author: Sam RobiNsoN, Associate Justice. Carleton Harris, Chief Justice, Ed. F. McFaddiN, Associate Justice,

text:
    Duncan v. Kirby, Judge.
    4896
    311 S. W. 2d 157
    Opinion delivered March 17, 1958.

      Kenneth Goffelt and Pope, Pratt & Shamburger, for petitioner.

      Joseph G. Kemp, City Atty., and Gardner A. A. Deane, Jr., Asst. City Atty., for respondent.
   Sam RobiNsoN, Associate Justice.

The issue is whether a writ of prohibition shall he granted. The petitioner, Vernon Duncan, was convicted in the Little Rock Municipal Court. He appealed to the Circuit Court and later filed a motion to dismiss the charge. His motion was overruled and he then filed in this Court a petition for a writ of prohibition to prevent the Circuit Court from putting him to trial. The charges filed against Duncan in the Municipal Court were as follows: “* * * that Vernon H. Duncan did violate the ordinances of the City of Little Rock including Ordinance No.by Disturbing the Peace and Refusing to Obey tbe Lawful Orders of an Officer of the U. S. Army acting pursuant to the proclamation of President Eisenhower, September 23, 1957, and the executive order of the President of September 24, 1957, directing the U. S. Army, of which the said Linden 0. Tanner is a member, to enforce a decree of the United States District Court for the Eastern District of Arkansas, ordering integration of Central High School, Little Bock, Arkansas on or about the 3rd day of October 1957, in the City of Little Bock and State of Arkansas against the peace and dignity of the City of Little Bock.”

In the Little Bock Municipal Court, Duncan was acquitted of the charge of disturbing the peace, but was convicted on the charge of “Bef using to Obey the Lawful Orders of an Officer of the U. S. Army * * V’

We reach two points only: First, does the charge against Duncan constitute an offense punishable in the courts of this State? Second, if the charge does not constitute such an offense, is prohibition a proper remedy? If it is a crime in this State to fail to obey an order of an officer of the United States Army, then the charge must be based on some statute making such conduct a criminal offense. There is no statute to that effect.

The City of Little Bock, an intervener in this case, relies on two statutes: Ark. Stat. § 11-508 and § 41-1403. Section 11-508 (Act 85, 1929, § 75) provides: “Molestation of guard while on duty — Punishment.— Any person who interrupts, molests or insults by abusive words or behavior, or obstructs any officer or soldier of the National Guard while on duty, may be immediately put and kept under guard until said duty is concluded, by the officer in command. Such officer may turn him over to any peace officer of the city or place where such duty is being performed and such peace officer shall thereupon deliver such offender for examination and trial before any court having jurisdiction. Any person violating the provisions of this section shall be guilty of a misdemeanor, and, on conviction, fined in any sum not less than fifty dollars CÉ50.00).”

In its brief intervener says: “Lt. Linden 0. Tanner, the officer who signed the affidavit charging the Petitioner with the above offense, was a member of the Arkansas National Guard called into Federal Service pursuant to the Proclamation and Order of the President of the United States.” Thus, it is conceded that Lieutenant Tanner had been called into federal service and was acting, not on orders of the Governor of Arkansas, but pursuant to an order of the President of the United States. Ark. Stat. § 11-508 applies only to the National Guard when it is acting as the National Guard with the Governor of the State as commander in chief, or acting under the command of some other officer of the State authorized by law.

Act 85 of 1929 is known as the Military Code of Arkansas. It deals with the State militia as such, and there is nothing in the Act which indicates that any part thereof shall apply to a member of the militia after he has been called into federal service. In fact, a militiaman who is in the service of the United States is removed from the provisions of the Act and the command of the Governor. Act 85, 1929, § 11 (Ark. .Stat. § 11-111) provides : ‘ ‘ The Governor of the State, by virtue of his office, shall be the commander-in-chief pf the Militia of the State, except of such portions as may be at times in the service of the United States. * * *”

To say that a person could be guilty of the failure to obey a United States Army officer after such officer is called into federal service from the Arkansas National Guard, but that such accused person could not be guilty if he failed to obey a United States Army officer if the officer went into federal service from West Point, would be placing an unjustifiable construction on the statute which would be wholly unreasonable.

Ark. Stat. § 41-1403 provides: “Disturbers failing to disperse — Penalty.—If two (2) or more persons assemble together for the purpose of disturbing the public peace or committing any unlawful act, and do not disperse on being desired or commanded so to do by the judge, justice • of the peace, sheriff, coroner, constable or other public officer, all persons so offending shall, on conviction thereof, be severally fined in any sum not less than ten ($10.00) nor more than one hundred dollars ($100.00), or imprisoned in the county jail not less than one (1) nor more than three (3) months, or both at the discretion of the court.” Before an accused could be guilty of violating this Act, he would have to assemble for the purpose of disturbing the peace or committing some unlawful act. Here the accused was tried and found not guilty of disturbing the peace. Furthermore, the Act applies to justices of the peace, sheriffs, coroners and constables of the State of Arkansas. It cannot seriously be contended that a person could be guilty of violating this statute in Arkansas by failing to disperse on orders of a constable from Canada or a justice of the peace from New York, and when the statute says “other officers” it means other officers of the State or a subdivision thereof, such as city police, or the State police, or deputy sheriffs.

We now come to the point of whether the charge against the accused is such that prohibition will be granted. It has been pointed out that no public offense is charged. We have no statute making it a crime or misdemeanor for the accused to do what he is charged with doing. The writ of prohibition lies where an inferior court is proceeding in a matter beyond its jurisdiction and where the remedy by appeal, though available, is inadequate. Norton v. Hutchins, 196 Ark. 856, 120 S. W. 2d 358; Murphy v. Trimble, 200 Ark. 1173, 143 S. W. 2d 534. And where it appears that an inferior court is about to proceed in a matter over which it is entirely without jurisdiction under any state of facts which may be shown to exist, then the superior court exercising supervisory control over the inferior court may prevent such unauthorized proceedings by the issuance of a writ of prohibition. Norton v. Hutchins, supra.

Of course, if there is any question of fact upon which jurisdiction may turn, prohibition will not lie. Murphy v. Trimble, supra. But here, there is no conceivable finding of fact by which the petitioner could be guilty. He lias been found not guilty of disturbing tbe peace. Tbe remaining charge is simple: That be refused to obey an order of a United States Army officer. There does not appear to be any way in which the charge could be amended or corrected so as to allege a criminal offense in this State. Assuming Lieutenant Tanner’s affidavit is true in every detail (except, of course, the disturbing the peace charge, which has been disposed of), still no offense is charged. It simply is not against the law in Arkansas to fail to obey an order of an officer of the United States Army, and it is conceded that Lieutenant Tanner was acting in the capacity of an officer of the United States Army at the time the order is alleged to have been given.

It is said in 73 C. J. S. 56: “A writ of prohibition will lie to restrain a criminal or g-wosi-criminal prosecution for an offense beyond the jurisdiction of the court, * * V’ Citing Logan v. Harris, 213 Ark. 37, 210 S. W. 2d 301. The case sustains the text. If prohibition will be granted where a court is acting beyond its jurisdiction, how much more so the remedy should be allowed where no offense at all is charged. Our conclusion is that petitioner is not charged with an offense punishable under the laws of this State, and to force him to trial, thereby affording him only the remedy of appeal from a possible conviction, which would be invalid, would not leave him an adequate remedy, and prohibition should be granted.

In Evans v. Willis, 22 Okla. 310, 97 P. 1047, 19 L. R. A., N. S., 1050, it is said: “When it appears to the court having jurisdiction to issue the writ of prohibition, that the lower court, under any conditions, is without jurisdiction to try the accused upon the alleged information filed, * * # to require him to invoke the remedy of appeal, occasioning delay and necessitating a supersedeas bond, or resulting in his being confined in jail pending the determination of his appeal, * * * would work an unnecessary and unreasonable hardship upon the accused.”

We do not reach, the point of whether the President acted beyond the scope of his authority in ordering troops into Arkansas to enforce a court decree. This would perhaps involve a construction of the Constitution of the United States, and it is firmly established that constitutional questions will not be determined unless their determination is essential to a disposition of the case. Sturdivant v. Tollette, 84 Ark. 412, 105 S. W. 1037; Road Improvement Dist. No. 1 v. Glover, 86 Ark. 231, 110 S. W. 1031; Martin v. State, 79 Ark. 236, 96 S. W. 372; Thornbrough, Commissioner of Labor, v. Danco Constr. Co., 226 Ark. 797, 294 S. W. 2d 336.

Petition granted.

Harris, C. J., and Holt and McFaddiN, JJ., dissent.

