author: Prank Holt, Associate Justice.

text:
    Kelley v. Southern Pulpwood Co.
    5-3689
    396 S. W. 2d 305
    Opinion delivered December 6, 1965.

      R. D. Rouse, for appellant.

      Robert Law and Smith, Williams, Friday & Bowen, By: W. A. Eldredge, Jr., for appellee.
   Prank Holt, Associate Justice.

The appellants seek partial dependency benefits in excess of those allowed by the Workmen’s Compensation Commission.

In affirming the referee the commission found that the employee was earning $30.00 per week when fatally injured and that appellants, his parents and minor brothers and sister, were 23 l/13th percent dependent upon their decedent. The commission awarded $1.73 per week to each of decedent’s parents; $1.04 per week to each of his minor brothers and sister until such time as each becomes 18 years of age; making a total allowance of $7.62 per week. On appeal to the circuit court appellants contended that they were 37% percent dependent upon their decedent according to the undisputed findings of the commission and, therefore, they were entitled to $11.25 collectively and in no event could the compensation payments to them ever be less than $7.00 per week. The circuit court affirmed the commission and on appeal appellants argue for reversal that, “the findings, conclusions and award of the commission are contrary to the law” and that the appellants are entitled to the larger award as contended before the circuit court.

Dependency, full or partial, is a question of fact to be determined by the commission as of the time of the injury. Sherwin-Williams Co. v. Yeager, 219 Ark. 20, 239 S. W. 2d 1019. The findings of the commission, having the verity and effect of a jury verdict, will not be disturbed on appeal if there is any substantial evidence to support the findings. Pufahl v. Tamak Gas Products Co., 238 Ark. 895, 385 S. W. 2d 640.

To understand why the commission found a partial dependency of 23 1/13 perecnt instead of 37% percent would require each member of the court to review the record of this case consisting of some 129 pages. Appellants’ abstract comprises only 2 pages with no abstract of the evidence. We are of the view that this is not sufficient for us to reach the merits of the case on the computation of the award by the commission. Therefore, we must affirm under our Rule 9 (d). Allen v. Overturf, 236 Ark. 387, 366 S. W. 2d 189; Vire v. Vire, 236 Ark. 740, 368 S. W. 2d 265; Weir v. Hill, 237 Ark. 922, 377 S. W. 2d 178; Dickson v. Harpole, 238 Ark. 775, 384 S. W. 2d 472; Hurley v. Owens, 238 Ark. 874, 385 S. W. 2d 636.

Affirmed.


source: Caselaw Access Project

author: Carleton Harris, Chief Justice.

license: Public Domain

text:
    Universal Security Ins. Co. v. Zambie.
    5-3690
    396 S. W. 2d 842
    Opinion delivered December 13, 1965.

      Roscopf é Raff, for appellant.

      Mike J. Etoch, Jr., for appellee.
   Carleton Harris, Chief Justice.

The question on this appeal is whether appellee was entitled to the statutory penalty and attorney’s fee. Henry Zambie, appellee herein, purchased a 1964 Buick Skylark on February 29,1964, and insured the automobile for the full purchase price, less a $50.00 deductible clause, with appellant, Universal Security Insurance Company. Thereafter, on July 22, 1964, the aforementioned Buick was struck by another car, and damaged extensively. On September 11, 1964. Zambie filed Ms complaint against the appellant insurance company, asserting that his Buick Skylark was insured for the sum of $3,734.39 with a $50.00 deductible clause; that the automobile “was struck from the side by another car, caving in the entire right side, and bending the frame of the car inward about a foot. ’ ’ It was further asserted that the Buick was so damaged as to make it a total loss except for salvage, and that salvage value was approximately $1,100.00. Appellee also alleged' that numerous demands had been made upon the company to comply with the contract, “by either providing the plaintiff with a car of like kind and quality, or paying the value thereof,” but that the 'company had steadfastly refused to perform the provisions of the contract. Judgment was sought in the amount of $3,734.39, plus the statutory 12% penalty, and attorney fees. On September 22, the company filed its answer, admitting that it had issued a policy of insurance to appellee, but expressly denying every other material allegation. On October 31, appellee amended his complaint, wherein he asserted that his automobile had an actual cash value of $3,285.00, but was a total loss except for salvage; judgment was sought for $3,235.00, or in the alternative, $3,235.00, less the salvage value of the car. On November 4, the company filed a motion to require Zambie to “make demand for the difference between the contended actual cash value of the car immediately prior to the collision, and the contended actual cash value of the car immediately after the collision.” The motion set out that appellee’s amended complaint was so vague and ambiguous that the company could not reasonably be required to prepare an answer. On the same date, appellant also moved to strike that portion of appellee’s prayer which sought judgment for the 12% statutory penalty, and the attorney’s fee. The company set out that Zambie had never made demand upon it for the difference between the contended actual cash value of the vehicle just prior to the collision, and the contended actual cash value of the vehicle immediately after the collision; that the company had not been put on notice as to the specific monetary demand in the case. On November 9, appellee responded to this motion, as follows:

“That at the time of the collision, the actual cash value of the 1964 Buick Skylark covered by the policy was $3,285.00.
“That following the accident the value of the car was $1150.00.
“That the plaintiff has in the past and still does demand that the defendant, pursuant to the policy, pay the plaintiff the sum of $3235.00, which is the actual cash value less the $50.00 deductible. Or in the alternative that the defendant pay the plaintiff the sum of $2085.00, which is the actual cash value less the salvage value and the $50.00 deductible. Both figures are exactly the same, the only difference being that the former figure leaves the salvage with the insurance company and the latter with the insured. ’ ’

Thereafter, on November 16, the company moved the court to make G-eneral Motors Acceptance Corporation a party plaintiff because of the fact that that company held a lien upon the Buick automobile, and on the same date the company filed a pleading entitled, “Answer to Amended Complaint or Answer to Motion to Make More Definite and Certain.” This pleading reads as follows:

“Prior to the filing of such amended complaint on November 6, 1964, defendant was not apprised as to the amount of the claim being asserted by the plaintiff for damages to the automobile. That after the filing of such amended complaint it is now apprised that the claim of the plaintiff amounts to the sum of $2,085.00. That the defendant has never denied the claim of the plaintiff nor has it ever refused to pay same for the reason that the amount of such claim was unknown to the defendant.
“WHEREFORE, defendant acknowledges the claim of the plaintiff as set out in such amended complaint in the amount of $2,085.00 and tenders herewith into the Court such sum of money in full payment of the claim of the plaintiff, and, does specifically deny any responsibility for the payment of the statutory penalty and attorney’s fees based upon the above allegations.”

On March 5 the court entered judgment for appellee against appellant in the amount of $2,085.00, plus 12% penalty, amounting to $241.20, and an attorney’s fee in the amount of $500^00, being a total judgment of $2,826.20. From that portion of the judgment awarding the statutory penalty and the attorney’s fee, appellant brings this appeal. For reversal, it is first urged that' appellee is not entitled to the penalty or attorney’s fee for the reason that appellant promptly confessed judgment for the amount sued for in the amended complaint. Further, appellant asserts that there is no substantial evidence to support the finding of the trial court that $500.00 is a reasonable attorney’s fee in this case. Under the view that we take, there is no necessity to consider this last point.

"We think, under our holdings, that appellant’s argument contains merit, and appellee is not due to recover penalty and attorney’s fee for the reason that he originally sought more than he finally recovered, and when his claim was reduced to the amount for which he later received judgment, appellant, within a reasonable time, proffered this amount to him. As earlier stated, Zambie originally sought the amount of $3,734.39, less the $50.00 deductible. Salvage value of the wrecked car was alleged to be $1,100.00. In his first amendment to the complaint, appellee sought $3,285.00. Finally, on November 9, appellee asked for the sum of $2,085.00, alleging that the salvage value of the automobile was $1,150.00. As mentioned, this was the amount that the appellant company, on November 16, tendered in full payment of appellee’s claim.

Obviously, the amount finally accepted was less than that originally sued for, but appellee argues that he, in the beginning, submitted an alternative, i.e., that he be given “a car of like kind and quality,” and he states that the amount offered by the company, and accepted by him, was equivalent to this demand. We do not agree that this type of demand entitles appellee to penalty and attorney’s fee. We think the statute contemplates a claim for a specific amount of money. Certainly, “a car of like kind and quality” is a matter wherein reasonable men could differ — and probably would. It would be exceptionally remarkable if an automobile could be found that would be exactly of the value as the damaged car, for mileage would differ, the condition of the tires would vary, the appearance of the car would likely be different, and numerous other items would likewise be divergent. It is evident that an owner and an insurance company could haggle for some period of time on the question of whether the car offered to replace the damaged vehicle was of “like kind and quality.”

There is an equally important reason why a demand for another car is not a demand for a definite amount of money. As stated in the Pennsylvania case of Alliance Discount Corp. v. Shaw, 171 A. 2d 548:

The observation by the court below, in its opinion, is well put. ‘It is indeed questionable whether there is a “recognized market” for used automobiles. No other article of commerce is subject to more erratic vacillation in pricing procedures. The so-called “red book” purporting to fix prices of various makes and models of automobiles in accordance with their year of manufacture is adopted for the convenience and benfit of dealers and is not based on market prices which are arrived at in the open, based on asking prices of sellers and bids of prospective buyers.’ ”

Appellee, in his brief, states:

“In this case Appellant had numerous opportunities prior to filing of suit to pay an amount less than it later confessed judgment to. This is pointed out in the original complaint and amended complaint wherein Appellee states he offered on numerous occasions to accept a-car of like kind and quality or the cash value of the one he lost. ’ ’ .

