text:
    Ronald PRICE v. Edith M. PRICE, administratrix
    5-6169
    491 S.W. 2d 793
    Opinion delivered March 5, 1973
    [Rehearing denied April 16, 1973.]

      Mike Wilson, for appellant

      Stubblefield ¿r Matthews, for appellee.
   John A. Fogleman, Justice.

This appeal is from an order of a probate court closing administration on the estate of Carrol W. Price and discharging the appellee as administratrix. This order contained the following specific findings that are material here: that the only asset of the estate was a 3.62-acre tract of real estate; that the same had been occupied by the decedent and his widow, the administratrix, as their homestead; that the widow and minor children of the decedent were residing upon the property; that the title to the real property is vested in the five children of the decedent, effective upon the closing of the estate, subject to the dower rights of the widow and the homestead rights of the widow and minor children; that the heirs of the decedent have waived all rights they might have and the pending petition for an accounting by the administratrix should be stricken; that in the event that the appellant, decedent’s eldest child, continues to press his objections, the administratrix is entitled to a lien, in addition to the lien of a judgment entered by the court on the same date, for $6,000 for expenses and compensation as administratrix, but that die court did not rule upon this claim; that no further accounting by the administratrix was necessary or required. The court also approved the “first and final report” filed by the administratrix, but reduced the amount of credit to which she was entitled for payment of claims from $2,049.91 to $1,127.16. On the same date the court had entered an order reviving a judgment and lien granted appellee by the court on June 12, 1962. That judgment was for claims against the estate allegedly paid by Mrs. Price in the sum of $2,049.91, for which a lien was granted against the real property of the estate. The order of revivor was entered upon appellee’s petition filed April 19, 1972, but the judgment was reduced to $1,127.16, the amount of the claims against the estate actually paid by appellee from her own funds.

The first point urged by appellant, who filed a response to the petition to revive the judgment, is that the probate court had no power either to grant a lien upon the decedent’s real estate or to revive a judgment allowing the claims. We find no reversible error on this point. The probate code specifically gives an order allowing claims against an estate the effect of a judgment. Ark. Stat. Ann. § 62-2605a (Repl. 1971). It also gives the probate court the same powers to carry out its judgments as exist in courts of general jurisdiction. Ark. Stat. Ann. § 62-2004b (Repl. 1971). Procedure in the probate court is the same as in courts of equity, except as otherwise provided in the code. Ark. Stat. Ann. § 62-2004e (Repl. 1971). We do not construe either the order granting a lien upon the real estate or that reviving the lien to do more than recognize the fact that the judgment, like a judgment of a circuit or chancery court, constitutes a lien on real estate of the owner. Ark. Stat. Ann. § 29-130 (Repl. 1962).

Appellant’s argument that the probate court had no jurisdiction to revive a judgment is based upon Rose v. Thompson, 36 Ark. 254. At the time of that decision the allowance of claims did not have the effect of a judgment and no jurisdiction to revive a judgment had been conferred upon the probate court. The provisions of Ark. Stat. Ann. § 62-2605a, as it reads after amendment by Act 287 of 1967, have altered the situation existing when Rose was decided and expressly confer the jurisdiction of the court to revive its judgments allowing claims. The amendment was specifically directed toward eliminating the effect of the holding of Rose and of Brown v. Hanauer, 48 Ark. 277, 3 S.W. 27, in that respect.

We do find merit in appellant’s remaining contentions. He asserts that the court erred in closing the estate without requiring an inventory to be filed and without requiring annual accountings.

Carrol W. Price died intestate on December 4, 1960, leaving surviving him: his widow, Edith M. Price; three children by a previous marriage, Ronald, aged 23, Patsy, aged 20, Sandra, aged 15; and two minor children, Joey Lynn, aged 5, and David Wayne, aged 8 months, both of whom were then living and have continuously lived with their mother, Edith M. Price, in a dwelling house situated on a 3.62-acre tract, which was the only real estate owned by the decedent. On November 14, 1961, the widow filed a petition seeking appointment as administratrix, stating that the value of the real estate was undetermined and that the estimated value of the personal property was $500. Claims totalling $2,-049.91 were filed. On June 12, 1962, without any previous notice, except for publication of notice of the appointment of the administratrix as required by Ark. Stat. Ann. § 62-2111 (Repl. 1971), an order allowing the claims was entered. It contained findings that these claims had been paid by the widow and that there were no funds, property or assets of the estate available for their payment except for the 3.62-acre tract of land. In that order the court declared a lien upon the real estate in favor of Ethel M. Price and provided that the amount of the claims paid by her be recovered, in addition to her dower and homestead, from any sale of the real property.

The administratrix filed a “first and final report” on June 18, 1962. This was not in the usual form prescribed by this court for an accounting pursuant to Ark. Stat. Ann. § 62-2007 (Repl. 1971), but was rather in the form of a petition in which she asked approval of her report and distribution, and sought her discharge. In that report, she alleged that her decedent owned no personal property except for furniture, furnishings, appliances, implements and equipment reasonably necessary for family use and occupancy of the widow’s dwelling on the real estate, that this personal property had an estimated value of $500 and that she had delivered the same to herself, and asserted that title had vested in her as widow’s allowances. She also alleged that she had paid the claims against the estate, amounting to $2,049.91, from her own personal funds and was entitled to reimbursement. Mrs. Price further alleged that the only other property was a tract of land containing approximately 3.62 acres, occupied by the petitioner and her decedent as their homestead, which was subject to her lien thereon for the claims paid by her and to her dower and homestead rights and the homestead rights of the minor children. The administratrix claimed that these actions constituted a final distribution and a full administration and stated that she, with the approval of the children of the decedent over the age of 14 years, was to look after and pay the taxes on the real property without any liability for any rent thereon until a sale could be effected at a price which would represent a fair market value thereof.

The court fixed August 21, 1962, as the date for hearing on this report. The only two heirs who were then adults filed objections to this report. They alleged that the administratrix had not accounted for an automobile and for furniture and appliances sufficient to furnish two apartments in addition to the dwelling house. They also registered an objection to the amount the administratrix claimed to have paid to satisfy debts of the estate and alleged that a trailer park with accommodations for 25 house trailers and two apartments were located on the real estate which was very valuable and situated in the industrial zone of Jacksonville, approximately one block from the new interstate highway system. They also alleged that this property had been operated by the administratrix since the death of their father, without any accounting by her for the rents and profits from this business. They pointed out that the administratrix had filed no inventory as required by law and prayed that the administratrix be required to account for all personal property, the income and profit for the trailer park and apartment rentals and to show the actual amount of money paid from her funds to satisfy the claims against the estate.

At this hearing, it was conceded by the administratrix that she had not used her own funds for payment of claims to the extent she had claimed. She testified that she and her husband had lived on the real estate, on which there was a trailer park, consisting of 25 trailer spaces, which she said she had been operating without profit, and two apartments on which the rent was $50 per month. She said that she wanted to collect her fee as administratrix and all statutory allowances. She also said that her homestead and dower rights had not been assigned to her. Mrs. Price stated that she had made improvements on the property which w(ere paid for from the profits therefrom and her Social Security payments. She admitted that the property was in the city limits, only two blocks from the interstate highway on the access road. Her excuse for not accounting for the income was that the business was her own and that she was paying the taxes. She excused her failure to list the automobile because only two payments had been made on it and she had caused it to be transferred to her and was completing the payments on it from her own funds after applying the proceeds of an insurance policy on which she was beneficiary issued in connection with a personal loan to decedent. At the conclusion of the hearing the probate judge made this statement:

I think you ought to get these claims and accounts straight. I think probably she is correct in these figures she gave, but you should have something to support it.

No inventory has ever been filed, no other accounting has been made, no order has been entered on the objections of appellant and his sister, no petition for widow’s allowances has been filed, unless her “first and final report” can be so considered, and no order assigning the items of personal property she claimed has ever been made or entered. No claim of homestead has been made under Ark. Stat. Ann. § 62-601 (Repl. 1971). No appraisal of the real estate was made, either pursuant to Ark. Stat. Ann. § 62-603 (Repl. 1971) or Ark. Stat. Ann. § 62-2301(a) (Repl. 1971) and no sale of the real estate was attempted. As far as the record discloses, nothing whatever was done until appellant filed a petition for accounting and final distribution on January 10, 1972, and asking a sale of the real estate taking into account the widow’s dower and homestead rights.

In her petition to revive the judgment of June 12, 1962, appellee alleged that along with the notice of hearing on her “first and final report” she had sent a separate writing containing this statement:

I am trying to find a purchaser for the real property at a price which will represent a fair value and shall keep all of you informed of any offer which I receive, and I shall look after the same and pay the taxes thereon (but no rent) until the property can be sold at a satisfactory price, * * *.

Appellee also alleged that because of the objection by appellant and his sister, the estate had remained open, and she had been required to pay bond premiums, attorney’s fees, court costs and taxes from her own funds. She pleaded that the arrangement she had proposed had been agreed to by her stepchildren because their objections did not mention it, that she had a right to occupy, use and receive rents from the real property until her dower is assigned, and that her stepchildren were estopped to claim to the contrary and had wáived all their rights. She also claimed a lien on the real estate for $6,-000 for taxes, insurance premiums, bond premiums, administratrix fees, widow’s allowances, attorney’s fees and costs.

