author: Carleton Harris, Chief Justice.

text:
    P. Encho Gerov NEGOVANOV, a/k/a Penio Geroff Negavanoff, and Elena Gerova Nacheva, a/k/a Elena Nikolova Macheva v. Betty WENSKO
    5-5300
    455 S. W. 2d 929
    Opinion delivered June 22, 1970

      W. D. McKay, for appellants.

      Crumpler, O’Connor, Wynne ir Mays, for appellee.
   Carleton Harris, Chief Justice.

This case relates to the rights of pretermitted children. Gero Ivanoff, a native of Bulgaria, who had lived in the United States since 1937, died a resident of Columbia County, the owner of the NWM of the SWÁ of Section 29, and the N/4 of the SEM of Section 18, Township 19 South, Range 20 West, Columbia County, Arkansas. By Will, he bequeathed and devised all of his property to his daughter Eva Ivanoff Christoff, and in the event that the daughter predeceased him, then to Betty Christoff Donofrio, now Betty Wensko, appellee herein. The Will, dated December 28, 1949, was admitted to probate in die Columbia Probate Court on May 26, 1961, and Lyle Dews, a resident of the county, was appointed Administrator with the Will Annexed. Eva Christoff died testate in Ohio on December 3, 1964, leaving appellee as her sole heir and devisee. The will of Eva Christoff was admitted to probate as an ancillary proceeding in Union County, Arkansas on May 15, 1967. The estate of Gero Ivanoff remained in probate until June 22, 1967, when it was closed and the court ordered the assets distributed.

In addition to Eva Christoff, Gero Ivanoff was the father of two other children, P. Encho Gerov Negovanoy, a/k/a Penio Geroff Negavanoff, and Elena Gerova Nacheva, a/k/a Elena Nikolova Macheva, but they were not mentioned in his will. These children instituted a suit in the Columbia County Chancery Court on October 23, 1967, for partition of the real estate heretofore mentioned. It developed that P. Encho Gerov Negrovanoy had died and the cause was revised in the name of his widow and two children. After the filing of an answer, an amendment to the complaint, and the propounding of interrogatories to petitioners, the case proceeded to trial, being submitted on the pleadings and exhibits offered. The court found the interest of each litigant in the property as follows:

Mariika Zhekova Negovanova 1/3 (life estate) of 1/3

Bozhana Peneva Peneva 1/6 (subject to above life estate)

Gercho Penev Negovanov Elena Nacheva, a/k/a 1/6 (subject to above life estate)

Elena Nikolova Macheva 1/3

Betty Wensko 1/3

However, the court denied the prayer for partition, and decreed Mrs. Wensco to be the owner of the property, free from any interest or claim of appellants.

From the decree so entered, appellants bring this appeal, asserting only that they are the owners of an undivided 2/3 interest in the land by virtue of being heirs of Gero Ivanoff, and not being mentioned in his will.

It might first be said that it is agreed that the Bulgarian children of Gero Ivanoff qualify as pretermitted children under the provisions of Sec. 60-507 (b) Ark. Stat. (1969 Supp.) Though recognizing this fact, appellee insists that she is entitled to prevail, first because appellants are barred by Sec. 62-2114 (b) Ark. Stat. (1969 Supp.), from claiming an interest in the property, and second because appellants are likewise barred by the doctrine of laches. It is pointed out that appellants admitted that they learned of the death of Gero Ivanoff in 1960, and further learned in 1964 that a will had been made by Ivanoff and that no property had been willed to them. We do not agree with the contention. Section 62-2114 deals with the time within which a will contest must be filed, and the action before us is not a will contest. As stated in Parker v. Bowlan, Executrix 242 Ark. 192, 412 S. W. 2d 597, a case which dealt with the rights of a pretermitted child, we pointed out that though a pleading was entitled “Petition for Contest of Will”, it actually was not such a contest, stating:

“It will be at once noted that there is no allegation that the will was not entitled to probate, either on the basis that it was not legally executed, or because of mental incompetency or undue influence. Generally speaking, a will contest is based on the allegations and contentions that no will exists, i. e., statutory requirements for execution of the instrument were not complied with — or, because of mental infirmities, the party was not mentally capable of making a will — or, in case of undue influence, the purported instrument was not the testator’s will but that of someone else. Appellant does not ask that the instrument be denied probate; he only asks that it be declared ineffectual as to Thomas J. Jarvis (Jeff Jarvis, Jr.), because Jarvis was not mentioned in his mother’s will.”

Of course, in the case before us, the pleading is simply a petition for partition, and there is no complaint that a will has been improperly admitted to probate. In fact, the suit was brought in the chancery court. The argument relative to the statute of limitations, as well as the contention that appellants are barred by laches is answered by our case of James v. Helmich 186 Ark. 1053, 57 S. W. 2d 829. Here again, the litigation involved the rights of children whose names were omitted from a will. In reversing the trial court which had held against the children, we said:

“Since there is no special statute of limitations providing when or the period within which pretermitted children must bring suit to recover their share in the estate, they had 5 years in which to do so under the provisions of the statute, § 6960, Crawford & Moses’ Digest. See also Hill v. Wade, 155 Ark. 490, 244 S. W. 743. The money was not paid by the executor to the church until March 2, 1928, and the rights of appellants could not have arisen until the wrongful distribution of such money, and the statute began to run against them on the said date of its payment, and they were not barred by the 5-year statute of limitations, this suit having been instituted in 1931. Neither were they barred by laches, having brought the suit within the time allowed”, [our emphasis]

Appellee attempts to distinguish the above holding from the case presently- before us by stating that there, the children had no knowledge of the death of their father until nearly two years after that event, while here, appellants received word of the death of Gero Ivanoff in 1960, some seven years before their petition was filed. We do not consider that to be material in the case before us, for the fact remains that we held in James that pretermitted children have five years after the wrongful distribution to commence proceedings. In the case before us, the order of distribution was not entered until June 22, 1967, and it is thus evident that appellants filed their suit in proper time. The italicized finding answers the argument as to laches. It follows that the decree of the chancery court must be reversed.

However, we agree with appellee that she is entitled to be reimbursed for 2/3 of the monies expended by her in protecting the estate from creditors, and in expenses occasioned by the administration. At the time the administrator sought approval- of his final accounting, the only assets of the estate were the real property herein involved, and cash in the sum of $193.24. In his final accounting, the administrator stated:

“The undersigned reports to this court that arrangements have been made by Betty Wensko, a beneficiary of the Estate in succession to pay the debts and court costs of the Estate in order that the Estate may be closed and distributed. The Administrator states that this court should set his fee, the attorneys fees, and accept this final account and close the Estate upon proof of satisfaction of all claims and costs.”

A fee of $1,000.00 was paid to the administrator by Mrs. Wensko out of personal funds and a fee was also paid by appellee to the attorney of the estate in the amount of $750.00. Of course, if she had been unwilling to advance personal funds to pay administrative costs and other debts of the estate, it would have been necessary to sell the realty here involved in order to pay claims. Thus, as it develops, Mrs. Wensko was taking care of the interests of appellants as well as her own interest. As far back as 1861, we recognized the right of one who, in good faith, pays just claims, to be reimbursed. In Brearly, ad. v. Norris, 23 Ark. 166, Chief Justice English made this point very clear. See also Security Bank & Trust Co. v. Costen. 169 Ark. 173, 273 S. W. 705, where we said:

“If the person who incurs the expense or advances the money to pay it is not a mere volunteer who acts officiously and without interest in the estate of the decedent, the charge against the estate inures to his or her benefit. This principle was announced by this court in the case of Brearly v. Norris. 23 Ark. 166, and the principle has been recognized by many decisions in other, states.”

There is no contention here that the claims and expenses paid were not valid, nor is there any question raised as to the good faith of appellee in making the payments. The record before us does not make clear the exact amount expended by Mrs. Wensko from personal funds for purposes of paying debts and administration costs of the Ivanoff estate; in fact, the amended answer filed by appellee asserts that these costs amounted to $4,781.06, but the brief sets out that the costs amounted to $2,550.00. Inasmuch as -it is necessary that the decre-e be reversed, we think it well that the chancellor make the determination of the actual amount paid.

In accordance with what has been said, the- decree is reversed with directions to enter a decree awarding appellants their respective interests in the lands at issue; provided however, that appellants shall pay 2/3 of the expenditures made by Mrs. Wensko on behalf of the estate; the court shall further fix a lien in appellee’s favor on appellants’ 2/3 interest in the lands to secure the payment of same.

It is so ordered.

      Gero Ivanoff had also owned some land in Bulgaria which, according to answers to the interrogatories, had been given by him to the son, P. Enoch Gerov Negovanov prior to leaving Bulgaria. Also, according to the answers given to interrogatories, other property owned by Gero Ivanoff was divided after his death between his heirs in Bulgaria. The court found that appellants should be declared owners of the property just mentioned in Bulgaria, free of any interest or claim of Betty Wensco. Mrs. Wensco does not question this finding.

      It is also agreed that Mrs. Wensco is entitled to all rights of her mother.

      The litigation involved adopted children.

      This corresponds to Sec. 37-213, Ark. Stat. Ann. (Repl. 1962).


source: Caselaw Access Project

license: Public Domain

text:
    THE NATIONAL LIFE AND ACCIDENT INS. Co. v. Murl Dean ABBOTT
    5-5326
    455 S. W. 2d 120
    Opinion delivered June 2, 1970

      House, Holmes if Jewell; By: Phillip K. Lyon, for appellant.

      Hall, Tucker if Lovell, for appellee.
   Carleton Harris, Chief Justice.

