text:
    Winthrop Rockefeller et al v. Joe Purcell et al
    5-4835
    434 S.W. 2d 72
    Opinion Delivered October 30, 1968

      Wright, Lindsey & Jennings (By Ronald A. May) for appellants.

      Joe Purcell, Atty. Gen.; Don Langston, Asst. Atty. Gen.; Henry Ginger, Asst. Atty. Gen. for appellees.

      Jerry J. Screeton and James M. Thweatt & Hubert E. Graves for appellee — Intervenor John D. Thweatt.

   PER CURIAM.

This is in the main an action for a declaratory judgment brought by three members of the State Board of Election Commissioners and sixteen citizens, all as representatives of the Republican Party. The defendants are the other members of the State Board of Election Commissioners and sixteen citizens who were named as the third member of the county board of election commissioners in sixteen counties, who are also joined as representatives of the Democratic Party. The complaint as amended asks for a declaratory judgment construing the statutes governing the selection of election judges and clerks. This appeal is from an order of the circuit court finding that the appellants are not entitled to declaratory relief and dismissing their complaint.

At the outset we hold that there is an actual and substantial controversy that should be decided and that falls within our declaratory judgment procedure. Moreover, in election cases we have repeatedly announced decisions in cases that had actually become moot, for the sound reason that controversies about the election laws present issues of public interest that ought to be set at rest. Pirtle v. Dalmasso, 240 Ark. 1063, 403 S.W. 2d 740 (1966), and cases there cited.

Under the statutes the county election commission is composed of a representative of the majority party, a representative of the minority party, and a third member chosen by the State Board of Election Commissioners. Initiated Act 3 of 1948, as amended. The majority party is defined as that party receiving the largest number of votes for the office of Governor in the last general election (ibid.) and is therefore now the Republican Party. Under the statutes it is the duty of the State Board to select as the third member of the county boards persons who will “represent” the majority party, or as we said in Ellis v. Rockefeller, 245 Ark. 53, who will “act on behalf of and . . . work with the majority party in the selection of the election judges and clerks.”

Under the statute the two majority members of the county election commissioners are to select two election judges and one clerk for each polling place, with the minority member selecting one judge and one clerk. Ark. Stat. Ann. § 3-608 (Repl. 1956). It was unquestionably the intention of the lawmakers that the minority party would always be entitled as a matter of right to one judge and one clerk at each polling place.

The petitioners assert that the statutes have been construed to mean, and will be so administered with reference to the coming general election, that the minority party (now the Democratic Party) is entitled to select one judge and one clerk for each precinct and that a majority of the commission may then select the other two judges and one clerk. Hence, if the third member of the commission should see fit to join with the minority party member rather than with the majority party member, the result would be that the minority party would select all the judges and clerks, leaving the majority party with no representation whatever at the polls. That result would leave the majority party in a worse position than it occupied when it was the minority party, for then it was entitled to select one judge and one clerk for each precinct as a matter of right.

We cannot approve that construction of the statute. In our view the legislature contemplated that the majority member of each county commission and the third member selected by the State Board to represent the majority party would ordinarily agree upon the selection of two judges and one clerk for each polling place. In that respect the third member has a duty of good faith. If the third member and the majority-party member (now the Republican member) are unable to agree upon anyone to serve as judges and clerks selected by the majority party, then it is thereby demonstrated that the third member is not qualified to “represent” the majority party as we used that term in Ellis v. Rockefeller, supra. The Republican member of the commission then becomes, in fact, the minority member of the commission and as such we hold that he is entitled to select one judge and one clerk for each precinct. This per curiam order so declares the law.

Reversed.

Harris, C.J., concurs.

Fogleman and Byrd, JJ., dissent. Justice Fogleman ’s written dissent to be filed later.

John A. Fogleman, Justice.

It is to be regretted that our system has been unable to devise a method to insure fair elections and eliminate the constant struggle for control of election processes. Until we devise that system, we must depend on the machinery which has been devised legislatively, through initiative and General Assembly action. The courts are not empowered to provide election machinery or eliminate what may seem to them to he defects in the machinery provided by the agency government most representative of the people, the ultimate sovereign, in whom the power is properly vested. I have supreme confidence in the judicial department of government in its own area and in its competency to deal with judicial questions. I have no confidence in its ability to deal with legislative problems as competently as the proper branch. Certainly, the courts cannot be expected to do a better job in that field than either the General Assembly or the people of the state.

I agree estentially with the dissenting opinion of Mr. Justice Byrd. I cannot help expressing my feeling that the court has acted legislatively. One reading the act in question, would be hard put to find the language stating that the county chairman of each party (the majority and minority, as defined in the act) was entitled to name one judge and one clerk of election in each precinct. The act was drawn to protect the minority party, not the majority.

There is no need to elaborate on the pleadings in this appeal. Actually, No. 5-4834, Rockefeller v. Purcell, 245 Ark. 522, 434 S.W. 2d 65, and this appeal were from two different judgments in the same case. The judgment from which this appeal is taken denied that part of appellants’ petition praying a declaratory judgment that, in event of disagreement between any third member of any county board of election commissioners and any chairman of the Republican Central Committée “in that county” in the naming of judges and clerks, the Chairman of the Republican Committee should be permitted to name two judges and one clerk in each precinct without “interference” from the third member or the Chairman of the Democratic Committee. It is alleged and admitted that the Attorney General of Arkansas has rendered an opinion that in the event of disagreement between the Republican chairman and the third member of a county board, then the disagreement would be resolved by appointment of these judges and this clerk by vote of a majority of the board. I do not see how the statute can be read otherwise. The portion of the Attorney General’s opinion overlooked by the majority in its per curiam opinion states that the act clearly requires that in such event, the majority of the county board must name a member of the majority party to fill the vacancy or vacancies. Under his construction, there would be two Republican judges and one Republican clerk in each precinct. It is difficult for me to see how the majority party is thereby discriminated against.

Actually, this is an appeal from the opinion of the Attorney General in the guise of an action for a declaratory judgment. There is not even a remote suggestion of a justiciable controversy.

The declaratory judgment procedure “does not license litigants to fish in judicial ponds for legal advice.” Lide v. Mears, 231 N.C. 111, 56 S.E. 2d 404 (1949). What I have had to say about the applicability and availability of declaratory judgment procedure in Rockefeller v. Purcell, No. 5-4834, 245 Ark. 522, 434 S.W. 2d 65, is also relevant here, for the most part. This is an even more obvious application for an advisory opinion than was involved in that case, however.

1 submit that there is no party petitioner who has a £ £ legally protectable interest. ’ ’ I further submit that there is no justiciable controversy in the sense of ripeness for judicial determination. How could the trial court have written a judgment granting specific relief of a conclusive nature to any of the appellants directing what the parties may or may not do?

This leads to another important defect in the proceedings which justified the action of the circuit judge in denying a declaratory judgment. The defect of parties appears on both sides of the jurisdictional fence. Not a single petitioner is a member of a county board of election commissioners, nor do any of them show a legal right to act as such. Equally as fatal to the action here is the fact that not a single election commissioner by virtue of his position as Chairman of the Democratic party of his county is a party to the action in any capacity. The rights and duties of these 75 officials are as much involved in this proceeding as those of the other two county members. Not only is there that defect, but the position of appellant petitioners for declaratory relief meets itself coming back when they seek this relief. They ask that the only members of any county election commission made parties to the proceedings be declared ineligible. If declared ineligible as a result of this court’s decision in No. 5-4834, then not only will there be no county board of election commissioners before the court, there might not be a single member of any county board.

The action of the trial court was justified because the defect of parties was jurisdictional and required dismissal of the petition.

The requirements of the declaratory judgment act are clear. The pertinent part reads:

“When the declaratory relief is sougnt, an persons shall be made parties who have or claim any interest which would be affected by the declaration, and no declaration shall prejudice the rights of persons not parties to the proceeding.” [Ark. Stat. Ann. § 34-2510 (Repl. 1962)].

While we have no decisions in this state particularly in point, authorities from other jurisdictions having adopted this act are either controlling or highly persuasive. They differ in effect only slightly. By the great weight of authority, the defect of parties is fatal to the action.

I have already demonstrated the basis of my belief that none of the appellants-petitioners had any “legally protectable interest” in my dissenting opinion in Rockefeller v. Purcell, No. 5-4834 (November 1, 1968). I also set out there authorities supporting my positions that (1) those not parties to the action are not bound and that their rights are not concluded and (2) that a petition for declaratory relief should not be granted unless the court could grant specific relief through a judgment of conclusive character directing, not suggesting what the parties may or may not do. There remains for treatment the defect of parties defendant (or respondent) .

Before declaratory relief is granted, all interested parties should be before the court. School Dist. No. 1 v. School Dist. of Lansing, 331 Mich. 523, 50 N.W. 2d 150 (1951). The statutory requirement that all persons having or claiming any interest which would be affected by the declaration be made parties controls over any general statutory provisions as to waiver of objections as to defect of parties when not raised by demurrer or answer. Redick v. Peony Park, 151 Neb. 442, 37 N.W. 2d 801 (1949). The plaintiff, or petitioner, has the duty of joining, as parties, all persons who have or claim any interest which would be affected by the declaration. Redick v. Peony Park, supra. A petition does not state a cause of action for declaratory relief when it fails to name as a respondent (or defendant) an interested and indispensable party. Cook v. Sikes, 210 Ga. 722, 82 S.3D. 2d 641 (1954).

Where persons whose rights are affected are not made parties to the proceedings, the court should decline to declare the rights of those who are parties. Jefferson County v. Jefferson County Fiscal Court, 259 Ky. 661, 83 SW. 2d 16 (1935).

