Jennings, Lester S Shults, -for appellant.

      Jeff Mobley and William R. Bulloch, for appellee.
   George Rose Smith, J.

On the night of November 12, 1963, Dewey Moore was killed in a grade crossing collision in the town of Belleville. Moore was survived by six adult children. This action for wrongful death was brought by the administrators of Moore’s estate against the railroad company, the locomotive engineer, D. L. Corley, and the fireman, Gr. M. Paul. The jury returned a $15,000 verdict against the corporation, but tjie verdict was in favor of the two individual defendants. Tlie trial court overruled the corporation’s motion for judgment notwithstanding the verdict and entered a judgment in conformity with the jury’s findings.

j.'. Similar inconsistent verdicts were considered in Porter-DeWitt Const. Co. v. Danley, 221 Ark. 813, 256 S. W. 2d 540 (1953), where we reviewed our earlier cases. The rule is that if the employer’s liability is attributable solely to the employee’s negligence, a verdict in favor of the employee exonerates the employer as well. But if there is independent actionable negligence on the part of the employer.then he may be held liable even though the employee is found to have been free from fault. Thus the question is whether the evidence establishes a cause of action against the railroad company without regard to any negligence of its engineer or fireman.

At the trial the plaintiffs’ proof was directed primarily to their contention that the accident was caused hy■ the train’s excessive speed or by the train crew’s failure to keep a lookout or to sound the whistle or bell, as required by law. This proof cannot support the judgment against the company, for it merely tends to indicate negligence on the part of the individual defendants. Counsel for the appellees, however, suggest three separate grounds upon which the railroad company might be held to have independent^ negligent.

First, it is argued that the crew’s failure to sound the whistle or bell may have been due to the company’s negligence in not maintaining a whistle post (a small post bearing the letter “W”) at an appropriate point on the railroad right-of-way to indicate to the train crew that the crossing signals should be given. The flaw in this contention is that there was no such issue of fact at the trial. The complaint contained several specific allegations of negligence, but the failure to maintain a whistle post was not among them. There was nothing in the pleadings to warn the railroad company that the absence of such a post would be a contested question of fact. There was no request that any such issue be submitted to the jury, although the actual allegations of negligence were explained in the court’s instructions. All that the record contains on this point is a casual statement by an expert witness, a photographer, that he did not see a whistle post either in making an aerial photograph of the grade crossing or in driving down the highway next to the tracks. This testimony may have been admissible to corroborate the plaintiffs’ proof that the statutory signals were not given, but it certainly did not create the issue of fact now being argued for the first time.

Secondly, it is contended that the company was negligent in having constructed its Belleville station so close to the crossing where Moore was killed that his view of the oncoming train was unnecessarily obstructed. Photographs in the record shoAv that HighAvay 10 and the railroad right-of-way lie parallel as they pass through the community and together provide an almost unobstructed view in both directions from the cross street on which Moore was traveling. The only obstruction is the depot, a small frame building 18 feet Avide. As Moore approached the crossing the depot Avas 87 feet doAvn the tracks to his right (the direction from Avhich the train was coming) and was set back 18 feet from the tracks. Moore had lived in Belleville for 28 years and was thoroughly familiar Avith the location of the depot, which was built some 50 years ago. The train, Avith its headlights burning, apparently struck the center of Moore’s car as he attempted to drive across the tracks.

The presence of an obstruction near a grade crossing (especially an obstruction that has existed for half a century) is not, in itself alone, a basis for a finding of negligence on the part of the railroad company. Parrish v. Atlantic Coast Line R.R., 221 N. C. 292, 20 S. E. 2d 299 (1942); Missouri K. & T. Ry. v. Perino, 118 Okla. 138, 247 P. 41, 47 A. L. R. 283 (1926). The effect of the obstruction is to impose upon both the motorist and the train creAv a duty to use care commensurate with the hazardous situation that has been created. Blashfield, Cyclopedia of Automobile Law & Practice, § 1795 (Perm. Ed., 1935).

The jury’s problem was simply that of weighing Moore’s negligence against the negligence of the train brew: This problem involved essentially a single question of fact. Neither the pleadings nor the instructions suggested that any negligence incident to the construction or maintenance of the depot might be separated from the other circumstances in the case and examined all by itself. The proximity of the depot to the grade crossing was merely an element to be considered by the jury in determining the standard of conduct applicable to the train crew and the traveling public. It could not serve as a basis for a finding of independently actionable negligence on the part of the corporate defendant. See Ben M. Hogan & Co. v. Krug, 234 Ark. 280, 351 S. W. 2d 451 (1961), for a. full discussion of a similar question.