Appellee also asserts:

“On November 4, 1964, Appellant filed two motions. The first motion was to strike all and each part of Appellee’s amended complaint, and the second motion was for appellee to make his amended complaint more definite and certain, particularly as to the salvage value.
“On November 6, 1964, Appellee answered the motion to make more definite and certain by stating that One Thousand One Hundred and Fifty Dollars ($1,-150.00) was the present salvage value.
' “On November 9, 1964, the Appellant requested a pre-trial on the case at which time he argued both motions and was ruled against on both motions. Appellee then asked for the court to set a trial date and Appellant moved that it be continued until the next term of court for the reason it hadn’t had sufficient time to have the damaged car appraised. The court overruled this motion and set the case for trial on November 18,1964.
“Following the case being set for trial the attorneys again discussed settlement to no avail and on November 16, 1964, less than two days before trial Appellant filed an amended answer admitting liability for the full Two Thousand Eighty-five Dollars ($2,085.00). * * *”

Further:

“On November 18, 1964, the date set for trial, the Appellant requested that the question of attorney fees and damages be heard on briefs. This request was granted and both parties submitted briefs to the court with statements of facts.”

The alleged facts, set out in appellee’s brief, would, under proper circumstances, be pertinent matters for consideration, for, if no offer had been made by the company until two days before trial, it is apparent that counsel would have been forced to spend time preparing his case as a matter of being ready on the trial date. However, these matters do not appear in the transcript. We have stated repeatedly that, in determining litigation, we can only consider the record, and statements in an attorney’s brief “outside” the record cannot be given any weight. The transcript in this case does not reveal anything at all concerning negotiations prior to the filing of the suit; further, there is nothing in the transcript to show that a pre-trial conference was ever held; still further, the record does not reveal that the case was set for trial on November 18, or that the appellant tendered the $2,085.00 “two days before trial.” The court entered its judgment on March 5, 1965, finding that appellant company was -indebted to appellee in the amount of $2,085.00, and was liable, in addition, to appellee for a 12% penalty and a reasonable attorney’s fee.

Appellee asserts that, to avoid penalty and attorney’s fee, the company was required to tender into court the amount sued for, pins interest and costs, to date of tender, and cites Broadaway v. The Home Insurance Company, 203 Ark. 126, 155 S. W. 2d 889. In that case, suit was filed by the claimant for an amount less than he had previously demanded. The company tendered this amount into court, together with interest and costs. In holding that the claimant was not entitled to penalty and attorney’s fee, this court said:

“If the insured files suit for less than the minimum demand he has theretofore made under his policy, the insurance company has the right to tender into court and confess judgment for the amount sued for and be relieved of liability for the attorney’s fees and penalty provided in the above statute. The insured cannot file suit for an amount less than theretofore demanded and collect the statutory penalty and attorney’s fee if the insurance company in apt timé, as is the case here, offers to confess judgment and tenders into court the amount sued for, plus interest and costs to the date of tender.”

The court pointed out that the case was controlled by National Fire Insurance Company v. Kight, 185 Ark. 386, 47 S. W. 2d 576, where the circumstances were practically the same. However, the Broaclaway case leaves out a citation that is mentioned in the Kight case. On the last page of the latter opinion (390) we said:

“In Life & Casualty Co. v. Sanders, 173 Ark. 362, 292 S. W. 657, we held that the plaintiff could reduce his demand by amendment to the complaint after the trial had started and still recover the penalty and attorney’s fee. We there said: ‘If, instead of proceeding with the trial of the case and denying any liability whatever on the grounds here urged, it [the insurance company] had either offered to pay the reduced amount, or had asked t9 be given the time in which to pay same as provided in the policies, appellee could not have recovered the penalty and attorney’s fee, and, in addition, would have been required to pay all costs, for the reason that he demanded a sum greater than he was entitled to under the policy. ’ ’ ’

The United States Court of Appeals for the Eighth Circuit has also construed our holding as allowing the insurer to tender into court the amount sued for, and by confessing judgment, to be relieved of the penalty and attorney fees. Trinity Universal Insurance Company v. Smithwick, 222 F. 2d 16. There seems to be, to some extent, a conflict in the'cases, possibly occasioned by the fact that the Broadaway case did not include the quotation taken from Life and Casualty Company v. Sanders, which was mentioned in the Kight case. Our earlier cases make no mention of interest and costs. In Queen v. Ark. Ins. Co. v. Milham, 102 Ark. 675, 145 S. W. 540, in an opinion by Mr. Justice Hart, this court said:

“When appellant filed its amended answer and-claimed as a set-off the amount due it by appellee on the premium note, appellee at once conceded that the amount should be deducted from the amount sued for in his original complaint, and only asked judgment for the difference, which was $423.36. If appellant wished to avoid the penalty and attorney’s fee provided for in the statute, it should have offered to confess judgment for that amount, and thus have ended the suit. It did not do so but elected to go on and contest the claim of the appellee on other grounds, and thereby became liable for the penalty and attorney’s fee provided for in the statute when appellee recovered the amount sued for.”

See also Great So. F. Ins. Co. v. Burns & Billington, 118 Ark. 22, 175 S. W. 1161. In resolving these possible inconsistencies, we think logic dictates that when a demand for the sum (subsequently received by the claimant) is first made, and the company, within a reasonable time, tenders that amount, there can be no valid reason to require the company to pay interest and costs. We have said numerous times that the company is not to be penalized for refusing to pay an excessive demand, and certainly, it would be unjust to require the payment of interest and costs when it has not been at fault. The statute itself mentions only penalty and attorney’s fee.

The question in this litigation thus finally narrows to whether appellant company, in tendering the money one week after appellee made his offer, acted with diligence, and within a reasonable time. We are of the view that this question must be answered, “Yes.” Of course, in most instances, it is necessary that an attorney contact his client, communicating any offers to the company, and he cannot act until receiving a reply. Frequently, he must get in touch with the home office, which may well be located .in another state, and we do not feel that we can say that a delay of one week in denoting acceptance is normally an unreasonable delay; we find nothing in this record to establish that appellant was merely acting dilatorily.

In accordance with the views herein expressed, that portion of the judgment alknving penalty and attorney’s fee is reversed, set aside, and held for naught.

It is so ordered.

       Apparently, no testimony, exhibits, or other evidence was offered' to the court by either party, as only pleadings and orders appear in the transcript. The decision was based upon these pleadings and memorandum briefs filed on behalf of the litigants.

       The record reflects that this pleading, though dated November 6, was filed on November 9.

       Emphasis supplied.


text:
    Walker v. Countryside Casualty Co.
    5-3710
    396 S. W. 2d 824
    Opinion delivered December 13, 1965.

      Batchelor & Batchelor, H. Clay Robinson, for appellant.

      Shaw, Jones éShaw, for appellee.
   Carleton Harris, Chief Justice.

William J. Koch, one of the appellants herein, a resident of Logan County, owned a dump truck, and was engaged in hauling various materials. Joseph Eugene William Walker, the other appellant, is also a resident of Logan County, and was eighteen years of age at the time of the occurrence hereinafter discussed. On December 24, 1962, Walker, while assisting in greasing the dump truck, was injured when the bed of the truck fell on him, crushing his right leg; the leg was subsequently amputated. Thereafter, Walker, through his mother as next friend, instituted a suit against Koch, alleging negligence on the part of that person, and seeking damages in the sum of $77,586.75. Koch, who held a policy of liability insurance on the truck with Countryside Casualty Company, appellee herein, made demand upon the insurance carrier to defend the action. Countryside took the position that coverage was not afforded under terms of the policy, because Walker was an employee of Koch, but the company did assume the defense under a reservation of rights; subsequently, Countryside filed an action for declaratory judgment, asserting that a controversy existed between the company and appellants. Appellee asserted that, under the policy of insurance held by Koch, it was not required to defend, nor was it required to pay any possible judgment up to the limits of the policy. The company prayed that the court enter its declaratory judgment, finding that appellee did not owe any obligation under the policy of insurance held by appellant Koch. On trial, the court, sitting as a jury, held that, due to an exclusion clause in the contract, excluding coverage where any employee of the insured was injured while in the course of his employment, the company was not obligated to defend the suit brought against Koch by Walker, and would not be obligated to pay any part of any judgment rendered against Koch. From the judgment entered in accordance with these findings, appellants bring this appeal.

