author: George Rose Smith, Justice. Carleton Harris, Chief Justice, John A. Fogleman, Justice,

text:
    Bobby Glenn FERGUSON and Martha Ferguson v. STATE of Arkansas
    5517
    458 S. W. 2d 383
    Opinion delivered October 12, 1970

      James L. Sloan, for appellants.

      Joe Purcell, Attorney General; Mike Wilson, Asst. Atty. Gen., for appellee.
   George Rose Smith, Justice.

The appellants, Bobby Glenn Ferguson and his wife Martha, were charged with having burglarized the Town & Country Restaurant at Fort Smith on August 18, 1969. Both were found guilty. The jury sentenced the husband to twenty-five years imprisonment, as a habitual criminal, and the wife to two years imprisonment. The appellants urge twelve points for reversal, but inasmuch as we find a new trial to be necessary we need discuss only those assignments of error that are apt to arise again during another trial.

The most serious question in the case concerns the validity of a search warrant that was used by the city police to search the defendants’ apartment in Fort Smith, where certain incriminating articles were found. The vital .question is whether the affidavit for the search warrant sufficiently established probable cause for the search. As a background for our discussion of that issue it will be necessary for us to narrate the pertinent facts in some detail.

The manager of the Town & Country Restaurant dosed and locked it at about 10:30 p.m. on the evening of Sunday, March 17, 1969. A few hours later, at about 1:00 a.m., Norman Pound, a baker employed at the restaurant, arrived at the premises, unlocked the door, and went in to begin the preparation of food for the next day’s business. Pound discovered that the restaurant had been entered. He called the police, who arrived promptly.

Entry had been gained by the removal of a piece of metal siding from the outside of the building and the removal of a plywood panel from the inside of the wall. In the restaurant an upright safe had been partly opened, when, it may be surmised, the burglar or burglars had been frightened away. A sufficient opening had been made in the safe to expose a layer of asbestos and cement filling, fine particles of which were scattered about the floor. Among the burglary tools still at the scene were a sledge hammer, a smaller hammer, a long-shank punch, a crescent wrench, a Samsonite suitcase containing other tools, and a half-inch electric drill, Skil brand, bearing serial number 624092. It was not shown at the trial that any fingerprints were found.

The officers checked the cars in the vicinity. At a nearby motel, within sight of the restaurant, they found a Chevrolet El Camino parked in a breezeway. According to the proprietor of the motel, the El Camino did not belong to anyone registered there.

An El Camino is a two-door, one-seated vehicle, designed to be used both as a passenger car and a pick-up truck. The windows of the El Camino were down. Simply by looking into the vehicle the officers observed two electric drills and two pairs of gloves, on the floor. The gloves, upon being shaken, appeared to have on them a substance similar to the asbestos or cement material that came from the safe. That material is flaky and tends to cling to clothing.

Upon leaving the premises the officers left one of their number to watch the El Camino (which proved to be registered in the name of the defendant Ferguson’s mother or mother-in-law). At about 2:30 a.m. the Fergu-sons drove up to the motel in a Cadillac car. Mrs. Ferguson got into the El Camino, and the two vehicles drove away.

The police, notified by the officer who was watching, stopped the two cars within a few blocks. The Fergusons gave the same version of their activities that they seem to have adhered to ever since. They were living temporarily at the Mumey Apartments in Fort Smith while they were buying a house in the city. They had been living at Jacksonville, Arkansas. On the preceding night they had driven to Jacksonville, spent the night in their home there, and packed up some of their belongings, which they took to their apartment in Fort Smith.

During their absence they had left the El Camino with a man named David Williams, who was staying at the Town 8c Country Motel and who was going to make some repairs at the house which the Fergusons were buying. When the Fergusons returned from Jacksonville to their apartment early in the morning, they decided that Mrs. Ferguson would need the El Camino to use in going to work the next morning. That, in substance, was their explanation of their activities immediately preceding their return to the motel.

When the officers stopped the two cars and questioned the couple, Ferguson said that he owned one of the drills in the El Camino, but he did not own the other drill or the gloves. Ferguson, driving the El Camino, was taken to police headquarters and questioned for a short time, after which he was released.

When Ferguson was taken to headquarters Mrs. Ferguson started back to the apartment in the Cadillac. Officer Adams followed her to the Mumey Apartments, where another officer was already waiting, having gone there in response to a request radioed by Officer Adams. The two officers entered the apartment with Mrs. Ferguson, who denied at the trial that she voluntarily invited them in. The officers looked around the apartment for a minute or two, satisfying themselves that no accomplice was present. They saw a number of tools in the apartment, including some drills and a keyhole saw.

According to Mrs. Ferguson’s testimony at the trial, when her husband returned a short time later from police headquarters, the two of them went down to examine the El Camino more carefully. In a compartment behind the seat, not readily visible, they found an empty box with a slip of paper in. it. They took the box up to the apartment and left it on a bureau.

Before noon on that same day the police arrested both the Fergusons upon the charge of burglary. At some time they examined the Fergusons’ hair, eyebrows, clothing, and shoes for particles similar to those that came from the safe, but nothing was found. It is not certain from the record whether those examinations were made when the Fergusons were first stopped on the street or after their arrest.

At about five o’clock that afternoon Officer Brooks, in company with a deputy prosecuting attorney, applied to the municipal judge in Fort Smith for a search warrant to search the Fergusons’ apartment. We quote the affidavit in full:

AFFIDAVIT
At approximately 1:00 A.M., Monday, August 18, 1969, Mr. Harold Adams, an employee, entered the Town 8c Country Restaurant, and found that there had been an attempt to break into the safe in the office. The metal covering on the door had been peeled back, some of the asbestos filling had been stripped away. There was a large suitcase and burglar tools present: to wit, 1, V2 inch electric drill, numerous drill bits, a sawed-off sledge hammer (etc). The point of entry to the building was in the rear of the building at the Northwest corner. Mr. Adams didn’t see anyone. Police arrived and searched the immediate scene and didn’t find anyone. Police found a 1968 Chevrolet El Camino, Maroon color, 69 Ark. ABC617, parked on the south side of the Town & Country Motel in direct view of the point of entry, about 100 yards away, in the breezeway. Two electric drills, were observed inside the El Camino and also two pair of gloves. It was then placed under police surveillance. At approximately 2:45 A.M., a 1967 Bronze Cadillac, 69 Oklahoma ZF4514, with two occupants, Bob Ferguson and Martha Ferguson, drove up. Martha got into the El Camino and turned north on Tow-son following Bob Ferguson in the Cadillac. Detectives Armstrong and Brooks stopped the Cadillac. Mr. Ferguson admitted ownership of one (1) of the drills, but denied that the other drill and gloves were his. Ferguson explained that he and his wife had gone out of town at approximately 1:00 A.M.; Sunday, August 17, 1969, to Jacksonville, Ark., and had parked the El Camino a' Town 8c Country Motel because he didn’t have room to park it at his residence. Monday, August 18, 1969, Armstrong and Brooks questioned Milow_, the custodian, employed at the Town 8c Country Motel and he stated that he saw Mr. and Mrs. Ferguson in the bronze Cadillac at the Town 8c Country Motel, Sunday afternoon at approximately 1:00 P.M., August 17, 1969. At approximately 11:00 A.M., Mr. Ferguson was arrested at his residence at 405 South 14th Street — Apt. 5, and brought to the Police Department where he was booked for investigation of Burglary. At the crime scene a large amount of asbestos filling which is insulation material contained in the safe, was found on the floor of the office. This substance had a tendency to cling to clothes, shoes, etc. A substance similar to this in appearance was found on the gloves that were found in the El Camino.
WHEREFORE, the affiant has reasonable grounds for believing that Mr. Ferguson was involved in the burglary of the Town & Country Restaurant and that his clothing and shoes will contain particles of this asbestos filling and that that clothing and shoes are now concealed at apartment No. 5, 405 South 14th Street.
/s/ Det Eddie Brooks

On the basis of the foregoing affidavit the municipal judge issued a search warrant. In the warrant the articles to be seized were described as ‘‘Burglar’s tools, clothing and shoes which were used in the burglary of Town and Country Restaurant on August 18, 1969,” though in fact the affidavit contains nothing to indicate the affiant’s belief that burglar’s tools would be found at the apartment.

