author: George Rose Smith, J. Jim Johnson, Associate Justice, Ed. F. McFaddin, Associate Justice,

text:
    McCollum v. Rogers
    5-3341
    382 S. W. 2d 892
    Opinion Delivered October 19, 1964.

      Eugene 8. Harris and Bridges, Young £ Matthews, for appellant.

      McMath, Leatherman, Woods £ Youngdahl, for appellee.
   George Rose Smith, J.

This is a claim filed by the appellees, the widow and children of Orvis Noel Rogers, for death benefits under the workmen’s compensation law. The Commission denied the claim upon the ground that the ease falls within the “going and coming rule,” which exempts the employer from liability for an injury that occurs while the employee is traveling to or from his place of work. The circuit court reversed the Commission’s decision, holding that the decedent’s transportation was being furnished by his employer, so that the case comes within a recognized exception to the exclusionary rule. The single question is whether the Commission’s decision is supported by any substantial evidence.

Rogers, a tractor driver, was one of a seven-man crew employed by McCollum in logging operations. Jim Garlington was the foreman of the crew. For a month or two before Rogers’ death Garlington had been picking up Bogers and two other members of the crew and taking them to and from work daily in his pick-up truck. Two ■other men in the crew provided their own transportation. The remaining two were truck drivers who drove their employer’s trucks to and from work.

Bogers lived about a mile from Highway 167. It was his practice to drive his own car to the highway in the morning in time to meet Garlington at about 6:30. Bogers would leave his car by the highway and ride with Garlington to the logging site, a distance of nine miles or more. It was understood that if Garlington did not appear by 7:00 a.m. it meant that the crew would not work that day.

On the morning of Bogers’ death the weather was bitterly cold, a few degrees above zero. Garlington decided that it was too cold to work in the woods and therefore made no attempt to pick up his passengers. 'There is evidence that Bogers drove to the highway as usual and kept his engine running and his heater operating while he waited. Apparently Bogers started to go back home when Garlington did not show up within the agreed time. At about 8:15 a mail carrier discovered Bogers’ car stopped on the road at a point more than halfway along the return route to his home. The position of the car indicated that Bogers may have attempted to park on the righthand side of the road. The engine was still running, and Bogers’ lifeless body was slumped over in the driver’s seat. The cause of death was carbon monoxide poisoning. Mrs. Bogers testified that there was something wrong with the muffler on the car, but her husband had not indicated that the condition was dangerous.

Counsel for the appellees contend that Garlington was acting for his employer in driving Bogers to and from work. From this premise it is argued that Bogers was also in the course of his employment while waiting in his own car beside the highway and that the onset of his asphyxiation must have taken place before he started to return to his home. We find it unnecessary to test this chain of reasoning, for there is substantial evidence to support the Commission’s finding that Rogers’ transportation was not being furnished by his employer.

The governing rule of law was applied in Cerrato v. McGeorge Contracting Co., 206 Ark. 1045, 178 S. W. 2d 247, and O’Meara v. Beasley, 215 Ark. 665, 221 S. W. 2d 282. In both those eases the injury occurred while fellow employees were riding together, but the Commission found that the transportation was not being provided by the employer. In view of that fact we upheld the Commission’s denial of compensation. On the other hand, in the cases principally relied upon by the appellees, Hunter v. Summerville, 205 Ark. 463, 169 S. W. 2d 579, and Blankinship Logging Co. v. Brown, 212 Ark. 871, 208 S. W. 2d 778, the Commission awarded compensation upon a finding that the employees’ transportation was being furnished by the employer. We affirmed that finding. Thus there is no essential conflict in our decisions.

In the case at hand there is sufficient proof to support the Commission’s conclusion that this particular arrangement was a matter between fellow employees, not imputable to their employer. G-arlington unquestionably owned the pick-up truck that he used in going to and from work. There is no proof that McCollum contributed anything to the expense of its operation. In fact, it does not appear that G-arlington’s conduct in giving a ride to some of his crew involved any additional expense to himself, for he did not have to go out of his way to pick them up. McCollum, the employer, stated that he paid no part of Rogers’ transportation expense. He did not care whether Rogers traveled to the highway in his own car, or walked, or rode with a neighbor. “He was just supposed to bring himself to work.” The fact that two other members of this same crew provided their own transportation is contrary to the inference that the contract of employment contemplated transportation by the employer.

We do not discuss the various inferences and arguments that are relied upon by the appellees. These are matters that addressed themselves to the Commission. It is our duty to view the evidence in the light most favorable to that tribunal’s findings. To affirm the circuit court’s decision we should have to declare as a matter of law that fair-minded men could reach no conclusion except that the arrangement between Garlington and Rogers was actually chargeable to McCollum. Such an extreme position is not dictated by our prior decisions, liberal though they have been in this particular field. The Commission was free to conclude that Garlington voluntarily used his own vehicle to carry some of his crew to work at his own expense, with no prearrangement or participation on the part of McCollum. We are not permitted to set aside the Commission’s decision upon a disputed question of fact.

Reversed.

Harris, C.J., not participating. McFaddin, J., concurs. Johnson, J., dissents.

Jim Johnson, Associate Justice,

(dissenting). I do not agree with the majority opinion. I would affirm the judgment of the circuit court. The logic of its ruling in my view cannot be refuted. The opinion of the learned judge is hereby quoted in full as it lucidly presents the basis of my dissent.

“This court has no hesitancy in reversing the Commission in this case because the material facts are undisputed. Compensation thus resolves itself into a question of fact. Orvis Noel Rogers was a tractor driver of Gilbert R. McCollum, a lumber mill owner and logger, whoso Avoods crew at the time of Rogers’ death was engaged in cutting a tract five miles north of Kingsland for McCollum’s mill at Farindale. This tract was approximately twenty miles from the point on Highway 167 where Mc-Collum’s Avoods foreman picked up Rogers by prearrangenient and invariable custom. The woods foreman, Jim Garlington, picked up íavo other employees at another point on Highway 167 about 4. miles from where Rogers Avas picked up. Garlington Avas in complete charge of the woods crew and McCollum testified that whatever arrangements he made were ‘satisfactory with him.’

‘ ‘ This arrangement had been in effect for about two months, significantly since work on the Kingsland tract ■had begun. In the Referee’s opinion, adopted by the Commission, this arrangement was not considered to be an incident of the employment, but merely as an ‘ arrangement between fellow employees’. Such a view completely overlooks the fact that Garlington was in complete charge of the woods operations for Mr. Collum. Garlington was more than a fellow employee. He had the sole responsibility for the operation on which the deceased was employed. In all the arrangements he made and all that he did in carrying out these arrangements he was McCollum’s alter ego. No other conclusion can be drawn from the evidence in this case.

“There is another factor that is equally persuasive in my finding that the transportation provided by Garlington was company-furnished transportation and thus an incident of the employment. Rogers lived a considerable distance from the Kingsland tract. On a salary of $50 per week it is inconceivable that he would have been expected to furnish his own transportation, into the log woods. To have expected Rogers to drive his automobile 35 or 40 miles a day and support a family of seven on a salary of $50 per week is hardly likely. Mr. Garlington would have had great difficulty in maintaining a woods crew under such an arrangement. Quite obviously the monetary benefit of free transportation by his foreman into the distant log woods was an important consideration in the employment relationship. (See Ward v. Cardillo, 135 F. 2d 260 (D. C. 1943) infra.) It cannot be dismissed as ‘an arrangement made between fellow employees of the respondent, and . . . not imputable to the respondent. ’

“The arrangement for picking up Mr. Rogers was quite specific. He was to be at the point where the county road on which he lived intersected Highway 167 at 6:30 A.M. He was to remain at this location until 7:00 A.M. If Garlington had not arrived by then, it could be assumed -that he had decided not to work the crew because of weather conditions and Rogers could return home. There is a small clearing at the intersection and Rogers always waited there for Garlington. The various witnesses estimated this clearing to be from two-fifths to three-fourths of a mile from Rogers’ home.

“On Monday, January 14, the day before Rogers’ death, the crew worked only part of the day because of the cold. Mr. McCollum saw Rogers in Farindalo at about 5:00 P.M. Rogers was specifically told that part of the crew would work the next day and that he could work. According to his wife, Rogers understood from, McCollum that he was supposed to work the next day, regardless of the cold, for he told her when they discussed the exceptional cold (8 degrees), ‘But he told me to be there and I’ve got to go.’

“Obviously McCollum did not tell his foreman, Garlington, that Rogers had been instructed to work the next day. Garlington got up around 5:30 A.M., went outside and decided it was too cold to work. Rogers had no ’phone and this decision was not communicated to him.

“Rogers got up between 5:00 and 5 :30 and left home a few minutes after 6:00 A.M. A neighbor followed his car out to the clearing at the intersection and another neighbor at 6:20 or 6:25 A.M. saw his car in the clearing with the motor running. .Since his standing instructions were to remain at this point until 7:00 A.M., it must be assumed that he remained in the clearing, waiting for Garlington, until this time or shortly thereafter. He then started back to his home from the clearing. As stated above, this distance was estimated as between two-fifths and three-quarters of a mile. When he reached the turnoff from the county road to his home, he lapsed into unconsciousness. His car nosed off of the road into some little bushes. According to the undertaker the front end of the car was completely off the road as if he didn’t turn far enough to the right. At about 8:15 or 8:30 A.M. the rural mail carrier found Rogers’ lifeless body in the automobile. The motor was still running. "While he went to notify Mrs. Rogers, the car ran out of gasoline and the motor stopped. Mrs. Woodrow Burford, a close neighbor of the Rogers, who lives to the left of the road leading to Rogers’ home, heard and saw the Rogers car at the location where the mail carrier found it. It had its lights on and periodically the motor raced. She could not fix the time when the car reached this location except to say that it was between 6:30 and 7:30 A.M.

“The undertaker testified that Rogers’ skin had the reddish tint and his blood the bright red color that is characteristic of carbon monoxide poisoning. The referee’s finding, adopted by the Commission, was that death occurred from this cause. Carhou monoxide poisoning is so common and has been so widely studied that we may take judicial knowledge of the mechanism by which it produces death in the human body. The gas is tasteless, colorless and odorless and is formed by burning carbon fuels in a deficiency of air or oxygen. The gas forms a relatively stable compound with haemoglobin, the part of the blood which carries oxygen from the lungs. The formation of this compound called carbonic oxide haemoglobin prevents the haemoglobin from carrying oxygen and asphyxiation results. Of course, it takes some time for this process to reach fruition. Here it undoubtedly began at the clearing where Rogers was waiting for his foreman, because he would have driven the short distance from the point at the clearing to the point where he became unconscious in about a minute. It would have required a longer period to build the deadly compound to a critical point in his bloodstream. It is common knowledge that carbon monoxide concentration builds faster in a stationary car than in one which is moving because some air is forced into a moving car.