In appellant’s response to this petition, he again pointed out that no inventory had ever been filed, and no accountings made. He alleged that the administratrix had managed the property as if it were her own, denied any agreement as alleged by her, denied her right to credit for expenses, and asserted that the administratrix was estopped to claim dower and homestead because she had converted the rents and profits of the estate.

A hearing upon the petition of the administratrix and appellant’s response was held on June 8, 1972, pursuant to an order of the court stating that the judgment and lien would be revived unless cause be shown why it should not. At that hearing appellant objected to testimony about the management of the trailer park and to any hearing on the accounting or rents and profits until an accounting was filed. The probate judge expressed doubt that the real property was the homestead, in whole or in part, and made this comment:

We have to bring this litigation to some sort of conclusion. I am going to grant his motion to revive and going to reduce that amount in that order to this amount you all agreed was correct. To that extent, we can dispose of it. You ought to expedite this thing, it seems to me, file some final accounting and state what has happened, your contention of what she is entitled to and let them argue, but let her state what happened, if anything, in this estate in the way of these disbursements, or assets, or anything else since this accounting in 1962.

Thereafter, at the insistence of appellee’s attorney, she was permitted to testify to avoid the necessity for her having to return to court. Mrs. Price then related that she and her children, now aged 15 and 12, still reside on the property, that she rents the two apartments and one trailer space for $190 per month, and that they are located on the same one-fourth acre on which the dwelling house is situated. She said that there were 20 trailer spaces for rent on the 3.62-acre tract, each of which is rented for $20 per month, making a total rental of $590 per month. She supposed that the balance remaining after the payment of water bills of $30 per month went for groceries. She had paid taxes on the property and premiums on insurance policies which she supposed were payable to her. While she claimed $6,000 for service as administratrix, she admitted that she did not know where the figures came from. She admitted that she had all the receipts for the last 10 years and all the books and records, but did not offer to produce any of them.

Immediately after the conclusion of Mrs. Price’s testimony, her attorney offered to waive the claim for $6,000 if the estate could be closed on that day. When appellant’s attorney insisted that an accounting be first filed, appellee elected to stand upon her contention that she had a right not to account further than she had in 1962. After a colloquy among the probate judge and the respective attorneys, and in spite of the judge’s earlier statement, the court arrived at a decision to enter an order closing the estate, from which appellant could appeal on the question whether an additional accounting was necessary. The probate judge expressed reservations about allowance of the $6,000 claimed by appellee.

We agree with the appellant that the filing of an inventory by a personal representative, describing each item of property in detail and setting out his appraisal of the fair market value thereof as of the date of decedent’s death is not optional. The statute requiring it uses mandatory language. Ark. Stat. Ann. § 62-2301 (Repl. 1967). It forms the basis for many other procedures in the course of administration. In his first accounting the personal representative is required to charge himself with the property of the estate shown on the inventory. Ark. Stat. Ann. § 62-2804 (Repl. 1971). See Whitlow v. Patterson, 195 Ark. 173, 112 S.W. 2d 35. We have both before and after enactment of the probate code recognized that the value of personal property as shown by the inventory has a significant bearing upon the making of widow’s allowances. See Atkinson v. Van Echaute, 236 Ark. 423, 366 S.W. 2d 273; Buhrmester v. Buhrmester, 163 Ark. 539, 260 S.W. 410. Furthermore, the pleading labeled “first and final report” does not comply with the requirements of Ark. Stat. Ann. §§ 62-2803 (Repl. 1971) and 62-2804 (Repl. 1971). Those sections of the probate code are also couched in mandatory language. The statute requires that accounts cover a period distinctly stated, be accompanied by proper vouchers, and contain charges against the personal representative for property of the decedent according to the inventory, for all income and property received, credits to which the personal representative is entitled for payments other than payments to distributee and for assets delivered to distributees. We do not agree with appellee that her “first and final report” furnished full information with respect to everything pertaining to the estate, at least in the manner and form required by the code.

Appellee asserts that appellant is not entitled to relief because: (1) the only personal property of the estate was household furnishings, the title to which vested in the widow under the provisions of Ark. Stat. Ann. § 62-2501 (Repl. 1971) and (2) the real estate constituted the homestead of the decedent and the “first and final report” discloses that it has been distributed in kind to the widow and five children of the decedent subject to the dower rights of the widow and minor children and the lien of the widow for the amount of the claims paid by her.

The conclusion that there was no personal property other than household furnishings is not wholly justified, in the absence of a properly verified inventory. The widow’s own testimony indicates that there may have been an equity in an automobile. Since the decedent had purchased the property, she should have proceeded to pay for it from the assets of the estate or sold it as provided under Ark. Stat. Ann. § 62-2404 (Repl. 1971), obtained authority from the court to abandon it as permitted under Ark. Stat. Ann. § 62-2407 (Repl. 1971) or applied to the court for assignment of it to her as a part of the statutory allowances to her under § 62-2501. At any rate, she was accountable for it, either by accounting under the probate code or for conversion. See Ark. Stat. Ann. § 62-2408 (Repl. 1971). Without an inventory, the court was in no position to determine whether all of the items claimed fell within the purview of allowances to the widow and minor children in order to make an appropriate assignment to them. The burden of showing the value of property claimed as widow’s allowances was on the widow. Henry v. Tillar, 70 Ark. 246, 67 S. W. 310; Buhrmester v. Buhrmester, 163 Ark. 539, 260 S.W. 410. The personal representative was entitled to the possession of the intestate’s personal property as against the widow and heirs and the widow’s rights are to be worked out through the orderly administration of the estate and not by her taking possession of the property only, unless it be shown that the total estate does not exceed the widow’s allowances. Lambert v. Tucker, 83 Ark. 416, 104 S. W. 131. Jensen v. Housley, Admr., 207 Ark. 742, 182 S.W. 2d 758.

We have already pointed out appellee’s failure to follow statutory requirements for claiming her homestead rights. It was not for her, acting upon her own, to determine the extent of the homestead. That right was limited to real estate having a value not to exceed $2,500 if more than one-fourth of an acre in area or an area not to exceed one acre in any event. Art 9, Sec. 5, Constitution of Arkansas. Barnhart v. Gorman, 131 Ark. 116, 198 S.W. 880; First National Bank of Owatonna v. Wilson, 62 Ark. 140, 34 S.W. 544; Gibbs v. Adams, 76 Ark. 575, 89 S.W. 1008. The only statement in this record relied upon by the widow is her own testimony that the best offer she had received for the property was $2,000. This hardly proves the value of the property, but the homestead right could not possibly have encompassed the whole tract. The burden was on the claimant to establish the value and extent of the homestead. Barnhart v. Gorman, supra; Pace v. Robbins, 67 Ark. 232, 54 S.W. 213. She could not unilaterally and summarily select the part claimed as homestead out of the whole tract in arbitrary or capricious disregard of the rights of others. Sparks v. Day, 61 Ark. 570 33 S.W. 1073. The excessive and arbitrary designation of the homestead by appellee in her "first and final report” cannot be said to bar appellant from applying to the court for the relief he seeks. If appellant had proceeded in the manner required by statute, the issue as to extent and value of the homestead might long since have been settled.

Appellee contends that she is not accountable for rents collected by her because her dower in the real estate has not been assigned. She relies upon Ark. Stat. Ann. § 62.-2501.2 (Repl. 1971) which permits a widow to remain in possession of the mansion or chief dwelling house of her late husband, together with the farm attached thereto until dower is laid off and assigned to her. Although this statute should be liberally interpreted in favor of the widow, by no stretch of the imagination can the property involved here be classified as a farm. We are not aware of any application of this statute that has been, or could be, made to extend its terms to urban property used for commercial purposes or as residential rental property. In Johnson v. Johnson, 106 Ark. 9, 152 S.W. 1017, it was held that the farm attached to the mansion house only included lands occupied as a farm and not those that have not been used as a farm. The only intimation that the effect of the statute might be extended to an entire urban tract was a conjectural statement on the part of the court in Reagan v. Hodges, 70 Ark. 563, 69 S.W. 581. There it was said that, even though the widow may have been entitled to hold possession of an entire city block because the improvements, such as outhouses, gardens, fields, horse lots and pasture, made it useful or necessary to the enjoyment of the mansion, the question was not before the court. Even this liberal interpretation would not entitle appellee to retain the rents from trailer spaces which were not within the limits of the homestead. Of course, the widow is entitled to her proportionate part of the rents from that portion of the land which was not a part of the homestead, along with the rents from the homestead itself. Ark. Stat. Ann. § 62-2501.3 (Repl. 1971); Mayo v. Arkansas Valley Trust Co., 132 Ark. 64, 200 S.W. 505.

Appellee also argues that appellant’s present pleading was not timely filed and that he is estopped to now assert any claim. Appellant promptly objected to the “first and final report” when it was first filed. At the conclusion of the hearing at that time, the probate judge’s statement clearly called for some further action on the part of the administratrix. Even though that statement was not incorporated into a formal order, the matter rested there until appellant provoked action by his present petition. It was the duty of appellee, not appellant, to close the estate, and appellant, as an interested person could ask that the personal representative be cited to show cause why the estate could not be closed. Ark. Stat. Ann. § 62-2802 (Repl. 1971). See Kenyon, Executor v. Gregory, 127 Ark. 525, 192 S.W. 887. See also, Ark. Stat. Ann. § 62-2813 (Repl. 1971). The mere lapse of time did not justify the striking of appellant’s pleading.

