author: E. J. Butler, Special Associate Justice. Ed. F. McFaddin, Associate Justice Dale Price, Special Justice

text:
    Adams v. Sims.
    5-3378
    385 S. W. 2d 13
    Opinion delivered November 23, 1964.
    [Rehearing denied January 11, 1965.]

      Frank Lady, for appellant.

      Henry S. Wilson, for appellee.
   E. J. Butler, Special Associate Justice.

This is a suit instituted by certain citizens and taxpayers of the City of Trumann, Arkansas, in their individual capacities and as members for and in behalf of the Trumann Anti-Urban Renewal Association, Appellants, against the City of Trumann, Arkansas, its Mayor, Members of its City Council, Members of the Trumann Urban Renewal Agency, and its Executive Director. Appellees, seeking an injunction to permanently restrain and enjoin the Appellees from taking any action of any type in regard to the proposed Speedway Renewal Project ARK R-33, for the City of Trumann, and requesting the Court to declare the proposed plan and'any and all documents issued or made in connection therewith by or in the name of the City of Trumann, its Mayor and Urban Renewal Agency to be null and void.

The Decree of the lower Court upheld the validity of all proceedings of Appellees pertaining to the Trumann Urban Renewal Agency, Plan and Feasibility of Relocation for SpeedAvay Urban Renewal Project ARK R-33, except the “Cooperation Agreement” between the City of Trumann, Arkansas, and the Urban Renewal Agency of the City of Trumann, Arkansas, executed on April 18, 1963, AAdiich the Court held to be void and unenforceable. The Appellants appealed from the holding of the lower Court and assigned eleven errors as grounds fori reversal. The Appellees did not take a cross-appeal from the holding of the loAver Court that the ‘ ‘ Cooperatiou Agreement” of April 18, 1963 was void and unenforceable. Therefore, the question of the validity of the “Cooperation Agreement” will not be considered by this Court.

Even though the Appellants in their brief assigned eleven errors alleged to have been committed by the lower Courts as grounds for reversal, it is apparent that they all boil down to three principal issues, namely: (1) the validity of the proceedings of the City Council of Trumann, Arkansas in setting up the Urban Renewal Agency, authorizing it to transact business and exercise powers, and in approving the Urban Renewal Plan and feasibility of relocation for Speedway Urban Renewal Project ARK R-33, in the City of Trumann; (2) the constitutionality of the Arkansas Urban Renewal Statutes under which the Urban Renewal Agency was created in the City of Trumann and under which the plan for Speedway Urban Renewal Project ARK R-33 was approved; and, (3) the assessing of the costs of this case.

The City Council of Trumann, Arkansas, in January of 1962, passed a resolution activating an “Urban Renewal Agency” for said'municipality. Arkansas Statutes, 1947 Ann. Section 19-3063.8. The Commissioners were appointed pursuant to statutes and the Urban Renewal Agency began functioning. Arkansas Statutes, 1947 Ann., Section 19-3063.9. For the next two years this Urban Renewal Program received considerable publicity in the City of Trumann through news articles and legal notices published in “The Trumann Democrat,” and other news media having substantial circulation in the City. On December 27, 1962, the City Council of Trumann adopted a resolution approving the Urban Renewal Plan and feasibility of relocation for Speedway Urban Renewal Project ARK R-33. Arkansas Statutes, 1947 Ann., Section 19-3063.11.

The Appellants assign as error the admission by the lower Court as evidence in the case Appellants ’ Exhibits No. 1, 2, 3, 4, 6, 7, 8, 9, 10 and 11 on the grounds that they were certified copies of documents not recorded or on file in the office of the City Clerk, and that their admittance violated the Best Evidence Rule. The testimony of John H. Meeks, City Clerk, does not substantiate this contention, and it is clear that copies of resolutions, ordinances and by-laws of municipal corporations certified by its clerk may be received in evidence with as much effect as the originals. Arkansas Statutes, 1947 Ann., Sections 19-2405 and 19-2404. While the Court does not contenance nor encourage carelessness on the part of city officials or the keeping of inadequate city records, the ordinances, resolutions or acts of municipal councils will not be invalidated if it appears from the record that the proceedings were regular and in substantial compliance with the law, and presumptions will be indulged in favor of the validity of the corporate action. McQuillin, Municipal Corporations, Yol. 5, 3rd Ed., Sections 14.01 and 14.03. The weight of authority recognizes that most corporate acts can be proven as well by parole evidence as by the introduction of written instruments. The fact that the records of a city failed to disclose actions by its city council is not conclusive that the council did not take same. Parole evidence is permissible to establish the real facts of corporate acts in the absence of records, or where the record which it kept is so meager where the particular transaction, act or vote is not disclosed. Smith v. Ford, 203 Ark. 265, 157 S. W. 2d 199; McGee v. Mainard, 208 Ark. 188 S. W. 2d 635; Handley v. Stutz, 139 U. S. 422, 11 S. Ct. 532, 35 L. Ed. 232; Crebs v. City of Lebanon, 98 Fed. 459; Traction Company v. Canal Company, 1 Pa. Sup. Ct. 409; McQuillin, Municipal Corporations, Vol. 5, 3rd Ed., Sections 14.08 and 14.09.

. The contention of the Appellants that the actions of the Trumann City Council and Special Council Meetings were void in that the requirements under Ordinance No. 6 of the City of Trumann were not met in calling the Special Meetings, is not well taken. It appears from the record that in each instance" there was proof that all the Council Members either had notice or had executed waivers of notice and consent to the Special Meetings. It has been held that the proceedings of special meetings of city councils are valid and legal if all the members had notice and that there was sufficient number present to transact business. City of Mena v. Tomlin Bros., 118 Ark. 166, 175 S. W. 1187; City of Greeley v. Hammon, 17 Colo. 30, 28 Pac. 460.

The Appellants contend that the resolution entitled “The Urban Renewal Plan for Speedway Urban Renewal Project ARK R-33, Trumann, Arkansas” which is identified in the record as Appellants’ Exhibit No. 1, and which was adopted on December 27, 1962, is void because it was not authenticated and published in -accordance with provisions of Arkansas Statutes, Section 19-2404, and was not distinctly read on three different days, and does not contain a proper title as required by the provisions of Arkansas Statutes, Section 19-2402.

Act No. 40 of the General Assembly of Arkansas for the year 1961, Sections 1 and 2 (Arkansas Statutes, 1947 Ann., Sections 19-3063.7 to 19-3063.11, inclusive.) provide that the actions of a city' council in activating an “Urban Renewal Agency” appointing commissioners and adopting plans for Urban Renewal Projects can be accomplished by resolutions. Therefore, it was not necessary that the resolutions passed by the City Council of Trumann on January 10, 1962, activating the Urban Renewal Agency and on December 27, 1962, approving the Urban Renewal Plan be authenticated and published, as in this instance Arkansas Statutes, Section 19-2404 is not applicable to resolutions, but only applies to by-laws of ordinances. The instant case is distinguished from the case of McClellan, Mayor v. Stuckey, et al., 196 Ark. 816, 120 S. W. 2d 155, since the resolutions here involved are not of a general and permanent nature. Arkansas Statutes, Section 19-2402, which provides for the reading of ordinances on three separate days is not applicable in this instance because it specifically states that it applies only to by-laws and ordinances of a general or permanent nature and it does not specify that resolutions be specifically and distinctly read on three different days. Since the Urban Renewal Act only requires resolutions, this Section of the Statutes would not apply to the resolution passed by the City Council of Trumann on December 27, 1962, entitled “The Urban Renewal Plan for Speedway Urban Renewal Project ARK R-33,” because said resolution was not an ordinance and could not be construed under previous decisions of this Court to be of a general or permanent nature.

In the case of City of El Dorado v. Citizens’ Light & Power Co., 158 Ark. 550, 250 S. W. 882, this Court said, referring to what is now Section 19-2402, Arkansas Statutes, 1947:

“. . . The test as to the requirement of the statute is whether or not the ordinance is one of a ‘general or permanent nature,’ and unless it falls within that class the statute requiring a reading on different days or a suspension of the rule has no application. The fact that the franchise created by the ordinance runs for a long period of time does not make it general or permanent. Of course, all ordinances enacted by city councils are not permanent in- the sense that they cannot be repealed ; but those which endure until repealed are deemed to be permanent, and all others are not permanent. Ordinances of a general nature are those which are general and uniform in their application.”

It is clear from the record that the Trumann Urban Renewal Plan for Speedway Urban Renewal Project ARK R-33 is neither general or permanent. The Plan, invoked by the Trumann City Council on December 27,. 1962 does not encompass the whole City of Trumann, and, therefore, is not general, and the said-Plan will be effective by the terms of the Resolution only for a term of twenty years, and, therefore, is not permanent. It is also apparent that the adoption of the Speedway Urban Renewal Project by resolution of the City Council of Trumann did not purport in any way to adopt a zoning plan.

Arkansas Statutes, Section 19-2404, refers only to by-laws or ordinances of a general and permanent nature and the same reasoning and interpretation applies to the resolutions involved in this litigation as has been stated hereinbefore pertaining to Arkansas Statutes, Section 19-2402. Under the facts in this case and the statutes controlling, it was not necessary for the City Council of Trumann to read the resolutions involved on three separate days, nor was it necessary that the said resolutions be authenticated and published.

The contention of the Appellants that Plaintiffs’ Exhibit No. 1, entitled “The Urban Renewal Plan for Speedway Urban Renewal Project ARK R-33” is void in that it does not contain a proper title required by provisions of Arkansas Statutes, Section 19-2402, must be rejected, as it is apparent that one subject is clearly expressed in its title. This Court is compelled to conclude that the Urban Renewal Plan for Speedway Urban Renewal Project ARK' R-33, Trumann, Arkansas, was adopted by the City Council of Trumann in compliance with the provisions of Act 212 of the Acts of Arkansas for 1945 as amended by Act 189 of the Acts of Arkansas for the year 1957, and Act 40 of the Acts of Arkansas for the year 1961. The findings of the Chancellor in the lower Court are supported by the weight of the evidence which is contained in the record on appeal.