Pursuant to the warrant the Fergusons’ apartment was searched. The principal articles found, which were introduced at the trial over the defendants’ objection, were an empty box on which there was printing that showed that the box had contained a Skil brand drill with the identical serial number as that on the drill found at the scene of the burglary; also a sales slip for a long-shank punch similar to the one found at the scene. At the trial a salesman at the store where the sales slip originated testified that he thought he had sold such a punch to Ferguson, but he was unable to identify Ferguson with certainty. In the search at the apartment the officers did not find any clothing or shoes having dust particles similar to those that came from the burglarized premises.

Recent decisions of the United States Supreme Court have placed comparatively strict limitations upon the power of a magistrate to issue a search warrant. In Aguilar v. Texas, 378 U. S. 108 (1964), the court held that the affidavit for a search warrant must contain affirmative allegations of fact from which the magistrate may independently decide for himself whether there is probable cause for the search. Affirmations of mere suspicion or belief, without adequate supporting facts, are insufficient. More recently, in Spinelli v. United States, 393 U. S. 410 (1969), the court interpreted an affidavit strictly by disregarding statements of fact that were open to an innocent interpretation as well as to an incriminating one. There, for instance, the court gave no weight whatever to the fact that a suspected bookmaker’s place of operation had two telephones, because “[m]any a householder indulges himself in this petty luxury.”

When we apply the Supreme Court’s reasoning to the affidavit in the case at bar, we are unable to say that the officer’s assertion of probable cause for the search rested upon anything more than suspicion. We disregard the fact that the search warrant authorized a search for burglary tools, because the affidavit was not drafted with a view to such a search and actually set forth no facts tending to indicate that the Fergusons had such tools in their apartment.

There remains the asserted belief of the affiant, Officer Brooks, that Ferguson’s “clothing and shoes will contain particles of this asbestos filling and that that clothing and shoes are now concealed at” the Fer-gusons’ apartment. In weighing the facts contained in the affidavit, we think it essential to consider them along with other facts which, according to the evidence adduced at the hearing upon the motion to suppress the State’s evidence, were known to the affiant when he sign-.-d the affidavit. Any other rule would encourage overzealous officers to conceal known facts in an effort to persuade the magistrate to ¿ssue the requested search warrant.

According to the proof in the record, the officers were alert from the outset to the possibility that incriminating dust from the safe might implicate the Fergusons. Officer Brooks, who made the affidavit, testified that when he first saw the Fergusons after their cars were stopped by the officers, and again at the police station, he checked their clothing, hair, eyebrows, and shoes for telltale dust, but he found nothing. Moreover, the officers apparently examined both the Ferguson cars during their investigation, yet there is no suggestion that incriminating dust was found in either vehicle. Finally, it is not without significance that the affiant’s suspicion proved to be wholly unfounded, in that no traces of the dust were found upon the Fer-gusons’ clothes or shoes as a result of the search.

It is our conclusion that the meager facts recited in the affidavit for the search warrant gave rise at best to a suspicion — perhaps, more accurately, a hope — on the part of the affiant that the search would turn up dust particles such as the officers had been unable to find in more likely places. Mere suspicion, however, cannot take the place of “facts and circumstances . . . such as to warrant a man of prudence and caution in believing” that there was probable cause for the search. Dumbra v. United States, 268 U. S. 435 (1925). For these reasons the trial court should have granted the defendants’ motion to suppress the evidence disclosed by the search; namely, the box that had contained the Skil drill, serial number 624092, and the sales slip.

The other points for reversal do not call for extended discussion. We agree with the appellants’ contention that the court erred in giving in its instructions a definition of “alibi” that required the jury not only to find that the defendants were not present when the crime was committed but also that they were without “knowledge or connection with the offense.” The quoted phrase was repeated in substance five times in the instruction. The instruction was fatally defective in that it would have allowed the jury to reach a finding of guilty if they found that the defendants had innocent knowledge of the offense, even though they did not participate in it.

On the other hand, we see no error in the court’s having given an instruction defining principals and accessories. It was the State’s theory that the Fergusons had participated jointly in the crime, but there was no direct evidence to show what part either one may have played. Hence the jury were properly told in substance that one who aids and abets another in the commission of an offense is also guilty as a principal.

Finally, the appellant Bobby Glenn Ferguson argues three points with respect to the habitual criminal statute. First, the constitutionality of such statutes is questioned, but it is enough to point out that their validity has long been sustained. Wharton’s Criminal Law and Procedure, § 2218 (Anderson’s Ed., 1957).

Secondly, it is insisted that the proof of Ferguson’s prior convictions was defective in that the certified copies merely identified him by name, as Bobby Glenn Ferguson or Bobby Ferguson. That argument was rejected in Higgins v. State, 235 Ark. 153, 357 S. W. 2d 499 (1962). Thirdly, we find no merit in the appellants’ argument that the jury must have known that one or the other of the defendants had previously been convicted of some offense, simply because the verdict forms that were first submitted required the jury to make a finding of guilt or innocence without also fixing the punishment. Counsel do not suggest how the matter could have been handled with any greater fairness toward the defendants, nor is any authority cited to show that the trial court’s procedure was subject to criticism. We find no semblance of error in the court’s selection of the verdict forms.

Reversed and remanded for a new trial.

Harris, C. J., and Fogleman, J., concur.

Carleton Harris, Chief Justice,

concurring. I agree that this case should be reversed because of the erroneous instruction relating to an alibi, but I do not agree with the majority that the affidavit of Officer Brooks was defective in that it did not set forth sufficient facts to enable the magistrate to independently determine that there was probable cause for the issuance of the search warrant. The affidavit and surrounding circumstances are set forth in the majority opinion, and I see no point in commenting further. To me, the grounds set forth in the affidavit were ample to justify the magistrate in issuing the warrant, and I therefore respectfully dissent.

John A. Fogleman, Justice,

concurring. I concur in the result reached by the majority but do not agree upon the basis on which that result should be reached. In my opinion the affidavit states a reasonable ground for belief that clothing and shoes in Ferguson’s apartment would contain telltale particles of the asbestos filling from the “peeled” safe. It appears to me, however, that the search warrant was fatally defective in that there is no authority for the issuance of such a search warrant, however desirable it might be that magistrates be vested with that authority.

According to the testimony of the municipal judge who issued the search warrant, the affidavit reproduced in the majority opinion was the sole basis for its issuance. This affidavit nowhere mentions any belief that there were burglar tools or other contraband in the place to be searched or that there were any other articles for which a search warrant might be issued either under statutory or common law authority. I agree with the appellants that there must be such authority before any judicial officer has the power to issue a search warrant. Gouled v. U. S., 255 U. S. 298, 41 S. Ct. 261, 65 L. Ed. 647 (1921); White v. Wagar, 185 Ill. 195, 57 N. E. 26 (1900); Sugarman v. State, 173 Md. 52, 195 A. 324 (1937). See also, 79 C. J. S. 827, Searches and Seizures, § 64; 47 Am. Jur. 511, Searches and Seizures, § 14; 1 Varon, Searches, Seizures and Immunities 371; 4 Wharton’s Criminal Law and Procedure, Anderson 173 § 1548.

