text:
    Haag v. Morgan.
    5-786
    284 S. W. 2d 866
    Opinion delivered December 5, 1955.
    [Rehearing denied January 9, 1956.]

      Bon McCourtney, Claude B. Brinton and A. C. IIervey, for appellant.

      Barrett, Wheatley, Smith & Deacon, for appellee.
   Sam Robinson, Associate Justice.

This is a personal injury case growing out of an autqmobile accident. Appellants, William Haag and Ms wife Patsy, filed suit for damages due to injuries sustained by Patsy while an occupant of an automobile driven by appellee Morgan. The complaint alleges that Morgan, while intoxicated and over the protests of Patsy, was driving the car at about 75 miles per hour and failed to negotiate a curve, thereby causing the car to overturn resulting in serious injuries to Patsy. In addition to a general denial, the defendant pleaded that Patsy was a guest in the car and further that she was guilty of contributory negligence. The jury returned a verdict for the defendant.

On several occasions before the accident, Morgan and Mrs. Haag had been together on drinking parties, and the evidence justifies the conclusion that on the day in question they were again on a mutual drinking spree. They had met about 10 o ’clock in the morning in a place called the Brass Rail, and had some beer. Morgan purchased additional beer which they took with them when they went riding in Morgan’s car. Later, after drinking the beer, they stopped at a Mrs. Wright’s and got some whiskey. Then they drove np to Missouri, returned to Arkansas, and obtained more whiskey. Patsy says she did not drink from the last bottle but only pretended to do so. The accident occurred sometime during that afternoon.

The court instructed the jury with reference to the guest statute, Ark. Stats., §§ 75-913-14-15. Appellants contend that the statute has no application here in that it only applies to self-invited guests, and that Mrs. Haag did not come within that category. Appellants further contend that there was error in the giving of certain instructions and the failure to give other instructions. No general objection was made to the giving of any of the instructions.

By Instruction No. 3 the court informed the jury as to the proof required in a guest case and defined willful negligence. Appellants requested that the instruction be changed to read ‘ ‘ self-invited guests. ’ ’ However, regardless of whether Mrs. Haag was a self-invited guest or had been invited by the operator of the car, the statute applies. Roberson v. Roberson, 193 Ark. 669, 101 S. W. 2d 961. Appellants also complain of the giving of an instruction submitting the issue of a joint adventure, but there was no objection to the instruction at the trial.

Instruction No. 2 given by the court read's as follows: “In order to recover the plaintiffs must show by a preponderance of the evidence that the defendant willfully and wantonly operated the automobile at' the time of the injuries and that such willful and wanton operation on' his part was the cause of the injuries. The burden of proof is on the defendant to show by a preponderance or greater weight of the evidence that there was a joint enterprise or adventure or that Patsy Haag was guilty of contributory negligence.” Appellants objected specifically that this instruction was a comment on the evidence, but we 'do not think it is subject to that construction.

We have carefully examined all of the points mentioned by appellants on appeal and find no error. The judgment is affirmed.


source: Caselaw Access Project

author: Lee Seamster, Chief Justice. George Rose Smith, J.,

license: Public Domain

text:
    Collins v. Heitman.
    5-733
    284 S. W. 2d 628
    Opinion delivered December 12, 1955.

      Martin K. Ful'lo and William H. Bonham, for appellant.

      John L. Hughes, for appellee.
   Lee Seamster, Chief Justice.

This is an appeal by the appellant, from a decree of the Saline Chancery Court, which quieted and confirmed title to 40 acres of Saline County real property in the appellee, H. H. Heitman, and cancelled a prior deed to appellant, W. H. Collins, to the same property, as a cloud upon the appellee’s title. The property is described as follows: southeast quarter of the northwest quarter, section 13, township 1 south, range 14 west, Saline County, Arkansas.

On August 25, 1951, Mrs. Helen Thomas offered for sale at auction, certain lands owned by her, which were situated in Saline County, Arkansas. The auction sale was conducted by Ben Johnson, as auctioneer. Prior to the sale, Johnson had acquired a mortgage against the lands, taking over an indebtedness that had been negotiated by the firm of Rights ell, Collins, Barry & Company, Inc. In an effort to liquidate this indebtedness, Mrs. Thomas and Ben Johnson entered into an agreement, wherein, Johnson was to sell the Midland Farms, which was owned by Mrs. Thomas and consisting of 390 acres, at auction on terms of 50% cash and the balance due, with interest, six months thereafter. According to the terms of the contract, the proceeds of the sale were to be placed in escrow and applied to the liquidation of the indebtedness.

In an instrument dated August 24,1951, Mrs. Thomas and Ben Johnson, acting through their attorneys, entered into an escrow agreement, whereby, Collins and Company, a partnership composed of John Collins and "W. H. Collins, appellant herein, was designated as the escrow agent. For a fee of $500, the escrow agent was to handle all funds derived from the auction sale, and upon receipt of the purchase money, the escrow agent was to deliver to the purchasers of the lands, their deeds with title insured, and further, to pay Johnson any indebtedness owed by Mrs. Thomas on the mortgage. Any remaining money, after liquidation of the indebtedness, was to be delivered to Mrs. Thomas. Pursuant to this agreement, the auction sale was held on Saturday, August 25, 1951, at the Midland Farm premises.

At the start of the auction sale, the auctioneer announced the terms and conditions governing the sale; he also gave notice that deeds for successful bidders would be available at the office of Collins and Company and could be procured after 2 P.M., Monday, August 27, 1951. This announcement also provided, among other things, that the owner of Midland Farms reserved the right to reject any bid or bids, on any lot, group of lots, or the entire farm. The appellee herein, H. H. Heitman, was the successful bidder at the sale for the 40-acre tract here in litigation, having submitted the highest bid in the sum of $5,910 and having that sum accepted by the auctioneer. Appellee reduced his bid to writing and delivered his check for one-half of this amount. His check was accepted for the required deposit, and he was issued a certificate of bid, showing the balance due on the purchase price.

On the following Monday morning, August 27, 1951, a meeting was held in appellant’s office, for the purpose of taking care of certain business that arose out of the auction sale. Among those persons present were, the attorney for Mrs. Thomas, the attorney for Ben Johnson, the appellant, W. H. Collins, who was the escrow agent, and other persons connected with the auction sale. At this time, the attorney for Mrs. Thomas rejected four of the bids that were received at the auction sale. One of the four bids rejected was the appellee’s bid of $5,910, for the purchase of the 40-acre tract in question. On the same day, pursuant to the rejection of the bids, appellee was notified by phone that his bid had been rejected by Mrs. Thomas. His check in the sum of $2,955, which had been previously delivered by him as a down payment on his bid, was personally returned to him by Walter P. Watts, an official for the Ben Johnson Auction Company. The appellee accepted the return of his check and surrendered his certificate of bid, since he thought Mrs. Thomas had personally rejected his bid on the property.

Subsequently, on the same date, the appellant, W. H. Collins, submitted a bid in the sum of $6,250, for the purchase of the 40-acre tract of land in question. The attorney for Mrs. Thomas drew up an offer and acceptance; the .terms being $3,125, in cash and the balance due six months thereafter. The receipt of the earnest money was accepted by W. P. Watts, agent for Ben Johnson, and the offer was accepted in writing by the attorney for Mrs. Thomas. Mrs. Thomas was not present, nor did she have knowledge of this business transaction.

On the same afternoon, appellee met Mrs. Thomas, and while conversing about the auction sale, she informed him that she had not rejected his bid on the 40-acre tract and it was her desire that appellee have the property for the purchase price bid at the auction. On the following day, Tuesday, August 28, 1951, Mrs. Thomas tendered to appellee a written statement to this effect. Shortly thereafter, the appellee met with appellant to discuss the matter of conflicting interests to the property.

On August 31, 1951, Mrs. Thomas signed a letter ratifying and confirming her attorneys’ acts in rejecting the four bids on August 27,1951, including the appellee’s bid of $5,910, for the 40-acre tract. This letter also ratified and confirmed her attorney’s act in accepting the bid of appellant, for the 40-acre tract. On September 5, 1951, Mrs. Thomas delivered to appellant a warranty deed to the property. This deed was filed for record in Saline County at 10:20 A.M. on September 10, 1951.

On September 10, 1951, at 8:18 A.M., appellee filed suit against Mrs. Helen M. Thomas in the Saline Chancery Court, for specific performance of his alleged contract of sale of the 40-acre tract of land. Upon trial of the issues, the trial court found, in its decree dated May 12, 1952, that a valid sale had been made to appellee and ordered Mrs. Thomas to execute and deliver to appellee a deed to the 40-acre tract. Upon Mrs. Thomas’ failure to act, the court appointed a commissioner to make the conveyance. On September 26, 1952, the commissioner executed a commissioner’s deed to appellee for the 40-acre tract in question, pursuant to said decree.