Under the terms of the insurance policy issued by appellee to Koch, coverage is excluded for:

“(e) Bodily injury to any employee of the insured arising out of and in the course of (1) domestic employment by the insured, if benefits therefor are in whole or in part either payable or required to be provided under any workmen’s compensation law, or (2) other employment by the insured; ’ ’

The Circuit Court held (2) to exclude coverage to appellant Koch. Appellants, in separate briefs, argue several points. Walker urges that the insurance policy in question excludes coverage to employees only if the employees are covered by Workmen’s Compensation Insurance, and he (Walker) was not covered by compensation insurance. Both Walker and Koch argue that the clause is ambiguous, and that the trial court accordingly should have resolved the language in favor of the insured, rather than the insurer. It is asserted that the phrase referring to workmen’s compensation coverage applies to Sub-section (2) as well as to Sub-section (1), i. e., the intent of (e) is that an injured employee, of any kind whatsoever, is to be covered by the policy unless the employee is also covered by workmen’s compensation insurance. It is further urged by appellants that, to say the least, the clause is ambiguous. We do not agree. First, let it be said that a provision excluding coverage for injuries to employees has been held to be unambiguous, and to be valid and enforceable. 7 Appelman, Insurance Law and Practice, Section 4415. In the South Carolina case of Rhame v. National Grange Mutual Insurance Company, 121 S. E. 2d 94, the identical exclusion language was passed upon by that court. The entire exclusion clause provided that the policy did not apply:

“(g) under division 1 of coverage C, to bodily injury to or sickness, disease or death of any employee of the named insured or spouse arising out of and in the course of (1) domestic employment by the named insured or spouse, if benefits therefor are in whole or in part either payable or required to be provided. under any workmen’s compensation law, or (2) other employment by the named insured or spouse. ’ ’

The court, in an opinion by Mr. Justice Moss, said:

“In the case of Quinn v. State Farm Mutual Automobile Ins. Co., S. C., 120 S. E. 2d 15, 16, we said:
‘It is a well settled rule that the terms of an insurance policy must be construed most liberally in favor of the insured and where the words of a policy are ambiguous, or where they are capable of two reasonable interpretations, that construction will be adopted which is most favorable to the insured. Pitts v. Glen Falls Indemnity Company, 222 S. C. 133, 72 S. E. 2d 174. However, in cases where there is no ambiguity, contracts of insurance, like other contracts must be construed according to the terms which the parties have used, to be taken and understood in their plain, ordinary and popular sense. If the intention of the parties is clear, the Courts have no authority to change the contract in any particular. The Court has no power to interpolate into the agreement between the insurer and the insured a condition or stipulation not contemplated either by the law or by the contract between the parties. Chastain v. United Ins. Co., 230 S. C. 465, 96 S. E. 2d 464.’
“Insurers have the right to limit their liabilities and to impose whatever conditions they please on their obligations, provided they are not in contravention of some statutory inhibition or public policy. Accordingly, an insurer need not protect against all liabilities and a clause exempting certain liabilities from coveage is valid. * * *
. < * * # There is excluded from coverage, under section (g) (1) of said clause, domestic employees, if benefits for such injury, sickness, death or disease is payable under any workmen’s compensation law; there is also excluded from coverage, under section (g) (2) of said clause, other employment by the named insured or his spouse. In our opinion, the provisions of the insurance policy heretofore quoted, are free from ambiguity, doubt or uncertainty as to the risks included and excluded.”

In Clinchfield Railroad Co. v. United States Fidelity & Guaranty Co., 160 F. Supp. 337, decided by the United States District Court for the Eastern District of Tennessee, Northeastern Division, a similar exclusion provision in an insurance policy was involved. There, the exclusion, and defendant’s argument are as follows:

‘ ‘ ‘ This policy does not apply:
(d) under coverages A and C, to bodily injury to or sickness, disease or death of any employee of the Insured while engaged in the employment, other than domestic, of the Insured or in domestic employment if benefits therefor are either payable or required to be provided under any workmen’s compensation law;’
“Defendant says that by deleting the inapplicable language from the foregoing exclusion provision that it Avould read thus:
£ ‘ ‘ This policy does not apply:
(d) under coverages A and C, to bodily injury to * * * any employee of the Insured while engaged in the employment * * * of the insured # * ”

After reviewing several cases, the court stated:

“The Court concludes that the exclusion provisions of the policy in this suit are not ambiguous or subject to different interpretations but that the plain meaning of them is that employees suffering injuries while in their employment, other than domestic employees unless covered or subject to coverage by the Workmen’s Compensation Act, are not within the coverage of the policy.”

A clause with some similarity was also involved in the Georgia case of Aetna Casualty and Surety Co. v. Howell, et al, 108 F. 2d 148, decided by the Circuit Court of Appeals for the Fifth Circuit. There, the exclusion clause provided that the policy did not apply,

“‘(e) to bodily injury to or death of any employee of the Insured while engaged in the business of the Insured, other than domestic employment, or in the operation, maintenance or repair of the automobile; or to any obligation for which the Insured may be held liable under any workmen’s compensation law: * * ”

In commenting upon this clause, the court [referring to the District Court] stated:

“The court found that the exclusion clause (e) contained two exceptions, one being ‘domestic employment’ and the other ‘employment in the operation, maintenance and repair of the automobile.’ We disagree with that lulling. We do not find the clause ambiguous. The clause ‘other than domestic employment’ set off by commas, is parenthetical, solely of itself and should not be coupled with what follows. Omitting it, the exclusion clause plainly means the policy does not apply to bodily injury or death of any employee of the insured while engaged in the business of the insured or while engaged in the operation, maintenance or repair of the automobile. ’ ’

Other cases could be cited, but let it suffice to say that we agree with these rulings. We find no ambiguity in the language, and hold that the phrase, ‘ ‘ other employment by the insured,” simply means that no coverage under the policy is afforded where an employee of the insured is injured during the course of his employment.

This brings us to the second question, which is, “Was Walker an employee of Koch at the time he received the injury here complained of?” Appellants contend that Walker was not an employee of Koch, but rather, was only a neighborhood boy, who had loafed around the garage since he was twelve or thirteen years of age, and who had run a few errands on widely separated occasions; that although Walker was occasionally given money, there was no agreement for compensation. It is asserted that the relationship between the two was rather like “father and son.” Counsel says, referring to Koch, “as.is often the case when a person works on his equipment, [he] becomes a glorified baby-sitter for all of the younger neighborhood boys whose parents do not prevent them from standing around and watching.” It is pointed out that at the time of the injury, neither Koch nor Walker had discussed payment for the assistance that Walker would render in greasing the truck. As an alternative contention, it is asserted that, at most, Walker was only a casual employee, and that the term “employee,” as used in automobile exclusionary clauses, should apply only to regular employees as distinguished from casual or incidental employees. We cannot agree with these assertions, and it appears that the weight of authority is against appellants’ contentions. The policy provides that there is no coverage for bodily injury to any employee (arising out of employment by the insured)’. First, let it be said that the fact that Walker was a minor is of no effect. As stated in State Farm Mutual Automobile Ins. Co. v. Brooks (Mo.), 136 F. 2d 807 (Eighth Circuit):

‘ ‘ The minority of the boys at the time of the accident is not material to the inquiry whether they were, as a matter of law, to be deemed members of the public covered by the policy, or employees engaged in the business of the insured. What was done determined their status as employees.”

A succinct discussion of the.meaning of employment is found in Pennsylvania Casualty Company v. Elkins, 70 F. Supp. 155 (E. D. Ky.). There, the employment of the injured person, Nave, was certainly incidental, for Nave was regularly employed elsewhere, but on the occasion in question, agreed to accompany Elkins on a trip to Tennessee for the purpose of delivering a load of cattle. “While on the return trip, the truck, driven by Elkins, overturned, and Nave was killed. Elkins’ automobile liability insurance policy contained the provision that coverage was excluded for “bodily injury to or death of any employee of tbe insured while engaged in the employment, other than domestic, of the insured.” The party contending that coverage was afforded argued:

“That at the time of the accident which resulted in his death Ernest Nave was not an ‘employee’ of William Elkins, the insured, in any sense of the word but, having other regular employment, he was merely a casual, incidental and temporary helper, voluntarily rendering a' particular service as an accommodation to Elkins;
“That the phrase ‘any employee’ as used in the exclusion provision of the policy is ambiguous and that it is susceptible of being interpreted in a restrictive sense importing regularity and continuity of service for wages or salary rather than in the broader sense including every type of the relationship of employee and hence, under the familiar rule that where a provisions of an insurance policy is open to two or more interpretations the one most favorable to the insured must be adopted, the exclusion clause of the policy here in question should be interpreted to have no application to Ernest Nave whose employment, if such relation existed at all, was only casual and temporary.”

Tlie court, in rejecting this argument, stated:

“The exclusion clause in the policy in question is obviously designed to exclude from coverage every type of employer’s liability, other than that arising from ‘domestic employment,’ regardless of whether the employment be regular and continuous or incidental and temporary. The words used make the broad indiscriminate exclusion sufficiently clear. To hold otherwise would be to make a new contract for the parties entirely different from that which they made for themselves.”

Numerous other cases involving similar factual situations to the case at bar could be cited, some even holding that the injured person was an employee as a matter of law. We, however, are of the view that the question of whether Walker was an employee is a question of fact, rather than a question of law, and we are therefore only concerned with whether there was substantial evidence to support the findings of the trial court, sitting as a jury.

• The evidence reflected that Walker was eighteen years of age, and a student in the Eleventh Grade, at the time of the accident. He held an after-school job with the Pox Transfer company. Koch was a neighbor, and Walker, on various occasions over a six-year period had helped Koch maintain his trucks. This had consisted of 'different tasks; as Walker stated, “I helped him to grease his truck and I changed oil for him and I have driven — I have gone from place to place with him . . . Well, I had known him for about five or six years and I had been helping him off and on and then afterwards he started coming by and wanting me to help him to do this and do that . . . When I helped him, he would give me something when he had the money, and if he didn’t have any money I didn’t get anything until he got the money.” When asked, “Do you know why he came to get you?” Walker replied, “Because I didn’t — when I helped him I didn’t charge him so much.” Walker stated that on occasion Koch would pay his way to the picture show, and also gave him some clothing. However, this appellant testified that before he was given anything, “I would have to earn it first. ’ ’ He stated that at one time Koch gave him a bicycle, “But he took it back a little while after he gave it to me.” On the day of the accident (Christmas Eve), according to Walker:

“I had just got off from work from Fox Transfer and I was going home. I stopped in there right after work and he asked me if I would help him that afternoon, and he asked me if I would come back that afternoon and I told him that I guessed I would if I wanted to work and I went back after dinner, so he asked me to go down there and get the dump truck and have it greased. I took it up to the service station. They wouldn’t grease it because it was too big to get inside and they said it was too cold to grease it out side, so I brought it back to the shop. ’ ’

Walker stated that Koch asked him to help grease the vehicle, and he stated that he was holding the grease gun and the fittings at the time the truck bed fell. The young man testified that Koch came by the hospital the next day, and paid him $2.00.