“CONCLUSIONS OF LAW

“The first legal question to be decided is whether the arrangement between the foreman Garlington and Rogers constituted company-furnished transportation. The referee and the Commission held that it did not and snclx holding formed the principal basis for a denial of compensation to the widow and five children. The holding however, overlooks such cases as Hunter v. Summerville, 205 Ark. 463, 169 S. W. 2d 579 (1943), and Blankenship Logging Co. v. Brown, 212 Ark. 871, 208 S. W. 2d 772 (1948), where compensation was awarded under similar circumstances. In the former case the claimant was a timber cutter who received injuries while riding home from work in a truck. The employee lived about fifteen miles from where the work was being carried on, and at the hearing the employer when asked about the arrangement with his men as to transportation to and from work said: ‘We had trucks going out theré and if they wanted to ride, they could.’ This is quite similar to McCollum’s testimony in the instant case. There are two other significant similarities to Hunter v. Summerville. In the latter case the truck ivas owned by a sub-contractor working on the same job. Secondly, the custom was for the employees to furnish their own transportation to a certain filling station where they would be picked up.

“In the Blankenship case the employer actually owned the vehicle in question, but it was being driven on the day of the death of the claimant’s decedent by an allegedly unauthorized employee. The court pointed out that for the exception to be applicable to the transportation arrangement need not be rigid nor clearly defined. It is only necessary that the transportation be furnished in some manner by the employer ‘for the mutual benefit of himself and the workmen of facilitate the progress of the work.’ The court at 212 Ark. 875-76 quoted:

‘This exception to the rule may arise either as the result of custom or contract, express or implied. It may be implied from the nature and circumstances of the employment and the custom of the employer to furnish transportation . . .

‘ ‘ ‘ There are no rigid legal principles to guide the Deputy Commissioner in determining whether the employer contracted to and did furnish transportation to and from work. “No exact formula can be laid down which will automatically solve every case.” (Citing cases.) Bach employment relationship must be pursued to discover whether the employer, by express agreement or by a course of dealing, contracted to and did furnish this type of transportation. . . .’

“Respondents cite the case of Dickinson v. Central Construction Co., 233 Ark. 360, 344 S. W. 2d 599 (1961), a 4-3 decision affirming a denial of compensation by the Commission, where two employees were injured while being transported by their foreman to work from Camden to Pine Bluff. But this case may be easily distinguished. Sales, the foreman, while working in Pine Bluff on some construction jobs, had an apartment there, although his home was at Camden. The claimants also lived at Camden but ordinarily drove their own trucks to the job sites at Pine Bluff. Sales went home to Camden for Thanksgiving. Before leaving Pine Bluff on Wednesday he had not delivered checks to some of his employees and it was necessary for him to return the day after Thanksgiving to perform this duty. Since he had to go from Camden to Pine Bluff he invited claimants to leave their cars and ride with him. Thus, we had an isolated instance of transportation purely for the convenience of the claimants in which their employer had no interest and to which no approval had been given, express or implied, by contract or by custom.

‘ ‘ On the other hand, the transportation in the instant case was regular, daily transportation at an appointed time. It was by virtue of an arrangement made by the employer’s woods foreman when the employer began cutting a tract at a considerable distance from Rogers’ home. It had been in effect for two months, with the employer’s knowledge and acquisence.

“This court has no doubt hut that the Supreme Court would have reached a different result in the Dickinson case if Sales, the foreman, had by prearrangement transported the claimants each day from Camden to Pine Bluff with the tacit approval of the employer, instead of on one isolated occasion for their own convenience. In other words, this case pointed up the testimony of the. claimants ‘that it had not been the custom of practice for the employer to furnish the transportation. ’ 233 Ark. at 362. Therefore, the case at bar is factually akin to Hunter v. Summerville and Blankenship Logging Co. v. Brown, supra, rather than to Dickinson v. Central Construction Co. The former cases are binding on the first issue presented — whether the transportation was company-furnished. It follows then that the Commission erred, as a matter of law, in finding that the transportation was only ‘an arrangement between fellow employees. ’

“The second issue, only touched in passing by the referee and Commission, presents the major difficulty to this court. Even though the transportation here was company-furnished, did Rogers’ death come within the ambit of that transportation? Virtually all jurisdictions recognize that company-fúrnished transportation constitutes an exception to the ‘going and coming’ rule. However, many jurisdictions hold that coverage does not begin until the claimant actually enters the company vehicle. Arkansas, however, is in the vanguard .of those jurisdictions applying a more liberal rule. Simply stated, the liberal rule is that when the employer furnishes the transportation, all the incidents related to meeting, boarding, waiting for, and leaving the employer’s conveyance become compensation-covered incidents of the employment.

“Larson’s textbook, the leading work on workman’s compensation, builds its discussion of the liberal rule around the landmárk Arkansas case, Owens v. Southeast Arkansas Transportation Co., 216 Ark. 950, 228 S. W. 2d 646 (1950). Larson says in Section 1740 of Workmen’s Compensation Law:

“The case which appears to have extended protection the furtherest involved a bus driver who had finished his day’s work, and, pursuant to his privilege of riding home without charge on his employer’s busses, had dashed diagonally across a city street to catch a bus that was about to leave. He was struck by a motorist, and Ms death was held compensable. The court put it this way:

“ 'In effect the Company said to Owens, “Take your pass and go across the street to our bus; your day’s work has been, finished, and we are interested in seeing that you get home as expeditiously as possible.’ ”

“Larson then cites several cases as being in accord with the Arkansas holding. One of these, Flanagan v. Webster, 107 Conn. 502, 142 A. 201 (1928), is almost on all fours with this case. The facts given in the opinion are as follows:

1 ‘ The commissioner made an award of compensation to the plaintiff claimant, from which defendants appealed. The superior court reversed the case upon the finding of the commissioner for the advice of this court. On December 23,1926, the plaintiff was and had been for less than two weeks prior to this date in the employ of the defendant employer and at work upon the state highway in the town of Chosire. The plaintiff lived in the village of West Chesire. The only way in which he could reach his work was through transportation furnished by the defendant employer in one of its trucks which stopped for him in the morning usually at a point on the state road and carried him to his place of work. It ordinarily came along in time to get the men to their work at 6:30 a.m. On the slated morning the plaintiff left his home and walked to the state road where the truck usually picked him up. It was late on this morning • the weather was cold and because of this the plaintiff walked along the road in order to keep warm and upon its left side. The truck came up with him, and stopped on the right-hand side of the road for him to board it. "While plaintiff was crossing the highway to board the standing truck, he was struck by an automobile and sustained a fracture of the femur. The commissioner held upon these facts that the plaintiff when injured was doing something incidental to his employment, and that the injury arose out of and in the course of his employment. The defendants claimed that, as the plaintiff had not actually boarded the truck, he was not on premises controlled by the employer, and consequently, the injury did not arise out of and in the course of his employment.”

The court’s language, in granting compensation, is highly appropriate to the case at bar:

“Thus the employer might designate the place where the automobile was to be boarded; it might be on private property or on a public highway. If the employee went to the designated place within a reasonable time prior, to the time when he was to board the automobile, he would, from the time he reached the designated place, be then carrying out the direction of his employer, and that direction would become an incident of the employment and a part of the means of transportation, just as a railway station, or a bus waiting room, is a necessary incident of the railway or busline. Similarly, when an employee is directed to report each morning at a given place, or to a certain person, to receive instruction as to where he is required to work that day, the relation of master and servant has been held to commence at the time he reported, and his employment to have begun at that time, and that the injury there after occurring, prior to the time of actually beginning work, was suffered in the course of his employment. Milwaukee v. Althoff, 156 Wis. 68, 145 N W. 238, L.R.A. 1916A, 327; Milwaukee v. Industrial Com., 185 Wis. 311, 201 N. W. 240. So it has been held that the fact that the injury occurs while the employee was in the act of boarding the train and not while being transported does not relieve the employer of liability for compensation. Fisher v. Tidewater Building Co., 96 N. J. Law 103, 114 A. 150. Nor does it relieve the employer where the employee is injured when upon his employer’s premises and engaged in the preparation necessary for beginning the work of his employment. . . .

“If the plaintiff had, when he walked from his home to the state road where his employer’s truck usually picked him up, remained at this point, and was there injured while waiting for the truck, there could be no doubt that during the period plaintiff was waiting at this point he was in the course of his employment. His being at this point,, upon this finding, would have been an incident of his employment, and a fulfillment of the implied direction of his employer. Under the authorities we have cited the employee would be held to have been in the course of his employment.

“Here decedent’s injury began at the designated spot where he was to await company-furnished transportation. Rogers reached this point at about 6:10 A.M. The weather was extremely cold (8-10 degrees). We know his motor was running at 6:25 A.M. We know it was still running about 8:15 A.M. when he was found dead in his automobile. He had started home from the clearing where he was supposed to wait until 7:00 A.M. and had lost consciousness.as he started to turn into the driveway to his home, two-fifths to three-fourths of a mile from the clearing. Though the insidious effect of the carbon monoxide rendered him unconscious, a minute or so after he left the clearing, we know that the deadly gas had begun to be absorbed into his blood stream while he was waiting at the spot designated by his foreman where he was to receive company-furnished transportation. So, the injury began while he was at this location. In this respect this case is no different from one of the other cases cited by Larson in Section 1740 as being in accord with Owens v. Southeast Arkansas Transportation Co., supra.

“In that case, Radermacher v. St. Paul City Ry. Co., 8 N. W. 2d 466 (Minn. 1943), claimant, a car cleaner, had a ticket book entitling him to ride free on his employer’s streetcars. While he was waiting for a streetcar in a ‘safety isle’, he was struck by a ‘hit and run’ driver. The injury was held to be compensable.

“Assume that while Rogers was waiting in the clearing, a ‘hit and run’ driver ran off the road, struck his car and killed. This would be exactly the Badermacher case. There is no difference in Rogers’ being killed by a ‘hit and run’ driver and being asphyxiated by carbon monoxide, the deadly effects of which began when Rogers was parked at this location. Nor is the legal import changed, if Rogers ha'd been hit by a ‘hit and run’ driver and badly injured, but in order to get help, walked back down the road toward his home and collapsed and died before reaching there.