On October 1, 1952, appellee filed this action in the Saline Chancery Court against appellant, to set aside appellant’s deed to the property in question, as a cloud upon his title. Appellee claimed title through his commissioner’s deed of September 26, 1952. Appellant answered and filed a counter claim against appellee, interposing the defense of innocent purchaser for value and without notice. The appellant claimed that his title to the property was superior to that of appellee. In a decree dated December 31, 1954, the chancellor held that appellee was the owner of the land by virtue of his purchase from Helen M. Thomas, at the auction sale conducted on August 25, 1951, and that appellee acquired title in fee by virtue of the commissioner’s deed dated May 12, 1952. The chancellor further found that at the time appellant acquired his warranty deed from Mrs. Thomas, on August 27,1951, he was acting in the capacity of escrow agent for the parties, and he had actual knowledge of the sale of such lands to appellee, therefore, appellant was not a bona ficle or innocent purchaser without notice, at the time he acquired the deed to the lands from Mrs. Thomas. This appeal follows.

The appellant lists three points for reversal, they are: (1) the appellee failed to prove a superior title as a matter of law; (2) the appellant was a bona fide purchaser for value; and , (3) the appellee is estopped from denying that appellant is an innocent purchaser for value.

The evidence is undisputed that appellee submitted the highest bid for the 40-acre tract and this bid was accepted by the auctioneer and appellee delivered his check for the required down payment. The appellant contends that Mrs. Thomas had an indefinite time limit in which to reject the offers. However, the printed announcement merely stated “that the owners of the property involved reserved the right to reject a bid or bids on any lot, group of lots, or the entire farm. ’ ’

Ark. Stats. (1947), § 68-1421 (2), covers sale by auction of personal property and provides as follows: “A sale by auction is complete when the auctioneer announces its completion by the fall of the hammer, or in other customary manner: Until such announcement is made, any bidder may retract his bid; and the auctioneer may withdraw the goods from sale unless the auction has been announced to be. without reserve.”

The law that governs the sale of personal property by auction also governs the sale of real estate by auction. Such terms and conditions that may affect the rights of the parties must be announced and agreed upon before the completion of the sale. Unless otherwise provided, the sellers’ right to reject any or all bids, must be exercised before the acceptance of the successful bid. The auctioneer is the agent of the seller and his act in accepting the bid is binding on the seller. The seller has no right to reject a bid after the bid has been accepted and the purchaser has delivered the required payment. The same rule applies to the purchaser, who has no right to reject the sale after he has submitted the successful bid and has delivered the required payment. In the instant ease, a contract was entered into when appellee’s bid was accepted at the auction sale, without rejection by the seller, and appellee delivered the required payment. The contract was binding at this time.

It is apparent from the record compiled in this case, that appellant and appellee trace their respective titles to Mrs. Thomas. The appellant contends that in a suit to quiet title, the plaintiff must prevail upon the strength of his record title, and, an equitable title is not sufficient against a subsequent purchaser with superior record title. In this statement of the law appellant is in error. The law governing this situation was clearly announced in Eickhoff v. Scott, 137 Ark. 170, 208 S. W. 421, where this court said: “It is true, in an adversary suit, that the plaintiff must recover on the strength of his own title and not the weakness of the defendant’s title. Knauff v. National Cooperage and Woodenware Co., 99 Ark. 137, 137 S. W. 823, and cases cited therein. This rule is applicable where the parties claim title from independent sources, and has no application in cases where the parties trace their respective titles to a common source. "Where parties trace their title to a common source, the one must prevail who has the superior equity.” Since both parties claim title through Mrs. Thomas and since appellee’s title antedates and is superior to that of appellant, it necessarily follows that appellee is entitled to have same quieted.

The appellant contends, in his second point, that he was a bona fide purchaser of the 40-acre tract, for value. We cannot agree with appellant. From the beginning he was closely identified with this auction sale. Appellant acquired his deed from Mrs. Thomas at a time when he was acting in the capacity as escrow agent for her, in the handling and conducting of the sale of the lands in question. In this capacity as such escrow agent, appellant had actual knowledge of the sale of said lands to appellee and therefore could not be considered a bona fide or innocent purchaser without notice at the time he acquired said deed from Mrs. Thomas. One who purchases real estate with the knowledge that another had a contract of purchase is not a bona fide purchaser, and if he acquired such knowledge at any time before payment of the consideration, he will not be protected as a purchaser in good faith. Valley Planing Mill Co. v. Lena Lumber Co., 168 Ark. 1133, 272 S. W. 860.

In Vol. 66, Corpus Juris, Section on Vendor and Purchaser, page 1060, we find the following: “A subsequent purchaser from a vendor with notice actual or constructive, of a prior contract of sale of the land takes the land subject to the contract whether he has a deed or not, and although he has paid a valuable consideration.”

We have often stated that an agent, regardless of how innocent his intentions may be, cannot place himself in a situation where personal interests conflict with.the duties owed his principal. In the recent case of McHaney v. McHaney, 209 Ark. 337, 190 S. W. 2d 450, 162 A. L. R. 1175, we said.: “Everyone, whether designated agent, trustee, servant, or what not, who is under contract or other legal obligation to represent or act for another in any particular business or line of business, or for any valuable purpose, must be loyal and faithful to the interest of such other in respect to such interest or purpose. He cannot lawfully serve or acquire any private interest of his own in opposition to it. T.his is a rule of common-sense and honesty, as well as law. The agent.,is not entitled-.to avail himself of any advantage that his position may give him to profit beyond the agreed compensation for Ms services. He may not speculate for Ms gain in the subject-matter of the employ-' ment. He may not use any information that he may have acquired by reason of his employment, either for the purpose of acquiring property or doing any other act which is in opposition to his principal’s interest.”

The cardinal principle of all agency is good faith. In accepting the office of depositary, appellant became the agent of both buyer and seller. This created a relation of confidence the depositary could not thereafter violate nor pervert to his own advantage or the detriment of either principal. Upon one claiming to be an innocent purchaser rests the burden of proving his good faith. Abbott v. Parker, 103 Ark. 425, 147 S. W. 70. We think the chancellor was correct in finding that appellant was not an innocent purchaser without notice, at the time he acquired a deed to the 40-acre tract from Helen M. Thomas. As escrow agent, the appellant had actual knowledge of the sale of said land to the appellee.

The appellant is in no position to plead estoppel. He was aware of the sale of the land to the appellee before he expended any money on his alleged purchase. He attempted to purchase the property from the auctioneer, at a private sale, after he had received actual knowledge that the property had been sold to the appellee. The record reveals that appellant knew that Mrs. Thomas had not rejected the appellee’s bid. In fact he knew that Mrs. Thomas had prepared a written statement, whereby, she informed appellee that she had not rejected his bid and she wanted appellee to have the property for the amount of the bid. The appellant did not expend any money for the purchase of the 40-acre tract until several days after he received notice from appellee of the latter’s claim. Appellant was escrow agent for the parties and was charged with the duty of carrying out the terms and conditions of the escrow agreement. As such escrow agent, he was not entitled to avail himself of any advantage that his position gave him to profit beyond the agreed compensation for his services. It is uniformly held that no one can be permitted to purchase an interest in property -where he has a duty to perform that is inconsistent with the character of a purchaser. Culberhouse v. Shirey, 42 Ark. 25; Rogers v. Lockett, 28 Ark. 290; Ellsworth v. Benedict, 214 Ark. 367, 216 S. W. 2d 392.

Upon trial of this cause, the appellant did not plead estoppel. The appellant has failed to bring himself within any of the exceptions to the general rule. Therefore, the appellant cannot raise the plea of estoppel for the first time, upon appeal to this court. Gerard B. Lambert Co. v. Rogers, 161 Ark. 307, 255 S. W. 1089; Reeder v. Meredith, 78 Ark. 111, 93 S. W. 558.

Finding no error in the trial court’s decree in cancelling appellant’s deed and confirming title in appellee as against appellant, the decree is affirmed.

Justice Smith dissents.

George Rose Smith, J.,

dissenting. The majority opinion seems to rest primarily upon (a) the view that Mrs. Thomas did not reserve in advance the privilege of rejecting the bids at the auction and (b) the rule that a fiduciary cannot purchase an interest in the subject matter of his trust. My reasons for disagreeing with the conclusion reached can best be stated by taking the events in chronological sequence.

The auction sale was held during the day on Saturday, August 25. Heitman testified that he heard the auctioneer announce that Mrs. Thomas had until sometime on Monday (noon or two o’clock) to reject bids. Heitman’s later conduct in surrendering his certificate of purchase and in persuading Mrs. Thomas to give him a written statement that she had not rejected his bid confirm his candid admission that he understood that the privilege of rejection had been reserved. In view of Heitman’s own testimony it is readily apparent that this is not a case in which the right of rejection was not properly reserved in advance.