Appellee’s assertion of estoppel is based upon her testimony that she sent a separate writing to appellant and other adult children along with her notice of her “first and final report” that she would look after and pay the taxes on the real property but would not be liable for any rent thereon, until a sale could be effected at a price that would represent a fair market value. This is different from the statement in her report only in that the approval of the children was not asserted, and she stated that she would communicate any offers received. No evidence pertaining to the separate writing appears in the record until the 1972 hearing. Quite obviously, two of the children did not wholly agree to this arrangement, because their objections first filed pointed out that the real property claimed as homestead was a trailer park, was very valuable property and that it was urban property, and that no accounting for income and profits had been made.

The personal representative occupies a fiduciary relationship toward the heirs, and it is his duty to act toward them, as the beneficiaries of the trust administered by him, with the utmost good faith. Crider v. Simmons, 192 Ark. 1075, 96 S.W. 2d 471; 31 Am. Jur. 2d 28, Executors & Administrators, § 2; 33 C.J.S. 1101, Executors & Administrators, § 142. See also, Clifton v. Guest, 216 Ark. 352, 226 S.W. 2d 61; England Loan Co. v. Campbell, 183 Ark. 49, 35 S.W. 2d 75; Menifee’s Admrs. v. Ball, 7 Ark. 520. The duty of the personal representative to account is a continuing one, not subject to a statute of limitations until such time as he is finally discharged and final distribution approved. See Ark. Stat. Ann. §§ 62-2811 (Repl. 1971), 62-2902 (Repl. 1971). As long as an administration is pending, it is the duty of the probate court, even in the absence of exceptions, to inquire into an account filed and to require the personal representative to account for all funds coming into his hands. Carter v. Carter, 193 Ark. 894, 103 S.W. 2d 938.

Appellant relies upon the case of Mayo v. Arkansas Valley Trust Co., 132 Ark. 64, 200 S.W. 505, but we cannot agree that it is authority to apply an estoppel here. In that case the executor, a bank, had taken charge of the real estate of the decedent, even though it was not needed for the payment of debts. It had rented the land and collected the rents for a number of years with the acquiescence of the widow and heirs. The executor after paying the taxes, repair costs, insurance premiums and other expenses pertaining to the real estate had paid an indebtedness secured by a mortgage on part of the real estate. A controversy arose as to whether the rents should be treated as realty or personalty and whether the payments of this debt should redound to the benefit of the widow, insofar as her right to dower in the realty was concerned. It was decided that the widow was entitled to the same share of the rents whether realty or personalty, and that the only fair and equitable method to dispose of this feature of the controversy was to treat the net amount of the rents after payment of the mortgage debt as the proper amount for distribution and to dispose of it in accordance with the statute regulating dower, rather than to have an accounting of the funds and to subrogate the creditors and heirs to the rights of the mortgagee in order to compel the widow to pay her share. There is no argument here about the widow’s entitlement to dower or the proportionate amount thereof and no mortgage lien on real estate is involved.

In this case, the administratrix clearly recognized that the heirs had some interest in this real estate, both in her report and the notice she gave. The proceeding was still pending in the probate court and is unlike the situation that might be involved in an equitable proceeding for an accounting, after the administration had been closed. Here, the court, in reducing the allowance to appellee for claims paid by her, properly considered the original objections and exceptions of appellant as continuing as long as the purported account filed had not been approved. Himes v. Sharp, 123 Ark. 61, 184 S.W. 431. We find no basis for estoppel here based only upon the lapse of time between appellant’s objections and exceptions to appellee’s “first and final report” and the petition to cite her to render an accounting.

Appellee states that appellant’s present attorney has failed to comply with Rules 8 and 9 of the Uniform Rules for Circuit, Chancery and Probate Courts of the State of Arkansas with respect to additional counsel and withdrawal of counsel. Rule 9 would have no application to new counsel. We find no objection by appellee in the trial court to the appearance of appellant’s present attorney, rather than the attorney who represented him at the hearing in 1962. We cannot see how appellee has been prejudiced, even if adequate notice was not given to the court and counsel, and appellant was allowed by the court to proceed in the matter.

We need not treat appellee’s cross-appeal. She simply requests that the case be remanded so that the exact, amount due her as compensation and for expenses of administration may be fixed, and remand is necessary for further proceedings in the matter, in any event.

The order closing the administration is reversed and the cause remanded for further proceedings.

Byrd, J., not participating.

       As to administrator’s duty to cause personal property to be appraised before the adoption of the probate code, see Lambert v. Tucker, 88 Ark. 416, 104 S.W. 131.


source: Caselaw Access Project

author: J. Fred Jones, Justice.

license: Public Domain

text:
    Leroy TIGUE v. CADDO MINERALS Company et al
    5-6209
    491 S.W. 2d 574
    Opinion delivered March 5, 1973
    [Rehearing denied April 9, 1973.]

      Hugh L. Brown, for appellant.

      Wright, Lindsey ér Jennings, for appellees.
   J. Fred Jones, Justice.

This is an appeal by Leroy Tigue from a circuit court judgment affirming a denial by the Workmen’s Compensation Commission of Mr. Tigue’s claim for compensation benefits. The question before the Commission was whether Mr. Tigue’s chronic diarrhea was the result of antibiotic medication he received in the course of surgery and treatment for a ruptured disc sustained in the course of his employment by the appellee-employer, Caddo Minerals Company. The question before us on appeal is not whether there is substantial evidence in the record to sustain Mr. Tigue’s claim; the question before us on this appeal is whether there is any substantial evidence to sustain the Commission’s finding in favor of the employer. Arkansas Foundry Co. v. Cody, 251 Ark. 57, 470 S.W. 2d 812. in arriving at an answer to this question we must give the evidence its strongest probative force in favor of the Commission’s findings. Bentley v. Henderson, 251 Ark. 203, 471 S.W. 2d 548.

The facts in this case appear as follows: In January, 1966, the appellant-claimant, Leroy Tigue, sustained a compensable injury resulting in the surgical removal of a ruptured disc. Mr. Tigue was given some antibiotics in connection with the disc surgery and within a few days after he was released from the hospital he developed a rather severe case of diarrhea. He attempted to control the diarrhea with Pepto-Bismol and other patent medicines and he was seen and treated for the condition by Dr. Jones, his hometown physician, for approximately two years. Following the onset of Mr. Tigue’s diarrhea it was necessary for him to have another disc operation which was performed in December, 1967. The evidence indicates that the diarrhea would subside during periods of hospitalization or bed rest, but would recur at frequent intervals of from one to seven days duration when Mr. Tigue was up and about. The usual episodes were described as beginning about midmorning with intense abdominal pain followed by loosely formed or fluid bowel movements growing smaller and smaller in amounts and terminating in the passage of mucous which usually contained blood.

The issues before the Commission were apparently confined to whether of not Mr. Tigue’s present diarrhea, which has become chronic, is a continuation of the diarrhea he suffered following his first disc operation and more particularly, whether the diarrhea was caused by the medication administered to him during the course of his disc operation. It was Mr. Tigue’s theory and contention that the antibiotic therapy administered during the course of his disc surgery destroyed the normal bacteria in his intestinal tract resulting in the growth of yeast and the chronic diarrhea. The Commission, in effect, found that Mr. Tigue had failed to prove that his chronic diarrhea was a result of his antibiotic therapy and his claim was denied.

Mr. Tigue testified that his diarrhea was at its worst stage when he first went to Dr. Garratt of Hot Springs in the spring of 1967; that his condition improved under the treatment of Dr. Garratt but then “just seemed to reach a standstill.” He testified that he has experienced no improvement in the condition since sometime in 1968.

Two medical bills from Dr. W. J. Jones were introduced in evidence. One of them dated June 12, 1967, shows a diagnosis: “Diarrhea of undertermined etiology — Duration of 5 months.” The subsequent bill dated August 14, 1968, indicates the same diagnosis and contains the statement: “This patient was referred to Dr. Burton for further treatment on the above diagnosis on March 1, 1967.”

Apparently Mr. Tigue was seen and examined by Dr. Frank M. Burton of Hot Springs who in turn referred him to Dr. Charles E. Garratt. After a considerable period of treatment by Dr. Garratt, Mr. Tigue was referred back to Dr. Burton for additional examinations requiring hospitalization. There is no report or testimony from Dr. Burton as to his initial examination of Mr. Tigue, but in the October, 1971, deposition of Dr. Garratt he testified that he first saw Mr. Tigue March 8, 1967, upon referral from Dr. Burton, and at that time Dr. Burton reported he found no problem in the colon and that the stool showed only yeast cells.