It is clear that there is common law authority for the issuance of a search warrant for burglary tools, stolen or forfeited property, any property which it is unlawful to possess, weapons or instrumentalities of crime and other articles of such nature and character. See Boyd v. U. S., 116 U. S. 616, 6 S. Ct. 524, 29 L. Ed. 746 (1886); Weeks v. U. S., 232 U. S. 383, 34 S. Ct. 341, 58 L. Ed. 652, L. R. A. 1915B 834, Ann. Cas. 1915C 1177 (1914).

I do not think that the case of Warden v. Hayden, 387 U. S. 294, 87 S. Ct. 1642, 18 L. Ed. 2d 782 (1967), relied upon by the state, overruled Gouled in its holding that there is no common law authority for issuance of a warrant to search for “mere evidence.” In Warden, the search was made contemporaneously with a lawful arrest upon hot pursuit. The incriminating evidentiary material was found and seized by the officers in the course of a proper search of the premises for the person or persons to be arrested, for weapons and instru-mentalities or fruits of the crime. The only effect of Warden upon this situation, in my opinion, is the holding that there are no federal constitutional inhibitions against the seizure of mere evidence. There is no indication in that case that there is authority for the issuance of such a warrant, without common law or statutory authority.

I have been unable to find any statute that authorizes the issuance of a warrant to search for Ferguson’s clothing and shoes. I do not believe that they can be considered instrumentalities of the crime.

It is suggested that we found inherent authority for justices of the peace and municipal judges to issue search warrants for anything for which a search is constitutionally permissible in Albright v. Karston, 206 Ark. 307, 176 S. W. 2d 421. I do not agree with this argument. In the first place, the authority of the municipal judge to issue a properly authorized warrant was based upon the common law authority of justices of the peace to issue warrants. The power of justices of the peace to issue the warrants in that case was related to statutory authority for the issuance of warrants to search for gaming devices and authorizing the destruction of such devices. According to the majority opinion, the undisputed testimony showed that all of the articles seized were being actually used in carrying on gambling operations, and for no other purpose. The argument that authority is inherent and limited only by constitutional restrictions is hinged upon the following language in that opinion:

* * * The operation of a “bookmaking” establishment constitutes a felony and, since justices of the peace have jurisdiction to cause persons accused of a felony to be arrested and brought before them for examining trial, it follows that they have power to issue a search warrant by which devices used in the commission of felonies may be seized, that they may be used as evidence, and that they may be destroyed, if they are such as have been outlawed by statute.

I submit that, even if this language is not dictum, it is applicable only when power is vested in justices of the peace at common law or by statute to issue search warrants for instrumentalities used in the commission of felonies and nothing further.

I agree with all other matters covered in the majority opinion except for certain language with reference to consideration of lack of success of the search as a significant factor in determination of the validity of the warrant and consideration of the failure of the officers to find incriminating dust on the clothing of the Fergu-sons before the affidavit was made.

The validity of the warrant should be determined upon the basis of the evidence produced before the magistrate issuing it. Success of a search will not validate a warrant. Walton and Fuller v. State, 245 Ark. 84, 481 S. W. 2d 462. Failure should not be evidence of invalidity. This premise is recognized in United States v. Cunningham, 424 F. 2d 942 (D. C. Ct. App. 1970).

The significance of the failure of the officer to disclose that he and others had failed to find evidence of incriminating dust on the persons and clothing of the Fergusons completely eludes me. I cannot see how the officer can be said to have been concealing anything. It might be different if the Fergusons had been apprehended upon the burglarized premises and there inspected. It must be remembered that they were not seen at the neighboring motel until IV2 hours after the burglary had been discovered. They would have had ample time to go to their residence, bathe and change clothes before they dared to try to rescue the El Camino, if they had been active participants in the safe peeling. I find no indication of any lack of good faith or withholding of information from the magistrate by the officers.

I find the language of Mr. Justice Goldberg in United States v. Ventresca, 580 U. S. 102, 85 S. Ct. 741, 13 L. Ed. 2d 684 (1965), to be appropriate:

* * * the Fourth Amendment’s commands, like all constitutional requirements, are practical and not abstract. If the teachings of the Court’s cases are to be followed and the constitutional policy served, affidavits for search warrants, such as the one involved here, must be tested and interpreted by magistrates and courts in a commonsense and realistic fashion. They are normally drafted by nonlawyers in the midst and haste of a criminal investigation. Technical requirements of elaborate specificity once exacted under common law pleadings have no proper place in this area. A grudging or negative attitude by reviewing courts toward warrants will tend to discourage police officers from submitting their evidence to a judicial officer before acting.


source: Caselaw Access Project

author: Lyle Brown, Justice.

license: Public Domain

text:
    Sidney LUSTER et al v. Ida L. ARNOLD et al
    5-5316
    458 S. W. 2d 414
    Opinion delivered October 12, 1970

      David Solomon, for appellants.

      Murphy, Arnold é1 Blair and Highsmith, Harky ir Walmsley, for appellees.
   Lyle Brown, Justice.

The parties to this litigation are all the heirs of James A. Luster, deceased. Suit was instituted by appellees here, Ida Luster Arnold (daughter) and the tseven surviving children of Champ Luster (son). They named as defendants (appellants) the other living children of James A. Luster, who are in possession of the lands in which Ida, along with Champ’s children, claim an interest. From the decision of the chancellor there is an appeal and cross-appeal and the numerous points will later be recited.

James A. Luster owned roughly 1000 acres of land in Independence County and some town property in Bates-ville, the county seat. In 1922 he conveyed a substantial portion of the property, naming three of his sons and the heirs of their bodies as grantees. The granting clause read:

[U]nto the said Sidney J. Luster, Robert E. Luster and Harry D. Luster and unto the heirs of their bodies (that is to say, unto each of said grantees, and the heirs of his body, an undivided one-third). . .

The habendum provided:

To have and to hold the same unto the said Sidney J. Luster, Robert E. Luster and Harry D. Luster, and to the heirs of their bodies in the interests or shares above mentioned...

The grantor died intestate in 1924, followed by the death of his widow in 1953.

Shortly after the conveyance Sidney, Robert, and Harry Luster went into possession. The lands forfeited for taxes for 1929 and Sidney and Harry each redeemed an. undivided one-third interest. Sidney allegedly became the record owner (through tax title): of Robert’s one-third interest, save and except a tract known as The Island, to which a sister, Winnie Luster Atchison obtained a state deed. Summarizing the title at the time this suit was filed against appellants, Sidney and Harry claimed under the deed from their father; additionally Sidney claimed to have acquired Robert’s one-third except The Island; and Winnie claimed The Island. The parties named have been in possession for about forty years.