“Other cases awarding compensation in similar fact situations are: Sibler v. Lincoln-Alliance Bank & Trust Co., 280 N. Y. 173, 19 N. E. 2d 1008 (1939), (claimant injured crossing street to home where foreman had taken him after late work); Ward v. Cardillo, 135 F. 2d 260 (D. C. 1943) (claimant injured crossing street to board company truck which picked him up morning at 7:00 A.M.; free transportation found to be a part of compensation, since it saved claimant $5 per day in transportation costs); Povia Bros. Farms v. Valez, 74 So. 2d 103 (1954) (claimant injured crossing road to board company truck, which picked up employees in neighborhood each morning as driver saw them, no particular assembly point being designated).

“Cases involving compensable deaths from carbon monoxide are: Mascika v. Connecticut Tool Engineering Co., 147 Atl. 11 (Conn., 1929) (decedent asphyxiated in own car preparing to go on trip to collect bills) ; Derleth v. Roach & Seedier Co., 227 Mich. 258, 198 N. W. 948 (1924) (decedent, a traveling salesman, fearing batteries would freeze in very cold weather, went home to test them in own garage, where he was asphyxiated); Leilich v. Chevrolet Motor Co., 328 Mo. 112, 40 S. W. 2d 601 (1931) (traveling salesman asphyxiated while changing-tire in home).

“Mention might also be made of the State Employees’ Retirement System v. Industrial Commission, 97 Cal. App. 2d 380, 217 P. 2d 922 (1950). A game warden, who sometimes slept in his car while on night patrol,, was found dead of carbon monoxide on a secluded side road. The interior of the car had been made into a bed and at the decedent’s side was the nude body of a female (not his wife). The California court affirmed an award of compensation. If California can grant compensation under these circumstances to one of its citizens, surely compensation is justified in Arkansas by reason and justice, in the case at bar. More, instead of being overcome while at an assignation, Rogers was overcome when he went, under an express work order from his employer, to a point where he was customarily picked up by his foreman. The foreman -was not told by the employer that Rogers was to work and because of the extreme cold (8-10 degrees) decided not to pick up the crew. This decision was not communicated to Rogers and he was asphyxiated by carbon monoxide, while vainly waiting for his foreman in the extreme cold.

“In view of this court there is more work-connection with the death here than in Owens v. Southeast Arkansas Transportation Co., supra, and the other cases discussed supra. The usual transportation afforded Rogers was an incident of the employment, but because of the events surrounding Rogers’ presence at the clearing on this particular morning, the failure to provide transportation was even more of an incident of the employment.”

For the reasons stated, I respectfully dissent.

Ed. F. McFaddin, Associate Justice,

'(concurring). I concur in the reversal of the Circuit Court and the affirmance of the action of the Workmen’s Compensation Commission in disallowing compensation. The Majority Opinion contains this paragraph:

“Counsel for the appellees contend that Garlington was acting for his employer in driving Rogers to and from work. From this premise it is argued that Rogers was also in the course of his employment while waiting-in his own car beside the highway and that the onset of his asphyxiation must have taken place before he started to return to his home. We find it unnecessary to test this chain of reasoning, for there is substantial evidence to support the Commission’s finding that Rogers’ transportation was not being furnished by his employer.”

I agree with the Majority that Mr. Rogers’ transportation was not being furnished by' his employer ; but there are other — and to me equally cogent — reasons why Mr. Rogers was not covered by the Workmen’s Compensation Act at the time of his death.

In the first place, he had left the pick-up point and started home. Some time after 7:00 A.M. Mr. Rogers apparently realized that Mr. Garlington was not coming for him, so Mr. Rogers started back to his home. He drove down the county road about three-fourths of a mile and stopped. He was found dead in his car about 8:15. When Mr. Rogers left the pick-up point on the highway and started home in his own vehicle he ceased any semblance of coverage under the Workmen’s Compensation Act, and for that reason I think the Commission was correct in denying compensation.

Another and equally cogent reason for denying compensation is the fact that there is no evidence that Mr. Rogers received the “lethal dose” of carbon monoxide while he was on the highway waiting for Garlington to arrive. Speculation cannot take the place of proof. Mr. Rogers was in possession of sufficient faculties to turn his car around and drive toward home; and we cannot speculate as to when Mr. Rogers received the lethal dose of carbon monoxide.


source: Caselaw Access Project

author: Paul Ward, Associate Justice.

license: Public Domain

text:
    Howard v. Ward
    Howard v. Rhine
    5-3314 & 3315
    383 S. W. 2d 107
    Opinion Delivered October 19, 1964.
    [Rehearing denied November 16, 1964.]

      W. B. Howard & Jack Segars, for appellant.

      Howard A. Mages, Rhine S Rhine, Ward é Mooney, for appellee.
   Paul Ward, Associate Justice.

'On March 18, 1963 appellant (a practicing attorney) filed a complaint in circuit court against Lee Ward (a practicing attorney) alleging, in substance, that Ward accused him of blackmail and criminal libel by filing a “Motion to Dismiss” in another lawsuit; that the said Motion was not relevant or pertinent to the issues in said lawsuit;’that the said Motion was made, filed and published “for the sole purposes of expressing his ill will and animosity toward” appellant and of impeaching his character, honesty and integrity; and, that “by reason thereof he [plaintiff - appellant] should recover” from the defendant $10,000 for compensatory damages and $15,000 for punitive damages.

On the same day appellant also filed a similar complaint against L. Y. Rhine (a practicing attorney) who as co-counsel with Ward joined in filing the said Motion. Since the issues and facts are the same in both cases we will hereafter discuss only Case No. 3314 (Howard v. Ward).

In order to understand clearly the issue raised on this appeal it is necessary to give in chronological order a summary of the background facts and circumstances.

Oil January 13, 1962 Mrs. Orine Carr (represented by appellant, her attorney) sued her husband, George Carr, (a Sergeant in the Air Corps) for divorce, alimony and child support. See Carr v. Carr, 237 Ark. 533, 374 S. W. 2d 359. On January 31, an answer was filed. Oil April 34 George filed a Motion to dismiss Orine’s Complaint — the Motion being based on attached copy of a divorce decree granted to him on March 19, 1962 by a court in Georgia. While the attorneys on both sides were waiting for an opportunity to argue the merits of the divorce case, the appellees here (attorneys Ward and Rhine), on March 8, 1963, filed the said “Motion to Dismiss” the complaint filed by Orine.

The above Motion triggered the present litigation. Attached to the Motion were two letters (dated April 4 and May 2, 1962) written by appellant to George’s Commanding Officer. The letters accused George of being a sex pervert and threatened to prosecute him for abandoning his children. In the Motion appellees stated that the charge of sex perversion was false and amounted to “criminal libel” and “That the threat of criminal prosecution was made with an intent to blackmail this defendant, causing him to accede to the demands of Attorney W. B. Howard and force this defendant to pay large amounts of money in the prosecution and settlement of this divorce case.”

As stated at the beginning, it was upon the above statements that appellant based his complaint against appellees. Answering the complaint, Ward filed a motion for summary judgment, stating that the Motion to Dismiss was “absolutely privileged”. The trial court granted the motion for summary judgment and dismissed appellant’s complaint, using the following language:

“Based upon the pleadings, exhibits and affidavits appearing of record, there is no justifiable issue remaining between the litigants.
“The alleged defamatory matter upon which plaintiff bases his claim to damages was filed as a pleading with a court of competent jurisdiction in the prosecution of an existing cause of action. Said alleged defamatory matter was relevant and pertinent to questions raised in said cause of action of the parties, and was, as a matter of law, absolutely privileged.”

From the above action of the court appellant now prosecutes this appeal.

Appellant and appellee agree (and we concur) that the decisive rule of law applicable here is correctly stated in Mauney v. Millar, 142 Ark. 500, 219 S. W. 1032, in the following words:

“There are two classes of privileged communications recognized in the law governing the publication of alleged libelous matter: One of these classes constitutes an absolute privilege, and the other a qualified privilege, and, according to the great weight of authority, pertinent and relevant statements in pleadings in judicial proceedings are held to be within the first class mentioned, and are absolutely privileged. * * * The test as to absolute privilege is relevancy and pertinency to the issue involved, regardless of the truth of the statements or of the existence of actual malice.” [Cases and authorities cited.]

Following the above quotation in his brief appellant makes this statement:

“Therefore, the prime issue to be determined upon this appeal is, were the charges of blackmail and criminal libel relevant to any issue in the divorce case of Carr v. Carrf”

The pivotal question for decision therefore is: were the questionable words used in the Motion filed in the Carr case relevant to any of the issues therein raised? Fortunately the courts have laid down some rather definite rules to aid us in seeking to resolve this question. In the Millar case, supra, appears the following:

‘ ‘ The following statement of law as to the liberality of the courts in determining what is or what is not pertinent is made in Ruling Case Law, volume 17, p. 336, as follows: ‘As to the degree of relevancy or pertinency necessary to make alleged defamatory matter privileged the courts favor a liberal rule. The matter to which the privilege does not extend must be so palpably wanting in relation to the subject-matter of the controversy that no reasonable man can doubt its irrelevancy and impropriety. In order that matter alleged in a pleading may be privileged, it need not bo in every case material to the issues presented by the pleadings. It must, however, be legitimately related thereto, or so pertinent to the subject of the controversy that it may become the subject of inquiry in the course of the trial. ’ ’ ’

In Bussewitz v. Wisconsin Teachers’ Ass’n, 188 Wis. 121, 205 N. W. 808, 42 A.L.R. 873, the issue was very similar to the issue here. Appellant sued appellee to recover money allegedly spent in its behalf. Appellee answered, accusing appellant of “unlawfully and feloniously” converting association money to his own use. Thereupon appellant brought suit against appellee for $25,000 damages based on the above mentioned answer, claiming the use of the word “feloniously” was not relevant, pertinent or material to the issue involved. The Supreme Court of Wisconsin held otherwise, stating:

“The question of relevancy in these inquiries is for the determination of the court, and not for the jury. In considering whether allegations in a pleading are pertinent or relevant, it does not follow that the same tests are to be applied as on motions to strike out averments as irrelevant. * * *
“In Nebraska it is held that on such an inquiry all doubts should be resolved in favor of relevancy and pertinency. Simon v. London Guarantee & Accident Co., 104 Neb. 524, 177 N. W. 824, 16 A.L.R. 743. In a New York case it was held that if the allegation could possible be pertinent or material the privilege is absolute. Chapman v. Dick, 197 App. Div. 551, 188 N.Y.S. 861.”

