author: Lyle BrowN, Justice.

text:
    Mrs. Doris McCastlain, Comm. v. R. & B. Tobacco Co.
    5-4140
    411 S. W. 2d 882
    Opinion delivered March 6, 1967

      Lyle Williams, A. W. Nisbet, Hugh L. Brown and Catlett & Henderson, for appellant.

      Knox Kinney and Neill Bohlinger, for appellee.
   Lyle BrowN, Justice.

This appeal by the State Bev-enue Commissioner comes from a successful attack by B. & B. Tobacco Company on the constitutionality of Begulation I, promulgated by the Commissioner of Bev-enues for the State of Arkansas. As a prerequisite to the granting of a cigarette wholesaler’s permit, the regulation requires the appellant to produce letters of credit from three-fourths of the manufacturers of cigarettes having general distribution in Arkansas.

R. & B. Tobacco Company is a partnership engaged in the wholesale tobacco business in Forrest City. On or about September 25, 1964, R. & B. made application to the State Commissioner of Revenues for a permit to distribute cigarettes at wholesale in the State. Under authority of Ark. Stat. Ann. § 84-2302 (Repl. 1960), the Revenue Commissioner called for R. & B. to produce letters from all cigarette manufacturers having general distribution in Arkansas, containing the assurance that they would sell to R. & B. on open account.

Efforts to obtain these letters were unsuccessful and the permit was denied. R. & B. filed suit in the Pulaski Chancery Court against the Commissioner, successfully attacking the constitutionality of that portion of Ark. Stat. Ann. § 84-2302 which required letters from cigarette manufacturers as a prerequisite to the granting of a permit. However, the permit was denied because one of the partners had not been a resident of Arkansas for the required length of time. Neither the Revenue Commissioner nor R. & B. appealed from the rulings of the Chancellor.

On November 29, 1965, the Commissioner promulgated Regulation I, purporting to proceed under the authority of Act 416 of the Acts of 1941, as amended. Regulation I reads as follows:

“Regulation I. An applicant for a Cigarette Wholesaler Permit shall attach to the application letters from not less than three-fourths of the cigarette manufacturers who have general distribution of cigarettes in Arkansas that such manufacturers will ship on open account on approval of the application. This regulation promulgated under authority of and in compliance with Act 183 of 1953.”

Within a few months thereafter, and upon completion of the requirement for residence, R. & B. resubmitted its. application. The Commissioner declined to issue a permit for lack of compliance with Regulation I. R. & B. filed suit, challenging the constitutionality of Regulation I. From the finding of the chancellor that the regulation was unconstitutional comes this appeal by the Revenue Commissioner.

The first point advanced for reversal is that the sale of cigarettes at wholesale is a privilege, having been so declared by legislative enactment; that our court has recognized the selling of real estate, the operation of a coin-operated jukebox, the act of fortune telling, and the taking of photographs, as privileges. Appellant theorizes that there is more reason for the regulation of the sale of cigarettes as a privilege than for the regulation of the enumerated ventures. The Commissioner supports. the need for Regulation I on the basis that annually the State derives fourteen million dollars from the cigarette tax and this lucrative revenue requires careful control. Regulation I — so says the Commissioner —serves a two-fold protection for the State’s revenues: first, it assures the State that the distributor is financially responsible; and, second, it gives the State a “source control” because the manufacturer furnishes the State a copy of all purchase orders, which in turn assures the State that it gets a proper return of its tax.

R. & B. counters that Regulation I will not necessarily accomplish the alleged purposes expressed by the Commissioner, and secondly, that the regulation in effect . delegates to the cigarette manufacturers,' some eight in number, the power to determine whether a distributor’s permit will be issued. The latter argument is the basis for R. & B. ’s contention that Regulation I constitutes an unlawful delegation of power.

Ark. Stat. Ann. § 84-2325 (Repl. 1960) empowers the Commissioner to make such rules and regulations “as he deems requisite and advisable” for the administration of the licensing Act. However, such regulations must he tested in light of their reasonableness. The fact that they facilitate, in some measure, the enforcement of a valid tax — that fact, standing alone — is not sufficient.

Will letters fror the manufacturers, to the Commissioner, stating that tney will ship E. «fe B on open account, furnish the assurance that E. & B. is financially responsible? The distributor might well be financially responsible as of the dates of the letters; yet, as to future financial responsibility, the situation might well change. This could occur without the knowledge of the manufacturer, and, if the manufacturer had the knowledge, it is under no obligation to transmit such information to the Commissioner.

Witness E. E. McLees testified that Eegulation I would give the State “a source control absolutely.” He justified this statement on the basis that the letter of assurance would cause a manufacturer to furnish the State a copy of all purchase orders, by the distributor “which would insure that the State gets the proper return of its tax.” We find nothing in the record to establish this obligation on the part of the manufacturer. Furthermore, let us assume that E. «fe B. obtained the required letters from three-fourths of the manufacturers. How would this insure the State “control absolutely” over the balance of the manufacturers?

There is yet another reason, and probably more paramount, for holding Eegulation I invalid. It makes possible the denial to a citizen of Arkansas, otherwise qualified, of the right to operate a lawful business in this State. This can be effectuated by a small group of out-of-state manufacturers, who — for reasons they are not required to reveal — do not desire to place a new distributor in competition with their established customers.

R. & B. has been engaged in the tobacco and notions business since 1964, with headquarters in Forrest City, merchandising their wares in several surrounding counties. Its annual sales approximate three hundred thousand dollars. It shows a net worth of $102,660.00. One of the partners owns substantial real estate. It has open accounts with major companies and discounts all bills. Credit has never been refused. Prior to this partnership being formed, one of the partners was a factory representative for two major tobacco companies, and also a district manager for a cigarette company. An investigation of the partnership by the Commissioner’s office revealed nothing that would indicate the partners were anything other than business men of the highest caliber. Mr. MeLees testified that the Commissioner did not question their integrity or their financial standing. The sole reason for the denial of the permit, according to Mr. MeLees, was the failure of R. & B. to furnish the required letters.

We point up the foregoing facts to emphasize the danger of Begulation I. These partners had the finances, established business and credit connections, experience, and unquestioned integrity; yet they are denied the privilege of adding cigarettes to their lines, and solely because these out-of-state manufacturers choose, for reasons known only to them, to prevent it.

Finally, an examination of the record discloses a very peculiar situation. R. & B. purchases chewing tobacco from a subsidiary of Liggett & Meyers; it purchases tobacco, other than cigarettes, from U. S. Tobacco Company and Phillip Morris Company. These purchases are made on open account, all of which R. & B. keeps current. Yet, these major cigarette manufacturers choose not to sell B. & B. their cigarettes. The Commissioner of Bevenues and R. & B. are powerless to determine the reason. By Begulation I, the Commissioner has surrendered all discretion in this respect, leaving the matter of R. & B.’s credit rating in the hands of these foreign corporations.

We hold Regulation I :to he an unreasonable exercise of the rule-making power of the Commissioner of Revenues. It is in violation of Art. 2, § 2, of the Constitution of Arkansas, in that it imposes an unusual and unnecessary restriction on a lawful occupation. See Noble v. Davis, 204 Ark. 156, 161 S. W. 2d 189 (192).

Affirmed.


source: Caselaw Access Project

author: Lyle BeowN, Justice.

license: Public Domain

text:
    Charles L. Ray v. Lee Mays
    5-4152
    411 S. W. 2d 865
    Opinion delivered March 6,1967

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

      Jack Sims and Don Ryan, for appellee.
   Lyle BeowN, Justice.

The only question on appeal is whether the defendant-appellant, Charles L. Ray, is liable for entrusting a vehicle to a driver whose negligence caused injuries to plaintiff-appellee, Lee Mays. The jury awarded Lee Mays damages on the theory of negligent entrnstment, and Charles L. Ray appeals.

The collision which caused injuries to Lee Mays occurred on October 3, 1964. Mays, was struck by a truck being operated by Percy Lee' Sebren, the truck having been entrusted to Sebren by appellant, Ray. For approximately three months prior to early September 1964, Percy Lee Sebren and Charles L. Ray were engaged on the same work project. They were hauling road construction materials, working out of a quarry in the area of Sweet Home. Approximately one month before the accident in which Lee Mays was injured, Charles L. Ray left this job and returned to his home in Harrisburg. Before Ray left, the two men — Sebren and Ray — consummated some type of arrangement whereby Sebren obtained from Ray the truck Sebren was driving when he struck Lee Mays.

Evidence introduced on behalf of the injured party, Lee Mays, was pointed toward his theory that the driver, Sebren, was in the habit of becoming intoxicated and driving a car in this condition, and that. Ray, the owner of the truck, knew or should have known of this habit. Sebren was intoxicated at the time Mays was injured.

At the close of all the testimony appellant Ray unsuccessfully moved for a directed verdict, alleging that evidence introduced was insufficient to cause the doctrine of negligent entrustment to be invoked.

We permit proof of the habit of driving while intoxicated to be established by specific acts or by general reputation in the community where the driver resides. Rook v. Moseley, 236 Ark. 290, 365 S. W. 2d 718 (1963).

Plaintiff sought to prove by three witnesses that Sebren had a general reputation in the city of his residence for driving while intoxicated. We agree with appellant that the evidence on this point was insufficient. In fact, we gather that the trial conrt was of the same opinion. So we tarn to a careful examination of the evidence to determine whether plaintiff made a jury question grounded on specific acts of drunken driving, of which the defendant Ray had knowledge, actual or constructive.

Joe Elmer Johnson was truck foreman on what we will call the Sweet Home haul. He directed the truckers where and what to haul and did the hiring and firing. Haulers' Sebren and Ray worked under Johnson. It was witness Johnson’s, information that Sebren’s wife had at times ridden with Sebren to keep him on the job and out of taverns. On occasions he could smell alcohol on Sebren’s breath. Johnson testified that on the day of the accident, Sebren was so intoxicated that he was in no condition to drive.