The event that precipitated this suit was the death of Robert in 1967, intestate and without widow or children. Ida Luster Arnold and the heirs of Champ,Luster took the position that the death of Robert worked an investiture of his interest into the estate of James A. Luster, - the father, in fee simple, which meant that, the title to that interest descended by heirship as follows: Ida Arnold, one-fifth of the one-third interest; thé seven children of Champ Luster, deceased, each a one thirty-fifth interest in the one-third; and in Harry, Sidney, and Winnie, each a one-fifth interest in the one-third. Ida, along with Champ’s children, as plaintiffs (appel-lees) claimed there was no way to equitably divide the respective interests in the lands and asked that a sale be decreed. Additionally they prayed for an accounting of the. rents and profits from Robert’s interest since his death in 1967. The issues of survivorship, sale, and accounting were all disputed and the court found:

That the effect of the father’s deed was to create a “divestible reversion” to the lands in the father; that upon the father’s death intestate the divesdble reversion descended to his children as tenants in common; that upon the death of Robert intestate and without bodily heirs or widow, his interest in the divestible reversion descended to his brothers, sisters, and the children of Champ Luster, the deceased brother, in fee simple; that the tax forfeitures relied on by Sidney and Winnie, and purportedly covering Robert’s interest, were void for jurisdictional defects and therefore conveyed no title; that Winnie’s claim to a part of Robert’s interest (The Island) by adverse possession could not prevail because the statute of limitations could not begin to run until Robert’s death in 1967; that plaintiffs-appellees could not recover rents for failure of proof; and finally, that the lands could not be partitioned or sold until the death of both Sidney and Harry Luster.

Sidney, Harry, and Winnie appeal with respect to all findings as regard the title. Appellees challenge the court’s refusal to order a sale and the court’s denial of accounting. The points of the parties will be set out as they appear in the briefs.

Appellants’ Point I. The James A. Luster deed created a life estate in each of the grantees and a contingent remainder in the whole to the bodily heirs of any of the grantees. We do not agree. The terms of the grants are without ambiguity and in that situation the law favors a determination of the grantor’s intent from the wording of the conveyance. Our law is well settled that a reversionary interest to the lands remained in James A. Luster. When Robert died without issue that one-third interest reverted to James A. Luster or his estate. Davis v. Davis, 219 Ark. 623, 243 S. W. 2d 739 (1951); Dempsey v. Davis, 98 Ark. 570, 136 S. W. 975 (1911).

Appellants’ Point II. Sidney Luster acquired the fee simple title to the one-third interest granted to Robert Luster, except that interest acquired by Winnie Luster Atchison, a sister. The lands were listed on the assessment records as "Luster, Sid, Bob, and Harry.” They were likewise listed on the tax books, made from the assessment records. The record book for delinquent lands shows that the ownership was there treated as a unit (advertised and sold as a unit) rather than fractional separate assessments. It is apparent that Sidney thereafter persuaded the custodian of the assessment records to change the original assessment by striking his name from the list of brothers and entering a separate assessment for Sidney’s undivided one-third. We mention the status of the records because we cannot agree with appellants that the lands “were assessed to each of the three Luster brothers separately.”

A stranger to the title, R. E. Brock, obtained a deed to a one-third interest (allegedly Robert’s equity) from the State in 1932. In 1940 Brock deeded part of his interest so obtained to Sidney Luster. The remainder of Brock’s interest forfeited some years later for taxes and Sidney purchased those lands from the State. The transactions we have recited covered all of Robert’s interest except a tract known as The Island, which will be discussed in the next point for reversal.

Sidney acquired no title by virtue of the tax sales, assuming that all the taxing and sales proceedings were valid. That is because Sidney and Robert were tenants in common. In Spikes v. Beloate, 206 Ark. 344, 175 S. W. 2d 579 (1943), we said:

It is well settled that a tenant in common cannot add to or strengthen his title by purchasing title to the entire property at a tax sale, nor by purchasing it from a stranger who has purchased at such sale; that such purchase amounts to no more than a redemption, which inures to the benefit of the other tenants as well as himself, and confers no right upon such tenant so purchasing except to demand contribution from his co-tenants.

Sidney also relies on Ark. Stat. Ann. § 84-925 (Repl. 1960). He contends that statute extinguishes Robert’s interest. The cited statute provides that when a life tenant fails to redeem from a tax forfeiture, the person next entitled to the lands in remainder or reversion may redeem and extinguish the life tenant’s title. The statute is not applicable because Sidney and Robert were tenants in common.

Finally with respect to Point II, the validity of the tax forfeitures was before the chancellor and they were found to have been invalid. There was an abundance of evidence to support that conclusion. Several of the defects were jurisdictional. There was evidence of an excessive extension of taxes, both for county and school purposes, and several tracts forfeited under “part” descriptions.

Appellants’ Point III. Winnie Luster Atchison acquired the fee simple title to the one-third interest in The Island granted to Robert Luster for life. In the 1929 tax forfeiture of Robert’s interest was a tract of land known as The Island. Winnie obtained a deed from the State in 1935. She also claims to have since been in continuous possession of one-third of The Island, collected the rents therefrom, and “farmed the one-third that had been set aside for Robert.” The chancellor found the tax deed to be void and also held against Winnie on her assertion of title by adverse possession. With the chancellor’s findings we agree.

As noted in considering Point II, there was adequate evidence to support the chancellor’s finding that the tax deed was void. Winnie, therefore, took no interest through the void deed.

Neither may Winnie recover by adverse possession. The rule is that the cause of action to recover possession of property accrues to reversioners and remaindermen upon the death of the life tenant. Banks v. Green, 35 Ark. 84 (1879); Ogden v. Ogden, 60 Ark. 70, 28 S. W. 796 (1894); Watson v. Hardin, 97 Ark. 33, 132 S. W. 1002 (1910). The reason for the rule was announced in Hayden v. Hill, 128 Ark. 342, 194 S. W. 19 (1917):

[T]he remainderman or reversioner has a right to attribute the holding to some character of contract with the life tenant. Until the death of the life tenant, no duty in law is imposed on a remainderman to inquire from the party in possession whether he is a disseisor. During the life tenancy he has a right to treat the occupant of the land as a licensee. . .

Applying the rule in Hayden, any adverse possession by Winnie did not run against the reversioners until Robert’s death since they had a right to treat her as a licensee occupying the land through the permission of Robert. Seven years have not passed since Robert’s death in 1967, therefore Winnie may not recover by adverse possession.

Appellees’ Point I on Cross-Appeal. Upon the death of Robert, the interest of appellees in the property subject to Robert’s life estate vested, thereby giving ap-pellees a present undivided fee simple interest in the lands. Partition being impractical a sale should have been ordered. What we have said under appellants’ Point I answers the first part of the contention in the affirmative. Then we reach the question of whether the owners of the undivided interests in fee are entitled to partition as against the owners of undivided interests for life which are followed by contingent remainder interests. We agree that they are entitled to partition or sale. McGee v. Hatcher, 217 Ark. 402, 230 S. W. 2d 41 (1950). There we faced a somewhat similar problem and we approved, as an entitlement, partition in kind which bound the holders of the fee, the life estate and the future interests. In the case at bar. it is readily apparent that partition in kind would be prejudicial to some of the owners and that fact necessitates a sale. Since appel-lees and cross-appellants are entitled to partition which cannot be carried out equitably they have a right to have the lands sold. Ward v. Pipkin, 181 Ark. 736, 27 S. W. 2d 523 (1930).

Appellees’ Point II on Cross-appeal. Sufficient proof was presented for determination of appellees’ aliquot share of rents and the chancellor erred in refusing judgment therefor. The undisputed proof showed that after Robert’s death in 1967 and until the time of trial in 1969, Sidney received a minimum of $2046 in rentals; Winnie received $1,101.29; and Harry collected a minimum of $500. Those were all the rents that were definitely established as having been received by the named parties. Appellees are entitled to an accounting for the enumerated rents and to receive their proportionate shares.

Affirmed on appeal; reversed and remanded on cross-appeal.


text:
    Lindall H. NORSWORTHY v. GEORGIA-PACIFIC CORPORATION
    5-5350
    458 S. W. 2d 401
    Opinion delivered October 12, 1970

      Spencer ir Spencer, for appellant.