The Bussewitz case is reported in 42 A.L.R. 873, with an Annotation citing many cases in support.

Applying the above liberal rule, we are led to conclude that the Motion filed by appellee was relevant to the pending divorce proceeding, as was found by the chancellor in that case and by the trial judge in this case.

If appellant had any purpose in writing the letters to George’s Commanding Officer it obviously was to help his client in the prosecution of her quest for a divorce and especially for alimony and child support. It was not, we think, unreasonable for appellee to assume this was a matter which should be brought to the attention of the trial court. It is not significant, we think, that the Motion was not filed until several months after the letters were written because it is not shown just when they came into appellees’ possession. Neither do we think it is material that the testimony had been taken in the divorce case when the Motion was filed. The case had not been decided or even submitted for decision, and appellees had a right, if not a duty, to try to present all matters affecting the rights of their client.

It is therefore our opinion that the trial court was correct in granting appellees’ motion for a summary judgment, and his action in both cases is hereby affirmed.

Affirmed.


author: Sam Robinson, Associate Justice. Ed. F. McFaddin, Associate Justice,

text:
    City of Jacksonville v. Williams
    5-3316
    383 S. W. 2d 103
    Opinion Delivered October 19, 1964.
    [Rehearing denied November 16, 1964.]

      Howell, Price £ Worsham, for appellant.

      James Tj. Sloan, for appellee.
   Sam Robinson, Associate Justice.

0. Loren Hudson and Ben G-. Williams originally filed this suit against the City of Jacksonville contending that some time prior to February 15, .1958, they were employed as deputy marshals for the City of Jacksonville; that on February 15, 1958 they were wrongfully and illegally discharged by the Mayor of the city. Later, Ben G. Williams died, and the suit in his behalf was carried on by the administratrix of his estate. It is alleged'that Hudson and Williams were entitled to be paid at the rate of $275.00 per month for the balance of the year 1958, and prayed for a judgment accordingly. The cause was tried in April, 1963; there were judgments in favor of the plaintiffs; the defendant, the City of Jacksonville, has appealed.

Ark. Stat. Ann § 19-1104 (Repl.-1956) provides that the city marshal shall have power to appoint one or more deputies. It is stipulated that one Garner, who was the marshal of Jacksonville, appointed Hudson and Williams for the year 1958, and on February 15, 1958, the Mayor of the City of Jacksonville discharged Garner, the marshal, and the deputy marshals. One Kennedy took over the duties of marshal. Garner filed suit against Kennedy alleging that he had usurped the office of marshal There was a judgment in the circuit court to' the effect that Garner was entitled to the office. Kennedy appealed to this court. We held that without the approval of the City Council the Mayor did not have the authority to discharge the marshal, and that Garner was, therefore, entitled to the office. Kennedy v. Garner, 230 Ark. 698, 326 S. W. 2d 810.

It is now contended that Hudson and Williams had been appointed for the entire year by Garner, and that the Mayor had no authority to discharge them; that they were entitled to their salaries from the 'city for that part of the year in which they had no other employment, notwithstanding the fact that subsequent to February 15, 1958 they did no work for the city.

The City Council fixed the deputy marshals’ salaries at $275.00 per month, but the Council had the right to withhold the payment of such salaries when the employees did not work, and evidently did withhold such salaries, otherwise no suit would have0 been filed. The statute provides that the marshal may appoint deputies, ánd it was held in Conner v. Burnett, 216 Ark. 559, 226 S. W. 2d 984 that cities are authorized to pay salaries to deputy marshals, but there is no statute requiring the city to pay salaries to deputy marshals, and although there is a city ordinance fixing the salaries of the deputies, the deputies have no cause of action against the city for salaries where they have done no work to earn such salaries. Although the deputies may have been discharged by someone exceeding his authority, the fact is that they did no further work for the city, and in these circumstan'ces they were only entitled to the fees as set out in Ark. Stat. Ann. § 19-1104 (Repl. 1956) which provides that deputy marshals ‘£ shall receive the like fees as sheriff and constable in similar cases”.

In State ex rel Rusch v. Board of County Commissioners of Yellowstone County, 191 P. 2d 670, the court said: “. . . The status of deputies necessitate the holding that such subordinates are not ‘public officers’ who may receive the compensation prescribed for their services merely by virtue of their appointment without regard to whether they render service in the position or not.”

Reversed and dismissed.

MoFaddin & Johnson, J.J., dissent.

Ed. F. McFaddin, Associate Justice,

(dissenting). I respectfully dissent because I am of the opinion that the judgments of the Circuit Court in favor of Williams and of Hudson should both be affirmed, largely under the authority of our holding in Kennedy v. Garner, 230 Ark. 698, 326 S. W. 2d 810. In that case Garner had been chosen as Marshal for the City of Jacksonville for the year 1958. He was serving as such Marshal on February 15, 1958, when the Mayor discharged him and appointed Kennedy in his place. This Court held that Garner was entitled to the office of Marshal because the Mayor had no right to discharge him and that Garner had never abandoned his office. In the appellants ’ brief in the present case it is stated that Garner received his salary for the balance of the year 1958 because of our holding in Kennedy v. Garner.

By the same token, I think Garner’s two deputies— Williams and Hudson — should recover their full salary for the year 1958, less what they earned in other work. If the Mayor had no right to discharge the Marshal, he certainly had no right to discharge his deputies, whose pay scale of $275.00 per month had been approved by the City Council of Jacksonville.

The agreed statement of facts says:

“I. 0. Loren Hudson and Ben G. Williams were duly appointed and qualified as deputy marshals of Jacksonville on January 15, 1958, at which time Jacksonville was a city of the second class, in accordance with Ark. Stats. (1947) § 19-1104.
“II. After January 15, 1958, and until January 2, 1959, at which time the term of office of the appointing marshal, C. S. Garner expired, O. Loren Hudson and Ben G. Williams did not abandon their offices as deputy marshals, nor were they removed from their offices as deputy marshals, except that the following events occurred:
(a) On February 15, 1958, the mayor of Jacksonville purported to remove O. Loren Hudson and Ben G. Williams from their positions as deputy marshals . . .
(b) At all times relevant hereto after February 15, 1958, the mayor prevented O. Loren Hudson and Ben G. Williams from functioning in their offices as deputy marslials and prevented the payment of any compensation to them as such deputy marshals. ...”

Both Mr. AVilliams and Mr. Hudson filed the present action for their unpaid salaries for the balance of 1958, and each credited on his claim for unpaid wages the amount he had been able to earn at other employment. The Trial Court found: “Ben G. Williams made a reasonable effort to minimize his damages and did so to the extent of earning $770.00.” The Court also found that Mr. Hudson made a reasonable effort to minimize his' damages and did so to the extent of earning $600.00. I maintain that these two deputy marshals were duly employed by Marshal Garner, agreeable to the City Council and at an agreed monthly pay scale of $275.00 each; and each was wrongfully discharged (just as was Marshal Garner); and that each is entitled to recover his monthly pay for the balance of the calendar year 1958, less what he was able to earn at some other employment. Therefore, I would affirm the Trial Court.

Johnson, J.,‘ joins in this dissent.

       Mr. Williams died on October 15, 1963.


author: Jim Johnson, Associate Justice.

text:
    Flunder v. Childs
    5-3273
    382 S. W. 2d 881
    Opinion Delivered October 19, 1964.

      Wilbur Bolts, for appellant.

      Chris Carpenter, for appellee.
   Jim Johnson, Associate Justice.

This litigation involves title to real property and was commenced as an action in ejectment.

On January 11, 1945, a deed from Mrs. M. E. Lumsden to Mary Jackson and W. J. Jackson, her father, was filed for record in Arkansas County. We will refer to the deeded property as Lot 12. The deed was dated January 9, 1945, and recited a consideration of $850.00. At that time and thereafter until her death, Mary Jackson was the wife of Robert Sam Hobson. The Hobsons owned and operated a cafe on nearby property (known as Lot 10) and W.' J. Jackson, Mary’s father, lived in the back of the cafe. Sometime after the deed the Hobsons built or remodeled a house on Lot 12 and lived there until their respective deaths.

On February 23, 1952, Mary Jackson Hobson died intestate without descendants leaving her father as her only heir at law and Hobson as her surviving spouse. Hobson continued to live in the home on Lot 12 ,and Jackson continued to live in the rear of Hobson’s cafe on Lot 10.

On September 22, 1962, Robert Sam Hobson died testate leaving a step-daughter by an earlier marriage, Ozella (Hobson) Childs, as executrix and sole legatee.

On October 15, 1962, W. J. Jackson filed a complaint in ejectment in Arkansas Circuit Court, Southern District, against appellee Ozella Childs individually and as executrix of Hobson’s estate to obtain possession of Lot 12, after giving her and her tenant notice to quit. Appellee answered, making general and specific denials and counter-claimed, alleging first that the deed from Mrs. M. E. Lumsden was originally made to Robert Sam Hob-son and Mary Hobson and after preparation and execution the names of the grantees were "illegally and fraudulently” erased and the Jackson names substituted, and the deed should be so reformed and corrected; second, that the Hobsons went into possession of the property about January 9, 1945, improved the lot by building a house on it, claimed title, paid all taxes, and have been in actual, open, notorious and peaceful possession up to the time of Hobson’s death; third, that Hobson had been in actual adverse possession since Mary’s death in 1952, claiming title against Jackson and the whole world for more than seven years. The case was thereafter transferred to Arkansas Chancery Court.

On April 5,1963, W. J. Jackson died testate leaving a nephew, appellant Hilton Flunder, as his sole legatee and executor of his estate. After petition, an order of revivor of the suit was entered September 7,1963.

After trial on September 24, 1963, the chancellor found (1) that appellee failed to show by "clear and concise” evidence the alteration of the deed and denied appellee’s prayer for reformation of the deed, (2) that Hobson had actual, peaceable, continuous, open and adverse possession of the property from 1952 until his death in 1962, more than seven years, that Jackson had knowledge of the adverse possession and made no claim to the property until after Hobson’s death; and (3) that appellee individually and as executrix is the owner of the property by adverse possession and is entitled to a decree of court for said lands. From such decree comes this appeal.

Appellant relies on, three points, the first one being that the decree of the lower court should be affirmed in denying reformation of the deed from Mrs. Lumsden to Mary Jackson and W. J. Jackson, her father.