Under date of May 13, 1967, Dr. Garratt reported to adjuster White as follows:

“X-ray examination of colon by Dr. Burton was reported to be negative and stool examination showed no parasites or ova of parasites. Yeast was found.
There was a history of a large amount of antibiotic therapy by mouth following surgery in another city for a ruptured disc in the lumbar spine. Prior to this the bowel pattern had been normal.
He stated that he had a high fever for some days following surgery and presumably the antibiotics were used to combat infection.
Mr. Tigue is gradually improving, to the extent of going for several successive days without bowel disturbance. He has not completely recovered and comes to the office now about once a week.
He has been told the nature of his trouble which probably is the bacterial flora change subsequent to antibiotics.”

Later, on March 18, 1968, Dr. Garratt reported to Mr. Tigue’s attorney in part as follows:

“It is my opinion that Mr. Tigue’s complaint originated from the use of antibiotics given following the original surgery on his lumbar spine. The condition which followed is an iritable colon manifested by attacks of frequent stooling with accompanying inflammation and tenderness of the membrane of the anal outlet. The chronicity of the annoying problems has tended to make the patient nervous, and often times, weak.
* * *
The basic situation which was set up is an irritable colon. As a progress report, he has shown gradual improvement which has been interrupted at irregular intervals by acute attacks of diarrhea. These attacks have been of late less frequent and he has had relative freedom from the symptoms for periods as much as two consecutive weeks.”

While in the Baptist Hospital in Little Rock , from July 14, 1966, through July 23, 1966, Panalba, an antibiotic, was given to Mr. Tigue on July 18 and the same medication was continued for three days. It was discontinued on July 21.

The deposition of Dr. Garratt was introduced into evidence. He testified that the only abnormalities in Dr. Burton’s findings, as reported to him, were watery stool and blood and yeast cells. Dr. Garratt then testified as follows:

“Q. I beleive you did mention that yeast was found in examination?
A. That’s right.
Q. What is the significance—
A. * * * yeast is a secondary invader and comes at, oftentimes when the normal bacteria in the intestine have been killed or depleted, the yeast begins to grow in abnormal amounts.
Q. Was there an abnormal amount of yeast found on this examination?
A. Dr. Burton didn’t say. He just said yeast cells.
Q. Would you normally expect to find some yeast cells?
A. As a rule, not enough for comment unless they were in excess. You wouldn’t comment on them unless they are in excess.
Q. You assume there was some unusual level of yeast cells at the time of the examination?
A. That’s right.
Q. All right, sir. Did you conduct any other type of examination, make any other findings which are noted in your records?
A. You mean of this initial—
Q. * * * on the initial examination.
A. No, sir.
Q. All right, sir. Did you come to any conclusion at that time what the cause of Mr. Tigue’s problem was, his diarrhea?
A. Taking into account the laboratory work which had been done I based my conclusion on the fact that his antibiotics had destroyed the normal flora of bacteria in the bowel and produced dysentery or diarrhea.
Q. What are some of the other possible causes of diarrhea, of chronic diarrhea such as Mr. Tigue was experiencing?
A. Tumor, parasites, laxatives, irritants, that may be taken by mouth. That pretty well covers it.
Q. Irritants which may be taken by mouth?
A. That would be in the form of irritant laxatives.
Q. What about nerves, muscular problems, can that sometimes cause diarrhea?
A. Yes.
Q. Now, is there any way, Doctor, to positively determine that the normal flora or balance in the intestine has been upset by antibiotic therapy?
A. I do not know of one. It’s an assumption to some extent but all of us have seen it so frequently that we look for it when patients develop a diarrhea during antibiotic therapy.”

Dr. Garratt testified that he had treated other patients suffering chronic diarrhea as a result of antibiotic therapy and that “all of them either responded and overcame the problem in a shorter time than Mr. Tigue or else some other problem was found to be the background of the trouble.” He testified that Mr. Tigue’s case was definitely unusual in that it was of much longer duration that he had ever seen. Dr. Garratt then testified that the antibiotic drug “Lincocin” is an antibiotic having tremendous power to kill bacteria and unfortunately that type of medication kills the favorable as well as the unfavorable bacteria. He testified that the bacteria in some people might be highly sensitive to antibiotics and in others not so sensitive, and that the quantity of antibiotics necessary to kill the bacteria differs tremendously with individuals. Dr. Garratt then testified as follows:

“Q. All right, sir. Doctor, in those cases which, in your experience you have dealt with chronic diarrhea resulting apparently from antibiotic therapy and where no other contributing cause was found can you tell us what the average time of recovery is excluding Mr. Tigue’s case?
A. Yes. His case is unique. It might be anywhere from three weeks to three months.
Q. But three months in your experience pretty much would have been a maximum?
A. That’s right, have been a maximum.”

On cross-examination Dr. Garratt testified that Mr. Tigue was referred to him by Dr. Burton and that he did not duplicate the examinations done by Dr. Burton because of expense. He testified that he did a direct inspection of the bowels through a “hollow tube” and also a digital examination. He testified that both of these examinations were negative except for a “spastic type bowel.” He said instead of remaining soft the bowel would have a tendency to close. Dr. Garratt then testified that he advised Mr. Tigue as to diet and suggested things that might put bacteria back into his bowels, such as churned buttermilk or cultured buttermilk and a tablet called Lactinex, which is acidophilus itself. He then testified as follows:

“Q. Now, there was some discussion a moment ago about motility of the muscles, is that correct?
A. Yes (witness indicating by nod of head.)
Q. And that is, seemed to be an increase, do yóu know what would cause such an increase, what could cause it?
A. Yes, any irritation that produces increase and also certain nervous factors can produce increase. Shock can. Pain or any number of factors can produce increased motility while the principal ones would be some irritation to the membrane in the colon.”

Dr. Garratt was then asked whether or not the increased motility of the muscles in the bowel showed a big problem in the condition he observed in Mr. Tigue and he answered as follows:

“Yes, I think it did. I think that was really the background, whatever the reason was, the increased motility made the bowels move too much.”

Dr. Garrett was then asked questions and answered them as follows:

“Q. Doctor, talking about the use of antibiotics sometimes a disruption of normal bacteria balance certain drugs somewhat restore the balance, do any laboratory tests reflect whether the balance has been restored or is there any way of telling this other than by observation of symptoms?
A. Yes, there would be. If he went through a more or less a research type institution like might be at the University of Arkansas Medical School where they would make specific cultures for these particular bacteria.
Q. But routine laboratory tests would not reflect these?
A. No, the one in St. Vincent and the one in St. Joseph’s and the ones in our medical offices they wouldn’t.
* * *
Q. Since we don’t have any specific diagnostic tools at hand to determine the balance of the bacterial balance in the intestines can you with reasonable medical certainty say whether disruption of the bacterial balance was disrupting the balance as opposed to anxiety and nervousness resulting from his financial and general physical condition?
A. No, sir.
Q. Other than by his history?
A. I couldn’t with accuracy.”

On redirect examination Dr. Garratt testified that he had given a lot of thought to the question of whether or not Mr. Tigue’s diarrhea could have been caused by anxiety and he testified that he gave Mr. Tigue tranquilizers to calm him but the diarrhea still persisted and that was the reason he “stuck to his guns” On the bacteria depletion theory. He testified that he could not honestly say how much of a factor the anxiety played in the condition as opposed to bacterial deficiency: He testified that in his opinion it could be easily one or the other or a combination of both. Dr. Garratt testified that Mr. Tigue was still having diarrhea when he stopped treating him in March, 1970, and in this connection he stated:

“When I quit treating him he was still having diarrhea and I contacted Dr. Burton and suggested that he see him with the idea of checking him over independently and he put him in St. Joseph’s to do colon x-ray and to do Proctoscopic examination and various things and then Mr. Tigue I saw him in St. Joseph’s on a friendly basis while he was in there under Dr. Burton and the diarrhea had stopped then. What happened later I don’t know.”

Dr. Garratt then again recommended a clinical work-up on Mr. Tigue’s condition and stated:

“It would be a fine thing for him and that could be possibly done at the University of Arkansas through the diagnostic set-up or Barnes Hospital, in St. Louis, or Ochner at New Orleans, and they would have men who would do this, especially a teaching institution where they would go down to the very bottom and determine the background.”

He then testified that if Mr. Tigue was still having the same trouble, his only suggestion would be that he be sent to some medical center and “treated — not treated but examined by a Gastroenterologist to go through him completely and also whatever consultation they want, so on. I would suggest that that be done.”

Apparently Mr. Tigue did return to Dr. Burton as directed by Dr. Garratt. As already stated, there is no report or testimony in the record from Dr. Burton but records from St. Joseph Hospital in Hot Springs were introduced into evidence which show that Mr. Tigue was admitted to the hospital on March 5, 1970, with Dr. Frank M. Burton as attending physician, and that he was discharged from the hospital on March 12, 1970. As a final diagnosis on the hospital record, signed by Dr. Burton, is the statement: “No disease found.” The discharge summary, apparently in the handwriting and over the signature of Dr. Burton, contains the following statement:

“Patient admitted with complaint of recurring diarrhea for over two years. No diarrhea during this 7 day stay in hospital. All x-rays negative. There may be certain foods that cause the diarrhea and patient was discharged with instructions to keep accurate record of foods taken and the occurrence of diarrhea in an effort to find the offending foods — to see Dr. Garratt.”