On Saturday night Mrs. Thomas met with her attorney, Gerland Patten, and with her son to evaluate the results of the day’s proceedings. The-main purpose of the auction had been to save the home place if possible. The bids were more than enough to pay the mortgage; so Mrs. Thomas directed that the offer for the home place be rejected. All three persons present agree that no decision was reached with respect to any other bid and that Mrs. Thomas gave Patten unlimited authority to act in the matter as he thought best.

On Monday morning Patten decided to reject, in addition to the bid for the home place, the Heitman bid and two others. He testified that he refused the Heitman offer because he thought the property was worth moré than the amount bid. It was only after the notice of rejection had been delivered to the escrow agent that Collins inquired what Patten would take for the property. Patten asked $7,000 for the tract, and Collins countered with an offer of $6,500, of which $250 was to be paid by a reduction in the escrow agent’s fee. Patten left Collins’ office, telephoned Mrs. Thomas’ son, and discussed the new offer with him. The two decided that the offer should be accepted, and that afternoon Patten, who had long had authority to act for Mrs. Thomas, entered into a written contract of sale with Collins. During the same day Heitman was notified that his bid was rejected, and he surrendered his certificate of purchase and accepted the return of his earnest money. Heitman testified that he then thought the matter to be closed.

At that point in the course of events it seems plain to me that Collins had acquired the prior and superior equity. The Heitman bid had been rejected by Mrs. Thomas’ agent, who undoubtedly had that authority. Collins had entered into a written contract which was unquestionably binding upon him as well as upon Mrs. Thomas. That he did not make a payment until a few days later is immaterial, as the mutual promises made the contract enforcible by either party.

Doubtless Collins was motivated by self-interest in purchasing the land, but I do not see how that interest conflicted with any fiduciary duty on his part. The Heitman offer had already been rejected; there is nothing in the record to suggest that the rejection was a collusive maneuver having as its purpose a resale to Collins at a better price. When the Heitman bid was rejected in good faith the tract was withdrawn from the escrow arrangement, which had to do only with the sales at auction, and Mrs. Thomas was free to sell the land to anyone she chose. As far as I can see, Collins was equally free to purchase, since his fiduciary duty toward the bidder had been terminated by Mrs. Thomas’ attorney. We have indicated that the prick of conscience that would be felt by a punctiliously honarable man warns a fiduciary that he is violating the high standard of conduct required of trustees. Johnson v. Lion Oil Co., 216 Ark. 736, 227 S. W. 2d 162. It does not seem to me that even the most scrupulous person would have hesitated to act as Collins did in this case.

If I am correct at this point the later events are immaterial. Mrs. Thomas’ written statement that she had not rejected Heitman’s bid was contrary to the facts as. the law must view them, for she had rejected the bid through her agent and had even agreed to sell the land to another. It may well be that her statement to Heitman gave him a cause of action against her, but it cannot be said that his rights relate back to the day of the auction,. His rights as a bidder were completely extinguished when he acquiesced in the rejection of his offer. Those rights cannot be revived through the doctrine of relation back to the detriment of an innocent purchaser whose interest arose in the meantime.


author: J. Seaborn Holt, Associate Justice.

text:
    Martin v. Martin.
    5-772
    284 S. W. 2d 647
    Opinion delivered December 12, 1955.

      Sigun Rasmussen, for appellant.

      Fiets £ McAdams, for appellee.
   J. Seaborn Holt, Associate Justice.

Appellant and appellee were married August 23, 1951. A child, Sharon Lee Martin, was born to them July 22,1952. Mrs. Martin was about 14 years younger than her husband. The parties separated December 2,1951, and on December 7,1951, appellee sned his wife for divorce alleging indignities and abuse, and later, by amendment, alleged three years separation without cohabitation. January 11, 1952, Mrs. Martin asked for temporary alimony, suit money and attorneys’ fees. On motion, January 19, 1952, Mode Gregory, who had on December 14,1951, been duly appointed guardian of appellee’s person and estate, was substituted for appellee (an incompetent), and on a hearing the same day the guardian was ordered to pay into court $200 per month alimony pendente lite. November 28, 1952, Harry R. Martin, by order of the Probate Court, was declared competent. September 17, 1952, Mrs. Martin filed answer and cross-complaint denying all allegations, except their marriage, and prayed for a divorce alleging indignities, and desertion for more than a year without cause, for custody of the little girl, and allowance for her support, for alimony and a property settlement. February 8, 1954, judgment was entered against Harry R. Martin, appellee, for $2,800 for alleged arrearages in alimony pendente lite. October 14, 1954, appellee, Harry R. Martin, filed motion to. set aside this judgment of February 8, 1954, for $2,800 and on the same day the trial court granted this motion and set the judgment aside. On March 14, 1955, a decree was entered granting Harry R. Martin a divorce on the grounds of three years separation without cohabitation, and holding that Mrs. Martin was not entitled to a divorce on the grounds of indignities or desertion and was not entitled to alimony or property settlement, but gave her the care and custody of the child with the right to appellee of visitation, and allowed $100 per month to appellant for its support. This appeal followed..

For reversal appellant first argues that the court erred in refusing her a divorce on the grounds of indignities and also on the ground of desertion. We do not agree to either contention. The trial court found, on conflicting evidence, that both parties were equally in fault; that they lived together in an illicit relationship prior to their marriage; that each was guilty, in effect,of indecent and reprehensible conduct, and that neither was entitled to divorce on the grounds of indignities. Section 34-1209, Ark. Stats., 1947; Cate v. Cate, 53 Ark. 484, 14. S. W. 675. The court also denied Mrs. Martin a. divorce on the grounds of desertion for the reason that; the evidence showed that the separation alleged was by mutual consent of the parties. “When a wife separates from her husband, and lives apart from him with his consent, this is not a wilful desertion within the meaning of the statute, nor is it necessary that such consent be expressly given. It may be implied from the words or acts of the husband which show that he consented to the separation,” Reed v. Reed, 62 Ark. 611, 37 S. W. 230.

We do not attempt to detail and analyze the testimony on these issues, to do so would serve no useful purpose. It suffices to say that we have carefully considered it all and have concluded that the findings of the Chancellor were not against the preponderance thereof.

Next it is contended that the court erred in denying alimony to Mrs. Martin, and also in denying her claim for a property settlement. The Seventh Sub-division of § 34-1202, Ark. Stats., 1947, provides: “Where either husband or wife have lived separate and apart from the other for three [3] consecutive years, without cohabitation, the court shall grant an absolute decree of divorce at the suit of either party, whether such separation was the voluntary act or by the mutual consent of the parties, and the question of who is the injured party shall be considered only in the settlement of the property rights of the parties and the question of alimony.” So that the trial court in determining whether the wife is entitled to alimony or a property settlement, may take into consideration the question of which spouse is the injured party or at fault. Jones v. Jones, 199 Ark. 1000, 137 S. W. 2d 238. Here the Chancellor found that the fault as between the parties appeared to be equal, that the fault of Mrs. Martin was at least equal to that of her husband, and in the exercise of the discretion accorded him, denied, as indicated, both alimony and a property settlement to Mrs. Martin. The trial court found, “At least she is as much at fault as is the plaintiff and from all the facts and circumstances, the court finds that she is not entitled to alimony or to a division of the husband’s property.” We cannot say that the preponderance of the testimony fails to support the findings of the chancellor' on these issues. It further appears that the day before appellant’s appeal was lodged in this court she married Gustave Nichols, Jr., in Las Yegas, Nevada, and that she thereafter, with her little girl, has resided in that city. On trial ele novo here, we hold that in the circumstances, by this remarriage, she has forfeited and precluded her right to claim alimony. In Erwin v. Erwin, 179 Ark. 192, 14 S. W. 2d 1100, in a case in which alimony had been granted prior to a remarriage, we held that, “A divorced wife’s remarriage entitled the husband to apply for relief from further payment of alimony except where the allowance of alimony ivas in gross, or in lieu of, or as a substitute for, all of the wife’s property rights.” As indicated, we find no error in the court’s denial of alimony and a property settlement in the circumstances here.

Appellant next contends that an allowance of $100 per month for the support of the child was insufficient. This was also a matter Avithin the sound discretion of the trial court. In fixing the amount it was the court’s duty to take into account the father’s ability to pay and their station in life. On the evidence presented aa^c are unable to say that this allowance for the support of the child, now less than 4 years of age, is inadequate at the present time. On this issue the Chancellor found, “No conduct upon the part of the defendant, however, could free the plaintiff of his obligation to support the child and he has sufficient means to provide for the child. Having denied the defendant alimony, however, it would be improper to award such an amount to her as support for the child that would indirectly amount to awarding alimony to her. The child is uoav but little over two and a half years of age and appears to be healthy in every respect. It is quite probable that the immediate needs of the child will increase as it grows older but that should not be taken into consideration at the present time as the court always retains jurisdiction to make proper orders concerning the support of the child.”