The. Court cannot accept the Appellants contentions that the Urban Renewal Agency of Trumann, Arkansas and the Urban Renewal Plan for Speedway Urban Renewal Project ARK R-33, Trumann, Arkansas, is unconstitutional because the agency and the plan violates Sections 13 and 22 of Article II of the Arkansas State Constitution and Amendment No. 14 of the Constitution of the United States. The constitutionality of similar Acts of the Arkansas Legislature creating Urban Renewal and Housing Authorities in the State of Arkansas and providing procedures for operation have already been decided, and this Court has held same to be constitutional. Hogue v. Housing Authority of North Little Rock, 201 Ark. 263, 144 S. W. 2d 49.

In the case of Kerr v. East Central Arkansas Regional Housing Authority, 208 Ark. 625, 187 S. W. 2d 189, this Court stated:

“An act must be held valid, unless something in Constitution restrains Legislature from saying that designated course of conduct or policy is for public welfare or thing authorized by act is so demonstrably wrong that reasonable people would not believe it to be legislative intent. ’ ’

In the case of Rowe v. Housing Authority of the City of Little Rock, 220 Ark. 698, 249 S. W. 2d 551, this Court upheld the constitutionality of Act 212 of the General Assembly of Arkansas for the year 1945, commonly known as the “Urban Redevelopment Law” or the “Blighted Area Law.” The provisions of Act No. 189 of the Acts of 1957, and of Act No. 40 of the Acts of 1961, amending Act 212 of 1945 (the same being contained in Arkansas Statutes 1947 Annotated, Sections 19-3063.1 to 19-3063.11) do not violate the constitutional provisions relied on by the Appellants in this case.

It should not be overlooked that one provision of the Trumann Urban Renewal Plan reads as follows:

“C 2 c. It is specifically noted that the adoption of this Urban Renewal Plan does not constitute an adoption of the proposed zoning plan; but shows the intent of the City Council to consider its adoption through the regular procedures prescribed by the Arkansas law on city planning and is herein included for informational purposes.”

If the Urban Renewal Agency cannot reach an agreement on price with the landowners in the project area, then the procedures under the eminent domain statutes must be invoked and the land and property cannot be taken without just compensation.

In the case of Watson v. Harris, 214 Ark. 349, 216 S. W. 2d 784, this Court held that it was the actual taking or damaging of lands for public use rather than any plan or purpose to take or damage same that under State and Federal Constitutions must be compensated.

. This Court stated in the case of Rowe v. Housing Authority of the City of Little Rock, supra:

“To cite, much less discuss, all of the cases involving Housing Authority legislation would consume pages. Most of these cases are collected in the Annotations in 130 A.L.R. 1069 and 172 A.L.R. 966. See also Redfern v. Board of Commissioners of Jersey City, 137 N. J. L. 356, 59 A. 2d 641; In the Matter of Slum Clearance in the City of Detroit, 331 Mich. 714, 50 N. W. 2d 340; and Opinion to the Governor, 76 R. I. 249, 69 A. 2d 531. Regardless of the wisdom of the legislation, we cannot say that the Act 212 is unconstitutional as regards the four grounds on which it is here assailed.”

In this case, regardless of the wisdom of the legislation, we cannot say that Act 189 of 1957 and Act 40 of 1961 are unconstitutional as regards the three grounds on which they are here assailed. Nor do we find in the facts of the case any Acts on the part of the Appellees beyond the purview of these Statutes that are in violation of the constitutional grounds raised by the Appellants.

The finding and order of the Chancellor that the respective parties hereto pay their own costs incurred in connection with this litigation should be sustained.

The Decree is affirmed.

Harris, C. J., and George Rose Smith, J., disqualified and not participating.

McFaddin & Johnson, J J., and Dale Price, Special J., dissent.

Ed. F. McFaddin, Associate Justice

(dissenting). The Majority Opinion clearly states the three points, and my dissent goes only to the first of these. I am convinced that the. proceedings of the City Council of Trumann of December 27, 1962, and all subsequent proceedings, are invalid. The City Council should be required to publish the resolution of that date and then have subsequent proceedings. It must be borne in mind that on December 27, 1962, the City Council of Trnmann by resolution approved the Urban Renewal Plan, but the resolution was never published, as required by law.

The Majority Opinion says that the City Council’s action was only a “resolution” and therefore .did not have to be published; but my answer to that statement is the decision of this Court in McClellan v. Stuckey, 196 Ark. 816, 120 S. W. 2d 155. In that case, the City Council (of Lepanto) adopted one “resolution” authorizing and another approving a special census, which had the effect of changing Lepanto from a town to a city of the second class. Neither of the resolutions was ever published; and this Court held that the failure to publish the resolutions was fatal to the proceedings. Mr. Justice McHaney, speaking for a unanimous Court, said:

“Two resolutions of the city council were passed, one on October 14, acting upon the petition of ten or more residents, in which enumerators were appointed to take a census, and the other was passed on November 26, 1935, as the result of which the town was advanced to a city of the second class. Section 9559 of Pope’s Digest provides that all by-laws, or ordinances, of a general or permanent nature and those imposing any fine, penalty or forfeiture shall be published in some newspaper of general circulation in the corporation . . . The trial court held that the resolutions above mentioned, of October 14 and November 26, were within the purview of that section of the Digest and should have been published. "We think the court was correct in so holding. It is immaterial that these enactments of the city council were designated as resolutions. The effect was to provide for a new and different form of government for the municipality which did affect all of the people thereof, and there could have been no good reason why they should not be published, unless to keep the people in ignorance of what the mayor and council were undertaking to do.”

The § 9559 of Pope’s Digest mentioned-in the above quoted opinion as requiring publication, said: “. and all by-laws or ordinances of a general or permanent nature, and of those imposing any fine, penalty or forfeiture, shall be published in some newspaper of general circulation in the corporation ...” The above quoted language was held to cover a resolution on a special census in Lepanto. The same identical language is found in Ark. Stat. Ann. § 19-2404 (Repl. 1956) as the governing law today regarding publication; and if the quoted language applied to a resolution as was held in McClellan v. Stuckey, it would certainly apply to a resolution like the one here involved. The holding in McClellan v. Stuckey is ruling in the case at bar. The City Council of Trumann passed a resolution which set up the Urban Renewal Authority, which for a long period of years has the power of eminent domain (Ark. Stat. Ann. § 19-3015 (Repl. 1956) and can take in fee and forever the property of citizens. Such is of a rather permanent nature!

I cannot distinguish the McClellan-Stuckey case from the one at bar; and therefore I am compelled to dissent on this one point. Why not publish the resolution o'f the City Council in a newspaper, as provided by law, and let people generally know then and there what was proposed to be done in the community and what were the conditions the federal government would impose on those accepting federal money? .The spotlight of publicity is required by law, and this Court should do nothing to let it be avoided.

For the reasons herein stated, I respectfully dissent.

Dale Price, Special Justice

(dissenting). I respectfully dissent from the holding of the majority in this case, and I concur in the dissenting opinion of Justice McFaddin.

The majority has passed upon the power of the Legislature to delegate to an agency certain powers which it may exercise, including the power of eminent domain. While I find no fault with the citations and pronouncements made by the majority in that regard, they have remained silent upon the constitutional question posed by the appellant.

Appellant maintained that Speedway Urban Renewal Project was unconstitutional in that it applied to the entire 47.91 acres in the tract. Yet only 27.52 acres were to be acquired by the Agency. The majority opinion infers that Section C 2 c of the plan quoted in the opinion does not make the proposed zoning provisions applicable and therefore places no new burdens or restrictions upon the landowners whose lands • are not being condemned. The zoning plan referred to consists of only one map, which is designated as URP4 and entitled “Proposed Zoning Plan.” In addition to the zoning plan there are thirty-two pages of strict controls affecting the entire tract, whether or not it .be taken by the agency.

Article II, Section 22 of the Arkansas Constitution provides:

“The right of property is before and higher than any eonsttiutional sanction; and private property shall not be taken, appropriated, or damaged for public use without just compensation therefor.”

This Court has held in Shellnut v. Arkansas State Game and Fish Commission, 22 Ark. 25, 258 S. W. 2d 570, in dealing with a question similar in principle to the present case, that:

“Even though Constitutional Amendment No. 35 gives broad powers to the Commission, nevertheless, the Commission is subservient to, and bound by, Art. 2, Sec. 22 of the Constitution, which reads:
“* * * private property shall not be taken, appropriated. or damages for public use, without just compensation therefor. ”

It is not necessary that the property should be completely taken in order to bring the case within the protection of this Constitutional guaranty. It is only necessary that there be such serious interruption of the common and necessary use of the property as to interfere with the rights of the owner. See Pumpelly v. Green Bay & Mississippi Canal Co., 13 Wall. 166, 80 U. S. 166, 20 L. Ed. 557.

(2) The effect of the Commission’s “Special Regulation” of 1950 was to seriously restrict the appellants’ use of their lands, and was, therefore, violative of the quoted Constitutional provision.”

Regardless of whether the improper power to be exercised be called a “regulation” as in the Shelhwt case, or a “plan” as in the instant case, the effect is the same, and it .constitutes an appropriation or taking of property without just compensation.

The landowners within the project whose property is not being condemned and paid for by the agency must still bear with and comply with the requirements of the agency. The majority opinion cites the opinion of Rowe v. Rousing Authority of the City of Little Rock, supra, yet it is distinguishable from the instant case in that THE ENTIRE ten-acre tract was acquired by the agency by eminent domain proceedings and just compensation was paid to ALL the affected landowners. I would declare the ordinance adopting the plan unconstitutional.

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

       As stated in the Majority Opinion the first point is: “The validity of the proceeding's of the City Council of Trumann,. Arkansas, in setting up the Urban Renewal Agency, authorizing it to transact business and exercise powers, and in approving the Urban Renewal Plan and feasibility of relocation for Speedway Urban Renewal Project ARK R-33, in the City of Trumann; . . .”


source: Caselaw Access Project

author: Carleton Harris, Chief Justice.

license: Public Domain

text:
    Miller v. F. W. Woolworth Co.
    5-3392
    384 S. W. 2d 947
    Opinion delivered November 30, 1964.
    [Rehearing denied January 11, 1965.]

      G. E. Snuggs, for appellant.

      Shackleford S Shackleford, for appellee.
   Carleton Harris, Chief Justice.