Plaintiff introduced the discovery deposition of the defendant, Ray. He testified that he would “guess” Sebren to be a chronic drinker. When pressed for a reason, his reply was that it was because of Sebren’s actions and “the way people talked on the job.”

“Q. Did the talk go around to the effect that he does drink quite a bit?
“A. Well, yes.
“ Q. Is that talk to the effect he drinks and drives ?
“A. Well, some of them say he was drinking. Yes. He would come up to the quarry and sit there, you know, through the night, and [you could] see a couple of six-pack beer cans.
“Q. In other words different ones mentioned he does drink while he works. Is that it?
“A. Yes, sir.”

At another point in his deposition, Ray made a significant statement about his source of knowledge regarding Sebren’s drinking and driving habits. “He [Sebren] was on the road. This is one thing we do — if a guy acts funny among us truckers we pass, the word along, and then you know to watch the truck. ’ ’ The jury could very well have interpreted this statement to mean that the word had been passed to the truckers that Sebren was driving while drinking to such an extent that the other truckers were watching out for him. It should be remembered that this witness is the defendant, Charles L. Ray.

On cross-examination, Ray stated that his information about Sebren’s drinking and driving came to Ray after* the collision. On the other hand the jury could well have concluded that Ray’s information came to him before the collision. This is because Ray testified he left the Sweet Home job some thirty days before the accident and returned to work in his home town of Harrisburg. Also, some of Ray’s other testimony herein recited does not comport with the contention of after-acquired knowledge.

On the question of the known drinking habits of Sebren, Mrs. Charles Ray was called as a witness for the defendant. She lived at a trailer court with her husband near Pine Bluff during the months when Mr. Ray was hauling from the quarry. She testified she neither, saw nor heard anything with reference to Sebren being a drinking man. The defendant took the stand and was questioned regarding his knowledge of the drinking and driving habits of Sebren. We are justified in saying that his testimony was inconsistent with the statements introduced by plaintiff from Ray’s discovery deposition. In another respect, some of his testimony was damaging to his own contention. For example, he testified on cross-examination that he heard other drivers talk about Sebren’s drinking on the job. He further testified that everything he saw and heard with respect to Sebren’s drinking, in point of time, was before he left the job and returned to Harrisburg. Suffice it to say that there was sufficient evidence to submit to the jury the question whether Ray knew of Sebren’s drinking and driving habits at the time he made the truck available to him. Furthermore, had this information come to Ray’s knowledge after Ray placed Sebren in possession of the truck and prior to the accident, it would have then become Ray’s duty to exercise a reasonable effort to void the possessive arrangement with Ray.

Affirmed.


author: Johk A. FoglemaN, Justice.

text:
    Sterns M. Law, Jr. v. Scottie Collins, et ux
    5-4144
    411 S. W. 2d 877
    Opinion delivered March 6, 1967

      Mobley & Bulloch, for appellant;

      Williams & Gardner, for appellee.
   Johk A. FoglemaN, Justice.

Appellant asks us to reverse the action of the trial court granting appellees a new trial upon the grounds of inadequacy of the jury verdict in favor of appellees and newly discovered evidence.

The parties were involved in an automobile collision on October 13, 1965. Appellee Scottie Collins and appellant Stems M. Law were the drivers of the respective vehicles involved, both of which were proceeding in an easterly direction on Highway No. 64 immediately prior to the collision. Mrs. Collins was returning to her home from her work as a housekeeper, driving a pickup truck which belonged to her husband, appellee Earnest Collins. She either stopped or slowed her vehicle to make a left-hand turn onto Mill Creek Road and was struck by the vehicle driven by Law who was approaching from her rear. There was a dispute as to whether a proper signal was given by Mrs. Collins before the collision.

Appellees’ complaint charged that appellant was negligent in several particulars, most of which related to' the disregard of the superior right of the forward vehicle to the use of the highway. Both Law and Mrs. Collins suffered injuries and the Collins vehicle was damaged. In his answer, appellant included a counterclaim for medical expenses on account of injuries received by his wife and minor children who were passengers in the vehicle driven by him.

Trial was had on April 19, 1966, resulting in a jury verdict for appellee Scottie Collins and assessing her damages at $750.00. A verdict was directed in favor of Earnest Collins on the counterclaim of Law. The jury was instructed that if it found Scottie Collins free of negligence as a proximate cause of the collision, it should award the full amount of any damages she sustained by reason of the negligence of appellant, but that if it found Law free of negligence, then he was entitled to recover from Mrs. Collins the full amount of his damages proxi-rnateiy caused by any negligence on her part. The instruction (AMI 2104) then went into application of the comparative negligence statute. The court then gave AMI 2201 telling the jury that if it found for Mrs. Collins on the question of liability, it must fix the amount of her damages and gave them the measure thereof. The jury was also instructed that if it found for appellant Law on the question of liability, it must fix the amount of his damages.

The court submitted the following forms of verdicts: We, the jury, find for Scottie Collins on her Complaint, and against Sterns M. Law Jr., the defendant, and assess her damages at-dollars.
We, the jury, find for Earnest Collins on his Complaint, against Sterns M. Law Jr., the defendant, and assess his damages at-dollars.
We, the jury, find for Sterns M. Law Jr., on his Counterclaim, and against the plaintiff, Scottie Collins, and fix his damages at-dollars.
We, the jury, find against Sterns M. Law Jr., on his Counterclaim, and for the defendant, Scottie Collins.
We, the jury, find for Sterns M. Law Jr., the defendant, and against Scottie Collins, the plaintiff, on their Complaint.

The court instructed the jury that its verdict would be in one of the forms submitted. No objection was made by either party.

After deliberation, the jury first returned into court a verdict finding for appellee Scottie Collins on her complaint and fixing her damages at $750.00. This was the only verdict returned at this time. The trial judge then, with consent of counsel, directed the jury to retire and assess the damages of Earnest Collins sin.ce there was no negligence on his part. Thereafter they returned with such a verdict fixing his damages at $200.00.

While it seems that this is a case which might better have been submitted to the jury on interrogatories, or at least that there might better have been more explicit instructions about the use of the forms of verdicts, we think that the only proper conclusion to be reached is that the jury found that Law was guilty of negligence in a greater degree than was appellee Scottie Collins.

The granting of a new trial to Earnest Collins was not an abuse of discretion. We have always followed the rule that the action of the trial judge on a motion for new trial upon a statutory ground should not be reversed in-the absence of abuse of his. discretion. The? claim of Earnest Collins was only for property damage. He was the only witness on the amount of his damages. He testified that his vehicle was worth $600.00 less after the collision than it was before. He offered a repair bill totaling. $599.85. There is some question, whether the jury ever saw or had the repair bill read to them, but Collins did admit that some of the items thereon may not have resulted from the collision. These items, however, would account for a reduction in damages in an amount far less than $400.00. Error in the assessment of the amount of recovery, whether too large or too small, where the action is for the injury of property, is one of the statutory grounds for a new trial. Ark. Stat. Ann. § 27-1901 (Repl. 1962). While the testimony of a party is. not to be treated as uncontradicted in testing sufficiency of evidence to support a verdict, the trial judge who saw and heard the witnesses apparently found that his testimony was such that a $200.00 verdict was erroneous.

Quite a different situation presents itself in. the case of Mrs. Collins. Since the trial judge instructed the jury on the law of comparative negligence and told them to return their verdict on one of the forms submitted, it is proper to assume that they found both parties negligent, but appellant more negligent than Mrs. Collins. It would follow that they made an appropriate deduction from the damages awarded her in accord with the court’s instruction. The record, of course, is silent as to the amount of damages they found before the deduction and as to the percentage of negligence they attributed to her. Mrs. Collins testified that her medical expenses consisted of:

St. Mary’s. Hospital $178.90
Millard-Henry Clinic 114.00
Jones-Murphy Clinic 125.00
Freiderica Pharmacy 13.50
C & D Drug Store 113.25

She also testified that she lost twenty weeks work at one time and six and one-half weeks at another, but that she had earned $84.00 during the latter period. She said that she earned $40.00 per week when working.

It was admitted that Mrs. Collins had been nervous and unable to sleep following major surgery sometime previous to the collision, and that she was taking medication on account of that condition. She said that the nerve pills she took for the pre-existing condition, and continued taking after the collision, cost fifteen, cents, per day.

The actiom of the court in granting a new trial to Mrs. Collins on the basis of inadequacy of damages must be viewed in the light of the prohibition in Ark. Stat. Ann. § 27-1902 (Repl. 1962) [Civil Code, § 372] which states:

“A new trial shall not be granted on account of the smallness of damages in an action for an. injury to the person or reputation, nor in any other action where the damages shall equal the actual pecuniary injury sustained.”

While this precise section has not been construed by us, courts of other states having the identical language have held that this statute prohibits, the granting of new trials in any action for personal injuries. See Sharpe v. O’Brien, 39 Ind. 501 ; Blakely v. Omaha & C. B. Street R. Co., 94 Neb. 119, 142 N. W. 525 ; O’Reilly v. Hoover, 70 Neb. 357, 97 S. W. 470 ; Murray v. Decker, 132, Okla. 188, 270 P. 38. i

It has even been held that this section prevents the granting of a new trial when the verdict is for nominal damages only in spite of evidence of substantial damage. Norton v. Lincoln Traction Co., 92 Neb. 649, 138 N. W. 1132 ; Langdon v. Clarke, 73 Neb. 516, 103 N. W. 62 ; Woodard v. Sanderson, 83 Okla. 173, 201 P. 361.