      Paul Sullins, for appellee.
   Lyle Brown, Justice.

In this workmen’s compensation award for additional compensation the commission took the position that ten percent of the recovery was the maximum attorney’s fee allowable. Claimant Norsworthy appeals, contending that each additional recovery constitutes a new claim and therefore it is possible that he could recover up to thirty percent for attorney’s fee. Ark. Stat. Ann. § 81-1332 (Repl. 1960). Georgia-Pacific Corporation cross-appeals, contending that the additional award was excessive.

Appellant-claimant was injured May 29, 1963. Georgia-Pacific paid compensation until August 1, 1963, when appellant’s doctors released him for light work and estimated permanent partial disability at ?%% to the body as a whole. Appellant disagreed with the percentage of disability and hired counsel, whereupon appellant petitioned for substantial temporary total disability and medical treatment. That petition resulted in an order of the commission dated April 23, 1965, which was agreeable to the parties. It recited that claimant had sustained an injury which resulted in 20% permanent partial disability to the body as a whole; that the disability entitled claimant to ninety weeks compensation, producing $3150; and that claimant’s attorney was entitled to the maximum fees over and above the TA% which was not controverted. As a result the attorney received 30% of $1000, 20% of the next $1000, and 10% of the remainder.

In 1968 we handed down Georgia-Pacific v. Norsworthy, 244 Ark. 399, 425 S. W. 2d 320. There it was held that the order of the commission, from which we have just recited, was not based on a final settlement between the parties. That decision permitted Norswor-thy to pursue a claim for additional disability and more surgery.

After the decision in Norsworthy there was performed a second spinal fusion in the low back. That expense was paid by Georgia-Pacific, along with temporary total disability resulting from the surgery. As to Norsworthy’s claim for disability exceeding the fixed 20% the commission, in January 1970, found claimant’s permanent partial disability to have increased to 60% to the body as a whole. The commission fixed the attorney’s fee at 10% of the amount of the additional award. The fee was described as being the “maximum allowed by the Act.” The circuit court affirmed. This appeal and cross-appeal followed.

The Attorney’s Fee. The portions of § 81-1352 fixing the maximum amount of attorney fees are as follows:

Fees for legal services rendered in respect of a claim shall not be valid unless approved by the Commission, and such fees shall not exceed thirty per centum (30%) on the first one thousand dollars ($1000) of compensation, or part thereof, twenty percentum (20%) on all sums in excess of one thousand dollars ($1000), but less than two thousand dollars ($2000) of compensation, and ten percentum (10%) on all sums of two thousand dollars ($2000) or more of compensation. ... In any case where attorneys’ fees are allowed by the Commission, the limitations expressed in the first sentence herein shall apply.

Claims for additional disability are treated in § 81-1318(b) (Supp. 1969). It fixes the time limits for such an application; it makes no reference to attorney fees.

Appellant contends that the statute from which we have quoted is authority for treating a claim for additional compensation as a new claim and without consideration to the fact that an attorney’s fee has previously been paid on the basis of the original claim. He stresses the use in the statute of the phrase, “services rendered in respect of a claim.” Likewise, § 81-1318(b) refers to “a claim for additional compensation.” When we consider all the provisions of § 81-1332 we conclude that appellant has adopted a strained construction of the section.

In the first place it would have been an easy matter for the General Assembly to have provided that an additional claim would be considered an independent action insofar as attorney fees were concerned. More importantly, the fixing of the attorney’s fee is not necessarily tied to a claim,; rather, it is tied to compensation. The maximum fees are fixed not to exceed certain percentages of compensation received. Then in the last quoted sentence from § 81-1332 it is provided that “in any case” wherein attorneys’ fees are allowed, the fixed limitation shall govern. So it appears to us that a claim for additional compensation is to be treated as a continuation of the original demand for compensation and that in fixing the attorney’s fee thereon the action of the commission in the parent case is to be appropriately considered. Finally, we consider it of some significance that § 81-1332 is in the nature of a restrictive statute. No fee for legal services is valid unless approved by the commission; the maximum fee shall not exceed certain percentages of compensation awarded; and the commission shall observe the fixed limitations in any case.

The finding of the commission that claimant has suffered a 60% permanent partial disability as a whole is supported by substantial evidence. Of course we view the facts in the light most favorable to the commission’s findings.

Claimant has had two operations on his back. The objectives of both those operations were to effect a spinal fusion. Both doctors now recommend a third operation, an interior interbody fusion on the low back. One doctor fixed claimant’s functional loss as 40% while the other physician rated the loss at 40% to 50%. Norsworthy testified that he has worked in the parts department of a motor company since his injury; that he cannot do all the work by himself, such as lifting heavy parts; that his employer is a close personal friend and is helpful to Norsworthy in avoiding lifting; that he has pain in his back most of the time, which is aggravated by coughing and sneezing; that he cannot stand in one place for more than a few minutes and cannot sit for any length of time; that some days he cannot work at all. He is 29 years of age, a high school graduate, and has had no vocational training. He asserted that he loses considerable time from his present job and that he would not be able to maintain his employment except for the special consideration shown by his employer.

The only contention made by appellee on cross-appeal is that the evidence does not support an award in excess of 40% permanent partial disability, and that it is shown that claimant was leading a “pretty normal life.” To support that theory Georgia-Pacific emphasizes that claimant engaged .in hunting. The doctors prescribed walking as therapy and we cannot agree that claimant should be penalized because he engaged in a sport involving considerable walking. It is also true, as pointed out by Georgia-Pacific, that appellant’s earnings are presently equal to his former wages. That fact does not of itself defeat the claim for benefits; his capacity to continue to draw equal wages is an additional and significant factor. Abbott v. Leavell, 244 Ark. 544, 426 S. W. 2d 166 (1968).

Affirmed on appeal and cross-appeal.


author: John A. Fogleman, Justice.

text:
    E. K. RAGGE et al v. Lem C. BRYAN, Receiver
    5-5319
    458 S. W. 2d 403
    Opinion delivered October 12, 1970

      Harold C. Rains, Jr., for appellants.

      Darrell Johnson, for appellee.
   John A. Fogleman, Justice.

This case originated as an action to foreclose a real estate mortgage and a security agreement. In decreeing foreclosure, the chancery court held that appellants had not succeeded in showing that the note evidencing the debt secured was void for usury. We find that the preponderance of the evidence supports the chancellor’s decree. We also find the court’s holding that appellee had a right to foreclosure of the security agreement covering certain household furniture arid equipment to be proper.

Appellants argue that the security agreement had never been assigned by Arkansas Loan and Thrift Co., the secured party named therein, to appellee, or to the corporation for which he was receiver. The note signed by appellants was payable to the Loan and Thrift Co. It contained a recital that it was secured by a mortgage on a lot in Van Burén and "Security agreement and UCC on furniture as listed.” The security agreement was signed by appellants. It bore the same date as that of the note — April 19, 1967. It recited the granting of a security agreement to secure the debt evidenced by appellants’ promissory note for $14,886.66. The security agreement was in appellee’s possession. It is undisputed that the real estate mortgage securing the debt and all notes and indebtedness described in and secured by it were assigned to Savings Guaranty Corporation by written assignment on April 20, 1967. This note was specifically described in the real estate mortgage. We have held that assignment of a note or debt automatically effects an assignment of an instrument or conveyance given as security therefor and confers upon the assignee all rights of the assignor. Price v. Williams, 179 Ark. 12, 13 S. W. 2d 822; Robertson v. Robertson, 231 Ark. 573, 331 S. W. 2d 102. The failure of either party to comply with Ark. Stat. Ann. § 85-9-405 (Add. 1961) did not affect the rights of appellee as against appellants. See Lehman v. First National Bk. in St. Louis, 189 Ark. 604, 74 S. W. 2d 773; Rockford Trust Co. v. Purtell, 183 Ark. 918, 39 S. W. 2d 733.