In Berk v. Beckett, 200 Ark. 1189, 137 S. W. 2d 898, this court said:

“We have many times announced the rule to be that while parol evidence is admissible in a suit to reform an instrument, which has been duly acknowledged, on the ground of mistake, fraud, or mutual mistake, however, such evidence must be clear, convincing and decisive.” [Emphasis ours.]

In the case at bar, the original deed was admitted into evidence as well a pencil-written receipt, both of which appear to have been signed by the same person. The deed, on its face and back, shows that the names originally typed in as grantees were erased and the names “Mary Jackson and W. J. Jackson, her father” typed in over'the erasures. The receipt, dated January 9, 1945 as was the deed, recites “Received of Mary Hob-son and Robert [sic] Hobson Eight Hundred & Fifty on Lot 12, Block 2,” and signed “Mrs. M. E. Lumsden.” There was testimony that Sam and Mary Hobson built or remodeled a house on this property, that Sam paid the taxes and collected the rents. There was ample testimony that during Mary’s lifetime, W. J. Jackson lived at Hobson’s cafe and continued to live there after Mary’s death while Sam occupied the house on Lot 12. It is also undisputed that the deed was recorded on January 11, 1945, two days after it was executed and seventeen years before Sam’s death.

In Gist, adm’r v. Gans, 30 Ark. 285, we held that:

“Mr. Greenleaf says: ‘Generally speaking, if nothing appears to the contrary, the alteration will be presumed to be contemporaneous with the execution of the instrument. But if any ground of suspicion is apparent upon the face of the instrument, the law presumes nothing, but leaves the question of the time when it was done, as well as that of the person by whom, and the intent with which the alteration was made, as matters of fact, to be ultimately found by the jury, upon proofs to be adduced by the party offering the instrument in evidence.’ 1 Greenleaf, Ev., sec. 564.
“In this State we all know that many instruments are written by unskilled persons, and that erasures, interlineations, etc., frequently appear on the face of notes, bonds, bills, deeds and other contracts. We are, therefore, not disposed to sanction a more rigid rule than that expressed in the paragraph above. ...”

In the case at bar the erasures are apparent, but there is no'evidence as to who made them, when, or why. All interested parties in the original transaction, the grantor Mrs. Lumsden, the Hobsons and W. J. Jackson, were deceased prior to the trial. The presence of erasures raises no presumption of fraud, Phipps-Reynolds Co. v. McIlroy Bank & Trust Co., 197 Ark. 621, 124 S. W. 2d 222; Williams v. Welch, 223 Ark. 214, 266 S. W. 2d 61; and on the record before us the chancellor was clearly correct, on this point in finding that there was no clear, convincing and decisive evidence warranting reformation of the deed here in question on the ground of mistake, fraud or mutual mistake. Berk v. Beckett, supra.

The other two points that appellant relies on are: (1) that the trial court committed error "in holding title in appellee by adverse possession, in failing to consider the fact- that Mary Jackson Hobson and Robert Sam Hob-son were husband and wife, and that Robert Sam Hobson continued to live on the property as his curtesy right in his wife’s property after her death, and (2) the court erred in holding that appellee had gained title to the lands in controversy by adverse possession since Robert Sam Hobson, through whom appellee claims title, went upon the lands by permission and had never been any change brought to the knowledge of the owner that he was claiming the land by adverse possession.

Having found that there was no evidence to warrant reformation of the deed, and title was therefore in Mary Jackson Hobson and W. J. Jackson as tenants in common, Robert Sam Hobson’s entry on the land was permissive, that is, as Mary Hobson’s husband. After her death Hobson was entitled to one half of her one half interest in this real property in fee as curtesy. Ark. Stat. Ann. § 61-228 (1947). Thus Hobson, receiving a onefourtli interest, became a tenant in common of this property with W. J. Jackson. This court has had several occasions recently to consider adverse possession by co-tenants. In McGuire v. Wallis, 231 Ark. 506, 330 S. W. 2d 714, where one heir claimed property by adverse possession against other heirs, this court said:

“It must be remembered at the outset that the possession of one tenant in common is presumed to be the possession of all and, further, that in view of the family relation stronger evidence of adverse possession is required in this case than in one where no such relation exists. Staggs v. Story, 220 Ark. 823, 250 S. W. 2d 125; Baxter v. Young, 229 Ark. 1035, 320 S. W. 2d 640. Thus Clovis had a heavy burden of proof.”

Sam Hobson’s entry on the land was permissive as we have said, his wife being a cotenant of this property .with her father. There ismo allegation, and certainly no proof, that Sam claimed adversely to his wife or that his wife claimed adversely to her cotenant, W. J. Jackson. It is true that Mary and Sam lived on the property, paid the taxes, improved the property and collected the rents. After Mary’s death, Sam lived on the property as a cotenant in his own right (by curtesy) and continued to pay taxes and collect rents. In Smith v. Kappler, 220 Ark. 10, 245 S. W. 2d 809, a similar case which reviews a number of citations, it was said:

“While it is possible for a tenant in common to acquire title by adverse possession, we said in Hardin v. Tucker, 176 Ark. 225, 3 S. W. 2d 11: ‘In order for the possession of a tenant in common to be adverse to that of his cotenants, knowledge of his adverse claim must be brought home to them .directly or by such notorious acts of unequivocal character that notice may be presumed.’ ” Here, the testimony is substantial and uncontroverted that there was no change in Hobson’s possession or in his relationship with Jackson after Mary’s death. Jackson continued to live at Hobson’s cafe and Hobson continued to live and pay taxes on Lot 12, which was consonant with Hobson’s collection of the moderate rents from two shacks on the rear of Lot 12. Smith v. Kapplet, supra. Having reviewed all of the testimony on trial de novo, it is onr view that appellee has failed to meet the heavy burden of proof reiterated in McGuire v. Wallis, supra.

The question of proper parties was not raised. See, however, Ark. Stat. Ann. § 61-110 (1947).

Reversed.


author: Frank Holt, Associate Justice.

text:
    Nicholas v. Nicholas
    5-3327
    382 S. W. 2d 887
    Opinion Delivered October 19, 1964.

      Sexton, Morgan <& Robinson, for appellant.

      Jeff Duty, Edgar Woolsey, for appellee.
   Frank Holt, Associate Justice.

This is an appeal from two chancery court orders, one refusing to reduce the appellant’s alimony payment and the other adjudging him in contempt of court for failure to make the payments as ordered.

The appellee was granted a divorce from appellant in 1959. She ivas also awarded custody of their son with $65.00 per month as child support and $50.00 per month as alimony. In 1961, on appeal to this court, we denied any reduction in appellant’s alimony and child support payments. Nicholas v. Nicholas, 234 Ark. 254, 351 S. W. 2d 445. In October of 1963 appellant filed his present petition again seeking a reduction of his alimony payment. The appellee responded by asking for an increase in child support payment. The trial court denied both motions. About two months later the Chancellor adjudged the appellant in contempt for failure to make the payments of child support and alimony as ordered.

On appeal appellant urges that because of a change’ in circumstances the Chancellor erred in refusing his request for a reduction in alimony payment and, also, in adjudging him in contempt.

In August, 1963, appellant was making $400.00 per month at which time he had to undergo surgery for removal of two ruptured discs. He testified this resulted in his removal from the payroll for about six weeks. Since then his salary has been $200.00 per month. This reduction is expected to continue during the remaining period of his convalescence consisting of three to six months.' Appellant’s employer is his present wife. He has been employed by her as the manager and only licensed embalmer in her funeral home since they married shortly after appellant’s divorce. The appellant testified that he owns no property other than a motor boat and ski rig valued at $1,800.00 and that all property, including a 1963 family car, is owned by his present wife.

The evidence on behalf of the appellee reflects that certain real estate, which appellant testified was owned by his wife, was assessed in both their names; that a variety of advertising material indicates that the Hardwicke Funeral Home is owned by appellant and his wife. None of these publications reflect that he is the manager. The funeral home cannot legally operate without a licensed embalmer. Since his injury it has not been necessary to employ another in that capacity or add any other employee. The appellee’s salary is $230.00 per month as a bank employee where she was employed when the case was previously before us. Their son, now eighteen years of age, is in college and requires a minimum expenditure of $100.00 per month as a student. He has a skin disorder that has necessitated a drug expense of approximately $40.00 per month which will continue indefinitely.

The Chancellor, as the trial court, had before him the witnesses and observed their demeanor in every respect. He was in a position to see more than the printed word which alone comes to this court. Therefore, with this conflict in evidence, we cannot say that the finding of the chancery court in denying the reduction of alimony and adjudging the appellant in contempt in this unique case is against the preponderance of the evidence.

The decree is affirmed.


author: Carleton Harris, Chief Justice.

text:
    Tenbrook v. Daisy Mfg. Co.
    5-3299
    383 S. W. 2d 101
    Opinion Delivered October 26, 1964.

      Rex W. Perkins, Walter R. Niblock and Sam A. Weems, for appellant.

      Riddick Riff el, for appellee.
   Carleton Harris, Chief Justice.

This is a Workmen’s Compensation case, wherein appellant contended that she was accidentally injured in the course of her employment, and thus entitled to compensation benefits. The Heferee made a finding in her behalf, but this decision was reversed by the full Commission, and on appeal the Circuit Court of Washington County upheld the findings of the Commission, and entered its judgment accordingly.

This case must be affirmed under Rule 9 (d). In Vire v. Vire, 236 Ark. 740, 368 S. W. 2d 265, we said:

“* * * We have stated numerous times that we are not required to explore a record that is presented to us, but that the diity rests on appellant to furnish this court such an abridgment of the record as will enable us to understand the matters presented. See Allen v. Overturf, 236 Ark. 387, 366 S. W. 2d 189, and cases cited therein.”

The record in this case contains over two hundred and twenty-five pages of pleadings, exhibits, and testimoiiy; but tbe only portion abstracted is tbe opinion of tbe Referee in granting tbe award.

When appellees, prior to tbe submission of tbis case, moved (in tbeir brief filed with tbe court), that tbe judgment be affirmed because of appellant’s failure to comply with Rule 9 (d), appellant sought permission to supplement ber brief with an abstract of tbe judgment and testimony; but tbis likewise is not permissible. In Reeves v. Miles, 236 Ark. 261, 365 S. W. 2d 460, we said:

‘ ‘ Tbe fact that tbe appellant, in ber reply brief, has abstracted tbe record does not, in our opinion, justify us in waiving tbe total failure to comply with Rule 9 (d) in tbe first instance. To do so would be manifestly unfair to tbe appellees. They were not required to supply tbe deficiency and were at liberty, if they thought tbe abstract to be insufficient, to proceed upon tbe assumption that tbe decree would be affirmed. To allow tbe 'appellant to supply tbe abstract in tbe reply brief would have tbe effect of trapping tbe appellees.”