Although the statute has not been mentioned, this court has refused to follow this latter most narrow construction. Our cases indicate an inclination to permit a new trial for inadequacy of damages where evidence clearly establishes pecuniary injury in excess of the damages. Dunbar v. Cowger, 68 Ark. 444, 59 S. W. 951 (motion ordered granted as being contrary to law and evidence); Carroll v. Texarkana Gas & Electric Co., 102 Ark. 137, 143 S. W. 586 (as having been in disregard of undisputed evidence); Martin v. Kraemer, 172 Ark. 397, 288 S. W. 903 (as not being supported by substantial testimony). This conforms with the construction given to statutes of other states which differ from ours only in that the word “or” is used in place of “nor”. See Drury v. Franke, 247 Ky. 758, 57 S. W. 2d 969, 88 A.L.R. 917 and annotation, 88 A.L.R. 948. The distinction made in some of the opinions seems to be upon the basis that by use of the word “or” actions for injury to the person, actions for injury to reputation and any other actions are alternates, each limited by the words “where the damages shall equal the actual pecuniary injury sustained.” The use of thé word “nor” seems to be taken in these opinions to separate the clauses so that only actions other than those for injury to the person or reputation are affected by the quoted words as to pecuniary damage. The latter construction would prohibit the granting of a new trial for smallness of damages in any action for personal injury. This would be difficult to harmonize .with our decisions above cited. It has been held in some states whose statutes contain the word “nor” that the statute permits the granting of new trials where the damages, awarded are not equal to the pecuniary loss which was capable of accurate computation. Bailey v. Cincinnati, 1 Hand. 438, 12 Ohio Dec. Reprint 225 ; Landneier v. Cincinnati, 7 Ohio N. P. 188, 4 Ohio Dec. N. P. 265 ; Carpenter v. City of Red Cloud, 64 Neb. 126, 89 N. W. 637 ; Spirk v. Chicago, B. & Q. R. Co., 57 Neb. 565, 78 N. W. 272.

The proper construction of this statute is complicated by reason of the fact that our Civil Code was adopted from the Kentucky Code [See Crawford, Civil Code of Arkansas, Ann.,] yet the Kentucky Code uses the word “or”. Thus, the Kentucky cases (which ordinarily are at least persuasive in Arkansas) holding that a new trial may he granted where damages awarded in a personal injury action were not equal to the actual pecuniary injury sustained, are of questionable assistance. The most favorable construction given these acts would only permit the granting of a new trial where the damages were not equal to the total expenditures of the injured party for medical bills, incidental expenses and loss of time proven with reasonable mathematical certainty. This would not take into consideration pain and suffering, mental anguish, impairment of earning capacity and such other items as could not be accurately computed.

Even if we give this statute the construction most favorable to appellee, we do not believe the granting of a new trial on this ground can be sustained. Mrs. Collins ’ testimony showed medical expenses of $544.65 and loss of time totaling $976.00, or total pecuniary loss of only $1,520.65. On the other hand, appellant contends that only $392.65 of this was attributable to her present injury, and the jury was justified in deducting $28.05 for nerve pills (at fifteen cents per day from the date of the collision to the time of trial). It might have been justified in deducting $100.00 for an examination only by Jones-Murphy Orthopedic Clinic. In any event, it seems certain that the jury found pecuniary loss totaling less than twice as much as the verdict. In that case, the jury’s verdict for more than one-half of the pecuniary loss of Mrs. Collins could not be said to be an award of damages less than her actual pecuniary injury. This compels us to find that the trial judge, who stated that entitlement to a new triál on this ground was debatable, abused his discretion in this regard.

Appellees, however, contend that a new trial was properly granted on account of newly discovered evidence. In support of their motion on that ground, they present the affidavit of one Edward Thompson. Thompson claims to have seen the collision and, after having proceeded immediately to the scene, to have heard appellant say, “I was in the wrong and I have insurance to cover it.” Of course, in order to be the proper basis for a new trial, the evidence must not be cumulative. Kearns v. Steinkamp, 184 Ark. 1177, 45 S. W. 2d 519. The fact that the additional testimony would be cumulative only to the testimony of a party to the action does not afford any better basis for the granting of a new trial. Robertson v. Chicago, R. I. & P. Ry. Co., 121 Ark. 233, 180 S. W. 507. Thompson’s testimony as to the manner in which the collision occurred and as' to the giving of a left-turn signal by Mrs. Collins is purely cumulative to the testimony of witnesses to the same facts, other than Mrs. Collins. As to the admission of being in the wrong, the testimony would only be cumulative to the testimony of Earnest Collins about appellant’s statements which was:

"“Well, I went back over there'where the boy was at, they showed me who he was-, and I said to the boy— I said, ‘How come you to hit my wife in the back'end of the- truck,’ and he said, ‘Well, there was just one thing about it, I either had to hit your wife — I seen her hand out and the blinker, but I was going fast enough I couldn’t stop.’ He said, ‘If I had went to the right, I’d throwed my family in the? river, and I seen I was meeting another car, and there wasn’t but one thing for me to do’ — said, ‘It was better to kill one? — knock one off the road then if was to . kill the five in my family, and I let her have it.’ That’s the words he said. ’ ’

We do not believe that appellees would contend that the portion of Thompson’s statement about insurance coverage would be admissible in evidence, separate and apart from the admission of liability. This court has said that such unnecessary reference to insurance is improper and when pursued, highly prejudicial. Peay v. Panich, 191 Ark. 538, 87 S. W. 2d 23. It is true this court held that such a statement made in connection with an admission of liability as part of the res gestae was admissible in Jackson v. Ellis, 213 Ark. 826, 212 S. W. 2d 715, by a divided court. It was justified by the majority on the basis that there was no planned and independent purpose by counsel to emphasize insurance or to draw from the witness, any statements made with conscious reflection influenced by considerations other than the impulse to translate action into words. While Thompson’s statement may have been part of the res gestae, it would be difficult to say that this portion of the statement now revealed could be offered without conscious purpose.

The order of the trial court granting a new trial is affirmed, insofar as it relates to appellee Earnest Collins. The cause is reversed and remanded insofar as it relates to the appellee Scottie Collins and the trial court is directed to enter judgment in her favor based upon the jury verdict.

       ($25.00 was deducted for a medical report by direction of the court.)


author: CoNLey Byrd, Justice.

text:
    Mack Earnest Lee Evans v. State
    5249
    411 S. W. 2d 860
    Opinion delivered March 6, 1967

      A. Jan Thomas Jrfor appellant.

      Joe Purcell, Attorney General; Don Langston, Ásst. Atty. Gem., for appellee.
   CoNLey Byrd, Justice.

This is an appeal by appellant, Mack Earnest Lee Evans, from a proceeding under Criminal Procedure Rule No. 1. Per Curiam Order, 239 Ark. 850a. In the trial court, petitioner relied upon the same two grounds that are presented here for setting aside his grand larceny conviction and sentence of twenty-one years, namely:

1. He was originally charged with CAR THEFT, but after being found guilty he was sentenced and committed for GRAND LARCENY.
2. There was a suppression of evidence on the part of the prosecution in that no witnesses were allowed to testify in his benalf.

Section (A) of Criminal Procedure Rule No. 1 sets up the grounds on which a conviction and sentence may be attacked in a post-conviction proceeding; Sections (C) and (E) set out the duties of the court with respect to holding a hearing. These sections are as follows:

“(C) If the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, the trial court shall make written findings to 'that effect, specifying any parts of the files or records that are relied upon to sustain the court’s findings.
“(E) When a motion is filed in the circuit court, mentioned in Paragraph (A) above, and the court does not dispose of the motion under Paragraph (C) above, the court shall cause notice of the filing thereof to be served on the prosecuting attorney; and on the motion the court shall grant a prompt hearing with proceedings reported. The court shall determine the issues and make written findings of fact and conclusions of law with respect thereto. If the prisoner desires to be present at the hearing for taking of testimony the court shall order his presence. ’ ’

The trial court, after appointing counsel as provided in Section (D) of Criminal Procedure Rule No. 1, proceeded under Section (C) above. At this proceeding there was introduced the criminal docket sheet in case No. 9545, out of which appellant’s conviction and sentence arose; the penitentiary commitment; a subpoena issued on behalf of the prosecution to the sheriff of Pulaski County for Parvin Romines; a subpoena issued to the sheriff of Crittenden County on behalf of the prosecution for Charley Byrd, Bill Billings, James Gr. Moore, Parvin Romines, E. W. Cramberg, Everett Jar-mon, Douglas Bray, Bobby Keen, and Herman Lee Morris; the form of verdict signed by Carl D. White, foreman; the capias upon which the appellant was arrested for grand larceny; and the information charging appel-lantfwith the crime of grand larceny in that he did “ steal and drive away a 1953 Ford automobile, the property of one Herman Lee Morris, of a value of $400.00 with the intent to deprive the? said owner of his property and the value thereof.” The docket sheet and the penitentiary commitment show that appellant was represented in that trial by Cecil Nance, a reputable attorney.

Based upon the foregoing record, the trial court, in the absence of petitioner but in the presence of his current court-appointed counsel, dismissed appellant’s petition. In so doing, the trial court found as follows:

“That the petition was not verified as required bj the Per Curiam Order of the Supreme Court of Arkansas, dated October 18, 1965, Section. A; but notwithstanding this finding, the Court also finds that the allegation of the defendant stating that this defendant was charged with car theft and thereafter found guilty, sentenced and committed for Grand Larceny, is without merit for the reason that the docket sheet in Cause 9545 and the original files therein, introduced by the prosecuting attorney of this district with permission to withdraw and substitute certified copies thereof, which is the original cause complained about, , charges this defendant with the crime of Grand Larceny in that he on or about November 5, 1960, in Crittenden County, Arkansas, did unlawfully, wilfully and feloniously take, steal and drive away a 1953 Ford Automobile, the property of one Herman Lee Morris, of a value of $400.00, with the intent to deprive the said owner of his property and the value thereof; etc.
“The Court further finds that this defendant was charged by Information of the prosecuting attorney with the crime of Grand Larceny filed February 9, 1961, in Cause 9545; that on February 10, 1961, the defendant was arraigned and entered a plea of Not Guilty, and that being without counsel, the Court appointed Honorable Cecil Nance (Sr.), an attorney of the highest standing before the bar of this Court, with many years of experience in both criminal and civil practice, to represent this defendant; that on February 20, 1961, on motion of the defendant, the cause was continued for the term; that on September 25, 1961, the defendant announced ready for trial and a jury was empaneled and sworn and a trial had, the jury returning a verdict of Guilty and fixing punishment at Twenty-one years in the Arkansas State Penitentiary.
“The Court further finds that there was no suppression of evidence on the part of the prosecution and that the defendant received the best counsel obtainable before this bar, received a fair and impartial trial before a jury of his peers, and a verdict of Guilty was rendered against him and he was sentenced thereunder.”