Appellant, Mrs. G-oldie Miller, instituted suit against F. W. Woolworth Company, appellee herein, seeking damages for physical injuries, alleged to have been sustained when she, while a customer in the Woolworth Store, suffered a fall. Appellee answered, denying liability, and' the case proceeded to trial. At the conclusion of appellant’s testimony, Woolworth moved for a directed verdict, which motion was denied. Appellee then placed several witnesses on the stand, and again moved for a directed verdict at the conclusion of all the evidence. The motion was again denied, and the case was given to the jury. A verdict was returned for the appellee, and from the judgment so entered, appellant brings this appeal.

According to Mrs. Miller’s testimony, she was shopping in the Woolworth Store on October 6, 1962, at about 4:20 P.M. After leaving some purchases at the checking counter, she went to the back of the store to select some other articles that were on sale. While returning to the counter, she fell to the floor injuring herself. In describing the accident, Mrs. Miller said:

“Well, after I picked up the articles I wanted I started back to the check stand.with them and for some reason my foot just went sliding like you do and I wanted to grab this counter, thinking 1 could steady myself, and I realized they’ve got these little old glass things .sitting up on them. You know it’s a little extension, I suppose to keep children from reaching up and meddling, and when I grabbed them I could feel it sort of give under my hands 'and I turned loose quickly, because I felt like the glass would break in my hands. Of course, when I turned loose I just tumbled and sat down and fell down on this side.”

She stated that she could see a “long sort of shiny, skiddy-looking place;” that it did not appear to be “new;” that it wasn’t wet. She testified that she did not get any dirt on her clothes, but her hands were gritty and dirty “like they would be, I guess, in a public place.” This was all the evidence offered by appellant relative to how the fall occurred.

William E. Ball, Pauline Armer, James Richmond, and Mrs. Floy Carolock, employees of the company, and Billy Joe Campbell, a patrolman with the El Dorado Police Department, testified on behalf of appellee. Mr. Ball stated that he examined the floor where Mrs. Miller had fallen, and saw no evidence of a hazardous condition; that the floor had just been swept, and was clean and dry. James Richmond, the janitor, testified that he completed sweeping the store about 4:15, including the aisle where appellant’s fall occurred. The witness stated that he used a push broom, made of cloth, and treated with an oil; that he saw nothing on the floor that appeared to be slick or dangerous. Mrs. Armer testified thát the sweeping of the floor had been completed at the time of the alleged inury. Mrs. Carelock, a clerk, stated that she went to the spot where Mrs. Miller had fallen, and examined the floor closely, but could find nothing that would occasion a fall. She testified that the floor was clean and dry, and that she observed no substance of any kind, nor did she see any skid marks. Mr. Campbell, the patrolman, stated that he was in the store at the time of the fall, and that he helped pick Mrs. Miller up off the floor. He said the floor was clean and dry, and that he did not see anything “slick,” nor did he see a streak or skid mark. In fact, on cross-examination, he was asked, “Are you telling the jury that Mrs. Miller just fell down on the floor and hurt herself, no cause at all? Is that what you’re telling the jury?” Mr. Campbell replied, “Yes, Sir.” This completed the testimony, as it related to .the accident.

Appellant first states:

“The ruling of the court on defendant’s motion for directed verdict in its favor, made at the conclusion of plaintiff’s testimony in chief, being a question of law and not of fact, settled the issue of ‘presumption of negligence’ on the prima facie showing made by plaintiff’s testimony. ’ ’

In. 38 Am. Jr., Section 307, Page 1004, we find:

“No presumption of negligence on the part of a proprietor of a shop or store arises from the mere fact that a customer * * * sustains a fall while in a store, the doctrine of res ipsa loquitur not being applicable in such a case.”

In Deason v. Boston Store Dry Goods Company, 226 Ark. 667, 292 S. W. 2d 261, quoting from an earlier case, this court said:

“ ‘It seems to be uniformly held in cases of this character that where a customer falls as a result of slipping upon some foreign object or” substance, and there is no substantial proof showing that the store owner knew of its presence, or in the exercise of ordinary care should have known of its presence, there can be no recovery. In other words, it is necessary to show by substantial testimony the length of time the object had been on the floor or that it got there through the negligence of the defendant or its employees. Negligence is never presumed, but must be proved by the party alleging it. ’ ”

We find no merit in this contention.

The next argument for reversal is somewhat unique. Quoting from appellant’s brief:

“The ruling of the court on defendant’s motion for directed verdict in its favor, at the conclusion of all of the testimony adduced in the trial, being a question of law and not of fact, settled the issue of the sufficiency of defendant’s testimony to overturn the prima facie case of negligence made by plaintiffs’ leaving for the consideration of the jury only the 'fact issue of quantum of recovery.”

Appellant’s argument is erroneous. The trial court’s refusal to direct a verdict for appellee did not have the effect of establishing negligence on the part of the company ; the ruling only meant that, in viewing the evidence in the light most favorable to the party against whom the motion was directed (appellant), the court' concluded there was sufficient evidence to make a jury question. See Pierce v. Stirling, 225 Ark. 108, 279 S. W. 2d 840.

In Volume 88, C.J.S., Section 264 (b), Page 722, we find: .

“Where a motion to direct verdict is overruled, the trial continues as if it had not been made; no judgment is thereupon rendered against the adverse party nor may the court, because it has overruled the motion, thereupon direct a verdict for the adverse party on the ground that the motion admitted the truth of his evidence. * * * A refusal of the motion means only that there was sufficient evidence to prevent a direction, * * *”

In 53 Am. Jur., Section 362, Page 292, it is said:

“* * * The trial court should not assume to direct a verdict when its ruling would require it to pass upon the credibility of witnesses and waive testimony, or would require it to resolve conflicts in the evidence; ■whenever there is credible evidence from which a reasonable conclusion can lie drawn in support of the claim of the party against whom the motion is made, the motion must be denied and the case submitted to the jury.”

In the Texas case of Adam v. Adam, 127 S.W. 2d 1001, the court held:

‘! ‘ The effect of the motion made by the defendants to instruct the jury to find for them has practically the same effect as a demurrer to the evidence in calling for the opinion of the court on the legal sufficiency of the proof, but it does not have the effect to withdraw the case from the jury. If a motion be overruled, the trial must proceed as if it had not been made; and the court cannot, because the motion has been overruled, instruct the jury to find for the plaintiff, upon the ground that the motion admitted the truth of the evidence adduced. ’ ’ ’

Numerous cases hold likewise; in fact, we know of none to the contrary.

Appellant finally contends that there is no substantial evidence to support the verdict. We do not agree. Aside from the testimony of the store employees, Campbell, the policeman who happened to be in the store, and who apparently was a completely disinterested witness, testified that the floor was clean and dry, and that he observed no streak, skid mark, or slick substance on the floor.

Affirmed.

       J. B. Miller, husband of Mrs. Miller, is also a party to the suit, and is an appellant herein, but inasmuch as the testimony, hereinafter set forth, deals only with Mrs. Miller, we will continue to use the singular term, “appellant.”

       A physician testified in regard to the injuries sustained by appellant, but that point is not at issue here. Appellant’s husband also testified about her physical condition, and William E. Ball, manager of the store, called by appellant, testified briefly to the effect that he had sole supervision and control of the store, and followed rules and regulations set by the Woolworth Company. Ball also testified in response to interrogation by appellant’s counsel, that the store sold lunches and candies.


author: Ed. F. McFaddin, Associate Justice.

text:
    Neal v. Bradley.
    5-3353
    384 S. W. 2d 238
    Opinion delivered November 30, 1964.

      W. Dane Clay, Rose, Meek, House, Barron, Nash & Williamson, for appellant.

      Josh W. McHughes, Brooks Bradley and J. H. Carmichael, Jr., for appellee.
   Ed. F. McFaddin, Associate Justice.

The issue here posed is the matter of priority as between assignments. This is the second appearance of these parties in this Court. The first case was Bradley et al. v. Neal, 234 Ark. 728, 354 S. W. 2d 269, in which we held that Bradley et al. were entitled to judgment against the estate of W. B. Warren in the sum of $3,000.00 and we remanded the case with directions, and such judgment was rendered on April 18, 1962.

Then on May 15, 1962, Bradley and McHughes filed the present action in the Probate Court, alleging that the $3,000.00 judgment was unpaid and that Virginia Warren Neal, individually or as executrix of the Estate of W. B. Warren, had in her possession certain notes which had been duly assigned to Bradley and McHughes, and that she should be required to deliver to Bradley and McHughes sufficient of the proceeds of said notes to satisfy the $3,000.00 judgment, with interest and costs.

This petition was resisted by Virginia Warren Neal, who claimed that she — personally—held an assignment of the said notes, which assignment was prior in point of time to the assignment to Bradley and McHughes. The Trial Court held that the assignment to Bradley and McHughes was superior to the Virginia Warren Neal assignment, and from that holding there is this appeal; and the points listed are:

“1. The recordation statutes do not apply to an assignment of notes.
‘ ‘ II. If the recordation statutes were applicable, appellees had actual notice of the prior interest of appellant.
“III. Res Judicata is inapplicable.”

The evidence disclosed the following:

(1) That W. B. Warren and Zelma Lee Warren, his wife, were the owners of two notes as folkrws: one note dated December 21, 1949 for the original sum of $15,132.22 payable $155.00 monthly beginning January 21, 1950, principal and interest, signed Charley Hughes and Hattie Hughes, and secured by a lien on certain real estate; and one note dated December 21, 1949 for the original amount of $17,774.51 payable $125.00 monthly beginning January 21, 1950,'principal and interest, signed by Claudia Carter and secured by a lien on certain real estate.

(2) That the said two notes were left with Block Realty Company in Little Rock for collection and remittance to Mr. and Mrs. Warren.

(3) That on September 5, 1956, W. B. Warren and Zelma Lee Warren, his wife, executed, acknowledged, and delivered to Virginia Warren Neal an assignment of the said notes, subject to a retained life estate in Mr. and Mrs. Warren.-This assignment was'never recorded.

(4) That Block Realty Company was informed of the said assignment to Virginia Warren Neal; and that after the death of Zelma Lee "Warren, Virginia Warren Neal became executrix of her estate and Block Realty Company remitted each month the collections on the said notes by check payable to “W. B. Warren and Virginia Neal, A dministradrix. ’ ’

(5) That on May 16, 1960, W. B. Warren executed, acknowledged, and delivered to Brooks Bradley an assignment of the same notes.