Finally, appellant contends that, “The order of February 8, 1954, awarding judgment to the appellant, Jacqueline Bolgard Martin, in the sum of $2,800.00 for unpaid support awarded in the order of January 19,1952, should not have been set aside by the trial court on October 14, 1954.” Appellant is correct in this contention. "We hold that, in the circumstances here, it makes no difference whether this $2,800 judgment was against appellee, personally, or his guardian. The preponderance of the evidence does not show that this judgment was ever paid. It appears that on February 8,1954, judgment was rendered in favor of Mrs. Martin against her husband, Harry R. Martin, for $2,800 for arrearages and alimony pendente lite. Thereafter, on October 14, 1954, the trial court granted a motion by appellee to set aside this order of February 8, 1954, which gave judgment to Mrs. Martin for $2,800. We hold that the trial court was without power to set this judgment aside after term time. Section 22-406, Ark. Stats., 1947 — Supplement, provides: "Poinsett County, 12th circuit. Terms, 1st Monday in May, August and December and 2 Monday in March.” This judgment had become final. Obviously the March term had expired and the regular May and August terms had intervened before the above order, of October 14, 1954, was made and could be set aside or vacated after the expiration of the term only on one or more of the grounds set out in § 29-506, Ark. Stats., 1947. It appears that no effect was made to proceed under this section. We, therefore, reverse that part of the decree denying appellant $2,800, the amount of the judgment in her favor of February 8, 1954; in all other respects the decree is affirmed. Costs in both courts to be paid by appellee and an additional attorney’s fee of $500 is allowed here for Mrs. Martin’s attorney, to be paid by appellee, Harry R. Martin.


author: Ed. F. McFaddin, Associate Justice.

text:
    Frank Lyon Company v. Oates.
    5-803
    284 S. W. 2d 637
    Opinion delivered December 12, 1955.

      Goodwin & Riff el, for appellant.

      Wright, Harrison, Lindsey & Upton, for appellee.
   Ed. F. McFaddin, Associate Justice.

This is a Workmen’s Compensation claim by appellee, a traveling salesman; and is resisted by appellant (employer) on the contention that the appellee’s injuries did not arise “out of and in the course of the employment.” The Workmen’s Compensation Commission made an award in favor of the claimant; the Circuit Court affirmed; and the employer has brought'this appeal.

Mr. Oates was employed by Frank Lyon Company as a traveling salesman. His territory consisted of ten counties in Western Arkansas and three adjacent counties in Oklahoma. The eastern boundary of Mr. Oates territory was a north and south line about forty miles west of the Town of Perry and approximately ninety miles west of Little Rock. Mr. Oates worked on a commission basis, furnishing his own car and paying his own expenses. Mr. Oates, a single man, resided with his parents in the Town of Perry, which is not in his territory. He would leave Perry Monday morning, drive westerly to his territory, work in the territory until Friday evening, and then return to Perry for Friday night. On Saturday morning he was required to go to Little Rock to attend a sales meeting at 9:00 o’clock at the Frank Lyon Company. That meeting closed at noon or thereafter ; and then Mr. Oates was free to return to Perry for Sunday and he ready to resume working in his territory Monday. The fact that Mr. Oates stayed with his parents in Perry and returned there after each Saturday sales meeting was known to the Frank Lyon Company.

The injuries which Mr. Oates received, as herein involved, occurred on Saturday afternoon when his car went out of control as he was returning to Perry after having attended a sales meeting. The sole question is whether the injuries were received “out of and in the course of the employment. ” It is conceded by appellant that Mr. Oates, after attending to some personal matters in Little Rock, was on the direct road returning from Little Rock to Perry at the time of the mishap; but appellant insists that Mr. Oates’ presence at the sales meeting was required the same as was the attendance of the three other salesmen, who were residents of Little Rock; and that under the “going and coming rule” the employee is not covered by the Workmen’s Compensation Law for injuries occurring en route to the place of business. In addition to the cases from our own State— hereinafter to be mentioned — appellant cites such cases as Postal Telegraph Cable Co. v. Industrial Accident Comm., 1 Cal. 2d 730, 37 Pac. 2d 441, 96 A. L. R. 460; Covey-Ballard Motor Co. v. Industrial Comm., 64 Utah 1, 227 Pac. 1028; Lunde v. Congoleum-Nairn Co., 211 Minn. 487, 1 N. W. 2d 606; and Dooley v. Smith Trans. Co., 26 N. J. Misc. 129, 57 Atl. 2d 554.

For an injury to an employee to be compensable under the Arkansas Workmen’s Compensation Law the injury must, among other essentials, arise “out of and in the course of the employment”; and as regards most workers, injuries sustained in going to or returning from work are held to be non-compensable. Such injuries are ruled out of compensability because of tbe “going and coming rule.” In 58 Am. Jur. 723 this rule is stated:

‘ ‘ The hazards encountered by employees while going to or returning from their regular place of work, before reaching or after leaving the employer’s premises, are not ordinarily incident to the employment, and for this reason injuries resulting from such hazards are in most instances held not to be compensable as arising out of and in the course of the employment. This general rule is subject, however, in most jurisdictions, to certain well recognized exceptions which depend upon the nature, circumstances, and conditions of the particular employment, and the cause of the injury.”

There are many, many well recognized exceptions to the “going and coming rule”; and employees coming within such exceptions are held to have received their injuries arising “out of and in the course of the employment. ’ ’ "We list only a few such exceptions:

(a) Where the employer furnishes a method of transportation. See Hunter v. Summerville, 205 Ark. 463, 169 S. W. 2d 579; and Tinsman Mfg. Co. v. Sparks, 211 Ark. 554, 201 S. W. 2d 573.

(b) When the employee is injured while in close proximity to the place of business. See Bales v. Service Club, 208 Ark. 692, 187 S. W. 2d 321.

(c) When the employee has a duty to perform for the employer while en route home.

(d) Another exception to the “going and coming rule,” and involved in the present case, is the so-called “traveling salesman rule.”

In 58 Am. Jur. 730, in discussing the compensability of injuries to employees, the performance of whose duties necessitates their traveling from place to place away from the premises of the employer, the text states:

‘ ‘ The course of the employment of a traveling salesman, for the purposes of workmen’s compensation, covers both the time and place of the traveling as well as of the selling of goods.”

And under the traveling salesman exception employees have received compensation in a vast variety of situations. In 71 C. J. 704 to 706 the holdings are summarized in this language :

“Outside workers, traveling salesmen or solicitors. Where the nature of an employee’s work is such that it is actually, usually, or customarily performed while the employee is off the premises of the employer, harm which befalls such employee while he is engaged in his work away from the premises of the employer may be compensable as arising out of and in the course of the employment. . . . Harm sustained by a traveling representative of his employer may be compensable notwithstanding such harm is sustained while the employee is away from the premises of the employer. ’ ’

Professor Larson, in his treatise on “Workmen’s Compensation Law,” says in Yol. 1, § 16.00:

“The most obvious application (exception to the ‘going and coming rule’) is, of course, to the traveling salesman. It is well established that his travels are within the course of his employment from the time he leaves home on a business trip until he returns, for the self-evident reason that the traveling itself is a large part of the job. . . .”

Schneider, in his text on “Workmen’s Compensation,” Permanent Ed., Vol. 7, § 1665, summarized the holdings allowing traveling salesmen to recover in this language:

“Where the trip or attendance is one which the employer ordered or directed, or is for the sole benefit of the employer, or is to the mutual advantage of both the employer and his employee, compensation may be recovered.”

There are numerous cases involving factual situations somewhat similar or analogous to the case at bar, and in which the employee was allowed compensation. For some such, see Teshnor v. F. E. Compton & Co., 263 N. Y. App. Div. 263, 32 N. Y. S. 2d 266; State ex rel. McCarthy v. Dist. Court, 141 Minn. 61, 169 N. W. 274; Harby v. Marwell Bros., Inc., 203 App. Div. 525, 196 N. Y. S. 729; Solar-Sturges Mfg. Co. v. Industrial Comm., 315 Ill. 352, 146 N. E. 572; Spradling v. International Shoe Co. (Mo.), 270 S. W. 2d 28; Newman v. Rice Stix, 335 Mo. 572, 73 S. W. 2d 264, 94 A. L. R. 751; Green v. Heard Motor Co., 224 La. 1078, 71 So. 2d 849; Townsend v. General Aniline & Film Corp., 284 N. Y. App. Div. 919, 134 N. Y. S. 2d 415. Whittemore Bros. Corp. v. De Grandpre, 202 Miss. 190, 30 So. 2d 896, is an interesting case: there the Mississippi Court applied the Massachusetts Workmen’s Compensation Law to a claim of a traveling man en route from his Arkansas territory to his headquarters in Vicksburg, Mississippi; and allowed a recovery. Other cases are collected in West’s Decennial Digest System, “Workmen’s Compensation,” § 715. See Annotations in 20 A. L. R. 325; 29 A. L. R. 123; 36 A. L. R. 474; 49 A. L. R. 454; 63 A. L. R. 469; and 100 A. L. R. 1060.