Thirdly, the plaintiffs attempted to prove that the railroad company had failed to erect a stop sign at this crossing after having been notified that the town council had declared it to be hazardous. Ark. Stat. Ann. <§§ 75-641 and -642 (Repl. 1957). The proof, however, is manifestly deficient. The statute requires that the city council or mayor designate “by proper order or proclamation” the crossing that is deemed to be hazardous. Section 75-641. There is no proof that any action on the part of the mayor or council of Belleville was ever taken as a matter of .record. -The asserted municipal action could not be established by parol evidence. Hencke v. Standford, 66 Ark. 535, 52 S. W. 1 (1899). Moreover, the only pertinent communication that is shown to have been made to the railroad company was a letter in which the mayor requested that a stack of pulpwood be removed from the right-of-way. There is no competent evidence indicating that the location of the depot was ever made a basis for complaint by municipal action that complied with the statute.

The car in which Dewey Moore was killed was owned by his son Hershell. In the court below Hershell' recovered judgment against all three defendants for the value of the car. It is not contended that Dewey was acting as his son’s agent. Hence the judgment in favor of Hershell must be affirmed, for even though Dewey’s negligence exceeded that of the defendants it would not be imputed to Hershell as the owner and bailor of the vehicle. Mullally v. Carvill, 234 Ark. 1041, 356 S. W. 2d 238 (1962).

The judgment for the value of the car is affirmed. The judgment for wrongful death is reversed and the cause dismissed.


text:
    Hudmon v. Coonfield.
    5-3686
    396 S. W. 2d 296
    Opinion delivered December 6, 1965.

      Davis Duty, for appellant. ■

      Eugene Goffelt, for appellee.
   Paul Ward, Associate Justice.

The real Question involved on this appeal concerns the sale of certain real property under execution to satisfy a $1000 fine. The fine was assessed against Virginia Jewell Miller (called Mrs. Miller) who owned the land involved and who had refused to deliver custody of an infant to its mother, Virginia llene Hudman (called Mrs. Hudmon).

The $1000 fine was assessed against Mrs. Miller on July 6, 1964, and she sold the land to Harrison Coon-field (appellee) sometime in December 1964. On March 4, 1965 the land was sold, under execution at public auction, to Edgar Shook (one of the appellants herein).

When appellee filed suit in chancery court to quiet his title Edgar Shook was made a party defendant because he claimed title as purchaser at the execution sale just mentioned. Later the matter was transferred to the circuit court on appellee’s motion to set aside the execution sale. In answer Shook alleged “that the order of July 6, 1964 constitutes a valid subsisting judgment at law against Virginia Jewell Miller . . . .”, and that the execution sale was valid and should be sustained.

On April 2, 1965, after a hearing, the circuit court quashed the execution sale and quieted title to the land in appellee; hence this appeal.

Ark. Stat. Ann. § 29-130 (Repl. 1962) provides among other things that a judgment in either the Supreme, Chancery, or Circuit Court shall be a lien on land owned by a defendant in the county from the date of its rendition. It must be conceded therefore that, if the assessment of the fine against Mrs. Miller constituted the kind of judgment referred to in the above section, the execution sale was valid and conveyed title to appellant Shook. This is true because the assessment of the fine preceded the sale by Mrs. Miller to appellee.

It is our conclusion that the assessment of the fine in this instance constituted a judgment contemplated by the above mentioned statute, and that it was a lien on Mrs. Miller’s land. Although the question presented appears to be a novel one generally and especially to this Court, yet there is respected authority in support of our conclusion.

In 36A C. J. S. (p. 441) FINES, § 9-by Execution against property, we find this:

“As a general rule a fine may be enforced by execution against the defendant’s property.”

Following the above, the text continues:

“After a fine has been imposed by the sentence of the court, it is Regarded as in the nature of a debt of record due the state, and ordinarily it may be enforced by execution against defendant’s property both at common law and under many of the statutes.”

In the matter of Application of Fishman, 241 Pac. 2d 603, the court made this statement:

“A judgment imposing a fine, without any alternative, is equivalent to a civil money judgment, and its collection is subject to the same rules.”