(6) That before Bradley accepted his said assignment he visited Block Realty Company and caused W. B. Warren to write to Block Realty a letter dated May 16, 1960, which read:

“May 16, 1960. Block Realty Company, 212 Spring-Street, Little Rock, Arkansas. Gentlemen:
“You are holding two notes for collection which belong to me and which I have assigned to Brooks Bradley, my attorney, as per the enclosed assignment. Please hold said notes for collection and you are hereby specifically requested not to deliver said notes or any collections thereon, to anyone other than Brooks Bradley, my attorney.
“Yours very truly, /s/ W. B. Warren.”

(7) That Block Realty Company endorsed on the aforesaid letter the following:

“Received the original of this letter together with ' copy of assignment this 16th day of May, 1960. /s/ Block Realty Co. by Sam A. Block.”

(8) That Bradley caused the assignment from W. B. Warren to him to be filed for record and recorded in the office of the Circuit Clerk and Recorder of Pulaski County, Arkansas, on May 17, 1960; and that the assignment of Virginia Warren Neal, mentioned in Paragraph (3) supra, was never recorded.

(9) That Bradley associated McITugbes with him iu the Warren case, and Mdinghes stands or falls with Bradley in the present case.

I. The Recording Statutes. We have stated the facts in considerable detail and now we come to the appellant’s first point, which is that “The recordation statutes do not apply to an assignment of notes.” The assignment to Virginia Warren Neal was in 1956 and the assignment to Mr. Bradley was in 1960. Even though the Neal assignment was prior in point of time, the Trial Court held the Bradley assignment to be superior because the Bradley assignment was recorded and the Neal assignment was not recorded. We reach the conclusion that our re-cording statutes do not apply to notes or proceeds of notes, but only to liens on land. These statutes are in Ark. Stat. Ann. § 16-101 (Bepl. 1956) et seq. Section 16-101 requires the recorder to provide books for recording “all deeds, mortgages, conveyances, deeds of trust, bonds, covenants, defeasances, or other instruments of writing of or concerning any lands and tenements or goods and chattels.” Section 16-103 relates to “any deed, mortgage, deed of trust, bond, conveyance, or other instrument of writing authorized by law to be recorded.” Section 16-107 requires an index concerning “Deeds, mortgages, or other instruments in writing concerning lands and tenements.” Section 16-115 provides that “no .deed, bond, or instrument of writing for the conveyance of any real estate or by which the title thereto may be affected in law or equity, hereafter made or executed shall be good or valid against a subsequent purchaser of such real estate ...” It will thus be seen that our recording statutes relate only to instruments touching and affecting real estate. The recording of the assignment from Warren to Bradley gave notice to the world as regards the lien on. the lands, but gave Bradley no right superior to the prior assignment of the notes to Neal.

The general rule is that recordation statutes do not apply to assignment of notes unless specifically so stated by statute. In 4 Am. Jur. 300, “Assignments” § 88, in speaking of recordation, the text states: “Ordinarily^ however, the recording statutes are inapplicable to assignments.” In 45 Am. Jur. p. 444, “Records and Recording Laws” § 43, cases are cited to sustain this textual statement: “Notes secured by a mortgage may be effectively transferred as to all persons without recording if there is no requirement in the recording act that the transfer be recorded.” Again, in 11 Am. Jur. 2d p. 348, “Bills and Notes” § 326, the text reads: “General recording acts do not apply to assignments of dioses in action, and recordation is not required in absence of a statute specifically applicable to them. ... A note secured by a mortgage may be effectively transferred as to all persons without recording if there is no requirement in the recording act that the transfer of the note be recorded.” We find no authority that would support a holding that the prior unrecorded assignment of a note may be defeated by a subsequent recorded assignment.

So we conclude that the recording statutes in Arkansas afford no protection to Bradley and that the assignment to Mrs. Neal is superior to the Bradley assignment since the Neal assignment is prior in point of time; and this holding renders it unnecessary for us to consider the appellant’s second point regarding knowledge.

IT. Res Judie,ata. The appellees insist that even if the recording statutes do not apply, nevertheless the appellees should prevail since the appellees insist that the prior litigation is res judicata against the appellant. We cannot agree with appellees in such insistence. In the first case — as reported in 234 Ark. 728, 354 S. W. 2d 269 — the only question was the amount of the fee to which Mr. Bradley was entitled. His claim was treated as an ordinary claim. There was no mention in our opinion as to any assignment to Virginia Warren Neal, and such assignment was not within the purview of the issues in the first case. Robertson v. Evans, 180 Ark. 420, 21 S. W. 2d 610. Thus, there is no res judicata in favor of the present appellees.

The judgment is reversed and the cause remanded for entry of a judgment in keeping with this opinion and for further proceedings not inconsistent herewith.

       This assignment read: “ASSIGNMENT. KNOW ALL MEN BY THESE PRESENTS: That we, W. B. Warren, and Zelma Lee Waren, his wife, in consideration of love and affection and other valuable consideration, do hereby set over, assign, and. convey unto Virginia Warren Neal, the following described notes:

        “The Claudia Carter note, upon which a principal balance of $13,-566.99 remains due, and which note is payable in installments of $125.00 per month, said note being secured by a first mortgage on the following described property, to-wit: The West 65 feet of Lot 1, and the North 35 feet of the West 65 feet of Lot 2, Block 233, -ORIGINAL CITY OF LITTLE ROCK; and “The Charley Hughes note, upon which a principal balance of $6,864.49 remains due, said note being payable in monthly installments of $155.00 per month, and payment for which is secured by a first mortgage on the following described property, to-wit: The West 100 feet of Lot 3, Block 233, and that part of Lot 2, Block 233, ORIGINAL CITY OF LITTLE ROCK, which is described as follows: The South 15 feet of the West 55 feet of said Lot 2, and the South 10 feet of the East 35 feet of the West 100 feet of said Lot 2.
      “The parties hereto do, however, reserve for themselves or the survivor of them, the monthly income for life from each of the aforesaid notes.
      “WITNESS OUR HANDS AND SEALS ON THIS 5th DAY OF SEPTEMBER, 1956. /s/W. B. WARREN /s/ZELMA LEE WARREN.”

       This assignment reads: “ASSIGNMENT. For valuable consideration, I, the undersigned, hereby sell, transfer, assign, set over and deliver to Brooks Bradley the unpaid balance on the following described notes, owned by me and now held for collection by Block Realty Company, Little Rock, Arkansas, to-wit:
      “1. One note dated December 21, 1949 for the original sum of $15,132.22 payable $155.00 monthly beginning January 21, 1950, principal and interest, signed Charley Hughes and Hattie Hughes and secured by a lien on the following property located in Pulaski County, Arkansas, to-wit: West 100' of Lot 3 and Part of Lot 2, Block 233, Original City of Little Rock, Arkansas.
      “2. One note dated December 21, 1949, for the original amount of $17,774.51 payable $125.00 monthly beginning January 21, 1950, principal $125.00 monthly beginning January 21, 1950, principal and interest, signed by Claudia Carter and secured by a lien on the following property located in Pulaski County, Arkansas, to-wit: West 65' of Lot 1 and North 35' of West 65' of Lot 2, Block 233, Original City of Little Rock, Arkansas.
      “This assignment is made for the purpose of securing advances made to me, represented by notes, and further payment of a fair and reasonable fee, pending termination of litigation now pending in the Pulaski County Chancery Court against Virginia Warren Neal.

        “WITNESS my hand and seal this 16th day of May, 1960.
      “STATE OF ARKANSAS) COUNTY OF PULASKI) ss ACKNOWLEDGMENT
      “On this day personally appeared before the undersigned, a Notary Public, Jean Loper, within and for the County and State aforesaid duly qualified, commissioned and acting, W. M. Warren to me well known as the Grantor in the foregoing Assignment, and stated that he had executed the same for the consideration and purposes therein mentioned and set forth.
      “WITNESS my hand and official seal on this 16 day of May, 1960. /s/ Jean Loper, Notary Public. My Commission Expires: April 6, 1964.
      “No. 14482 FILED FOR RECORD May 16, 1960 at 11:05 A.M. AND RECORDER May 17; 1960. (SEAL) ROGER McNAI-R, CIRCUIT CLERK.
      “This instrument prepared by Brooks Bradley, 617 Pyramid Life Bldg., Little Rock, Ark.”

       Throughout this entire record the parties have wisely and correctly referred to the transfers by Mr. Warren as “Assignments.” It does not appear that Mr. Warren made a negotiation or indorsement on either one of the notes sufficient to comply with either the Negotiable Instruments Law or the Uniform ’ Commercial Code. The attempted transfers to Neal and Bradley fail as such' “indorsements” to comply with either the Negotiable Instruments Law or the Uniform Commercial Code, because neither of the transfers was a complete transfer of the entire instrument. A life estate was retained in the Neal transaction; and the Bradley transaction was to secure the payment of attorney fees. “The indorsement must be an indorsement of the entire instrument.” 11 Am. Jur. 2d p. 343, “Bills and Notes” § 320. See annotation in 63 A.L.R. 499, “Construction and application of provision of Negotiable Instruments Law in respect to indorsements which purport to transfer only part of amount payable.” See also companion annotation in 149 A.L.R. 1055.

       Originally it was held in Arkansas that the assignment of a vendor’s lien note was protected in a lien in the land even if the assignor released the lien of record. See Hebert v. Fellheimer, 115 Ark. 366, 171 S. W. 144; and Driver v. Lacer, 124 Ark. 150, 186 S. W. 824. But by Act No. 374 of 1917, as now found in Ark. Ann. § 51-1016 (1947), the law was changed, so now if the assignor is the lien holder of record then a release by him will protect a subsequent purchaser of the land as against the assignee even though the debt itself is unaffected by the release of the lien. Kinney v. N. Memphis Sav. Bank, 178 Ark. 716, 11 S. W. 2d 486; Vance v. White, 180 Ark. 470, 21 S. W. 2d 853; and Farmer’s Bank & Trust Co. v. Taylor, 189 Ark. 939, 75 S. W. 2d 808.


author: George Rose Smith, J.

text:
    Ark. State Highway Comm. v. Sisson.
    5-3406
    384 S. W. 2d 264
    Opinion delivered November 30, 1964.

      Mark E. Woolsey, Lindsey J. Fairley, Don Langston, for appellant.

