author: Neill Boi-ilinger, Associate Justice.

text:
    Laman, Mayor v. Harrill.
    5-2472
    349 S. W. 2d 814
    Opinion delivered October 9, 1961.

      Spitzberg, Bonner, Mitchell é Bays, for appellant.

      Terral & Rawlings, for appellee, James L. Sloan of counsel.
   Neill Boi-ilinger, Associate Justice.

The appellee, who was plaintiff in the court below, contends that having taken the examination provided by the Civil Service Commission of North Little Rock and having been certified by said commission for a position as clerk, he is entitled to be employed in that position in place of another person who had not been certified by the commission, was not on its list of qualified persons, but had been placed in the position of clerk in the sanitation department by order of the mayor acting under an ordinance of the City of North Little Rock. The appellee then asked that no salary be paid to the mayor’s appointee as clerk and that he be placed in’ that job in her stead.

The mayor, in behalf of the officials of North Little Rock, contends that Act 61 of the Acts of the General Assembly for the year 1941 is invalid in that by its terms it is local legislation and is invalid under the terms of Amendment 14 to the State Constitution. The Civil Service Commission of North Little Rock was created by an ordinance enacted pursuant to Act 61 and was voted upon and approved by the people in an election.

The question presented is whether or not Act 61 of 1941 is local legislation which is prohibited by the Constitution of the State of Arkansas.

Upon a trial in the Pulaski Chancery Court the chancellor found that the mayor’s appointee was not a civil service employee and was holding a position classified by civil service and that she was not entitled to be on the city’s payroll in any employment covered by Act 61 of 1941; that Act 61 of 1941 was a constitutional enactment and not in conflict with Amendment 14 of the Constitution and was valid in its entirety, and while restraining the officials from paying the mayor’s appointee, the chancellor denied the prayer for mandamus to place appellee in the position of clerk. This places squarely in issue the question as to whether or not Act 61 of 1941 is a proper enactment in the light of Amendment 14 to the Constitution to the State of Arkansas.

From early times the people have sought to circumscribe the power of the legislature in the enactment of local and special laws. Sections 24 and 25 of Article 5 of the Constitution of 1874 are as follows:

‘ ‘ § 24. Local and special laws. — The General Assembly shall not pass any local or special law changing the venue in criminal cases; changing the names of persons or adopting or legitimating children; granting divorces; vacating roads, streets or alleys.

“•§ 25. Special laws — Suspension of general laws. —In all cases where a general law can be made applicable no special law shall be enacted; nor shall the operation of any general law be suspended by the Legislature for the benefit of any particular individual, corporation or association; nor where the courts have jurisdiction to grant the powers or the privileges or the relief asked for.”

Section 25 above quoted left it largely a matter of legislative determination as to the applicability of special and general laws and much legislation which was special or local was passed from time to time.

The dissatisfaction of the people with that practice crystallized in the adoption of Amendment 14 to the Constitution which reads as follows:

“Local or special acts prohibited — Eight to repeal acts by legislature. — The General Assembly shall not pass any local or special act. This amendment shall not prohibit the repeal of local or special acts.”

This amendment is short and unambiguous — it bars local legislation.

Legislation may be roughly classified as general, special or local. A general law is one that operates upon all counties, cities and towns alike. A law is special in a constitutional sense when by force of an inherent limitation it arbitrarily separates some person, place or thing from those upon which, but for such separation it would operate and a local law is one that applies to any subdivision or division of the state less than the whole.

The act before us, by its terms, applies only to cities having a population of 20,000 or over and which are located in counties having a population of 100,000 or more. There is a further limitation that the act should not apply to cities located in counties of 100,000 or more that are operating a civil service branch already implemented.

In arriving at the intention of a general or local law, this court in City of Little Rock v. Town of North Little Rock, 72 Ark. 195, 79 S. W. 785, stated the rule as follows:

“To make the law general it is not necessary that it should operate upon all cities and towns of the state. It is sufficient if it applies to all towns and cities in the state coming within the class named in the statute. We may concede, as counsel contends, that a statute, though in the form of a general law, may still be special if it be intended to apply, and can apply, to only one city or town in the state. . . .”

In State ex rel Burrow v. Jolly, 207 Ark. 515, 181 S. W. 2d 479, the court laid down a further guide for determination.