It is not contended here, nor does the record show, that Mrs. Miller had any alternative to paying the fine assessed against her.

In addition to what we have already said, we think Ark. Stat. Ann. § 43-2404 (Repl. 1964) also supports the position we take in this case. In material parts this section reads:

“The clerk of the court . . . shall issue executions for all fines imposed ... in penal actions or otherwise . . . remaining unpaid ... in the same manner as executions in civil cases, and the property of the defendant may be seized and sold.....” (Emphasis added.)

It follows therefore that the judgment and decree of the trial court must be reversed and nullified, and it is so ordered.

Reversed.


author: Sam Robinson, Associate Justice. Carleton Harris, Chief Justice Paul Ward, Associate Justice,

text:
    Meeks v. State.
    5149
    396 S. W. 2d 306
    Opinion delivered December 6, 1965.

      George Howard, for appellant.

      Bruce Bennett, Attorney General, By: Farrell Faubus, Asst. Atty. General, for appellee.
   Sam Robinson, Associate Justice.

The appellant, Eugene Meeks, 19 years of age, pleaded guilty to the charge of burglary and was sentenced to six years in the penitentiary. About six weeks later he filed a motion to set aside the judgment, and that he be allowed to enter a plea of not guilty. The motion was overruled, and he has appealed to this court.

It appears that on July 29, 1964, a felony information was filed by the prosecuting attorney in the circuit court charging appellant with burglary. It further ap-pears that the burglary is alleged to have been committed on July 27; the appellant was arrested on that same day; on August 5 he pleaded guilty and was sentenced.

In his motion to set aside the judgment, appellant alleged that he is not guilty, but that he pleaded guilty because he was told by officials that it would be better for him to do so; that he would get less time than he would by standing trial. The officials deny that any such statement was made to appellant. The learned trial judge found as a fact, that in all probability appellant received a lesser sentence than he would if he had gone to trial on a plea of not guilty.

But be that as it may, we do not find any substantial distinction between this case and the case of Swagger v. State, 227 Ark. 45, 296 S. W. 204. There we said: “In most instances, since the decision in Johnson v. Zerbst, 304 U. S. 458, 82 L. Ed. 1461, 58 S. Ct. 1019, 146 A. L. R. 357, the courts have held it to be error to permit a young, inexperienced person to plead guilty to a serious charge where he has no attorney.” The point is fully developed in Swagger, and that case is controlling here.

Reversed and Remanded.

Harris, C. J. & Ward & Johnson, J. J., dissent.

Carleton Harris, Chief Justice

(dissenting). As 1 interpret the majority opinion, it holds that the fact that a defendant is a minor (less than twenty-one years of age) is sufficient in itself to require that the trial court appoint an attorney for him before any plea can be entered. I agree that, in some instances, an attorney should be appointed, but I emphatically disagree that it should be done in every instance solely because a defendant is not legally an adult.

This defendant is nineteen years of age. By statute (Ark. Stat. Ann. § 34-2001 [Repl. 1962]), any male person of the age of eighteen years, may have his disabilities (of minority) removed by court order, and he is then authorized to “transact business in general * * * with the same effect as if such act or thing were done by a person who had attained his or her majority,- * * * and every act done * * * shall have the same force and effect in law and equity as if done by a person of full age.” It is thus apparent that the law contemplates that a boy eighteen years of age is, generally speaking, mentally capable of transacting business to the same degree as an adult.

Arkansas law permits a young man eighteen years of age to enter'into a marriage contract if he has the consent of Ms parents or guardian. Ark. Stat. Ann. § 55-102 (Supp. 1965).

Arkansas law permits a person eigMeen years of age to make a will. Ark. Stat. Ann. § 60-401 (Supp. 1965).

A nineteen-year-old boy (and younger) is subject to the military draft, so apparently Congress feels that one of that age is normally sufficiently intelligent to understand military training, and to learn liow to defend himself in combat.