Mr. Tigue also underwent examination at the Little Rock Diagnostic Clinic and under date of December 20, 1971, in a letter-report to the attorneys for the workmen’s compensation carrier, Dr. James H. Abraham reported as follows:

“Enclosed you will find a copy of my narrative summary concerning my work-up on Mr. Tigue. You will notice that my final impression is that Mr. Tigue has spastic, or irritable colon syndrome.
I have reviewed the records you enclosed, and the deposition obtained from Dr. Charles E. Garratt, dated October 14, 1971.
With regard to the question you asked in your letter of November 2, 1971, let me just say that in my opinion the chronic diarrhea that he suffers from at the present time is probably unrelated to the diarrhea that developed after his discharge from the hospital. It may have been that the diarrhea at that time may have been initiated by antibiotic therapy, however, it is not possible that that is still a causative factor. We have cultured Mr. Tigue’s stdol, found an abundance of normal organisms, so that the previous questions concerning overgrowth of yeast in the stool is no longer important.
I repeated the x-ray studies I thought necessary to confirm my impression about Mr. Tigue’s case, and they were all normal. I sigmoidoscoped Mr. Tigue, and found the rectal membrane to be healthy in appearance. A tiny biopsy was made of the rectal mucosa, and the pathologist report is of non specific chronic inflammation. This is not to be construed as indicating that Mr. Tigue has ‘chronic colitis.’ I believe this to be a non specific finding.
Mr. Tigue’s problem is certainly a troublesome one. It apparently has resisted all attempts to cure it. I am afraid he is stuck with it.”

In the narrative summary of the work-up done at the clinic under “Past History’* is a statement as follows:

“Drug reactions 1965 — penicillin caused rash, fever, and joint swelling, he has no other drug reactions to his knowledge.”

Except for carious teeth and ichthyosis of the skin, the remainder of the clinical examination was reported as normal.

Both sides recognize that Mr. Tigue had the burden of proving before the Commission that his chronic diarrhea was connected with his occupational back injury and more specifically that it was caused by the antibiotic therapy administered him in 1966. Both sides also recognize that on this appeal, the burden rests on Mr. Tigue to show that there is no substantial evidence to support the findings of the Commission. Substantial evidence has been defined as "evidence furnishing a substantial bapis of fact from which the fact in issue can reasonably be inferred; and the test is not satisfied by evidence which merely creates a suspicion or which amounts to no more than a scintilla or which gives equal support to inconsistent inferences.” Wigmore on Evidence, vol. IX, 3rd ed., § 2494, p. 300, footnote 18.

Apparently when Dr. Garratt learned from Dr. Burton upon initial examination of Mr. Tigue in March, 1967, that yeast cells were contained in Mr. Tigue’s stool, Dr. Garratt concluded that beneficial bacteria were depleted or absent and with a history from Mr. Tigue of antibiotic therapy, Dr. Garrett concluded that the diarrhea experienced by Mr. Tigue was precipitated by the destruction of normal bacteria followed by the growth of yeast in the colon and the intestinal tract. Dr. Garratt was far from positive as to the accuracy of his initial diagnosis and certainly he appeared mystified by the duration of Mr. Tigue’s malady. He readily recognized many things and combination of things other than bacterial deficiency that could be the cause of Mr. Tigue’s colon irritation and resulting diarrhea.

The Commission may have noted that Dr. Garratt obtained his information as to the presence of yeast cells from a report he received from Dr. Burton in 1967 and that in the examination conducted by Dr. Burton as reported on the hospital chart in March, 1970, he made no mention of yeast cells, but did indicate the possibility of diet as a causative factor. Apparently Mr. Tigue’s condition remained practically the same from the time Dr. Garratt last saw him in March, 1970, until he was examined by Dr. Abraham at the Diagnostic Clinic about November 8, 1971. Dr. Abraham found, through the only cultural process conducted, that the bacteria count was normal and that the yeast was no longer important. If the bacteria count was subnormal when the presence of yeast was found by Dr. Burton and reported to Dr. Garratt in 1967, the record is silent as to what point in time the bacteria count returned to normal. There is evidence that Mr. Tigue’s diarrhea was associated with blood in the stool and violent cramping and muscle motility in the intestinal tract biAi other than diarrhea for a maximum period of three mohths, there is no evidence in the record as to what symptons would normally follow the absence of bacteria and presence of yeast in the intestinal tract. There is no direct evidence that bacterial deficiency and the presence of yeast would cause chronic irritation of the colon, but there is evidence that irritation of the colon, regardless of the cause, will result in diarrhea and that many things, other than the absence of bacteria and presence of yeast, would result in such irritation and such symptoms.

We are unable to say that there is no substantial evidence in the record to support the Commission’s finding that Mr. Tigue’s spastic colon syndrome and chronic diarrhea are not a result of the antibiotic therapy administered to him in 1966.

The judgment is affirmed.


author: Frank Holt, Justice.

text:
    Allie CARROLL v. Fred REED
    5-6187
    491 S.W. 2d 58
    Opinion delivered March 5, 1973

      Gaughan, Laney, Barnes, Roberts & Harrell, for appellant.

      Holmes & Holmes, for appellee.
   Frank Holt, Justice.

The only issue on this appeal is the true boundary line between two adjoining landowners. The litigation resulted when appellant constructed a wire fence along a line which she contends is the northern boundary of her lands. The appellee brought this action to require the removal of the fence and to establish the true boundary line. The area in dispute is approximately 25' x 660' or 1/3 of an acre of mostly woodlands. The chancellor specifically found that the testimony of appellee’s surveyor was in irreconcilable conflict witlj, the appellant’s surveyor, primarily as a result of the method of the survey and the beginning point utilized by each surveyor. In resolving the conflicting evidence, h^ found that appellee’s survey was correct since it was shown that a well established section corner existed which “should be the starting point to determine the dividing line between the parties. . .” For reversal the appellant contends that “the chancellor’s decree establishing a boundary line based on Porter Coats’ survey from corner markers on the section 10 corners is against the preponderance of the evidence.” We cannot agree.

Appellant acquired her property approximately six years before this controversy arose. Shortly after acquisition, appellant had the property surveyed by a Mr. Leister whose starting point was from the southeast to the southwest corner of section 10. The survey was conducted in the presence of appellant, her husband, appellee and two other admoining landowners. In appellee’s presence, a creosote post was set at her surveyor’s direction as being on and at the east end of the true dividing line. About two years before the trial of this case, she employed another surveyor, Porter Coats, to resurvey the property. He had 35 years survey experience in the county, including 25 as the official county surveyor. It appears that about two years later a barb wire fence was nailed to trees along a zigzagging or erratic line which appellee’s husband himself established. The fence, which appears to be about 60’ north of the Leister-Coats dividing line, constitutes the alleged encroachment. Neither Leister nor appellant’s husband was called as a witness.

The appellee relied upon Coats, the appellant’s surveyor, as his witness. Coats testified that when he conducted his survey for appellant his starting point was a well established southeast section 10 corner which consisted of a damaged concrete brass capped monument. He then “shot a line” to the southwest corner of section 9 and then established the southwest corner of section 10, where he found it marked with steel pins or markers. Leister had also used the same starting point. Appellant’s and appellee’s property is within this section. There was some testimony by local property owners in section 10 which corroborated Coats to the effect that the southeast and southwest section 10 corners existed as indicated by Coats. Coats testified that the southeast section 10 corner had existed since he had been surveying in that area, “for a number of years,” and was considered a reference point. The true dividing line established by the Coats survey was approximately identical with Leister’s.

Immediately preceding the trial date, appellant had another survey made by a Mr. Turner, a registered surveyor. He established the southeast and southwest corners of section 10 by running a straight line between the southeast corner of section 11 and the southwest corner of section 9. According to his survey, the northern boundary of appellant’s property would be approximately 25’ farther to the north than the boundary line reflected by Coats. It appears undisputed that the section corners in section 9 and section 11 are well established by undamaged concrete brass cap monuments of long existence. In fact, it seems that Coats himself and others had used them as reference points in previous surveys in that area. Appellant adduced evidence that certain “‘occupation lines” verify her surveyor. However, it appears there are no “occupation lines” on the south side of section 10 other than the highway right-of-way.

In the circumstances we cannot say that the chancellor’s finding and acceptance of the Coats’ survey as being correct with reference to the true boundary line, based upon the section 10 corner markers, are against the preponderance of the evidence.

The appellant next contends that the chancellor’s decree is contrary to the law. Appellant and appellee both agree that the original United States Government survey is prima facie correct and surveys must conform as nearly as possible with the original government survey. Buffalo Zinc & Copper Co. v. McCarty, 125 Ark. 582, 189 S.W. 355 (1916), Burton v. City of Fort Smith, 214 Ark. 516, 216 S.W. 2d 884 (1949), and DuPriest v. Anthony, 226 Ark. 894, 294 S.W. 2d 769 (1956). Appellant introduced as an exhibit a plat of the United States Government survey (1841) which reflects the section lines to be straight. Appellant says her survey is, therefore, correct since appellee’s survey would require an offset at a point which should be the common corner of section 9 and 10. Suffice itxto say that neither of the surveyors testified that they made their survey from government established corners.