The action of the trial court with respect to the first contention of appellant was certainly in accordance with the procedure set out in Criminal Procedure Rule No. 1. There can be no doubt that the defendant was charged with grand larceny and that he knew of the crime with which he was charged. The docket sheet shows an arraignment and a plea of not guilty. Furthermore, our statute, Ark. Stat. Ann. § 41-3901 (Repl. 1964), defines larceny as. “the felonious stealing, taking and carrying, leading, riding or driving away the personal property of another.” Ark. Stat. Ann. § 41-3907 (Repl. 1964) provides that where the value of the property stolen exceeds the sum of $35.00 the punishment shall be imprisonment of not less than one or more than twenty-one years.

Appellant’s second contention, however, contains an issue of fact not shown by the record. Under Section (E) of Criminal Procedure Rule No. 1 above, the trial court should have held a hearing or pursued the matter further by ascertaining through pretrial procedures that no bona fide issue existed.

A certain amount of discretion in the matter of post-conviction proceedings must be left to the trial court, especially with respect to pre-trial procedures. Townsend v. Sain ; 372 U. S. 293, 9 L. Ed. 2d 770, 83 S. Ct. 745 (1963). For instance, in this case the trial court, could properly have asked appellant to advise the court, by pleading or otherwise, the names of witnesses, who were not allowed to testify in his behalf. In addition, the trial court could also have required appellant to state the substance of what the witnesses would say if called to testify in his. behalf. In this manner, the trial court, without having put the county to the expense of transporting appellant from the penitentiary to the place of trial, could have ascertained whether there was any substance to the allegation and whether the testimony proposed to be offered by appellant was relevant. Of course, if the testimony should appear relevant to the issue and should appear to affect the outcome of the proceeding, the trial court should hold a hearing and at such hearing appellant should be permitted to be present.

It was not the purpose of Criminal Procedure Rule No. 1 to give a person convicted of a crime a holiday from the penitentiary for the purpose of a hearing, but to conscientiously protect his. constitutional rights. If trial courts will therefore insist upon proper verification of pleadings and pre-trial statements, any abuse of the privilege of post-conviction proceedings can be remedied through prosecution for perjury.

For the reasons stated herein, we are therefore reversing and remanding this cause for proceedings in accordance with this opinion.

FoglemaN, J. disqualified.


author: CoNLey Byrd, Justice. CarletoN Harris, Chief Justice,

text:
    Robert T. Walker v. Wittenberg, Delony & Davidson, Inc.
    5-4008
    412 S. W. 2d 621
    Opinion delivered March 6, 1967
    [Original opinion delivered December 5, 1966, 241 Ark. 525.]
   CoNLey Byrd, Justice.

The original opinion in this case was delivered December 5, 1966, Walker v. Wittenberg, Delony & Davidson, Inc., 241 Ark. 525. Appellee, Wittenberg, Delony & Davidson, Inc., hereinafter referred to as “architect,” is the only petitioner for a rehearing. The only issue before us is whether there was a contractual obligation upon the architect to be present continuously during construction of the funeral home where appellant, Robert Walker, a brickmason, was. injured. We hold that the architect had no such contractual duty and that he had no duty to prescribe safety precautions for the contractor or to enforce performance of the safety provisions contained in the contract between the owner and the contractor, to which he was not a party.

The trial court, at the conclusion of appellant’s evidence, directed a verdict in favor of the architect, hence the facts, viewed in the light most favorable to appellant, will be stated as if they were true even though some of them were controverted.

The facts giving rise to this litigation show that Ruebel and Company employed the archit*ect to design a funeral home on West Markham Street in Little Rock. The design for the outer walls called for precast concrete panels ten feet high, eight feet wide and three inches thick, to be backed on the inside by light aggregate blocks. This design was adopted after the architect submitted his preliminary drawings and comments to the manufacturer of the panels because of the latter’s superior knowledge, and then revised the design pursuant to the manufacturer’s suggested changes. Upon the architect’s plans and specifications, Ruebel and Company let the contract for construction to Cone & Stowers, appellant’s employer.

At the time of the accident, appellant was laying light aggregate blocks behind the precast concrete panels. After the blocks had been laid on the east wall of the building to within two courses of the top, the braces holding the panels upright were removed to permit the top two courses to be laid. While the braces were being removed, appellant was standing on top of the wall, plumbing it. As the last brace was removed, the wall fell outward, causing appellant’s injuries.

Appellant and his. immediate supervisor both stated they did not know that the wall, without the braces, was dangerous or unstable. The west wall, identical to the east wall and from which the braces were removed before the accident involved here, stood a matter of days without falling. The architect admits the wall on which appellant was. standing was a free standing wall without the braces., i. e., not stable, and that it would have a tendency to fall toward the outside. The wall was designed to be later tied into the roof for stability.

It is not contended that the architect knew the braces were being removed from the wall. The architect admittedly performed no supervisory activities, in connection with the building of the funeral home. Apparently, the architect did inspect the premises from time to time.

It is the contention of appellant that the architect agreed with the owner to supervise and inspect the building, was paid a fee for it, and had á definite duty to supervise the work, including the responsibility of taking steps to secure the safety of workmen such as appellant. The architect’s contention is that his duty was to supervise and inspect only to the end that when completed the building would conform to the plans and specifications and the Little Rock Building Code, and there was no duty upon him to exercise control over ineans and methods adopted by the contractor which did mot affect the end result, i. e., there was no duty upon him to direct or control the contractor in reference to the temporary support of the precast panels during construction.

The actual agreement between the owner and the architect was oral. Gordon Wittenberg, a member of the architectural firm of Wittenberg, Delony & Davidson, Inc., and a brother to George Wittenberg, an officer and part owner of Ruebel and Company, testified there was no formal written agreement between the architect and the owner for furnishing architectural services. He stated that the architectural services included preparation of plans and specifications and periodic inspection while the building was under construction, and that while his firm prepared the plans and specifications, the building contract was let by the owner. The architect was to receive six per cent of the contract price, of which one and one half per cent was allocated to the special engineering supervision required by Section 204 of the Building Code of the City of Little Rock.

George Wittenberg, of Ruebel and Company, when asked whether Ruebel and Company had employed an architect to comply with Section 204 of the Building Code, stated:

“We employed Wittenberg, Delony & Davidson, to perform all of the duties of an architect for us and in our behalf.”

Section 204 of the Building Code provides:

“Section 204. Inspection and Special Engineering Supervision.
“The building Inspector shall inspect or cause to be inspected at various intervals during the erection, construction, enlarging, alteration, repairing, moving, demolition, conversion, occupancy and underpinning all buildings and structures, referred to in this Code and located in the City of Little Rock, and a final inspection shall be made of every building and structure hereafter erected prior to the issuance of the Certificate of Occupancy as specified in Section 206.
“No building construction, alteration, repair or demolition requiring a building permit shall be commenced until the permit holder or his agent shall have posted the building permit card in a conspicuous place on the front premises. The permit card shall be maintained in such position by the permit holder until the Certificate of Occupancy has been issued by the Building Inspector.
“The Building Inspector upon notification from the permit holder or his agent shall make the following inspections of buildings and either shall approve that portion of the construction as completed or shall notify the permit holder or his agent wherein the same fails to comply with the law.
“Foundation Inspection-. To be made after trenches are excavated and the necessary forms erected, steel placed and when representative samples of all materials for the foundation are delivered on the* job.
“Frame Inspection: To be made after the roof, all framing, fire-blocking and bracing is in place and all pipes, chimneys and vents are complete.
“Final Inspection: To be made after building is completed and ready for occupancy.
“No work shall be done on any part of the building or structure beyond the point indicated in each successive inspection without first obtaining the written approval of the Building Inspector. Such written approval shall be given only after an inspection shall have been made of each successive step in the construction as indicated by each of the above inspections.
“No reinforcing steel or structural framework of any part of any building, or structure shall be covered or concealed in any manner whatsoever without first obtaining the approval of the Building Inspector.
‘ ‘ In all buildings, where plaster is used for fire protection purposes the permit holder or his agent shall notify the Building Inspector after all lathing and hacking is in place and all representative samples of plastering materials are delivered on the job and no plaster shall be applied until the approval of the Building Inspector has been received. “Special Engineering Supervision: Any owner or his agent engaged in the erection or causing the erection of a building or structure where the estimated value exceeds $25,000 shall employ a registered architect or a licensed engineer to supervise the construction of the building.. Such architect or engineer shall be licensed under the laws of the State of Arkansas and his service shall extend over all important details of framing, erection, and assembly and he shall render full inspection service and adequate supervision on such buildings.
“He shall be held directly responsible for the enforcement of this Code, wherever same is applicable to the structure upon which he is engaged. He shall notify the Building Inspector of any attempt to cover, conceal, patch, or repair, any defect in materials or workmanship before such materials have been examined by the Building Inspector, or his. representative. He shall be held directly responsible for the infraction of any ruling of the Building Inspector, and shall have the authority to compel the removal of defective materials or to suspend or stop work, pending the ruling of the Building Inspector.” (Emphasis supplied.)