Koch denied that he hired Walker to help him wash and grease the truck, and, in fact, stated that the first he knew of Walker crawling between the bed and the frame was when he heard the boy cry out. However, as previously stated, we are only concerned with whether there was substantial evidence to support tbe finding of tbe Qircuit Court.

We think the testimony just related constitutes substantial evidence that Walker was an employee as contemplated under the exclusionary clause of the insurance policy. Under the evidence, Walker helped Koch on many different occasions during the six-year period, and Avas paid some amount of money in most instances, though he did not always receive the money at the time of the completion of the job. Walker stated that Koch would get him (Walker) to help because, “I didn’t charge him so much.” Walker testified that Koch asked him to help in greasing the vehicle, and according to his testimony, he was engaged in this task when the accident occurred. Further, he received pay.

Judgment affirmed.

Justice Ward and Johnson are of the opinion that Paragraph (e) of Section 8, entitled “exclusions”, is ambiguous, and they Avoidd reverse the judgment.

       Of course, coverage is afforded under (1) where domestic employees receive injuries, and workmen’s compensation benefits are not provided.

        Allied Mutual Casualty Company v. Dahl, 122 N. W. 2d 270 (Iowa 1963). In this case, Ernest Goedken, a minor, received a serious personal injury while riding in the back end of a panel truck, owned by one Wolf, driven by one Dahl, and insured by Allied Mutual Casualty Company. Just before.being injured, Goedken, with other boys, had been engaged in distributing handbills in behalf of congressional canidate Wolf, and the boy was preparing to distribute additional handbills at the time of the injury. Goedken had been given a dollar for his part in the first distribution, but did not know what he would be paid for the second distribution. After the injury, he was paid $2.00. The trial court found that Goedken was an employee of Wolf at the time of the injury, and that the policy of insurance did not protect ■either Wolf or Dahl. This holding was based on an exclusion clause which had the identical provision of (2) in the instant case, i. e., “other employment by the insured.”

        Inter alia, Clinton Cotton Oil Company v. Hartford Accident and Indemnity Company, 186 S. E. 399 (S. C.); Church v. Consolidated Indemnity and Insurance Company, 174 Atl. 488 (N. J.)

       From the evidence: “Q. What were you doing? A. I was holding the grease gun and the fittings. Q. He in fact did pay you for the work? A. He paid me the next day.”


author: Ed. F. McFaddin, Associate Justice.

text:
    Morton v. Hall.
    5-3694
    396 S. W. 2d 830
    Opinion delivered December 13, 1965.

      N. J. Henley, John B. Driver, for appellant.

      Murphy, Arnold & Turtle, Reed & Blackburn, for appellee.
   Ed. F. McFaddin, Associate Justice.

This is a boundary line dispute between adjoining landowners. Appellants own north, of the boundary (part of the NE NE); and appellees own south of the boundary (part of the SE NE). There were really three issues before the Trial Court. The first was the location of the true (geographic or survey) boundary. Then assuming the surveyors established the true boundary line between the two tracts, the remaining questions were: (a) did appellants acquire title by adverse possession down to a fence about 45 feet south of the true line? or (b) if not, had the said fence become the boundary by acquiescence over a long period of time.

Appellees, Hall and wife, own the land to the south of the boundary; and they filed suit in the Chancery Court to quiet their title. They named as defendants the appellants, their neighbors to the north. The appellants, by answer, admitted the appellees owned some land to the south, but said :

“Defendants further pleading would state that there is now, and has been for more than 21 years last past, a division fence between the lands belonging to defendants and plaintiffs; that said fence has, for the period aforesaid been recognized by the predecessors in title as a common boundary between the lands of plaintiffs and defendants, and has been fully recognized and acquiesced in by said landowners.”

At that stage in the proceedings, and by stipulation, the cause was transferred to the Circuit Court, and tried as an action in ejectment. Trial to a jury resulted in a verdict and judgment for appellees; and appellants bring this appeal, urging three listed points, but which we will discuss under two topic headings.

I.

Appellants’ first point is: “That the Court erred in refusing appellants’ motion to strike the testimony of the County Surveyor, A. O. Flowers.”

Appellees deraigned record title to their lands from the Sovereignty of the soil to themselves. To establish the true or geographical north boundary of their line, the appellees called as their witness Mr. A. O. Flowers, former County Surveyor. He testified as to a survey made by him and the present County Surveyor, Hubert Heigel, to establish the true or geographical boundary line between the lands of the litigants. Mr. Flowers testified that the corners stated in the Government field notes had long since been obliterated; but that he started at what was commonly accepted by all in the community as the common corner of Sections 10, 11, 14, and 15, and ran north 3960 feet to get to the west end of the true or geographical boundary line between the litigants. Mr. Flowers testified that then he went east to an iron pin in the road in front of Cherokee Grill, which iron pin had been used in many surveys, and that he ran back west and came to the same boundary line as previously located. He testified that both sides to this litigation were represented at all of this survey; and that the result of such survey was to find that the fence of the appellants was over on the appellees’ land some 45 feet at one end an something over 100 feet at the other end of the fence. The following occurred:

‘ ‘ MR. HENLEY: The defendant now moves to strike all that testimony of the witness, Mr. Flowers, relative to the accuracy of his survey, because he has testified he was given hearsay information as to the accuracy of the location of various quarter section corners, and section corners. Therefore, it does not in law constitute a proper and legal survey.
“ME. SEED: He testified that he started from a corner known and recognized by the public surveys in years past, that those were known as established corners and people have been using them for years.
‘ ‘ THE COUBT: The Court thinks that is a matter for the jury to determine. Of course, the jury will take all the testimony into consideration in determining how much weight to give to his testimony. The jury will take all that into consideration, but I think it is a matter for the jury to determine how much weight they will give to his survey, so I believe your objection will be overruled.
“ME. HENLEY: Note our exceptions.”

We think the ruling of the Trial Court was correct. Of course, Mr. Flowers’ survey was not a “legal” survey m that it was not squared and tested by known corners, but the weight to be given to Mr. Flowers ’ survey was— as said by the Trial Court — “a matter for the jury to determine.” Furthermore, Hubert Heigel, the present County Surveyor, testified that he assisted Mr. Flowers in making the survey and testified to the same effect as Mr. Flowers; and appellant did not offer any motion to exclude Heigel’s testimony. We have discussed this survey matter in detail because the same question may arise on retrial, which-may be necessitated by our holding on the next point.

II.

Appellants’ other points relate to the giving of an ■nstruction by the Court. As we have heretofore mentioned, the appellants claimed the land south of the surveyed boundary and down to the fence by either of two claims: (a) adverse possession, or (b) boundary by acquiescence. At the request of the appellees the Trial Court gave their Instruction No. 1 which related to adverse possession; and at the request of the appellants the Trial Court gave their Instruction No. 1 which related to boundary by acquiescence. These instructions were given without objection. Then the Court, on its own ■(notion, went further and said:

'‘I want to go a little further, gentlemen, on the matter of this fence. In order for a fence between two tracts of Hand to become the established line between those two tracts, or as I mentioned a while ago the presumed, agreed line, both parties on either side of that fence must make some use of the land up to the fence line, all along acknowledging that as the line between the two tracts. Now, if there is such use of the land on either side of this fence line, all along there, all the time acknowledging he does not own the land up to the line, it would not become the established line. It must be recognized, acknowledged and claimed by both parties on either side of the fence, and recognized by them as the boundary line between the two tracts. If there is such use as that for a period of 7 years, or more, it is presumed to be the agreed division line between the two tracts.”

The appellants ’ attorney immediately objected to the instruction by the Court, saying:

“The statement made by the Court, I understand must be some use or overt recognition of the land by the parties on either side of the boundary line, to which action of the Court in giving that, the last, instruction, the defendants object and except for the reason it contradicts the Instruction No. 1 given on behalf of the defendants, relative to silent acquiescense for the statutory period. ’ ’

We are compelled to hold that the instruction that the Court gave on its own motion was erroneous. If there was a boundary by acquiescence then there did not have to be an actual adverse holding up to that boundary fence. See Webb v. Miller, 236 Ark. 245, 365 S. W. 2d 450; Stewart v. Bittle, 236 Ark. 716, 370 S. W. 2d 132; Williamson v. Rainwater, 236 Ark. 885, 370 S. W. 2d 443; and Tull v. Ashcraft, 231 Ark. 928, 333 S. W. 2d 490. In the last cited case we said:

“We have frequently held that when adjoining landowners silently acquiesce for many years in the location of a fence as the visible evidence of the division line and thus apparently consent to that line, the fence line becomes the boundary by acquiescence. Deidrech v. Simmons, 75 Ark. 400, 87 S. W. 649; Robinson v. Gaylord, 182 Ark. 849, 33 S. W. 2d 710; Seidenstricker v. Holtzendorff, 214 Ark. 644, 217 S. W. 836. As we said in a very similar case, Gregory v. Jones, 212 Ark. 443, 206 S. W. 2d 18: ‘It is true that in this case the original rail fence line was established without a prior dispute as to boundary ; but the recognition of that line for the many intervening years (34 in this ease) shows a quietude and acquiescence for so many years that the law will presume-an agreement concerning the boundary.’ ”

In the instruction on its own motion, the Circuit-Court evidently confused adverse possession up to a. fence line, as discussed in Brown Paper Mill v. Warnix, 222 Ark. 417, 259 S. W. 2d 495, with boundary by-acquiescence, as discussed in Tull v. Ashcraft, supra, and the several cases heretofore cited. There is no requirement of adverse user to the agreed fence in the case of boundary by acquiescence. Therefore, for the error in the Court’s instruction, the judgment is reversed and the cause is remanded.