The question presented on this appeal is the construction of certain language appearing in an insurance policy. Pertinent facts are undisputed, and are as follows: On December 12, 1968, A. G. Abbott purchased a life insurance policy from appellant company. The policy provided for the payment of $2,000 upon the death of Abbott and, additional protection of $2,000 (not here in question) making a total of $4,000. For an additional premium, the company agreed to pay Abbott’s beneficiary an additional $4,000 if the insured were killed in a non-vehicle accident, as defined in the policy, or an additional $8,000 if the insured should be killed in a vehicle accident as defined in the policy. Two days after the policy was issued, Abbott was killed while driving his 1965 one-half ton Dodge pickup truck. It was stipulated between the parties that Abbott owned this truck and that it was used for pleasure only and not for work or for hire. Appellant, the National Life and Accident Insurance Company, paid Abbott’s beneficiary, Murl Dean Abbott, his wife, $8,000, but refused to pay a total of $12,000. Thereafter, Mrs. Abbott instituted suit for $4,000. The company denied liability on the basis that the pickup truck driven by Abbott at the time of his death was excluded from coverage under the provisions of the policy. The vehicle accident provision reads as follows:

“The Vehicle Accident Benefit shall be payable in lieu of the Non-Vehicle Accident Benefit (1) if in the absence of this paragraph a benefit would be payable under the conditions and limitations of the preceding paragraph, (2) if the bodily injuries causing the death of the Insured are sustained at a time other than during a period of military service, and (3) if such injuries result from his (a) driving or riding in an automobile, (as defined below) operated on a public street or highway other than in racing, drag racing, or in willful violation of any traffic law or ordinance, or (b) riding as a fare paying passenger in a public conveyance operated by a licensed common carrier for the regular transportation of passengers, or (c) riding as a passenger in an official school bus operating on an authorized trip. The term “automobile” shall mean a four-wheeled passenger motor vehicle exclusively of the pleasure car type, not operated by the insured for hire” [Our emphasis]

After the company had submitted Request for Admissions, both sides moved for a summary judgment on the basis of the facts heretofore recited. The court held that Mrs. Abbott’s motion should be granted, and that appellant’s motion should be denied. It thereupon entered judgment for appellee in the amount of $4,000, plus a 12% penalty, and an attorney’s fee in the sum of $1,000, making a total judgment of $5,480. From the judgment so entered, appellant brings this appeal. For reversal, it is simply asserted that the court erred in granting appellee’s motion for summary judgment and denying appellant’s motion for summary judgment, since as a matter of law, the appellee’s 1965 Dodge one-half ton pickup truck was not an automobile as defined in the policy.

We have, of course, held that when policy language is clear and unambiguous, the court should decide, as a matter of law, the construction. McDaniel v. Missouri State Life Insurance Company 185 Ark. 1160, 51 S. W. 2d 981. On the other hand, we have also held that if the language is ambiguous, such ambiguity is construed against the party who prepared the contract, in this instance, the insurance company. Employers Mutual Liability Insurance Co. of Wisconsin v. Puryear Wood Products Company, 247 Ark. 447 S. W. 2d 139. The question therefore really is whether the italicized language in the agreement is ambiguous. We do not find this language to be ambiguous and it appears that this view is in accord with the majority of jurisdictions. Cases supporting this concept are logical and well reasoned. One of the leading cases on this subject is Spence v. Washington National Insurance Company (Ill.) 50 NE 2d 128. There, an accident policy compensated for death occurring while riding in a private passenger type automobile of the exclusively pleasure type. The construction of Part four was an issue in the litigation, the court stating,

“The salient words of part four (a) which was the part upon which liability is here claimed reads as follows: 'part four: Automobile, Taxi Cab, Burning Buildings and other specified accidents, (a) By the wrecking or disabling of any private passenger type automobile of the exclusively pleasure type (motorcycles excepted) * * * within which the Insured is riding or driving as a passenger at the time of such wrecking or disabling’.”

In holding that a Ford truck was not included in the coverage just mentioned, the appellate court of Illinois (Fourth District) said:

“The remaining question for consideration is whether the Ford truck in which Willie Spence was riding at the time of the accident brought him within the terms of his contract of insurance with this company. We have quoted, above, the terms of Part 4 of this policy. It seems clear to us that this Ford truck was not such a vehicle. It was the ordinary standard model half ton Ford pick-up truck. It had an enclosed cab with an express type body in the rear. Such trucks are built for light pick-up work, hauling of material, delivery of groceries and the like.

“The contention of plaintiff in her argument is that she has proven that Willie Spence used this truck for hauling persons whom he picked up on the highway or at church and for transporting his family to church and other places; that he rode in it to and from work; that sometimes he put benches in the back part of the truck upon which persons sat; and that he only hauled coal and articles in it for his own family use. Plaintiff concludes that as to him, Spence, his truck was a passenger type automobile of the exclusively pleasure type.

“But it seems to us that such is not the proper yardstick with which to measure this insurance contract. It is not a question whether this truck was a passenger automobile ‘as to Spence’. Defendant had the right to prescribe the kind of vehicle and type of vehicle it desired to cover by its insurance policy. Whether accidents are more likely to occur to people riding in trucks or whether more serious injuries may result to people in truck accidents might be a reason why defendant was pleased to exclude such vehicle by the wording in its contract. But any reason defendant might have had for such exclusion is immaterial. This policy did not say that it covered a vehicle which might be used as a passenger car by the insured. If the construction urged by the plaintiff is recognized an insured might then ride in a tractor or tank or caterpillar vehicle, and call it, as to him, a passenger automobile.” [Our emphasis]

In Gray v. North American Co. for Life, Acc., & Health Insurance 128 So. 2d 233, the Court of Appeal of Louisiana (Second Circuit) held likewise in construing a policy provision which afforded accidental insurance if the insured lost his life through the "wrecking or disablement of a private automobile of the exclusively pleasure type * * The policy holder, Gray, was accidentally killed while a guest passenger in a pickup truck, and the question presented was whether this vehicle was susceptible of classification as a private automobile of the exclusively pleasure type. It is interesting to note that here too, the contention was advanced that inasmuch as the driver of the truck used it exclusively for his own pleasure and convenience, it was within the policy coverage. After discussing cases on the subject, including Spence, the court concluded:

“We have not been able to discover any ambiguity in the policy that would permit us to hold that the insured who met his death while riding in a pick-up truck of less than 1,500 pounds capacity, was riding in a private automobile of the ‘exclusively pleasure type’.”

A like view is expressed in Pennell v. United Insurance Company, Inc. (Texas) 243 S. W. 572. There, Pennell was accidentally injured while driving a jeep in the performance of his duties, and he held a policy providing benefits for total loss of time caused by accidental injury. There was a further provision in the policy that the monthly indemnity would be doubled if the insured was injured “while driving or riding within any private passenger automobile exclusively of the pleasure car type”. In holding with the insurance company, the court found no ambiguity and stated:

“The words are simple. We do not find, as petitioner contends, that the word ‘exclusively’ causes the description to be ambiguous or that ambiguity arises from the ‘placement’ of that word. ‘Exclusively’ gives emphasis to the description as an automobile of the pleasure car type. We believe the words clearly mean that the double indemnity provision applies only to automobiles that are constructed and intended to be used exclusively for pleasure, and does not apply to automobiles constructed and intended to be used for freight carrying or agricultural or industrial purposes, and does not apply to automobiles constructed and intended to be used both for pleasure and for freight carrying or agricultural or industrial purposes.”

In both this case and.Gray v. North American Com pany for Life, Acc., & Health Ins., Supra, the cases are distinguished, in the opinions, from the Tennessee case of Aetna Life Insurance Company v. Bidwell 241 S. W. 2d 595, the Tennessee case holding that a recovery was proper where an insured was killed while riding on a pleasure trip in a one-half ton pickup truck, this case being cited by appellee in her brief. There, the clause in question set out that the insured was covered, if killed, “while — riding in — a private passenger automobile of the pleasure type”. The contract then provided that the term “auto” did not “include a motorcycle or any vehicle or mechanical device for aerial navagation”. In distinguishing the case, both the Louisiana and Texas courts pointed out that the policy in Bidwell did not use the word “exclusively”. In fact, a part of the Bidwell opinion is quoted in Gray as follows:

“Under the immediately above stated view of the matter, it would follow that in a policy where the word ‘exclusively’ is omitted, then the expression ‘of the pleasure car type’ is ambiguous and evidence as to the common use of a given type passenger automobile for pleasure purposes would be material to the question of whether that particular type passenger automobile may be reasonably considered as one of a pleasure type, if the policy furnished no definition.”

Since the present policy contains that word, Bidwell is not authority for appellee’s position.

The only other authority cited by appellée interpreting similarly worded contracts is the Missouri case of Hoover v. National Casualty Company 162 S. W. 2d 363. There, Hoover contended for recovery under a clause which provided a $1,000 benefit if the death of the insured was caused;_

“(a) By the wrecking of a private pleasure type automobile or horse-drawn vehicle within which the insured is driving or riding as a passenger, (excluding motorcycle and farm machinery) or while so driving or riding by being accidently thrown from within such wrecked automobile or vehicle.”

The court allowed recovery, giving its reason as follows:

“Under the rule expressio unius, the phrase ‘pleasure type automobile’ used by defendant in its contract of insurance necessarily excluded all other types of motor vehicles. 13 C. J. 537: 17 C. J. S., Contracts, § 312. But defendant was not content with use of a term which it contends is unambiguous and which excludes automobiles of the type in which insured was riding when killed. It went further and specifically excluded motorcycles and a whole class of automotive farm machinery which, we think, could not have been considered as coming under the classification of ‘pleasure type automobile’. When the above rule is, applied to the exclusion clause, it would seem that all automotive vehicles not specifically named and excluded are meant to be included in the coverage. Thus defendant has created an ambiguous contract which, to the uninitiated in the law, might indicate that an insured would be protected against accidents while riding in almost any kind of a privately owned and operated automobile, of which the bus in question would be one.”

Appellee likewise argues in the case before us that the insuror created an ambiguity by adding the exclusion as to vehicles operated for hire. We cannot agree that this one little phrase creates an ambiguity; rather, it seems that the language is clear and unmistakable. The clause simply provides that an insured is covered if he is killed while driving, or riding in, a passenger motor vehicle exclusively of the pleasure car type, and he is not at the time operating that vehicle for hire.

Appéllee also predicates her case in large measure-upon the fact that it is stipulated that the pickup truck had been used by Abbott entirely for pleasure. But -use” does not govern whether the vehicle involved here was included in the coverage; rather, liability is determined by- the “type” of vehicle involved. This same contention was considered in Spence v. Washington National Insurance Co., Supra, and it will be noted that we have italicized the language from that opinion which relates to the argument now made.

. It is also argued that it is .unconscionable to permit an insurance company to sell a policy providing to benefits from death by accidental means in a motor vehicle, and then deny coverage when death occurs in the only motor vehicle owned by the deceased. In the first place, the clause speaks for itself; in the next place, there is-nothing in -the record-to indicate that the company knew the pickup truck was the only vehicle owned by Abbott; and of course, Abbott was afforded coverage if killed while riding as a passenger in some other person’s four wheeled passenger motor vehicle exclusively of the pleasure car type.