The presence of all necessary parties is jurisdictional and cannot be waived. Redick v. Peony Park, supra. In order to be entitled to relief by declaratory judgment, the petitioner must prove a legal right capable of, and in need of, protection from claims, demands or objections emanating from a source competent legally to put the legal interest or right in jeopardy. State v. Haveland, 223 Minn. 89, 25 N.W. 2d 474 (1946). The opposition in the case must come from a source competent legally to jeopardize the petitioner’s right. Miller v. Stolinski, 149 Neb. 679, 32 N.W. 2d 199 (1948).

The indispensable and necessary parties in any declaratory judgment action are not only those whose rights would be affected thereby, but also those whose legal interests in the controversy are conflicting with those of the petitioner. People v. Baker, 133 Colo. 398, 297 P. 2d 273 (1956). A petition that fails to name as a party defendant (or respondent) anyone whose rights or duties are affected by statutes to be construed in the action should be dismissed for defect of parties. Axton v. Goodman, 205 Ky. 382, 265 S.W. 806 (1924) (Ky. C.A. 1924); Worden v. City of Louisville, 279 Ky. 712, 131 S.W. 2d 923 (1939). It should be dismissed if it fails to join all parties whose interests and rights are affected. Coleman v. Henry, 184 Tenn. 550, 201 S.W. 2d 686. If jurisdiction is not obtained over indispensable and necessary parties, the action' should be dismissed. People v. Baker, 133 Colo. 398, 297 P. 2d 273 (1956).

Illustrative of the cases cited above are Axton v. Goodman, supra, and Coleman v. Henry, 184 Tenn. 550, 201 S.W. 2d 686.

In the Axton case, candidates of the Progressive party for presidential elector brought suit under the Declaratory Judgment Act against the Chairman of the State Board of Election Commissioners and the Chairman of a county board of election commissioners, to obtain a declaration of their rights to appoint challengers and inspectors at the general election. The Attorney General of the State had rendered a written opinion to the Chairman of the Progressive party that they were not entitled to do so. The court said:

# * No one of the defendants has any duties to perform with respect to the appointment of challengers or inspectors, or their admission to, or exclusion from, the booths.”

The petition was said to have been properly dismissed because no one whose rights or duties were affected by the statute to be construed was made an adverse party in the proceeding.

In Coleman v. Henry, 184 Tenn. 550, 201 S.W. 2d 686, the petition sought a declaration construing a statute requiring a financial statement of campaign expenditures to be filed by candidates or their campaign managers. The defendant was the campaign manager for the successful Democratic candidates. None of the candidates nor the public officials to whom the report would be made were made parties to the suit. Their joinder was held to be necessary and indispensable and their non-joinder fatal on the question of justiciable controversy in a suit for declaratory judgment. The dismissal of the petition on demurrer was sustained.

I sincerely trust that the language in the majority’s per curiam opinion as to election controversies can be used to prevent it from opening the floodgate to applications to the courts for advisory opinions. I still subscribe to the belief that judicial controversies are best decided when pounded out on the anvil of advocacy in proceedings between parties whose interests are vitally real, not academic. I further believe that advocacy cannot make its full contribution to our judicial system unless it is invoked from the perspective of the parties really involved. In this case they would be the county election commissioners.

The old adage, “Haste makes waste,” states a fact of judicial, as well as everyday, life.

I would affirm the judgment of the circuit court.

Conley Byrd, Justice.

I disagree with the majority because it is contrary to Ark. Stat. Ann. § 3-608 (Repl. 1956), and because the premise stated in the majority opinion is not sustained by the record or the contention of the parties.

The statute provides:
“It shall be the duty of the County Board of Election Commissioners not less than five (5) days preceding a general election to select and appoint three (3) judges and two (2) clerks for each voting precinct in the respective Counties and to perform the other duties prescribed, provided however, that two (2) judges and one (1) clerk in each precinct shall be chosen and appointed by two (2) members of the County Board of Election Commissioners representing the majority party and one (1) judge and one (1) clerk at each precinct shall be chosen and appointed by the members of the County Board of Election Commissioners representing the minority party. Provided further that if there are no registered or known members of the minority party m any precinct or precincts within a county the minority party member of the County Board of Election Commissioners is hereby prohibited from naming any person to represent such minority party as a judge or clerk in any such precinct or precincts who is a member of the majority party, and in such event, the County Board of Election Commissioners shall by a majority vote name the judge and the clerk allotted the minority party for any such precinct or precincts ...”
“In the event the majority or minority representative on such County Boards of Election Commissioners do not select and appoint their full quota of judges and clerhs for each voting precinct, as authorised hereinbefore then the County Board of Election Commissioners by majority vote may fill such vacancy, provided, that in no event shall all of the jiidges or both of the clerics at any voting precinct be members of the same political party unless there are no members of the minority party registered in said precinct.” (Emphasis mine).

The appellees concede that when a deadlock occurs between the County Chairman of the majority party and the appointed third member, it is the duty of the County Board of Election Commissioners to select by majority vote “known” members of the majority party to serve as such judges and clerk. However, appellants in their brief contend that this is not enough, but that the selection should he those members of the party selected by the Chairman of the majority party. The majority opinion makes two conclusions with respect thereto:

(1) That when the entire County Board makes a selection of two members of the majority party as judges and one member as clerk, the result is that the minority party selects all the judges and clerks leaving the majority party with no representation whatever at the polls; and (2) that when the third member appointed by the State Board of Election Commissioners is unable to agree with the County Chairman of the majority party as to which members of the majority party are to serve as judges and clerks, then such third member has demonstrated that he is not qualified to “represent” the majority party as we used that term in Ellis v. Rockefeller, 245 Ark. 53.

Apparently the majority does not agree whole heartedly with appellants contention. The conclusions in the majority opinion are not based on logic. As to the first conclusion, I can think of nothing more patently illogical than the statement that, for purpose of insuring a fair election, the Republican Party is without representation at the polls when two “known” Republicans are serving as judges and one “known” Republican is serving as a clerk.

The fallacy of the second conclusion can be best demonstrated by reference to the recent litigation in this court in Childers v. Roberts, cause #4830, (disposed of by per curiam order on October 21, 1968). Included in the record therein are certified copies of the minutes of the Republican State Convention showing a controversy between Ralph Childers and John Oliger as to which one had been duly selected County Chairman by the township committeemen of Conway County. Until I read the majority opinion, I would not have believed that anyone would say that the third member of the Conway County Election Commission was not properly discharging his duty by insisting* that the clerk in some or all of the precincts be a “known” Republican selected from the faction supporting Mr. Oliger. The composition of the State Election Board is now and will continue to be such, by the very nature of the selection process, that it should be given some leeway in the selection of the third member for the purpose of insuring fair elections. It is not inconceivable that a situation could develop in a county of such degrading proportions that the State Board might purposely wish to select a third member of the County Board for the very purpose of preventing manipulation of the ballot through the selection of judges and clerks.

If one will again refer to the statute, supra, particularly the italicized portion thereof, he will find that the drafters of the statute anticipated that an impasse could be reached in the method provided for the selection of judges and clerks and that they provided a remedy to prevent the impasse from holding up or interrupting the State’s election machinery. Furthermore, in Initiated Act No. 3 of 1948, § 1, Ai*k. Stat. Ann. § 3-606 (Repl. 1956), it provided:

“For the purpose of this Act (§§ 3-606 — 3-611), the majority party shall be construed to be that political party polling, in the State of Arkansas, the greatest number of votes for Governor in the last preceding general election and the minority party shall be construed to be that political party polling, in the State of Arkansas, the second greatest number of votes for Governor in the last preceding general election.”

How this court can hold that the political party receiving the greatest number of votes for Governor in the last preceding general election can become the “minority party” within the meaning of Ark. Stat. § 3-606 and Í 3-608 without rewriting the statutes to fit a particular exigency is beyond my comprehension.

For these reasons, I respectfully dissent.

      See, also, People v. Baker, 133 Colo. 398, 297 P. 2d 273 (1956); Hudson v. Newell, 172 F. 2d 848 (5th Cir. 1949).


source: Caselaw Access Project

author: Carleton Harris, Chief Justice.

license: Public Domain

text:
    Farm Bureau Mutual Ins. Co. v. Amos Stepp
    4699
    433 S.W. 2d 140
    Opinion Delivered November 4, 1968

      Daggett & Daggett for appellant.

      Carrold E. Ray for appellee.
   Carleton Harris, Chief Justice.

Amos Stepp, appellee herein, instituted suit against his insurer, Farm Bureau Mutual Insurance Company, appellant herein, to recover the policy limit of $2,500.00 after one of his tenant dwellings was totally destroyed by fire on December 28, 1965. It is admitted by appellant that the dwelling was destroyed by fire while the policy was in full force and effect; that the amount of insurance issued under the policy was for the sum of $2,500.00; that proof of loss was submitted to the company in accordance with the provisions of said policy, and that the company’s representatives inspected the premises of the fire on December 30, 1965.

The suit was instituted on February 2, 1967, and on February 17 of the same jTear, appellant filed an answer in the form of a general denial. Appellee filed a Bequest for Admissions on February 21, and the answers filed on February 27, 1967, admitted the facts set out in the preceding’ paragraph. On October 3, 1967, a little more than seven months later, Stepp filed a motion for summary judgment, together with supporting affidavit, and gave notice to the company that he would make his application on October 27. No adverse affidavits were filed, but appellant, without leave of court, did file an unverified amendment to its answer, asserting that the company was not liable under the policy because the tenant dwelling had been vacant for more than 60 days prior to the fire damage. It was further alleged that the fire loss was of incendiary origin, caused or procured by appellee; also, that Stepp was willfully negligent in failing to initiate reasonable acts to extinguish said fire. This amendment was filed on October 25, two days before the time set for the hearing on the motion for summary judgment.