       Attorneys for the appellants (defendants) stated: “MR. HENLEY : The defendants have no objection to the evidence adduced on the part of the plaintiff showing muniment and chain of title from the original United States Patent down tó Mr. Hall, the present owner of record title . . . .”

       This instruction reads:
      “You are instructed that if adjoining land owners, either by themselves or through their tenants and agents, acquiesce in and govern themselves by a division fence for 29 years, there is a presumption of law that such a division fence and line is an agreed division line, though the fence is not on the true line. And in this connection you are further told that if you find from a preponderancé of the evidence that the adjoining land owners of the tracts of land involved in this case silently acquiesced for many years in the location of the present fence on said land as the visible evidence of the division line, the fence line becomes the boundary between the parties because of such acquiscence, and your verdict should be for the defendants, Sam D. Morton, Jr. and Allie Morton.”


author: G-eokge Rose Smith, J.

text:
    Rebsamen West v. Bailey.
    5-3716
    396 S. W. 2d 822
    Opinion delivered December 13, 1965.

      McMillen, Teague & Bramhall, for appellant.

      Hubert E. Graves, for appellee.
   G-eokge Rose Smith, J.

This is a claim for death benefits under the workmen’s compensation law. On March 16, 1963, the decedent, Luther D. Bailey, suffered a fatal heart attack in the course of his regular work as an automobile salesman. The only question of fact for the Commission was whether Bailey’s work caused or contributed to the attack. The Commission found that a causal connection existed and accordingly awarded benefits to the appellee, Bailey’s widow. The award was affirmed by the circuit court.

In 1959 Bailey’s personal physician, Dr. Wassell, discovered that Bailey had heart trouble. Dr. Wassell urged Bailey to give up his job and submit to a period of complete bed rest. Bailey refused, saying that he was not financially able to quit work. The same medical advice was offered and refused upon subsequent occasions, the last one being only three days before Bailey’s death.

Dr. Wassell testified positively that Bailey’s work aggravated his heart condition, that there was a causal connection between his work and his death, and that he would probably have lived much longer if he had taken Ms doctor’s advice. Dr. O’Neal was of the same opinion. Their testimony'is amply sufficient to support the award. Since our decision in Bryant Stave & Heading Co. v. White, 227 Ark. 147, 296 S. W. 2d 436 (1956), there has been no requirement that a heart attack, to be compensable, be caused by some unusual exertion rather than by the employee’s regular work. That case governs this one.

Affirmed.


author: George Rose Smith, J.

text:
    Kinder v. Webb.
    5-3731
    396 S. W. 2d 823
    Opinion delivered December 13, 1965.

      Williams & Gardner, for appellant.

      R. M. Priddy, for appellee.
   George Rose Smith, J.

The appellants, J. C. Kinder and Geno Johnston, are ministers in a Baptist denomination, the Free Will Baptists. Charges of misconduct were-brought against them in their own church, the Oak Grove Free Will Baptist Church.' After a hearing the congregation acquitted both men by a vote of 14 to 9. The matter was then carried before a higher organization, the Antioch Association of Free Will Baptists. There both men were found guilty of the charges. At the direction of the Association they surrendered their Certificates of Ordination.

The two ministers then filed this suit in equity to enjoin the officers of the Antioch Association and the county clerk from attempting to cancel their licenses and credentials. See Ark. Stat. Ann. § 55-218 (1947). After a hearing the trial court dismissed the complaint on the ground that the plaintiffs had not proved an equitable cause of action.

The plaintiffs contend that under the controlling rules of the national denomination each local church is completely self-governing and alone possesses the power to discipline its own members. It is argued that a regional association such as Antioch may take action against its own member churches but cannot take disciplinary measures against the individual members of a local church, whether they be ministers or laymen. Hence it is insisted that the Antioch Association exceeded its powers in attempting to revoke the plaintiffs’ Certificates of Ordination.

Both sides refer to a booklet containing the rules and regulations adopted by the national denomination. With respect to the question now at issue there is some ambiguity. On the one hand, there is no rule stating that a minister or church member may be disciplined by a regional association. On the other hand, the prescribed form of a Certificate of Ordination recites that it may be recalled by the association (here Antioch) to which the minister belongs. The Certificates issued to the two plaintiffs contained that recital.

We agree with the chancellor’s conclusion that this is not properly a controversy for the civil courts. It is firmly settled that the civil courts will not assume jurisdiction of a dispute involving church doctrine or discipline unless property rights are involved. Sanders v. Baggerly, 96 Ark. 117, 131 S. W. 49 (1910). The plaintiffs have failed to bring themselves within that rule in the case at bar.

The two plaintiffs were formerly employed by one or more local churches to conduct Sunday services and revival meetings for stipends that were mutually agreed upon. Since the action that was taken by the Antioch Association the local churches have no longer been willing to engage the plaintiffs’ services. Hence, it is said, the assertedly unauthorized action of the Antioch Association has brought about a pecuniary loss to the plaintiffs.

The proof does not support this argument. It is an undisputed fact that the congregation'of each Free Will Baptist church is an autonomous body. The various congregations are not bound by the disciplinary action purportedly taken by the Antioch Association. Any congregation is at liberty to engage the services of the plaintiff ministers whether Antioch’s attempted discipline was authorized or unauthorized by church law. Hence any pecuniary loss that the appellants may have suffered is the result of decisions made by the local congregations rather than by the Antioch Association. It is not within the province of a civil court to intervene in a situation such as this one.

Affirmed.


author: Paul Ward, Associate Justice.

text:
    Ark. State Highway Comm. v. Waddell.
    5-3697
    396 S. W. 2d 840
    Opinion delivered December 13, 1965.

      Mark E. Woolsey and Phil Stratton, for appellant,

      William S. Walker, Joe D. Villines, Jim B. Spears, for appellee.
   Paul Ward, Associate Justice.

This is an eminent domain case involving a small parcel of land in the town of Bellefonte, Boone County, Arkansas, situated on the north side of U. S. Highway No. 65. For convenience, we will at times refer to the subject parcel of land as “parcel-x.”

The Arkansas Highway Commission (appellant) claims a right-of-way easement over parcel-x by virtue of a condemnation order and judgment of the Boone County Court entered of record April 2, 1928. J. E. Waddell and wife (appellees) claim ownership of parcel-x (together with other lands) by virtue of a warranty deed from J. Frank Robinson and wife, dated March 3, 1944 (shown in the abstract of title as appellees’ Exhibit No. 1).

When appellant started to improve and broaden U. S. Highway No. 65 where it runs through the town of Bellefonte appellees objected on the ground that appellant was about to appropriate, without remuneration, parcel-x which belonged to them. Accordingly appellees, on January 29, 1965, filed suit in chancery court to enjoin further action on behalf of appellant. Answering, appellant denied that appellees owned parcel-x, and affirmatively stated it had acquired an easement over-the land in 1928, in the manner previously stated.

After a somewhat lengthy hearing, and after appellant’s demurrer to the evidence had been overruled, the Chancellor made the following factual findings :

The preponderance of the evidence shows that appellees are the owners of the land in question which is adjacent to the highway and which is subject to whatever rights appellant may have by virtue of the said 1928 County Court Order; Thus, the burden shifts to appellant to show notice of the Order has been given to the then owner of the land; This burden has not been met in this case; “The taking of the road for highway purposes . . . follows an old road or highway and amounted to a widening of the old original highway,” consequently, appellees are not precluded by the one year limitation on filing a claim for the taking of this property; Appel-' lant is hereby enjoined from entering upon the land here involved unless and until it furnishes surety for payment of such sums as might later be awarded to appellees. It was further ordered that appellant be notified of any claim filed by appellees in the County Court for compensation for taking of the property. Appellant was ordered to execute a bond in the amount of $2500.

The court then entered a decree in accord with the above findings.

Seeking a reversal, appellant relies solely upon the following point:

“The Trial Court Erred in Overruling Defendant’s Demurrer to the Evidence Based on Appellees’ Failure to Prove Valid Record Title to the Lands in Dispute.”

It was appellant’s theory in the trial of this ease that appellees failed to prove record title for the reason that the description contained in their complaint and deed described no lands that could be located from monuments and calls in the description. After a careful study of the entire record, including several somewhat unintelligible maps of the town of Bellefonte, we are forced to the conclusion that the trial court was correct in overruling appellant’s demurrer to thé evidence.

The complaint filed by appellees and the deed from Robinson to them contains a description which is very hard to follow or understand, and we think it would serve no useful purpose to set it out in full. The description covers two pages in the abstract and consists largely of angles and measurements evidently determined by a surveyor. Appellant relies heavily, if not exclusively, on the testimony of a surveyor which shows the several, measurements and angles do not form a complete enclosure. Therefore, says appellant, the description does not describe any land that conld be located from tbe county records or by any clue contained in the deed. Thus, appellant contends, appellees’ title is defective. However, for reasons hereafter set forth, we cannot agree with the above argument and contention of appellant.