We have consistently, in dozens of cases, applied tbe rule here under discussion.

It follows that the judgment is affirmed; it may be stated, however, that, in tbis instance, appellant has not been prejudiced by failing to present a proper abstract; for tbe judgment would be affirmed on tbe merits of the controversy, and tbe applicable law.

       In the same case, however, it was said: “We stress the fact that here the appellant’s omission was total; we do not intimate that an appellant would be penalized for a mere deficiency such as may result from inadvertence or from a failure to anticipate the appellee’s argument.”


author: Ed. F. McFaddin, Associate Justice.

text:
    Delta Oxygen Co. v. Scott
    5-3290
    383 S. W. 2d 885
    Opinion Delivered October 26, 1964.
    [Rehearing denied December 7, 1964.]

      Smith, Williams, Friday <& Boiven, By: Boyce R. Love, for appellant.

      Gordon & Gordon, for appellee.
   Ed. F. McFaddin, Associate Justice.

Appellee Tommy Scott filed two actions against appellant, Delta Oxygen Company (hereinafter called “Delta”), seeking to recover damages for injuries he sustained while using Delta oxygen in his welding work. In one action Scott claimed that Delta was guilty of negligence which caused his injuries; and in the other action Scott claimed" that Delta breached an implied warranty in regard to the oxygen. The two actions were consolidated for trial; the jury verdict and judgment was for Scott; and Delta brings this appeal, listing six points:

“1. The doctrine of Res Ipsa Loquitur should not have been applied in this case; and, there being no evideuce of any specific acts of negligence on the part of the defendant, a verdict should have been directed by the trial court for the defendant.
“2. There was no privity of contract between the plaintiff and the defendant, and it was error for the trial court to overrule the defendant’s demurrer to the warranty suit.
“3. The court was in error in failing to direct a verdict for the defendant concerning the warranty action, there being no proof that the product failed or was unfit for the purpose intended.
“4. It was error for the court to refuse to strike all of witness Vernon Myers’ opinion testimony.
“5. It was error for the court to give plaintiff’s instruction No. 2.
“6. It was error for the trial court to deny the defendant a new trial when one of the jury commissioners was a party in a case requiring the intervention of the very jury panel he helped select.”

We will discuss some of these assignments under our own topic headings, and the disposition of such matters discussed will make unnecessary the discussion of all the other points.

I. Res Ipsa Loquitur. The Trial Court submitted the negligence facet of the case to the jury with instructions incorporating the doctrine of res ipsa loquitur, and the appellant claims that the Trial Court was in error in so doing. This point has given us most serious concern. The question is whether the doctrine of res ipsa loquitur was applicable to the negligence action under the evidence in this case; and to understand the point it is necessary to state in some detail the factual situation.

Tommy Scott was skilled in the welding business, specializing in the work of “bit re-tipping.” He would take worn down oil well bits and re-tip them by welding new metal on the worn out part. At the time here involved, Tommy Scott was working for his brother, Harry Scott, in tlie shop of the latter in Morrilton, Arkansas. Harry Scott had purchased nine cylinders of oxygen from Delta at its place of business in Little Bock and had transported the cylinders to his workshop in Morrilton. The cylinders were placed standing upright against the wall. The oxygen from one cylinder had been used by Tommy Scott in his welding work, and he was preparing to use the oxygen from the second cylinder when the explosion or fire occurred which caused his injuries.

Tommy Scott testified that in the welding work he was doing it was necessary to use an acetylene torch for the purpose of a flame, and oxygen to make sufficient heat to melt the metal. To make this combination possible he was using a “Victor J-27” torch, from which one green colored rubber hose went to the pressure gauge on the oxygen cylinder and one red colored rubber hose went to the acetylene generator. Tommy Scott testified that when he saw that the oxygen from cylinder No. 1 was running low in the torch, he turned off the oxygen valve and also the acetylene valve on the torch and placed the orifice and the torch in water to extinguish the flame, and laid the torch on the floor.

Tommy Scott described how he then went about the task of putting the new or No. 2 cylinder of oxygen into use: the oxygen cylinder was about five feet high and of very heavy metal, since the oxygen in the cylinder was under 2200 pounds of pressure; he removed the heavy metal cap from the top of the No. 2 oxygen cylinder and slightly and momentarily turned on the valve of the cylinder to allow a small amount of the pressurized oxygen to escape; then he turned off the valve on the new' oxygen cylinder; attached to the oxygen valve on the neto No. 2 cylinder his own regulator or pressure gauge, to which was connected the green rubber hose that was to convey the oxygen from the new cylinder to the torch when he should again turn on the valve of the new oxygen cylinder.

All of the above was accomplished without mishap of any kind. Then Tommy Scott again turned on the valve on the top of the oxygen tank, thereby allowing the oxygen to flow through the pressure gauge into the green colored hose; and instantly when he turned on the valve on the new oxygen cylinder an explosion and fire occurred and he was painfully and seriously burned.

Investigation disclosed that the explosion and/or fire had occurred in the regulator or pressure gauge which Scott had attached to the oxygen tank. This regulator or pressure gauge had two indicators-, one to show the pressure of oxygen in the new cylinder, and the second to show the amount of oxygen leaving the cylinder. The explosion blew away entirely the second indicator; and some of the parts of it were found on the floor of the shop beside the oxygen cylinder which had fallen down. The indicator of the regulator which showed the pounds of pressure was still attached to the oxygen cylinder, even after the fire and explosion.

We have stated in considerable detail enough of the facts to show that the explosion or fire did not -occur in the oxygen tank, or in the valve on the oxygen tank, or when Scott first opened the valve on the tank to allow some of the oxygen to escape before he put his own pressure gauge on the oxygen tank. Absent any contributory negligence — and we must so find in the light of the jury verdict — the question now before us is whether the facts as heretofore stated — and we have stated them in the light most favorable to the jury verdict — make a case for the application of the rule of res ipsa loquitur. The trial Court so held, and the correctness of that ruling is the point now before us.

In Chiles v. Ft. Smith, 139 Ark. 489, 216 S. W. 11, Mr. Justice Frank Gr. Smith, in discussing the doctrine of res ipsa loquitur, quoted from 20 R.C.L. p. 187, as follows :

“ ‘More precisely the doctrine res ipsa loquitur asserts that whenever a thing which produced an injury is shown to have been under the control and management of the defendant, and the occurrence is such as in the ordinary course of events does not happen if due care has been exercised, the fact of injury itself will be deemed to afford sufficient evidence to support a recovery in the absence of any explanation by the defendant tending to show that the injury was not due to his want of care. ’ ’

To paraphrase the above as applicable to the case at bar is to say that when a product is made by a defendant for a recognized use, and the plaintiff so uses the product and without fault or negligence on his part receives injury, then the mishap itself speaks negligence and the bui'den is on the defendant to show itself free of negligence. Is the doctrine of res ipsa loquitur applicable to this case? One of the clearest recognized essentials of the plaintiff’s right to invoke the doctrine of res ipsa loquitur is that the plaintiff’s injury must have come about solely because of the defendant’s product. This is stated in 38 Am. Jur. p. 996, “Negligence” § 300:

“It is essential to the application of the doctrine of res ipsa loquitur that it appear that the instrumentality which produced the injury complained' of was at the time of the injury under the management or control of the defendant or of his agents and servants. When, however, it appears that the victim had exclusive control of the offending thing, no imputation of responsibility tvill attach to the defendant. It is not only necessary to show that the offending instrumentality was under the management of the defendant, but it must be shown that it proximately caused the injury, or that the injury was caused by some act incident to the control of the instrumentality. The doctrine does not apply where the agency causing the accident was not under the sole and exclusive control of the person sought to be charged with the injury. If it appears that two or more instrumentalities, only one of which was under defendant’s control, contributed to or may have contributed to the injury, the doctrine cannot be invoked.” (Emphasis supplied.)

We have a number of Arkansas cases which have direct holdings on this point. In Kroger v. Melton, 193 Ark. 494, 102 S. W. 2d 859, Melton purchased pork chops at the Kroger store, took them home, cooked and ate them. He became ill and sued Kroger for damages, alleging the pork chops to have been contaminated when sold to him. Melton did not attempt to show Kroger’s negligence, but claimed that the doctrine of res ipsa loquitur cast on Kroger the burden of proving the absence of its own negligence in handling the pork chops. But this Court held that the doctrine of res ipsa loquitur was not applicable, saying:

“Appellee seeks to invoke the doctrine of res ipsa loquitur to supply the missing link in his testimony. But this doctrine has never been applied where the instrumentality which caused the injury was not in the exclusive control of the defendant at the time of the injury. Many cases to that effect are cited ixi the brief of appellee. Here the chops alleged to be responsible for appellee’s injury were not in the exclusive possession of appellant; on the contrary, they were in the exclusive possession of appellee subsequent to the sale.”

In Mo. Pac. v. Shores, 209 Ark. 539, 191 S. W. 2d 580, Shores was injured when a block of ice fell or was thrown from a troop train. He sued the railroad company and claimed that since he was injured by something which fell or was thrown from the train the doctrine of res ipsa loquitur was applicable. This Court held that res ipsa loquitur did not apply, saying:

‘£ The doctrine of res ipsa loquitur cannot he invoked in this case to supply the absent proof of negligence because it is necessary, before that doctrine may be applied, that the machinery or object causing the injury be shown to have been under the sole control of the one against whom liability is asserted. ‘It is essential to the application of the doctrine of res ipsa loquitur that it appear that the instrumentality which produced the injury complained of was at the time of the injury under the management or control of the defendant or his agents and servants. . . . The doctrine does not apply where the agency causing the accident was not under the sole and exclusive control of the person sought to be charged with the injury.’ 38 Am. Jur. 996; Southwestern Telegraph & Telephone Co. v. Bruce, 89 Ark. 581, 117 S. W. 564; Arkansas Power & Light Company v. Jackson, 166 Ark. 633, 267 S. W. 359; Herndon v. Gregory, 190 Ark. 702, 81 S. W. 2d 849, 82 S. W. 2d 244. In the case at bar, the evidence showed that the train and its passengers were under the control of an army officer, and that members of the train crew were not allowed to enter the baggage car, from which the ice came, without obtaining permission from the soldiers.”