Appellee filed a motion to strike the amendment; the motion was granted and summary judgment was rendered in favor of Stepp against the company for the sum of $2,500.00, plus 12% penalty, together with attorney fees of $600.00, making a total judgment of $3,-400.00 and costs. From such judgment, appellant brings this appeal. For reversal, the company asserts that “the court erred in granting summary judgment because appellant’s asserted policy defenses of vacancy and origin of the fire constituted questions of fact.”

There is no contention that appellee did not follow the correct procedure set forth in the summary judgment statute, and appellant says the question is, “Does the filing of a motion for summary judgment preclude the assertion of further defenses not pending at the time the motion was given?”

We decline to answer this sweeping question, since other possible factors could affect individual cases, but we have no hesitancy in answering the question in the affirmative in this particular litigation.

It is apparently recognized by appellant that permission to file amendments is largely within the discretion of the trial court. Brewer v. Howell, 227 Ark. 517, 299 S.W. 2d 851, and authority cited therein. Appellant argues however that, since this court has held that strict interpretation should be given to summary judgment statutes, the trial court’s action in striking the amendment was an abuse of discretion. It is true we have held that, if there is doubt whether a factual question exists, a motion for summary judgment should be denied. Kealy v. Lumberman’s Mutual Insurance Company, 239 Ark. 766, 394 S.W. 2d 629. But that is not the controlling issue on this appeal. Rather, the question simply is whether the Lee County Circuit Court abused its discretion in striking appellant’s amendment to the complaint. We hold that this was not an abuse of discretion, and did not constitute error. There are at least two reasons why this is true. For one, the controlling statute, Ark. Stat. Ann § 27-1161 (Repl. 1962), provides that the court may allow additional pleadings to be filed on motion. Here, no motion was filed seeking to amend; to the contrary, appellant filed the amendment entirely on its own, without any apparent effort to obtain the permission of the court. An equally valid reason for the striking of the amendment is the fact that this amendment was not filed until nearly nine months after the complaint was filed, and then only after appellee had given notice that he would seek a summary judgment. Up until that time appellant had relied upon its general denial. There is nothing in the record to indicate that the alleged facts set forth in the amendment had just been discovered; conversely, it would appear that the defense raised by the amendment could have been asserted at any time after the investigation of the fire.

The trial court clearly did not abuse its discretion.

Affirmed.

Fogleman, J., disqualified.

      Appellee subsequently filed a motion in support of summary judgment, wherein he offered to show to the court, infer alia, that the company had made an investigation soon after the fire occurred, taking statements more than one year prior to the filing of the suit, and that the facts relating to any defense set up in the amendment had been known to the appellant for more than 18 months prior to the filing of the amendment.


author: Carleton Harris, Chief Justice. John A. Fogleman, Justice.

text:
    Lelon J. Bull, et ux v. Carlyle Manning
    4703
    433 S.W. 2d 145
    Opinion Delivered November 4, 1968

      Dan McCraw and Cain, Brigham & Hacker for appellants.

      Wooten, Land & Matthews for appellees.
   Carleton Harris, Chief Justice.

This appeal relates to the trial court’s action in granting a summary judgment. On June 10, 1965, around 10:30 A.M., appellants, Lelon J. Bull and wife, were stopped, or in the process of stopping, for a red traffic signal at the intersection of Bridge Street and Central Avenue in downtown Hot Springs. Appellee, Carlyle Manning, approached the same intersection, and stopped (or was in the process of stopping) behind the Bull automobile when a third car, driven by Jessie E. Chote ran into the back of the Manning vehicle, knocking it into the Bull ear. Bull instituted suit against Manning, and against Chote. Appellants propounded interrogatories to Manning which were answered and made a part of the record. Subsequently, appellee filed his affidavit, affidavit of the investigating officer, and affidavit of Jessie Chote, and moved for summary judgment. Bull executed a counter-affidavit, but the court, finding that appellant’s affidavit did not establish negligence on the part of Manning, held that there was no substantial controversy but that appellants’ damages were caused by Chote, and summary judgment was entered in favor of Manning, the complaint being dismissed as to him. From such judgment comes this appeal.

We have, of course, held that a motion for summary judgment is similar to a motion for a directed verdict, in that the testimony must be viewed in the light most favorable to the party resisting the motion, and if there is any doubt whether a factual question exists, motion for summary judgment should be denied. Van Dalsem v. Inman, 238 Ark. 237, 379 S.W. 2d 261; Kealy v. Lumberman’s Mutual Insurance Company, 239 Ark. 766, 394 S.W. 2d 629. However, we do not agree with appellants that the court erred in rendering this judgment.

Let it be borne in mind that the real issue between appellants and appellee is whether appellee was guilty of negligence which ivas the proximate cause of appellants’ damages. This being true, let us examine the affidavits.

J. Timbs, a member of the Police Department of Hot Springs, stated that the drivers of the first and second cars, respectively Bull and Manning, told him that they were stopped in traffic waiting for other vehicles to move forward with the change of the traffic light. Timbs said that the automobile driven by Chote "did not have any brakes.” Manning executed an affidavit to the effect that he stopped his car between five and ten feet behind the Bull automobile, which was also stopped waiting for the traffic light to change; he had been stopped for approximately 20 seconds when his vehicle was struck from the rear by the car driven by Chote; though his foot was on the brake at the time, the force of the impact knocked his car forward into the rear end of the Bull automobile.

Chote stated in his affidavit that he was driving his car south on Central Avenue and noticed the cars stopped in front:

"When I started to stop, I must have missed my brake, because I ran into the back of the car stopped in front of me and knocked it into the car in front of it.”

Bull’s affidavit set out that as he approached the stop light, he applied his brakes and was about to come to a complete stop when he glanced in the rearview mirror and observed an automobile approaching “close behind me. Before I could come to a complete stop, the car immediately behind me crashed into my rear bumper and pushed my car several feet forward.” Appellants contend that the facts enumerated present a jury question, and particularly emphasize Manning’s answer to Interrogatory No. 10, where he was asked to describe how the accident happened. Appellee answered, “I had been stopped approximately 20 seconds when I was hit. I was looking ahead to watch for a change of the light when I was hit from the rear by a car driven by Jessie Chote. I was thrown up against the roof of my car and knocked into the rear of the Buick.” Appellants assert that these statements constitute an admission that Manning was not watching through his rear-view mirror, and that this alone should be sufficient to take the case to the jury on the question of negligence. We do not agree. There is no indication that there was anything that Manning could have done had he been watching through his rearview mirror. Certainly, in the seconds involved, he could not have pulled out of the line of traffic to avoid being hit — and he already had his foot on the brake. Chote stated that he saw the cars in front of him, so any signal (blowing horn) given by appellee would not have prevented the collision.

Appellants state that a jury should be allowed to determine whether appellee was too close to appellant’s car. As stated in Hartsock v. Forsgren, Inc.. 236 Ark. 167, 365 S.W. 2d 117:

“Tobe negligent a person must be in a position to realize that his conduct involves a hazard to others. In the Hill case we described a negligent act as ‘one from which an ordinary prudent person in the actor’s position — in the same or similar circumstances — would foresee such an appreciable risk of harm to others as to cause him not to do the act, or to do it in a more careful manner.’ Later, in Collier v. Citizens Coach Co., 231 Ark. 489, 330 S.W. 2d 74, we added: ‘Foreseeability is an element in the determination of whether a person is guilty of negligence and has nothing whatever to do with proximate cause.’ Moreover, when the voluntary acts of human beings intervene between the defendant’s act and the plaintiff’s injury, the problem of foreseeability is still the same: Was the third person’s conduct sufficiently foreseeable to have the effect of making the defendant’s act a negligent one?”

Can it be said that Manning, in stopping within a few feet of Bull’s ear, should have realized that this act constituted a hazard, because someone might run into his car and knock him into the front car? To paraphrase Hart sock, “Was Chote’s conduct sufficiently foreseeable to have the effect of making Manning’s act a negligent one? We think the answer is an obvious “No” — but even if the answer were otherwise, appellants would still be confronted with the problem of proximate cause. Proximate cause is defined as a “cause which, in a natural and continuous sequence, produces damage and without which the damage would not have occurred.” AMT 501. See also Collier v. Citizens Coach Company, 231 Ark. 489, 330 S.W. 2d 74.

In determining the proximate cause of the accident, we of course, take into consideration all of the affidavits. When this is done, it becomes quite clear that the proximate cause of any damages suffered by Bull, was the fact that Chote either had no stopping power in his brakes, or did not apply his brakes. That he did not use them is admitted in his affidavit. Would the Manning vehicle have struck the Bull vehicle if Mr. Chote had not driven up behind them, irrespective of the distance mentioned as separating the Manning and Bull automobiles? We think the question can quickly be answered, “No.” The affidavits reflect that the Chote car struck the Manning car with great force, the engine in appellee’s car being knocked forward and off tbe motor mount, tbe body of tbe car crimped, tbe front doors thrown open (and wouldn’t shut), and tbe rear doors jammed to tbe extent that they would not open. Tbe tail pipe was driven through tbe muffler, and tbe rear bumper was knocked loose and down. In fact, it would appear that tbe presence of tbe Manning car probably saved tbe Bull car, and occupants, from greater damage, since it acted as a cushion between Bull and tbe on-rusbing Cbote automobile.

There was no error in granting tbe motion for summary judgment.

Affirmed.