Thus it is. seen there was nothing in the agreement between the architect and the owner which required the architect to be continuously present during the construction of the building or to enforce the safety provisions of the contract between the owner and contractor, unless such a provision can be found in Section 204 of the Building Code.

Nor can we extend to the words “supervise” and “supervision,” used in Section 204 of the Building Code, the requirement that the architect must exercise control over the means and methods adopted by the contractor which do not affect the end result. When read in its entirety, it is obvious that the purpose of Section 204 was- to exact compliance with the Building Code and to hold the architect responsible to the building inspector in connection therewith.

We had occasion in Moore and Chicago Mill & Lbr. Co. v. Phillips, 197 Ark. 133, 120. S. W. 2d 722 (1938), to comment on the control as to means and methods adopted by a third party in contracts containing language such as “under supervision of owner’s agent as he may direct,” and in so doing said:

“There are countless decisions of appellate courts construing stipulations in contracts, such as here involved, relating to the right of the owner ‘to give directions’ — ‘orders’ and ‘instructions’ regarding the work as it progresses; and phrases such as ‘in accordance- with instructions’ — ‘as directed’ — ‘in such manner as. shall be directed’ — ‘under supervision of owner’s agent, as he may direct’ — and ‘under the direction and supervision. ’ In all of the cases examined, some of which are cited, it is held that such phrases do not relate to the method or manner and do not govern the details or the physical means by which the work is to be. performed. The-Supreme Court of the United States has so held in two cases directly in point. Casement v. Brown, 148 U. S. 615, 13 S. Ct. 672, 37 L. Ed. 582 ; U. S. v. Driscoll, 96 U. S. 421, 24 L. Ed. 847.”

Article 38 of the General Conditions of the Contract, A. I. A. Document No. A-201, 1958 Edition of American Institute of Architects, provides:

“ARCHITECT’S STATUS
“The Architect shall have general supervision and direction of the work. He is the agent of the Owner only to the extent provided in the Contract Documents and when in special instances he is authorized by the Owner so to act, and in such instances he shall, upon request, show the Contractor written authority. He has authority to stop the work whenever such stoppage may he necessary to insure the proper execution of the Contract.
“As the Architect is, in the first instance, the interpreter. of the conditions, of the Contract and the judge of its performance, he shall side neither with the Owner nor with the Contractor, but shall use his powers under the contract to enforce its. faithful performance by both.'
“In case of the termination of the employment of the Architect, the Owner shall appoint a capable and reputable Architect against whom the Contractor makes no reasonable objection, whose status under the contract shall be that of the former Architect; any dispute in connection with such appointment shall be subject to arbitration.”

Article 12 provides:

“The Contractor shall continuously maintain adequate protection of all his work from damage and shall protect the Owner’s property from injury or loss arising in connection with this. Contract. He shall make good any such damage, injury or loss, except such as may be directly due to errors in the Contract Documents, or caused by agents or employees of the Owner, or due to causes beyond the Contractor’s control and not to his fault or negligence. He shall adequately protect adjacent property as provided by law and the Contract Documents.
“The Contractor shall take all necessary precautions for the safety of employees on the work, and shall comply with all applicable provisions'' of Federal, State, and Municipal safety laws and bnilding codes, to prevent accidents or injury to persons on, about or adjacent to the premises where the work is being performed. He shall erect and properly maintain at all times, as required by the conditions and progress of the work, all necessary safeguards for the protection of workmen and the public and shall post danger signs warning against the hazards created by such features, of construction as protruding nails, hoists, well holes, elevator hatchways, scaffolding, window openings, stairways and falling materials.; and he shall designate a responsible member of his organization on the work, whose duty shall be the prevention of accidents. The name and position of any person so designated shall be reported to the Architect by the Contractor.
“In an emergency affecting the safety of life or of the work or of adjoining property, the Contractor, without special instruction or authorization from the Architect or Owner, is hereby permitted to act, at his discretion, to prevent such threatened loss or injury, and he shall so act, without appeal, if so authorized or instructed. Any compensation, claimed by the Contractor on account of emergency work, shall be determined by agreement or Arbitration.”

When the architect’s status under Article 38, providing that he “is the agent of the Owner only to the extent provided in the Contract Documents. . .,” is read in connection with the safety provision of Article 12, it is at once apparent the architect was given no authority over the safety provisions except to see that the contractor designated a responsible employee whose duty was prevention of accidents and whose name and position were reported to the architect.

Construing the architect’s agreement with the owner in the light of the circumstances under which it was made, the contract between the owner and the contractor, requiring the contractor to designate someone in his organization whose duty was prevention of accidents, certainly indicates the owner was not expecting the architect to also supervise day-to-day safety precautions. This is illustrated by the fact that the contract required the name of the person so designated to he reported to the architect, and by the fact that the owner, by requiring the contractor to furnish a person to prevent accidents, had already paid once for the prevention of accidents in his building contract with Cone and Stowers.

The presumption is that parties contract only for themselves, and a contract will not be construed as having been made for the benefit of a third party unless it clearly appears that such was the intention of the parties. Knox v. Ball, 144 Tex. 402, 191 S. W. 2d 17, 164 A.L.R. 1453 (1945). Before an architect can be said to have agreed with an owner to exercise direct control over a contractor with re-spect to day-to-day safety supervision of a building contract, such agreement must clearly appear from the terms of the agreement, the conduct of the parties, or the nature of the work being performed.

Appellant argues that this case is controlled by Erhart v. Hummonds, 232 Ark. 133, 334 S. W. 2d 869 (1960), but we disagree. There we had work involving a special danger to others which was known by the architects to be inherent in the construction of the J. C. Penney and Company building, Restatement of the Law of Torts, 2d, § 427; the architects were specificially employed by the owner to guard its interests by supervising construction of the building m addition to their architectural duties; and furthermore, the present danger to the injured parties was known to the architects.

Here the contractor’s negligence causing the injury was in the manner in which the work was performed, the risk was not inherent in the work, and the architect had no reason to contemplate the contractor’s negligence when the contract was made, i.e., the negligence here was collateral to the risk of doing the work. Restatement of the Law of Torts, 2d § 426.

While the Erhart case states the correct rule as to the circumstances there prevailing, we think that the correct rule covering the circumstances here prevailing was stated in Day v. National U. S. Radiator Corp., 241 La. 288, 128 So. 2d 660 (1961). There the architects had prepared plans and specifications for a building which included a domestic hot water system. After installation of a boiler by the mechanical subcontractor, one of his employees lighted the boiler to test its operation. An explosion resulted, killing one of the subcontractor ’s employees standing nearby. The contractor had failed to equip the boiler with a thermostat and safety relief valve required by the specifications. The architects’ contract required them to exercise “adequate supervision of the execution of the work to reasonably insure strict conformity with the working drawings, specifications and contract documents..” This was to include inspection of samples, materials and workmanship and frequent visits to the worksite. The trial court and Court of Appeal (117 So. 2d 104) held that the architect was. negligent, both in failing to inspect the hot water system during the course of installation and after completion and in approving the subcontractor’s shop drawing which did not have a pressure relief valve for the boiler, and that such negligence was the proximate cause of the explosion. The Supreme Court held that if the case were one where the architects visited the site after completion of the installation and, knowing that the boiler was to be tested, failed to observe that the boiler was not equipped with the specified safety devices, they would not hesitate to say that the? architects breached a duty and reasonably should have foreseen that the breach would cause damage. In reversing the Court of Appeal and directing dismissal of the shit by deceased’s, personal representative, however, they said:

“As we view the matter, the primary object of this provision was to impose the duty or obligation on the architects to insure to the owner that before final acceptance of the work the building would he completed in accordance with the plans and specifications ; and to insure this result the architects were to make ‘frequent visits, to the work site’ during, the progress of the work. Under the contract they as architects had no duty to supervise the contractor’s method of doing the work. In fact, as architects they had no power or control over the contractor’s, method of performing his contract, unless such power was provided for in. the specifications. Their duty to the owner was to see that before final acceptance of the work the plans and specifications had been complied with, that proper materials had been used, and generally that the owner secured the building it had contracted for.
“Thus we do not think that under the contract in the instant case the architects were charged with the duty or obligation to inspect the methods employed by the contractor or the subcontractor in fulfilling the contract or the subcontract. Consequently we do not agree with the Court of Appeal that the architects had a duty to the deceased Day, an employee of Yince, to inspect the hot water system during its installation, or that they were charged with the duty of knowing that the boiler was being installed.”

For the reasons stated, the directed verdict in favor of the architect is affirmed.

Harris, C. J. dissents,

CarletoN Harris, Chief Justice,

dissenting. The opinion handed down in this, case on December 5, 1966, expressed my views as well as those of the court, and my thinking still conforms, to the reasoning therein set out. However, because of some statements made in the present majority opinion, I desire to make a few additional comments.

The majorit y state that the only issue is “whether there was a contractual obligation upon the architect to be present continuously (my emphasis) during construction* * I do not agree that this is the issue, though, before commenting further on that question, I would like to point out that the record reflects that not even periodic checks were made, and if this had been done, the architect certainly would have noticed the free-standing west wall. Mr. Tom Gray, an employee of the architectural firm, testifying on behalf of the firm, agreed with other witnesses that a free-standing Avail, i.e., a wall that does not have any lateral support, is not stable. The west wall had been standing without support for apparently a period of a week to ten days, at the time the east wall fell. If a periodic check had been made (which surely would have included once in a week or ten days) the free-standing west wall would have been discovered, and the architect would have called the contractor’s attention to this admittedly dangerous condition.