In Arkansas Power & Light Co. v. Butterworth, 222 Ark. 67, 258 S. W. 2d 36, an action was filed against the power company for damages for loss of a building by fire alleged to have been caused by an excessive voltage of electricity allowed to enter the building through the negligence of the power company. The Trial Court held that the doctrine of res ipsa loquitur was applicable, since the electricity was the product of the power company. We held that the Trial Court was in error, saying:

“Here only a portion of the instrumentality was under the control of the defendant. It had the exclusive control of the transformer station and the wire up to where it entered the plaintiff’s mill; hut from that point on all of the wiring, switches, fuses, motors, lights, welding apparatus, and grounding facilities were exclusively under the control of the plaintiffs. The case of Southwestern Gas & Electric Co. v. Deshazo, 199 Ark. 1078, 138 S. W. 2d 397, is directly in point as to tlie res ipsa loquitur feature of the case. In that case three farmers cut a tree growing near a high voltage line of the Southwestern Gas & Electric Co. The tree fell on the line and broke it, causing it to sag; whereby it came in contact with a telephone wire going to a switchboard where Mrs. Deshazo was the operator. Excessive high voltage passed from the electric line to the telephone wire and injured her. This Court said: ‘We think it may be announced that the only instance in which the rule of res ipsa loquitur applies must be that the act or thing causing the injury must have been under the exclusive control and management of the one charged. . . . Certainly the electric company had no control over the office of the telephone company nor the grounding of any of the wires.’ Likewise in the case at bar, the defendant electric company had no control over the -wires in the mill or the grounding of,the electric system therein. Therefore it did not have exclusive control of the instrumentality or thing from tuhich the fire may have developed; hence the doctrine of res ipsa loquitur is not applicable.” (Emphasis supplied.)

Further discussion appears to be unnecessary. We hold that the rule of res ipsa loquittor is not applicable in the case at bar since it was clearly shown that the fire or explosion occurred in the plaintiff’s own regulator and that the oxygen from the cylinder had previously been allowed to escape without causing any fire or explosion. For the error in submitting the case to the jury on the doctrine of res ipsa loquitur the judgment must he reversed and the cause remanded for a new trial.

II. The Breach of Warranty Action. The case was submitted to the jury on interrogatories, the first three of which related to negligence and contributory negligence. Interrogatory No. 4 and the answer thereto were as follows:

“Interrogatory No. 4. Do you find from a preponderance of the evidence that the defendant, Delta Oxygen Company, Incorporated, sold the bottle of oxygen in question to Harry Scott and that there was an implied warranty that said bottle was reasonably fit for the use for which it was intended, and that said bottle was not in fact reasonably fit for its intended purpose, and that, when it was put to use, the plaintiff, Tommy Scott, sustained personal injuries and damages as the proximate result of a bre'ach of implied warranty? “Answer: Yes.”

While insisting that the instructions on res ipsa loquitur were correct, appellee further insists that, even if the instructions on res ipsa loquitur were erroneous, nevertheless the judgment should be affirmed because of the finding of the jury that appellant was guilty of breach of warranty. We cannot agree with the appellee in such contention because we find no substantial evidence of breach of any warranty. Ark. Stat. Ann. § 85-2-315 (Add. 1961) reads as follows:

“Implied Warranty — Fitness for particular purpose. — Where the seller at the time of contracting has reason to know any particular purpose for which the goods are required and that the buyer is relying on the seller’s skill or judgment to select or furnish suitable goods, there is unless excluded or modified under the next section an implied warranty that the goods shall be fit for such purpose. [Acts 1961, No. 185, § 2-315.]”

The oxygen sold by Delta to Harry Scott was supposed to increase the heat of a flame, and there is nothing to sliow that the oxygen in cylinder No. 2 failed in that responsibility. If the cylinder had exploded, the “bottled goods” cases might apply; bnt the cylinder did not explode: it was intact even after the fire. The explosion occurred in the regulator which the plaintiff, Tommy Scott, had affixed to the oxygen valve on the cylinder. We have previously detailed that the valve on the oxygen cylinder was first opened and oxygen allowed to escape; the valve on the oxygen cylinder was closed and the regulator of plaintiff attached to the valve on the oxygen cylinder; and then the valve was opened and there was the explosion.

In testimony it was claimed that there must have been some grease in the valve on the oxygen cylinder and that the force of the oxygen forced the grease into the regulator where the explosion occurred; but this was the rankest speculation. If there was any grease on the valve of the oxygen cylinder there is no showing that it got there through any breach of warranty by Delta. The entire evidence of breach of warranty is based on speculation. In Kapp v. Sullivan Chev. Co., 234 Ark. 395, 353 S. W. 2d 5, we discussed, not only the matter of res ipsa loquitur being there inapplicable but we also discussed, the fact that Kapp’s case rested entirely upon conjecture and speculation; and said:

“Several possible causes of the break are argued, but in truth, they are only possibilities, and do not reach the status of probabilities. Negligence cannot be established by guess work. As stated in Henry H. Cross Co. v. Simmons, 96 F. 2d 482, a decision under Arkansas law: ‘To submit to a jury a choice of possibilities is but to permit the jury to conjecture or guess, and where the evidence presents no more than such choice it is not substantial, and where proven facts give equal support to each of two inconsistent inferences, neither of them can be said to be established by substantial evidence and judgment must go against the party upon whom rests the burden of sustaining one of the inferences as against the other.’ In Glidewell v. Arkhola Sand & Gravel Co., 212 Ark. 838, 208 S. W. 2d 4, this Court said: 'Conjecture and speculation, however plausible, cannot be permitted to supply the place of proof, . . . ’ ”

On account of the erroneous instructions on res ipsa loquitur the judgment of the Circuit Court is reversed and the cause is remanded for a new trial, not only on the issue of negligence but also on the issue of breach of warranty. In view of the likelihood of another trial we will now discuss some of the other points which present questions that may arise on retrial.

III. The Witness Vernon Myers. Appellant’s fourth point is: “It was error for the court to refuse to strike all of witness Vernon Myers’ opinion testimony.” We find no merit in this point. The witness Myers testified that he had been a welder for twenty years and was then teaching welding in the vocational training school at Morrilton, Arkansas. He modestly disclaimed being an ‘ ‘ expert,” but he was certainly well qualified by professional, scientific, and technical training, and also by practical experience, to answer the questions propounded to him. The Court did not abuse its discretion in allowing the witness to give his opinion. See Firemen’s Ins. Co. v. Little, 189 Ark. 640, 74 S. W. 2d 777; and Ratton v. Busby, 230 Ark. 667, 326 S. W. 2d 889.

IV. Absence Of Privity Between Tommy Scott and Delta Oxygen Company. Appellant’s point No. 2 is: “There was no privity of contract between plaintiff and defendant, and it was error for the Trial Court to overrule defendant’s demurrer to the warranty suit.”

This assignment brings before us a question now occupying much space in reported cases and in legal periodicals. Appellant’s contention is: that Delta sold the oxygen to Harry Scott; that appellee Tommy Scott was an employee of Harry Scott; that Tommy Scott’did not purchase the oxygen from Delta so Tommy Scott is not in privity with Delta and therefore cannot maintain an action against Delta for breach of warranty. The case of Nelson v. Armour, 76 Ark. 352, 90 S. W. 288, was decided by this Court in 1905. In that case Armour sold a can of food to a retail dealer in Texarkana, Mr. A. J. Offenhauser. The retail dealer in due course of trade sold the same can of meat to Mr. Nelson, who sued Armour, claiming that there was a breach of warranty as to the fitness of the food. Armour insisted that Nelson did not purchase the meat from Armour so there was no privity of contract between Nelson and Armour on which Nelson could base an action for breach of warranty. In sustaining the contention of Armour, this Court said:

‘ ‘ Unlike covenants as to the title to land, a warranty upon the sale of personal property does not run with the property. There is no privity of contract between the vendor in one sale and the vendees of the same property in subsequent sales. Each vendee can resort, as a general rule, only to his immediate vendor. Boyd v. Whitfield, 19 Ark. 447; Bordwell v. Collie, 45 N. Y. 494. ”

From this quoted language it has been assumed that in Arkansas there can never be a breach of warranty action in a case like this one, except between the immediate parties to the sale unless and until the Legislature passes legislation changing the rule of privity, or the Court modifies or limits the holding in the case of Nelson v. Armour heretofore quoted. "When the Arkansas Legislature adopted the Uniform Commercial Code the privity defense was eliminated in certain instances. That statute, now found in Arle. Stat. Ann. § 85-2-318 (Add. 1961), reads;

“Third party beneficiaries of warranties express or implied. A seller’s warranty whether express or implied extends to any natural person who is in the family or household of his buyer or who is a guest in his home if it is reasonable to expect that such person may use, consume or be affected by the goods and who is injured in person by breach of the warranty. A seller may not exclude or limit the operation of this section.”

Thus, as to a natural person who is in the family or-household of the buyer or is a guest of his household, etc., the Legislature has abolished the defense of privity in a breach of warranty action. Why then should we keep this old rule of “privity” against an action for breach of warranty brought by the servant or employee of the original purchaser, as is the situation here? Delta sold the oxygen to Harry Scott, the brother of appellee Tommy Scott. If Harry Scott had resold the oxygen to Tommy Scott, then there would have been the factual situation similar to that which existed in Nelson v. Armour, supra. But Tommy Scott was the servant and employee of Harry Scott, who directed him to use the oxygen in the work. In' short, there was no resale of the oxygen by the purchaser from Delta and we see no sound reason why the employee or servant of a purchaser, using the product in the course of employment as directed, should be barred from suing on the warranty because of any shield of privity.

To apply the strict rule of privity against such an employee as here, would mean that if the purchaser of the oxygen from Delta had been a corporation then there would never have been anyone to sue on the breach of warranty for personal injuries because a corporation could hardly have a burned arm or a burned leg. This simple homely supposition points to the common sense in allowing an employee of the purchaser to sue on the breach of warranty in a case like the one at bar. The doctrine of privity should not be a shield against a breach of warranty action in a case like the one here; and to that extent we change what some may have said was the Arkansas holding. We now hold that such an.employee of the original purchaser is not barred by the defense of privity. In short, we find no merit to the shield of privity as urged by the appellant in the case at bar. It is fair to the Bench and Bar to say that we reserve for future cases the right to review our holdings on this entire matter of privity in all cases of breach of warranty.

CONCLUSION

Other questions presented in the briefs are not likely to occur on retrial so we forego any further discussion.

Reversed and remanded for a new trial.