Fogleman, J., concurs.

John A. Fogleman, Justice.

I concur in tbe result and tbe fundamental proposition that there is a total lack of evidence to make a jury question on negligence of Manning as a proximate cause of tbe collision. I disagree with tbe approach to this principle because I think that tbe majority have weighed tbe affidavits and determined that tbe Manning vehicle bad stopped behind tbe Bull vehicle before tbe collision. The majority seem to have assumed that Manning’s stopping within a few feet of Bull’s car was the only negligence which could have been found from tbe affidavits. Since both tbe trial court and this court must resolve all doubts in favor of the party against whom a summary judgment would be rendered and draw all inferences in question in favor of that party, I think we must accept the Bull affidavit at face value. In that affidavit, appellant Bull states that as be approached a vehicle stopped at tbe stop light, be glanced in bis rear view mirror and observed an automobile approaching close behind him, and this automobile crashed into his rear bumper before he could come to a complete stop and pushed his car several feet forward. But even conceding that this is true, there is nothing in any of the affidavits or answers to interrogatories to indicate that there was ever more than one impact to the rear of the Bull vehicle. The affidavit of Chote that he ran into the back of the car in front of him and knocked it into the car in front of it is a clear indication that Chote’s action was the cause of Manning’s vehicle striking the Bull car. Consequently, any negligence of Manning in following the Bull vehicle too closely or failing to keep a proper lookout could not have been the proximate cause of the damages to appellants.

      The cause of action against Chote is not involved, in this appeal, and the case against him is apparently still pending in court.


author: George Rose Smith, Justice.

text:
    Floyd Green v. Lewis Maddox
    5-4715
    433 S.W. 2d 144
    Opinion Delivered November 4, 1968

      Shaver, Tackett & Jones by Nicholas E. Patton for appellant.

      Donald Corbin and John B. Eainer for appellee.
   George Rose Smith, Justice.

This is an action brought by the appellee to collect a debt of $6,150 assertedly owed to him by the appellant. The attorney originally employed by the defendant Green filed a demurrer to the complaint, bnt when the demurrer was overruled that attorney failed to file an answer within the time allowed or to appear in court on the day the case was set for trial. Green’s present counsel were engaged at the eleventh hour, but in the presentation of their client’s case they were evidently and understandably handicapped by want of sufficient time to prepare for trial. The case was heard without a jury. This appeal is from a judgment for Maddox for the full amount sued for.

The indebtedness was evidenced by five uncashed checks, totaling $6,150, that were payable to Maddox and signed by Green. The single contention here is that the plaintiff failed to prove any consideration for the checks.

We cannot sustain that contention. Maddox was in a nursing home at the time of trial and, presumably for that reason, did not appear as a witness to explain the checks. However, Ben M. May had attempted to collect the instruments for Maddox and testified in his behalf. May said that he and Maddox had discussed the debt with Green on two occasions. May testified that on the first occasion Maddox said, “Now, Floyd, you’re going to pay me, aren’t you?” and Floyd answered, “Yes, I sure am, but right now I don’t have the money. But when I sell some cattle I will.”

According to May, the second encounter again involved a promise by Green that he would pay the debt. When Green was asked to sign new checks, because the statute of limitations was about to run, he equivocated by saying, “This is really my wife’s money. It’s in her name and her business, and I’ll have to check with her.”

May’s testimony, corroborated by the checks, was amply sufficient to make a prima facie case. In fact, Green did not deny having signed the cheeks. He merely stated that he did not remember anything about them, that he had not received any money for them, and that he did not know what they were for. Thus the single issue below was that of credibility. In the circumstances the trial judge’s determination has the force of a jury verdict and is conclusive here. Hughes v. Harris, 227 Ark. 407, 299 S.W. 2d 85 (1957).

Affirmed.


author: Paul Ward, Justice.

text:
    Lottie Nabors v. June Quick and Kansas City Fire and Marine
    4673
    433 S.W. 2d 844
    Opinion Delivered November 4, 1968
    [Rehearing denied December 9, 1968.]

      Griffin Smith for appellant.

      Wright, Lindsey & Jennings for appellees.
   Paul Ward, Justice.

This is an appeal from a probate court decree holding the surety on a guardian’s bond had been discharged. We explain below how the issue reaches this Court.

On April 14, 1964 Lottie Nabors (appellant) had the probate court appoint June Quick (one of the appellees here) guardian for her brother James Wilburn (referred to as the ward). About two weeks later the guardian filed a bond in the amount of $10,000, the surety being Kansas City Fire and Marine Company (the other appellee), hereafter referred to as surety. The ward died on August 5, 1964, and two days later appellant had the court appoint the guardian (Miss Quick) administratrix of the estate of Jessie Wilburn deceased, and a new bond, with a new surety, was executed and filed. Then on November 19, 1964 the guardian filed a first and final report, and on the same day the probate court entered an order closing the guardianship and discharging the surety (Kansas City Fire and Marine Insurance) from further liability.

This Suit. On August 31, 1967 appellant filed a complaint in chancery court (later transferred to probate court) against June Quick and Kansas City Fire & Marine Ins. Co. alleging, in substance among other things, that June Quick, as guardian, had failed to account for assets in the amount of $1168.22, and had not properly reported and explained certain expenditures. The prayer was for “a true accounting and a judgment for the amount of assets diverted”. Kansas City Fire & Marine Ins. Co. filed a separate answer admitting the guardianship of Miss Quick and that it signed her bond as such guardian, but denying all other allegations. It further stated: (a) the guardian made all disbursements on orders of the court; (b) appellant received a large portion of the assets; (c) all disbursements were proper; (d) it was discharged by a proper order of the probate court from which no appeal has been taken, and; (e) the chancery court has no jurisdiction of the subject matter of this action.

On March 7, 1968 the trial court entered a decree dismissing appellant’s complaint based on these findings: (1) The court has jurisdiction of the parties and the subject matter; (2) on November 18, 1964 “an order was entered closing the guardianship and discharging the defendant as surety from any further liability”; (3) the parties agreed that appellant would not seek to recover any sums diverted during the guardianship; and, (4) the liability of defendant (surety) terminated with the filing of the administratrix’s bond because it was not shown that June Quick, while acting as guardian, misappropriated or diverted any funds of the ward.

For reasons presently set out we have concluded that the decree of the trial court must be reversed.

Ark. Stat. Ann. § 57-642 a. (Supp. 1967) [Guardian to Account], in pertinent part, reads:

“Unless otherwise directed by the court a guardian of the estate shall file ... a written verified account of his administration. Notice of hearing of every accounting shall be given ...” “ The account shall show with respect to each item for which credit is claimed ...”

The subsequent section 57-645 [Discharge of Guardian], in material part, reads:

“Upon the guardian of an estate filing receipts or other evidence satisfactory to the court, showing that he has delivered to the persons entitled thereto all the property for which he is accountable as guardian, the court shall make an order discharging the guardian and his surety from further liability or accountability with respect to the guardianship.” (Emphasis supplied.)

It would serve no useful purpose to set out the testimony in detail regarding the accounting and purported discharge of the guardian and the surety on her bond. Suffice to say the record reveals that the statutes quoted above were not, in any manner, complied with. In fact, appellees do not appear to contend otherwise.

In view of the law and the record referred to above, we are compelled to conclude that appellee (Kansas City Fire and Marine Ins. Co.) has not been legally released from liability as surety on the bond. Therefore the decree of the trial court is reversed, and the cause is remanded for the trial court to determine the extent, if any, of appellees’ liability to appellant


text:
    Clark Center, Inc. v. National Life and Accident Insurance Company
    4722
    433 S.W. 2d 151
    Opinion Delivered November 4, 1968
    [Rehearing denied November 25, 1968.]

      Dickey, Dickey & Drake for appellant.

      Bridges, Young, Matthews & Davis for appellee.
   Paul Ward, Justice.

This is an appeal from a judgment denying the statutory penalty and attorney’s fee to the beneficiaries in an insurance policy. Set out below is a summary of the pertinent facts which are not in dispute.

Facts. Clark Center, Inc. (appellant) is a corporation whose stockholders, prior to March 19, 1967, were Millard M. Clark and his wife and their children. On the date above mentioned Millard M. Clark died. He was insured by National Life and Accident Insurance Company (appellee) under a policy which obligated it to pay appellant $47,664 if the insured died through accidental means. Six days after the death of said Clark demand was made on appellee for payment. Appellee did not deny liability but promptly started an investigation to determine (a) the names of the stockholders of the corporation and (b) the cause of the death of Clark. Before the investigation was completed to appellee’s satisfaction appellant filed suit (on June 21, 1967), asking appellee to pay the face value of the policy and also “12% penalty and attorney’s fee”. Appellee answered, denying it had refused to pay the proceeds of the policy, and stating: it had done everything possible under the circumstances to expedite payment, but appellant had refused to furnish proper and necessary information; it confesses liability on the policy and tendered in court a check for $47,665 payable to the clerk for disbursement pursuant to order of the court. [Later the money was paid to the beneficiaries at their request.] It was agreed by both parties that the issues of penalty and attorney’s fee would be decided later. That is the only issue before us now.

Both sides filed a Motion for Summary Judgment. Thus the issue was submitted to the trial court on interrogatories and affidavits.

On March 9, 1968 the trial court entered judgment, denying appellant’s Motion and granting appellee’s Motion on the ground there was “no material issue of fact remaining to be decided”. It is our conclusion, for reasons hereafter set out, that the trial court was correct.