Appellant insists that the case at bar is ruled by our holding in Fox Bros. v. Ryland, 206 Ark. 680, 177 S. W. 2d 44, wherein we denied compensation to Ryland for injuries he received on the sidewalk en route to the hotel where he was going to “kill a little time.” The Ryland case was on the borderline, and its holding must be confined to the particular facts; but, even so, there is a big distinction between the Ryland case and the one at bar. Byland was a salesman in Pine Bluff with limited territory. He left the company office and started on a personal journey to the hotel, which was a deviation from his direct route; and it was while he was on such deviation that he received his injuries. That the opinion was bottomed on the idea of deviation is shown by the following language:

“. . . a majority of the Court are of the opinion that there was no evidence in this case to the effect that the trip to the hotel constituted any part of his duties, and that the fact that he was willing to make a sale, in the event he had met a customer while on the trip, is not sufficient to establish that his intended visit to the hotel was to be made in the course of his employment.”

In the case at bar Mr. Oates was regularly required by the Frank Lyon Company to go to Little Bock for a sales meeting each Saturday morning. That trip was certainly a part of his duties. It was while he was returning from Little Bock to his assigned territory, and on no deviation whatsoever, that he received his injuries. It is true that he was en route from Little Bock to Perry; but Perry is on the direct route from Little Bock to Mr. Oates territory.

We therefore hold that the Commission correctly allowed a recovery in this case.

Affirmed.

       The quoted language is found in the definition of “Injuries,” § 81-1302 (b) Ark. Stats.

       For some Arkansas cases involving application of the “going and coming rule,” see O’Mearn v. Beasley, 215 Ark. 665, 221 S. W. 2d 882; Stroud v. Gurdon Lbr. Co., 206 Ark. 490, 177 S. W. 2d 181; Cerrato v. McGeorge, 206 Ark. 1045, 178 S. W. 2d 247; Penny v. Hudson, 218 Ark. 594, 237 S. W. 2d 893; and Thornton v. Texarkana, 219 Ark. 650, 243 S. W. 2d 940.

       Some of these are stated in 58 Am. Jur. 731 in the following language: “In the application of the foregoing general principles in particular instances or classes of situations, such as injuries while at hotels or other lodging or eating places, while traveling on boats or trains, while boarding or alighting from streetcars, while flying,_ while traveling in taxicabs, automobiles, or hired vehicles, while waiting or resting, while going toward a station, hotel, conveyance, or home, while going home for the week end, while going toward the employer’s place of business, while proceeding toward the employee’s working territory or area of service, while performing work, or while engaged in social or recreational activities, . . .” We quote the foregoing_ language as illustrative only, and without binding effect should similar situations arise in our jurisdiction.

         In our later case of Cagle v. Gladden-Driggers Co., 222 Ark. 517, 261 S. W. 2d 536, we affirmed the Commission which refused compensation benefits to a salesman who was injured while on a private mission.


author: Minor W. Millwee, Associate Justice.

text:
    Smith v. F & C Engineering Co.
    5-795
    285 S. W. 2d 100
    Opinion delivered December 12, 1955.
    [Rehearing denied January 16, 1956.]

      Tom Gentry and John K. Shamburger, for appellant.

      Mehaffy, Smith & Williams, for appellee.
   Minor W. Millwee, Associate Justice.

This appeal is from a decree making permanent a temporary injunction against picketing, the making of threats and the commission of acts of intimidation and violence in connection with a labor dispute.

Appellee, F & C Engineering Co., hereinafter called ‘ ‘ plaintiff, ’ ’ was one of approximately twenty-five prime contractors engaged in construction of the Little Rock Air Force Base, near Jacksonville, Arkansas, by the U. S. Army Engineers in the early part of 1955. Appellants, hereinafter called “defendants,” include J. "W. Smith, Assistant Business Agent of International Union of Operating Engineers, Local 382, and certain employees of plaintiff who were sued individually and as representatives of said union. Some of the defendants were members of the union and some were not.

As an officer of Local 382, defendant, J. W. Smith, sought to negotiate with plaintiff relative to overtime pay to its employees for hours worked in excess of 40 hours per week and for certain union recognition in the organization and hiring of operating engineers under plaintiff’s two contracts with the Army Engineers. Plaintiff paid its employees overtime for hours in excess of eight per day, but it was one of very few contractors on the project who refused to pay overtime for hours in excess of 40 hours per week. As a result of plaintiff’s refusal to deal with the union in these matters, Smith and other union representatives established a picket line at plaintiff’s batch plant which is located just outside the air base proper on March 3, 1955. This plant is the storage and dispensing area for all concrete materials used by plaintiff, and about 135 men were normally employed there.

On March 7, 1955, plaintiff filed the instant suit for injunction. Based upon testimony then presented, the Chancellor issued a temporary order restraining defendants, their agents, employees and members from picketing plaintiff and its places of business and from threatening or committing acts of intimidation or violence against plaintiff’s business, property, agents, employees and persons seeking to do business with plaintiff. After a full hearing on April 1, 1955, the case was taken under advisement and on April 22, 1955, a decree was entered making the temporary injunction permanent. Defendants’ subsequent motion to modify the decree was overruled on April 27, 1955.

As a basis for the decree, the Chancellor also filed an exhaustive and well considered opinion in which he made findings of fact as follows:

“1. On Thursday morning, March 3, 1955, a picket line was established at the site of a batch plant operated by the plaintiff located a short distance outside of the Little Rock Air Force Base limits, and the picket line was maintained from that time until after the issuance of the Court’s temporary restraining order on Monday, March 7, 1955. The entrance and exit roads to and from the batch plant are narrow, unpaved roads, and although only four men were actually engaged in the carrying of picket signs, the total number of men in the immediate locality varied from twelve or fifteen to fifty or sixty. The signs contained language to the effect that the plaintiff was unfair to and destroying certain working standards of the Operating Engineers’ Union. In addition to the men, there were a great number of cars parked up and down the road running by the batch plant. The large number of men was in no wise necessary to disseminate information or inform the public of the nature of the dispute, and the presence thereof served only to add emphasis to the threats and other acts which will be hereinafter set forth and the presence of these men undoubtedly had an adverse influence upon the employees who continued to work. On one occasion one of the roads was blocked by a pickup truck. Mr. Ray Spillers, superintendent of the plaintiff, requested of the men present at the picket line that the owner of the truck move it since it was blocking the road. Mr. Spillers was informed by one of the men in a belligerent manner that the truck would not be moved and that if Mr. Spillers didn’t like it he could get out of his vehicle. Mr. Spillers left to avoid an incident and the truck was thereafter moved. This incident occurred on Friday morning, March 4, 1955. In this regard, Mr. Spillers gave instructions to all of the employees of the plaintiff to avoid any kind of an incident with the strikers and men on the picket line.

“2. On Thursday, March 3, 1955, Brady Lawhorn was stopped on one of the batch plant roads by the defendant, Wayne Sowell, and informed in a belligerent manner and with the use of curse words that Lawhorn had better not cross the picket line the following morning or he (Lawhorn) would be whipped. During the remainder of the time that the picket line was maintained, Mr. Lawhorn walked a considerable distance out of his way in order to avoid crossing the picket line, and according to his testimony in order to avoid the likelihood of being whipped. Sowell admitted that he did stop Lawhorn, but that the controversy was over a lunch which Sowell alleges that Lawhorn had taken sometime previously and had not paid for. The Court is not impressed with this explanation, which was emphatically denied by Lawhorn, in view of the fact that Lawhorn was stopped at the picket line and, the Court believes, was threatened. This conclusion is reached by the Court in view of the other incidents that occurred and this appears to have been but one of several acts in the defendants’ course of conduct to achieve their objectives by intimidation and coercion.

“3. On Thursday, March 3, 1955, L. C. Rackley, at that time a crane operator for the plaintiff, was accompanied through the picket line by Warren Dixon, truck foreman for the plaintiff, and other men, and they were cursed as the vehicle moved into the batch plant site. The evidence is clear that Rackley had been frightened prior to that time and quit immediately after this occurrence. A former employee of the plaintiff, Otis Nicholas, testified for the defendants that he accompanied Rackley and Dixon and that he heard no statements made. Nicholas was subsequently discharged by the plaintiff, and although he did not take sides with the defendants until after his discharge he did appear in court to testify on their behalf. There is no dispute in the evidence that something frightened Rackley and that he quit after this incident, and the Court is convinced that Rackley left the employ of the plaintiff because he feared for his own safety.