“* * * in determining whether a law is public, general, special, or local, the courts will look to its substance and practical operation rather than to its title, form and phraseology, ‘because otherwise prohibitions of the fundamental law against special legislation would be nugatory.’ ”

In Street Improvement Districts Nos. 481 and 485 v. Hadfield, 184 Ark. 598, 43 S. W. 2d 62, the court said:

“The general rule is that classification is properly based on population when reasonably adapted to the subject of the statute. Otherwise the classification by population is special legislation. Other circumstances than population may be made the basis of classification when reasonably germane and pertinent to the subject-matter. ’ ’

And we think this further citation from the Hadfield case, supra, applies:

“The authorities generally hold that classification of cities and towns by population cannot be arbitrarily adopted as a ground for granting some of them powers denied to others if, although there be a difference in population, there is no difference in situation or circumstances of the municipalities placed in the different classes, and the difference in population has no reasonable relation to the purposes and object to be attained by the statute.”

A case that is applicable on all points is found in the case of State v. Weakley, 153 Ala. 648, 45 So. 175, in which the Supreme Court of Alabama passed on the constitutionality of an act which provided for the establishment of police commissions “in cities of 35,000 population or more, in counties of 125,000 or more population.” The court there said that the statute in part was applicable to but one city and that it was unconstitutional as not being a bona fide classification of cities and further:

“The act in question was in no sense a classification of counties, as its manifest object is to create a police board in cities, and pertains in no way to the regulation of counties. Nor is it a bona fide classification of cities, as it expressly excludes cities of the same class, unless located in a county of a certain size. "While there are cities in Alabama other than Birmingham with the necessary population, Birmingham is the only one located in a county with a population of 125,000. The substance of the act is for the sole purpose of regulating conditions in Birmingham, although the act is disguised in the garb of a general law. . . .”

In the case of Simpson v. Matthews, 184 Ark. 213, at p. 217, 40 S. W. 2d 991, this court passed upon the constitutionality of an act providing for the creation of improvement districts in counties of 75,000 or more population to provide dams and ponds to prevent the eroding of roads through heavy rains and this court, in pointing out the artificiality of the limitation, called attention to the fact that the classification according to population was not pertinent in that the rain fell upon all counties alike and ‘ ‘ that the basis of classification cannot be arbitrary or illusive, but must be founded upon a substantial distinction, having reference to the subject matter of the legislation, between the objects or places embraced in the subject of the legislation and the objects or places excluded, as suggests the necessity or propriety of different legislation for the two in respect to the matter which is the subject of the legislation; second, that the act must include, and act uniformly upon, all of the class — that is, all whose conditions and wants render such legislation equally appropriate to them as a class.”

Applying these principles to the case at bar, we think that limiting the act to cities of 20,000 or more was a proper exercise of legislative determination but we are mindful of the fact that other cities in the state had 20,000 or more in population but were denied the beneficent provisions of this act by reason of the fact that the counties in which they are situated did not have a 100,000 population. It is noted that the inhabitants of the county outside of the city were not permitted to vote on the adoption of the civil service system, or charged with any part of the expense of its operation and derived no benefit from its inclusion therefrom. Thus their inclusion was arbitrary and not germane to the legislation.

While the second paragraph of Section 1 of Act 61 provides as follows:

“ Every city in this state shall be entitled to operate under this Act whenever any Federal Census taken shows that such city has attained a population of more than 20,000 in counties having a population of 100,000 or over, and all other requirements of this Act have been met.”

We observe that two decades have come and gone since the enactment of Act 61 of 1941 and that Pulaski County is still the only county in the state having a population of 100,000 or more and the Act today is applicable only to North Little Rock which was the only city that could have qualified under the act at the time of its passage and the inclusion of this prospective application of the law represents nothing more than a futile effort to breathe validity into an act which was void at its inception.

We find that Act 61 of 1941 falls within the inhibition of the 14th Amendment to the State Constitution and is void as local legislation. The decree is therefore reversed and the cause is remanded to the Pulaski Chancery Court with directions to vacate the restraining order and to dismiss the complaint.


source: Caselaw Access Project

author: Neill Bohlinger, Associate Justice. Sam Robinson, Associate Justice,

license: Public Domain

text:
    Beckerman v. Owosso Mfg. Co.
    5-2481
    350 S. W. 2d 321
    Opinion delivered October 9, 1961.
    [Rehearing denied November 13, 1961.]

      J. B. Milham and Gladys M. Cummins, for appellant.

      Wright, Lindsey, Jennings, Lester & Shults, for appellee.
   Neill Bohlinger, Associate Justice.

This case is presented here on appeal from the Saline Circuit Court which affirmed a finding of the Workmen’s Compensation Commission denying the claim of Mrs. Carl F. Beckerman against the Owosso Manufacturing Company.