Affidavits submitted on behalf of appellee reveal, in substance, the following:

(a) One employee of appellee who made an investigation said he learned Mrs. Clark had been charged with murdering her husband, Millard M. Clark, and was unable to obtain the names of the stockholders in appellant’s company.
(b) Another employee of appellee said he tried and failed to obtain any information from Mrs. Clark or the prosecuting attorney.
(c) Mrs. Clark herself admitted that when she was called on by appellee’s investigator her son wouldn’t talk with him.
(d) Appellee’s exhibit “I” reveals an information, dated April 25, 1967, charging Mrs. Clark with homicide.
(e) An article published in the Times Dispatch of Walnut Ridge on March 23, 1967 was to the effect that the prosecuting attorney said there was no evidence of suicide in the death of Millard M. Clark.

Appellant seeks to recover the penalty and attorney’s fee under the provisions of Ark. Stat. Ann. § 66-3238 (Repl. 1966) which, in parts material here, reads:

“In all cases where loss occurs and the ... insurance company . . . shall fail to pay the same within the time specified in the policy, after demand made therefor, such person . . . shall be liable to pay the holder of such policy or his assigns, in addition to the amount of such loss, twelve percent (12%) damages . . . with all reasonable attorneys’ fees . . . .”

The above section has been construed many times by this Court. Our holdings in many cases are, we think, pertinent and decisive in the case before us at this time.

In Sun Life Assurance Company of Canada v. Coker, 187 Ark. 602, 61 S.W. 2d 447, in construing § 615 of Crawford & Moses Digest [same as § 66-3238] we said:

“We have frequently held that the statute is highly penal and should be strictly construed.”

To the same effect National Fire Ins. Co. v. Right, 185 Ark. 386, 47 S.W. 2d 576, and Taylor v. The Mutual Life Ins. Co. of N.Y., 193 Ark. 251, 98 S.W. 2d 944.

In Dennis v. Equitable Life Assurance Society, 191 Ark. 825 (p. 833), 88 S.W. 2d 76, there appears this statement:

“Since the insurance company, however, made no dispute as to its liability for the fund, and was not attempting in any respect to defeat a recovery thereof, it was not error to refuse to impose the penalty or to charge attorney’s fee against it.”

In the Taylor case, supra, (p.252) we also said, in referring to this penal statute, “. . . that' the insurer shall have a reasonable time to make necessary investigation in reference to the loss and the circumstances after demand.” We also said:

“In other words appellee’s duty to appellant in the instant case was to pass upon the proof of loss expeditiously, in good faith, and within a reasonable time after demand.”

We also point out the record reveals: Clark was found dead in his room with a pistol on the floor; no explanation of his death was given to appellee, and; Mrs. Clark was under a charge of having killed her husband. She was a beneficiary in the policy, and, as such, was attempting to force appellee to pay over her share. Yet, if guilty as charged, she had no right to collect. In Metropolitan Life Insurance Company v. Shane, 98 Ark. 132, 135 S.W. 836, this Court said:

“The wilful, unlawful and felonious killing of the assured by the person named as beneficiary in a life policy forfeits all rights of such person therein.”

In view of the above interpretations of the applicable statute and the facts previously set out, we think the trial court was correct in refusing to require appellee to pay a 12% penalty and attorney’s fee. It is undisputed that; appellee, at no time, denied all liability; appellee stood ready to pay, and did pay, the face value of the policy as soon as it completed a reasonable investigation, and; appellee, acting in good faith, believed such an investigation was necessary before making payment.

Affirmed.

Harris, C.J., not participating.


author: Lyle Brown, Justice.

text:
    Louise Smith v. Jere Marie Alexander
    4689
    433 S.W. 2d 157
    Opinion Delivered November 4, 1968

      James C. Cole for appellant.

      Wright, Lindsey & Jennings by William R. Overton for appellee.
   Lyle Brown, Justice.

Louise Smith, plaintiff-appellant, sought recovery for damages arising out of a collision between her car and a vehicle driven by defendant-appellee, Jere Marie Alexander. The jury verdict favored Jere Alexander. Louise Smith seeks a reversal based on the court’s giving, and refusal to give, certain instructions.

Three cars were traveling in the same direction on Highway 270 near Malvern, Arkansas. The lead driver is not a party to this suit. Jere Alexander was second in line and Louise Smith was trailing. At the time of the collision, both ladies were in the passing lane, it apparently being tlie intention of both to ultimately pass the lead vehicle. Jere Alexander contends that she was the first driver to enter the passing lane and that Louise Smith suddenly struck the rear of the Alexander car. Louise Smith argues that she was first in the passing lane and that Jere Alexander suddenly and without warning pulled out in front of the Smith car. Those highly disputed facts are all that are necessary to an understanding of our conclusions. The three points raised for reversal will be discussed as they are listed in italics.

I. The Court Erred in Refusing to Give AMI 101. That instruction is an opening statement to the jury, chiefly concerned with the respective duties of judge and jury. It is designated as a cautionary instruction. The record is silent as to why the trial judge declined to give it. On the other hand there is nothing in the record to show why it should have been given. Appellant made only a general objection. Absent a record to the contrary, we assume the trial judge decided the jury need not be instructed on cautionary matters. It could have been that those same jurors had heard this instruction repeated in previous trials. Considering the state of the record, and the discretion vested in trial courts with reference to cautionary instructions, we are unable to say that reversible error was committed. We would consider it the better practice to give the instruction when requested or recite into the record the specific reasons for refusing to give it. That is because we think the instruction covers substantive matters and a refusal to give it should be an unusual exception.

II. It Was Error to Give a Rule of the Road Instruction Taken from Ark. Stat. Ann. § 75-609(b) (Repl. 1957). Within the format of AMI 903, and at the request of defendant, the court gave this statute:

“ . . . the driver of an overtaken vehicle shall give way to the right in favor of the overtaking vehide on audible signal and shall not increase the speed of his vehicle until completely passed by the overtaking vehicle.”

First, there was no evidence of audible signal having been given by either vehicle. Therefore the instruction tendered an issue not in contention. To that extent the instruction was abstract. Harkrider v. Cox, 230 Ark. 155, 321 S.W. 2d 226 (1959). Secondly, under the very unusual circumstances of this case the instruction was confusing. The novel situation arises because here we do not have clearly designated overtaken and overtaking vehicles. In fact, the jury could have surmised that the overtaken vehicle was the lead car. The driver of that car is not charged with any negligence and is not a party to the suit. But how was the jury to know but that the instruction was referring to that driver? It was Louise Smith’s claim that she had pulled out to pass Jere Alexander and the latter suddenly pulled out in front of Louise Smith. To the contrary, Jere Alexander contends she was overtaking the lead vehicle and was struck from the rear. Thus we have a situation where both parties to this suit contend they held the status of overtaking vehicles. At the same time, plaintiff Smith designates defendant Alexander as an overtaken driver. With that confusion created by the testimony, we conclude that the jury could not possibly know how to apply the instruction in the form given. It should also be pointed out that this rule of the road imposes a duty on the driver being overtaken. The duty was shifted to that driver by Act 300 of 1937. There the requirement that an overtaking driver always sound his horn was deleted. Consequently the instruction should not be given unless there is evidence that the driver being overtaken failed to give way to the right on audible signal.

III. The Court Erred in Giving AMI 902 as Modified. The form of that instruction, taken from the book, is as follows:

“When two vehicles are traveling in the same direction, the vehicle in front has the superior right to use of the highway [for the purpose of ‘leaving it to enter an intersecting road’ (or other appropriate language)], and the driver behind must use ordinary care to operate his vehicle in recognition of this superior right. This does not relieve the driver of the forward vehicle of the duty to use ordinary care and to obey the rules of the road.”

The trial court gave the instruction exactly as written (excepting, of course, the bracketed portion). Specifically, no insertion was entered as explained in brackets. When that instruction is given the specific and applicable purpose for which the lead car has the superior right to the use of the road should be inserted. Otherwise, the instruction could lead the jury to picture the lead car as having far more rights than really exist. In every instance where the rule has been approved by this Court, the instruction or the law under discussion dealt in specific situations as opposed to a general right blanket in nature.

In Madison Smith Cadillac Co. v. Lloyd, 184 Ark. 542, 43 S.W. 2d 729 (1931), we held that the lead vehicle has the superior right to the use of the road “for the purpose of leaving it on either side to enter intersecting roads and passageways ... in Ward v. Haralson, 196 Ark. 785, 120 S.W. 2d 322 (1938), it was stated that the truck driver ahead had the superior right to the use of the road for the purpose of proceeding straight ahead on his right side of the road; in Cohen v. Ramey, 201 Ark. 713, 147 S.W. 2d 338 (1941), the phrase “intersecting roads and passageways” was inserted in the instruction; in Acco Transportation Co. v. Smith, 207 Ark. 70, 178 S.W. 2d 1011 (1944), the driver of the wagon was proceeding straight on his side of the road and we held for that purpose he had the superior right to the use of the road as opposed to a driver trailing him; and in Jones v. King, 211 Ark. 1084, 204 S.W. 2d 548 (1947), there was a turning movement of the lead vehicle in leaving the highway and for that purpose he was declared to have the superior right of use. There are later cases from the same general field; suffice it to say that all which have come to our attention deal in specifics when this rule of. the road is applied.

Reversed.


text:
    Neel Bentrup v. Glen A. Hoke, et al
    4720
    433 S.W. 2d 139
    Opinion Delivered November 4, 1968

      Herrod & Cole for appellant.

      James R. Howard for appellee.
   Lyle Brown, Justice.

Appellant Nell Bentrup, defendant below, was permanently enjoined from operating a beauty parlor in her home. The home is located in North Little Rock and in a zoned area restricted to residences limited to one, single family residential nse. The property is also covered by a bill of restrictive assurances. Appellees are neighboring property owners of Nell Bentrup.