Carleton Harris, Chief Justice,

dissenting. Under the authority of McClendon v. Wood, 125 Ark. 155, 188 S. W. 6, I respectfully dissent to the ruling of the majority. In that case, the mayor of Hot Springs was under indictment returned by the Garland County Grand Jury for non-feasance in office, and the mayor sought a writ of prohibition from this Court, alleging that the Circuit Judge was about to proceed to a trial of the case without a jury, under the Constitution, he was entitled to a trial by jury, and the court would be acting beyond its power in attempting to try the case without giving him the benefit of a jury trial. This Court, in denying the writ, said:

“ ‘The office of the writ of prohibition,’ said this court in the case of Russell v. Jacoway, 33 Ark. 191, ‘is to restrain an inferior tribunal from proceeding in a matter not within its jurisdiction; but it is never granted, unless the inferior tribunal has clearly exceeded its authority, and the party applying for it has no other protection against the wrong that shall be done by such usurpation. ’”

The remedy by appeal is certainly adequate in this case.

Ed. F. McFaddiN, Associate Justice,

dissenting. It is my firm conclusion that the Writ of Prohibition should not issue in this case, since Duncan’s remedy by appeal is adequate.

We have this situation. The petitioner, Yernon Duncan, was charged in the Municipal Court of Little Rock with two misdemeanors: (1) disturbing the peace; and (2) refusing to obey the lawful orders of an officer of the United States Army, etc. Duncan was tried in the Municipal Court and found not guilty of disturbing the peace, but found guilty of refusing to obey the lawful orders of an officer of the United States Army, etc. Prom that conviction Duncan appealed to the Pulaski Circuit Court. The record contains no motion made in the Municipal Court to set aside the conviction.

If Duncan had thought the Little Rock Municipal Court was without jurisdiction to try him on the charge of refusing to obey the lawful orders of an army officer, then why did he not seek a Writ of Prohibition from the Pulaski Circuit Court under Art. YII, § 14 of our Constitution? No: he stood trial in the Municipal Court and then appealed. So far as this record shows, it was a straight appeal to the Pulaski Circuit Court. The point I make is, that Duncan invoked the jurisdiction of the Pulaski Circuit Court. Duncan cannot say the Pulaski Circuit Court is without jurisdiction to hear the misdemeanor case on appeal, because he invoked that jurisdiction.

In the Pulaski Circuit Court Duncan filed a motion to reverse the judgment of conviction of the Municipal Court; and when that motion was overruled, Duncan applied to this Court — in the present proceeding — for a Writ of Prohibition. Having invoked the jurisdiction of the Pulaski Circuit Court by appeal, Duncan should proceed with his trial on the misdemeanor charge in the Circuit Court; and then, if still dissatisfied, he can appeal to the Supreme Court. It is against all orderly processes for Duncan to invoke the jurisdiction of the Pulaski Circuit Court and then seek to prohibit the jurisdiction of the Pulaski Circuit Court; and yet that is the inconsistent position in which he finds himself in his attempt to prosecute this Petition for Writ of Prohibition.

Duncan says that his remedy by appeal is inadequate and incomplete and therefore he is entitled to prohibition. "When a person demurs to a complaint and the demurrer is overruled, orderly processes require trial before appeal. By granting prohibition in this case the majority is, at least, intimating that every time a demurrer to an indictment or information be overruled, it will test such ruling on Petition for Writ of Prohibition. The case on which I place considerable reliance is that of McClendon v. Wood, 125 Ark. 155, 188 S. W. 6. The opinion in that case recites a law of 1895 to the effect, that if the mayor of any city should knowingly and wilfully fail, refuse, or neglect to execute the laws and ordinances, then such official rvould be guilty of a misdemeanor, and upon trial and conviction in the circuit court such official would be removed from office. A proceeding was instituted against the Mayor of Hot Springs (McClendon) ; and the Judge of the Garland Circuit Court was about to try McClendon without a jury. McClendon petitioned this Court for.a Writ of Prohibition to prevent his trial by the Judge without a jury. Certainly the right of trial by jury, guaranteed by the Constitution, is equivalent to any rights that a person might have on a misdemeanor appeal filed by such person in the circuit court.

In McClendon v. Wood the Supreme Court of Arkansas said that McClendon’s remedy by appeal was adequate and that, therefore, prohibition would not lie. That case is ruling here: Duncan invested the Circuit Court of Pulaski County with jurisdiction when he appealed his misdemeanor conviction from the Municipal Court to the Circuit Court. The Pulaski Circuit Court should not be prohibited from proceeding with the trial of Duncan. If he claims that there was no offense committed, then let it be brought up 011 appeal where we will have the full record before us.

Finally, we have a Statute in Arkansas — § 11-508, Ark. Stats. — which reads as follows:

"Any person who interrupts, molests or insults by abusive words or behavior, or obstructs any officer or soldier of the National Guard while on duty, may be immediately put and kept under guard until said duty is concluded, by the officer in command. Such officer may turn him over to any peace officer of the city or place where such duty is being performed and such peace officer shall thereupon deliver such offender for examination and trial before any court having jurisdiction. Any person violating the provisions of this section shall be guilty of a misdemeanor, and, on conviction, fined in any sura not less than fifty dollars ($50.00). (Acts 1929, No: 85, § 75, . . .) ”

I think this is a salutary Statute: any civilian who resists the military will not be tried in military courts but will be returned to the civil courts for trial. Did Duncan violate this Statute by resisting the order of the officer ¶ Just because the officer was in the Army of the United States did not keep him from being an officer in the Arkansas National Guard ón duty. That is a matter of proof. Let us have the evidence brought before us in a record of his trial and then we can determine whether an offense was charged under this Statute. An Arkansas National Guard officer does not cease to be an Arkansas National Guard officer just because he is called into federal service. That is almost axiomatic in military circles.

There are many other questions argued in this case but I never reach those questions because the views herein stated convince me that Duncan’s remedy by appeal is adequate and complete. Therefore, the Writ of Prohibition should not be granted.

I am authorized to state that Mr. Justice Holt joins me in this dissent.

       Emphasis supplied.

        McClendon v. Wood has been cited many times by the Arkansas Supreme Court. In 41 A. L. R. 2d 780 there is an annotation on “Prohibition as a Remedy to Enforce the Right to Jury Trial.” It is admitted in the annotation that there are cases supporting the general proposition that prohibition is_ an appropriate remedy in such a case; but Arkansas, California, Missouri, New York, and Ohio are cited as States holding that prohibition is not an appropriate remedy; and if prohibition is not an appropriate remedy on the matter of jury trial, certainly it is not an appropriate remedy on a misdemeanor appeal from Municipal Court to Circuit Court.


source: Caselaw Access Project

author: Carleton HaRbis, Chief Justice.

license: Public Domain

text:
    Hubach v. Midcontinent Life Ins. Co.
    5-1511
    311 S. W. 2d 307
    Opinion delivered March 24, 1958.

      Catlett & Henderson, for appellant.

      House, Holmes, Roddy, Butler & Jewell, for appel-lee.
   Carleton HaRbis, Chief Justice.

On July 26, 1928, appellee, Mid-Continent Life Insurance Company, issued a 20 year pay policy in the face amount of $1,000 upon the life of Beulah A. Hubach, then 24 years of age, with her husband, George J. Hubach, named beneficiary. The policy included a.provision providing for double indemnity in case of accidental death,. and also contained a provision for the payment of certain sums in the event of permanent total disability and permanent partial disability. The double indemnity clause, for which a separate premium of $2.00 per year was paid, provides as follows:

“Upon receipt of due proof that the death of the Insured was caused directly, independently and exclusively of any and all other causes, from bodily injuries effected solely through external, violent and purely accidental means (excluding homicide or self-destruction, sane or insane, and excluding death resulting from injuries received in military or naval service in time of war, or as a result of participation by the Insured in aeronautic or submarine expeditions or operations) and that such death occurred (a) witbin the premium paying period, and (b) before the Insured attained the age of sixty years, and (c) before a default in any premium, and (d) within thirty days from the date of such accident, the Company will pay Double the face amount of this policy in full settlement hereof.”

The premiums on the policy were paid for twenty years, from 1928 through 1947. Beulah A. Hubach was killed instantly in an automobile collision September 26, 1954, being 50 years of age at the - time of her death. The company refused to pay more than the basic death benefit of $1,000, contending that Mrs. Hubach’s death did not occur within the “premium paying period” clause. The beneficiary contended overwise and instituted suit for the sum of $2,000 (together with penalty and attorney’s fee). The cause was submitted to the court upon the Pleadings, and a written Stipulation, entered into between the parties as to the facts. The court found for appellee, and from such judgment comes this appeal.