Appellants assert that the note and security instruments were void for usury for the following reasons:

1. a charge for credit life insurance included in the principal debt was an improper and erroneous charge;
2. a charge of $35 for appraisal of the property was improper;
3. various small charges listed as a part of the debt in a closing statement were not properiy chargeable to appellants;
4. the note and mortgage were usurious upon their face.

We shall dispose of these assertions in reverse order of their listing.

The note bore interest at the rate of 10% per annum. It recited that it was payable in 144 equal monthly installments of $177.93. It was so described in the mortgage. Appellants produced a witness who was a systems analyst for a concern in data processing. His company furnished the amortization schedule to Arkansas Loan and Thrift Co. which constituted the basis for the statement of the amount of the installment payments shown in the note. He offered another schedule which showed this amount to be $177.91, or two cents per month less than shown on the previous schedule. He stated that both schedules were correct for a 10% interest rate, but that the later schedule was produced by a newer and larger computer than the one which was used for the first schedule. The more modern computer carried the decimals farther in rounding off to exact cents and was mere accurate to that extent. A certified public accountant testified that in making computer calculations a monthly interest factor of .008333% is used for a true rate of .008333 1/3%. The trial court was justified in finding that the transaction was not usurious upon the face of the instruments on the basis of this testimony.

In connection with the point just discussed, appellants also argue that since they were furnished a payment book calling for monthly payments of $202.10 and they made seven payments in that amount, the transaction was usurious. We do not agree with this argument. The loan closing statement bearing the signatures of appellants in the files of Savings Guaranty Corporation showed the monthly payment on principal and interest to be $177.93. It also showed a monthly item of $24.17 for a credit life insurance escrow account. This was the amount which would have been required to accumulate $290, the amount of the annual premium on credit life insurance on E. K. Ragge, by the time the next premium payment became due. This requirement did not render the transaction usurious.

In determining whether a charge is usurious, all attendant circumstances must be taken into consideration. Sammons-Pennington Company v. Norton, 241 Ark. 341, 408 S. W. 2d 487. In order for such a charge to constitute usury, there must have been an intention upon the part of the lender to take or receive more than the maximum legal rate of interest. Peoples Loan & Investment Company v. Booth, 245 Ark. 146, 431 S. W. 2d 472. We have recognized that a properly maintained escrow account is not to be considered in testing a note and the interest thereon for usury. Harris v. Guaranty Financial Corp., 244 Ark. 218, 424 S. W. 2d 355. The circumstances above set out indicate that the escrow account was properly maintained in anticipation of an obligation which would probably accrue. In the absence of any evidence that the lender would profit from the account or intended to apply the funds improperly to its own profit, we cannot say that there was any evidence of an intent to make a usurious charge by requiring this payment. Actually, when the first payment was made 54 days after it was due, $20 of this amount was applied toward the interest accruing in the interim rather than to the escrow account. This was actually $34.17 less than the additional interest accrued, according to Kenton W. McCarthy, the CPA who reviewed the account for appellee. McCarthy also testified that, during the period that appellants were making payments, appellee was entitled to a total of $2,867.66 interest but actually only credited $1,642.93 of the payments to interest. According to McCarthy only $149.19 went into this escrow account, and this amount was ultimately credited to the principal and interest due on the loan. In any event, we do not find that the evidence preponderates against the holding of the chancellor on this point.

The small charges of which appellants complain consist largely of an item of $7.50 on the current loan, shown as filing fees on the closing statement. This was explained by checks in the loan files in appellee’s possession as having consisted of $5.75 for recording the financing statement, the real estate mortgage and a release of a prior lien. Another $1.50 was paid to Data Tronics, Inc. for an amortization schedule for appellants. This leaves an item of 25 cents unaccounted for. In view of the fact that, in advance of payment, recording fees must often be estimated, we are unwilling to say that appellee failed to properly account for this item as a part of the principal indebtedness.

Appellants also argue that the transaction was usurious because of charges of $12.50 for legal preparation and credit reports shown on a loan worksheet relating to an earlier loan to appellants by Arkansas Loan and Thrift Co., the balance of which was retired from the present loan. They contend that $3.75 of this amount was paid for recording and somehow arrive at an amount of $6.50, which they claim to be unaccounted for. We have carefully examined the abstract of the record and have been unable to find any suggestion in the record that appellants were contending that the first loan by Arkansas Loan and Thrift Co. was usurious. An issue cannot, even in trial de novo of an equity case, be first raised by appellant on appeal. Wortsmith v. Matthews Company, 247 Ark. 732, 447 S. W. 2d 342; Anthony v. First National Bank of Magnolia, 244 Ark. 1015, 431 S. W. 2d 267; Angelletti v. Angelletti, 209 Ark. 991, 193 S. W. 2d 330.

Even though E. K. Ragge testified that a $35 charge for an appraisal was not authorized by him and that no appraisal of the property was made, to his knowledge, it seems to be conceded that this charge was made in connection with the first loan. A report of the appraiser appears with the papers evidencing that loan. This matter does not seem to have been an issue in the trial court either. An objection to this testimony was made by appellee, but it seems that the chancellor never ruled upon it. Appellee testified that the file indicated that the previous loan was paid off on the basis of a rebate sheet. This sheet showed a reduction of the loan balance first indicated by more than $500. We do not know other terms of this loan or whether it may have been purged of any usury, as we might, had its validity ever been an issue. To say the least, appellants never made- any showing that called upon appellee to explain any item of the first loan.

This brings us to the charge that the credit life insurance premium was not part of the principal debt, but was properly an item of interest so that the transaction was usurious. The closing statement previously referred to included an item of $290 for credit life insurance. According to a copy of a certificate of insurance introduced by appellants, this was the annual premium.

Appellants first contend that the insurance was not in force because the policy was not valid unless countersigned by a duly authorized agent of National Life and Casualty Insurance Company, which issued the certificate. On the certificate introduced as an exhibit through E. K. Ragge, in the space provided for this signature, there were typed the letters “EAB, Jr.” There was testimony that E. A. Bartlett, Jr., was an agent for the company. He was free to use any character, symbol, figure or designation he thought proper to adopt as a signature and be bound thereby, provided it was used as a substitute for his name. Walker v. Emrich, 212 Ark. 598, 206 S. W. 2d 769. A signature may be by initials only Brown v. "Grzeskowiak, 230 Ind. 110, 101 N. E. 2d 639 (1951); Greenland v. Carter, 219 Iowa 369, 258 N. W. 678 (1935); Gendzier v. Bielecki, 97 So. 2d 604 (Fla., 1957); In re Mack’s Will, 250 N. Y. S. 2d 177, 21 App. Div. 2d 505 (1964); Annot. 159 A. L. R. 253 (1945). Printing, typing or stamping a name in the pláce where a signature should appear is sufficient, if it is intended as a signature. Leach v. Bald Knob State Bank, 163 Ark. 91, 259 S. W. 3. Lee v. Vaughan’s Seed Store, 101 Ark. 68, 141 S. W. 496, 37 L. R. A. (n.s.) 352 (and annot.), Annot. 171 A. L. R. 334 (1947). Appellants themselves alleged that the premium was paid to the insurance company. This allegation was supported by a canceled check in the loan files in the hands of the receiver. Under all the circumstances the insurance company could not well have accepted and retained this premium and then contested the validity of the policy for lack of countersignature. See Reliance Life Insurance Co. of Pittsburgh v. Pearson, 178 Ark. 611, 12 S. W. 2d 21; Insurance Company v. Brodie, 52 Ark. 11, 11 S. W. 1016, 4 L. R. A. 458; 17 Appleman, Insurance Law and Practice 73, § 9442; 1 Couch on Insurance 2d 367, § 8:17; 44 C. J. S. 1089, Insurance, § 273; 43 Am. Jur. 2d 287, Insurance § 226.