Appellant’s right to use a portion of the residence as a beauty parlor must fail because of the application of res judicata. In 1965, the same neighboring property owners who brought this suit against Mrs. Bentrup, brought suit against Mrs. Bentrup’s predecessors in title, Edward dowers and wife. In that case the sole issue was whether the Clowerses could legally operate a beauty parlor on the premises in question. Such activity was alleged to be in violation of the bill of assurance and also violative of the zoning ordinance restricting improvements to “residential use.” Whether the operation of a beauty parlor on the premises was a permissive nonconforming use was also placed in issue. The neighboring property owners additionally alleged the existence of a nuisance because of traffic congestion. The Clowerses were permanently enjoined from operating, or permitting to be operated, a beauty parlo]1 on the premises. That decree was dated May 28, 1965. Six months later the Clowerses deeded their lot to Mrs. Nell Bentrup.

The only difference we perceive, both in pleadings and issues, between the first suit and the present one, is that Mrs. Bentrup is presently the defendant, whereas the Clowerses were the principal defendants in the first case.

The latest case in point is Van Duyse v. Fleming, 245 Ark. 233, 432 S.W. 2d 10 (Sept. 23, 1968). Van Duyse sought an injunction to abate the obstruction of a natural drain by his neighbor on the north, Fleming. The prayer of Van Duyse was denied because the same question was litigated previously between Van Duyse and Fleming’s predecessor in title. “An existing final judgment or decree,” we said, "is conclusive of rights, questions and facts in issue as to the parties and their privies. Baumgartner v. Rogers, 233 Ark. 387, 345 S.W. 2d 476 (1961).”

In Langford v. Griffin, 179 Ark. 574, 17 SW. 2d 296 (1929), Langford’s predecessor in title was enjoined from inclosing an alley adjacent to Griffin’s lot. Lang-ford was held to be bound by that judgment in a subsequent suit where the issue over the inclosure was raised. In Cook v. American Cyanamid Co., 227 Ark. 268, 297 S.W. 2d 933 (1957), we held that under the doctrine of res judicata, the grantee stands in the relation of privy to the grantor.

Affirmed.


author: John A. Fogleman, Justice.

text:
    Albert L. Meyer v. Billy J. Bradley; St. Paul Fire & Marine Ins. Co.
    5-4647
    433 S.W. 2d 160
    Opinion Delivered November 4, 1968

      Cockrill, Laser, McGehee, Sharp & Boswell for appellant.

      Howell, Price & Worsham for appellee.
   John A. Fogleman, Justice.

Appellant Meyer contends that the trial court abused its discretion in granting appellee’s motion for a nmv trial on the ground that the jury verdict in this case was against the preponderance of the evidence. The circuit judge relied on Ark. Stat. Ann. § 27-1901 (Repl. 1962), which states that a new trial may be granted for the cause, among others, that the verdict or decision is not sustained by sufficient evidence. Appellant contends that the trial court abused its discretion because the evidence in this case is virtually undisputed and the preponderance so clearly in support of a jury verdict denying recovery to either party. "We find no abuse of discretion.

The litigation arose because of an automobile collision at the intersection of Frank and Sixteenth Streets in North Little Rock. Appellant Meyer was driving south on Frank in his pickup truck and appellee Bradley was driving his car east on Sixteenth Street. There were no traffic controls at the intersection of these streets. The corner to Meyer’s right and Bradley’s left was slightly terraced, and there was shrubbery on the lawn at that corner, obstructing the view of both drivers to some extent. Meyer approached the intersection not only without slackening his speed, but he actually accelerated his vehicle as he went through the intersection. He stated that he was not familiar with the neighborhood and had not previously crossed the intersection. He testified that he never saw the Bradley vehicle until after the impact of the collision as he was about to leave the intersection, but admitted that there was a point a car length from the intersection at which he could see 75 to 100 feet up the street to his right. He said that he looked and there was nothing there. He also testified that he could see 75 feet down Sixteenth Street to his right when he was 30 feet from the intersection. According to him, he looked first to his right, then to his left, and proceeded, looking straight ahead and without looking again to the right. He never applied his brakes. After the left front of Bradley’s vehicle struck the right front wheel and fender of Meyer’s pickup truck, the latter traveled 80 to 85 feet east over the curb at the southeast corner of the intersection, through a hedge and across a lawn, and stopped on the porch of a house at the corner. Meyer said that he was traveling at a speed of 30 to 35 miles per hour as he approached the intersection and at about the same speed when struck. Bradley estimated the speed of the Meyer pickup truck, when he first saw it, at 35 to 40 miles per hour.

Bradley testified that although he was sure he had been by the intersection before, he did not travel there ■every day. Bradley also testified that he approached the intersection at a speed of 20 to 25 miles per hour and saw the Meyer vehicle approaching at a distance of three or four car lengths from the intersection. He stated that although he had not previously taken his foot off his accelerator, he immediately applied his brakes and skidded into the intersection. After the impact, the Bradley vehicle spun to the right and back up against the curb. Bradley estimated that he was 45 feet from the intersection when he saw the Meyer pickup. He skidded 40 feet to the point of impact.

It may well be that the trial judge came to the conclusion that the acts of Meyer in approaching a partially “blind” intersection without decreasing his speed until he had a clear view to his right from which direction there might be an approaching vehicle to which he owed the duty of yielding the right-of-way and in actually accelerating his speed as he entered the intersection constituted greater negligence than any negligence on the part of Bradley in not decreasing his speed upon approaching' the intersection. The judge might well have felt that Meyer’s testimony that he looked to his right, where he had a clear view for 75 to 100 feet upon approaching the intersection, was not worthy of belief in view of his failure to see the Bradley vehicle at any time before the impact, his accelerating his speed upon approaching the intersection, and failing to apply his brakes.

While appellant makes much of the fact that the Meyer vehicle traveled more than 80 feet into the porch of a house on the corner, he does not take into consideration the fact that Meyer never applied his brakes, but attributes this movement entirely to the speed of Bradley’s vehicle which had skidded 40 feet before the impact.

We have long adhered to the rule that the trial judge has control of the verdict of the jury after it has been rendered, and that he is vested with the power to set a verdict aside on account of errors committed by the jury. Because his opportunity for passing on the weight of the evidence is far superior to ours, we will not interfere with his judgment unless his discretion has been manifestly abused. Bowman v. Gabel, 243 Ark. 728, 421 S.W. 2d 898. We cannot say that there was a manifest abuse of discretion here.

Appellant argues that we should reverse the trial court because:' (1) There is not the sharp conflict in the testimony characteristic of our previous decisions and the fact questions involved only the inferences to be drawn from the testimony, (2) the case is governed by Missouri Pac. R.R. Co. v. Brewer, 193 Ark. 754, 102 S.W. 2d 538, where the granting of a new trial was held to constitute an abuse of discretion, and (3) our rule is wrong and should be abandoned.

The same reasoning applies to the drawing of inferences from the testimony as applies to resolution of conflicts therein. It is difficult to understand how it could be determined whether a verdict was sustained by sufficient evidence without considering the inferences which might be drawn from the testimony. Furthermore, there was no testimony on the issue of liability other than that of the parties. 'The testimony of neither could be taken to be undisputed or uncontradicted. Metcalf v. Jelks, 177 Ark. 1023, 8 S.W. 2d 462; French v. Browning, 187 Ark. 996, 63 S.W. 2d 647; Ball v. Hall, 196 Ark. 491, 118 S.W. 2d 668.

We think there is a clear distinction between this case and Missouri Pacific v. Brewer, supra. There the trial judge made an extensive statement as to his findings as a basis for granting a new trial, in which he totally ignored evidence tending to support allegations of negligence on the part of the plaintiff and a jury finding that the plaintiff’s negligence was equal to that of the defendant. Specifically, the trial judge made no finding to the effect that on the whole case the verdict of the jury was against the preponderance of the evidence or that the weight of the evidence sustained the allegation of negligence on the part of the defendant. Under these circumstances the majority, in spite of a vigorous dissent by three members of the court, held that there was an abuse of discretion in that the court’s action was “improvident” or “thoughtlessly exercised” and without due consideration. We find nothing comparable here.

For the reasons stated in such cases as Blackwood v. Eads, 98 Ark. 304, 135 S.W. 2d 922; Twist v. Mullinix, 126 Ark. 427, 190 S.W. 851; Bowman v. Gabel, 243 Ark. 728, 421 S.W. 2d 898; Yarnell Ice Cream Co., Inc. of Williamson, 244 Ark. 893, 428 S.W. 2d 86, and many others, we adhere to the rule heretofore followed.

The judgment is affirmed.


author: J. Fred Jones, Justice.

text:
    Sherrye Holmes Hampton v. Alton R. Hampton
    4700
    433 S.W. 2d 149
    Opinion Delivered November 4, 1968

      James C. Johnson for appellant.

      Macom, Moorhead & Green for appellee.
   J. Fred Jones, Justice.

This appeal is from an order of the Arkansas County Chancery Court modifying a divorce decree as to the visitation rights of the father with the couple’s three year old daughter.

Sherrye and Alton Hampton were married on October 21, 1962, when she was sixteen and he was nineteen years of age. They lived together on his father’s rice farm near DeWitt for about two years when their child, Monti, was born. Alton was overseas for about two years as a member of the armed forces and while he was away Sherrye and the child lived with her parents who operate a grocery store in Des Arc, Arkansas. Upon Alton’s return from overseas, the couple continued to live on his father’s farm where Alton worked on the farm for daily wages. They obtained a divorce on December 2, 1966; the custody of the child was awarded to the mother and visitation rights of two Saturdays each month were awarded to the father. After the divorce, Sherrye entered Little Eock University. She kept the child with her part of the time in Little Eock and left it with her mother part of the time in Des Arc. Alton continued to work on his father’s farm near DeWitt and attempted to visit the child two Saturdays each month as provided in the decree.