In our opinion the description of the property in this case does form a “complete enclosure.” It contains not only numerous distances and angles but it refers to nunmerous markers and monuments such as streets, a branch, a spring, etc. In this kind of a situation we have held that degrees and measurement must yield to courses and monuments in many instances. See: Garrett v. Musgrave, 215 Ark. 835, 223 S. W. 2d 779, and Stallcup v. Stevens, 231 Ark. 317, 329 S. W. 2d 184. The last portion of the description reads: “. . . thence south 20 degrees west 205 feet to the place of beginning.” It is the contention of appellant that the above distance and angle would not terminate at “the place of beginning.” We held otherwise, under an almost identical fact situation, in the case of Irby v. Drusch, 220 Ark. 250, 247 S. W. 2d 204.

In addition to the above we also have the following factual situation. At the end of the long description above referred to there appears these words: “. . . said tract herein conveyed embraces lots 3, 5, 6 and 7 and a part of lot 4 of block 20, lots 4, 22, 25, 39 and a part of lot 5 of block 24, and lots 3 and 4 in block 31, all in the town of Bellefonte, Arkansas.” Appellant’s own Exhibit No. 2, which purports to be a plat (or a copy) of the town of Bellefonte, shows that lot 25 of block 24, lies along the north side of Highway No. 26.

In view of the above, we hold that the trial court was correct in overruling the defendants’ demurrer to the evidence; and the decree is accordingly affirmed.

Affirmed.


text:
    Ark. State Highway Comm. v. Dees
    5-3698
    396 S. W. 2d 933
    Opinion delivered December 13, 1965.
    [Rehearing denied January 10, 1966.]

      Mark E. Woolsey, Phil Stratton, for appellant.

      W. S. Walker, Joe D. Vilines, Jim B. Spears, for appellee.
   Paul Ward, Associate Justice.

This is a companion case to Arkansas State Highway Commission v. J. E. Waddell, et ux, delivered this day. The two cases were consolidated and tried together, and only one decree was rendered by the trial court.

Perry L. Dees and his wife (appellees) claim to be the owners of a small parcel of land in Bellefonte, Arkansas, situated on the north side of U. S. Highway No. 65, by virtue of a deed from Hugh Parris excuted in 1938. The Arkansas Highway Commission (appellant), as in the companion case, claimed a right-of-way easement over the land by virtue of the County Court Order entered on April 2, 1928. Again, when appellant started to enter upon the land appellees filed a complaint in chancery court to enjoin entry. At the conclusion of the combined hearing the trial court found, among other things, that appellees were the owners of the land; that they should be remunerated for any land taken, and; that appellant must post a $5,000 bond to secure payment to appellees for said taking. Appellant now prosecutes this appeal contending (a) that appellees did not show they had title to the land in question, and (b) that (even if they had title) they cannot now collect damages because no claim was filed within the time provided by law.

For the purpose of this opinion it may be conceded that appellees proved they had title to the land, but we have concluded the trial court must be reversed for the other reason.

We take it as conceded by all parties that under the 1928 County Court Order any affected land owner had to file a claim within one year or his claim was barred, and that the above provision has been held to mean the affected land owner had one year from the time he had notice of the taking to file his claim.

Under our holding in the case of Arkansas Highway Department v. D. L. Staples, 239 Ark. 290, 389 S. W. 2d 432 appellees are now barred from filing a claim for damages to their land if one of the predecessors in their line of title owned the land on April 2, 1928 and had notice of the said Order of Condemnation during the time he owned the land. We find such to be the situation in this case.

We have carefully examined the testimony and exhibits in the record and find that appellees ’ title to the land here involved is traced, through mesne conveyances, back to J. L. McDonald who was the owner of the land from March 13,1922 until after 1930. The record further shows that J. L. McDonald was paid $300 by the Boone County Court on June 4, 1928, upon a claim filed by him for damage to his land. Whether McDonald collected for this particular land or for other land owned by him is immaterial since, in either event, it shows he had notice of the County' Court Order. Therefore the decree of the trial court must be, and it is hereby, reversed.

The result above reached makes it unnecessary to consider appellees’ contention the trial court should have increased the amount of the bond.

Reversed.


author: Sam Bobinson, Associate Justice.

text:
    Williams v. State.
    5135
    396 S. W. 2d 834
    Opinion delivered December 13, 1965.
    [Rehearing denied January 24, 1966.]

      Thomas L. Cashion, for appellant.

      Bruce Bennett, Attorney General, By: Clyde Calliotte, Asst. Attorney General, for appellee.
   Sam Bobinson, Associate Justice.

Appellant James Williams was convicted of the crime of murder committed in the perpetration of the crime of rape. The jury fixed the punishment at death by electrocution. On appeal appellant argues several points, all of which we have carefully examined. In addition, we have examined the entire record. There is no error.

The evidence shows that on the morning of September 24, 1964, Mrs. Maudene Deggs, 25 years of age, and the mother of three children, was abducted from her home. The next day her body was found about three and one-half miles south of her house, near a dim, seldom used logging road in the woods, about one-quarter of a mile from the main highway. She had been raped and murdered. Although the evidence is circumstantial, it proves appellant guilty beyond any reasonable doubt. In most cases of this kind the State must rely on circumstantial evidence. Crimes of this nature are not ordinarily committed in the presence of witnesses other than the victim, and of course her lips are sealed by death. Circumstantial evidence is sufficient to sustain a conviction. Osburne v. State, 181 Ark. 661, 27 S. W. 2d 783, Jefferson v. State, 196 Ark. 897, 120 S. W. 2d 327; Smith v. State, 227 Ark. 332, 299 S. W. 2d 52; Walker v. State, 239 Ark. 685, 317 S. W. 2d 823.

The evidence, which is uncontradicted, shows that Mrs. Deggs lived with hér husband and three children, about five miles south of Crossett, Arkansas. On the morning of September 24, 1964, she drove her two older children to the school bus stop. Later, about 11:30 that morning, Mrs. Emma Lee Miller, who lived about four and one-half miles from the Deggs’ home, saw a little boy walking in the road in front of her home. Upon investigation she found that the child was Mrs. Deggs’ four year old son. She took the child to the home of Mrs. W. S. Cooty, the child’s grandmother. Mrs. Miller, along with Mrs. Cooty and the child, then drove to the Deggs ’ home. Neither Mrs. Deggs nor anyone else was there. A flat iron was on the ironing board, and it was still connected to the electricity. Garments which Mrs. Deggs was apparently in the process of ironing were there. The bedroom was somewhat disarranged, and one of Mrs. Deggs’ shoes was on the floor. There was no trace of Mrs. Deggs.

The peace officers of the county and state were notified, and a general alarm’of Mrs. Deggs’ disappearance was broadcast. Many people gathered and began a wide-spre'ad search for her. The next.day her body was found about three and one-half miles southeast of her home, as heretofore indicated. Pictures were made of the body before it was disturbed and removed from the place where it was found. Upon examination of the body bv medical authorities, it was found that death was caused by a crushing of the. skull by a heavy blow with a hard object. Male spermatazoa was found in the vagina.

In the investigation for clues, it developed that at about 8:15 or 8:30 a.m. on the morning Mrs. Deggs disappeared, Mrs. Ed Phillips was driving past the Deggs’ home, and that she saw a black and white Buick automobile, 1956 model, coming out of the Deggs driveway. Mrs. Phillips expected the car to stop before entering the road, but it did not do so, but entered the road at a rather high rate of speed, turned south, and passed by Mrs. Phillips. A colored man was driving. Mr. Willie Claude Kelly and Mr. Bobby Stell, who were working on the telephone lines, also saw the black and white Buick on the road which passes by the' Deggs’ home.

The appellant, who worked nearby, owned a black and white Buick that fitted the description of the car seen coming from the Deggs’ home on the day of the murder. An officer questioned him soon after obtaining that information. At that time, a small burn was noticed on the appellant’s chest. Appellant stated that he was burned by the muffler of the chain saw he was operating in the woods, where he said he had worked on the day of the murder. About two' weeks later, after obtaining additional information to the effect that appellant did not go to work at the time and place he claimed to have worked on the day of the murder, he was again questioned. The burned black skin on his chest had peeled off, and there on his chest was a scar made by a burn from an object the size and shape of the flat iron Mrs. Deggs was using when apparently she was first attacked in her home. Moreover, there was found at the scene of the rape and murder, a shoe which matched the one found in Mrs. Deggs’ bedroom, and a wrench which the evidence 'indicates was the murder weapon. The wrench was identified as belonging to appellant. It was also later shown that it would not have been possible for the scar on appellant’s chest to have been caused by a burn from a chain saw muffler.

It is hard to imagine any set of circumstances that would more surely point to guilt than that shown by the evidence in this case. The evidence of appellant’s guilt is substantial, and is fully sufficient to sustain the verdict of guilty. In fact, it is hard to see how the jury could have arrived at any other verdict.

Appellant argues that the trial court erred in overruling his motion for a change of venue. The motion alleged that the people of Ashley County are so prejudiced against him that he could not get a fair and impartial trial in that county. This motion was supported only by the affidavits of Prewell G. Wilson and Bessie L. Taylor. There are no other supporting affidavits. Wilson and Taylor are not identified, and there is nothing to show that they are residents of Ashley County or that they were in a position to know how the people in the county felt. In support of the motion, appellant introduced evidence that a local newspaper had published some of the facts regarding the murder. But no witnesses, except the two who gave the aforementioned affidavits, stated that the defendant could not get a fair and impartial trial in the county. “The burden was on appellant to make credible proof to support his motion.” Maxwell v. State, 236 Ark. 694, 370 S. W. 2d 113.