The facts in this case may he briefly summarized as follows. Carl F. Beckerman was an employee of the Owosso Manufacturing Company, appellee here, and was engaged as a marker and stacker of logs. The plant of the appellee was on Neeley Street which is a street in the City of Benton and at the point involved in this case, runs approximately north and south. The plant of the appellee is situated on both sides of Neeley Street, which street is sometimes locally referred to as Owosso Road.

On the day of the accident, the deceased, Becker-man, had checked out at the plant of the appellee at noon, or as stated, 12:03, and had taken his car from the parking lot on the premises of appellee on the east side of Neeley Street and had driven it from the parking lot to Neeley Street where he turned to the right and had gone what witnesses described as ‘about a block’ to a point where Neeley Street was intersected by a railroad track. At this point, which is described as being about 28 feet from the boundary of appellee’s property, Beckerman’s car was struck by a train and Beckerman was killed.

Stripped of its nonessentials the case narrows down to a determination as to whether or not compensation is due under an exception to the “going and coming rule ’ ’ with particular attention to exception “ B ” as set out in the case of Frank Lyon Company v. Oats, 225 Ark. 682, at p. 684, 284 S. W. 2d 637, which is the exception stated to the general rule and has reference to employees injured while in close proximity to the place of business. These facts appear to be uncontroverted. That Beckerman had left the property of the appellee and embarked on a mission of his own which carried him into the general traffic on Neeley Street. Whether the purpose of his trip was to go to lunch at a restaurant a short distance from the point of the accident, or whether to follow Neeley Street into the business area of Benton, we do not know, nor do we think it of importance for it is not shown that he was on any mission connected with the business of the appellee.

Measuring this case in the light of Bales v. Service Club, 208 Ark. 692, 187 S. W. 2d 321, we find a different set of circumstances in that this court ordered compensation for an employee of the service club who, in going to work, was injured when she fell upon an icy sidewalk which was immediately adjacent to the premises of the employer and under the exclusive control of the employer, and in that case this court found that the employee had the choice of entering the building where she was employed or re-tracing her steps. The court further said that for all practicable purposes she had reached the place of employment. In that opinion this court quoted from 71 Corpus Juris 716, § 445, including this quotation: “Thus injury from an accident in the street or on a highway while on the way to or from work is not ordinarily compensable unless the employment is such that the employee must travel the street in order to perform it, or where the employee is subject to emergency calls, or where the employee is off the premises by reason of the express direction of the employer.” Beckerman does not fall within any of these exceptions. When he left the premises of the appellee he was under no obligation to perform any services for the appellee and for the time intervening between his leaving and one o ’clock, the employer owed him no money. There was no emergency call that took him upon the highway or any express direction of the employer directing him so to go. Between 12:03 and 1:00 o’clock, Beckerman and the employer went their several ways without obligation of one to the other.

In the Frank Lyon Company v. Oats case, supra, exception “D,” 225 Ark. at p. 684, deals with the “traveling salesman rule”. The reasoning in the traveling salesman rule is applicable here. The ■ traveling salesman, while about the business of the employer, be he where he may, is upon the employer’s business.and is as much at his post of duty as the workman at his bench within the plant itself.

In applying the ‘close proximity exception’ to the ‘coming and going rule,’ we call attention to the fact that Beckerman had traveled ‘about a block’ from where he left the property of his employer and was only a matter of some 20 feet from the property line of the employer when he was at the public crossing where he was killed.

Could we arbitrarily say that if a man is within so many feet, yards, blocks or miles of his employer’s business his injury is compensable? A matter of that importance must rest on a more secure and easily ascertained basis than judicial whim or emotional appeal. The touchstone is not how near he might have been to his employer’s business, but was he performing any duty in connection with his employment, or was he at the point of the accident at his employer’s direction, or using facilities supplied by the employer.

Appellant argues with much plausibility that Neeley Street was so extensively used by the employer and was so much a part of its operation that Neeley Street, at the point of the plant, should be considered as part of the employer’s premises. We do not so agree. A homely test as to whether or not Neeley Street was part of the employer’s operational area would be if the appellee sold its business could it convey the street in which it had no proprietory interest — obviously not, and we discard that theory of appellant. In Rhyne, Municipal Law (1957), §§ 18-31: “An abutting owner has two distinct rights in the streets and alleys, (1) the public right of passage from end to end, which is equal to but in no sense greater than, the rights of the general public; * * *” Hence the only use that appellee could make of Neeley Street was to use it for movement as the general public did. It could not subject any part of the public domain to its exclusive use in its business. Hence the deceased could have had no duty to perform on Neeley Street and he was upon that street subject to all the hazards of the traveling public generally.