Finally, appellee says it would have been - simple for the clause to have excluded pickup trucks from coverage. We daresay, however, that there would then be disagreement as to what constituted a pickup truck; also, it would have been necessary to list a long line of excluded types of vehicles in order to make clear that only -“motor vehicles exclusively of the pleasure car type” were covered.

For the reasons herein set out, we have concluded that the court erred in entering summary judgment for appellee, instead of rendering a summary judgment for appellant. The judgment is accordingly reversed, and the cause dismissed.

It is so ordered.

      In Penell, the court pointed out that Iowa and North Carolina courts both held that the same words of description as those construed in Bidwell, i. e., the words “private passenger automobile of the pleasure car type” do not include a Ford pickup truck or a Ford one and one-half ton truck, although the truck may be used and is sometimes used for transporting passengers.

      Appellee offered a brochure published by the company describing the benefits of this policy and it is argued that the explanation of the benefits of the clause here in question showed that the provision in the policy was ambiguous. However, this brochure was not offered until over two months after the case had been submitted. Appellant objected to its admission, contending that it had not been tendered in proper time, and also that it was immaterial and irrelevant. The court refused to consider it, not giving a reason, but ordered that the exhibit be placed in the record. Certainly, we could not say that the court abused its- discretion in holding that the offer was made "out of time”, and no consideration is given to this brochure.


author: George Rose Smith, Justice.

text:
    LUMBERMENS MUTUAL CASUALTY COMPANY v. Stacey Everett HOWELL
    5-5290
    455 S. W. 2d 849
    Opinion delivered June 2 , 1970

      Leroy Froman, for appellant.

      Comer Boyett, Jr. and C. E. Blackburn, for appellee.
   George Rose Smith, Justice.

This is an action brought by the appellee to collect total disability benefits under an accident and sickness policy issued by the appellant. The case was submitted to a jury, which returned a verdict for the plaintiff in the amount sued for, $2,694.58. The -appellant argues three points for reversal, which we will discuss separately after briefly stating the background facts.

Howell had been actively engaged in farming, but in 1968 he took a job as a construction worker to earn extra money. On May 4 of that year, while Howell was lifting a heavy bucket, of fresh mortar, he injured the upper or cervical vertebrae in his neck, resulting in total disability as we have defined that term. Mutual Benefit Health & Acc. Assn. v. Murphy, 209 Ark. 945, 193 S. W. 2d 305 (1946).

In 1963 Howell had undergone surgery to correct two ruptured and degenerative discs in the lower or lumbar part of his back. That operation having been disclosed to the insurer, the present policy was issued with an exclusionary rider reading in part as follows:

To induce the . . . Company to issue ... its Policy . . . notwithstanding the fact that I have heretofore suffered from degenerative and extruded discs I hereby agree that no indemnity of any kind or amount shall be payable to me or to my beneficiary under said Policy for loss which results wholly or partly, directly or indirectly, from said condition, any complication thereof, treatment or operation therefor in any form.

In instructing the jury the trial court construed the foregoing rider to refer only to the earlier disc trouble in Howell’s lower back and not to exempt the defendant from liability for the later injury to degenerative discs in the claimant’s neck. The appellant argues that the wording of the rider was sufficiently ambiguous to require that its interpretation be submitted to the jury.

We agree with the trial court, for either of two reasons. First, we perceive no ambiguity. The rider recites that Howell has “heretofore suffered” from degenerative and extruded discs. The waiver goes only to liability for a loss resulting “from said condition.” To extend the exemption to some similar condition that might arise in the future in a different part of the insured’s body would be to read something into the language of the rider - that is not there. Since there is no ambiguity in the wording of the contract, the court was right in refusing to submit such an issue to the jury. Clements v. Fuller, 209 Ark. 849, 192 S. W. 2d 762 (1946).

Secondly, even if the appellant’s argument be accepted the exemption from liability is for a loss resulting from degenerative and extruded discs. The undisputed medical evidence shows that the discs that were injured when Howell lifted the bucket of mortar were degenerative, but they were not extruded or ruptured. Hence when the policy is construed against the insurer, even a finding of ambiguity would not be sufficient to relieve the appellant of liability in this case.

Next, the policy defines injury as bodily injury resulting from an accident and occurring directly and independently of all other causes. The company argues that the present claim is not covered, because the accident activated a dormant disc condition that contributed to Howell’s total disability. We have often held, however, that if the accidental injury is the primary and proximate cause of the disability, it is immaterial that a pre-existing disease is also a contributing factor. See Union Life Ins.-Co. v. Epperson, 221 Ark. 522, 254 S. W. 2d 311 (1953), where several of our cases are discussed.

Finally, the -appellant contends that its cross-examination of Howell’s-wife was unduly restricted by the trial court. Mrs. Howell testified on direct examination-that after her husband was injured she had to go back to work in Searcy to help support the family, which included five children under the age of eighteen. We quote all that appears in the record with respect to the asserted restriction upon counsel’s cross-examination of the witness:

Q. Mrs. Howell, you said you had to go to work after this injury. Are you saying you all haven’t had any income since May 4, 1968, on a weekly basis?
A. Well . . .
Q. I am just asking you “yes” or “no”?
A. Well, except . . .
(Off the record discussion.)
The Court: (For the record) The attorney for the defendant wishing to show proof that the plaintiff was drawing workmen’s compensation on the theory that it was in rebuttal to this witness’s testimony that she had to go to work, the Court holds the evidence is not admissible, to which the defendant objects and saves his exceptions.

It is now argued that Howell’s receipt of workmen’s compensation payments was admissible as a basis for an attack upon Mrs. Howell’s credibility. The appellant states the point in -these words in its brief: “The jury was therefore left with the erroneous impression that the Appellee and his family had not received any income during the period since May 4, 1968 because of his alleged injury and his wife had been forced to go to work.”

Upon the meager record that was made below we cannot see how Mrs. Howell’s credibility was even remotely in issue. Her statement that she had gone back to work is not disputed either by any other witness’s testimony or by any offer of proof. It will be noted from our quotation from the record that Mrs. Howell did not deny at any point that the family had been receiving a weekly income. She was actually not given an opportunity to finish her answer to that inquiry. So the only possible question that could have been raised about her credibility- would have been an argument that the- amount of workmen’s compensation being received was so large as to demonstrate- that there was no real need for her to go back to work. But there is no offer of proof, or even any suggestion, of how much the supposed payments amounted to. Under- the-statute the range lies between -a minimum of $10 a week and a maximum of $38.50 a week. Ark. Stat. Ann. § 81-1310.1 (Supp. 1969). We certainly cannot say as a matter of common knowledge, without proof, that either $10 a week or $38.50 a week is enough to support a family of seven. Absent such proof, there is no basis for saying that the trial court abused his wide discretion in controlling the extent of counsel’s right to. cross examine a witness upon a collateral matter. St. Louis, I. M. & S. Ry. v. Kelley, 61 Ark. 52, 31 S. W. 884 (1895). This is- especially true in view of the record’s silence about what was said during the off-the-record discussion.

Affirmed. We allow the appellee an attorney’s fee of $500 for the services of counsel in this court.


text:
    Monroe DAVIS and Jerry Davis v. RALSTON PURINA COMPANY et al
    5-5180
    455 S. W. 2d 685
    Opinion delivered June 2, 1970
    [Rehearing denied August 3, 1970.]

      Williams & Gardner, for appellants.

      Laws $r Schulze, for appellees.
   George Rose Smith, Justice.

This appeal is from a circuit court -order refusing to set aside a jury verdict and grant a new trial. The appellants concede-that such an order will be reversed only upon a showing that the trial court manifestly abused its- discretion in the matter. Thomas v. Arnold, 192 Ark. 1127, 96 S. W. 2d 1108 (1936).

Over a period of years the appellants, father and son, raised turkeys, produced hen eggs, and hauled feed under contracts with the appellee Ralston Purina Company. For reasons about which the evidence is in conflict the appellants eventually became heavily indebted to Ralston Purina. The parties’ working arrangements finally came to an end in 1968, when Ralston Purina brought an action in replevin to recover possession of some 65,000 laying hens.

Thereafter the Davises brought this action against Ralston Purina and one of its employees for damages for breach of contract. Ralston Purina filed a counterclaim to recover the amounts owed to it by contract, about which there is really no dispute. The issues were submitted to a„ jury, which returned a verdict for the plaintiffs in the amount of $45,349.96 upon their complaint and a verdict for Ralston Purina in the amount of $163,142.41 upon its counterclaim.

The plaintiffs’ motion for a new trial was based essentially upon these facts: At the trial the Davises offered evidence (which Ralston Purina did not directly contradict) to show that they had suffered five items of damage for the breach of their Laying Hen Contract and one item of damage for the breach of their Feed Dealership Contract, as follows:

Laying Hen Contract
Loss on eggs sold to breaker $ 27,954.60
Loss on hens sold 6,455.36
Loss of anticipated profits 141,455.35
Loss of discount on hen feed 9,041.17
Interest charged by Ralston Purina 11,908.36
Feed Dealership Contract
Loss on overage 5,487.00

It is mathematically demonstrable that the jury’s verdict for $45,349.96 is the exact sum of the first, fifth, and sixth items listed above and that the amount of the verdict cannot be arrived at by any other combination of pertinent figures in the record. Upon that premise the appellants insist that the jury necessarily found that both contracts had been breached and therefore acted arbitrarily in not awarding the plaintiffs the full amount of damages listed in the foregoing tabulation. The appellants conclude that the trial court abused its discretion in denying their motion for a new trial.

Such an argument is fully answered by our holding in Fulbright v. Phipps, 176 Ark. 356, 3 S. W. 2d 49 (1928), and similar cases. In the Fulbright case the suit was brought to enforce a salary claim for $10,000. Under the evidence the verdict should have been for the full $10,000 or for nothing. -The jury, however, awarded the plaintiff only $5,000, which we recognized as a manifest compromise. Both parties filed motions for a new trial. We held that the trial court might properly have granted either motion if convinced that the verdict was contrary to the preponderance of the evidence, “or have overruled both motions -for a new trial if not so convinced.” In a later case we pointed out that in such a situation the arguments in favor of a larger verdict are equally balanced by those in favor of a smaller one. Alexander v. Mutual Benefit Health & Acc. Assn., 232 Ark. 348, 336 S. W. 2d 64 (1960).