Affirmed.


author: Carleton Harris, Chief Justice.

text:
    Richard Monroe SIMS v. STATE of Arkansas
    5818
    491 S.W. 2d 584
    Opinion delivered March 12, 1973

      James R. Howard of Howard, Howard & Howard, for appellant.

      Jim Guy Tucker, by: Frank B. Newell, asst Atty. Gen, for appellee.
   Carleton Harris, Chief Justice.

Richard Monroe was convicted of robbery and his punishment fixed at twenty-one years confinement in the Arkansas Department of Correction. From the judgment so entered comes this appeal. For reversal, only one point is relied upon, viz., “The lower court erred in admitting State’s Exhibit No. 1, the so-called ‘Standard Police Rights Form’.”

The alleged error is based on the testimony of Detective Larry Starks who testified that he was present when Detective Bill Johnson advised Sims of his constitutional rights. The "rights from” is in accord with the requirements of Miranda v. Arizona, 384 U.S. 436, 16 L.Ed. 2d 694, and Starks stated that after Johnson read the instrument to Sims, the form was handed to appellant who appeared to be looking over it, then stated that he understood it, and signed. Starks witnessed the signing. According to subsequent evidence, Detective Bobby Thomas was then given a statement by Sims which implicated appellant in the robbery. Detective Johnson was not present at the trial because of a death in the family.

Appellant argues that the testimony of Starks was hearsay evidence and inadmissible; that the case should have been passed until such time as Detective Johnson could be present. We do not agree that this was hearsay evidence. Starks was not testifying to something that somebody told him, nor, for that matter, what Johnson said during the advisory procedure; rather he was testifying to what he observed, i.e., what Johnson and Sims did. Of course, the evidence was not sought to be admitted as proving the truth of the statements, but merely to establish that the statements were in fact made. See Green v. State, 223 Ark. 761, 270 S.W. 2d 895, and cases cited therein. The evidence was admissible.

Affirmed.

       Date 1-25-72
      Time 6:30 P.M.
      I, Monroe Sims, date of birth 7-23-48, now live at 2401 Dennison. I have been advised that I am a suspect in an armed robbery, that I have the right to use the telephone, that I have the right to remain silent, that I have the right to talk with an attorney, either retained by me or appointed by the court, before giving a statement, and to have my attorney present when answering any questions. I have also been advised if I waive these rights I have the right to stop the interrogation at any time. Also, that any statement I give will be used in a court of law against me. I have read the above statement of my rights and I understand them. No promises or threats have been made to induce me into making a statement.
      Signed /s/ Richard Sims
      Witness /%/ Det. Bill Johnson
      Witness /s/ Det. L.W. Starks


author: George Rose Smith, Justice.

text:
    Morris JUSTICE v. Lloyd RINGGOLD, Administrator
    5-6078
    491 S.W. 2d 382
    Opinion delivered March 12, 1973

      Williamson ir Mattingly, for appellant.

      Haley, Young, Bogará & Gitchell, P. A. and Thomas Glaze, for appellee.
   George Rose Smith, Justice.

The appellee is the estate of Julian Justice, who died on August 29, 1969. The appellant, Morris Justice, is the decedent’s son. The elder Justice, using his own money, opened a checking account in the First Jacksonville Bank, the account being entitled “Julian Justice or Morris Justice.” At Julian’s death there was $1,373.84 in the account. Julian also purchased from the bank a $6,-300 certificate of deposit, payable to Julian Justice or Morris Justice. Julian did not in either instance sign a card or other document referring to survivorship or otherwise clarifying the ownership of the checking account or of the certificate of deposit.

After Julian’s death the bank paid the amount of the checking account and the amount of the certificate to Morris Justice. Ringgold, as administrator, brought this action to recover both amounts for the estate. Morris Justice appeals from a judgment sustaining the administrator’s claim to both sums.

The judgment is correct. In Cook v. Bevill, 246 Ark. 805, 440 S.W. 2d 570 (1969), upon facts that cannot be distinguished from those in the case at bar, we discussed the controlling statutes at length and concluded that no survivorship interest was created where the decedent did not affix his signature to any instrument complying with the statutory requirement that the survivorship interest be designated in writing. That case governs this one.

Affirmed.


text:
    MISSOURI PACIFIC RAILROAD COMPANY v. HAVERTY FURNITURE COMPANY
    5-6201
    491 S.W. 2d 379
    Opinion delivered March 12, 1973

      William J. Smith and Oscar E. Davis Jr., for appellant.

      Wright, Lindsey ir Jennings, for appellee.
   George Rose Smith, Justice.

Haverty Furniture Company of Little Rock brought this action against the Missouri Pacific Railroad Company to recover judgment for the loss of $862.74 worth of furniture that was stolen from an unguarded freight car that the railroad company had spotted on Haverty’s private spur track in North Little Rock. Trial to the court, sitting as a jury, resulted in a judgment for Haverty for the amount in dispute. We are of the view that the case turns on a question of fact, upon which there is substantial evidence to support the trial court’s judgment.

We state the facts most favorably to the appellee. Prior to the incident in question Haverty had received, from Missouri Pacific as the final carrier, several damaged shipments of furniture from an out-of-state supplier, Broyhill Industries. Haverty had suffered no loss, however, because its claims for the damage had been paid by Missouri Pacific.

The railroad company thought the shipments had been improperly packed by Broyhill. As a step toward correcting the trouble Haverty was asked to notify Missouri Pacific upon receipt of the next damaged shipment from Broyhill. The railroad intended to send an inspector to examine the damaged furniture in the freight car and to take photographs of it, with a view to remedying any packing errors at the point of origin.

On Wednesday, May 26, 1971, Missouri Pacific spotted a car of Broyhill furniture on Haverty’s private siding. Both parties agree that ordinarily the carrier’s responsibility for the shipment would have ended at that point, since control passed to the consignee.

Haverty opened the car and found the shipment to be damaged. At about 8:30 on Friday morning Haverty reported the damage to Missouri Pacific, as it had been requested to do. The railroad company assured Haverty that the contemplated inspection would be made during the day. Early in the afternoon Haverty, whose men were on hand to unload the boxcar, again called Missouri Pacific about the inspection. Still a third call was made by Haverty later in the afternoon. At that time Haverty was told that the inspection could not be made before the first working day after the Memorial Day weekend. The carrier asked Haverty to reseal the car — a process that involved nothing more than fastening a tiny metal seal to the car doors. Neither party to the telephone calls mentioned the possibility of safeguarding the boxcar, as by watchmen or padlocks. During the weekend the car was broken into by someone, resulting in the loss now in controversy.

The basic question is whether Missouri Pacific had constructively reassumed possession of the boxcar. Counsel cite no authority particularly pertinent to the present fact situation. It seems to us that the issue, like that presented in negligence cases, was essentially one of fact for the trial court, sitting as a jury.

We cannot say as a matter of law that a jury of reasonable men must necessarily have found that possession of the car had not been constructively reassumed by the carrier. Upon that issue it must be borne in mind that the proposed inspection of the damaged furniture was for the carrier’s pecuniary benefit, that the carrier requested the inspection, that it promised a prompt inspection on Friday (after which the furniture would presumably have been moved to a point of safety), that the carrier directed the flimsy resealing of the car, and that the carrier took no affirmative steps to safeguard the shipment during the delay that it had asked for. We think the trier of the facts was justified in concluding that the carrier should bear the loss.

Affirmed.


author: Lyle Brown, Justice.

text:
    ARKANSAS WESTERN GAS COMPANY v. Leonard FOSTER & Fran FOSTER
    5-6171
    491 S.W. 2d 380
    Opinion delivered March 12, 1973

      Jeta Taylor and Warner, Warner, Ragon ér Smith, for appellant.

      Jack Yates, for appellees.
   Lyle Brown, Justice.

Appellant Arkansas Western Gas Company is the owner of an oil and gas lease covering eighty acres of land owned by appellees, Leonard and Fran Foster. Appellant entered upon the land for the purpose of drilling a gas well. In preparation for the drilling appellant cleared a drill site, constructed a pad and a slush pit, and built a temporary road from the point of entry of the lands to the well site. The well was plugged and abandoned on May 13, 1969. Appellees sued appellant for damages for alleged unreasonable use of the land. Judgment was entered on a jury verdict for $2500. The single point advanced for reversal is that the verdict is excessive and is not supported by substantial evidence.

Appellees introduced evidence to show that the eighty acres was improved pasture land; that the underbrush had been removed and the land had been seeded; and that the pasture is presently supporting forty cows and calves. Mr. Foster said the gas company constructed a road out of shale that extended diagonally across four acres of land; that the drill site was leveled because it was sloping; and that there were about four acres in the road and well site. “After the well was plugged, the gas company just leveled a portion of the property and left the slush pit, and ran a blade through a dam in the creek so the water would go out. They did nothing about remedying the pit.” Appellees introduced a bill they paid totaling $850 for leveling the well site and putting on top soil. Then there was a bill for $327 for fertilizer and grass seed put on the well site and slush pit. (Of the $850 the court instructed the jury that the dozer operator did some work on the opposite side of the branch and the work in that vicinity could not be charged as a cost of restoring the well site.) The dozer operator described the well site as he first viewed it: “When I first saw the well site, the shale was spread over the grass and the slush pit was piled up three or four feet high. I removed the top soil from around the pit, spread the slush and replaced top soil over the slush pit in order to get it back into production.” The gas company had also dammed the branch and appellee removed the dam.