      8. Morton Rutherford, III, Tulsa, Oklahoma, for appellee.
   George Rose Smith, J.

This is a proceeding brought by the Highway Commission to condemn a fifteen-foot strip along the edge of a lot in Springdale, the site of a filling station. The appellees are the landowner, Willella Sisson, and her lessee, Sunray DX Oil Company. The jury awarded the landowner $15,000 and the lessee $6,750.

On direct appeal the Commission contends that the trial court, in empaneling the jury, erred in allowing the land-owner and the lessee three peremptory challenges each. This contention is well-taken. Our statutes contemplate that each side — the plaintiffs and the defendants —will have a total of three peremptory challenges. Ark. Stat. Ann. §§ 39-229 and -231 (Repl. 1962). It is firmly settled that the number may not be increased even though the parties on one side or the other are actually adversaries. Hogan v. Hill, 229 Ark. 758, 318 S. W. 2d 580; Utley v. Heckinger, 235 Ark. 780, 362 S.W. 2d 13. The rule is plainly applicable here. When a single tract is involved the alignment of the condemnor on one side against those having an interest in the land, such as a landlord and tenant, on the other is so clear-cut that the. issues are properly determinable in a single' trial, without severance. Ark. State Highway Comm. v. Thomas, 231 Ark. 98, 328 S.W. 2d 67.

On cross appeal Sunray, the lessee, raises a number of questions about the admissibility of evidence and the instructions to the jury. We review those that are likely to arise upon a second trial.

In the operation of the filling station Sunray had installed and was using many removable chattels which it owned, including tanks, signs, awnings, a chair, a desk, a table, cabinets, etc. In an attempt to show the rental value of the service station Sunray sought to prove that all these articles of personal property were worth about $7,000. This evidence was inadmissible. The issue was the rental value of the real property, not the value of the chattels. See Kansas City So. Ry. v. Anderson, 88 Ark. 129, 113 S.W. 1030, 16 Ann. Cas. 784. The proffered testimony had no bearing upon the question before the jury.

Sunray also tried to prove the construction cost and the value of another service station in the neighborhood. Even though the two structures may have been similar, both the cost and the value of the one were collateral matters as far as the value of the other was concerned. The issues in a condemnation case would be hopelessly obscured if the parties were allowed to dispute about the cost or the value of some other piece of property. Counsel for Sunray cite St. Louis, I.M. & S. Ry. v. Theodore Maxfield Co., 94 Ark. 135, 126 S.W. 83, 26 L.R.A. (n.s.) 1111. That opinion is not as clear as it might be, but we feel certain that the court’s reference, to the “value” of other lands in the neighborhood was intended to mean only the value as established by actual sales of comparable property. Such sales form a permissible basis for an expert witness’s opinion of the worth of the property in controversy. It does not follow, however, that, in the absence of a sale, the expert should be allowed to give his opinion about the value of other similar land in the vicinity.

Sunray’s three principal arguments concerning the instructions may be considered together. The primary term of Sunray’s lease will not expire until September of next year. A clause in the lease provides that Sunray cannot, during the primary term, cancel the lease on the ground that, as a a result of specified governmental action, a service station can no- longer be operated on the property. There is proof that after this condemnation the size of the lot will be so reduced that a service station cannot be operated upon what is left, under the city zoning law.

In view of these facts Sunray contends: First, that the jury should have been peremptorily instructed to return a special verdict for the full amount ($6,075) that Sunray is obligated to pay as rent during the remainder of the primary term; secondly, that the court should have given a requested companion instruction explaining the measure of Sunray’s damages in addition to this $6,075; and, thirdly, that the court ought not to have told the jury that it should consider the value of Sunray’s leasehold in arriving at the value of the landowner’s interest in the property.

We think the court was right upon all three points. To begin with, the peremptory charge for a special verdict of $6,075 was wrong, for even if this charge had been correct in other respects the future payments would have to be reduced to their present value. The companion instruction was dependent upon this peremptory charge and falls along with it.

There is another serious flaw in the three combined arguments. When a condemnation takes the whole of leased property or renders the remainder untenantable it is not fair to the landlord to make an unencumbered cash award to the tenant for the full value of his leasehold estate, for he may squander the money without making the rental payments later falling due. Thus, as Nichols points out, the better procedure is to make some provision for the landlord’s protection, else his interest in the leasehold is taken with no assurance that he will ultimately be compensated for it. Nichols, Eminent Domain (3d ed.), § 5-23 [3].

The court was evidently right in telling the jury that it should consider the value of Sunray’s leasehold in determining the value of Mrs. Sisson’s interest as the owner of the fee. If the State is to be required to compensate Sunray for the rental payments that it must make after it has been in effect dispossessed by the condemnation, it is evidently necessary that Mrs. Sisson’s receipt of these rental payments be taken into account in fixing the amount of her compensation. Otherwise the State would be paying not only the value of the leasehold but also the value of the fee unencumbered by that estate. Upon a retrial the instructions in question must be redrafted to submit these issues properly to the jury.

Objections to other instructions are argued, but since these instructions are not set out in the abstracts •or in the briefs we are unable to say whether they were right or wrong.

Reversed and remanded on direct appeal; affirmed -on cross appeal.


author: Paul Ward, Associate Justice. Sam Bobinson, Associate Justice,

text:
    Dreyfus v. St. Paul Fire & Marine Ins. Co.
    5-3350
    384 S. W. 2d 245
    Opinion delivered November 30, 1964.

      Spitzberg, Bonner, Mitchell & Says, for appellant.

      Wright, Lindsey, Jennings, Lester $ Shults, for appellee.
   Paul Ward, Associate Justice.

This particular litigation began when Martin Dreyfus (hereafter referred to as appellant) sued the St. Paul Fire and Marine Insurance Company (hereafter at all times referred to as appellee) for $1,700 which is the amount Dreyfus paid to settle a former law suit filed against him. Appellee filed a motion for a summary judgment which was submitted to the trial court upon certain affidavits and exhibits, and later granted. Appellant now prosecutes this appeal. To understand tlie former law suit referred to, and to understand the issues presented on this appeal, it is necessary to set out in some detail the factual background.

Appellant who lives in this state is the owner of a large trucking company. He is protected by a liability policy issued by appellee, with a $25,000 liability limitation. In October 1959 one of appellant’s employees, Roseoe Jackson, was driving a company truck in- the State of Mississippi (near Greenville) when it collided with an automobile occupied by Mrs. Tom Uzzle who was severely injured. Mrs. Uzzle filed suit in the U. S. District Court of Mississippi against appellant and Jackson, seeking $250,000 in damages for the alleged injuries. Appellant promptly notified appellee of the suit and he also hired an attorney in Greenville to protect him against a possible judgment in excess of $25,000. Appellee’s attorney started negotiations for a settlement of the Uzzle claim on the basis of $15,000 but this offer was refused. Then appellant’s attorney entered into negotiations with Uzzle’s attorney in an effort to reach a settlement. This resulted in an offer by Uzzle’s attorney to take $21,700 in full satisfaction. This offer of settlement was recommended by appellant’s attorney to appellee’s attorney. In response, appellee indicated it was unwilling to pay more than $20,000. Thereupon appellant told Uzzle’s attorney he would accept the offer and pay $21,700. ■ The settlement was consummated by appellee paying Uzzle $20,000 and by appellant paying her $1,700. Mrs. Uzzle gave separate releases to appellant and appellee at the request of appellant.

We have concluded after a careful study of the record and the able argument presented by both sides, that the trial court must be sustained in entering a summary judgment in favor of appellee. In considering this case it must be kept in mind that we are not dealing with a demurrer by appellee to appellant’s complaint. Appellee’s motion for a summary judgment was made pursuant to Ark. Stat. Ann. § 29-211 (Repl. 1962). The only point relied on for a reversal is that “The trial court erred in granting the motion of appellee for a summary judgment. ’ ’

* We are not convinced by appellant’s principal argument. That argument, in essence, is: Under the decisions of this Court the crucial issue here is the good faith (or lack of negligence) on the part of appellee in refusing to pay all of the $21,700, and that said issue was (under the testimony presented) a question fox the jury and not for the trial court.

Appellant relies heavily on three decisions of this Court: Home Indemnity Company v. Snowden, 223 Ark. 64, 264, S.W. 2d 642; Southern Farm Bureau Casualty Ins. Co. v. Parker, 232 Ark. 841, 341 S.W. 2d 36; Southern Farm Bureau Casualty Ins. Co. v. Hardin, 233 Ark. 1011, 351 S.W. 2d 153. The decisions in the above cited cases are not decisive or controlling in the case here because those decisions were based on fact situations different from those of this case. In the Snowden case the insurer refused to pay anything on the $83,950 claim against the insured (Snowden). Thereupon Snow-den negotiated a settlement with the claimant (the injured party) for $8,000. The insurer (whose limit of liability was $5,000) again refused to pay anything. After the insured paid the $8,000 he sued insurer for all the money back, and received a judgment for that amount. On appeal we said, in effect, that under the circumstances the insurer acted in had - faith and must pay the limit of its policy. The Parker decision in principle was similar to the Snoivden decision. The injured party sued the insured and recovered a judgment for $12,500. The insurer’s limit of liability was $5,000 and the judgment was settled for $6,500, the insurer paying $5,000 while Parker paid $1,500. The insured (Parker) sued and recovered judgment against the insurer for $1,500. On appeal we affirmed the judgment. The record showed the insurer could have settled the claim for $4,000, and we held, in effect, the insurer was “negligent” in failing to do so. In doing so we also approved the “had faith” rule — -holding in effect that the insurer acted in “had faith”. Likewise, in the Hardin case there was evidence the insurer could have settled a $15,000 claim against the insured for $5,000 (the policy limit) but negligently or in bad faith failed to do so. The result was that to settle it cost over $13,000 of which amount the insurer paid $5,000. On appeal we approved a judgment for $8,810 which the insured recovered in the trial court against the insurer.

Under the undisputed factual situation in the case before us, we are unable to see how the question of bad faith or negligence on the part of appellee becomes an issue as-it did in the previously cited cases. All parties (the insurer, the insured, and the claimants) were represented by attorneys who are conceded to he experienced and competent. All parties and their attorneys knew all the pertinent facts. They knew appellee’s limit of liability was $25,000; they knew appellant would be liable for any judgment in excess of $25,000; they knew Mrs. Uzzle had sued for $250,000; and, they knew more than we could possibly know here from the record about the nature of the injuries and about the evidence of negligence, or the lack thereof, on the part of Jackson.