Next, appellant argues that pictures made of the body of the victim of the rape and murder, taken at the scene of the crime before the body was removed, were inadmissible. The appellant was charged with the crime of murder in the first degree, committed in the perpetration of rape. Under this charge, it was not necessary for the State to prove premeditation, deliberation and malice, as would have been necessary if those things had been elements of the offense charged. But to sustain the charge in the felony information, it was necessary to prove the rape. The pictures in question, taken before the body of the victim was disturbed, constituted strong-evidence that the murder victim had been raped. There was no error in admitting the pictures in evidence. As stated in Wharton’s Criminal Evidence, 12th Ed., Vol. 11, at page 654: “When otherwise admissible, it is no objection that a photograph is gruesome, or likely to inflame or prejudice the jury. A photograph otherwise admissible is therefore not to be excluded even though it shows ... or the naked or decomposed body of the victim.” This court has adopted this view previously in Nicholas v. State, 182 Ark. 309, 31 S. W. 2d 527; Higdon v. State, 213 Ark. 881, 213 S. W. 2d 621; Bailey v. State, 227 Ark. 889, 302 S. W. 2d 796.

The evidence tended to show that at the time the victim was first attacked in her home, she was standing at an ironing board ironing with a hot iron (when the officers first arrived at the house to investigate the disappearance of Mrs. Deggs, the electric iron was still connected and turned on). When the appellant was arrested some two weeks after the commission of the crime, he had a scar on his chest caused by a recent burn. The skin where burned had peeled off leaving a light colored scar, which was the same size and shape of the flat iron Mrs. Deggs was using. The iron fitted the scar exactly. The officers had pictures made of the scar from the burn on the appellant’s chest; the pictures were admissible.

The admissibility of such evidence depends upon its classification as either “testimonial” or “non-testimonial.” The distinction is clearly set out in McCormick’s treatise on the law of evidence, (1954), Sec. 126: “As expounded by Wigmore and widely accepted in recent opinions, only these forms of coerced conduct constitute that ‘testimonial compulsion’ against which the privilege protects. No other compelled conduct or its products, however unlawful or inadmissible on other grounds, is within the protection of this privilege. In jurisdiction following this view, the accused without breach of this privilege may be fingerprinted and photographed, deprived of his papers and other objects in his possession, may be physically examined, may have his blood and other bodily fluids taken for tests without his consent, may be required to give a specimen of his handwriting, may be compelled to assume positions taken by the perpetrator of the crime, and many he forced to participate in a police 'line up,’ to stand np for identification, pnt on articles of clothing, or display a scar . . .”

The position that only testimonial evidence is protected as being within the scope of the privilege against self incrimination, guaranteed by the 5th Amendment to the Constitution of the United States, is substantiated by Wigmore on Evidence, Yol. 8, Sec. 2265:

“The limit of the privilege should be plain. From the general principle {% 2263, supra) it results that an inspection of the bodily features by the tribunal or by witnesses does not violate the privilege because it does not call upon the accused as a witness — i.e., upon his testimonial responsibility. That he may in such cases be required sometimes to exercise muscular action as when he is required to take off his shoes or roll up his sleeve — is immaterial, unless all bodily action were synonymous with testimonial utterance; for, as already observed (§ 2263 supra), not compulsion alone is the component idea of the privilege, but testimonial compulsion. What is obtained from the accused by such action is not testimony about his body, but his body itself . . . When the person’s body, its marks and traits, itself is in issue, there is ordinarily no other or better evidence available for the prosecutor.”

In an opinion by Mr. Justice Holmes in the case of Holt v. U. S., 218 U. S. 245, involving a similar question of admissibility, he said:

“Another objection is based upon an extravagant extension of the Fifth Amendment. A question arose as to whether a blouse belonged to the prisoner. A witness testified that the prisoner put it on and it fitted him. It is objected that he did this under the same duress that made his statements inadmissible, and that it should be excluded for the same reasons. But the prohibition of compelling a man in a criminal court to be witness against himself is a prohibition of the use of physical or moral compulsion to extort communications from him. not an exclusion of his body as evidence when it may be material.”

In the Nevada case of State v. Ah Chuey, 33 Am. Rep. 530, Judge Hawley said: “Marks made by wounds upon the person of an offender given with a weapon in the hands of an assaulted party, corresponding with marks visible upon the person of the prisoner, have always been considered as a strong criminating circumstance tending to establish the identity and guilt of the accused person.” This court.has followed this position. Mabry v. Kettering, 89 Ark. 551, 117 S. W. 746.

Affirmed.


author: Jim Johnson, Associate Justice.

text:
    Seay v. Seay.
    5-3671
    396 S. W. 2d 838
    Opinion delivered December 13, 1965.

      Guy H. Jones, for appellant.

      Felver A. Rotvell, Jr., for appellee.
   Jim Johnson, Associate Justice.

This is a contested divorce defended on the ground of a prior valid divorce between the parties.

On February 24, 1964, appellee Sylvia Seay filed a petition for divorce, division of property and support in Conway Chancery Court against appellant George Seay. Appellant on March 6, 1964, filed a motion to dismiss, alleging the parties were divorced in.Conway County on December 15,1948, this divorce is a matter of record, and the parties have not remanded. Appellee amended her complaint alleging that the divorce pleaded by appellant was set aside by a joint petition of the parties, and that the divorce is a nullity and void because the parties had resumed their marriage prior to entry of the decree. Appellant answered, renewing his motion to dismiss, denying the divorce had ever been set aside and generally denying appellee’s allegations. After taking appellant’s discovery deposition on June 20, 1964, appellee obtained leave to amend her complaint. The unverified amendment alleged that the 1948 decree should be set aside for fraud of appellant in that when the parties were reconciled appellant represented to appellee that the then-pending divorce would be or had been dismissed, that the parties had lived together as husband and wife until February, 1964, and appellee did not learn of the 1948 decree until appellant’s motion to dismiss was filed. The amendment further alleged that appellant was guilty of fraud in the procurement of the decree because it was obtained without disclosing the fact of reconciliation, at a time when the parties had resumed marital relations, and the decree was taken without notice to appellee.

The cause was heard by the court on November 3, 1964. In its final decree of January 4, 1965, the court set aside the 1948 decree for fraud of appellant, granted appellee a divorce for cruelty and general indignities, awarded her one-third of appellant’s personal property and one-third for life of his real property, provided for sale of the real and personal property by the clerk of court, and ordered appellant to pay costs and attorneys fees.

For reversal of the adverse decree, appellant first urges that the 1948 decree was valid and the trial court therefore erred in overruling his motion to dismiss.

The facts relating to the prior divorce are sharply disputed. The great prepondernaace of the evidence, however, with little to the contrary, is that appellant lived with appellee as husband and wife for about sixteen years after the 1948 divorce decree was obtained by appellant. The trial court made the following findings of fact:

1. Appellant instituted the prior action.

2. Appellee signed a waiver of appearance.

3. Neither party appeared in court and the decree was rendered on ex parte depositions prepared in the office of appellant’s then attorney.

4. There is only appellant’s testimony that appellee ever received a copy of the decree.

5. Appellant and appellee’s reconciliation, prior to the entry of the decree, was on appellant’s representation that the divorce pending would be dismissed.

6. The original court file contains an unsigned order setting aside the decree, dated three days after the decree, although there is no docket entry indicating what action was taken.

7. A child and a step-child reared by the parties believed that the parties were married.

8. The parties lived together under the same roof as husband and wife for a number of years and neither remarried.

9. By appellant’s own admission, the parties had marital relations as husband and wife during this period.

10. The parties had business transactions as husband and wife. In 1957 the parties mortgaged property and signed the mortgage and note as husband and wife.

From these findings the chancellor concluded that the 1948 decree was secret and based upon fraud. While it is difficult to accept the fact that appellee could remain unaware for sixteen years of a divorce decree rendered against her, we cannot say on trial de novo on the record as abstracted that the court’s decree is against the weight of the evidence.

This case seems to fall squarely within the rule succinctly stated in 17 Am. Jur., Divorce and Separation, § 500, p. 598:

“A fraud which occurs with surprising frequency in the situation where one spouse brings suit for divorce and then becomes or pretends to become reconciled with the defendant and states that he has dismissed or will dismiss the action, so that the defendant is induced to refrain from giving further attention to the matter. Later the plaintiff secretly takes a decree of divorce by default. In such cases the court will vacate the decree because of plaintiff’s fraud, if the defendant applies for relief within due time after discovering the fraud.”

See also 130 A. L. R. 2d 1332.

Appellant next contends that appellee is barred by laches and estoppel from attacking the prior decree. Appellant’s motion to dismiss, asserting the prior decree, was filed March 6, 1964. On April 2, 1964, appellee amended her complaint, attacking the validity of the prior decree. Having upheld the trial court’s ruling that the prior decree was unknown to appellee until she learned of the motion to dismiss, it can hardly be said that appellee failed to act promptly in attacking the fraud within due time after discovering it. Fair v. Fair, 232 Ark. 800, 341 S. W. 2d 22.