I could go on endlessly with this list, but the point is that if a young man is intelligent enough to do the things mentioned, he is likewise intelligent enough to know whether he wants a lawyer. Bear in mind that this is not a case wherein an indigent defendant requested a lawyer as in Gideon v. Wainwright, 372 U. S. 335, and to me, there is a vast difference in this case and Swagger v. State, 227 Ark. 45, 296 S. W. 2d 204, relied upon by the majority. In Sioagger, the defendant was not informed by the court that a lawyer would be appointed to represent him if he só desired. In the present case, it is admitted that the court did offer to appoint counsel for Meeks, and he refused the offer, but it is now asserted that appellant did not understand the value, or the significance, of counsel. However, I find nothing in the record to establish that fact. Appellant appears to possess normal intelligence. His father was present in the courtroom on the day that Meeks entered the plea of guilty, and the father had previously visited and talked with his son at the jail. In fact, it appears that the only request made at that time by the elder Meeks was that his son be committed to the State Hospital for observation — which was done.

I reiterate that there may well be instances where, under particular facts and circumstances, an attorney should be appointed for a youthful defendant before any plea is taken — but I certainly do not feel that this case comes within that category.

Summarizing:

1. Meeks had finished Junior High School, and from the record, appears to possess normal intelligence.

2. He was admittedly offered counsel before he entered his plea of guilty, but refused the offer.

3. His father was present in the courtroom at the time the plea was entered, and had previously talked with his son, but raised no objection.

Gideon v. Wainwright, supra, holds that an indigent prisoner is entitled to counsel unless he "competently and intelligently” waives same. I am of the view that appellant was capable of waiving the right to counsel, and I deeply regret that this court is holding that one fact alone is sufficient to reverse this case — that fact being that appellant was only nineteen years of age.

I respectfully dissent.

I am authorized to state that Mr. Justice Johnson joins in this dissent.

Paul Ward, Associate Justice,

(dissenting). On October 18,1965, by a Per Curiam Order, we promulgated "Criminal Procedure Rule No. 1.” In brief, this Order sets up procedure by which a person, who has been finally adjudged guilty of a crime, who is confined in the State Penitentiary, and who claims one or more of his constitutional rights have been violated, can make application for another trial. This is a new (and untried) form of procedure adopted recently by this and numerous other state courts in an effort to stem the flood of such applications resulting from recent decisions by the IT. S. Supreme Court.

The case under consideration gives us the first opportunity to interpret this rule and proscribe procedure for preliminary hearings thereunder. For example; The trial judges should know how much, if any, weight we give to their findings; To what extent, and for what purpose, may testimony be introduced to show the guilt or innocence of the applicant?

The majority have not seen fit to approach the case in the manner mentioned, but have reversed the trial court entirely upon the opinion in Swagger case decided nearly ten years ago, and which opinion was largely rested on the Zerbst case which was decided in 1938. As the record will show, I did not agree with the Swagger opinion at the time however that fact is not the sole basis of'my dissent in this case. I will attempt to show briefly that the opinions mentioned are not controlling here, and that both can be distinguished on the facts from this case.

On this appeal,.prosecuted under Criminal Procedure Rule No. 1, there are only two questions for this Court to decide: (a) Was appellant pressured by the Bradley County officials into confessing his guilt, and (b) Did appellant intelligently waive counsel?

(a) In answer to this question I wish merely to call attention to portions of the majority opinion. One, the opinion shows that appellant said he was so induced, that the officers said he ivas not, and that the trial judge believed the officers. Two, the majority make no attempt to answer the question but take the position it was immaterial to do so.

(b) Did appellant intelligently • waive counsel? Again, there are at least two reasons why (under the record before us) the answer should be in the affirmative.

One. Contrary to the position taken by the majority I contend there is a substantial distinction between this case and the case of Swagger v. State. In the Swagger case appellant’s mental condition was an issue but was not brought to the attention of the court in view of the fact he was not represented by, counsel. In the case under consideration there is no such issue to rely on for a reversal. The record shows the trial judge sent him to the State Hospital for an examination where he was found to be normal. Since the issue is appellant’s capacity to understand what he did, the above distinction is fundamental and decisive.

Two. The majority have failed to recognize ■ any difference between the mental capacity necessary to plead guilty and the mental capacity to properly defend himself on trial. In other words, appellant (if-he was innocent) might need a lawyer to defend him in court, yet might not need a lawyer to tell him whether he broke into Lowrey’s home. This line of reasoning may seem to be oversimplified, but it is fundamental, and it is exactly the line of reasoning used by the H. S. Supreme Court in the Zerbst case is so heavily relied on by the majority. Incidentally, in the Zerbst case, thé assured pleaded not guilty and stood trial without a lawyer.