Appellant contends that the words “premium paying period” relate to the period in which the insured was not relieved from the payment of premiums under the disability benefit provision, and cites as authority the case of American Trust Co. v. American Cent. Life Insurance Co., 5 F. (2d) 69. We do not consider that case as authority for appellant’s position. There the court was construing the clause, ‘ ‘ The Company will pay double the face amount of this policy to the beneficiary upon proof that the death of the insured occurred during the premium paying period and not less than one year from the date thereof.” The insured was accidentally killed less than one year after the issuance of the policy, and the defendant contended, under the language quoted above, that the double indemnity benefit did not accrue until after the policy had been in effect for one year. The court pointed out that the defendant was attempting to give the word ‘ ‘ thereof ’ ’ the same meaning as the word “hereof”, and stated that the word “thereof” grammatically and naturally seemed to refer to the premium paying period rather than to the date of issuance of the policy; it was also pointed out that the defendant had collected a separate premium for the double indemnity benefit for the very year in which the accidental death occurred. There too, the policy was a life policy, providing that the additional premium for the double indemnity should cease at age 65 (though the premium for the basic benefit would continue), and further providing that double indemnity was not payable after the insured reached age 65. The policy also contained a disability benefit provision, providing, among other things, that the company would waive the payment of each premium thereafter if the insured should become so disabled as to prevent the following of any gainful occupation. Under these provisions and conditions, the court held that the words “premium paying period” related to the period in which the insured was not relieved from the payment of premiums under the preceding disability provision, and further stated that the disability benefit provision was obviously printed for use in connection with the double indemnity benefit provision. The court then noted that an ambiguous provision in an insurance policy, so framed as to leave two constructions, is to be resolved most strongly against the insurer, which, of course, is well established law.

In the case before us, the policy is a 20-pay policy, wherein premiums cease at the end of the 20 years. "While this policy also has the total disability benefit, we see no connection between that clause and the double indemnity clause. Each is independent of the other. The policy holder could take the basic insurance without either the double indemnity benefit or the total disability benefit. He could take the basic insurance with the total disability benefit but without the double indemnity benefit, and he could have the basic benefit and double indemnity benefit without the total disability benefit. If Mrs. Hubaeh had made the latter choice, which she had every right to do, appellant’s contention obviously would be erroneous, since his entire argument depends upon the total disability clause. Separate premiums were charged for the two additional benefits, the charge per year for the double indemnity being $2.00. The contract provides that upon any anniversary of the policy, “the double indemnity benefit may be discontinued by returning this policy to the company for proper endorsement.” This $2.00, paid annually, purchased double indemnity coverage for the succeeding year. The insured could have acquired this coverage for one year and dropped it, or for any period less than 20 years — dropped such coverage on any anniversary date — and still have retained the basic benefit of $1,000, but, under the contract, she could not retain the double indemnity benefit for longer than 20 years. The right was also given to annul the disability coverage by sending in the policy for proper endorsement. We conclude that the final premium did not purchase double indemnity insurance until such time as the insured reached age 60, but only purchased such insurance for the last year of the premium paying period.

Appellant argues that the condition “before the insured attained the age of sixty years” is significant, and supports his contention, because this policy was paid up 16 years before the assured was due to reach that age, and there would be no point in having such a provision in the policy if the company’s obligation under the double indemnity clause ceased at the end of the 20 year period. If this were a policy prepared especially for Mrs. Hub'aeh, we might be inclined to agree, but the policy is a printed form, undoubtedly issued to thousands of policy holders, and clearly having reference to those people who might purchase such policy at an age where the 20 years would not be completed before such person reached age 60.

We find no ambiguity in this contract. The intent of the double indemnity clause is clearly expressed, and the term “premium paying period”, we think, can only relate to the 20 year period in which premiums were due to be paid.

Judgment affirmed.

       George J. Hubach died intestate on October 25, 1955, and the cause was revived in the name of John H. Hubach, Administrator of his estate. The basic benefit of $1,000 was subsequently paid, with the double indemnity question reserved.

       Under that clause of the policy (for which an extra premium of $2.77 per year was paid), the Company agreed inter alia to waive the payment of each premium coming due after permanent total disability .had been established.


author: J. Seaborn Holt, Associate Justice.

text:
    Washington Fire & Marine Ins. Co. v. Ryburn.
    5-1489
    311 S. W. 2d 302
    Opinion delivered March 24, 1958.

      Wilton E. Steed, for appellant.

      George N. Holmes and George H. Holmes, for ap-pellee.
   J. Seaborn Holt, Associate Justice.

Appellee brought this suit against appellant, Washington Fire & Marine Insurance Company, to recover $328.78 alleged damages to his 1 % ton motor truck, under the terms of a collision insurance policy issued to appellee, plus the 12 per cent statutory penalty and a reasonable attorney’s fee. Appellant’s answer was a general denial of any liability. A trial before the court, by agreement, resulted in a verdict in favor of appellee for the amount prayed, along with the statutory penalty and an attorney’s fee of $100.00. From the judgment is this appeal.

The record reflects that appellee’s employee on November 23, 1956, while driving appellee’s truck along the highway, at an approximate speed of 45 miles per hour, encountered a slick place in the roadway, lost control of the truck, careened off the highway, hit a knoll causing the truck to bounce, went down an embankment and plunged into a ditch filled with water. The truck came to rest (without overturning) with the water over the front fenders, completely submerging the motor, with its front end lower than the rear slanting at an angle of about 45 degrees. The left front fender, front bumper and radiator were damaged, and the motor water soaked and almost completely ruined. The truck driver testified: “All the front end was under the water and the back end still sticking out.” An automobile mechanic testified : ‘ ‘ that the water damage to the motor would amount to $321.03” and estimates placed as much as $78.13 for damages to the truck other than water damage.

The insurance policy in question contained the following clause: “Coverage B-l — Collision or Upset: Direct and accidental loss of or damage to the automobile caused by collision of the automobile with another object or by upset of the automobile.” Appellant says: “The question before this court is whether . . . driving into a ditch filled with water is a collision within the terms of the insurance policy.” It appears that this court has not heretofore been called upon to construe a similar clause in an insurance policy where the fact situation is in effect similar to what we have here. It is a settled rule in this state (and appears to be the general rule elsewhere) that policies of insurance will be interpreted and construed liberally in favor of the insured and strictly against the insurer, who wrote the insurance contract, and any doubt as to the meaning of language used, should be resolved in favor of the insured. It is also well settled that exceptions and words of. limitations will be strictly construed against tlie insurer. Guided by the above rules of construction we bold; that the damages to the truck here were caused by a? collision of the truck “with another object” — here, the water in the ditch. Had the appellant intended to limit the extent of its above coverage when a collision occurred “with another object” it could easily have done so in unmistakable language.

The Supreme Court of Oregon in the case of Ringo v. Auto. Ins. Co., of Hartford, Conn., 143 Ore. 420, 22 Pac. 2d 887, had before it for consideration and construction, the following clause in an insurance policy insuring the owner of an automobile against “direct loss or damage to the automobile described, caused solely by accidental collision with another object or by upset.” In that case the insured’s car, while being driven along a highway, skidded, went out of control and went over a bank into a river about 18 feet from the bank, where it settled down in the water. It was contended there: ‘ ‘ that the policy did not cover accidents of the nature of the one here involved, its contention being that there must be a collision; that the damage to the automobile must result therefrom; and that the damage caused to this automobile by being plunged into- the river and remaining there some hours does not come within the coverage of the policy.” The court there held: “Headnote 4 — -Evidence that insured’s automobile left road, plunged into waters of river, and sank to bottom thereof showed ‘collision’ with another ‘object’ permitting recovery under automobile collision policy” and in the body of the opinion used this language: “The authorities are not in entire harmony on the question of what constitutes a collision. The defendant, inasmuch as it was engaged in the business of writing insurance policies on automobile covering collisions, undoubtedly knew of the various interpretations placed upon similar provisions, and, had it intended to limit the extent of such coverage, it could easily have done so.

“There was, within the meaning of the policy, a direct loss or damage to plaintiff’s automobile caused solely by accidental collision with another object. Plaintiff testified positively that the car, while being driven along the highway, struck some object other than the roadbed. Even disregarding this evidence, the proof is that the car plunged into the waters of the Yamhill river and sank to the bottom of that stream. The incident of coming into contact with the water and the bed of the stream constituted a collision with another object.

‘ ‘ ‘ The weight of opinion is that water and land are objects within the meaning of the law of accident insurance policies, and an automobile which runs into either or both collides with an object.’ Simpson on The Law Relating to Automobile Insurance 2d at page 26 1, See. 252.

“ ‘Water and land are objects — physical objects. They are not abstract or imaginary, but tangible, visible, concrete, and real, and may be perceived and apprehended by the mind. The understanding has knowledge of them. An insured automobile which runs into either water or land collides with an object.’ ‘ Sunderlin on Automobile Insurance, p. 354, Sec. 711.”

Appellant earnestly contends that the policy, here, contained a comprehensive coverage clause covering water damage — ■, and since it is admitted appellee did not purchase this coverage, — he is not entitled to recover under Coverage B-l above, since there was no collision with another object or upset of his truck. We do not agree. The comprehensive coverage clause provides: “Coverage A — Comprehensive Loss of or Damage to the Automobile, Except by Collision or Upset: Any direct and accidental loss of or damage to the automobile except loss caused by collision of the automobile with another object or by upset of the automobile . . . Breakage of glass and loss caused by missiles, falling objects, fire, theft, explosion, earthquake, windstorm, hail, water, flood, vandalism, riot or civil commotion shall not be deemed loss caused by collision or upset.” If appellant (insurance company) had intended the language used in the comprehensive coverage clause above to be ■used to restrict its liability under Coverage B-l above, the same language could bave been written into Coverage B-l as a limitation of liability, and we find no sucb limitation of liability in Coverage B-l.