Appellant’s final point for reversal is that appellee’s petition to vacate the decree was not verified, which was a fatal jurisdictional defect. It is undisputed that appellee’s pleading was not verified. All of the allegations of the pleading were supported by sworn testimony at trial. Objection to the lack of verification was not made at trial, and under the circumstances cannot be raised for the first time on appeal. Pinkert v. Reagan, 219 Ark. 822, 244 S. W. 2d 961.

Affirmed.


author: Frank Holt, Associate Justice.

text:
    Vandergriff v. State.
    5-3663
    396 S. W. 2d 818
    Opinion delivered December 13, 1965.

      Harry G. Robinson, James L. Sloan, for appellant.

      Bruce Bennett, Attorney General, By: Richard B. Adkisson, Chief Asst. Atty. Gen., and Fletcher Jackson, Asst. Atty. General, for appellee.
   Frank Holt, Associate Justice.

Appellant brings this appeal from a civil proceeding in- circuit court in which he was held in contempt and his premises permanently padlocked pursuant to the provisions of Ark. Stat. Ann. <§ 34-101 et seq (Repl. 1962).

The appellee, by the prosecuting attorney, filed a verified petition against the appellant on March 2, 1964 in the First Division of Pulaski Circuit Court alleging that appellant was operating an establishment at 110 Main Street, Little Rock, Arkansas where gaming was being carried on and praying for a temporary and permanent injunction to abate the alleged nuisance. On that day the court granted the temporary order. Upon a hearing before the court on March 27, 1964 the court found that the establishment, consisting of three floors occupied by the appellant, was being operated in violation of Ark. Stat. Ann. § 34-101 in that gaming was being carried on, and that its operation constituted a public nuisance requiring abatement. The court permanently enjoined appellant from operating the establishment contrary to law, removed the temporary padlock, and authorized him to operate any lawful business. See Ark. Stat. Ann. § 34-106-7; Futrell v. State, 207 Ark. 452, 181 S. W. 2d 680; B & M Land Co. v. State, 232 Ark. 815, 340 S. W. 2d 395.

On January 12, 1965 the prosecuting attorney again filed a verified petition against appellant in the same court, reciting the foregoing facts and alleging that appellant had violated the order of the court by operating his establishment as a public nuisance in that gaming existed in violation of the law. On that day the court granted the appellee’s petition for a temporary injunction and ordered appellant to appear on January 21, 1965 to show cause why he should not be adjudged in contempt for violation of the court’s order rendered in March, 1964. On the date scheduled the court conducted a hearing and found appellant had operated his establishment contrary to the provisions of Ark. Stat. Ann. § 34-101, that such operation constituted a public nuisance, and that appellant had violated the court’s permanent injunction. The court then ordered that appellant’s premises be padlocked for one year, held appellant in contempt, sentenced him to sixty days in jail and fined him $50.00. See Ark. Stat. Ann. § 34-107. From that judgment there is this appeal.

Appellant first contends: ‘ ‘ The First Division Circuit Court was devoid of jurisdiction, so the conviction of contempt was and is a nullity.” We find no merit in this contention. Ark. Stat. Ann. § 34-102 expressly confers concurrent jurisdiction upon the chancery and circuit courts of this state to abate public nuisances such as alleged in the case at bar. Further, the proceedings, whether in a chancery or circuit court, must be conducted in accordance with chancery court procedure. Ark. Stat. Ann. § 34-105; Siesta Cafe v. State, 231 Ark. 1004, 333 S. W. 2d 722; Lawson v. State, 226 Ark. 170, 288 S. W. 2d 585. The procedings in this type of action, therefore, are civil in nature.

The appellant argues that since this is a civil proceeding, the First Division Circuit Court of Pulaski County is without jurisdiction and cites to us Act 3 of 1961 [First Extraordinary Session (Ark. Stat. Ann. §§ 22-326.4 — 22-326.6)]. This Act relates, inter alia, to the assignment of cases in the Pulaski Circuit Courts. Section 3 of the Act [Ark. Stat. Ann. %' 22-326.6 (Bepl. 1962)] specifically provides that:"* * * It shall not be reversible error that any civil case is tried in a division to which it has not been specially assigned, provided, that all criminal cases shall be tried in the first division.” Thus, this statute requires criminal cases to be tried in the first division, but does not restrict the first division from also trying other cases. Also, see Blackstad Mercantile Co. v. Bond, 104 Ark. 45, 148 S. W. 262.

Appellant next contends: ‘ ‘ The statute under which the State proceeded is unconstitutional on its face and as applied” since a temporary injunction was granted in each instance without notice. The statute only requires notice with reference to a permanent.injunction. We have recognized that this statute [Act 109 of 1915, Ark. Stat. Ann. § 34-101 et seq], which provides for the abatement of public nuisances by injunction, is constitutional. Hickey v. State, 123 Ark. 180, 184 S. W. 459; Marvel v. State, 127 Ark. 595, 193 S. W. 259; Adams v. State, 153 Ark. 202, 240 S. W. 5. The granting of a temporary injunction without notice addresses itself to judicial discretion in granting or withholding the relief. Thus, the requirement of due process is satisfied in a case of such brief restraint. 28 Am. Jur., Injunctions, § 246 and 152 A. L. B. 168. We are of the view that the question, however, becomes moot in the case at bar since following-each temporary injunction there was a full-scale hearing-preceding the issuance of the permanent injunctions. 43 C. J. S., Injunctions, § 180(d). An objection for lack of proper notice cannot be raised after a hearing on the merits in which the injunction is made permanent.

The appellant next asserts that the court erred in refusing to suppress the evidence because the affidavit and the search warrant were insufficient as a matter of law and, therefore, invalid. The affidavit reads in part:

“I, G. F. Weeks, do solemnly swear that gaming is being-carried on and gaming equipment is concealed in the premises occupied by Bevis Recreational Parlor at 110 and 110% Main in the State and County aforesaid, and pray a warrant from said Court to search said premises.”.

Appellant argues that the place to be searched is not sufficiently identified in the affidavit since it describes the premises to be searched as the “Bevis Recreational Parlor at 110 and 110% Main in the State and County aforesaid.” Therefore, it could have referred to some city other than Little Rock. We do not agree with this assertion. The caption of the affidavit reads: “In the Municipal Court of L. R. Arkansas,” and “State of Arkansas, County of Pulaski.” Certainly this indicated sufficiently where the establishment was located. 79 C. J. S., Searches and Seizures, § 75; see, also, United States v. Romano, 203 F. Supp. (Conn. 1962).

The search warrant, based upon this affidavit, describes the place to be searched as “110 and 110% Main in the City of Little Rock, occupied by Bevis Recreational Parlor” and describes the things to be seized as “prohibited gambling devices.” The description of the premises to be searched and the things to be seized was sufficient to enable the officer to locate the premises and identify the concealed articles-.

The appellant next asserts that the court committed prejudicial error in the admission of certain evidence offered by the appellee. As we have stated, the rules of chancery procedure are applicable in the ease at bar whether the proceeding is being conducted in chancery or circuit court. Ark. Stat. Ann. § 34-105; Siesta Cafe v. State, supra; Lawson v. State, supra. Therefore, this anneal is reviewed de novo and we consider only the competent testimony regardless of the ruling of the trial court on the challenged evidence. Walsh v. Fairhead, 215 Ark. 218, 219 S. W. 2d 941. Here we find no incompetent evidence was heard.

In his last point appellant questions the sufficiency of the evidence to convict for contempt, asserting that the “proceedings were in criminal contempt” requiring proof of guilt beyond any reasonable doubt. We do not agree with this contention. The G-eneral Assembly is vested with the authority to regulate by law the punishment of contempt for disobedience of process. Article 7, § 26, Arkansas Constitution. Accordingly, our Legislature has regulated the punishment of contempt for disobedience of a temporary or permanent injunction in a proceeding such as the case at bar. Ark. Stat. Ann. § 34-107. Thus, the test is whether the preponderance of the evidence supports the finding of the trial court since the rules of chancery procedure aré applicable. Alston v. State, 216 Ark. 604, 226 S. W. 2d 988; Brown v. State, 206 Ark. 135, 173 S. W. 2d 1016; Lawson v. State, supra.

Further, we think the trial court should be sustained even if appellant were adjudged guilty of criminal contempt. We review the evidence in criminal contempt cases as in ordinary criminal cases. Therefore, we affirm if there is any substantial evidence to support the trial court’s order. Blackard v. State, 217 Ark. 661, 232 S. W. 2d 977; Songer v. State, 236 Ark. 20, 364 S. W. 2d 155.

In the case at bar the appellant was present on his premises when they were searched. The arresting officers found an individual on the otherwise unoccupied second floor of appellant’s establishment sitting alone inside a walk-in steel vault. The officers had to have it opened by a locksmith using a drill when appellant denied that he knew the combination or how to get into the vault. After thus opening the vault, the officers used a key in appellant’s possession to open a locked compartment within the vault. On the table in front of the individual inside the vault were telephones, scratch sheets, betting slips, tally sheets, and football cards. Officer Weeks testified that he accepted calls over these telephones from people placing bets on horses running at race tracks in Louisiana and Florida. There was evidence that the telephones found in the vault were listed in the directory in the name of Jo’s Liquor Store and Pedigo Cleaners at 110% Main Street. There was no cleaning establishment on the premises. The telephones were not “normal” installations. There is no need to detail the other evidence. It is clear that the evidence was amply sufficient to sustain the court’s findings that appellant was operating his establishment in such a manner as to constitute a public nuisance and in violation of the court’s permanent injunction.

Affirmed.

Robinson, J., not participating.