“4. On Friday afternoon, March 4, 1955, the defendant, W. E. Clements, and another man told plaintiff’s employees, Oliver Beck and A. M. Foster, that somebody was going to get ‘ their head skint. ’

“5. On Friday night, March 4, 1955, Frank Rogers, General Foreman of the plaintiff, was attacked without notice or provocation in Rixie’s Cafe located on the highway near Jacksonville, and a blackjack was used in this attack. The persons making the attack were identified by nicknames only, one called ‘Talley’ and one called ‘Alabam.’ ‘Alabam’ was positively identified as a joint machine operator working for Tecon Corporation on the Little Rock Air Force Base and the proof shows that Tecon was working under a contract with the defendant Union and was running a union shop. There was no provocation on the part of Rogers or any other employee of the plaintiff in connection with this attack and the evidence disclosed no reasons for the attack other than those connected with the dispute involved herein. On the next day, Saturday, March 5, 1955, the defendant Clements and another person talked to plaintiff’s employee, Henry Garrett, and other employees, urging them to join those picketing the plaintiff, and during the conversation pointed out in substance to the plaintiff’s employees that they (the employees) ‘had seen what happened to Frank Rogers the night before. ’ In view of the previous threat that someone was going to get his ‘head skint’; the absence of anything to indicate a reason for anyone other than the defendants or those working on behalf of the objectives of the defendants having responsibility for the beating; the administering of the beating by a Tecon employee performing an operating engineer’s job for Tecon, which was running a union shop and which had a contract with the defendant union; the fact that the defendant, J. W. Smith, was in the cafe a very few minutes after the beating; and the fact that the following day the defendant Clements, admittedly a union member, pointed out to other employees of the plaintiff that they had seen what happened to Frank Eogers the night before, the Court can draw but one inference: Person or persons administering the beating were seeking to accomplish the objectives of the Union by acts of the same unlawful and coercive nature engaged in by other defendants, and, for purposes of responsibility, the defendants are chargeable with these acts. Clearly the same unlawful purpose was pursued and the connection is obvious. The concert of action cannot possibly be explained by sheer coincidence and the inference of a conspiracy must be and is drawn by the Court. In addition, after the beating of Frank Eogers, the plaintiff’s employees found a pickup truck belonging to the plaintiff which had been driven by Eogers to the Cafe had been tampered with and damaged so that it had to be hauled away and repaired before it could be placed in operation.

“6. The evidence reflects a series of contacts with employees made by Union men which might be explainable from the standpoint of persuasion if considered as isolated incidents, but when considered in the light of the other acts of intimidation and violence are explainable only as a deliberate course of intimidation. On Friday, March 4, 1955, plaintiff’s employees, Norman Lewis and Henry Garrett, were stopped by the defendant, W. E. Clements, and another person in a belligerent manner and Garrett and Lewis left in order to avoid an incident. Defendant Clements with another person came by the home of Henry Garrett looking for the latter and the defendant, M. L. Patterson, came to the home of employee, E. E. Shaver. On Thursday night, March 3,1955, employee, W. H. Alexander, was followed from the batch plant by the defendant, J. W. Smith, both in automobiles, to the North Little Eock Police Station, at which time Alexander stopped and obtained a police escort to his home. The defendant Smith testified that he simply wanted to talk to Alexander, but admitted that he followed him, and the intimidating effect of Smith’s action was the same regardless of the explanation offered. On Saturday, March 5, 1955, one of the men present at the site of the picketing attempted to stop W. H. Alexander as the latter was driving into the batch plant, and when Alexander did not stop this man hit the automobile with a rock, the approximate size of a man’s fist.

44 On one occasion certain employees were stopped by the defendant, Bull, and other persons, and the person who stopped the vehicle was waving a club at the time and had been drinking. During the conversation the men in the car were advised that R. E. Shaver was the man that they wanted to get and Mr. Shaver testified that he had been materially assisting the plaintiff in obtaining replacements.

4 4 7. The plaintiff was plagued with numerous flats on its batch trucks during the period involved and the evidence reflected that this had not been the situation prior to this time nor has it been the situation since. The plaintiff was forced to police the batch plant entrance and exit roads each morning and pick up nails, and a comparison between the numerous nails found on the entrance and exit roads to the batch plant and those in the tires causing the flats revealed that they were identical. The defendants denied that they had placed any nails in the road. The Business Agent for the Laborers ’ Union, who maintained a picket for some two days after Monday, March 7, 1955, testified that his Union did not place any nails in the road and that if they were placed there it was done by someone else. The facts are clear that the flats did occur and since the nails found in the tires and those on the roads were identical, the only inference that the Court can draw is that they were placed there by the only persons having a reason to place them there, the defendants.

4 4 8. On one occasion a paving machine was found drained of oil and water and otherwise damaged and would have been substantially damaged had it been placed in operation.

“The defendants had several witnesses who gave negative testimony as to acts of violence and intimidation, several of whom were law enforcement officers. The officers testified that they were there pursuant to a request made and the Court recognizes that it would be contrary to human nature for the defendants to participate in any of the acts disclosed by the evidence while the officers were present. ’ ’

In questioning the validity of the injunction, defendants argue that the Chancellor erred in permitting plaintiff’s general superintendent and others to testify regarding numerous flat tires and the finding of several pounds of roofing nails scattered on the batch plant road and in permitting the pleadings to be amended to conform to such proof. Plaintiff had alleged there were “numerous instances of rock throwing and damage to plaintiff’s property,” which would be placed in evidence, but there was no specific allegation in reference to tire damage. Although defendants objected to the court’s action in permitting the pleadings to be amended to conform to the proof on this issue, there was no plea of surprise nor request for a continuance. The amendment did not involve a new cause of action and defendants introduced testimony to rebut that offered by plaintiff on the issue. In similar circumstances, we have repeatedly held that it is within the discretion of the trial court to permit the pleadings to be amended to conform to the proof. Duff v. Ayers, 156 Ark. 17, 246 S. W. 508; Mo. Pac. Transportation Co. v. Williams, 194 Ark. 852, 109 S. W. 2d 924. There was no abuse of such discretion here.

Defendants also contend the court erred in allowing plaintiff’s superintendent to give certain testimony in violation of the hearsay rule. Defendants’ abstract of the record shows that the Chancellor sustained objections to most of the testimony now challenged. When asked whether he had difficulty retaining men on the job, the superintendent answered in the affirmative and stated that he had numerous calls at home at nights because men were afraid to come back on the job. The witness was neither asked nor did he attempt to state what any individual told him. We think the trial court correctly held the testimony admissible to show the effect of the threats and other acts of intimidation proved. One of the well recognized exceptions to the hearsay rule is that relative to the admission of statements or declarations showing a presently existing state of mind, feeling or attitude such as fear or ill will in the declarant. McCormick on Evidence, § 268; Wigmore on Evidence (3rd ed.), § 1730. A pertinent and relevant issue here was whether the conduct, threats and acts of the defendants were actually intimidating, and we find no prejudicial error in the court’s action in admitting this evidence. We have examined other objections made by defendants to the court’s rulings on the admission of certain testimony and find them to be without merit. Even if error was committed in the admission of the evidence objected to by defendants, we are still of the opinion that a preponderance of the testimony supports the findings of the Chancellor on'this trial de novo. Turner v. Smith, 217 Ark. 441, 231 S. W. 2d 110.

The principal contention for reversal is that the evidence here reveals a state of facts involving incidents so isolated, disconnected and disassociated as not to warrant the issuance of a permanent injunction. Pursuant to this contention, defendants make objections to certain of the trial court’s findings of fact which have already been set out. Typical of these is the assertion that the court found that the pick-up truck blocked one of the roads to the batch plant in Finding No. 1 when, in fact, the truck only “partially” blocked said road. Other objections involve primarily the action of the court in accepting as credible the testimony of plaintiff’s witnesses on certain issues when such evidence was to some extent contradicted by witnesses for the defendants. It would unduly prolong this opinion to set out these various conflicts in the evidence. It is sufficient to say that the Chancellor was in a more favorable position than this court to judge credibility, and after careful consideration of all the evidence we think a clear preponderance thereof supports the court’s findings of fact.

It is. well settled by the decisions of the U. S. Supreme Court and our own cases that peaceful picketing is allowed under the constitutional guaranty of freedom of speech in order that a union may acquaint the public with the fact and nature of a labor dispute and solicit public support in any lawful manner to prevail in the controversy. Thornhill v. Alabama, 310 U. S. 88, 60 S. Ct. 736, 84 L. Ed. 1093; Local Union No. 313 v. Stathakis, 135 Ark. 86, 205 S. W. 450, 6 A. L. R. 894. It is equally settled that the law does not countenance the use of threats, intimidation, force, coercion, violence or other unlawful means, however laudable the motive or purpose of the strikers. Riggs v. Tucker Duck & Rubber Company, 196 Ark. 571, 119 S. W. 2d 507; 31 Am. Jur., Labor, § 240. In this connection the U. S. Supreme Court has held that the state still may exercise “its historic powers over such traditionally local matters as public safety and order and the use of streets and highways.” Allen-Bradley Local, W.E.R.M.W. v. Wisconsin Employment Relations Board, 315 U. S. 740, 62 S. Ct. 820, 86 L. Ed. 1154.