I think the issue is, “What were the duties imposed upon the architects under the term, ‘supervision’?” The A.I.A. (American Institute of Architects) General Conditions were specifically made a part of the contract, and Article 12 of these conditions is set out in full in the majority opinion, from which I quote as follows:

“The Contractor shall take all necessary precautions for the safety of employees on the work, and shall comply with all applicable provisions of Federal, State, and Municipal safety laws and building codes to prevent accidents or injury to persons on, about or adjacent to the premises where the work is being performed. He shall erect and properly maintain at all times, as required by the conditions and progress of the work, all necessary safeguards for the protection of workmen and the public and shall post danger signs warning against the hazards created by such features of construction as protruding nails, hoists, well holes, elevator hatchways, scáffolding, window openings, stairways and falling materials; and he shall designate a responsible member of his organization on the work, whose duty shall be the prevention of accidents. The name and position of any person so designated shall he reported to the Architect by the Contractor. [My emphasis]”

Referring to the italicized portion, I should like to ask why it was necessary that the name of the man responsible for safety be given to the architect unless the architect was charged with some responsibility for safety¶ Under the majority view, the only responsibility of Wittenberg, Delony and Davidson, Inc., “was to supervise and inspect only to the end that, when completed, the building would conform to the plans and speeifica-tions and the Little Rock Building Code. * * *” I reiterate that, if safety supervision clearly was the sole responsibility of the contractor, what interest would the architect have in whether necessary safeguards were provided for the workmen? At least, what interest that would demand (as required by the contract) his notification?

Bear in mind that I am not saying that the architects are liable, nor did the original majority opinion so state. I am simply saying that, under the facts cited, a jury question was presented relative to whether the architects were charged with supervision of the work to the end that safety regulations would be observed.

I therefore respectfully dissent.

       Appellant has waived the contention that architect negligently failed to provide for adequate support of the precast panels by his failure to argue same on appeal. Fancher v. Baker, 240 Ark. 288, 399 S. W. 2d 280.


author: CoNley ByRd, Justice.

text:
    Patricia Faye Jenkins v. Henry B. Means, Judge
    5-4157
    411 S. W. 2d 885
    Opinion delivered March 6, 1967

      Shackleford & Shackleford, for appellant.

      Joe W. McCoy and Reinberger, Eilbott, Smith & Staten, for appellee.
   CoNley ByRd, Justice.

This race for venue, which is here on prohibition, raises the issue of whether a cause of action can properly be commenced against a decedent’s estate before there has been an appointment of a personal representative. These races for venue arise because our venue statute, Ark. Stat. Ann. § 27-610 (Repl. 1962), permits an action for personal injury to be brought either in the county Avhere the accident occurred or in the county where the person injured or killed resided.

The undisputed facts show that a two-car collision occurred in Grant County in which the sole occupant of each car, being- the driver thereof, was killed. One driver, Frank Munn Jenkins, was a resident of Ashley County and the other, Van Gatlin, was a resident of Grant County.

The- petitioner, Patricia Faye Jenkins, was appointed and qualified as administratrix of the estate of her deceased husband, Frank Munn Jenkins, in the Ashley Probate Court. On June 7, 1966, Mrs. Jenkins, as admin-istratrix, filed suit in the Ashley Circuit Court against Imogene Gatlin as administratrix of the estate of Van Gatlin, deceased. Summons was duly issued and placed in the hands of the Grant County sheriff for service upon Mrs. Gatlin.

Prior to the appointment of Mrs. Jenkins in Ashley County, Mrs. Gatlin, as the surviving widow of Van Gatlin, filed on June 3,1966, a petition in Grant Probate Court, seeking her appointment as administratrix of her deceased husband’s estate. After the service of summons from Ashley Circuit Court on Mrs. Gatlin, she withdrew her petition to have herself appointed administratrix and on June 18,1966, filed a petition in Grant Probate Court for appointment of Alvin Gatlin as administrator of Van Gatlin’s estate. Alvin Gatlin was that day appointed and qualified as administrator by Grant Probate Court and on the same day filed suit in Grant Circuit Court against Mrs. Jenkins, administratrix of Jenkins’ estate. Sum-' mons directed to the Ashley County sheriff was properly issued and delivered to him for service. -

On July 12, 1966, Mrs. Jenkins, as administratrix, amended her complaint in Ashley Circuit Court, seeking judgment against Alvin Gatlin as administrator of the estate of Van Gatlin, and caused summons thereon to be issued and delivered to the Grant County sheriff.

Motions to quash were promptly filed in Ashley Circuit Court by Mrs. Gatlin and Alvin Gatlin, and in Grant Circuit Court by Mrs. Jenkins. From a denial by Grant Circuit Court of the motion to quash service on Mrs. Jenkins, the matter comes, here via petition for prohibition. The petitioner contends that Grant Circuit Court is without jurisdiction for the following reasons:

A. Action in Ashley Circuit Court was commenced prior to action in Grant Circuit Court.
B. When Mrs. Gatlin filed her petition and nothing remained to be done except the signing of the order and issuance of letters, Ark. Stat. Ann. §§ 62-2102 (b), 62-2104 (Supp. 1965) permitted bona fide service upon nominee.
C. The amendment of the complaint in Ashley Circuit Court and subsequent service upon Alvin Gatlin as administrator gave retroactive effect to the previous, filing.

Petitioner’s contention that she first commenced her lawsuit in Ashley Circuit Court is in reliance upon Act 32 of 1961 (Ark. Stat. Ann. § 27-301 [Repl. 1962]), which provides:

“. . . If two [2] or more actions are commenced in different courts involving the same subject matter where the venue is proper in each, then, that court shall acquire jurisdiction, to the exclusion of the other, wherein a complaint was filed and á summons issued thereon, and first placed in the hands of the sheriff of the proper county or counties, irrespective of the time of service of summons ...”

In Storey v. Smith, 224 Ark. 163, 272 S. W. 2d 74 (1954), we had before, us a suit by a resident of Desha County against certain named individuals and “., the personal representative of the estate of Billy R. Storey, deceased.” The action there was filed on February 27, 1954, and summons issued. On March 25, 1954, J. Roy Howard, on petition of Storey’s creditors, was appointed administrator of Billy R. Storey’s estate. That day, the summons issued on February 27 was placed in the sheriff’s hands and served on J. Roy Howard. On March 30, Howard was discharged as administrator and Coy Storey was appointed administrator in succession. On March 25 a law suit had been filed in Pulaski Circuit Court by Coy Storey as administrator of the estate of Billy R. Storey. Upon his appointment, summons was issued and served on the plaintiff in the Desha County action. We there held that no legal proceeding actually existed in Desha Circuit Court on the complaint filed and could not exist until the? identity of the defendant was Jmown or came into being.

We hold that under the authority of the Storey case, ■petitioner’s action was not properly commenced in Ashley Circuit Court, since there was not in being a personal representative of the estate of Van Gatlin at the commencement of the action, and that Grant Circuit Court properly has jurisdiction of the matter since suit was first commenced in that county.

The Storey case is also authority for holding that an amendment to the Ashley Circuit Court complaint, naming the proper defendant, would not revert, in this situation, to the date the original action was filed.

Nor can we find any merit in petitioner’s contention that the mere filing of the petition by Mrs. Gatlin for her appointment made her subject to service in an action against the estate of Van Gatlin. Ark. Stat. Ann. § 62-2102 (b) (Supp. 1965) specifically provides that proceedings in probate shall be commenced by the filing of a petition, the issuance of letters, and the qualification of the personal representative. Nothing can be read into either Ark. Stat. Ann. § 62-2102 (b), supra, or Ark. Stat. Ann. § 62-2104 (Supp. 1965) which would authorize a personal representative to sue or be sued until such time as he has received letters of administration.

For the reasons herein stated, the petition for prohibition is. denied.


author: CarletoN Harris, Chief Justice.

text:
    Richard York & C. J. York v. John H. Brummett et ux
    5-4145
    412 S. W. 2d 617
    Opinion delivered March 13, 1967

      Guy H. Jones, for appellants.

      Tom Gentry, for sppellees.
   CarletoN Harris, Chief Justice.

On October 9, 1964, appellant, Bichard York, was involved in an automobile accident with John H. Brummett and wife in Pulaski County, Arkansas. Subsequently, suit was instituted in the Pulaski County Circuit Court (Second Division) by the Brummetts against York and his father, C. J. York, the complaint alleging that, at the time of the mishap, Richard York was operating a vehicle owned by C. J. York, aud that the former was the agent, servant, and employee of C. J. York, and acting within the scope of such employment. The Brummetts asserted personal injuries which they alleged were caused by the negligence of Richard York, and they sought judgment for damages. On trial, the jury returned a verdict for John H. Brummett in the amount of $700.00, and returned a verdict for his wife, Alma, Brummett, in the sum of $6,-000.00. From the judgment so entered, the appellants bring this, appeal. Though Richard York is an appellant, he sets out no points for reversal, nor is any reason given why the judgment against him should he reversed. Two points, for reversal are set out by appellant, C. J. York, but they really are to the same effect, vis., that this appellant was entitled to a directed verdict, because appellees failed to sustain the burden of showing that Richard York was the agent and servant of C. J. York at the time of the collision.

The evidence reflected that five young men, ranging in age from 17 to 22, left the home premises of C. J. York in Mayflower-early on the morning of October 9, 1964, in a truck owned by C. J. York for the purpose of traveling to the site of a job, which C. J. York had in North Little Rock. The five boys, three of whom were sons of York, were employees of this appellant. The five testified that they did not receive pay during travel time, but rather, in accordance with the number of hours they actually worked, the pay commencing when they started work on the job that was to be done. Richard York testified that no one told him how to get to and from work, what route to take, or what vehicle to use. According to Raymond York, “Well, if we had to take all of our tools, paint buckets, and stuff, we carried the panel, the old truck. If we didn’t, we used Dad’s other truck or sometimes we drove our own car.” Most of the young men stated that there was no particular time for them to be at work, though one testified that he was. supposed to he there around 7:00.