It was under the above circumstances that appellant (through his attorney) initiated negotiations with the Uzzles to settle the law suit, even though the policy contains the following clause: “. . . the Company may make such, investigation, negotiation, and settlement of any claim or suit as it deems expedient.” As a result of his own initiative appellant received an offer of settlement for $21,700 from-Mr. and Mrs. Uzzle. This offer, as previously stated, was communicated to appellee’s attorney who informed appellant that his company would not be willing to pay more than $20,000 to settle the case. Without further consulting or advising with appellee, appellant accepted Uzzles’ offer. The suit was then settled by appellant’s paying $1,700 and appellee’s paying $20,000. At no time did appellant indicate that he expected appellee to reimburse him for the $1,700 or that he himself was paying the amount under protest.

Under the facts and circumstances outlined above we must conclude that appellant paid the $1,700 voluntarily under the personal belief and legal advice that it was to his own best interest to do so. Accordingly to the only testimony on the point, if appellant had told appellee he was paying $1,700 under protest (or with the expectation of being reimbursed) appellee would not have paid the $20,000. The record, in our opinion, contains no evidence from which a jury could have found any bad faith or negligence on the part of appellee.

The exact issue here raised seems never to have been before this Court, but it has been decided adversely to appellant’s contention in other jurisdictions. See St. Joseph Transfer & Storage Company v. Employer’s Indemnity Corporation, 224 Mo. App. 221, 23 S.W. 2d 215 (K.C. Ct. of App.— Mo.—1930); Levin v. New England, Casualty Company, 101 Misc. Rep. 402, 166 N.Y.S. 1055 (Sup. Ct. of N.Y.—App. Term—1917); and Pickett v. Fidelity & Casualty Company of New York, 60 S.C. 477, 38 S.E. 160 (Sup. Ct. of So. Car.—1901). In the first case cited there is language which we adopt as applicable here: “Both parties had a right to enter into a contract of settlement, which would be in accord and satisfaction of the original contract of insurance.” Likewise we approve as applicable here language found in the Levin caso:

“The defendant was under no duty to settle the claim. The policy gave it the option of contesting it, if it saw fit to do so. It had the right to await the decision of the court as to the claimant’s demand, or to pay such sum in settlement as it saw fit. The plaintiff apparently believed that it was to his interest to settle, rather than face the uncertainty of a trial and a possible verdict against him, part of which he might have to pay. ’ ’

It is our conclusion therefore that the judgment of the trial court must be affirmed.

Affirmed.

Bobinson and Johnson, JJ., dissent.

Sam Bobinson, Associate Justice,

(dissenting). The trial court granted the motion for a summary judgment on the ground that there was no genuine issue of a material fact. This court has affirmed the judgment. In my opinion, the Arkansas statute authorizing summary judgments in cases where there “is no genuine issue as to a material fact” should not be stretched to a degree which allows the courts to summarily dispose of cases where the parties have the constitutional right to a trial by pry-

The Arkansas Constitution provides that “the right of trial by jury shall remain inviolate, and shall extend to all cases at law ...” Arkansas Constitution, Article 2, Sec. 7. The Constitution further provides that “Judges shall not charge juries with regard to matters of fact ...” Arkansas Constitution, Article 7, Sec. 23.

In the case at bar there is a genuine issue as to a very material fact. The appellant alleged in her complaint “that the defendant [insurance company] considered its own best interest and disregarded the plaintiff’s interest, while good faith and fair dealing required it to give at least equal consideration to the interest of the plaintiff; and that the defendant’s refusal to pay the entire amount necessary to effect the settlement was made in had faith. ’ ’

Defendant, in its answer, admitted that it refused to pay more than $20,000.00 in settlement of the case, but denied all allegations in the complaint not specifically admitted. The issue was drawn; it was clearly a question for the jury: Did the insurance company, by virtue of its rights under the contract of insurance, in good faith, considering all the facts, refuse to pay more than $20,000.00, or did it refuse to pay more because it well knew that the policyholder was in such a hazardous position that he would contribute to the amount necessary to effect a settlement?

There was a stipulation between the parties, but nothing in the stipulation removed or settled the foregoing issue. It can be seen from the stipulation that Mrs. Uzzle was seriously injured. Her doctor bills, etc. amounted to $3,600.00; she was confined to the hospital for 35 days. Several months after the date she received the injury she had to undergo a serious operation for the removal of a ruptured intervertebral disc. It was further stipulated:

“The medical testimony relative to Marjorie Uzzle’s injuries and disability arising from the collision was conflicting. Two physicians, specialists in their fields, examined her under Court order upon motion of the defendant insurer. One of such physicians was of the opinion that she would have minimal permanent impairment as a result of a disc protrusion. He found no other significant condition related to the accident. The other court-appointed physician was of the opinion that she had a residual permanent disability resulting from injuries sustained in the accident of 15%. Her personal physician, also a specialist, was of the opinion that her accident-connected disability was 40%.”

Thus, there was substantial evidence that Mrs. Uzzle was 40% disabled due to the injuries. She had sued for $250,-000.00. The forum was favorable to the plaintiff; she had been severely injured, and it ivas a clear case of liability. The defendant, Dreyfus, -was good for a judgment, but had only $25,000.00 in liability insurance. He would have had to pay personally that part of a judgment up and above $25,000.00. In these circumstances, there was a genuine issue as to whether the insurance company wrongfully refused to pay more than $20,000.00 in settlement of the case. It did refuse to settle, and as a consequence, appellant, Dreyfus, was compelled to pay $1,700.00 out of his own pocket.

A jury could have found that the insurance company knew from all the circumstances, to a moral certainty, that it could refuse to pay more than $20,000.00 by way of settlement and Dreyfus would come up with whatever additional amount it took to settle the case; that he could not afford to do otherwise, the risk was too great.

The majority has said, in effect, that three cases decided by this court, and relied on by appellant, are distinguishable from the case at bar. The, cases are The Home Indemnity Co. v. Snowden Farm Bureau Casualty Ins. Co. v. Parker, 232 Ark. 841, 341 S.W. 2d 36; Southern Farm Bureau Casualty Ins. Co. v. Hardin, 233 Ark. 1011, 351 S.W. 2d 153. In all of those cases this court held it to be a question for the jury as to whether the insurance company wrongfully or negligently failed to settle damage suits within the limits of the policy. Actually, in my opinion, the majority does not point out any valid distinction between those cases and the case at bar.

In The Home Indemnity Co. v. Snowden, supra, the insurance company refused to pay $5,000.00, the policy limit, because, according to its view, there was no liability at all on the part of the policyholder. This court held that it was a jury question as to whether the insurance-company had wrongfully failed to'settle the case. In a dissenting opinion it was contended that according to the undisputed evidence, the insurance company was fully justified in refusing to make the settlement. The ease fully supports the policyholder in the case at bar, and it cannot be distinguished in a manner favorable to appellee herein.

The next case that the majority says is distinguishable is Southern Farm Bureau Casualty Ins. Co. v. Parker, supra. It is closely in point with the case at bar and fully supports the appellant policyholder. The majority has demonstrated no real distinction. The second syllabus is quoted to show the facts:

“Insured had $5,000 coverage against personal injuries ; he was involved in a traffic mishap and sued for $25,000. The injured party offered to settle the damage action for $4,000, but the insurer refused to consider such offer. Jury verdict against insured for $12,500 was settled by insured for $6,500, with $5,000 paid by the insurance company and $1,500 paid by the insured who then sued the insurance company for $1,500. HELD: The insurance company owed the insured the duty to act in good faith and also the duty to act without negligence, and insured could hold the insurance company liable on either the bad faith or the negligence theory.” There is no distinction on the point involved, and that is whether the insurance company wrongfully or negligently failed to settle.

The other case the majority says is distinguishable, but actually shows no distinction, is Southern Farm Bureau Casualty Ins. Co. v. Hardin, supra. To quote the first syllabus is enough to show that the case cannot be distinguished-from the case at bar in a manner favorable to the insurance company:

“It was undisputed that in a suit brought in the home county of the injured plaintiff against the insured whose liability coverage was limited to $5,000 for injury to one person and $5,000 property damage, the insurer refused the plaintiff’s offer to settle the case for $4,000, and although the insurer had placed a settlement value of about $2,500 on the case, it made no further effort or counteroffer to reach a settlement. The jury verdict in favor of the plaintiff was settled by the insured for $15,000, of which, the insurer paid $6,190 and the insured, $8,810. HELD: In these circumstances it was a jury question as to whether the insurance company was negligent or failed to act in good faith by not attempting to reach a settlement within the limits of the policy.”

All three of the aforesaid Arkansas cases, with facts not more favorable to the policyholder than are the facts in the case at bar, stand for the proposition that it is a jury question as to whether the insurance company negligently or wrongfully failed to settle a claim within the limits of the policy, and thus caused the policyholder to contribute to a settlement.,

To support its view, the majority has cited three cases from other states. The latest of these cases was decided in 1930, a long time before the adoption by the Federal Courts of Buie 56. None of the cases involved a summary judgment.

First, there is the case of St. Joseph Transfer & Storage Co. v. Employer’s Indemnity Corp., 224 Mo. App. 221, 23 S.W. 2d 215 (1930). It is directly in conflict with the heretofore mentioned Arkansas cases. Moreover, in that Missouri case the court said: “This is not case wherein the liability is clear.” The court strongly indicated that if it had been a clear case Of liability the result would have been different. And, furthermore, there is a vast difference in rendering a summary judgment where, at best, a controversial point is only partly developed and ruling for.one of the parties where there has been a full scale development at a jury trial.

One of the-other cases cited by the majority as sustaining its view is Levin v. New England Casualty Co., 166 N.Y.S. 1055 (1917). That case is also directly in conflict with the heretofore mentioned Arkansas cases. In the New York case the court said: “The defendant [insurance company] was under no duty to settle the claim. The policy gave it the option of contesting it, if it saw fit to do so. It had the right to await the decision of the court as to the claimant’s demand or to pay such sum in settlement as it saw fit.” In addition, there was no showing as to whether the insurance company wrongfully or negligently refused to settle the claim, and apparently, the court held that it had a right to consider only its own interest in determining whether a settlement would he made. Up to the present time this has not been the law in Arkansas.