The record indicates that much of the difficulty causing the separation and divorce in the first place had to do with the immature attitude each parent took toward the other in relation to the welfare of their child. The divorce did not soften their attitude toward each other. The child was allergic to organic dusts, particularly from soybeans and rice but this allergy was controlled by medication. The parents were allergic to each other and no attempt was made by either to control this allergy. As a matter of fact this allergy was aggravated to some extent by Sherrye’s remarriage. Alton attemped to exercise his visitation rights under the court order as if the order was directed to him and Sherrye flouted the court order as if she had not even heard of it and as if it did not apply to her at all. On several occasions Alton would drive from DeWitt to Little Eock to visit the child and Sherrye would deny him the privilege, usually on the pretext that the child was ill because of allergy or had an appointment with a doctor.

Sherrye’s remarriage contributed nothing but complications to the exercise of Alton’s rights of visitation and following a contempt citation hearing on March 17, 1967, the chancellor held Sherrye in contempt of court for failure to comply with the visitation orders, but deferred further action for a period of sixty days, during which time Sherrye was given further opportunity to comply with the previous orders pertaining to the visitation rights. Additional hearing was had on October 24, 1967, at which time the chancellor modified the original decree by authorizing Alton to have the child in his home two weekends out of each month. It is from this order that Sherrye has perfected her appeal to this court and she relies on the following point for reversal:

“The court erred in disregarding the health and physical well-being of the child by increasing the visitation rights of the father.”

Appellant’s point is not supported by the record and we find no merit in this appeal. The chancellor went to unusual length and exhibited commendable patience and understanding in arriving at his decision in this case. The chancellor made it clear throughout this entire case that the welfare of the child was his primary concern and we are of the opinion that he properly evaluated the medical evidence in this case when he said:

“Now with all this proof here, doctor’s deposition and Dr. Henderson in person, all of this proof about these allergies and one thing and the other and I don’t question that at all but there hasn’t been one scintilla of evidence offered here that the times the child did go over to the farm [of the father in DeWitt] that she luas any worse ichen she came bach. * * * 'The court has recognized the mother’s claim by giving the custody of the child to the mother and providing that the father could visit the child, have the child visit in the home twice a month. Now, I would be much more impressed by the medical proof here if it wasn’t the fact that the child is going bach and forth from Des Arc to Little Bock, which is not much less distance than to DeWitt and it is a known fact that rice and soybeans are major crops in the Des Arc area the same as they are here. [Arkansas County].” (Emphasis supplied.)

There is no rule more firmly established than the rule that chancery cases are tried de novo on appeal to this court, and the chancellor’s decree will be affirmed unless it is clearly against the preponderance of the evidence or the chancellor has abused his discretion. The oft-stated reasoning that a chancellor who sees the parties and their witnesses and observes their demeanor while testifying, is in a better position to evaluate the credibility of their testimony, applies with special force in a case where child custody is involved. Cheek v. Cheek, 232 Ark. 1, 334 S.W. 2d 669. In Holt v. Taylor, 242 Ark. 292, 413 S.W. 2d 52, we said:

“For a court to choose, in a custody case, between the mother and father, the respective personalities of the parents are vital. It is in this realm that personal observation is of inestimable value. As we stated in Wilson v. Wilson, 228 Ark. 789, 310 S.W. 2d 500: We know of no type of case wherein the personal observations of the court mean more than in a child custody case.’ ”

The chancellor’s experience with these parents began with the divorce proceedings on December' 7, 1966, and continued through two custody hearings on March 17, 1967, and October 24, 1967. The chancellor was well aware of the child’s allergic condition from the evidence of unpaid medical bills, as well as the depositions and personal testimony of the doctors presented at the court hearing. The chancellor did not abuse his discretion in this case and his order is not against the preponderance of the evidence.

The order is affirmed.


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    Mrs. R. J. Buck v. Clifton Brashears, et al
    4685
    433 S.W. 2d 377
    Opinion Delivered November 11, 1968

      William C. Gilliam for appellant.

      James C. Cole for appellees.
   Carleton Harris, Chief Justice.

This litigation involves the question of whether certain property constitutes an ancestral estate. S. E. Connell and Coia Connell, his wife, acquired two parcels of property by purchase, as an estate by the entirety, one parcel being acquired in 1946, and the other in 1951. The Connells were the parents of one son, Granville Connell. This son was the only child, who never married, but lived with his parents and worked with them in the operation of a grocery store. In 1957, S. E. Connell died intestate. The wife and son continued to operate the family business. Mrs. Connell broke her hip not too long after the death of her husband, and was thereafter unable to be active in conducting the business.

In 1965, Mrs. Connell died, leaving a will in which she named the son, Granville, as the sole devisee and legatee. The will was admitted to probate, and a settlement reflecting that Granville was the only heir and sole devisee under the will, was filed and approved by the court. In 1966, Granville Connell died, and B. J. Buck, husband of appellant herein, was appointed administrator. Thereafter, a petition for determination of heirship and lawful distribution was filed by appellees, who are the brothers and sisters, or children of deceased brothers and sisters, of Mrs. Connell. The petition asserted that the two parcels of property herein involved were an ancestral estate from the maternal bloodline, and petitioners contended that, as collateral heirs on the maternal side, they were entitled to the property.

Mrs. B. J. Buck, appellant herein, a sister of S. E. Connell, contends that the properties involved are new acquisitions and should pass ha to the appellees as heirs of Coia Connell and V% to appellant as the heir of S. E. Connell. On trial, the court entered its order determining heirship and authorizing distribution, and held, as to both of these parcels of property, that they were maternal ancestral real estate and should be distributed to appellees alone. From the order so entered, appellant brings this appeal. For reversal, it is first asserted that the real estate is neither a maternal nor a paternal ancestral estate.

Appellant contends that since this real estate was acquired as an estate by the entirety, both husband and wife owned same and each was equally responsible for bringing the property into the family. It is argued that there is no reason to favor either the heirs of the mother or the heirs of the father. From her brief:

‘ ‘ An estate by tbe entirety is unique and should be treated differently than the regular fee simple estate. In the creation of an estate by the entirety the ownership of both husband and wife occurs at precisely the same instant. Both are equally responsible, under the law, for bringing property into the family line and the heirs of both should be considered as sharing equally in the property, regardless of whether the husband dies first or the wife dies first.”

Appellant says there is no precedent in this state for the situation involved herein; that it is only logical and equitable that this court hold that this is not a pure paternal or maternal ancestral estate, but since it contains ingredients of both types of ancestral estates, it should pass V2 to the heirs of the father, and V2 to the heirs of the mother, “preserving the integrity of the original way in which the property was brought into the family equally by both father and mother. ’ ’ There is perhaps something to be said for appellant’s argument when viewed from her standpoint, but we think the law is contrary to the position taken. As far as these particular facts are concerned, this is a case of first impression, but the case of Brown v. Smith, 240 Ark. 1042, 405 S.W. 2d 249 (1966) bears a close similarity, and the reasoning in that case is, we think, applicable here. There, J. A. Bennett and Eula Mercer Bennett, husband and wife, were the parents of one son, Joe Mercer Bennett. J. A. Bennett purchased two parcels of land. Shortly after the purchase, Bennett deeded the property to W. D. Trotter for $1.00 and other good and sufficient consideration, Eula Mercer Bennett relinquishing dower and homestead rights. Two days after receiving the deed, Trotter and wife, for the same recited consideration, deeded the property to Eula Mercer Bennett. Eula Mercer Bennett died in 1940, and J. A. Bennett died in 1957. The son, Joe Mercer Bennett, died in 1963 intestate and without issue. The same question presented in the instant litigation arose at that time, i.e., the collateral heirs of both J. A. Bennett and Eula Mercer Bennett made claim to the property. From the opinion:

“The trial court held, in effect, that upon the death of Eula in 1940 the property, subject only to her husband’s curtesy right (extinguished of course when he died in 1957), descended to the deceased (her son); that her son took the property as a maternal ancestral estate, and; that therefore, at the son’s death, the property ascended to the heirs of his mother (Eula Mercer Bennett).”

Appellants urged that this was error, contending that there was no valuable consideration for the conveyance from J. A. Bennett to his wife; that in reality it was a gift to the wife. This court said:

“Finally, appellants make an extended and forceful argument, supported by citations from many authorities, to the effect that the issue here is controlled by ‘The common law tradition.’ It is pointed out that ‘The policy of the common law was to keep the real property in the line of the ancestor by whom it was brought into the family. ’ Appellants insist that in this instance the mother should be disregarded, because she paid nothing for the property. Hence, it is argued, it was the father who brought the property into the family and who should therefore be treated as the propositus or stock of descent.
“This argument overlooks a basic characteristic of ancestral estates. Such an estate can be treated only by a gift, devise, or inheritance to a person who is related ~by Mood to the donor.”
After quoting some earlier eases, the court stated:
“* * * In the case at har it follows that the tracts now in question were held by Eula S. Bennett as a new acquisition, because she received them from her husband, who was not related to her by blood.”

One thing is certain: Irrespective of when the title to the properties vested in Mrs. Connell, the acquiring of such properties was, legally speaking, a new acquisition —because she was not related by blood to either the grantors or her husband. It is thus apparent that the involved properties were new acquisitions as to the mother, but ancestral property as to the son, Granville.