The witnesses for the gas company declared they used a maximum of two acres in the entire operation. The land manager testified it would take over a year to do away with the slush pit and during that interim the landowner was entitled to damages for what his land could have produced for him. Appellant insisted that prudent methods were used and that a minimum amount of land was utilized. Another witness for the gas company conceded that it would take two or three years to restore the pad, the drill site, the slush pit, and road back into production.

The measure of damages instruction, given without objection, is as follows:

If you find that the plaintiffs are entitled to recover in this action against the defendants, Arkansas Western Gas Company, then the measure of damages to be considered by you would be the cost of reseeding the plaintiffs’ land that was damaged by the defendant, plus its rental value from the time that it was damaged until the time it was restored to the same condition that it was in prior to the damage. In addition the plaintiffs would be entitled to recover the cost of restoring the damaged land to the condition that it was in prior to the time of said damage.

Evidence was introduced on the cost of reseeding and fertilizing ($327), and the cost of restoration ($850 less one-third, or $567). That is a total liability of $894. Appellant concedes an indebtedness in that amount and asks this court to reduce the judgment accordingly. Our problem is that evidence is wholly lacking with respect to one element of damages, namely, the rental value of the land damaged from the inception of damages until restoration.

The cause is reversed and remanded for a new trial in order to afford the landowners the opportunity of supplying the missing evidence.

Reversed and remanded.


author: Lyle Brown, Justice. John A. Fogleman, Justice,

text:
    Ralph LEWIS & Julia LEWIS v. GARDNER ENGINEERING CORP.
    5-6203
    491 S.W. 2d 778
    Opinion delivered March 12, 1973
    [Rehearing denied April 16, 1973.]

      Floyd Lofton and Jack Sims, for appellants.

      Wright, Lindsey $? Jennings, for appellee.
   Lyle Brown, Justice.

Ralph Lewis and wife brought suit for damages against Gardner Engineering Corporation and its employee, Travis Green, for injuries sustained while employed by S.O.G. of Arkansas, as a pile driving foreman on Lock and Dam No. 4 near Pine Bluff. Gardner Engineering manufactured the pile driver that became unhitched and caused the steel piling to fall upon Lewis. It was the theory of Lewis that poor workmanship caused a defect in the hitching device made into the pile driver. On motion of Gardner Engineering for summary judgment the trial court held that S.O.G. of Arkansas was a joint venture entered into by Gardner Engineering and San Ore Construction Co., a partnership for the sole and exclusive purpose of bidding upon and performing the construction on Lock and Dam No. 4; that Ralph Lewis as employee and S.O.G. as employer were subject to the Arkansas Workmen’s Compensation Law; and that the employee of a joint venture is barred from claiming in tort against one of the joint venturers, the exclusive remedy being under the workmen’s compensation act.

Appellants contend it was error to apply the general rule than an individual member of a joint business adventure is exempt from tort liability under the workmen’s compensation law “because in this case a joint adventure was of itself an employing entity, separate and distinct from the parties thereto”. Appellants recognize the general rule which we follow, namely, that a joint venturer who is also an employer is immune from tort liability under the workmen’s compensation law. Smith v. Rodgers, Admx., 251 Ark. 994, 477 S.W. 2d 831 (1972). The rule has been well stated thusly:

It has been held that unlike a partnership, a joint adventure is not a distinct legal entity separate and apart from the parties composing it, and consequently an employee of a joint adventure is an employee of each of the joint adventurers under ordinary principles of agency, and the liability of the joint adventures and their insurance companies for workmen’s compensation to such employee is joint and several. Personal Injury Actions, Defenses, Damages, Vol. 4 D, Chapter on Joint Adventurers and Partnerships, § 1.03, p. 174.

Under their first point for reversal appellants contend that the parties went much further than creating a joint venture— “so far in fact as to create a separate employing entity.S.O.G. of Arkansas was so autonomous, so vested with independent control, as to take on the nature of a de facto corporation”. Appellants point to the provisions in the agreement of joint venture for each party to appoint a designee and alternate designees to act for it with full and complete authority over problems arising out of the joint venture. They also point up a provision governing the settlement of any dispute between the venturing parties or between their designees, which provision provides for full and complete arbitration of the problem or problems. Appellants cite other working provisions of the venture to sustain their position that a separate employing entity was in fact established. Of course the purpose of the argument is to sustain appellants’ position that Gardner Engineering Corporation was a third party rather than an employer within the contemplation of the workmen’s compensation act. Ark. Stat. Ann. § 81-1302 (a) (Repl. 1960). Appellants cite not a single authority which sustains their position that the nature of the organization of S.O.G. removes it from the general rule we applied to joint ventures in Smith v. Rodgers.

Appellants rely heavily on Abbott v. United States, 207 F. Supp. 468 (1962). Steers, Inc., was a member of a joint venture which constructed an offshore radio tower for the United States Navy. The work was completed and the joint venture terminated in 1957. Three years later, Steers alone contracted to perform repair work on the tower and while so engaged the tower collapsed and the decedents were on it. The deaths were covered by workmen’s compensation provided by Steers alone. The death actions against the joint venture were predicated upon the original design and construction and Steers argued that there could be no recovery against it as a joint venturer. The court sustained plaintiffs’ theory of possible liability of the joint venture, giving two reasons. First, it was said that the joint venture was not responsible for workmen’s compensation for the deaths. Second, it was pointed out that some of the decedents were not employed by Steers until after the joint venture ended. This case fails as a precedent for appellants’ position because in the case at bar Gardner Engineering is responsible for payment of workmen’s compensation payments to appellant Ralph Lewis. It is nothing more than a coincidence that Gardner, one of the joint venturers, happens to have manufactured the hoist.

The final argument is that Gardner should be es-topped from invoking the exclusive remedy provision of the compensation law “in order to escape its liability as the manufacturer of a product separate and apart from the joint venture”. We find no merit in the argument. Gardner is discharging its responsibility to Ralph Lewis as an employee. And under the law, which was settled in Smith v. Rodgers, that is the extent of Gardner’s obligation.

Affirmed.

Fogleman, J., dissents.

John A. Fogleman, Justice,

dissenting. I believe that the court has overlooked the thrust of the principal argument of appellants on this appeal in applying Smith v. Rodgers, 251 Ark. 994, 477 S.W. 2d 831, to one of appellants’ arguments. The argument which I think has merit is advanced in connection with their points II and III, stated as follows:

II. The defendant, Gardner Engineering Corporation, as a joint venturer, is a “third party” with respect to Gardner Engineering Corporation, as a manufacturer of the hoisting clamp.
III. The defendant should have been estopped from invoking the exclusive remedy provision of the Arkansas Workmen’s Compensation Act in order to escape its liability as the manufacturer of a product separate and apart from the joint venture.

These points are rather lightly treated by the majority, apparently on the basis that it is nothing more than a coincidence that Gardner happened to have manufactured a hoist used on the job. This coincidence provides the distinction between this case andSmith v. Rodgers, supra, and calls upon the court to meet the question posed head on and not as if it were either incidental or coincidental. Because of the “coincidence” I would reverse the summary judgment and remand the . case for further proceedings.

The appellants alleged in their complaint that Lewis was injured because of the malfunction of an automatic hooking device (not a hoist — probably properly a hoisting clamp) manufactured by appellee and furnished for use on the hoist utilized for lifting and moving sheet piling on the job where Lewis was employed by the joint venturers. They alleged that appellee negligently and carelessly manufactured the device under a design which made it dangerous for its intended use, that appellee was negligent in the adoption of the design, in failing to test or periodically inspect the device and in failing to warn users of the dangers inherent in its use. Appellants asserted that they relied upon express and implied warranties that the device was safe and fit for the purposes intended and that Lewis’ injuries were the direct result of the negligence of and breach of warranty by appellee.

The documents constituting the agreement between the joint venturers were exhibited with appellee’s motion for summary judgment. Nothing therein obligated either of the venturers to furnish any particular equipment, and there was no obligation on the part of Gardner Engineering Corporation to design, invent or furnish the device in question. The agreement did require the payment of rent to each party for its equipment that was used by the joint venture. A schedule of the major equipment rental was attached. Keeping of complete books of account of the venture was required. There is also a provision that each venturer shall have a one-half interest in any property and equipment acquired in connection with the project undertaken. The cost of equipment purchased was classified by the agreement as a construction cost. Sale of equipment'purchased to one or the other of the joint venturers at a price to be agreed upon was permissible upon completion of the work contracted, but not required.

The deposition of Elmer C. Gardner discloses that the particular hoisting clamp was invented by him and another officer of appellee and built at appellee’s shop in Houston, Texas, and that the joint venture was charged a fee for the device. Ralph Lewis made an affidavit that he was injured when struck by sheet piling being lifted out of the Arkansas River by means of this automatic clamp attached to a 150-ton crane. He said that the damp bore a plate reading “Manufactured by Gardner Engineering Corporation, Houston, Texas, Shop No. 493 Date 8-67.” He also stated that there were two methods of attaching and releasing the sheet piling, other than by use of the automatic hoisting clamp. By deposition, Lewis testified that this device had been used on the job only a few months, and that the parts of the clamp seemed to wear with use so that the spring which made the hooking device automatic would fail to function. He also deposed that when this occurred, the sheet piling would fall from the hook, that employees of the venture had worked on the device and that the last such hook used was different from the one first used in that two or three remodeling changes had been made.