In the case at bar the appellants earnestly insist that the jury, having found a breach of- the Laying Hen Contract, were somehow bound to award every cent of damages supported by the plaintiffs’ proof. That contention, however, cannot be sustained, because the testimony was by no means undisputed. For example, the loss of $141,455.35 in anticipated profits represents about 90% of the requested damages that the jury disallowed. That estimated loss was arrived at by the witness Garrett, an accountant who had been employed by the Davises to keep their books. Garrett simply started with an assumed flock of 66,000 laying hens, estimated the numer of eggs that they would have laid during the remaining life of the contract, and by a series of intricate-mathematical computations concluded that the Davises would have realized a profit of exactly $141,455.35 — to the penny — in less than a year if the contract had not been breached. On the other hand, the jury had before it the hard fact that the Davises had never been able to reach anything even approaching that scale of profits in their past operations. Quite the contrary, they owed Ralston Purina the sum of $163,-142.41 as one result of those past operations. We -certainly cannot say from the record that the jury were not warranted in rejecting Garrett’s optimism about the future.

The -trial court, in denying the appellants’ motion for a new trial, made a specific- finding that “the verdict of the jury in this matter was not contrary to the preponderance of the evidence.” There is, of course, a possibility that the trial judge actually believed that the jury awarded the plaintiffs more than they were entitled to by the weight of the evidence. In any event, we cannot say that the court’s denial of the motion for a new trial was a manifest abuse of his wide discretion in the matter.

Affirmed.


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

text:
    Joe NEAL et ux v. The Honorable J. E. STILL, Municipal Judge
    5-5268
    455 S. W. 2d 921
    Opinion delivered June 22, 1970

      Rose, Barron, Nash, Williams, Carroll & Clay, By: James Guy Tucker, Jr., for appellants.

      No brief filed for appellee.
   Lyle Brown, Justice.

Joe Neal and wife were formally charged, tried, and convicted in the Arkadelphia Municipal Court with willfully violating Ark. Stat. Ann. § 41-1431 (Repl. 1964), titled “Creating Disturbance on School Property.” The charges stemmed from their activities on the campus of Henderson State College. The pertinent point on appeal here is that the statute is unconstitutional.

An appeal to the circuit court was not perfected. Appellants filed in that court a petition which named the municipal judge, Hon. J. E. Still, as the respondent. The petition was styled, “Petition for Certiorari, Petition for Writ of Coram Nobis, and Petition for Writ of Prohibition.” The circuit court granted die petition for certiorari -and after deleting that part of the sentence which was admittedly objectionable, denied -any other relief. That amendment left each appellant with a fine of $500. The part of § 41-1431 which is relevant to this appeal reads:

Any person who shall enter upon any public school-property, school cafeteria,' ... in the State of Arkansas, and while therein or thereon shall create- a disturbance, or a breach of the peace, in any way whatsoever, including, but- not restricted to, loud and offensive talk, the making of threats or attempting to intimidate, or any other conduct which causes a disturbance or breach of the peace or threatened breach of the peace, shall be guilty of a misdemeanor, and upon conviction thereof shall be fined not more than five hundred dollars ($500.00) or imprisoned in jail not more than six [6] months, or both such fine and imprisonment.

Appellants contend the statute is “void in that it is vague and overbroad in violation of the fourteenth amendment and productive of a chilling effect on the exercise of rights protected by the first amendment to the Constitution of the United States.”

A legislative act is unconstitutionally vague which imposes criminal sanction for the doing of- an act, and that act is so nebulously described as to require men of common intelligence to guess at its meaning. Winters v. New York, 333 U. S. 507 (1948). We presume an act of the Legislature to be constitutional and must so hold unless it is clearly incompatible with the Cons titu don; any doubt is resolved in favor of constitutionality. Walden v. Hart, 243 Ark. 650, 420 S. W. 2d 868 (1967). In light of the stated principles we examine and resolve appellants’ contention.

It is difficult to conceive of language more vague than that which declares one a law violator when he “creates” a disturbance or breach of the peace “in any way-whatsoever.” The same is true of language whicb makes it a misdemeanor to use “offensive talk.” Then_ we find a prohibition against “attempting to intirrtfdate,” which is about as vague as one can imagine. Finally, we find in the forbidden category “any other conduct which causes a . . . threatened breach of the peace.” We have no hesitancy in concluding that men of common intelligence would have to guess as to what conduct is proscribed by those phrases.

The United States Supreme Court has considered, and unfavorably, a host of -cases involving phraseology similar to that with which we are concerned. In Ashton v. Kentucky, 384 U. S. 195 (1966), there was a conviction for an offense described as “any writing calculated to create disturbances of the peace.” The Court held that language to be so indefinite and uncertain as to be unconstitutionally vague. In Cantwell v. Connecticut, 310 U. S. 296 (1940), the charge of “inciting a breach of the peace” was condemned as being of general and indefinite character. In Terminello v. Chicago, 337 U. S. 1 (1949), an ordinance which as construed punished an utterance as a breach of the peace “if it stirs the public to anger, invites dispute, brings about a condition of unrest, or creates a disturbance.” It was held unconstitutional. For other cases in which convictions for breaches of the peace were reversed because the offenses were imprecisely defined, see Edwards v. South Carolina, 372 U. S. 229 (1963), and Cox v. Louisiana, 379 U. S. 536 (1965). In Ashton the Court said:

“Here ... we deal with First Amendment rights. Vague laws in any area suffer a constitutional infirmity. When First Amendment rights are involved, we look even more closely lest, under the guise of regulating conduct that is reachable by the police power, freedom of speech or of the press suffer.”

The indefiniteness of penal laws is the subject of a recent annotation in 16 L. Ed. 2d, p. 1231.

This brings us to the question of whether the entire § 41-1431 must fall because of the unconstitutionally vague portions. The different parts of the section are so mutually connected and interwoven as to lead us to believe that the Legislature intended them as a whole. The entire section consists of one sentence. In fact, when the impermissive words and phrases are deleted there remains hardly a skeletal sketch of a section with which to deal. We are further persuaded in that view because any permissible portions of the section are duplicated in misdemeanor statutes of long standing.

It is our conclusion that § 41-1431 should be, and is hereby, declared unconstitutional in its entirety.

Reversed and dismissed.

Fogleman and Jones, JJ., dissent.

John A. Fogleman, Justice,

dissenting. I respectfully dissent. We should consider this case only in light of the record before us. Appellants did not avail themselves of their right to appeal to the circuit court and have a trial de novo, where there would have been a full record of all proceedings. Instead, they filed a petition for certiorari, writ of error coram nobis, and prohibition. The response to that petition certainly controverts appellants’ statements about the incidents leading to their arrest and conviction. Consequently, we may only review the face of the record. The charge upon which appellants were accused and convicted was:

Comes the undersigned, Deputy Prosecuting Attorney within and for Clark County, Arkansas, and in the name and by the authority of the State of Arkansas, accuses of the crime of creating a disturbance upon a school campus or grounds committed as follows, to-wit: The said defendant in the County and State aforesaid on the 21 day of February, 1969, then and there did unlawfully and willfully create a disturbance in the Student Union Building of H. S. C. by the use of loud and offensive language and by distributing offensive literature designed to incite the emotions of the students of said campus, in violation of Ark. Statutes Section 41-1431 against the peace and dignity of the State of Arkansas.

This charge seems to me to be clearly within the purview of the act. In approaching an analysis of the act, we should carefully examine what is prohibited. As I read it, the act does not prohibit any of the enumerated specific conduct unless it creates a disturbance or a breach of the peace. The gist of the offense is the actual creation of a disturbance or a breach of the peace. The words "in any way whatsoever, including, but not restricted to, loud and offensive talk, the making of threats or attempting to intimidate, Or any other conduct which causes a disturbance of the peace or breach of the peace or threatened breach of the peace” are merely descriptive of conduct which may or may not result in a breach of the peace.

This eliminates from consideration such a case as Ashton v. Kentucky, 384 U. S. 195, 86 S. Ct. 1407, 16 L. Ed. 2d 469 (1966), where the vague language was “any writing calculated to create disturbances . of . the peace, corrupt the public morals or lead to any act, which, when done, is indictable.” That opinion also referred to decisions holding statutes making offenses of conduct “calculated to create disturbances” unconstitutionally vague. This element of uncertainty is eliminated from the statute before us.

As a matter of fact I cannot see that any of the authorities cited by the majority mandates the action taken. A thought which should be-uppermost in considering the particular question we have before us is that every reasonable presumption must be indulged and all doubts resolved in favor of the constitutional validity of-an act of the General Assembly, to the extent that when one construction would make it void for conflict with constitutional provisions and another would make it valid, the latter will be adopted, even though the former is otherwise the more natural interpretation. Waterman v. Hawkins, 75 Ark. 120, 86 S. W. 844; State v. Moore, 76 Ark. 197, 88 S. W. 881; State v. Taylor, 186 Ark. 554, 55 S. W. 2d 80; Black v. Cockrill, Judge, 239 Ark. 367, 389 S. W. 2d 881. The construction given an act by state courts has been given primary consideration by the United States Supreme Court. I submit that a construction limiting the offense to conduct which causes a disturbance of the peace or breach of the peace as suggested hereinabove meets constitutional standards.

The words breach of the peace have a commonly accepted meaning. It is set out-at 11 C. J. S. 817, Breach of the Peace, § 1, as follows:

The term “breach of the peace” is generic, and includes all violations of the public peace or order, or decorum; in other words, it signifies the offense of disturbing the public peace or tranquillity enjoyed by the citizens of a community; a disturbance of the public tranquillity by any act or -conduct inciting to violence-or tending to provoke or excite others to break the peace; a disturbance of public order by an act of violence, or which, by causing consternation and alarm, disturbs the- peace and quiet of the community. The word “peace,” as used in this connection, means the tranquillity enjoyed by- the citizens of a municipality or a. community where good order reigns among its- members.