Appellant also contends that this is not an ancestral estate, because it is essential that there be no consideration other than that of blood in the descent of the property. This statement of the law is correct. Martin v. Martin, 98 Ark. 93, 135 S.W. 348. Appellant states in her brief:

“The devise of these two tracts of real estate was not gratuitous, as the stipulations and evidence introduced clearly showed that Granville Connell worked side by side with his father and mother in acquiring and holding everything which they had during their life time, including the two (2) tracts in question. His labor and industriousness contributed as much to the family fortune as that of any other of the two members of the family.”

In other words, appellant asserts that Granville Connell already held equitable title to the properties at issue. Income tax returns and leases were introduced as a matter of endeavoring to strengthen this argument. There are more answers than one to appellant’s contention, but it is unnecessary to discuss them here, for there is nothing in the record which shows that Gran-ville became owner of the tracts in any manner, or for any reason, other than as a gift. The will of Mrs. Connell recites, “I give, devise and bequeath to my son * * Although several witnesses testified for appellant, no one said that either Mr. or Mrs. Connell ever made any remarks indicating that their son was part owner of the properties (nor, for that matter, was there any evidence that Granville ever told anyone before the death of either parent that he was part owner). In fact, the settlement of his father’s estate reflects that Mrs. Connell was the owner of these tracts, and Gran-ville approved the settlement. Likewise, the final settlement of Mrs. Connell’s estate reflects, and the order of distribution find, that Granville was the only heir at law, and the sole devisee under the will of Mrs. Connell; that he was entitled to receive these particular properties (along with others) as the sole heir of the decedent.

The court did not commit error.

Affirmed.

      The petition likewise asserts that at the time of his death, Granville Connell owned real estate which was an ancestral estate from the paternal side, “and which this court has already vested in the bloodline on the paternal side.”

      Of course, the conveyance itself was from Trotter and wife to Eula Mercer Bennett, but apparently all parties agreed that the conveyances from Bennett to Trotter, and Trotter back to Eula Mercer Bennett were made for the purpose of giving Mrs. Bennett the title to the property. In other words, Trotter was simply a “straw man.”

      In other words, the result is the same if (1) Mrs. Connell became an owner and possessor per tout at the time of the conveyances to her and Mr. Connell, his like interest being terminated upon death — or (2) if Mrs. Connell had an undivided interest (or even only a half interest) in the properties until Mr. Connell’s death, and absolute title vested in her at that time.


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    Midwest Buslines, Inc. v. Great Southern Coaches, Inc.
    4701
    433 S.W. 2d 374
    Opinion Delivered November 11, 1968

      Warren & Bullion and D. Paul Stafford (of counsel) for appellant.

      Smith, Williams, Friday & Bowen by John T. Williams & William H. Sudton for appellee.

   George Rose Smith, Justice.

The appellee, Great Southern Coaches, Inc., is a comparatively small bus company that was organized in 1942. Its headquarters are in Jonesboro. When the present application for a certificate of convenience and necessity was filed, Coaches was operating intrastate in northeast Arkansas and interstate to St. Louis and Memphis. Among its schedules were two round trips daily from Paragould to Jonesboro to Newport.

In the case at bar Coaches applied to the Interstate Commerce Commission and to the Arkansas Commerce Commission for permission to extend the line in question from Newport to Little Rock, down U. S. Highway 67, thereby providing through service from Paragould, Jonesboro, and most intermediate points to Little Rock, and to increase its schedules upon the new route to four round trips daily. The application was resisted by the appellant, Midwest Buslines, Inc., which was the only bus company operating from Little Rock to Newport along the route that Coaches proposed to enter. By consent the interstate and intrastate applications were heard together, the Interstate Commerce Commission appointing the Honorable David Panich, a member of the Arkansas commission, as its hearing officer in the case. This appeal, which of course involves only the intrastate application, is from an order of the Arkansas Commerce Commission (affirmed by the circuit court) granting Coaches’ application to extend its service.

Coaches introduced one company witness and almost a hundred public witnesses to establish its contention that the proposed single-line through service from Paragould to Jonesboro to Newport to Little Rock will benefit the general public. Midwest’s only testimony was given by two company witnesses. They testified in substance that: (a) Midwest, as a part of its interstate and intrastate service, operates six trips daily in each direction between Little Rock and Newport; (b) Midwest’s seating capacity is sufficient to meet the demand for transportation between those two points; (c) Midwest’s equipment is of excellent quality; and (d) the granting of Coaches’ application will create a competitive situation substantially reducing Midwest’s revenues from this particular part of its transportation system. It is fair to say that Coaches does not seriously dispute any of the four assertions of fact that we have just enumerated.

The pivotal issue before us, emerging from an extensive record, is really a narrow one. Did Coaches sustain its burden of proving that, should its application be granted, the ensuing benefits to the general public will outweigh the ¡ensuing loss of revenue to be suffered by Midwest?

Upon that vital issue Midwest’s contentions are simple. Midwest says — and we agree — that Coaches’ ninety-odd public witnesses are not complaining about the quality or adequacy of Midwest’s bus service between Little Rock and Newport. Instead, says Midwest, the witnesses’ real grievance centers upon the inconvenience of having to change bus lines at Newport and of having only two daily trips by Coaches to connect with Midwest’s six trips. Coaches, for example, provides no night service to or from Newport, so that its passengers cannot conveniently ride the Midwest buses that reach Newport at night.

Midwest insists, first, that Coaches could improve the over-all service in the area by increasing its round trips from Paragould to Newport, so that Coaches’ patrons could take full advantage of the six round trips provided by Midwest between Newport and Little Rock. Second, Midwest contends that its suggested solution of the problem — for Coaches to increase its daily round trips from Paragould to Newport — would leave as Coaches’ only complaint the inconvenience suffered by its passengers and shippers in having to change buses at Newport. That inconvenience, argues Midwest, is not alone a sufficient basis for granting Coaches’ application for a through-service permit.

We are not convinced by either aspect of Midwest’s argument. Midwest, a subsidiary corporation, is part of an integrated bus system, composed of various companies known collectively as Continental Trailways, which is shown to be the second largest bus carrier in the world. Under Midwest’s suggestion, Coaches would apparently become in part a feeder line to serve Continental Trailways at the Newport terminal. Uncontradicted, however, is the testimony of Coaches’ company witness that it would lose money if it attempted to increase its round trips to Newport only. “It is impossible to provide such service and secure people to ride the bus when you start out and have to change in fifty miles.” According to this witness, the longer trip to Little Rock is essential if the expanded service is to be economically justified.

Second, the difference between single-line service and interline service is not the only point of contention here, as it was in cases cited by Midwest. Among the authorities cited is Continental Southern Lines v. United States, 265 F. Supp. 218 (W.D. La. 1967). There the court, in sustaining the Interstate Commerce Commission’s denial of Continental’s application for a permit to extend its service, approved this excerpt from the Commission’s opinion:

“In our opinion, applicant has failed to show a need for the proposed service. Applicant has the burden of establishing by clear and convincing evidence that available carriers cannot or will not meet a substantial public demand or need. The public witness support arises from a desire for single-line transportation. Although present service is not as convenient as that proposed by applicant, we do not believe that the evidence of record reveals any material deficiencies in existing service sufficient to justify the operations proposed herein. The public witnesses in support of the application use bus service infrequently. Moreover, we are not convinced that the proposed operation would produce any substantial increase in its use.
‘ ‘ Although the public is normally entitled to the best available transportation facilities, the additional convenience of persons residing adjacent to or in the immediate vicinity of the proposed route must be measured against the effect such facilities would have on existing transportation service. Protestant is able to handle additional passengers and meet the reasonable transportation requirements of the supporting shippers. We conclude, therefore, that applicant has failed to meet its burden of proof, and that no public need has been shown for the service proposed. To grant the application would merely result in the introduction of a single-line operation between Meridian and Tuscaloosa in competition with a carrier whose service has not been shown to be either inadequate or unsatisfactory.”

It will be noted that the Commission attached importance to the want of proof that the proposed single-line service would produce any substantial increase in the demand for bus service. By contrast, in the case at bar there is an impressive volume of proof adduced to show that the granting of Coaches’ application will generate new business for the bus industry in northeast Arkansas. Among the public witnesses, college officials and parents explained the transportation problem of college students in the area. Others who will utilize Coaches’ expanded passenger service include veterans traveling to and from Government facilities in Little Rock, at least eight witnesses who will regularly use the new schedules to visit members of their families, and many others. Equally persuasive is the testimony about the increased use of motorbus parcel-delivery service that can be expected from banks, utility companies, auto parts suppliers, surgical supply companies, florists, architects, and others who need a quick and reliable means of obtaining small but essentially important packages from Little Rock and elsewhere.

In holding that the Arkansas Commerce Commission’s decision is not against the weight of the evidence we do not imply that the issues are so simple as to be free from doubt. But, as we pointed out in Wisinger v. Stewart, 215 Ark. 827, 223 S.W. 2d 604 (1949): “A point not to be lost sight of here is that de novo review . . . must not proceed as though the Public Service Commission [Commerce Commission] did not exist and had never held a hearing. A hearing' has been held, and the Commission which held the hearing has had the advantage of seeing and hearing the parties and witnesses face to face, whereas the Circuit Court and this Court review the evidence from the record only.” Moreover, as we went on to say in that case, “it is the duty of the courts to accord due deference to the finding of the Commission, since it is the agency upon which the General Assembly has placed the duty to investigate and determine, in the first instance, the need for any proposed motor carrier service.” After a careful study of this record we cannot say that the challenged order is against the preponderance of the proof.

Affirmed.