Having concluded that the policy here covered the damage to appellee’s truck and that the trial court was correct in so finding, the judgment is affirmed. Appellee’s attorney will be allowed here an additional fee of $50.


author: Ed. E. McFaddiN, Associate Justice.

text:
    McPherson v. McPherson.
    5-1498
    311 S. W. 2d 535
    Opinion delivered March 24, 1958.
    [Rehearing denied April 21, 1958]

      W. H. Howard, John D. Eldridge, Jr., and George. P. Eldridge, for appellant.

      Wm. M. Moorhead and James A. Ross, for appellee.
   Ed. E. McFaddiN, Associate Justice.

This is a divorce case: Mrs. McPherson was plaintiff and Mr. McPherson was defendant. She alleged indignities and cruelty as grounds for divorce. Mr. McPherson filed a cross-complaint, but later withdrew it and sought a reconciliation. At the request of both sides the Trial Court heard the evidence in the absence of spectators; and we have concluded to likewise draw the veil of judicial silence on the evidence. The parties have been married for many years and have a family of three children.

In denying Mrs. McPherson’s divorce the Chancellor wrote a lengthy opinion, explaining that the evidence offered by her was not sufficiently corroborated to justify the Court in granting a divorce. It was evidently thought by the Chancellor that the parties might effect a reconciliation. In the opinion the Chancellor said of Mrs. McPherson: “She presents the appearance of a person who is not physically well and not able to stand the strain of court room tension.”

According to the evidence Mr. McPherson does not appear to have been free of fault; but we treat his offer of reconciliation as “tolling the fault”; so that if there should be no reconciliation and another suit should arise, then the refusal of a divorce in this case would not preclude Mrs. McPherson from showing, in the subsequent litigation, the same facts, as herein, not only as to the divorce but also as to property rights. Under such conditions, we affirm the decree of the Chancery Court, which denied Mrs. McPherson a divorce on the evidence in this record.

The Chancery Court awarded Mrs. McPherson $250 per month for support of herself and her 12-year-old daughter. We conclude that Mrs. McPherson is entitled to support money of $500.00 per month for herself and her daughter, and that this increase in amount should begin with the date of this opinion and continue until the Chancery Court finds that there is a change in circumstances. To this extent, we modify the decree here involved. We also conclude that Mrs. McPherson is entitled to. $500.00 additional attorney’s fee for this appeal, and to all costs of all courts.

The decree is, therefore, affirmed in part and modified in part; and the cause is remanded to re-invest the Chancery Court with jurisdiction.


author: MiNor W. Mill wee, Associate Justice.

text:
    Chism v. Phelps.
    5-1514
    311 S. W. 2d 297
    Opinion delivered March 24, 1958.

      Reid and Burge, for appellant.

      Gene Bradley and Max B. Harrison, for appellee.
   MiNor W. Mill wee, Associate Justice.

Tlie principal question for decision is whether the comparative negligence statute of 1955 (Act 191 of 1955) or the common law rule of contributory negligence is applicable to the instant action for personal injuries and damages growing out of an automobile collision.

On October 31, 1956, a collision occurred on U. S. Highway 61 near Blytheville, Arkansas, between automobiles owned and being driven by appellee, Cary ‘ ‘ Bud” Phelps, and appellant, Leon Chism, a resident of Missouri, shortly after appellee’s car had collided with another car driven by John Russ.

On March 19, 1957, appellee filed this action against the appellant and Russ in the Mississippi Circuit Court alleging that, as a result of the collision, he suffered serious and permanent personal injuries which were caused by the joint and concurring negligence of the defendants. In his answer filed on April 5, 1957, appellant denied the allegations of negligence directed against him but further alleged that, if he were negligent, any damages sustained by appellee should be diminished in proportion to the contributory negligence chargeable to him. On June 18, 1957, the day of trial, appellant filed a supplement to his answer alleging as an alternative defense that the negligence of appellee constituted a complete bar to any recovery by him.

At the trial all issues as to defendant, John Russ, were tried before the court. At the conclusion of all the testimony adduced on a trial of all other issues to a jury, the appellant’s objection to the submission of the case under Act 191 of 1955 was overruled. In answer to special interrogatories the jury found that appellant was 90 per cent negligent and appellee 10 per cent negligent; and that appellee’s total damages were $9,500.00.

After the verdict was returned Appellant filed a motion for judgment thereon in his favor on the ground that Act 191 of 1955 was repealed, without a savings clause, by Act 296 of 1957, leaving the common law rule of contributory negligence applicable; and that appellee, having been found guilty of negligence, was not entitled to any recovery as against the appellant. This appeal is from a judgment overruling said motion and for appellee in the sum of $8,550.00 in accordance with the verdict. Thus the pivotal issue is whether the adoption of Act 296 of 1957 (Ark. Stats. Secs. 27-1730.1 and 27-1730.2) resulted in the complete interruption of Act 191 of 1955, and the reinstatement of the common law defense of contributory negligence as to the instant action.

The first two sections of Act 296 of 1957 read as follows :

“Section 1. Contributory negligence shall not bar recovery of damages for any injury, property damage or death where the negligence of the person injured or killed is of less degree than the negligence of any person, firm, or corporation causing such damage.
“Section 2. In all actions hereafter accruing for negligence resulting in personal injuries or wrongful death or injury to property, the contributory negligence shall not prevent a recovery where any negligence of the person so injured, damaged or killed is of less degree than any negligence of the person, firm or corporation causing such damage; provided that where such contributory negligence is shown on the part of the person injured, damaged or killed, the amount of recovery shall be diminished in proportion to such contributory negligence.”

Section 3 of the act expressly repeals Act 191 of 1955. Section 4 is the emergency clause declaring that great “confusion and unfairness” occurred in the trial of negligence cases under the 1955 statute.

In support of his contention that the repeal of Act 191, without a savings clause, had the effect of completely doing away with it and reinstating the common law rule of contributory negligence, appellant relies on the following statement in 50 Am. Jur., Statutes, Sec. 525: “It is a general principle that the repeal of a statute which abrogates the common law operates to reinstate the common - law rule, unless it appears that the legislature did not intend such reinstatement.”

In determining legislative intent there are other rules of statutory construction pertinent to the instant problem. “It is presumed that all legislation is intended to act only prospectively, and all statutes are to be construed as having only a prospective operation unless the purpose and intention of the Legislature to give them a retroactive effect is expressly declared or necessarily implied from the language used.” Hardin, Commissioner of Revenues v. Fort Smith Couch & Bedding Co., 202 Ark. 814, 152 S. W. 2d 1015. Also, in determining legislative intent, each section of the statute is to be read in the light of every other section, and the object and purposes of the act are to be considered. Berry v. Sale, 184 Ark. 655, 43 S. W. 2d 225.

As to the effect of a simultaneous repeal and re-enactment of all, or some, of the provisions of the repealed act in the former, there is considerable division of authority. “In a few jurisdictions the rule has been laid down that the simultaneous repeal and reenactment of a statute operate as a repeal and interruption of the former statute, and that rights and liabilities thereunder are not preserved and cannot be enforced. The prevailing view, however, is that where a statute is repealed and all, or some, of its provisions are at the same time re-enacted, the re-enactment is considered a reaffinnance of the old law, and a neutralization of the repeal, so that the provisions of the repealed act which are thus re-enacted continue in force without interruption, and all rights and liabilities incurred thereunder are preserved and may he enforced.” 50 Am. Jur., Statutes, Sec. 533.

The majority rule is similarly expressed in 82 C. J. S. Statutes, Sec. 435, as follows: “The repeal of a statute does not operate to impair or otherwise affect rights which have been vested or accrued while the statute was in force. This rule is applicable alike to rights acquired under contracts and to rights of action to recover damages for torts. Where a new statute continues in force provisions of an old statute, although in form it repeals them at the moment of its passage, a right of action created by the old statute is not thereby destroyed.

“Where, however, the statute is regarded not as creating a right, but only as providing a remedy where none existed at common law, its repeal has the effect of taking away the remedy for acts or omissions occurring while the statute was still in force. . .

“Even where no question of vested rights is involved, the presumption is that repeal of a statute does not invalidate the accrued results of its operative tenure, and it will not be thus retroactively construed as undoing accrued results if not clearly required by the language of the repealing act.”