       The empty cylinders were to be returned to Deltá after the oxygen had been used.

       This identical-torch used by Tommy Scott was exhibited to the .fury and its use and functions explained. Likewise, in oral argument before us, counsel for both sides exhibited the torch and explained its use and functions. It is a somewhat narrow metal instrument about 20 inches long, easily held in the hands of the welder; and the rubber tubes are attached to the end of the torch toward the sources of supply., On the torch there are separate control valves for each ingredient —oxygen and acetylene — to regulate the flowage or stoppage of same; and at the firing end of the torch there is an orifice, or small opening, where the flaming acetylene is heated by the oxygen and the heat thus applied to the material sought to be welded.

       Sometimes it is called “the rule” of res ipsa loquitur, and other times it is called “the doctrine” of res ipsa loquitur. The cases, annotations, and law review articles on res ipsa loquitur are countless. We mention only a few. In Ark. Law School Bulletin of May 15, 1940 (Vol. 8, No. 2) at page 43, there is an article entitled, “Res Ipsa

        Loquitur in Arkansas.” See also 9 Ark. Law Review, p. 98, for that portion of the address of Dean Prosser concerning res ipsa, loquitur. See annotation in 56 A.L.R. p. 493, “Applicability of res ipsa, loquitur to explosion of gases or chemicals.” See also annotation in 23 A.L.R. 484, “Applicability of res ipsa loquitur in case of boiler explosion.”

       Cases from other jurisdictions are in accordance with our holdings. For cases holding the rule of res ipsa, loquitur to be unavailable in situations somewhat similar to those in the case at bar, see: Kramer v. Hollingshead (N. J.), 75 A. 2d 861; McCabe v. Boston Gas Co. (Mass.), 50 N. E. 2d 640; McDonnell v. Montgomery Ward (Vt.), 154 A. 2d 469; Conley v. United Drug Co. (Mass.), 105 N. E. 975; and Marshall v. Cameron (W. Va.), 59 S. E. 959. See also Harper & James “The Law of Torts,” Vol. 2, § 19.7. The case at bar is not like the bottled drink cases of which Coca Cola v. Mattice, 219 Ark. 428, 243 S. W. 2d 15, is one. In those cases the contents of the bottle in the original package exploded and caused injury.. There had been no opening of the bottle. But, in the case at bar, the oxygen tank had been opened once to allow a small amount to escape. Then, when the plaintiff’s own regulator was attached and the oxygen tank again opened, the explosion occurred. So the bottled drink cases are not applicable here.

       No point is made on this appeal questioning the ruling of the Trial Court on the consolidation of the negligence action and the breach of warranty action. See Kapp v. Bob Sullivan, 232 Ark. 266, 335 S. W. 2d 819.

       See Footnote No. 4, supra,, for one of these cases.

         This case of Nelson v. Armour has been cited in numerous cases in this State and in numerous annotations and law review articles. See: Colyar v. L. R. Bottling Works, 114 Ark. 140, 169 S. W. 810; Heinemann v. Barfield, 186 Ark. 500, 207 S. W. 62; Drury v. Armour, 140 Ark. 371; 216 S. W. 40 (particular attention is called to the dissenting opinion of Justice Hart in that case) ; and Lewis v. Roescher, 193 Ark. 161, 98 S. W. 2d 956. Worthy of study is the article by Dean Prosser in 69 Yale Law Review 1099 entitled, “The assault upon the citadel (strict liability to the consumer).” See also: Annotation in 74 A.L.R. 2d 1111 entitled, “Privity of contract as essential to recovery in negligence action against manufacturer or seller of produce alleged to have caused injury.”; and annotation in 80 A.L.R. 2d 488 entitled, “Liability of manufacturer' or seller for injury caused by firearms, explosives, and flammables.” And see: 28 NAACA Law Journal 204; 29 NACCA Law Journal 41; and 30 NACCA Law Journal 369, 374. The leading recent case is that of Henningsen v. Bloomfield Motor (N. J.), 161 A. 2d 69. See also 77 C.J.S. p. 1123.

       Appellee has urged that Tommy Scott was “in the family of” Harry Scott and that the above quoted statute would give Tommy Scott & cause of action for breach of warranty against Delta free from the privity defense. There is no need to lengthen this opinion to discuss that point: rather, we prefer to hold that an employee of a purchaser is not barred by the defense of privity in a factual situation like the one here.

       We are conscious of the splendid opinion delivered by the learned Federal Judge in Green v. Equitable Power Mfg. Co., 94 F. Supp. 126, in which there was a sincere attempt to follow what was thought to be the Arkansas holding then in force on privity as reflected by numerous annotations and law review articles.


author: George Rose Smith, J.

text:
    Hughes v. Lee
    5-3348
    383 S. W. 2d 97
    Opinion delivered October 26, 1964.

      Boh Scott, for appellant.

      Clayton Little, for appellee.
   George Rose Smith, J.

In September of 1962 the appellant, Jennie Hughes, entered into a contract with C. J. Harter and his wife for the exchange of a motel that Mrs. Hughes owned in Texas and a 680-acre farm that the Harters owned in Benton county, Arkansas. Mrs. Hughes was represented in the transaction by the appellee, Carl W. Lee, a Bentonville real estate broker, who was to receive a commission of $5,000 for his services. The parties to the exchange deposited their respective deeds with Lee pending the complete performance of their contract.

This suit was brought by Mrs. Hughes to compel Lee to surrender possession of the deed that he was holding for her. By counterclaim Lee sought judgment for the unpaid sum due upon a promissory note that Mrs. Hughes had given him for his commission. The only disputed questions that now remain in the case are, first, the exact amount of the balance that is owed by Mrs. Hughes upon her note, and, second, her liability for a 10 per cent attorney’s fee upon the note.

The first issue — the amount due upon the note — requires us to determine, upon conflicting testimony, the true terms of an oral agreement by which Mrs. Hughes and Lee agreed to dispose of the proceeds resulting from the sale of the crops that were growing on the Harter farm when Mrs. Hughes acquired it. (Upon this issue the appellant invokes the parol evidence rule, but at the trial both litigants so fully developed the testimony about the oral agreement that we think it plain that the application of the rule was waived.)

Lee acted as the' intermediary in negotiating the exchange contract in September, 1962. At that time the Harter farm was subject to a mortgage upon which a $2,000 payment would fall due on the following January 1. Both the contracting parties were worried about this payment. Lee testified that Mrs. Hughes told him that she couldn’t make the trade if she had to make this payment. According to Lee he discussed the matter with Harter, who said that “he hadn’t got a dime” and that “if I have to pay the $2,000 I can’t — I’ll have to keep the crops.” This impasse threatened to stalemate the negotiations and evidently jeopardized Lee’s hope of receiving a commission.

Lee testified in effect that he solved the problem by relieving Harter of any obligation to make the $2,000 payment, by taking from Harter a bill of sale for the crops, and by orally agreeing with Mrs. Hughes that he (Lee) would assume equal responsibility with her for the $2,000 payment. According to Lee he discharged his entire obligation to Mrs. Hughes by endorsing a $1,000 credit upon her promissory note.

Mrs. Hughes disputes Lee’s version of their oral agreement. She says that Lee assured her the growing crops were worth at least $2,000 and that he agreed to take half the crops in return for assuming half the January payment to the mortgagee. Harter corroborates Mrs. Hughes to some extent, saying that he had thought the crops would prove to be worth $2,000.

Mrs. Hughes duly made the payment to the mortgagee. The crops were sold, but, perhaps in part because they were harvested later than they should have been, they brought net proceeds of only $1,195.30. Lee contended in the court below that he was entitled to keep the entire proceeds of sale, since he had given Mrs. Hughes a credit of $1,000 upon her note. The chancellor held, however, that Lee should surrender his profit of $195.30, because as an agent he was also a fiduciary.

We do not think the chancellor went quite far enough in affording relief to Mrs. Hughes. It is implicit in Lee’s own testimony that he broke the deadlock in the negotiations by incurring a personal financial risk. Yet, according to him, he assumed a $1,000 obligation in return for the full ownership of crops that both Harter and Mrs. Hughes (and, we think, Lee himself) thought to be worth $2,000. Thus under Lee’s version of the oral agreement he took almost no risk and stood to reap a fairly certain profit. Even under the chancellor’s decision the entire loss falls on Mrs. Hughes. In our view the weight of the evidence supports Mrs. Hughes’ statement that she and Lee assumed equal responsibility for the $2,000 payment in return for equal ownership of the crops. Since the crops brought $1,195.30 Mrs. Hughes must be credited with half that amount instead of with the profit of $195.30 only. This modification will also proportionately reduce the attorney’s fee allowed to Lee.

Mrs. Hughes’ promissory note contained a provision for a reasonable attorney’s fee of not more than 10 per cent of the amount due, if the note should be placed in the hands of an attorney for collection. Such a provision is valid. Ark. Stat. Ann. § 68-910 (Repl. 1957); Hollaway v. Pocahontas Fed. Sav. & Loan Assn., 230 Ark. 310, 323 S. W. 2d 204. There is no merit in the appellant’s contention that the fee ought to be disallowed because the amount of Mrs. Hughes’ maximum possible liability upon the note was deposited in court while the case was pending. The deposit was made simply to enable Mrs. Hughes to obtain an immediate delivery of the deed that Lee was holding in escrow.' In making the deposit Mrs. Hughes did not admit liability for its amount. To the contrary, she denied that she owed more than $850 to Lee. The services of Lee’s attorneys were necessary to win the judgment he has obtained.

It is argued that Lee’s failure to recover the full amount sued for should prevent the allowance of counsel fees. That is the rule under the statute governing actions upon insurance policies, but that statute requires that the demand for the full amount be successfully maintained in the action. Ark. Stat. Ann. § 66-514 (Repl. 1957); Pacific Mut. Life Ins. Co. v. Carter, 92 Ark. 378, 123 S. W. 764. Moreover, that act allows a penalty in addition to the fee; so the statute is highly penal. LaSalle Fire Ins. Co. v. Jenkins, 185 Ark. 484, 47 S. W. 2d 792. By contrast, the statute governing this case merely provides for a reasonable fee, not to exceed 10 per cent of the amount due, for services actually rendered. § 68-910, supra. In this instance a 10 per cent fee appears to be reasonable. We perceive no sound basis for refusing to enforce the parties ’ contract for such a fee.

With the indicated modification the decree is affirmed. The cause will be remanded for the entry of a decree conforming to this opinion. The costs of this appeal will be borne equally by the parties.