Although the object of a strike may be both lawful and laudable, judicial restraint is permissible where the strike is attended with real or threatened violence, force, intimidation or conduct otherwise unlawful or oppressive, such as mass picketing or even peaceful picketing where enmeshed with violent conduct. Thus peaceful picketing may be enjoined without violating the right of free speech where previous unisolated acts of violence by members of the picketing union or their sympathizers give to continued picketing, even though peacefully carried on, a coercive effect. See Milk Wagon Drivers Union v. Meadowmoor Dairies, 312 U. S. 287, 61 S. Ct. 552, 85 L. Ed. 836, 132 A. L. R. 1200, where the court held that picketing which in itself is peaceful may be coercive when set in a background of violence. The court said that “utterance in a context, of violence can lose its significance as an appeal to reason and become part of an instrument of force. Such utterance was not meant to be sheltered by the Constitution.”

In Local Union No. 858 Hotel and Restaurant Employees Int’l Alliance v. Jiannas, 211 Ark. 352, 200 S. W. 2d 763, we held that acts of violence and coercion were committed with such systematic persistence as to warrant a finding that they would be continued unless restrained where pickets walked very close to the door and on several occasions had to be pushed aside by customers to gain entrance to the restaurant being picketed, and on one occasion a customer was knocked down with a pair of brass knucks and severely injured. In that case the following statement from 31 Am. Jur., Labor, § 240, supra, was approved:

“Force threatened is the equivalent of force exercised. In many cases, it has been observed, it is difficult to draw the line of demarcation between intimidation and inoffensive persuasion. But even when the acts of the strikers, although unaccompanied by violence or threats, are such annoyance to others as to amount to coercion or intimidation they are unlawful. ’ ’

Perhaps the rationale of the result reached in the Meadowmoor Dairies and Jiannas cases, supra, is best stated by the annotator in 132 A. L. R. 1221 as follows:

“The reason most frequently advanced by the courts in justification of the blanket injunction against all picketing, where there has been past violence or other unlawful conduct, is that an injunction of such breadth is necessary to prevent future excesses and coercion, which, in the light of the past conduct, may reasonably be anticipated.”

Numerous cases are cited in support of the statement.

It is true that the threats and acts of intimidation and violence in the case at bar are not as great as those involved in the Meadowmoor and Riggs cases, supra, but they are greater in degree than those involved in the Stathakis and Jiannas cases, supra, and the cases of Cafeteria Employees Union v. Angelos, 320 U. S. 293, 64 S. Ct. 126, 88 L. Ed. 58, and Local No. 802 v. Asimos, 216 Ark. 694, 227 S. W. 2d 154, upon which defendants rely. The Chancellor found that the threats and acts of intimidation, violence and property damage reflected by the proof here were not isolated and disassociated incidents, but were enmeshed in, and inseparably connected with, the picketing. A preponderance of the evidence supports this conclusion.

As to defendants’ contention that the trial court erred in refusing to modify the injunction to permit peaceful picketing, what we said in the recent case of Self v. Taylor, 217 Ark. 953, 964, 235 S. W. 2d 45, is applicable here:

“One final point must be mentioned. Appellants argue that the court went too far in making the injunction ‘Permanent.’ In answer to a similar contention in Milk Wagon Drivers Union v. Meadowmoor Co., 312 U. S. 287, 61 S. Ct. 552, 85 L. Ed. 836, the U. S. Supreme Court said: (at p. 298) ‘The injunction which we sustain is ‘permanent’ only for the temporary period for which it may last. . . . Familiar equity procedure assures opportunity for modifying or vacating an injunction when its continuance is no longer warranted. ’ The injunction does not prevent appellants from bargaining in good faith for a legal contract. If legitimate differences arise not connected with the closed shop demand, which would warrant peaceful picketing, they may apply to the Chancery Court for appropriate modification of the injunction. If such modification is erroneously denied, an appeal always lies to this.court.”

If and when defendants are able to show the trial court that peaceful picketing can be carried on by the union in such manner as to avoid the likelihood of a repetition of the unlawfulness disclosed in this record, they are free to do so. Such showing had not been made at the time defendants sought a modification of the instant injunction.

Affirmed.

McFaddin, J., not participating.


author: George Rose Smith, J.

text:
    Davis v. St. Joe School District of Searcy County.
    5-798
    284 S. W. 2d 635
    Opinion delivered December 12, 1955.

      Willis & Walicer, for appellant.

      N. J. Henley, for appellee.
   George Rose Smith, J.

By this suit for a declaratory judgment the appellants as plaintiffs and the appellee as defendant seek an interpretation of a warranty deed by which Joe H. Dowdle and others conveyed two acres of ground to School District No. 33 of Searcy County. The appellants have succeeded to the interest of the grantors; the appellee has acquired the grantee’s interest. The chancellor held that the deed conveyed the fee simple title, subject to a reservation of minerals. It is contended by the appellants that the deed conveyed only a defeasible estate and that the title has reverted to them.

In the deed in question, which was executed in 1935, the following language appears between the granting clause and the habendum:

“This land to be used for school purposes only.

“The intention of this instrument is to convey two acres of ground, with no easement, with all mineral rights reserved and to be used for school purposes only to school district No. 33 of Searcy County, Arkansas. The grantors are to receive for and in consideration of the above two acres, the plot of ground formerly used by the school, it being of like value and like size in area. For further description see Quitclaim Deed of even date. ’ ’

It is stipulated that District No. 33 huilt a schoolhouse on the land, that the district was consolidated with the appellee in 1948, and that the property has not been used for school purposes since the consolidation. The appellants insist that the appellee’s failure to devote the property to school purposes has effected a divestiture of title.

The chancellor was correct in his interpretation of the instrument. The question is whether this deed conveyed (a) a fee simple defeasible, which might be either a determinable fee or a fee simple on condition subsequent, or (b) the fee simple absolute, with a covenant binding the grantee to the specified use of the property. In the latter case a breach of the covenant might give rise to an action for damages but would not involve the extinguishment of the grantee’s title. Bain v. Parker, 77 Ark. 168, 90 S. W. 1000.

At the outset it must be noticed that the deed before us does not contain language unmistakably describing either form of defeasible fee. The language customarily used is familiar enough.. A determinable fee is ordinarily created by a provision that the grantee’s estate is to continue ‘ ‘ as long as ’ ’ the property is used for a certain purpose or “until” a given event occurs, or by similar words limiting the duration of the estate. A fee on condition subsequent is most effectively described by an express declaration of the condition and by the further reservation of a right of re-entry upon condition broken. Jewell, The Distinction Between a Determinable Fee and a Fee Simple upon Condition Subsequent in Arkansas, 11 Ark. L. S. Bull. 3, 12; Rest., Property, § 44, Comment l, and § 45, Comment j. In the case at bar the grantors ’ failure to employ language unequivocally creating a defeasible fee is a circumstance indicating that the parties did not have such an estate in mind.

This tentative view is greatly strengthened by another factor in the case. The courts, in construing language that lies in the borderland between a clearly defined defeasible fee and a plainly stated covenant, have given weight to several external circumstances that may indicate the parties’ intent. See Rest., Property, § 44, Comment m, and § 45, Comment p. In the present case one of these factors — the ratio between the worth of the consideration and the value of the property — is especially persuasive. It is a sensible rule that as the worth of the consideration approaches the full market value of the property there is a correspondingly stronger inference that a defeasible fee was not intended. If a man conveys land to a school district purely as a gift and declares that it shall be used for school purposes only, it is reasonable to believe that he means to condition his generosity upon obedience to his wishes; for his benevolence is the only motive for the conveyance. But if the land is sold to the district for its full value it is not reasonable to believe that a similar restriction is intended to carry the severe penalty of a complete loss of title. In the second instance the consideration is probably the principal inducement for the transfer. Hence in the latter case the restrictive language is more fairly regarded as a covenant, upon which the remedy in damages is deemed adequate. Here the deed recites that District No. 33 exchanged. for the tract in controversy a plot of like value. The fact that the grantors received full value for their conveyance confirms the conclusioii that a covenant rather than a defeasible fee was intended.

Affirmed.


author: Paul Ward, Associate Justice. George Rose Smith, J.,

text:
    Bridgforth v. Vandiver.
    5-770
    284 S. W. 2d 623
    Opinion delivered December 12, 1955.

      Jack P. West and E. J. Butler, for appellant.

      Mann S McCulloch, for appellee.
   Paul Ward, Associate Justice.

This action was instituted by appellants, Blanche Bridgforth and [her husband] Otto R. Bridgforth, against appellee, Francis Vandiver, to recover damages for alleged injuries to Mrs. Bridgforth resulting from an automobile collision caused, allegedly, by the negligence of appellee.