We are impressed with the following candid appraisal of the problem by the author in Crawford, Statutory Construction, Sec. 322: “Often the legislature instead of simply amending a pre-existing statute, will repeal the old statute in its entirety and by the same enactment re-enact all or certain portions of the pre-exist-ing law. Of course, the problem created by this sort of legislative action involves mainly the effect of the repeal upon rights and liabilities which accrued under the original statute. Are those rights and liabilities destroyed or preserved? The authorities are divided as to the effect of simultaneous repeals and re-enactments. Some adhere to the vie.w.:thatt':th.e rights, .and diabiliti-es accruing under the repeated uaotu are destroyed^-) ¡since the statute from which,they-Ispring'-ha®. ¡actually i ¡terminated, even though for.onlya-veryishortiperiodyoif’time. Others, and they ^seem wtQiherdnM-theiehiajcxriityj.otefnse to accept this viewuof the- situation] and; ¡consequently maintain that all-.irights :and‘->liabilitiesiiwhieh.i;:ha5fe 'Accrued under the; original s-tatute.-are preserved'and-may be enforced, since-the'-re-enaetment-neutfalizes tbArgpeail, thereby continuing ¡¡the' .law; dnrfornei ¡without, interruption. Logically,: the) former 'attitude us ¡dorr éct,: f dr the ul’d statute dabsuehse tó:‘esist'áS-anjndépehdenLhna@taen-t, but all practical considerations tfayoA'-the//ma§drity:Wiew. This is só ieven-nvhSre 'the'■ stat-utei involved ¡ ¡is; •-•atepen’al act.” -S!é'ó;¡also, Sutherland, -Statutory. O0,nstructio.-n (3rd Ed.), Sec. 2035.)m 1 1 -ii) •..> ti-.if .

/teMdyM'ebisiÓhá 'áilppo,rtM,g:ithe'1¿iaj‘é!ríW- rule ’á'rrédisté,di'hi(Mhteichaiu'át‘iyfé'!ann(!)táti6hj,d'n:i'the^^iidá:móii:;íh -ll’’Anh.‘'Eaái'4-72; í:rA.'fhsw!ín!ór¿ hé^eílt^lises^ó*tihh'á'amé &¥f'&ct>h$é:‘>ítfnlre 'Üpíñit)W-‘bf 1Éé jWsUú’ébl 89í!/N7EL,!56:3, i98<ii?'my'QmsW'*v:> Náuik^tsan^M ^ M -839,^chA1- K‘ muj^yw^stwn ■íigttr& PowW yeif vVDmtt,^&Má^é552)wmm} 2d746i) WMcUéll 'v: 'MdÁaty^271 2^763-miúkSWWl [gdmv <70?y.(®MM>m¡ ’2021 0f.d339/ P-«':l$f i1 < • * ;o un] r;-, "f c oí ki-cnyuBfaí/b bisa í;02 ia/.. rn :í„r■ Apf.l$L pf ¡¡1,95$'?.- 'h&R'íÍh:{íti}lí‘Í9r©eI-ftlc^h^^]Flll?-a the instant collision occurred on October 31,†^9;56, and when suit was filed on March, 19, 1957. Act 296 '’i’-iPlí'L1’ {,i b’f¿¿‘1 uiJ.c/dtr/.’í'íi! L’„¡í/-vl .. of, 19o7 became effective on March.. 27, ,195.7,, when it yras. approved by the, goverpor.. it _ expressly r repealed !&©t' 191" of M955' 'tut* ‘‘only’* applied, .Í o' "action's’ ‘flleré-after accruingy, and was not retroactive... . • ‘>n !f> HtlOC 97 iC-U! lUr.H 9/ff ¡¡A /romA

■; -r 'iWhe'n-the. horegdihg'crates 'of statutory-,-cohstajuntion are .applied,-.if iis-tapparent there, [was no, intent\on; ¡the -part - of ■ the-. Legislature -. i to > ¡reinstate; > the¡ 1 common, - law doctrine of contributory: negligence <-oh eaubéL of ¡action that,had accrued:undpr Act 191 but .had;not been .determined when Act 296-became-effective.. By re-enacting the rule of comparative negligence:embraced-in Act -191 in an amended form in Act 296, the Legislature demonstrated a clear disinclination to restore tire common law rule. In this connection we cannot agree with appellant’s contention that either act is purely procedural and does not affect the substantive rights of the parties. While no simple formula can he evolved to determine the difference between the two, we think the right of a party plaintiff to recover substantial damages even though he is 10 per cent, or even 49 per cent, negligent involves a substantive right and not a matter of procedure. This is the effect of our holding in St. Louis Southwestern Ry. Co. v. Robinson, 228 Ark. 418, 308 S. W. 2d 282, where we pointed out that the principal change in the substantive provisions of Act 191 wrought by Act 296 was to bar recovery in cases where the plaintiff’s negligence exceeds that of the defendant.

While the majority rule may seem more practical than logical, we regard it as sound and wholesome when applied to ascertain the legislative intent in the instant case. Under this rule the Legislature, in the enactment of Act 296 of 1957, re-enacted a comparative negligence law repealing only those provisions of the 1955 Act inconsistent and in conflict with the new act. Appellee’s right to recover damages for his injuries, even though he was 10 per cent negligent, accrued while Act 155 was in full force. This right of action was carried forward in Act 296 and was tantamount to a reaffirmance of the 1955 Act and a neutralization of the repeal to that extent.

Even if the valuable right accruing to appellee under the 1955 Act did not rise to the dignity of a vested one, as appellant so earnestly contends, its repeal did not thereby destroy the accrued results of its operative tenure. As the New Hampshire court stated in the case of In re Opinion of the Justices, supra: “The repeal of a statute renders it thenceforth inoperative, hut it does not undo or set aside the consequences of its operation while in force, unless such a result is directed by express language or necessary implication. A status established in a manner which becomes proscribed is not lost by the mere fact of the proscription.

“Even, as ¡here, where no question of vested rights is involved, the presumption is that the repeal of an act does not invalidate the accrued results of its operative tenure. To undo such results by a repeal is to .give it retroactivity, and based upon elemental principles of justice a rule of construction avoids that effect if the language of the repeal does not clearly require it.”

We conclude that appellee’s right to recover substantial damages despite his own contributory negligence under Act 191 of 1955 was preserved rather than destroyed by Act 296 of 1957. This interpretation of the effect of Act 296 renders it unnecessary to determine the applicability of the General Savings Statute (Ark. Stats., Sec. 1-104) on said act, or whether the instant action was pending within the meaning of that statute when Act 296 became effective. It follows that the trial court correctly construed the unchanged provisions of Act 191 of 1955 as being applicable, in the instant trial, and the judgment is affirmed.

       Section 1 of Act 191 reads: “In all actions hereafter accruing for negligence resulting in personal injuries or wrongful death or injury to property, including those in which the defendant has had the last clear chance to avoid the injury, the contributory negligence of the person injured, or of the deceased, or of the owner of the property, or of the person having control over the property, shall not bar a recovery, but the damages awarded shall be diminished in proportion to the amount of negligence attributable to the injured person or to the deceased or to the owner of the property or to the person having control over the property.”
      Section 2 provides for special findings of fact by the court or special verdict of the jury as to the amount and extent of the damages.


author: George Rose Smith, J.

text:
    Scott v. Dunaway.
    5-1501
    311 S. W. 2d 305
    Opinion delivered March 24, 1958.

      W. E. Dillahunty and Edwin E. Dunaway, for appellant.

      Goldstein & Smith and Barrett, Wheatley, Smith & Deacon, for appellee.
   George Rose Smith, J.

The question here is whether pari-mutuel betting upon greyhound races violates the constitutional prohibition against lotteries. Ark. Const., Art. 19, § 14. This suit for a declaratory judgment and injunctive relief was brought by the appellants, citizens of Crittenden county. The original defendants were the State Racing Commission and the Commissioner of Revenues; Southland Racing Corporation was later brought into the case, after it had received a permit to conduct greyhound racing in Critten-den county. See Ark. State Racing Com’n v. Southland Racing Corp., 226 Ark. 995, 295 S. W. 2d 617. The chancellor, hearing the case upon a stipulation of fact, upheld the statutes that permit this type of parimutuel betting. Ark. Stats. 1947, Title 84, Ch. 28.

The constitution does not invalidate every statute that makes gambling legal; it forbids only the legalization of lotteries and the sale of lottery tickets. Parimutuel wagering is obviously a form of gambling, but this is fatal to the statutes only if this type of betting constitutes a lottery. Although a lottery may be conducted in many different ways, in its typical form it involves the sale of a relatively large number of chances and the selection of a relatively small number of winners by some system of drawing in which chance alone controls the result.

It was decided in Longstreth v. Cook, 215 Ark. 72, 220 S. W. 2d 433, that it is essential to a lottery that the winners be determined by chance alone. That case is so similar to this one that we need look no further to reach a conclusion. There the question was whether pari-mutuel betting upon horse races constitutes a lottery. We described in detail the pari-mutuel system, under which all the money wagered is initially divided into several pools, such as the win pool, place pool, show pool, daily double pool, etc., and, after the deduction of a percentage for the track and the State, is distributed after the race to the successful bettors in proportion to their contributions to the various pools. The same system is involved in the case at bar.