The other case cited by the majority is Pickett v. Fidelity & Casualty Company of New York, 60 S.C. 477, 38 S.E. 160 (1901). Frankly, after reading this case I am wholly unable to see in what manner it supports the majority opinion. A policyholder sued an insurance company for $1,500 on a liability policy of insurance. There was a judgment for the plaintiff; the insurance company appealed, and the judgment was affirmed.

In my opinion it was error to render a summary judgment in favor of the insurance company. I, therefore, respectfully dissent.


author: Sam Robinson, Associate Justice. Paul AVard, Associate Justice,

text:
    Myers v. Ark. State Highway Comm.
    5-3375
    384 S. W. 2d 258
    Opinion delivered November 30, 1964.

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

      Mark E. Woolsey and Thomas B. Keys,'for appellee.
   Sam Robinson, Associate Justice.

This is an eminent domain proceeding. The Arkansas State Highway Commission condemned for highway purposes a little over one-half acre of a tract consisting of a little less than two acres belonging to appellant, Johnnie A. Myers. Appellant contends that by reason of the taking he has been damaged to the extent of about $100,000.00. The Highway Department claims he has been damaged in the sum of about $2,000.00. The case was tried to a jury and there was a verdict for appellant in the sum of $6,250.00. Myers has appealed.

Appellant contends, first, that the court erred in requiring appellant, who was testifying as 'a witness, to ans’wer questions on cross examination concerning the amount that his father had paid for the entire tract of property in 1951. The amount paid was $16,500,00. In St. Louis & San Francisco Railway Co. v. Smith, 42 Ark. 265, this court reversed the trial court for refusing to admit such evidence. There, this court said: “The price which the owner gave for his land may be put in evidence, because it tends to show its value. It is not, of course, conclusive, because the owner may show in explanation, the circumstances under which he bought, the condition of the property at the time, and the improvements he has made upon it since the purchase.” The weight of authority is in accord with the decision in the aforesaid railway case. See Annotation 55 A.L.R. 2d, 791.

The order authorizing the taking in the first instance, and the judgment provides:

“Any and all rights or easements of existing, future or potential common law or statutory rights of access or ingress and egress to, from or across the eontrolled-access facility to or from abutting and adjoining lands be and they are hereby, condemned and extinguished, provided there is reserved to present and future owners or occupants of said abutting and adjoining lands the right of direct access as prescribed and limited b}7' the regulations and policies of the Arkansas State Highway Commission to any adjacent frontage road, if established and when constructed, but access to and from the throughway or main travelled roadwa}7- shall be only at interchange points as may be established and maintained by proper authority.”

The trial court permitted witnesses for the Highway Department to testify, over appellant’s objections, that appellant had not lost the right of ingress and egress to and from his remaining property and Highway 5. Appellant contends that, as a matter of law, under both the first order and the final judgment he lost such right of ingress and egress. The Highway Department argues that he had not lost such right. Under both the first order and the final judgment, when considered in connection with highway plans introduced in evidence, it would appear that appellant has lost such right. If, however, it is not the intention of the Highway Department to destroy the right of ingress and egress, at a new trial, the record on this point should be made clear. If the legal right to ingress and egress has been destroyed by the 'eminent domain proceeding, witnesses should not be permitted to testify to the contrary..

We now come to a point that requires a reversal of the judgment. It will be recalled that about one-half acre was taken from a tract of about two acres. At the request of appellee, the court gave Instruction No. 1 as follow's:

“■Whenever private property is appropriated as an incident to the taking for public purposes, the owners are entitled to just compensation for the lands taken. In this case the just compensation which the owners are entitled to receive is .the fair market value of their lands as of the time it was taken for public purposes, which was February 26, 1960.”

Appellant objected generally; .and specifically as follows: “The instruction states that just compensation is the fair market value of the land at the time it was taken and does not tell the jury that the measure of damages is the difference between the fair market value immediately before and the fair market value immediately after the taking. This instruction is designed for a case in which the entire land of the owner is taken and is not proper where a portion of a tract of land is taken.”

The instruction was erroneous. The compensation the owner is entitled to receive where only a portion of a tract is taken in an eminent domain proceeding is the difference in the value of the whole tract immediately before and the value of wdiat is left after the taking. Arkansas State Highway Comm. v. Fox, 230 Ark. 287, 322 S.W. 2d 81; Arkansas State Highway Comm. v. Ptak, 236 Ark. 105, 364 S.W. 2d 794; Arkansas State Highway Comm. v. Hood, 237 Ark. 202, 372 S.W. 2d 387.

The instruction, as given, states that just compensation is the fair market value of the land at the time it was taken and does not tell the jury that the measure of damages is the difference in the fair market value immediately before and the fair market value • immediately after the taking.

Appellee argues that if Instruction No. 1, as given by the court, was erroneous, such error was cured by other instructions. The court did give other instructions which correctly stated the law as to the proper measure of damages, but such correct instructions did not cure the error. In arguing the case to the jury, counsel for the appellee would have had every right to read to the jury Instruction No. 1 and emphasize that under this instruction the landowner could only recover the value of the land actually taken, which, in this case, appears to be a hole or gully. Such an argument would be confusing to the jury, because the real issue was the difference in the value before and after the taking.

Appellee also argues that appellant, in Ms answer, asked only for the value of the land taken and cites Bradley v. Keith, 229 Ark. 326, 315 S.W. 2d 13, as authority for the proposition that it is the duty of the defendant in an eminent domain proceeding to allege damages to the property not taken if he expects to recover on that theory. Suffice it to say that without objection the case at bar was tried on the theory of the before and after value. Both sides introduced evidence to prove such values. In addition, an instruction submitting that issue to the jury was given without objection.

Reversed and remanded.

AVard, J., dissents.

Paul AVard, Associate Justice,

(dissenting). For reasons hereafter stated I am unable to agree with the majority opinion. ■

The court gave two instructions. The first instruction told the jury appellant was entitled to “just compensation” for the land taken. The majority hold this instruction to be reversible error because it did not tell the jury what constituted “just compensation”. The second instruction did tell the jury what constituted “ just compensation”, and that is conceded to be true by the majority.

It is not contended by appellant or stated by the majority that the two instructions are contradictory as a matter of law. In the case of Roland v. Terryland, Inc., 221 Ark. 837, 844, 256 S.W 2d 315, where the same question was being' considered, we said, quoting from Hearn v. East Texas Motor Freight Lines, 219 Ark. 297, 241 S.W. 2d 259: " ‘They [instructions] are ordinarily read to the jury with continuity and unless contradictory as a matter of laiv must be considered as a whole’ ” (Emphasis added).

We have uniformly held that instructions must be considered as a whole. Wright v. Rochner, 233 Ark. 50, 342 S.W. 2d 483, and Purnell v. Missouri Pacific Ry. Co., 235 Ark. 957, 362 S.W. 2d 674. In addition, the court in this case told the jurors “not to take any one of the instructions as the law of the case, but to consider each instruction with every other instruction and consider all instructions as a whole ’ ’!

The majority is fearful the appellee’s attorney might sway the jury by emphasizing the first instruction. If we assume jurors are that easily swayed, then appellant was fully protected because his attorney could stress the second instruction.


author: Jim Johnson, Associate Justice.

text:
    Hurley v. Peebles.
    5-3380
    384 S. W. 2d 261
    Opinion delivered November 30, 1964.

      Wright, Lindsey, Jennings, Lester & Shults, By: John D. Eldridge, for appellant.

      Fletcher Long and Dungan and Daugherty, for appellee.
   Jim Johnson, Associate Justice.

This appeal involves attempted imputation of negligence in a suit for personal injuries sustained by a back seat passenger in the rear car of a rear end collision.

Early on the morning of September 20, 1960, about 5:00 A.M., a car driven by Alpheus Hubbard going south on Highway 17 collided with the rear of a truck near Shoffner eleven miles south of Newport. The truck was being driven by Donaciano Vasquez, an employee of W. F. “Buck” Hurley (who-has since.died). Passengers in the Hubbard car were appellee Edward Eugene Peebles and Joe F. Stobaugh. Hubbard and Stobaugh, in the front seat, died as a result of their injuries and appellee, who was asleep on the back seat of the car, was injured. (Another case resulting from this collision is Stobaugh v. Hubbard, 234 Ark. 917, 355 S. W. 2d 283.)

Appellee filed suit in Woodruff- Circuit Court on February 25, 1963, against appellant G-lad}^ Hurley, executrix of the estate of W. F. “Buck” Hurley, deceased. The complaint alleged, inter alia, that appellee was a passenger in Hubbard’s car when it collided with the truck driven by Vasquez, an employee and agent of Hurley in the course of his, Vasquez’ employment. The complaint contained detailed allegations of Vasquez’ negligence, appellee’s injuries and damages, and prayed judgment for $35,145.00 (including $24,600.00 for past and future loss of earnings). Appellant answered, (1) denying appellee’s allegations, (2) alleging that appellee was negligent in failing to exercise ordinary care for his own safety as a passenger and that such carelessness caused or contributed to his damages, and (3) pleaded that Hubbard was negligent in operating his vehicle and that Hubbard’s negligence is imputed to appellee for the reason that Hubbard and. appellee were engaged in a joint enterprise with an equal right to direct and control Hubbard’s vehicle, and that Hubbard’s negligence caused or contributed to appellee’s damages.

Appellee amended his complaint on August 8, 1963, alleging additional injuries and damages based on a physical examination made in July, 1963, and increased Ins prayer for damages to $67,545.00, which appellant answered and denied.

Trial was had on February 5, 1964, and after deliberation tíre jury returned its verdict for appellee in. the sum of $28,583.00. From judgment on the verdict comes this appeal.

For reversal appellant urges that the trial court ei'red in holding as a matter of law that negligence, if any, of Hubbard would not be imputed to appellee, and in refusing to submit that issue to the jury.