Appellants next contend that Arkansas Loan and Thrift Co. was, in effect, insuring its own loan. This argument is based upon evidence that Car tie tt was chief executive officer of the loan company, as well as an agent who signed policies for the insurance company. This testimony was elicited from appellee through appellants’ examination of him. Appellee stated that the loan company and the insurance company were separate, although it appeared that the loan company had, at one time, acquired the insurance company, sold it and then reacquired it. We find no evidence to support appellants’ argument, however, that Bartlett was the moving force in the insurance company and Savings Guaranty Co., as well as in Arkansas Loan and Thrift Co., or the recipient of profits from the insurance company.

Insurance premiums paid to a third party are proper charges when the borrower agrees to pay them or receives the policy and the benefits thereof and is not charged an excessive premium. Winston v. Personal Finance Company of Pine Bluff, 220 Ark. 580, 249 S. W. 2d 315. Credit life insurance premiums fall into the same category as other insurance premiums. Lowrey v. General Contract Corp., 228 Ark. 685, 309 S. W. 2d 736. Application of a part of the principal to the payment of insurance premiums with the acquiescence of the borrower does not render a transaction usurious. Hartzo v. Wilson, 205 Ark. 965, 171 S. W. 2d 956.

While appellants argue that they had no knowledge of this insurance and did not agree to this charge, we cannot say that the chancellor’s adverse holding was against the preponderance of the evidence. The papers in appellee’s files show that disbursements for credit life insurance premiums were made by Arkansas Loan and Thrift Co. to the same insurance company while the first loan was outstanding. The closing statement on the loan whiph is the subject of this litigation clearly provides for this premium as a part of the principal and for payments into the escrow account earlier mentioned. This closing statement bears signatures purporting to be those of appellants. The only one of the appellants who testified admitted that the signature looked like his. He could not be sure about his wife’s signature. He admitted that it was possible that he signed the closing statement without noticing the credit life item. He doubted that he would have signed it in blank. The signatures on this document bear a striking resemblance to those of appellants on the note and security instruments. The copy of the certificate came into the hands of appellant E. K. Ragge in some manner since it was introduced into evidence through him. E. K. Ragge is a real estate broker and an insurance broker. He was surely not unacquainted with closing procedures on real estate loans and would not be expected to be so careless as to sign a closing statement in blank or to fail to account for the application of the proceeds of his loan. It would be normal to anticipate that he would be especially alert for insurance items. It seems obvious that these circumstances caused the chancelllor to reach the result he did.

While appellants argue that E. K. Ragge carried life insurance in the amount of $120,000, there is no indication of the identity of the beneficiary, or the owner of the policy or the availability of the proceeds of this insurance to this debt in case of Ragge’s death while the loan was outstanding. There is not even an indication that the existence of this insurance was called to the attention of the lender. The only appraisal of the property in the record assigns a value less than the amount of the debt to the real estate. We cannot say that there was no need for this insurance, as appellants argue.

The decree is affirmed.

       Although appellants denied that they ever received this schedule, a copy was introduced as Exhibit 1 to the testimony of E. K. Ragge on his direct examination as a witness-for appellants.


author: J. Fred Jones, Justice.

text:
    WABASH LIFE INSURANCE CO. v. Elza PARCHMAN
    5-5308
    458 S. W. 2d 390
    Opinion delivered October 12, 1970

      Pollard, Bethune & Cavaneau, for appellant.

      Henry, Boyett ir Morgan, for appellee.
   J. Fred Jones, Justice.

This is an appeal by Wabash Life Insurance Company from a judgment of the Prairie County Circuit Court in favor of Elza Parchman on a health and accident insurance policy issued by Wabash to Parchman.

Under the policy issued to Mr. Parchman, Wabash agreed to pay him the sum of $300 per month during total disability occurring while the policy was in force. Total diability is defined in the policy as follows:

“The term ‘TOTAL DISABILITY’ whenever used in this policy shall mean the complete inability of the Insured to engage in any gainful occupation for which he is qualified by education, training or experience.”

Mr. Parchman is a self-employed farmer who, in partnership with his brother-in-law, farms over 400 acres in soybeans. On March 3, 1968, he injured his left thumb while stacking wood on his farm. He was seen by Dr. Robert Bethell who, on March 18, 1968, filled out a medical report in questionnaire form as follows:

“1. Date of accident: 3-3-68
Please describe injury received: Struck (L) Thumb. General swelling of tenderness over carno mila carxl point Xray reveal no fracture.
2. What operation was performed if any? None. Charge for surgery? None.
If laceration, number of sutures needed? None.
3. Please give dates you attended patient for this injury. Office: 3-4-11-18-1968.
4. How long was, or will, patient be TOTALLY disabled:
From 3-4-1968 to 3-18-68.
5. When was, or will, patient be able to resume any part of his work? 3-19-1968.
6. Has patient any chronic or constitutional disease, physical defect or deformity? No.”

Mr. Parchman filed claim for two weeks’ total disability benefits under the policy and apparently, upon the request of Wabash for more detailed medical information, Dr. Bethell wrote to Wabash as follows:

“Mr. Elzie Parchman was seen in my office on 3-3-68 with pain in his left thumb and hand. Examination revealed moderate soft tissue swelling of thumb and weakness of the left thumb on flexion and extension movements. There was point tenderness over the carpo-metacarpol joint of the thumb.
Ex-rays of the thumb and hand were essentially normal, however it was my impression that this represented an early rheumatoid arthritis or a tendonitis..
Mr. Parchman was instructed to use hot soaks q.i.d He was placed in anti-inflammatory medication and his hand was practically [sic] splinted with an elastic bandage.
He returned on 3-11-68 for follow up. Most of the swelling had subsided. He was maintained on the same medication and rechecked on 3-18-68 at which time he was essentially asymptomatic. He was discharged at that time to return to light work. He was given 2 weeks total disability from 3-3-68 to 3-18-68.”

Upon receipt of this report Wabash denied the claim for total disability by letter to Mr. Parchman dated May 9, 1968, as follows:

“Mr. Edmiston of our Memphis office has just forwarded to us the statement received from Dr. Robert Bethell in reference to the recent thumb injury you suffered.
We do want to let you know that we are not doubting the doctor’s diagnosis and treatment, nor the fact that you did suffer the injury. However, we cannot agree that this injury would result in total disability.
To clarify this point, total disability as defined by your policy means the complete ability [sic] to engage in any gainful occupation. We do believe that the temporary loss of the use of one hand would prevent you from performing some of the regular occupational duties in which you had previously been engaged.
It was on this basis that we allowed the non-disabling injury in the amount of your doctor’s bills as indicated by you on a previous report.”

When his claim for two weeks’ total disability was denied by Wabash, Mr. Parchman stopped payment on a check he had mailed to Wabash in payment of a quarterly premium which fell due on his policy during the two weeks disability period. Sometime after payment on the check was stopped by Mr. Parchman, he fell from a tractor and sustained a broken leg. He made claim for 60 days’ total disability benefits because of this second injury, and this additional claim was denied by Wabash on the ground that the policy had lapsed for nonpayment of premium.