C. J. York admitted that he owned the truck, and that the boys were on their way to work in it when the collision occurred. From his evidence:

“Q. And you were furnishing a truck in order to furnish their transportation to work, is. that correct?
A. They could use the truck if they wanted; yes, sir. ’ ’

He then stated that he never knew what vehicle the workers were going to use, since they would leave before he arose in the morning. It is earnestly contended that the evidence was insufficient to make a jury case against Mr. York.

Apparently, these young men had followed the same procedure of getting to the job site for some period of time. Jimmy Booker, one of the young men, and brother-in-law of C. J. York, stated that he made $1.75 an hour; that C. J. York kept the number of hours., and that the workers would tell him when “we came in of an evening how much time’we put in.” When asked if York ever told him what route to take, or when' to leave, he answered, “Very seldom.” While whatever transpired on other occasions would have no actual bearing on the events of October 9, it does seem that a pattern of using C. J. York’s vehicles for transportation to. and from work had been established.

Eddie York, also a son of appellant, testified that they were supposed to be at work around 7:00 A.M., and he stated that there was only one seat in the truck, so they were sitting on mats (in the bed of the truck).

From his testimony:

“Q. Was there anything else in the truck?
A. Buckets and our tools; yes, sir.
Q. Would this he tools for painting, and buckets for painting?
A. They weren’t buckets of paint. They were empty buckets.
Q. And what sort of tools were m the truck?
A. Tools we have on the job, to work with.
Q. What would you call them, would you name one or two of them?
A. Well, draw knife...
Q. * * * these are tools used in construction type work?
A. Work we did; yes, sir.
Q. Did you know what sort of work you were going to do that day?
A. Yes, sir.
Q. What was that?
A. Painting and coating.”

In Carter Truck Line v. Gibson, 195 Ark. 994, 115 S. W. 2d 270, quoting an earlier case, we said:

“The act of the servant for which the master is liable must pertain to something that is incident to the employment for which he is hired, and which it is his duty to perform, or be for the benefit of his master.”

In Helena Wholesale Grocery Company v. Bell, 195 Ark. 435, 112 S. W. 2d 416, an employee of the Helena Wholesale Grocery Company, while driving his employer’s truck, was involved in an automobile collision. The company contended that there was no evidence in the record tending to show that at the time of the collision, the driver was engaged in the furtherance of its business, but rather the evidence showed that the employee was using the truck on a mission of his own, and that he had been permitted to take the truck home on a number of occasions as a matter of convenience in getting back to work. It was also pointed out that there was no merchandise in the truck. From a judgment against the company, there was an appeal. We said:

“Appellant contends that the testimony of the driver does not show that appellant permitted the driver of his truck to keep said truck at his home at night for the convenience of the defendant company and, failing to so show, the driver was not engaged in the prosecution of the business of appellant while driving said truck to his home. We think the evidence tends to show that it was for the benefit of appellant for the driver to take the truck to his home and keep it overnight. ***The evidence did not constitute an occasional lending of the truck to go home for a meal or for some other independent purpose of his own. We think the jury were warranted, and reasonably so, in drawing the inference from the evidence that appellant’s permission to take the truck to the driver’s home every night was for the convenience and benefit of said appellant, and that on account of this convenience and benefit the driver was engaged in the prosecution of the business of appellant while driving said truck to his home. The court declared the law to be that, if the jury found from the evidence that appellant permitted the driver of the truck to keep said truck at his home at night for the convenience of appellant, then the driver would be engaged in the prosecution of the business of appellant while driving said truck to his home. There is no dispute in the evidence that appellee was injured by the truck at a time it was being driven home by the regular employee of appellant. ”

Also, in Ball v. Hail, 196 Ark. 491, 118 S. W. 2d 668, Ball, an employee, finished his work for the day at the Rider Motor Company’s place of business, and while on his way home, driving a car belonging to Rider Motor Company, a collision occurred. The evidence, reflected that Ball had attended a meeting of salesmen of the company which adjourned late on a Saturday night. Rider Motor Company appealed a judgment, against it, and this court said:

“Appellants vigorously assail the judgment as. not being supported by any substantial evidence. They argue most forcefully that the evidence which they have offered is undisputed and that there was no question of fact to be determined in fixing liability. The positive statements, repeated several times perhaps to give emphasis, are that. Mr. Ball attended the meeting of the salesmen of the Rider Motor Company and that after the meeting adjourned late Saturday night, Mr. Ball’s employment for the day, or duties thereof were ended and that it was after this closing of the day’s business that the accident occurred and that on account of. that alleged fact, which it is contended was undisputed, the Rider Motor Company bases its contention that it was not liable.
• # #
“ * * * We are forced to decide appellants’ conclusions are not arrived at upon sound legal premises.
“Under the circumstances above stated there are certain presumptions that enter into the consideration of the evidence. Mr. Ball and Mr. Rider are the sole or only witnesses testifying for appellants. They are interested parties, both defendants in suit and on that account their' testimony will not be taken as undisputed.***
“There was also another presumption present in this case that arises out of Mr. Ball’s employment by Mr. Rider and the fact that he was driving or operating Mr. Rider’s car at the time of the accident. That presumption is that the servant was acting for the master while he was operating- the master’s ear. That is a mere presumption. It may be overcome by evidence.***
# * *
“From the foregoing the only conclusion that can be reached is that the facts are not clear and undisputed as argued.
* # *
“***Furtherm0re, we see little difference in a contention that he was discharged and acting outside the scope of his employment, because he started home, than we would if the accident occurred in the early morning when he was driving from his home to the place of his employment. It might as sanely be argued that on such an early morning trig he had not yet engaged in the duties of the day and was, therefore, not acting for the master These different conclusions, that may be arrived at, one as well supported in reason as the other, raise questions to be determined by the jury and may not be determined as mátters of law.”

Under the principles of law set out in the above quoted cases., we think that clearly a jury question was presented. There is no doubt but that the transportation of the workers to the job was for the benefit of York — ■ not only that, but the evidence reflects that tools to be used on the job were being transported at the time of the collision. The evidence makes it obvious that the transportation of these workers was not something that happened only occasionally, but that the boys were accustomed to meeting at York’s home and using one of his vehicles for transportation. It will be noted that transportation to the job was not only given to those who lived “at home,” but also to others who met there for the purpose of being transported to the locale of the work. We do not agree with appellants’ argument that the evidence was sufficient, as a matter of law, to overcome the presumption that Richard York was acting for the master while operating the master’s car. Likewise, as stated in Ball v. Hail, supra, “From the foregoing the only conclusion that can be reached is that the facts are not clear and undisputed as argued.” We hold that the evidence presented a jury question as to whether Richard York was engaged in his master’s business at the time of the collision.

Affirmed.

       Emphasis supplied.


author: George Bose Smith, Justice.

text:
    H. Dean Brown et ux v. Carl Lee
    5-4149
    412 S. W. 2d 273
    Opinion delivered March 13, 1967

      Eugene Coffelt, for appellant.

      Little & Enfield, for appellee.
   George Bose Smith, Justice.

In 1965 H. Dean Brown, a housebuilder, constructed a residence for W. J. Davis and his wife for a contract price of $20,192700. Thereafter Carl Lee, a real estate broker, brought this suit against Brown for $1,000.00, asserting that Lee had found the Davis job for Brown under an oral agreement by which Brown was to pay Lee a 5 per cent commission, upon any building contracts that Lee might obtain for Brown. Brown denied the existence of the oral agreement. That issue of fact was settled by the jury’s verdict in favor of Lee, for $333.33. (That the amount of the verdict is not consistent with either party’s theory of the case is unimportant. Fulbright v. Phipps, 176 Ark. 356, 3 S. W. 2d 49 [1928].)

Brown, citing Elkins v. Nelson, 196 Ark. 209, 118 S. W. 2d 287 (1938), and other cases having to do with the sale of property, contends, that the oral agreement is within the statute of frauds and is therefore unenforceable. We are unable to say that the statute is applicable. Only two sections of the statute might be considered pertinent. One relates to contracts for the sale of goods at a price of $500 or more, Ark. Stat. Ann. § 85-2-201 (Add. 1961), but this agreement did not involve a sale of goods. The other relates to contracts for the sale of an interest in land, § 38-101 (Repl. 1962), but no such interest was affected by the oral contract between Brown and Lee.

Brown also argues that Lee was acting as an employment agency without having obtained a license, as required by law. Ark. Stat. Ann. § 81-1001 (Repl. 1960). This argument is not well-founded. The statute defines an employment agency as one engaged in the business of furnishing employment or help or of giving informa-Seetion 81-1004. The same section defines an applicant tion about where employment or help may be secured, for employment as a person seeking work and defines an applicant for help as a person seeking help in any legitimate service. It is clear that a construction contract, by which a builder undertakes, to furnish labor and materials, is not the type of agreement falling within the province of an employment agency.

Upon the record in this case we find no tenable basis for holding that the contract in question is invalid. The judgment must therefore be affirmed.


author: George Eose Smith, Justice. John A. Fogleman, Justice,

text:
    Lincoln Income Life Insurance Company v. Callie M. Milton
    5-4153
    412 S. W. 2d 291
    Opinion delivered March 13, 1967

      Grumpier, O’Connor, Wynne & Mays, for appellant.

      Jabe Hoggard, for appellee.
   George Eose Smith, Justice.

This is an action brought by the appellee to recover $125 under a sickness and accident policy. The insurance company contends that the insured’s condition existed before the policy was issued and was therefore excluded from coverage by this clause in the contract: “‘Sickness’ as used in this policy means sickness or' disease which first commences or first becomes evident, after the effective date hereof and which causes loss commencing while this policy is in force.” Tl > trial court, hearing the case without a jury, entered judgment for the plaintiff, finding that she did not know the cause of her physical disorder when she applied for the policy.

There is no real dispute about the material facts. The policy was issued on July 19, 1965, without a medical examination. Mrs. Milton was then 36 years old. In applying for the policy she informed the soliciting agent that she was in good health as far as she knew.