The inhibitions of Cantwell v. Connecticut, 310 U. S. 296, 60 S. Ct. 900, 84 L. Ed. 1213 (1940), do not reach this statute. There, the particular acts involved were held not to have amounted to a breach -of the peace. The court emphasized the fact that there was no showing that Cantwell’s conduct was noisy, truculent, overbearing or offensive. I find language in that opinion appropriate here:

The offense known as breach of the peace embraces a great- variety of conduct destroying or menacing public order and tranquillity. It includes not only violent acts but acts and words likely to produce violence in others. No one would have the hardihood to suggest that the principle of freedom of speech sanctions incitement to riot or that- religious liberty connotes the privilege to exhort others to physical attack upon those belonging to another sect. When clear and present danger of riot, disorder, interference with traffic upon the public streets, or other immediate threat- to public safety, peace, or order, appears, the power of the State to prevent or punish is obvious.
* * * The sound of the phonograph is not shown to have disturbed residents of the street, to have drawn a crowd, or to have impeded traffic.
* * *
The essential characteristic of these liberties is, that under their shield many types of life, character, opinion and belief can develop unmolested and unobstructed. Nowhere is this shield more necessary than in our own country for a people composed of many races and of many creeds. There are limits to the exercise of these liberties. The danger in these times from the coercive activities of those who in the delusion of racial or religious conceit would incite violence and breaches of the peace in order to deprive others of their equal right to the exercise of their liberties, is emphasized by events familiar to all. These and other transgressions of those limits the States appropriately may punish.

In Terminiello v. Chicago, 337 U. S. 1, 69 S. Ct. 894, 93 L. Ed. 1131 (1948), the trial court instructed the jury that the words “breach of the peace” included speech which “stirs the public to anger, invites dispute, brings about a condition of unrest or creates a disturbance.” Reversal there resulted because the ordinance, as construed by the instruction and approved by the state courts, permitted Terminello’s conviction, not just for- speech which created a disturbance, but for speech which only stirred people to anger, invited public dispute or brought about a condition of unrest. It was recognized in that opinion that freedom of speech is protected against censorship or punishment, “unless shown likely to produce a clear and present danger of a serious substantive evil that rises for above public convenience, annoyance or unrest.’’

In Edwards v. South Carolina, 372 U. S. 229, 83 S. Ct. 680, 9 L. -Ed. 2d 697 (1963), the court said that the -petitioners were convicted upon evidence which showed no more than that the opinions which they were peaceably expressing were sufficiently opposed to the view of the majority of the community to attract a crowd and necessitate police action. The court said that the courts of South Carolina, which* had construed the offense as “not susceptible -of exact definition,” permitted conviction for speech which “stirred people to anger, invited public dispute or brought about a condition of unrest,” citing Terminie.llo.

In Cox v. Louisiana, 379 U. S. 536, 85 S. Ct. 453, 13 L. Ed. 2d 471 (1965), the statute was found unconstitutionally vague and-overbroad only because it prohibited “congregating with others with intent to provoke a breach of the peace or under circumstances such that a breach of the peace may be occasioned.” The reason for holding it unconstitutional was the Louisiana court’s defining of “breach of the peace” as “to agitate, to arouse from a state of repose, to molest, to interrupt, to hinder, to disquiet.”

In both Edwards and Cox the United States Supreme Court recognized that the situations prevailing in those cases were far different from that in Feiner v. New York, 340 U. S. 315, 71 S. Ct. 303, 95 L. Ed. 267 (1951). I say that Feiner constitutes authority for holding our statute constitutional. In Feiner the court found the first paragraph quoted from Cantwell above applicable and appropriate.

Appellant’s contention that the statute requires neither knowledge nor intent as an element of the crime is answered in Briggs v. State, 236 Ark. 596, 367 S. W. 2d 750, vacated on other grounds sub nom, Hamm v. City of Rock Hill, 379 U. S. 306, 85 S. Ct. 384, -13 L. Ed. 2d 300 (1964). In the statute before us the key word is “create.” The term “creation of a disturbance, breach of the peace or threatened breach of the peace” embodies intentional and willful activity. We have held that if the natural tendency of an act is to cause a disturbance, the intent to disturb is not a necessary element of the offense. Walker v. State, 103 Ark. 336, 146 S. W. 862.

If the statute is limited as I suggest at the outset, I have no trouble with the meaning of such terms as “loud and offensive talk,” “threatened breach of the peace” or “attempting to intimidate.” I think there should be no difficulty on the part of the actor or the victim in ascertaining whether there was an attempt to intimidate.

I would affirm the judgment of the circuit court.

Jones, J., joins in this dissent.

      These are synonymous terms. See, e. g., People v. Anderson, 117 Cal. App. 763, 1 P. 2d 64 (1931).


author: Lyle Brown, Justice.

text:
    Andrew WRIGHT et al v. Dean W. SAMSON et al
    5-5276
    455 S. W. 2d 137
    Opinion delivered June 22, 1970

      Rose, Barron, Nash, Williamson, Carroll ir Clay and Hale, Hale, Haynes, Fincher ir Hale, for appellants.

      Allen ir Young, for appellees.
   Lyle Brown, Justice.

The appellants are Jimmy C. Harris and Andrew Wright; the appellees are Dean Samson, George Gray, Jim Bass, Harold Archer, Julian Foster, and Old American Life Insurance Company. All of the named individuals executed two bank notes for a total of $25,000 and in turn delivered the proceeds to Old American. The trial court held that because of subsequent events, appellants had assumed full responsibility (as between the makers) for payment of the notes. Additionally it was held that Old American had relieved itself of its original agreement to furnish funds to liquidate the loans. Harris and Wright appeal.

Old American was in destitute financial straits at the beginning of 1967. A backlog of claims had accumulated because funds were simply not available to pay them. The individual appellants and appellees constituted the executive committee and collectively owned by far the major portion of the company stock. In an effort to save the company it was agreed that the committee, under the leadership of appellants Harris and Wright, would endeavour to borrow $25,000 on a personal note or notes to be signed by all committee members.

Harris’s home bank was the Citizens Bank of Carlisle and Wright’s bank was the Bank of McCrory. In May 1967 each of those banks was persuaded to make a loan of $12,500 upon personal notes signed by all members of the executive committee in their individual capacities. Both notes were joint and several obligations and payable in monthly installments of $1,000 beginning July 1. The full proceeds of the two loans were delivered to Old American. The company entered the two notes on its records as company liabilities and it was understood that Old American would make the monthly payments. The July and August payments were made according to plan but the company was unable to make further payment. Since appellants Harris and Wright were the leaders in negotiating the loans the lending agencies, on default, called on those two men to see that the notes were liquidated. Old American asserted it was no longer liable and the co-signers, save one, failed to respond to Wright’s and Harris’s requests for contributions. All the appellees were made parties and the court had before it the question of the respective liabilities of all parties toward the bank notes.

It was not disputed that initially the transaction created these obligations: (1) As between the banks and the signers of the notes the latter were jointly and severally liable; and (2) as between the signers of the notes and Old American, the latter assumed the obligations as its own. But subsequent events led the trial court to conclude that the obligations had shifted. As to what we shall call the Jim Harris note the court found appellant Harris (a) released Old American; and (b), as to his co-signers, assumed payment of the balance of the note. Harris did in fact pay the balance of the note before filing suit. The same conclusions were reached as to Andrew Wright with respect to the note at Mc-Crory. Wright had not paid the McCrory note at the time he filed his suit.

Our study of the abstract convinces us that the court based the recited conclusions principally on the minutes of a board of directors meeting held on August 24, 1967:

Andrew Wright agreed to accept 25,000 shares of Class ‘A’ Old American non-voting stock as settlement in full and to assume personally the amount of the note that he and six others signed as individuals at the Bank of McCrory. This obligation was not made in the name of Old American Life Insurance Company. After further discussion, the same identical action was taken by J. C. Harris on a similar note signed at the Bank of Carlisle by the same individuals and asked for and received his 25,000 share certificate of Class ‘A’ Old American non-voting stock.

We find substantial evidence to support the trial court’s conclusion that Old American was released from its obligation. It was explained at the August 24 meeting that I. L. Vaughn had been persuaded to buy substantial stock in Old American and assume the presidency; that a condition precedent to his entry into the company was that three notes (including these two) had to be removed from the financial statement; and Mr. Vaughn testified that the signers of the notes, except Andrew Wright, were present and agreed that Old American’s obligation would be terminated in consideration of the transfer of the stock in the names of Harris and Wright. Appellant Wright, although absent from the meeting, had executed a written memorandum which could be interpreted as showing his agreement to relieve Old American.

We do not agree with the trial court’s conclusion that the appellants, by taking the shares of stock mentioned in the minutes, assumed payment of the notes as between them and their co-makers. Since it is undisputed that appellees Samson, Gray, Bass, Archer, and Foster executed the joint and several obligations, they had the burden of proving that they were thereafter discharged from any liability. See Vandeventer v. Davis, 92 Ark. 604, 123 S. W. 766 (1909). The evidence showed convincingly that the minutes we have recited were incorrect insofar as they reflected that appellants personally assumed payment of the notes to the exclusion of their co-makers.

James E. Bass acted as reporter for the August 24 meeting. He said that the contents of the minutes we have recited were dictated to him by Dean Samson; that appellant Wright did not attend the meeting; and that it was “altogether possible” that appellant Harris was not in the room when the dictation was given. Appellee George Gray testified that he considered himself liable on the notes. Appellee Dr. Julian Foster, according to the undisputed evidence, paid appellant Harris a proportionate share of the note at Carlisle and agreed to pay appellant Wright on the other note if the Bank of McCrory would execute a release. Appellee Bass also testified that he regarded himself as liable for a proportionate payment. There was testimony that appellee Samson had promised, but failed, to make contribution. Appellees Samson and Archer did not testify.

The only disinterested witness as to the August 24 meeting was I. L. Vaughn; he had no interest in the contest between the makers of the two notes. He was invited to the meeting because he was planning to purchase a substantial interest in Old American and had agreed to advance $15,000 which would be available for the payment of pressing claims. He corroborated appellants in their testimony that they accepted the Class A stock merely as trustees for the individuals who signed the notes. Vaughn’s testimony on this point is abstracted as follows:

The stock transaction as to the issuance to Mr. Harris and Mr. Wright was discussed at that meeting including the possibility of issuing seven different certificates [there being seven signees on the notes], and it was agreed that it would be better to hold it in one certificate and since these men were the primary men on the notes, they were responsible to their banks and they knew their banker, that the stock was issued in their names and that they in turn would be the trustees for the stock and as it was sold down the road, would help liquidate the amount of the note.