Appellee pleaded contributory negligence on the part of Mrs. Bridgforth, the driver of one of the vehicles. The cause was submitted to the jury upon instructions which are not questioned on this appeal, and a verdict was returned in favor of appellee. As recognized by appellants this court would not be justified, in the situation outlined above, in setting aside the verdict of the jury unless it is shown by the record that there is no substantial evidence to support the jury in a finding that appellee was not negligent and also that there is no substantial evidence in the record to support the jury in a finding that Mrs. Bridgforth was contributorily negligent. In other words, if we find from the record substantial evidence from which the jury might have found that appellee was not negligent or if we find substantial evidence from which the jury might have found that Mrs. Bridgforth was guilty of contributory negligence, then it is our duty, under well recognized rules, to affirm the judgment of the lower court.

The accident involved here took place on January 6, 1954, around 5:00 P. M. at the intersection of North Rosser Street and Garland Street in the City of Forrest City, Arkansas. North Rosser Street is 36 feet wide and runs north and south while Garland Street is 30 feet wide and runs east and west. There are two stop signs on Garland Street— one at the northeast corner of the intersection and one at the southwest corner of the intersection. The location described is near the business district and there is a building at or near the corner of each block adjacent to the intersection. At the time of the accident it appears that automobiles were parked on the west side of North Rosser Street near the intersection on the north side thereof, and also cars parked on the north side of Garland Street near the intersection on the west side thereof. Mrs. Bridgforth was driving her husband’s car south on North Rosser Street and appellee was driving a pickup truck oast on Garland Street, each vehicle being on the proper side of the street. When the front end of appellee’s pickup truck was about half way between the center line and the west line of North Rosser Street it was hit by or collided with the front end of the automobile being driven by Mrs. Bridgforth. Appellants’ witness stated that the automobile traveled 20 feet into the intersection and appellee’s pickup truck traveled 10 feet into the intersection when the collision occurred. After the collision appellee’s pickup truck came to a stop on the east side of North Rosser Street and the automobile traveled across North Rosser Street, hit the curb at the southeast corner of the intersection and came to rest about the middle of Garland Street — a distance of approximately 90 feet from the place of the collision.

Mrs. Bridgforth and the appellee were the only eye witnesses to the accident. Mrs. Bridgforth states that she was traveling about 25 MPH when she approached the intersection, that when she was about 50 feet from the intersection .she looked to the right and saw no one approaching along Garland Street from the west, and that Avhen she was about two-thirds of the way across the intersection her car and appellee’s truck collided, and; that when she did see appellee’s truck coming into the intersection she tried to turn her wheel just as the pickup truck and car collided, and her car was knocked out of her control. She also stated that there was a 30 mile speed limit sign on North Rosser Street.

Appellee testified that when he came close to the intersection he slowed his truck down and shifted gears hut that he did not come to a complete stop as he did not think it was necessary; that he looked both ways and couldn’t see any one coming in either direction; that after he got a few feet out into the intersection the right front of the automobile struck his truck square on the front axle, turning his truck slightly to the right; that when he stopped his truck on the east side of North Rosser Street the automobile had already hit the telephone pole across the intersection. He stated that he was going about 25 MPH when he was in the middle of the block before he slowed down for the intersection and that he did not dash out in front of Mrs. Bridgforth. He also states that he thinks he got into the intersection first and that when he first sawT the automobile it was only 6 or 8 feet away.

The above factual situation, we think, is sufficient to present a jury question. After a careful consideration we have concluded that there was substantial evidence from which the jury might have found that Mrs. Bridgforth was driving at a careless rate of speed commensurate with the possibilities of danger lurking at the particular intersection she was approaching. The jury might have believed that Mrs. Bridgforth could not have had a clear view of cars approaching the intersection from the west on Garland Street due to the fact that parked cars might have obstructed her view and consequently that she was under the duty of keeping her car under control better than she did. This possible view is strengthened by the fact that her car traveled some 90 feet after the collision. Likewise the jury had a right to conclude that appellee was telling the truth about the speed of his pickup truck since he brought it to a stop within such a short distance.

This court has heretofore had occasion to pass upon questions similar to the one presented here where the evidence of negligence was slight and in these cases we have announced rules which we think are applicable here. We have of course many times stated that this court will not disturb the verdict of a jury if it is supported by substantial evidence.

In tbe case of Baldwin v. Wingfield, 191 Ark. 129, 85 S. W. 2d 689, a similar close question was considered, and the court said: “It may be that it is improbable that the injury occurred in the instant case as stated by the appellee but it is not physically impossible.” And again it was there stated: “The fact that the appellate court would have reached a different conclusion had the judges thereof sat on the jury, or that they are of the opinion that the verdict is against the preponderance of the evidence, will not warrant the setting aside of the verdict based on conflicting evidence.” In the case of Jonesboro Coca-Cola Bottling Company v. Holt, 194 Ark. 992, 110 S. W. 2d 535, it was stated that the credibility of witnesses and the weight to be given their testimony were questions for the jury. In the case of Arkmo Lumber Company v. Luckett, 201 Ark. 140, 143 S. W. 2d 1107, it was stated that: “Substantial evidence does not necessarily mean direct evidence. A fact may be proved by circumstances, ’ ’ and it was also there stated that if there is substantial evidence to support a verdict of the jury this court will not upset it although it may appear to us it is against the preponderance of the evidence. In the case of Ocker v. Nix, 202 Ark. 1064, 155 S. W. 2d 58, the court made an announcement, at page 1067 of the Arkansas Reports, which, in reverse, we think is applicable here. In discussing this question the court said: “In the case at bar the conditions surrounding the plaintiff, as testified to by the defendant’s witnesses, furnish a very strong argument against the credibility of his testimony but this is as far as the record authorizes us to go. It cannot be said that the testimony of the plaintiff is contradicted by the physical facts or is opposed to any unquestioned law’' of nature.”

And so in this case, while we might not agree with the conclusion reached by the jury, we cannot say that this conclusion is not supported by substantial evidence as we have many times defined that phrase. Here the physical facts and circumstances not only do not belie the jury’s verdict but to some extent at least they support it.

Appellants specifically call attention to Ark. Stats., § 75-623(b) which in effect provides that where a driver encounters a stop sign at an intersection he must proceed cautiously and yield to other vehicles not so obligated to stop. Violation of this statute however, if it was violated, did not constitute negligence but was only evidence of negligence to be considered by the jury. See Rogers v. Stillman, 223 Ark. 779, 268 S. W. 2d 614. Not only is this true but it would have been necessary for the jury to find such violation to be the proximate cause of the collision. See Mays v. Ritchie Grocer Co., 177 Ark. 35, 5 S. W. 2d 728. We must of course assume that the jury did consider these features of the case if they were properly submitted by instructions, and if they were not appellants are now in no position to object.

Affirmed.

Justices George Rose Smith and Robinson concur.

George Rose Smith, J.,

concurring. This case, involving an appeal by the plaintiff after a verdict for the defendant, is not really one calling for an application of the substantial evidence rule. That rule is properly used as a test only for the plaintiff’s evidence, either upon an appeal by the defendant after a verdict for the plaintiff or upon an appeal by the plaintiff after the trial judge has directed a verdict for the defendant. The rule is applicable to the defendant’s evidence only in those instances in which by his pleading he assumes the burden of proof and thus in effect becomes the plaintiff.

Of#course the reason for this difference is that the plaintiff alone has what Wigmore aptly describes as ‘ ‘ the risk of non-persuasion.” Wigmore, Evidence, § 2487. The plaintiff must introduce substantial evidence to establish his cause of action, else he is not entitled to have the matter submitted to the jury. But no similar burden rests upon the defendant. Unlike the plaintiff, the de-fendant is free to offer no evidence at all, and there is still a question for the jury except in those rare cases in which the plaintiff’s proof involves no question of credibility and so overwhelmingly establishes his cause of action that no fairminded man could fail to be persuaded by it — in short, when the proof is so conclusive that the court would be justified in directing a verdict for the plaintiff.

There is much support for the premise that it is never proper for the trial judge to direct a verdict for the plaintiff in a case like this one, involving an issue of negligence, since the standard of conduct to be expected of a reasonably prudent man is peculiarly a matter for the jury. But even if we accept the view that the trial judge can sometimes direct such a verdict without encroaching upon the jury’s province, this is plainly not a case of that kind. The plaintiff’s version of the accident depends solely upon her own testimony, which presents an issue of credibility for the jury. The defendant was not required to offer any proof whatever, much less any substantial evidence; the plaintiff’s testimony itself presented a jury question.

The majority, in their search for substantial evidence, overlook the fact that this court ordinarily reviews the rulings of the trial court rather than the conclusions of the jury. Whenever the substantial evidence rule comes into play the reversible error lies in the trial court’s action in submitting or refusing to submit the case to the jury. In the case at bar the trial judge allowed the case to go to the jury, which found for the defendant. Thus to prevail upon this appeal the plaintiff must show that the court was wrong in submitting the issues to the jury —in other words, that the court should have directed a verdict for the plaintiff. It is only necessary to state the facts in order to show that such a contention is without merit. I write this concurring opinion only because it seems to me that the majority opinion tends to obscure what is really a basic principle in the appellate review of jury trials.