In November, after the issuance of the policy in July, the insured consulted the late Dr. B. L. Moore, Sr., who was practicing medicine with his son. Dr. Moore’s records, as explained by his son at the trial, disclosed that the chief complaint was “that she feels bad. The first notation is that her last menstrual period was September, 1964.” A vaginal examination and urinalysis were negative. Dr. Moore placed his patient- in the hospital for five days, apparently for tests and x-rays. That period of hospitalization resulted in the present claim.

It was found that Mrs. Milton’s thyroid gland was underactive, producing insufficient hormones to regulate the bodily functions controlled by the thyroid gland —including the ovarian functions, that give rise to menstruation. Dr. Moore prescribed thyroid pills. With that medication the patient’s menstrual periods began again in December and were found to have continued normally when she was examined some seven months later by Dr. Moore, Jr.

Among the cases discussed by counsel these two bear most directly upon the issues now presented: State Nat. Life Ins. Co. v. Stamper, 228 Ark. 1128, 312 S. W. 2d 441 (1958), and American Ins. Co. of Texas v. Neal, 234 Ark. 784, 354 S. W. 2d 741 (1962). Each case affirmed a judgment for the plaintiff. In the Stamper case the insured, during most of her life, had had a. small bony growth on the back of her head. It caused no trouble until more than a year after the issuance of the policy sued upon. The growth then increased in size and gave rise to the hospital and medical expenses incurred by the plaintiff. In sustaining the trial court’s judgment for the insured we said that “the weight of authority is that the sickness should be deemed to have had its inception at the time it first manifested itself or became active, or when sufficient symptoms existed to allow a reasonable accurate diagnosis of the case, so that recovery can be had, even though the disease, germs or infection was present in the body prior to the excluded time, if the condition was latent, inactive, and perhaps not •discovered.” That case was followed, on similar facts, in the Neal ease, supra. See also Old Equity Life Ins. Co. v. Crumby, 241 Ark. 982, 411 S. W. 2d 292 (1967).

In those- cases, and in many others to the same effect, the insured had sóme supposedly trivial infirmity or abnormality when the policy took effect. Later on, however, the condition changed for the worse and for the first time either actually became, or became diagnosable as, a sickness or disease falling within the coverage of the policy. The insured’s right to protection under the contract was properly upheld.

The situation here is significantly different. There is no indication that Mrs. Milton’s affliction changed for the worse between the issuance of the policy in July and her hospital confinement in November. She candidly admits that she had not had a menstrual period for ten months before she purchased the insurance. She went to see Dr. Moore because she felt bad. Her testimony.: “I had complaint of my head and neck; so I went to Dr. Moore; ” The first notation in the doctor’s record was that the patient’s last period had been fourteen months earlier. After an unenlightening office examination Dr. Moore put Mrs. Milton in the hospital, where it was found that she suffered from a thyroid deficiency. Pills were prescribed and brought about a return to normal health.

We can find no reasonable basis for declaring that the appellee’s hospital expense was attributable to a sickness or disease w. 'ch, in the language of the policy, first commenced or became evident after the effective date of the contract. To the contrary, the examinations and tests merely confirmed the fact that Mrs. Milton had suffered for fourteen months or more from a. thyroid deficiency. There is no evidence that the condition had worsened or had for the first time become subject to diagnosis. It is true, as the trial judge observed, that the insured did not know when she applied for the policy that her trouble was attributable to an underactive thyroid gland. It is clear, however, that such an under-activity did exist and that it led to the hospital expenses now in issue. That Mrs. Milton did not know the medical explanation for her condition when she applied for the policy is not a reason for holding that the condition first commenced or became evident after the effective date of the contract.

Reversed and dismissed.

Fogleman, J., concurs.

John A. Fogleman, Justice,

concurring. I concur fully in the opinion in this case. A statement in my concurring opinion in Old Equity Life Insurance Company v. Crumby, 241 Ark. 982, 411 S. W. 2d 292 that before a sickness can be said to be excluded, there must at least have been sufficient manifestation of it to make the insured seek a diagnosis, had reference to the facts of that particular case and the terms of that policy. Even so, the principle also has application here. The policy in that case had to do with the origin of the “sickness”. In this the critical time is the time when the “sickness” became evident. Under the facts of this case appellee’s condition was certainly such as would make her aware well before the policy was issued that a medical diagnosis should be sought.


author: Paul Ward, Justice.

text:
    Joseph Brooks et al v. W. G. Baker et al
    5-4162
    412 S. W. 2d 271
    Opinion delivered March 13, 1967

      Rose, Meek, House, Barron, Nash & Williamson, for appellant.

      Williams & Gardner, for appellee.
   Paul Ward, Justice.

This litigation-concerns the allowance of a belated claim against the estate of William Brooks (called deceased) who died February 17, 1950, leaving a .widow and three children. The order of the Probate Court allowing the claim here involved was entered more than fifteen years, later — on April 7, 1966. This is the belated order from which this appeal is taken.

The decisive issue is discussed by both sides as being involved in a complicated set of facts and events covering a period of sixteen years. For a better understanding of our conclusion hereafter reached it should be helpful to briefly summarize the facts and events just mentioned.

On March 1, 1950 letters of administration were issued to the deceased’s widow, Fannie E. Brooks. About two months later it was learned the deceased had left a Will, and on May 9, 1950 the widow was appointed Executrix of the estate with Will annexed; In 1958 (while the administration was pending) the State paid into the estate the sum of $65,000 (the proceeds of a pending claim of the deceased for cotton seed). On| April 24, 1961 W. G. Baker et al (appellees) filed a claim against the. estate for $16,202.75 (based on notes executed by deceased in 1943). It being learned that the widow had died recently, appellees had the court to appoint M. J. Hickey, administrator in succession of the estate. On April 7, 1966 Hickey, as administrator in succession, allowed the claim, and on the same day the claim was allowed by the court. Then, on June 2, 1966, the court ordered that certain lands belonging to the estate be sold to pay the said claim. Thereupon the heirs of the deceased filed a Motion' asking the court to vacate its orders previously mentioned on the ground that appellees’ claim “was not presented within the time allowed by law and should be barred”. Appellants’ Motion was denied, and this appeal follows.

For reasons hereafter stated, it is our opinion that the trial court erred in denying appellants’ Motion.

Ark. Stat. Ann. § 62-2601 a. (Suppl. 1965), in all parts material here, reads:

“a ... all claims against a decedent’s estate . . . whether due or to become due, absolute or contingent, liquidated or unliquidated, founded on con-, tract or otherwise, shall he forever barred as against the estate, the personal representative, the heirs and devisees of decedent, unless verified and presented to the personal representative or filed with the court within six months after the date of the first publication of notice to creditors.” (Emphasis, ours.)
“d. . . All claims barrable under the provisions of subsection (a) hereof shall, in any event, be barred at the end of five years after the date of the death of decedent, unless within said periods letters have been issued and notice to creditprs published as provided by Section 50 [§ 62-2111].” (Emphasis ours.)

One. Appellees’ claim was barred by subsection “a.” above. The record discloses, the following.

(1). Fannie E. Brooks, on March 1, 1950, filed a verified Petition for appointment of Administratrix of the Estate of the deceased. Letters were authorized on the same day by the judge.
(2). On the same date a bond was filed and approved.
(3). On the same date “Letters of Administration” were issued to Fannie E. Brooks by the Clerk.
(4). On March 2, 1950 Fannie E. Brooks, as Admin-istratrix, signed a “Notice” stating “All persons having claims against the estate must exhibit them, duly verified, to the undersigned within six months from the first publication: of this notice, or they shall be forever barred and precluded from any benefit in the estate.”
(5). The “Notice” was published in the 'Courier Democrat on March 3, 10, 17, 24, of 1950 — a copy of the “Notice” being attached.

Ark. Stat. Ann. § 62-2116 d. (Supp. 1965) reads, in material part:

“When a will is presented for probate under the provisions of this section, the proceedings shall be deemed a part of the proceedings for probate or for administration already initiated.”

Under the plain wording of the above quoted provisions of statutes and the record herein we have no alternative other than to hold appellees’ claim was barred, and that the trial court should have so held. There is no contention on the part of appellees that they filed their claim “within six months after the date of the first publication of notice to creditors”.

Two. Appellees’ claim is also barred under subsection “d” of said § 62-2601 previously quoted, because their claim (filed on April 24, 1961) was not filed within ‘ five years after the death of the decedent. . . . ” It is undisputed that William Brooks died on February 17, 1950.

Appellees attempted to avoid the obvious results which we have above reached on the grounds that (a) the administratrix did not sign an acceptance of her appointment and (b) the order allowing their belated claim amounted to a judgment and appellants gave no reason for. setting it aside. We see no merit in either ground stated.

(a) Certainly the widow was considered to be the administratrix by the court because she acted as such over a period of some ten years, and by appellees because they ashed to have Hickey appointed as adminis-strator in succession. In 33 C. J. S. Executors and Administrators, § 71, there appears this statement:

“The presumption that an administrator had duly qualified arises after the lapse of a considerable period of time where there is evidence that he acted as administrator and was recognized as such by the court, and it may be presumed that an administrator qualified at the time of the appointment.”

To the same effect see 12 Ark. Law Review 1 at page 12.

(b) The heirs did not appeal from the court’s order allowing appellees’ claim, but this would make no difference since they have a right to move to vacate at any time before a final order is entered. Ark. Stat. Ann. § 62-2015 (Supp.A965), in material part, reads:

“For good cause, at any time within the period allowed for appeal after the final termination of the administration of the estate of a decedent or ward, the court may vacate or modify an order, or grant a rehearing thereon; . . .” (Emphasis added.)

There can be mo doubt, in view of what we have previously said, that “good cause” did exist in this instance, and the trial court had no alternative other than to set aside its previous order to sell property of the estate.

There being no contention that appellants did not perfect their appeal within proper timé the cause must be, and it is hereby, reversed.

Reversed.