That portion of the judgment which recites that Harris and Wright assumed full responsibility, as between the makers, for retiring the notes is reversed. As to the Class A stock issued in the names of appellants, each holds the same in trust for the benefit of all signers of the notes. The trial court, after modifying its judgment accordingly, will enter such additional findings and judgment as will finalize the litigation.

Reversed and remanded.

Byrd, J., not participating.


author: John A. Fogleman, Justice.

text:
    H. C. PEARROW et al v. Harold HUNTSMAN d/b/a Huntsman Farm Store
    5-4992
    455 S. W. 2d 128
    Opinion delivered June 22, 1970

      Darrell Hickman, for appellants.

      Allen, Dahlen ir Young, for appellee.
   John A. Fogleman, Justice.

The judgment of the trial court, sitting upon waiver of jury trial, was rendered in a suit brought by appellee to recover the following:

$100, balance due from M. V. Pearrow for a used tractor and cultivator
$529.37, from M. V. Pearrow upon open account for materials, goods and services
$983.89, from H. C. Pearrow and M. V. Pearrow on open account for goods, materials and services
$4,561.87, as deficiency judgment on a Model D-19 Allis-Chalmers tractor sold to M. V. Pearrow and H. C.. Pearrow as partners on May 5, 1964
$5,233.99, as deficiency judgment on an Allis-Chalmers combine and equipment sold to both of the appellants as partners on September 30, 1964
$992.05, as the balance due upon a note for $1,200 payable in annual installments of $400 each plus interest

H. C. Pearrow filed a counterclaim for $5,000 as damages alleging a breach of warranty by appellee in the representation that-the tractor and combine were without defect and new. M. V. Pearrow made an identical defense. The answers of each of the parties contained a general denial. The judgment entered contained findings that appellants were indebted to appellee, after allowing all credits, in the amounts for which suit was brought. The counterclaim was dismissed.

Two points for reversal are relied upon. They are:

I.
THE COURT ERRED IN REFUSING TO FIND FOR THE APPELLANTS SIMPLY BECAUSE THE AMOUNT OF DAMAGES WAS DIFFICULT TO ASCERTAIN.
II.
THE COURT’S FINDING THAT THERE WAS NO BREACH OF WARRANTY WAS CLEARLY CONTRARY TO THE PREPONDERANCE OF THE EVIDENCE AND CANNOT BE SUSTAINED.

We shall discuss them in the order listed.

I.

This point is premised upon the assumption of the appellants that the court’s finding of fact dictated at the conclusion of the hearing was based solely upon uncertainty as to the amount of damages suffered by appellants by reason of the alleged breaches of warranty. We do not think that this assumption is warranted. After outlining the allegations of the complaint, the trial judge stated that testimony on the part of appellee showed that there were balances due him, after repossession and sale of the equipment in the amounts alleged in the complaint, that $992.05 was due on the promissory note, that testimony on behalf of the appellants also showed that the parties owed the amounts alleged to be due-upon open account. The trial judge then made the following statement:

Then, the testimony on the part of the defendant, M. V. Pearrow, said that they were out a lot of expense on their crops, quite a lot; maybe close to $4,000 or maybe more, and that’s the nearest he came to giving the court any definite figures; the other witnesses for the defense, one testified that he was paid three or $400 to help combine some beans, and another one testified that he was paid probably three or four or five or $600; there is testimony to the effect that on the parts of the Defendants that the equipment was defective; I have testimony on the part of the Plaintiff that it was not defective, and it was not properly cared for, and abused; there is also some testimony that most of the complaints were taken care of during the warranty period.
Now, if this court were to find that the Pearrows suffered damages to their crops because this equipment was not in good order when they bought it, and didn’t stand up, just what figure would the court fix? There is no definite testimony here as to any amount; I can’t give you judgment for close to $4,000 or maybe more; I can’t give you judgment for three or four or five or $600; this court cannot, under the law, speculate as to the amount of damages, or whether they existed; so, it is the holding of this court that, according to the preponderance of the evidence in this case, that Plaintiffs should recover the balance due on the contracts, $4,567.87 on the tractor contract; $5,233.99 on the combine; $992.05 on the note, for a total of, if my addition is correct, $11,771.80.

When the findings of the trial judge and the judgment entered thereon are considered together, we do not think that the inference drawn by appellants is justified. The trial judge’s statement as to his uncertainty as to the amount of damages the court might fix under the testimony was stated in a question based upon a condition, i. e., if the court were to find that damages were suffered because the equipment was not in good order when bought. There was no specific finding whether any damages resulted from breach of warranties asserted in the counterclaim.

The real issue on the counterclaim involved questions as to whether the equipment used by appellee as demonstrators and sold to appellants was new or used equipment. The testimony on this point was in hopeless conflict, particularly upon the very material questions as to notice of breach of the warranty, rejection of the quipment by appellants within a reasonable time and resulting waiver of the breach and the effect of continued use of the equipment inconsistent with a rejection or revocation of acceptance of the equipment by appellants. All of the questions were at issue in the case and the judgment rendered by the trial court constitutes a finding on these issues adverse to appellants. Further discussion of this point is pretermitted, in view of the disposition we make of point II.

II.

Appellants’ second point would not constitute ground for reversal. It is not within our province to determine where the preponderance of the evidence lies. Zullo v. Alcoatings, Inc., 237 Ark. 511, 374 S. W. 2d 188. However, even if we considered their argument as questioning the existence of substantial evidence to support the judgment, we would still sustain it on this point. The findings of the circuit court, when the judge sits as the trier of the facts, will not be disturbed on appeal where there is substantial evidence to support them. Zullo v. Alcoatings, Inc., supra. In determining the sufficiency of the evidence to support a verdict (or a judgment where the trial is to the circuit court) all of the evidence must be viewed, with every reasonable inference derived therefrom, in the light most favorable to the appellee. Zullo v. Alcoatings, Inc., supra.

The only warranty which appellant asserts on this appeal is an express warranty provided for by Ark. Stat. Ann. § 85-2-313 (Add. 1961). In asking that the contract be rescinded and damages recovered, appellants rely entirely upon the alleged representation that the goods were new. However, upon the evidence presented the trial court could have reasonably found that this representation was not made. We will examine the evidence to determine whether, viewing it in the light most favorable to appellee, there is no substantial evidence that any such warranty was made.

Wayne Huntsman, who was associated in the farm implement business with appellee, testified at length about the transaction with appellants. He stated that appellants were told that both the combine and the tractor were demonstrators and had been used. M. V. Pearrow admitted that at the time of the purchase of the tractor, appellants were told that it had been used for demonstration purposes. Huntsman testified that, at the time of the sale of the combine, appellants were given a $900 discount because the machine had been used as a demonstrator. He also stated that an allowance of $1,693.62 was made on the price of the D-19 tractor for the same reason. M. V. Pearrow also testified that, at the time of the purchase of the combine, there were no indications that it had been used, other than to demonstrate it to a prospective buyer for an hour or two.

In passing, we might add that there was also testimony to indicate that the difficulties appellants experienced with the equipment were due to its misuse by them or their employees. We also note that there was testimony that numerous calls were made on appellants by Wayne Huntsman and by Jerry Vance, a representative of Allis-Chalmers Company, for collection purposes and that appellants made repeated promises to pay without registering any complaint about the equipment. Be that as it may, there was substantial evidence from which the trial court might well have found that appellants knew that both pieces of equipment were not new when purchased, if being new is considered in the sense that the equipment had never been used. The question whether appellee correctly represented the extent of this use was one of fact for the circuit judge. When we draw all inferences reasonable in favor of the court’s judgment, it cannot be said to be without substantial evidentiary support.

The judgment is affirmed.


author: J. Fred Jones, Justice.

text:
    Daniel L. TROXEL by his Father and next Friend v. BOB SULLIVAN CHEVROLET-CADILLAC CO.
    5-5314
    455 S. W. 2d 667
    Opinion delivered June 22, 1970

      Lee Ward, for appellant.

      Graham Partlow, Jr., for appellee.
   J. Fred Jones, Justice.

This is an appeal by Daniel L. Troxel, a minor, by his father and next friend, from a decree of the Mississippi County Chancery Court, Chickasawba District, wherein the chancellor entered a decree in favor of Troxel against Bob Sullivan Chevrolet-Cadillac Co. for $1,500, and for Bob Sullivan Chevrolet-Cadillac Co. on its counterclaim against Troxel for $511.69.

The facts are briefly these: On January 16, 1969, Daniel L. Troxel, who was then 18 years of age, purchased a new automobile from the appellee Sullivan Co. for the agreed purchase price of $3,631.69. He paid the sum of $1,500 cash on the purchase price and agreed in writing to continue monthly payments in the amount of $72.22 each month for a period of 36 months. Danny Troxel took the automobile home and the following Monday morning on January 20, while he was driving the new automobile, the universal joint fell out of it. He returned the automobile to the appellee who repaired it and Danny paid the sum of $17.88 over and above the amount of warranty. Danny was also charged $107.62 for credit life insurance. He denied that he ever received a policy but the evidence is clear that Educators and Professional Life Insurance Company policy No. 440189 in the amount of $2,599 was issued to Danny L. Troxel with the appellee shown as beneficiary.

Troxel filed suit on March 13, 1969, alleging usury in the sale of the automobile and also alleging his election to rescind the contract because of minority under the provisions of Ark. Stat. Ann. § 68-1601 (Repl. 1957) which is as follows:

“In the case of a sale, contract to sell, conditional sale contract, or other contract to which an infant 18 years of age or older is a party, such sale, contract to sell, conditional sale contract or other contract cannot be rescinded by the infant unless and until such infant makes full restitution to the other party or parties to the sale, contract to sell, conditional sale contract or other contract of the property and/or money received by the infant from such other party or parties. Full restitution of property means that the property must be returned in substantially the same condition as received; or if this cannot be done, there must be returned the property plus a sum of money which equals the difference between the fair market value of the property at this [the] time the sale, contract to sell, conditional sale contract, or other contract was made and its fair market value at the time of the rescission; or if the property is no longer in the possession of the infant, there must be returned a sum of money equal to its fair market value at time the sale, contract to sell, conditional sale contract or other contract was made.”