In October 1968, Mr. Parchman filed his suit on the policy alleging total disability from March 3 to March 18, 1968, because of the injury to his thumb, and total disability for a period of 60 days because of his leg injury. He alleged that when he sustained his second injury and disability, Wabash owed him for the two weeks’ total disability, which amount was more than sufficient to pay the delinquent premium he owed Wabash; and he prayed judgment for the full amount of benefits for both periods of total disability, less the amount he owed Wabash on his past due quarterly premium.

In its answer Wabash denied that Mr. Parchman was totally disabled within the terms of the policy because of his thumb injury and denied liability for the 60 day period of disability because the policy had lapsed for nonpayment of premium.

The case was tried before the trial judge sitting as a jury. The trial court found that Mr. Parchman was totally disabled for 14 days because of his thumb injury; that Wabash should have paid the insurance premium out of the amount it owed Mr. Parchman and judgment was rendered for Mr. Parchman in the amount of $619.75, together with $250 attorney’s fee, 12% penalty and costs. On appeal to this court Wabash relies on the following points for reversal:

“The decision of the trial court that the insured is entitled to total disability benefits for the 14-day period following his injury of March 3, 1968, is not supported by substantial evidence.
In the alternative, even if it be said that such decision is supported by substantial evidence, it should be reversed as being against the preponderance of the evidence.
The trial court erred in its finding that the disability policy was in effect on June 17, 1968, the commencement of appellee’s second alleged period of total disability.”

Since we are of the opinion that the judgment must be reversed under the appellant’s first point, we do not reach the second and third points.

The extent of Mr. Parchman’s disability during the two weeks period following his thumb injury was the all important question before the trial court, and the substantiality of the evidence that the disability was total is the all important question on this appeal. There is not one word of testimony, by deposition or otherwise, in the record before us as to the extent of Mr. Parchman’s disability. The trial court made findings of fact, in part, as follows:

“The only evidence before the court as to the - extent of plaintiff’s disability for the two weeks period is that contained in the stipulation. There is nothing in the stipulation to contradict Dr. Bethell’s diagnosis of total disability for 14 days. There is no suggestion that the plaintiff did any work or carried on any activities in connection with his business during this 14 day period.”

We have closely examined the five pages of stipulation appearing in the record in this case and we are forced to the conclusion that there must have been more to the stipulation as presented to the trial court than appears in the record before us on appeal. This is not a workman’s compensation case where disability is defined by statute and more or less made binding on the employer and compensation insurance carrier by orders of the attending physician to the injured employee and accepted in evidence by the parties in the form of a written report. The stipulation between counsel simply set out the facts in detail, and excerpts from the stipulation, in so far as it has to do with the extent of disability during the two weeks following Mr. Parch-man’s thumb injury, are as follows:

“The parties hereto stipulate and agree that: On March 3, 1968, Mr. Parchman sustained an injury to his left thumb while stacking wood on his farm. He was seen and treated by Dr. Robert Bethell, Des Arc, Arkansas, on March 4, March 11 and March 18, 1968.
Dr. Bethell and Mr. Parchman completed and signed a claimant’s statement on March 18 and March 19, 1968, respectively, and forwarded the statements to the Wabash Life Insurance Company. Mr. Parchman’s Statement is attached as Exhibit No. 3 and Dr. Bethell’s Statement is attached as Exhibit No. 4.
# # #
By letter dated May 3, 1968, and in response to the inquiry initiated by Mr. Branscum, Dr. Robert Bethell forwarded to the Wabash Life Insurance Company his opinion of the injury to Mr. Parch-man’s left thumb. Dr. Bethell’s letter indicated Mr. Parchman was given a two weeks’ total disability from March 3, 1968, to March 18, 1968. A copy of Dr. Bethell’s letter is attached as Exhibit No. 8.”

There is nothing in this stipulation pertaining to the truth of any matter contained in the stipulated exhibits.

Exhibit No. 3 is the executed claim form Mr. Parchman filed with Wabash in which he states that he did no work but was totally disabled from 3-4-1968 to 3-18-1968, and exhibits No. 4 and No. 8 are Dr. Bethell’s report and letter above set out. The stipulation that Mr. Parchman stated he was totally disabled, and that Dr. Bethell indicated in a letter he wrote to Wabash that Mr. Parchman “was given two weeks total disability” falls far short of substantial competent evidence that Mr. Parchman suffered two weeks’ total disability.

The law is so well settled that Mr. Parchman bore the burden of proving his disability and the extent of it that citation of our past decisions on this point is not necessary. If Mr. Parchman was totally disabled following the injury to his thumb, it was the injury that gave him the disability and not Dr. Bethell. Dr. Bethell did not say in his report, or his letter, what Mr. Parch-man’s occupation is, and there is nothing in the record that would indicate that he even knew. There is nothing in the record to indicate that Dr. Bethell ever saw the insurance policy under which total disability was claimed, or that he ever knew, or was told, what the policy contract contained as to “total disability.”

The insurance contract says that total disability means “the complete inability of the insured to engage in any gainful occupation for which he is qualified by education, training or experience.” This court has many times had occasion to interpret total disability definition clauses in insurance policies. In Travelers Ins. Co. v. Thompson, 193 Ark. 332, 99 S. W. 2d 254, we said:

“Total disability is generally regarded as a relative matter, which depends largely on the occupation and employment in which the party insured is engaged. Provisions in insurance policies for indemnity in case the insured is totally disabled from prosecuting his business, do not require that he should be absolutely helpless, but such disability is meant which renders him unable to perform all the substantial and material acts of his business, or the execution of them in the usual and customary way.”

In Aetna Life Ins. Co. v. On, 205 Ark. 566, 169 S. W. 2d 651, is found the following language:

“In passing on the question of total disability, consideration must be given not only to the specific wording of the policy, but also to the business or profession of the insured when the policy was issued and when the claim arose.”

In Equitable Life Assur. Soc. v. Bagley, 188 Ark. 1009, 69 S. W. 2d 394, the policy definition of total disability was as follows:

“Disability is total when it prevents the insured from engaging in any occupation for remuneration or profit.”

In that case this court said:

“This identical clause, as well as clauses of similar import contained in accident indemnity policies, has been construed by this court as meaning such a disability as renders the insured unable to perform the substantial and material acts of his business in the usual and customary way, and not such disability as renders him absolutely helpless. Travelers’ Protective Association of America v. Stevens, 185 Ark. 660, 49 S. W. (2d) 364, and cases therein cited on the point.”

See the numerous cases liáted under key No. 524, vol. 10 A, West’s Ark. Digest, under “Insurance” at p. 369, et seq.

Mr. Parchman failed to prove the extent of his disability. There is nothing in the record from Mr. Parch-man, or anyone else, as to what Mr. Parchman could, or could not, do. Mr. Parchman did not testify in his own behalf and Dr. Bethell did not say in either of his reports what Mr. Parchman could, or could not, do. He simply described the condition found and treatment rendered, in and to Mr. Parchman’s left thumb, and stated: “He was given two weeks total disability from 3-3-68 to 3-18-68.” In the same letter-report in which Dr. Bethell stated that Mr. Parchman was given two weeks’ total disability from 3-3-68 to 3-18-68, Dr. Bethell stated that on 3-11-68 most of the swelling had subsided and that on 3-18-68 Mr. Parchman was essentially asymptomatic. We are unable to recognize Dr. Bethell’s two reports as substantial evidence of total disability within the meaning of the insurance contract, and aside from these reports of Dr. Bethell, there is no proof in the record that Mr. Parchman was disabled at all following the injury to his thumb on March 3, 1968.

The judgment is reversed and this cause dismissed.