In the Longstreth case the decisive issue was whether the selection of a winning bet upon a horse race is wholly dependent upon the element of chance. The proof showed that the outcome of a horse race is affected not only by luck but also by such factors as the physical condition and qualities of the competing horses, the ability of the trainers who take care of the animals, and the skill of the jockeys. There is available to the betting public a printed racing form that provides information about some of the factors we have mentioned and that contains a record of each horse’s performance in prior races. This information was shown to enable the bettors to bet “with more discrimination and with improved chances of selecting or picking a winner.” Upon these facts we concluded that the bettor’s choice is not governed solely by luck and that pari-mutuel betting upon horse races is therefore not a lottery.

In the present case the stipulation of fact follows in several instances the exact language of the Longstreth opinion. The two cases are identical in all material respects but one: greyhounds race without the guidance of jockeys. The appellants insist that this single fact distinguishes the two cases and makes this type of parimutuel betting a lottery.

This argument is out of harmony with the reasoning followed in the Longstreth case. The comparative skill of the rival jockeys is only one of several known considerations that enable a person to exercise at least some judgment in betting upon a horse race. The other matters mentioned in the earlier case, such as the physical qualities of the animals, their past records, and the ability of their trainers, are shown by the stipulation to affect the result in dog racing as well as in horse racing. Indeed, the present stipulation indicates that the betting public attains a better measure of success in selecting the winners of greyhound races than could he mathematically expected on the basis of pure luck.

We do not suggest that pari-mutuel betting upon a greyhound race is a venture whose success is governed entirely by the player’s judgment and skill. That is not the question, for every form of gambling involves to some extent the element of chance. The narrow issue is whether this type of betting is completely controlled by chance, in which case alone it would amount to a lottery and he forbidden by the constitution. On the facts before us it is clear that this form of legalized gambling affords an opportunity for the exercise of judgment and therefore cannot he classified as a lottery, where chance alone must rule.

Affirmed.


author: G-eorge Rose Smith, J.

text:
    Johnson v. Brewer.
    5-1505
    311 S. W. 2d 301
    Opinion delivered March 24, 1958.

      Gannaway & Gannaway, for appellant.

      H. B. Stubblefield, for appellee.
   G-eorge Rose Smith, J.

This is an action by the appellee for personal injuries sustained when he was struck, while walking across a street in Little Rock, by a car being driven by the appellant. The case having been submitted upon special interrogatories, the jury found that the appellee’s total damages were $45,000 and that the total negligence was attributable in the ratio of 80 per cent to the appellee and 20 per cent to the appellant. The court accordingly awarded the appellee a judgment for $9,000.

The appellant later filed a motion to vacate the judgment, asserting that the comparative negligence act of 1955 had been repealed before the trial of this case, that the repeal revived the common law rule of contributory negligence, and that the plaintiff’s recovery was therefore completely barred by the jury’s finding of negligence on his part. The trial court overruled this motion. The appellant now contends that the motion should have been granted and, alternatively, that the verdict is excessive.

On the first point the pertinent facts are these: The accident happened on February 23, 1956, while Act 191 of 1955 was in effect. This suit was filed on June 22, 1956. Act 191 of 1955 was .thereafter superseded by Act 296 of 1957, which took effect on March 27, 1957. Ark. Stats. 1947, §§ 27-1730.1 and 27-1730.2. The case was tried on April 9, 1957.

On these facts the motion to vacate the judgment was correctly denied. In St. Louis Southwestern Ry. Co. v. Robinson, 228 Ark. 418, 308 S. W. 2d 282, we held that, with respect to cases that were pending when Act 191 was repealed, the substantive rule of comparative negligence embodied in that act was continued in force by the general saving statute, Ark. Stats., § 1-104. In Chism v. Phelps, 228 Ark. 936, 311 S. W. 2d 297, also decided today, we are holding that, with respect to cases which arose while Act 191 was in force but which were not yet pending at the time of its repeal, the substantive provisions of Act 191 were continued in force, by re-enactment, insofar as there is no conflict between the two acts. Since the present case was admittedly pending at the time Act 191 was superseded, it falls Avith-in the holding in the Robinson case, and the trial court properly awarded the appellee a judgment for 20 per cent of his total damages.

We cannot say that the verdict for $45,000 is excessive. Before the accident the appellee, a man of forty, had earned np to $60 a week as a service station attendant. An actuary testified that the present value of an income at the rate of $50 a week for the plaintiff’s life expectancy exceeds $73,000. As a result of the accident the plaintiff was confined to a hospital for more than a month and underwent a further period of convalescence before he was able to walk. His brain is seriously and permanently injured; the jury were justified in concluding that his earning capacity is substantially destroyed. Upon this proof the award does not appear to be excessive.

Affirmed.


author: Paul Ward, Associate Justice.

text:
    Horn v. Horn, Admr.
    5-1508; 5-1509
    311 S. W. 2d 311
    Opinion delivered March 24, 1958.

      Melvin T. Chambers, for appellant.

      Wendell Utley, for appellee.
   Paul Ward, Associate Justice.

Dr. W. H. Horn and Bertie Lee Horn (Ms first wife) had four cMldren, all living and now adults. They are: W. C. Horn, Ray H. Horn, Claud H. Horn, and Ida (Horn) Hearn. Bertie Lee Horn died in 1940, owning considerable real and personal property in her own name and right, hut her estate was apparently kept together and handled by her husband and children until 1954 when letters of administration were requested. On September 27th of that year her son, Claud H. Horn was appointed administrator. On appeal that case is docketed as No. 1509.

Dr. W. H. Horn married Alpha (now Alpha Horn) in 1942 and they had no children at the time of his death on September 14, 1954. On September 27, 1954 letters of administration on his estate were issued to his son, W. C. Horn, and that ease, on appeal, in No. 1508.

The administrators in each case filed inventories listing, in detail, the real and personal property. This litigation and these appeals are concerned with personal property only.

The inventory in No. 1508 (Dr. Horn), among other things, listed numerous items of household furniture, one diamond ring, 26 hogs, 105 head of cattle, and 2,000 bales of grass hay. The inventory in No. 1509 (Bertie Lee Horn), among other things, also listed 26 hogs, 105 head of cattle, and 2,000 bales of grass hay.

Alpha Horn, as the widow of Dr. Horn, filed exceptions to the inventory in No. 1508, claiming as her own, the diamond ring and numerous other articles. She also filed exceptions to the inventory in No. 1509 on the ground that certain listed items (also listed in No. 1508) were assets of her husband’s estate. After a hearing, the Probate Court, disallowed the exceptions in toto in No. 1509, and also disallowed the exceptions as to all items in No. 1508 except as to two bedroom suites valued at $300, one dining room suite valued at $100, and one ironer valued at $50. From both judgments of the court Alpha Horn has appealed.

No. 1509. Appellant makes no contention that there is any personal property belonging to her husband’s estate which has been left out of the inventory in No. 1508. As we interpret appellees’ brief they admit and acknowledge that appellant will get her share, under the law, in all items listed in No. 1508, which of course is all she is entitled to receive. We refer to the statement in appellees’ brief where they say: “No one has ever denied that she (referring to appellant) has her dower interest in all of the property listed in Dr. Horn’s estate.” Therefore, based on that interpretation of the position here taken by appellees, the judgment of the Probate Court is affirmed.

No. 1508. The Probate Court refused to give appellant a 32nd degree diamond Masonic ring, valued at $900, which was listed in the inventory of the personal effects of her husband’s estate. Appellant’s abstract of the testimony in this connection is substantially as follows : Appellant said the Dr. took the ring off his finger and gave it to her. Virginia Dodson said she saw Dr. Horn give the diamond ring to Alpha Horn and say he was giving it to her, but in the discussion she handed it back to him; he (Dr. Horn) gave her the ring in 1953 and she held it a few minutes and handed it back to him and said “you just go ahead and wear it”; about four weeks later he had given it back to her and she was still holding it when I left the room; it might have been the second time he gave it to her, and I never recall seeing her wear it; I said “Dr. Horn, when are you going to give Mrs. Horn a ring like this?” He had it off his finger and said “I am giving it to her now”; she (appellant) said “you keep it and wear it.” We cannot say that the above testimony is so definite as to a delivery of the ring and the intent to part with the title to it that the Probate Judge, who observed the witnesses and their demeanor, reached the wrong conclusion.

Appellant claimed title to numerous otter items of personal property listed in the inventory which the Court refused to give her. The Court did give appellant each item where she testified that she bought it with her own money. We deem it unnecessary to set out the testimony relating to these items in view of the conclusion hereafter reached and because, in our opinion, the testimony relating to the articles which the court refused to give appellant is less favorable to her than the testimony relating to the diamond ring.-

The record reflects that appellant has already been awarded an allowance of $1,000 and $500 pursuant to the provisions of Ark. Stats. § 62-2501 a. and c., but we fail to find where she has been given an allowance under sub-section b. of said section. This sub - section reads: “Such furniture, furnishings, appliance, implements and equipment as shall be reasonably necessary for the family use and occupancy of her dwelling, shall be assigned to and vested in the widow, if any, provided she was living with her husband at the time of his death”. As provided in sub-section d. of said section, the allowances under sub-sections a., b., and c. are cumulative.