Troxel prayed for recovery of the automobile free and clear of any encumbrance as a penalty for usury. In the alternative, he prayed judgment for $1,500 together with his cost. The appellee filed answer and counterclaim in which it alleged that young Troxel represented to the appellee that he was born on August 4, 1947, and that such falsehood induced the appellee to sell the automobile to him. The appellee denied that Troxel has made full restitution as required by § 68-1601, supra, and the appellee prayed foreclosure of its lien under the Uniform Commercial Code and for judgment against Troxel for any unrecovered balance of the debt.

The chancellor found that after the purchase of the automobile and its return to the appellee for repairs, Troxel defaulted on his contract of purchase and the automobile was properly retained by the appellee under the provisions- of the Uniform Commercial Code; that after due advertisement the automobile was sold and the proceeds applied on the balance of the purchase price of the automobile. The chancellor also found, however, that Troxel was in fact under the age of 21 years when he purchased the automobile, and that Troxel had a right to rescind the contract because of minority. The chancellor further found that young Troxel did not return the automobile to the appellee in substantially the. same condition as he received it, as required under the provisions of § 68-1601, supra; and that the value of the automobile had decreased in the amount of $511.69 from the time of its purchase by Troxel until the time it was repossessed by appellee. The chancellor decreed judgment in favor of Troxel for $1,500 with set off in favor of the appellee Sullivan Co. for $511.69 on its counterclaim, leaving a net balance of $988.31 for which a decree was entered in favor of Troxel.

On appeal to this court Troxel relies on the following points for reversal:

“The trial court erred in holding that the appellee did not practice usury upon the appellant in the transaction involved here.
The trial court erred in setting off against $1,500.00 owed to appellant by the appellee damages in the amount of $511.69 or in any other sum.
The trial court erred in refusing to assess the costs of this proceeding against the appellee.”

In discussing appellant’s points in the order presented, we find no merit in appellant’s contention under its first point. The usury allegation is based upon the additional charge of $107.62 for credit life insurance and the record falls short of proof that this charge was a subterfuge for additional interest. The record is clear that Troxel requested, or at least authorized, the appellee to purchase the insurance, and that the insurance was actually purchased by the appellee and the policy issued by the insurance company. Troxel received full value for the amount he was charged for insurance, and when the insurance was canceled, the unearned premium was refunded by the insurance company and credited to Troxel’s account. We have held that a collateral agreement of this nature, when made in good faith and carried out, does not constitute usury. Universal C. I. T. Credit Corp. v. Lackey, 228 Ark. 101, 305 S. W. 2d 858.

As to appellant’s second point, we are of the opinion that the chancellor did not err in setting off against the $1,500 owed to appellant by the appellee, damages in the amount of $511.69. There is no question that the automobile had been driven 266 miles while it was in the possession of the appellant. The evidence is undisputed that the automobile could not be resold as a new automobile, but that it would be necessary to resell it as a -used automobile and at a reduction from the new market price.

Young Troxel did not testify when the case was tried, but his father, J. H. Troxel, testified that Danny was 18 years of age at the time he purchased the automobile; that he rode in the automobile with Danny on the evening he purchased it, and that from his experience in having owned at least 42 different automobiles, he knew there was something wrong with the rear end of the automobile and so advised Danny. Despite this advice from Mr. Troxel, Danny kept the automobile for three additional days and drove it a distance of 266 miles. The automobile was a high powered sports model and even though the manufacturer honored its warranty in repairing the automobile-, there was considerable inference that could be drawn from the evidence that Danny’s own abuse and mistreatment of the automobile may have contributed to the necessity for the repairs. Mr. Troxel testified that in his opinion, if the automobile was properly repaired, it was in better shape after the repairs than it was when Danny purchased it. If Mr. Troxel was correct in this regard, then any deterioration in market value would be solely due to the use of the automobile in driving it 266 miles.

Mr. J. D. Widner, general manager of the appellee Bob Sullivan Co., testified that he approves all credit sales and is familiar with the sale to Troxel. Mr. Widner testified that the appellee purchased the automobile for $3,331.69. He testified that the company considers the cost of servicing a new automobile to be $60, and that in the purchase of a new automobile a commission in the amount of $70 is paid, making a total of $3,461.69 the appellee company actually had invested in the automobile when it was sold-to--Troxel for the sale price of $3,631.69. He testified that the company received a rebate from the life insurance company in the amount of $95.78 for the unearned premium on the credit life insurance purchased by Troxel, making the company’s total “pay-off” in the amount of $2,-189.78. He says that the automobile was sold to an individual on June 23, 1969, for the net amount of $3,081.46. This witness also testified that the $17.88 Troxel paid over and above the warranty on the repair to the automobile, was for a clutch disk which was so sensitive to misuse it was not subject to warranty. Mr. Widner testified that after the automobile was repaired following the four days and 266 miles Troxel had used it, the automobile was in as good shape mechanically as a new automobile, and that the only thing that had reduced it in value was the fact that it would have to be sold as a used car.

The chancellor does not set out how he arrived at the exact figure of $511.69 as the loss in value on the automobile and which he allowed as a set off against the $1,500 down payment he ordered returned to the appellant. There is considerable testimony pertaining to the various values of the automobile, both wholesale and retail. Mr. Widner testified that the market value of the automobile, in its repaired condition, was practically the same as before except- for the fact that after it was returned by the appellant with 266 miles showing on the speedometer, it became a used automobile on the market. Neither Mr. Widner nor any other witness, testified what the market value would be for a used automobile of the make and model and with the speedometer reading as the automobile involved in this-case. Mr. Widner does state that the automobile was worth what it was sold for and there is no question that it was sold to Troxel for $3,631.69, and that it was sold the second time, after repair, for $3,081.46. Consequently, the appellee finally sold the automobile for $550.23 less than the original sale price to Troxel.

Thus, it appears that the only difference in the market value of the automobile after it was purchased and used by Troxel firom January 16 to January 20 was due-to-the -fact- -that the automobile had been driven 266 miles and it would be necessary to sell it as a used automobile. According to Mr. Widner’s testimony, the principal item accounting for a difference in value would be the loss of six months of the first years’ warranty, but no monetary value is placed on that. Mr. Troxel testified that the automobile was in better shape after the repairs than it was before, and Mr. Widner says that it was in as good shape mechanically as a new automobile, consequently, the chancellor was justified in accepting the difference in the retail price for which the automobile sold as the difference in the market value of the automobile because of its use by the appellant. This difference amounted to $550.23, so we conclude that the court did not err in awarding a set off in the amount of $511.69.

It must be remembered that this is not -a case of rescission for breach of express or implied warranties, or because of fraudulent misrepresentations. This is a rescission because the purchaser was under 21 years of age and the appellant’s right to rescind is not questioned. The appellant was married and falsely represented himself to be 21 years of age when he purchased the automobile. Other evidence in the record before us does not recommend the appellant for special consideration under the axioms of equity. We conclude, therefore, that the chancellor’s decree is not against the preponderance of the evidence and should be affirmed.

We hold that the chancellor did not abuse his discretion, under the facts of this case, in requiring that each party pay his own cost.

The decree is affirmed.


text:
    James A. PENNEY v. CITY OF NORTH LITTLE ROCK
    5-5507
    455 S. W. 2d 132
    Opinion delivered June 22, 1970

      Harold Hall, for appellant.

      John Harmon and Larry Wallace, for appellee.
   J. Fred Jones, Justice.

James A. Penney was convicted in the North Little Rock Municipal Court and fined $25 for failure to wear protective headgear while operating a motorcycle in violation of § S of Act 201 of 1959, as amended by Act 296 of 1967 (Ark. Stat. Ann. § 75-1703 [Supp. 1969]). On appeal to the Pulaski County Circuit Court, Penney was again convicted and on appeal to this court he relies on the following point for reversal:

“The Court erred in refusing to grant the defendant’s Motion to dismiss on the grounds that the Act under which he was charged was unconstitutional.”

Act 296, approved March 10, 1967 (§ 75-1703, supra) provides, in part, as follows:

“From and after the effective date of this Act, all riders used upon the public streets and highways of this State and passengers of motor driven cycles and motorcycles shall be equipped with the following equipment under standards set forth by the department of motor vehicles for the State of Arkansas:
(a) Protective headgear,
(b) Protective glasses, goggles or transparent face shields.”

We take judicial notice of Motor Vehicle Division regulation No. 1967-3 promulgated under authority of Act 296 of 1967, supra, which sets forth standards for the equipment required under the Act. The sole question presented on this appeal is whether the Act under which Penney was convicted is constitutional, and we hold that it is.

The appellant contends that the Act involved is unconstitutional “in that it is beyond the police power of the legislature. The Act was passed for the protection of the rider himself and not the general public.” The appellant insists that the Act is unconstitutional and urges us in so holding, to adopt the views of the Michigan, Ohio, New York and Louisiana courts as announced in the following cases: By Michigan in American Motorcycle Association v. Davids, 158 N. W. 2d 72; by Ohio in State v. Betts, 252 N. E. 2d 866; by New York in People v. Carmichael, 279 N. Y. S. 2d 272, 53 Misc. 2d 584, and by the Court of Appeals of Louisiana as announced in Everhardt v. City of New Orleans, 208 So. 2d 423.

We are of the opinion that the better reasoning favors the courts who have held similar statutes constitutional and we feel more comfortable aligned with the final decision of the New York court in People v. Carmichael, as announced in 288 N. Y. S. 2d 931, and the final Louisiana Supreme Court decision in Everhardt v. City of New Orleans, as announced in 217 So. 2d 400. In reversing the Special Sessions Court in Carmichael, the Genesee County Court in 288 N. Y. S. 2d 931, said:

“. . . While concededly the instant legislation may infringe on the rights of the individual, it is equally apparent that such is incidental to a valid exercise of the police power and is not unreasonable. * * # The use of protective helmets is an accepted and widely used safety device in our so-1 ciety. A standard by its nature may be a general one and nonetheless valid if it is capable of reasonable application under the circumstances.”

The Supreme Court of Louisiana in the final disposition of the Everhardt case, reversed the Fourth Circuit Court of Appeals and held that the Louisiana statute was constitutional. The Fourth Circuit Court of Appeals in Everhardt, as reported in 208 So. 2d 423, found the Carmichael decision as announced by the Special Sessions Court for the Town of Oakfield in New York, persuasive and proceeded to follow it. It is interesting to note that by the time Everhardt was finally decided and reversed by the Supreme Court of Louisiana, the New York Special Sessions Court in People v. Carmichael had also been reversed and the New York statute held to be constitutional.