Appellant offered several instructions on imputation of negligence, the first of which was:

“Defendant’s requested instruction No. 4.
“If you find from a preponderance of the evidence that Alpheus Hubbard was under the influence of intoxicants to such an extent that his ability to drive a vehicle was impaired, or that he was operating his vehicle at an excessive rate of speed under the circumstances, then you may take this into consideration in determining' whether or not Alpheus Hubbard was negligent and whether or not such negligence, if any, was a proximate cause of the collision, injuries and damages.” ■

The court refused this instruction, stating -

“Defendant’s requested instruction No. 4 is refused for the reason that the court has held that, as a matter of law, the testimony in this case is insufficient to establish joint venture and that, therefore, the negligence of Alpheus Hubbard would not be imputed to the plaintiff in this case.”

The court gave appellee’s requested instruction No. 4 as follows:

“You are instructed that there is no competent evidence in this case that the plaintiff Peebles was engaged in a joint venture with the decedent ELubbard at the time of the collision. Therefore, Hubbard’s negligence, if he was guilty of any negligence, would not be imputed to the plaintiff in this case.”

And the court then instructed the jury orally as follows:

“As 3rou have already been told, a joint venture was alleged in the answer and some proof was offered along that line, but the court holds that there is no competent evidence in this case to establish a joint venture.”

to which instruction appellant objected, urging that under the evidence in this case the jury should be instructed, as a matter of law, that they were engaged in a joint venture, or at least the court should submit the issue of whether the3r were engaged in a joint venture to the jury.

Joint venture, variously called joint enterprise, common purpose and joint adventure, has been the subject of confusion in this state, and we therefore seize upon this opportunity to attempt to clarify the law. There is no confusion, however, about the basic law of joint enterprise.

“This court has consistently held that in order for a joint enterprise to arise two fundamental and primary requisites must concurrently exist, to-wit: a community of interest in the object and purpose of the undertaking in which, the automobile is being driven and an equal right to direct and govern the movements and conduct of each other in respect thereto. If either or both of these elements is absent, there is no joint enterprise.” Woodard v. Holliday, 235 Ark. 744, 361 S.W. 2d 744.

The confusion has arisen relative to application of the law and in erroneous use of the term; that is, mislabeling apparent “assumption of risk” as “joint enterprise.” This mislabeling has evolved into what could be called the “drunken joint enterprise” theory. This unique “theory” seems to have resulted from a misconception of the language in Albritton v. Ferguson, 197 Ark. 436, 122 S.W. 2d 620. Careful scrutiny of Albritton reveals that this opinion fails to say that -which subsequent decisions appear to say it says on joint enterprise. In Albritton there was testimony that eight young people had gone in one car to Pine Bluff where they visited road houses, drank and danced, the collision occurring on their way home. The Supreme Court, after finding that the trial court erred in giving an instruction which assumed as a matter of law that Parker (the driver) and Miss- Albritton were engaged in a joint enterprise, concluded its discussion on this matter as follows:

“So it must appear that this question, so frequently referred to as ‘common purpose,’ or ‘joint enterprise,’ or ‘joint adventure,’ should be defined according to the definitions that we have hereaafter given. If upon a new trial the court may not determine, as a matter of law, from undisputed evidence whether the relation between the parties, the driver of the automobile and Miss Albritton, was such as to be classed as a joint enterprise, or whether they were merely host and guest, and it be necessary to a proper conclusion, on account of disputed evidence, or evidence of such character that reasonable men might differ as to its effect and value, the court will in such event submit to the jury the proposition and give instructions so as to determine the relative rights of the parties as their relations may have been determined arising out of this question as to joint enterprise, or host and guest.”

A divided court in Missouri Pacific Transportation Co. v. Howard, 201 Ark. 6, 143 S.W. 2d 538, reversed a judgment in favor of appellee passenger because of erroneous instructions. Before discussing the instructions, the court stated that there was- sharp conflict in the testimony, appellee’s evidence being that the driver and passengers were sober, appellant’s being that they were drunk, “in the car . . . 'driving around on pleasure bent,” and then said, “If this testimony is true [i.e., all inebriated], the parties in the car were engaged in a joint enterprise, and the negligence of the driver would be imputed to each of them. Albritton v. Ferguson [supra].” To set the record straight, if the group, appellee, the driver and other passenger, were, drunk, appellee may have “assumed the risk” [J. Paul Smith Co. v. Tipton, 237 Ark. 486, 374 S.W. 2d 176], but the facts reflected in the Missouri Pacific Transportation Go. v. Hoivard opinion, supra, do not meet the criteria of joint enterprise as we understand them in the law of Arkansas. Woodard v. Holliday, supra.

In Wilson v. Holloway, 212 Ark. 878, 208 S.W. 2d 178, the court cites Missouri Pacific Transportation Go. v. Howard, supra, and Albritton v. Ferguson, supra, as authority for the “drunken joint enterprise” theory, and then states:

“In the case of Sparks v. Chittwood Motor Co., 192 Ark. 743, 94 S.W. 2d 359, Justice Mehaffey approved the following statement from Berry on Automobiles, § 5.181: ‘If the occupants and driver of an automobile drink together and become intoxicated, each is as responsible as the driver for negligent driving, and none can recover for injuries due to such negligence.”

The logic in this quotation is well-founded in the law of assumed risk and was ample basis for the holding in Wilson v. Holloway without reference to the dicta on ‘ ‘ drunken joint enterprise. ’ ’ See Sparks v. Chitwood Motor Co., supra.

The true test of joint enterprise has been succinctly stated as follows:

“Any one of several persons engaged in an enterprise is barred from recovery against a negligent defendant by the contributory negligence of any other of them if the enterprise is so far joint that each member of the group is responsible to third persons injured by the negligence of a fellow member.” Restatement, Torts, $ 491 (1934).

In the case at bar there was no substantial evidence that Hubbard was intoxicated on the journey home. Under the facts here obtaining, the test would be whether Peebles, asleep on the back seat, would have been liable to Vasquez or Hurley for negligent driving of Hubbard. Clearly ho would not.

Affirmed.

       The court distinguished Albritton from the Chitwood case, infra, as follows:
      “It was not shown that Miss Albritton did very much drinking, but even if she had been drinking there is no development of the case that tends in the least to show that this might have affected the driving of the car, nor do we think that such drinking that she may have done at the time shows or establishes a condition as relates to her, similar to that in the Chitwood case. Sparks v. Chitwood Motor Co., 192 Ark. 743, 94 S.W. 2d 359.”


author: Frank Holt, Associate Justice.

text:
    Ashworth v. Hankins.
    5-3238
    384 S. W. 2d 254
    Opinion delivered November 30, 1964.

      Murphy & Burch, for appellant.
    No-brief filed for Appellee.
   Frank Holt, Associate Justice.

In 1953 the appellees, H. C. Hankins and Mrs. H. C. Hankins, contracted to sell realty to certain parties who, in 1960, assigned their rights under the contract to the appellants, Leon Ash-worth and Fannie Jo Ashworth, with the consent of the appellees. Now the appellants, as buyers, have sued the appellees, as sellers, for the specific performance of their contract. When the appellants completed their testimony the appellees filed a written demurrer to their evidence. The trial court sustained the demurrer and dismissed appellants’ complaint. On appeal the appellants contend, in effect, that they presented a prima facie case and, therefore, the chancellor should not have sustained a demurrer to their evidence. We must agree with the appellants.

It is a well settled rule that where a demurrer to the plaintiff’s evidence has been sustained such evidence, on appeal, must be viewed in the light most favorable to the appellant. Werbe v. Holt, 217 Ark. 198, 229 S.W. 2d 225. As we reiterated in the very recent case of Brock v. Bates, 227 Ark. 173, 297 S.W. 2d 938:

•“* * * the Court must give the ,evidence its strongest probative force in favor of the plaintiff and rule against the plaintiff only if such evidence, when so considered, fails to make out a prima facie case.” [Emphasis added]

In the case at bar an examination of the contract reveals that the total purchase price was $6,000.00 payable in monthly installments of $50.00 each. According to the evidence, including the notations on the contract, the appellants became delinquent several times as much as one, two and three months. Multiple payments on these delinquencies were accepted by appellees. The last pay-meat was made in June, 1962, at which time there was a balance owed of $2,205.47. The appellants filed their complaint in October, 1962, seeking specific performance and alleging, inter alia, that they had previously tendered, and with the filing of this complaint tendered, the full balance dne under the terms of the contract. There was evidence that in September, 1962, the appellees were told the appellants would have the money to pay the entire balance within a few days because they had sold the property and the purchaser’s loan depended upon approval of the title; that it was appellants ’ understanding that the appellees had no objection to waiting for completion of the loan to pay off the balance due under the contract; that instead, appellees withdrew from the escrow agent the contract and other papers and refused to convey the property to appellants. Upon filing of the complaint there was again tendered the full balance, including interest, an insurance premium, and one year’s taxes which appellees had paid.

~VVe have long adhered to the rule that equity ahors a forfeiture. Friar v. Baldridge, 91 Ark. 133, 120 S.W. 989. There we said:

“* * * It is a well-settled principle that equity abhors a forfeiture, and that it will relieve against a forfeiture when the same has either expressly or by conduct been waived.”

The reason for this rule is aptly expressed in Williams v. Shaver, 100 Ark. 565, 140 S.W. 740, where we said:

‘ < * *• * It is well recognized that the right of forfeiture is a harsh remedy and liable to produce. great hardships.”

In the case at bar approximately $4,000.00, plus interest, had already been paid on the original contract over a period of nine years. During the fifteen months preceding this litigation the appellees had accepted in multiple payments the repeated delinquencies of appellants.

In the very recent ease of Berry v. Crawford, 237 Ark. 380, 373 S.W. 2d 129, the contract provided that time was of the essence and we required specific performance although the payment was not tendered until after the due date. In holding’ that the vendor was not entitled to a forfeiture we again recognized the equitable principle that forfeitures are abhorred and equity will seize the slightest circumstance indicating a waiver in order to avoid or prevent a forfeiture. In the instant case the contract in question does not express that time is of the essence. See, also, Vernon v. McEntire, 232 Ark. 741, 339 S.W. 2d 855, and Feibelman v. Hill, 141 Ark. 297, 216 S.W. 702.

In the case at bhr, when we view the evidence presented by the appellants in the light most favorable to them'and apply this evidence to the rules enunciated by these cases, it must be said that the appellants’ evidence constituted a prima facie case. It therefore follows that the case must be reversed and remanded with directions to overrule the demurrer and for further proceedings not inconsistent with this opinion.

Reversed and remanded.