Since appellant was apparently living with her husband at the time of his death, she is entitled to have vested in her the title to such items mentioned in sub-section b. as shall be reasonably necessary for her use as set forth therein.

The judgments in both causes are therefore affirmed, but the cause in No. 1508 is remanded with directions to the trial court to comply with the provisions of this opinion upon timely application by appellant.


author: Sam Robinson, Associate Justice.

text:
    McCarty v. Pinkston.
    5-1510
    311 S. W. 2d 773
    Opinion delivered March 24, 1958.
    [Rehearing denied April 28, 1958]

      Douglas Bradley, for appellant.

      Barrett, Wheatley, Smith & Deacon, for appellee.
   Sam Robinson, Associate Justice.

The issue is whether a written lease was terminated by an oral agreement coupled with delivery of possession of the premises. On July 1, 1953, the parties entered into a written contract whereby Walton McCarty leased to L. D. and James S. Pinkston a building in Trumann for the consideration of $250 per month. The lease was for a term of five years. In May, 1954, Walton McCarty sold the property to his brother, E. L. McCarty, the sale being subject to the lease. Thereafter Walton McCarty acted as agent for his brother in dealing with the Pinkstons in regard to the lease. The Pinkstons paid the rent through the month of June, 1956, and vacated the building during that month.

In September, 1956, the MeCartys filed this suit for rent alleged to have accrued subsequent to June, 1956. An answer was filed, alleging that the lease had been canceled by mutual agreement and possession of the property had been delivered to the MeCartys. The cause was tried to a jury and the issues were whether the parties had orally agreed to a cancellation of the lease and whether the Pinkstons had delivered possession to the McCartys. There was a verdict in favor of the Pinkstons, and the McCartys have appealed.

On appeal there is only the question of whether there is any substantial evidence to sustain the verdict. A written lease may be terminated by an executed parol agreement. Ford v. Miller, 149 Ark. 443, 232 S. W. 604.

Appellants deny they made an agreement to terminate the lease and deny that they were given possession of the premises, hut appellee, L. D. Pinkston, says there was such an agreement and that he vacated the building and left the keys at Walton McCarty’s home for him. McCarty admits that he received the keys and did not return them to Pinkston. In these circumstances we cannot say there was no substantial evidence to support the verdict.

Affirmed.


author: CarletoN Harris, Chief Justice.

text:
    Clay v. Garrett.
    5-1504
    311 S. W. 2d 522
    Opinion delivered March 31, 1958.

      Gamiaioay & Gannaway, for appellant.

      Wright, Harrison, Lindsey & Upton, for appellee.
   CarletoN Harris, Chief Justice.

Appellant is the mother of Joe Wayne Clay, a minor, four years of age. On June 2, 1955, Joe Wayne was severely injured while crossing from the south to north side of Eleventh Street, just west of the intersection of Eleventh and Battery Streets in Little Rock. Complaint was filed by appellant, individually, and as mother and next friend of Joe Wayne Clay, alleging that appellee, Chester W. Garrett, while driving his automobile, struck the child; that the accident was caused solely by the negligence of ap-pellee, and enumerated alleged acts of negligence. The complaint was later amended by alleging that Garrett was an employee of the Arkansas Democrat Company, and was working within the scope of such employment at the time of striking the child. Appellees answered, denying the material allegations' of the complaint, stating that as to appellees, the accident was unavoidable, and further alleging that any damages suffered by appellant were “directly and proximately caused and contributed to” by the negligence and carelessness of the appellant, Mrs. William Elmer Clay. The cause proceeded to trial and the jury returned a verdict for appellees. This appeal follows.

Only one ground for reversal of the judgment entered upon the jury verdict is urged. It is contended by appellant that the trial court erred in giving appellees’ Requested Instruction No. 7, reading as follows:

“You are instructed that the driver of an automobile has the right to assume that other persons using the streets will obey the traffic laws. A motorist is not, therefore, required to anticipate that a pedestrian will be crossing a street between intersections and outside of crosswalk areas until such time as the motorist has observed the presence of a pedestrian or, in the exercise of ordinary care, ought to observe such presence.”

A general objection was made to this instruction by appellant, who also specifically objected on grounds that such instruction was abstract, misleading, and confusing. It is argued that under this instruction, the jury was told Garrett had a right to assume this four year old child would obey the traffic laws of Arkansas and Little Rock, and that Garrett was therefore not required to anticipate that the child would be crossing the street between the intersection and outside the crosswalk until he saw the child, or by the exercising of ordinary care, should have observed him. Our attention is called to the case of Smith v. Wittman, 227 Ark. 502, 300 S. W. 2d 600. There, a suit was brought for damages sustained by a four year old child when struck by a truck. At the defendant’s request, the jury was instructed that a motorist has the right to assume that a pedestrian, will obey traffic laws, and may proceed on that assumption until he knows, or should know, that the pedestrián will not do so. However, in a separate instruction, the court instructed the jury that a child under four is incapable of negligence or contributory negligence. Appellant points out that in the case at bar, this additional instruction was not' given. It is conceded that if there had been such an instruction, this case, on the contested point, would be on all fours with the Wittman case. Since that instruction was not given, appellant, as heretofore stated, argues that the jury was told that Garrett had a right to assume this four year old boy would obey the traffic laws, which the child, of course, was not required to do. Under the proof, in this case, instructions given, and objections made, we are unable to agree with appellant’s contention: In the first place, appellant did not request that the jury be instructed that a child four years of age is incapable of negligence or contributory negligence. A trial court is not required, in a civil case, to instruct on its own motion, and if appellant felt aggrieved by the instruction here in question, such a request should have been made. White v. McCracken, 60 Ark. 613, 31 S. W. 882. Having failed to request such an instruction, appellant is in no position to complain that the jury was not so instructed. Ward Furniture Manufacturing Co. v. J. B. Isbell & Co., 81 Ark. 549, 99 S. W. 845. In the next place, the instruction given dealt with the situation from Garrett’s point of view, stating an assumption that we had previously held a motorist may rely upon. Smith v. Wittman, supra. The instruction does not refer in any manner to negligence on tlie part of the child, or, for that matter, any other pedestrian. The negligence of the child was never pnt into issue. The answer made no such allegation, nor was any such contention raised by the instructions. The jury was instructed, properly, as to appellees’ contention that Mrs. Clay, mother of the injured child, was guilty of contributory negligence, which would be a bar to her right of recovery. Appellant’s Requested Instruction No. 3, which was given by the court, told the jury:

“Even if you find from a preponderance of the evidence that Mrs. William Elmer Clay was guilty of contributory negligence which would be a bar to her right to recover individually, you are instructed that such negligence on her part, if any, could not be imputed to Joe Wayne Clay, and you should not consider the negligence, if any, on the part of Mrs. Clay in determining the right to recover for physical injuries to Joe Wayne Clay, or for past, present or future physical pain and suffering, mental anguish and permanent physical disability of Joe Wayne Clay.”

Appellant’s Requested Instruction No. 4, given by the Court, reads as follows:

“If you find from a preponderance of the evidence that Chester W. Garrett, by the exercise of ordinary care should have observed Joe Wayne Clay before his car ran over him, and did not observe him, then this is evidence for you to consider in determining whether Chester W. Garrett was negligent. ’ ’

The Court also instructed the jury:

“If you find from a preponderance of the evidence that Chester W. Garrett was negligent, and that such negligence on his part, if any, was a proximate cause of the injuries to Joe Wayne Clay, then you should find for Mrs. William Elmer Clay, as mother and next friend of Joe Wayne Clay, * * *. ’ ’

These instructions, taken together, we think, made clear to the jury that the primary issue was whether Mr. Garrett was negligent, and such negligence was the proximate cause of the injuries sustained; and the further issue of alleged contributory negligence by appellant, which would bar her individual recovery. At no point in the case was there the slightest indication that the child’s negligence, if any, should be considered. We are unable to agree that the instruction complained of is misleading and confusing, nor does appellant point out specifically how the jury might have been misled or confused.

No reversible error appearing, the judgment is affirmed.

Justice Millwee and BobiNSON dissent.

       Appellees’ proof showed that Mrs. Clay admitted sending the four year old child to the drug store to get razor blades, a distance of about one and one-half blocks away. Mr. Garrett stated that he found these blades in the pocket of the child when he was trying to identify him.


author: J. Seaboket Holt, Associate Justice.

text:
    Roach v. Kirk.
    5-1512
    311 S. W. 2d 525
    Opinion delivered March 31, 1958.

      Ben B. Williamson, for appellant.

      Caldwell T. Bennett, for appellee.
   J. Seaboket Holt, Associate Justice.