In passing, I note that appellee’s workmen’s compensation insurance applied only while a member of the joint venture was acting within the scope of his duties as such.

Appellants do not seek to recover for the furnishing of unsafe equipment by the joint venture or the joint venturer. They seek to recover from appellee as a “third party,” under allegations hereinabove referred to on the basis of negligence or breach of warranty in the manufacture and distribution of a faulty device, a step that certainly was outside the purposes of the joint venture, i.e., the construction of a lock and dam.

With this factual background I submit that the “dual-capacity” doctrine should be invoked. See 2 Larson, Workmen’s Compensation Law 226.20, et seq., § 72.80. Professor Larson states it thus: “* * * an employer normally shielded from tort liability by the exclusive remedy principle may become liable in tort to his own employee if he occupies, in addition to his capacity as employer, a second capacity that confers on him obligations independent of ¿hose imposed on him as employer.” So much of what this eminent authority has to say is applicable here that I take the liberty of extensive quotation. He adds:

The most striking example has already been noted in the California case of Duprey v. Shane. This is the case in which a chiropractor’s employee, injured in the course of employment, was treated by the chiropractor himself, who negligently aggravated the injury by treatment. The employer was found to be, in his role as treating doctor, a “person other than the employer,” and thus vulnerable to a common-law suit.
The commonest type of dual-capacity case is that in which the employer’s second set of obligations springs from his status as an owner. Florida has held, as we have seen, that a general contractor who was also the owner of the land and building on which the injury occurred, although protected from suit as the employee’s statutory employer, was open to suit as owner of the premises. Tennessee and New York have reached the opposite conclusion on comparable facts. But New York has in effect held that the capacity of owner of a truck may be separate from the capacity of co-employee.
In 1963 the Supreme Court of the United States, without actually using dual-capacity language, in effect applied the dual-capacity technique to a shipowner whose second persona was that of longshoring employer. The bareboat charterer of a ship (which is for present purposes equivalent to shipowner) hired longshoremen directly, instead of following the more common practice of engaging a stevedoring company to handle its loading and unloading. An injured longshoreman brought an action against his employer as bareboat charterer of the vessel for injuries caused by the unseaworthiness of the vessel. The employer defended on the basis of the exclusive remedy provision in the Longshoremen’s and Harbor Workers’ Compensation Act. The United States Supreme Court stated that:
“only blind adherence to the superficial meaning of a statute could prompt us to ignore the fact that . . . [the] employer of a longshoreman was also a bareboat charterer . . . charged with the traditional, absolute and nondelegable obligation of seaworthiness which it should not be permitted to avoid.”
The employer, also liable for compensation benefits under the Longshoremen’s Act, was held liable to his employee as the bareboat charterer, for injuries arising out of the unseaworthiness of the chartered vessel.
The primary issue in this class of cases is: what is the test of true dual capacity?
* * *
The decisive dual-capacity test is not concerned with how separate or different the second function of the employer is from the first but with whether the second function generates obligations unrelated to those flowing from the first, that of employer. The legal obligation of a shipowner to maintain the vessel in seaworthy condition, for example, is quite independent of the status of employer. It differs in character and extent from that of a stevedoring company, even if the stevedoring company also is the shipowner. The obligation would exist even if the shipowner had no employees, and it runs to persons other than employees.
Similarly, it can at least be argued that the liability of the owner of land is different from that of an employer working on the premises. The legal doctrines governing the responsibilities of landowners to different classes of persons entering upon the land are ancient and distinctive, and again are different in quality and range from the rules governing the liability of a contractor to his employees.
The New York case of Costanza v. Mackler has some of the characteristics of a dual-capacity case. The holding was that the co-employee immunity created by the New York Act did not extend to the defendant employee in his capacity as owner of the truck involved in the accident, and that therefore he could be held liable under the New York vehicle owner’s liability law. The defendant regularly rented two trucks to his employer. The alleged tort was based on the condition of the truck. A loose floorboard had struck the plaintiff, a fellow employee of the defendant. The court made short work of the issue by assimilating it to the situation in which the co-employee was not in the course of his employment at the time of the accident, and concluded:
“The alleged tort charged of the defendant is independent of and not related to the common employment of both . . . .”
It should be observed, however, that the Costanza problem is not identical to that in the course-of-employment cases. In Costanza the truck, so to speak, was in the course of employment at the time of injury. The most satisfactory way to rationalize the case, then, is under the dual-capacity concept. The defendant was being sued as truck owner for his own negligence in that capacity. * * * In Costanza the defendant was relying on his own status as co-employee, and to defeat this defense it is necessary to say that his negligence in furnishing a defective truck was not conduct in his capacity as co-employee.
Once a valid dual-capacity situation is established, whether as to employer or employee, this is not necessarily an end of the matter. There remains a possible dispute on which of the two capacities should control.
In the case of the contractor-employer who is also an owner, the defendant employer will say, “You cannot sue me; the compensation act says that compensation is the exclusive remedy against me.” To which the employee-plaintiff will reply, “That may be true, but I am not suing you as employer — I am suing you as owner.” The employer replies, “Whatever else I am is immaterial, because the act gives me immunity to suit by you, and that’s that.” Whereupon the employee rejoins, “Your immunity is only as employer: I am suing you as premises owner.” And so on.
How should this standoff be resolved? It is submitted that the employee has the better of the exchange, for two reasons. One is that the plaintiff has. so to speak, the choice of weapons; if he chooses to sue defendant as owner, thai establishes the character of the suit, and defendant must meet plaintiff on his own terms. The second reason is the well-established principle that obliteration of a valuable and longstanding cause of action should not be found except when statutory language destroying the cause of action is clear; any doubt, then, should be resolved in favor of preserving rather than abolishing that right.

The cases mentioned in the above quotation are: Duprey v. Shane, 109 Cal. App. 2d 586, 241 P. 2d 78 (1951), aff’d 39 Cal. App. 2d 781, 249 P. 2d 8; Reed v. The Yaka, 373 U.S. 410, 83 S. Ct. 1349, 10 L. Ed. 2d 448 (1963); Costanzo v. Mackler, 34 Misc. 2d 188, 227 N.Y.S. 2d 750 (1962), aff’d 17 App. Div. 2d 948, 233 N.Y.S. 2d 1016. In Reed, the court was treating an act, which, like our own, permitted actions for damages against “third persons” but provided that compensation liability of an employer was exclusive in place of all other liability on his part. The United States Supreme Court, in reaching its result, stated the rule of liberal construction to conform with the purpose of the act so often applied by this court.

It was never intended that our workman’s compensation statutes should immunize one who happens to be an employer from any and all liability to one who happens to be his employee. Amendment 26 of our Constitution only authorized the General Assembly to enact laws prescribing the amount of compensation to be paid by employers for injuries to employees. It prohibits any other limitation on the amount to be recovered for injuries. This certainly means that the General Assembly can only prescribe limitations relating to injuries arising out of the employer-employee relationship. Any effort to extend the limitation to insulate the employer from a liability which does not arise out of the relationship seems to me to violate this provision of the Constitution, particularly when read in the light of Article 2, Section 13. See Emberson v. Buffington, 228 Ark. 120, 306 S.W. 2d 326. To say the least, a limitation having this effect is not authorized by this section. In my opinion, the legislature has not even attempted to do that which the majority opinion makes it appear to have done. A review of the statute reveals no such intention to me. The remedy under the act is made exclusive by Ark. Stat. Ann. § 81-1304 (Repl. 1960), but I submit that this applies only to liabilities arising out of the employer-employee relationship. We have said that the purpose of the act is to compensate only for losses resulting from the risks to which the fact of engaging in the industry exposes the employee. Birchett v. Tuff-Nut Garment Mfg. Co., 205 Ark. 483, 169 S.W. 2d 574. Liability under the act is based, not upon any act or omission of the employer, but upon the existence of the relationship which the employee bears to the employment because of and in the course of the employment. McGregor & Pickett v. Arrington, 206 Ark. 921, 175 S.W.2d 210. Because of this purpose, we should not extend the limitation on the injured employees’ remedy beyond the purposes of the act or beyond the constitutional limitation on the act. Failure to recognize the dual capacity doctrine in this case does both.

I observe that Smith v. Rodgers, supra, fully recognizes the possible application of the dual capacity doctrine. We only held that under the facts of that case “Smith was nothing more or less than a joint venturer and as such is exonerated from liability as an employer by the Workmen’s Compensation Law.” We went on to say that even if Smith were considered as something other than an employer, the evidence failed to show any liability in any other capacity (i.e., intermediate supervisor or bailor). My question is: Why should Gardner Engineering Corporation be relieved of its liability as a designer and manufacturer by the fortuitous circumstance that it happened to be the employer of the injured party in an unrelated undertaking?

I would reverse the summary judgment, recognizing that there may well be factual issues to be determined as to the capacity in which appellee acted in the premises.