When, in the judgment of our president and congress, a seventeen year old boy has enough intelligence to serve with the armed forces in foreign lands, my mind must refuse to believe that a normal nineteen year old boy (with ten years schooling) does not have enough intelligence to know when he has stolen a car, robbed a man, accosted a woman, or broken into a house.

       He must also be a resident of the county in which he files his application.

       The Circuit and Chancery Courts are empowered to enter orders removing disabilities', but it is largely within the discretion of the court as to whether particular petitions for removal of disabilities should be granted.

       If the court had not informed Meeks of his right to counsel at the time of the plea, I would also vote to reverse.

       The hospital report reflected “without psychosis.”

       For instance, a boy in his early teens; an illiterate; a defendant, not legally insane, but mentally retarded; a youngster far away from family and friends.


text:
    Wilson v. Prudential Ins. Co. of America.
    5-3687
    396 S. W. 2d 300
    Opinion delivered December 6, 1965.

      Ralph E. Wilson, for appellant.

      Marcus Evard, Swift £ Alexander, for appellee.
   Jim Johnson, Associate Justice.

This case relates to the right of possession of personal property affixed to mortgaged real estate. On July 19, 1961, Winfred C. Mullen and his wife executed a promissory note and deed of trust to appellee Prudential Insurance Company of America on a home they were purchasing in Osceola. The deed of trust was recorded July 29, 1961. Thereafter the Mullens conveyed the property to Robert A. Slentz and Edith, his wife, who assumed the note and deed of trust. The Slentzes later executed second and third deeds of trust, which are not in issue here. The Prudential deed of trust contained an habendum clause usual in FHA mortgages, as follows:

“To have and to hold the, aforedescribed land unto the party of the second part forever, together with all the improvements and appurtenances thereunto belonging, and including all heating, plumbing, and lighting-fixtures and equipment thereon or hereafter placed thereon, and said party of the first part hereby covenants with the said party of the second part, that the party of the first part will forever warrant and defend the title to the said lands against all lawful claims whatsoever.” The mortgage contained no provisions for future advances.

On June 12, 1962, Chicksaw Electric Company sold and delivered to Slentz a central heating and air conditioning system on a retain title contract. (The record does not show whether Chickasaws’s security interest attached before or after installation.) On July 19, 1962, Chickasaw filed its financing statement, perfecting its security interest.

Slentz later defaulted on the obligation to Chicksaw. Chickasaw filed a replevin action against Slentz in Mississippi Circuit Court to recover the heating and air conditioning equipment installed in the Slentz’ residence. On January 6, 1964, Chickasaw obtained a judgment for possession of the equipment or, in the alternative, for $444.80. This judgment was thereafter assigned to appellant Lillie M. Wilson.

On May 9, 1964, the Slentzes having also defaulted on the Prudential deed of trust, appellee commenced foreclosure proceedings in Mississippi Chancery Courtj Osceola District. The trial court found that the Slentz’ equity of redemption, the second and third deeds of trust, and the Chickasaw judgment and its lien on the equipment were junior to Prudential’s deed of trust, and ordered the property sold. From the decree adverse to the Chickasaw judgment, appellant has appealed.

For reversal, appellant urges that she is entitled to possession of the personal property as assignee of the circuit court judgment. Appellant argues logically that Ark. Stat. Ann. § 85-9-313 (Addendum 1961), the Uniform Commercial Code section relative to fixtures, clearly applies. This section of the Commercial Code makes marked changes in the law of fixtures and Chickasaw apparently had carefully observed the provisions of the Code in its atempt to establish its priority over Prudential. Unfortunately for appellant’s contention, however, the Prudential deed of trust was entered into and recorded prior to the effective date of the Code (i. e., midnight, December 31, 1961). By law appellant was charged with notice of its existence. Prudential’s priority under former law was saved by <§ 10-102 (6) of Act 185 of the Acts of 1961 (the Code), as follows:

“(6) Transactions validly entered into before the effective date specified in Section 10-101 of this Act, and the rights, duties and interests flowing from them, remain valid thereafter and may be terminated, completed, consummated or enforced as required or permitted by any statute or other law amended or repealed by this Act as though such repeal or amendment had not occurred.”

Appellant has not demonstrated that appellee is not entitled to priority under the law applicable to this deed of trust. The judgment of the chancellor is therefore affirmed.