This is the second appearance here of this case. On the former appeal we reversed the judgment and remanded the cause to the circuit court for trial on its merits, Kirk v. Roach, 226 Ark. 799, 294 S. W. 2d 335. A school election contest is involved, and specifically the validity of certain alleged absentee ballots. Following remand, trial was had before the court sitting as a jury, and after hearing the testimony of numerous witnesses on the validity of 26 absentee ballots cast in the election, the court declared appellee Kirk to be the duly elected school director. The finding in part contained these recitals: “The court further finds that 22 of the 27 absentee votes were illegally cast for Boach, and deducting those 22 from Boach’s total of 127 (which includes Miller’s vote) leaves a net result of 105 votes cast for Boach and 107 cast for Kirk, from which the court rules that Kirk is the duly elected school director for Southside School District Ño. 3, Independence County, Arkansas.” A judgment was entered in accordance with the above finding. This appeal followed.

For reversal appellant relies on these points: “1. The court erred in its holdings, findings and judgment that the following votes cast in the Southside School Election on March 17, 1956, were illegal votes and further erred in casting, or throwing said votes out and deducting same from the total received by appellant, Haskell Boach, in said election, to-wit: 1. Lorn Mitch-um, 2. J. S. Calvin, 3. Bichard Hartlien, 4. Acey Duncan, 5. Mrs. Acey Duncan, 6. Y. J. Barber. 2. The court’s holdings, findings and judgment were contrary to and not supported by a preponderance of the evidence adduced on the part of the appellee, Elmer Kirk. ’ ’

Our statutes, Secs. 3-1123 — 37, Ark. Stats. 1947, provide the procedure to be followed in absentee voting: “3-1124 — Persons qualified as absentee voters— . . . (a) Any person who will be unavoidably absent from his voting place on the day of election, (b) Any person who, because of illness or physical disability will be unable to attend the polls on election day . . . 3-1125 — Applications for absentee ballot — Manner of making — . Applications for absentee ballots may be made in one of the following three (3) ways, in no other manner, and then only on the form set out in this Act (Sec. 3-1123 — 1136): (a) In person at the office of the county clerk of the county of residence of the voter, (h) By mail; provided that, applications by mail must be received in the office of the county clerk of the county of residence of the voter not sooner than fifteen (15) days (twenty days in the case of persons outside the continental limits of the United States), nor later than one (1) day before the election. "When there are first and second primaries, one (1) application may be used to request ballots for both primaries if the request is made as provided on the application form, (c) By delivery of the application form to the office of the county clerk of the county of residence of the applicant not later than 1:30 p.m. on the day of the election. Delivery may be made only by the elector, or the husband, wife, son, daughter, sister, brother, father or mother of the applicant. . . . 3-1128 — . . . The County Clerk, if satisfied that the applicant for absentee ballot is a qualified elector in the ward, precinct or township in which he claims to be a resident, shall deliver, or cause to be delivered, or mail to the applicant: (a) An official ballot for each election named in the application . . . (d) A blank statement in the following form: ‘I, ., do swear that on the date of the election to be held., 19., I will he unavoidably absent from my voting precinct because of.I am a qualified elector of the. (state reason) (ward, precinct or township) of ., (city, town or county) Arkansas. I have enclosed my ballot, duly marked, in a small envelope which I shall place with this statement and my ballot stub in a large envelope. I will not vote again in this election.

(signature)
(address)

. . . 3-1130 — Methods of absentee voting. — Absentee voting may be accomplished in one of the three (3) following methods, and in no other manner: (a) On ballots cast in the office of the connty clerk in the connty of residence of the voter during regular business hours of any day not earlier than the fifteenth (15) day before election day, not later than 6:30 p.m. on election day. (b) By ballot cast by mail which must be received in the office of the county clerk of the county of residence of the voter not later than 6:30 p.m. on election day. (c) By delivery of ballot to the office of the county clerk of the county of residence of the voter not later than 6:30 p.m. on election day. Delivery may be made only by the husband, wife, son, daughter, sister, brother, father or mother of the absentee voter.”

In election contests such as this the findings of the trial court sitting as a jury have the same force and effect as the verdict of a jury and when supported by substantial evidence we affirm. See Phillips v. Melton, 222 Ark. 162, 257 S. W. 2d 931. After carefully considering all of the testimony relating to each of these votes, we have concluded that the testimony was ample to support the court’s findings and the judgment rendered.

The vote of Richard Hartlien. The evidence shows that on the date of the election here, Hartlien worked in a local store, but made no attempt to cast his vote at the polls. He was not ill or physically disabled from attending the polls and the store in which he worked was in the same city block as the courthouse and county clerk’s office. A friend, Darb Hallmark, who was in no way related to Hartlien, at Hartlien’s request, secured for him an application (already filled in) along with an absentee ballot and return envelope. Hartlien marked his ballot at his home, placed it in the envelope, sealed it, put a three cent stamp on it and gave it to Hallmark to mail for him. It thus appears that Hart-lien did not comply with any one of the three methods permitted in Sec. 3-1130 above-, (a) he did not apply for or cast his ballot in person at the county clerk’s office, (b) he did not cast his ballot by mail and (c) he did not deliver his ballot to the office of the county clerk of the comity of his residence by anyone related to him as required by this section.

Lorn Mitchum. The evidence shows that Mitchum lived on the McHue Road about 2% miles from the voting place for the Southside School District; that on March 13, before the election on the 17th, while he was walking down the street in Batesville, after having visited his sick father-in-law in a hospital there, he was accosted by Johnny Mitchum and Darb Hallmark and given an application and ballot for voting absentee. He had not requested that they secure a ballot for him; they had all forms ready at their truck; they did not leave with his application and return with the ballot and statement but produced all three at the same time. He was not ill or physically disabled from attending the polls; that he attended to his business affairs in addition to visiting his sick father-in-law. He was at home on election day, had breakfast there, visited his father-in-law sometime that day and had supper at his own home on that day. We hold that the trial court on this evidence, was justified in holding that Mitchum was not unavoidably absent because of illness or physical disability and unable to attend the polls, as required in Sec. 3-1124 above.

J. S. G-alvin. This voter was held not to be a qualified absentee voter for the reason that the evidence did not show that he was unavoidably absent from the voting place, nor was he unable to go to the polls because of physical disability. The evidence showed that he was in the school district in question on the morning of the school election but that he went to Batesville, Arkansas, a distance about equal to the distance to the polls; that he did not work that day. While in Bates-ville, Johnny Mitchum took him to the county clerk’s office, an application for absentee ballot was filled out for him, he did not know its contents. A paper was given him to sign and he signed it and he voted an absentee ballot. “Q. Sir, this application and the affidavit which has been filed states ‘because of working I will be absent from voting precinct.’ A. That’s right . . . Q. What did you mean on your application when you said you would be working and unable to attend the polls. A. I don’t know about that, Q. Were you working that day? ... A. No, I think I was in town here. Q. Who took you to the courthouse (in Batesville) to get these papers? A. I went up there with Johnny Mitchum; Johnny helped me out with it. Q. Where did Johnny find you? A. Out here on the street, I told him I wanted to vote; he said I could vote ' absentee. Q. So he just put ‘working’ for the reason for being absent? A. Yes, I was over here in Batesville anyway.” G-alvin ate his supper at home that night. We think, as indicated above, that the court was warranted in finding this ballot illegal.

Acey Duncan.' The evidence shows that the name of Acey Duncan does not appear on the list of applications for absentee ballots, required to be kept by the county clerk under Seo. 3-1127 above. Duncan went , to the county clerk’s office and signed an application for an absentee ballot. The application (required under Sec. 3-1126 above) for absentee ballot which he signed left entirely blank his reason for being absent. The signed application provides: “County Clerk:

Ind. County .County
Batesville ., Arkansas
Because of.I will be ab-
(State reason for absence)
sent from my voting precinct on the date of March 17 election to be held on the 17 day of March, 1956.”

We hold that the failure of Duncan to state in his application the reason for being absent disqualified him to vote an absentee ballot under Sec. 3-1124 (a) above, which provides that to be entitled to an absentee ballot he must first show that he would be “unavoidably absent” from his voting place on the date of the election. As indicated, he gave no reason at all for being absent. Clearly, we think the court was warranted in finding this ballot illegal.

Mrs. Acey Duncan. We do not detail the evidence which the court found to he sufficient to invalidate Mrs. Duncan’s ballot. It suffices to say that after carefully reviewing all of this evidence we hold that it was sufficient to support the judgment of the court declaring it invalid.

Y. J. Barber. The evidence relative to this vote is to the following effect. On the day of the election (March 17, 1956) in School District No. 3, the district in which the election here was held, Barber was living in School District 45, where he had moved about February 1, 1956. He testified “when I moved over there I planned to stay over a pretty good period.” He moved his entire family and household furniture. From this testimony we think the court was justified in finding that Barber had moved out of District 3 into District 45, had resided there more than one month prior to the Southside School election, that his intention was to move and establish his residence in District 45, and that he was not a qualified voter in School District 3 under Sec. 3-101 Ark. Stats. 1947, which requires residence “in the voting precinct, or ward, one month next preceding any election.” We think since we are holding that he would he disqualified and barred from voting in District 3 he could not qualify as an absentee voter under Sec. 3-1124 above.

On the whole case, finding no error, the judgment is affirmed.

Wabd, J., not participating.