In the Texas case of Ex Parte Smith, 441 S. W. 2d 544, the constitutionality of a similar statute was involved and the defendant-appellee also relied on the earlier New York and Louisiana decisions in Carmichael and Everhardt, but the Texas Court of Criminal Appeals aligned itself with the later and final decisions in Carmichael and Everhardt, as well as with the decisions from a number of other states in holding similar statutes constitutional.

The protective headgear statutes appear very similar in all the states where they have been adopted, and in a majority of such states, where the constitutionality of the Act has been questioned, the courts have held the Acts are constitutional. Kentucky seems to be the most recent state to join the majority in holding a similar statute constitutional. In the case of Commonwealth of Kentucky v. Coffman, rendered on May 1, 1970, and not yet reported in printed form, it is pointed out that the Kentucky statute requires that all persons operating or riding motorcycles are required to wear protective helmets of the type approved by the commissioner of public safety. In aligning Kentucky with the majority view, the Supreme Court of Kentucky said:

. . [Ojnly two states, Illinois and Michigan, have declared acts similar to the one here in question to be unconstitutional. See People v. Fries, Ill., 250 N. E. 2d 149, and American Motorcycle Association v. Davids, Mich., 158 N. W. 2d 72.
At least thirteen other states have upheld the constitutionality of similar acts. In Bisenius v. Karns, Wis., 165 N. W. 2d 377, the Wisconsin Supreme Court in a well-reasoned opinion upheld the constitutionality of a similar act. This case went to the Supreme Court of the United States where the appeal was dismissed ‘for want of a substantial federal question.’ 395 U. S. 709, 89 S. Ct. 2033 (1969).
Among other states that have upheld statutes requiring motorcycle operators and riders to wear protective headgear are North Carolina, Louisiana, Rhode Island, Massachusetts, North Dakota, Vermont, Missouri, Florida, Washington, Oregon, and Connecticut. See Everhardt v. City of New Orleans, 217 So. 2d 400 (La., 1968); State ex rel. Colvin v. Lombardi, 241 A. 2d 625, (R. I., 1968); Commonwealth v. Howie, 238 N. E. 2d 373 (Mass., 1968) cert. den. 393 U. S. 999, 89 S. Ct. 485; State v. Odegaard, 165 N. W. 2d 677 (N. D., 1969); State v. Colomon, 260 A. 2d 377 (Vt., 1969); State v. Darrah, 446 S. W. 2d 745 (Mo., 1969); State v. Eitel, 227 So. 2d 489 (Fla., 1969); State v. Laitinen, 459 P. 2d 789 (Wash., 1969); State v. Fetterly, 456 P. 2d 996 (Oreg., 1969); State v. Burzychi, 252 A. 2d 312 (Conn., 1969).
Since the Missouri court decided State v. Darrah, supra, it had occasion on March 9, 1970, to again decide a case involving the identical questions raised in the present case in State v. Cushman, Mo., 451 S. W. 2d 17, to which we refer the reader for a more detailed reason for the results herein reached.
... in the narrow -scope in which the safety device is here presented, we have no hesitancy in holding that the statute in question has a real and substantial relation to the public welfare and is therefore constitutional.”

We join, the decisions of what appears to be by far the great majority of the courts of the other states, in holding that § 3 of Act 201 of 1959, as amended by Act 296 of 1967, is a proper exercise of the police powers of the state of Arkansas and is constitutional. In doing so we are unable to find better expressed reasons than has been given in the various cases, supra, but we consider the reasoning, as expressed by the New Jersey court in State v. Mele, 247 A. 2d 176, to be very much in keeping with our own view in the case at bar. In that case the New Jersey court said:

“. . .At first glance, a requirement of protective headgear seems aimed only at protection of the individual. However, serious thought indicates otherwise. The general public has a right to be protected from the accidents which might result from a blow on the head received from objects kicked up from the highway. The blow, however slight, might be just enough to distract a motorcyclist and cause him to lose control and become a menace to other vehicles or pedestrians on the highway.”

We also approve the language used by the Supreme Court of North Carolina in the case of State v. Anderson, 164 S. E. 2d 48, where, in holding constitutional a statute almost identical with our own, the North Carolina Court said:

“Death on the highway can no longer be considered as a personal and individual tragedy alone. The mounting carnage has long since reached proportions of a public disaster. Legislation reasonably designed to reduce the toll may for that reason alone be sufficiently imbued with the public interests to meet the constitutional test required for a valid exercise of the State’s police power. However, it is not necessary to invoke so broad a premise in order to find the statute here attached to be constitutional.”

We, therefore, hold that since the statute in question bears a reasonable, real and substantial relation to the public health, safety and welfare, it is constitutional as a valid exercise of the police power of the state of Arkansas. Therefore, since the facts are not in dispute, the judgment of the circuit court must be affirmed.

Affirmed.


author: Conley Byrd, Justice. John A. Fogleman, Justice,

text:
    FIRST HERITAGE LIFE ASSURANCE COMPANY v. James K. BUTLER
    5-5297
    455 S. W. 2d 135
    Opinion delivered June 22, 1970

      Allen ér Young, for appellant.

      Botts & Jenkins, for appellee.
   Conley Byrd, Justice.

Appellant First Heritage Life Assurance Company sold to appellee James K. Butler a $50.00 per week total disability income policy which also contained coverage for hospital benefits. On August 17, 1968, appellee suffered a heart attack and as a result was hospitalized for 21 days. Appellee thereafter brought suit for total disability under clause (c) of the policy at the rate of $7.14 per day and under clause (d) for hospital benefits at the rate of $50.00 per day. The parties compromised the clause (c) coverage upon tender of $7.14 per day but the insured refused appellant’s tender of $7.14 per day for hospital benefits. The trial court held that clause (d) provided $50.00 per day coverage for hospital benefits and assessed a 12% penalty and attorney’s fees against appellant. For reversal appellant relies upon the following points:

“I. The language of clause (d) is not ambiguous in that its ordinary and plain meaning is that the appellee/insured is to receive hospitalization benefits at the rate of $7.14 a day.
II. The meaning of the wording in clause (d) is controlled by the interpretation the parties have previously placed upon identical wording in clause (c) whereby appellee was entitled to benefits at the rate of $7.14 a day.”

Clauses (c) and (d) of the policy provide:

“(c) TOTAL DISABILITY — SICKNESS. When such sickness causes total disability ... the Company will periodically pay at the rate of the regular weekly benefit stated in the policy schedule for one day or more beginning with the date of the first medical treatment during disability, so long as the Insured lives...
(d) HOSPITAL BENEFIT — ACCIDENT OR SICKNESS. If the Insured is confined within a hospital as a regular in-patient for one day or more during a period of total disability for which indemnity is payable under this Part II, the Company will, in addition to any other benefits payable, pay an amount per day at the rate of the regular weekly benefit stated in the policy schedule for the period of such hospital confinement, commencing with the first day of such confinement, ...”

The policy schedule provides:

“Weekly Accidental Death Benefit $50.00. Weekly Benefits for Total Disability from Accident or Sickness $50.00.”

We agree with the trial court that clause (d) is ambiguous. The cardinal rule of insurance law is that policies of insurance will be interpreted and construed liberally in favor of the insured and strictly against the insuror. When clause (d) is considered in the light most favorable to the insured it becomes obvious that the reference to “the rate of the regular weekly benefit stated in the policy” is used in the context of the amount of the weekly benefit. When used in that context the policy can be read as providing: the Company will, in addition to any other benefits payable, pay an amount per day at the rate of $50.00.

Under its second point appellant argues that since both clause (c) and clause (d) contain the identical phrase “at the rate of the regular weekly benefit stated in the policy schedule” and since the insured interpreted clause (c) as providing coverage of only $7.14 per day, the insured should be bound by the interpretation given to the phrase in clause (c). We find no merit in the contention. In clause (c) the prepositional phrase, “at the rate of the regular weekly benefit stated in the policy schedule,” is used as an adverb to qualify the intransitive verb “pay”. In clause (d), however, the identical phrase is used as an adjective to describe the noun “amount”. The different constructions given to the identical phrase are not inconsistent because as an adverb under clause (c) the phrase qualifies the verb “pay” to show HOW the Company will pay, but as an adjective under clause (d) it describes the AMOUNT the Company will pay per day.

Affirmed.

Fogleman, J., dissents.

John A. Fogleman, Justice,

dissenting. I respectfully dissent. I do not agree that clause (d) is ambiguous. The majority has construed the clause as if it read: “the Company will, in addition to any other benefits payable, pay an amount per day * * * of the regular weekly benefit stated in the policy schedule for the period of such hospital confinement.” This gives the omitted words “at the rate” no significance or meaning whatever. We are not privileged to do this, however strictly the contract should be construed against the insurer. The courts are not warranted in importing an ambiguity into a policy which does not exist or in forcing an unnatural or perverted meaning from plain words under the guise of construction. Looney v. Allstate Insurance Company, 392 F. 2d 401 (8th Cir. 1968); Jefferson Insurance Co. v. Hirchert, 281 F. 2d 396 (8th Cir. 1960); Bergholm v. Peoria Life Insurance Co., 284 U. S. 489, 52 S. Ct. 230, 76 L. Ed. 416 (1932).

I respectfully suggest that one or the other of the forbidden steps must be taken to affirm this judgment. “At the rate of” does not and cannot mean “in the amount of.” Rate implies a ratio, proportion, a fixed relation between two things. It means a payment according to a ratio, scale or standard. See Webster’s Third New International Dictionary. It means the proportion or standard by which quantity or value is adjusted. See Black’s Law Dictionary, Fourth Edition.

I do not agree with appellant that by accepting payments under clause (c) the parties have construed clause (d). There are two different standards in these clauses. In (c) the company is to pay periodically at the rate of the regular weekly benefit for one day or more. In clause (d) the company, in addition to other benefits will pay an amount per day at the rate of the weekly benefit.

If the weekly benefit is $50, then the amount to be paid by the company per day at the rate of the regular weekly benefit can only be $7.14.

I would reverse the judgment.