The Parramore case [Cudahy Packing Company v. Mary Ann Parramore, 263 U. S. 418, 44 S. Ct. 148, 68 L. Ed. 366, 30 A. L. R. 532] is based upon a set of facts in no wise comparable to the case at bar, hence it does not apply, but the court did say that there must be a connection between the injury and the business in which the injured man was employed. In the Parramore case the employee was forced to use a hazardous means of access to the plant which was kept in repair for the use of persons traveling to and from the employer’s plant and the commission found that compensation, was due.

In the Davis v. Chemical Construction Company, 232 Ark. 50, 334 S. W. 2d 697, case we deal with an entirely different set of circumstances. There the employee was injured in a parking area maintained by the employer for the employees and this court said: “ * * * It does not seem to us that Davis should be held to have left his employer’s premises until he had passed through the second gate and joined the general traveling public.”

From a review of all the facts and the law, we find that the circuit court was justified in sustaining the opinion of the Workmen’s Compensation Commission which found that the claim should be denied and dismissed. The judgment is therefore affirmed.

Ward, Robinson and Johnson, JJ., dissent.

Sam Robinson, Associate Justice,

dissenting.

Beckerman had worked for Owosso for fourteen years. Some of the employees customarily drive away for lunch. They have done that for a long time. Within not over three or four minutes after Beckerman punched his time card going out for lunch, he was killed. He habitually ate his lunch at Prewitt’s cafe, three or four blocks from the plant.

The crossing where Beckerman was killed is in such close proximity to the log pile where he worked that for all practical purposes he was on the employer’s property at the time of the accident. He was only 20 or 30 feet from the place where he had piled the logs. Owosso actually uses the street not only as such, but as a part of its own property. The Owosso property extends from the Rock Island railroad on the south to the Missouri Pacific railroad on the north, a distance of approximately 300 feet. The railroads are adjacent to the Owosso property and in order for one to leave the Owosso plant he must cross either the Rock Island or Missouri Pacific railroad. Beckerman was crossing the Missouri Pacific tracks when he was killed. Owosso has large buildings on each side of the road between the two railroad tracks, and there is a large conveyor, which appears to be about 15 feet high., going across the road from the building on the west to the building on the east. Poles supporting the conveyor appear to be on the right of way of the so-called street. On the property east of the street there is a large derrick used in moving and piling logs. The center pole of this derrick is supported by guy wires that extend across the street. It also appears that the logs piled by Beckerman for his employer had been piled partially in the street. About half-way between the railroad tracks on the south and the railroad tracks on the north there is a very narrow bridge that will carry only one way traffic, indicating that the public in general does not use the street to any great extent.

The case at bar is clearly distinguishable from Johnson v. Clark, 230 Ark. 275, 322 S. W. 2d 72. In that case an employee was injured after the closing of the employer’s business for the night. The employee crossed the street where he sat in an automobile on private property, waiting for a taxicab. It was specifically pointed out by the court that “It was only by going out of his way to private property across the street that Clark happened to be at the spot where he was hurt.” He was injured when he stepped from the car into a slight depression in the ground. There was no hazard at all involved. There it was said: ‘ ‘ The trouble is that, as far as we can find, no reported case has ever extended the employer’s premises to include private property (a) that is separated from the employer’s premises by a public street, (b) that is not in any respect subject to the employer’s control, (c) that involves no peril except that of tripping on ground that is not perfectly smooth, and (d) that the employee can reach only by departing from the ordinary route to his home.” None of the specifically mentioned facts existing in the Johnson case is present in the case at bar. There the Court pointed out that no case could be found where an employee had been granted compensation under similar facts to the case under consideration at that time. But in the case at bar there are numerous cases having similar facts where compensation was awarded. Of course, the general rule is that an employee cannot recover compensation if injured while going or coming to or from work. But there are numerous exceptions, as was pointed out in the Johnson case: “The exceptions to the basic rule are perhaps too numerous to be readily listed, and new ones will arise, but each is founded upon a valid reason for bringing the situation within the protection that the legislature meant to afford the worker.” Following the Johnson case we failed to extend the rule in Davis v. Chemical Constr. Co., 232 Ark. 50, 334 S. W. 2d 697.

One of the valid exceptions to the rule is pointed out in Frank Lyon Co. v. Oates, 225 Ark. 682, 284 S. W. 2d 637: “When the employee is injured while in close proximity to the place of business.” And this rule was clearly recognized in Bales, Admr’x. v. Service Club, 208 Ark. 692, 187 S. W. 2d 321. There Mrs. Bales was injured by slipping on the sidewalk before she actually reached the entrance to the employer’s place of business. Recovery was allowed, and this could have been only on the theory that she was on her way to work and in close proximity to her place of employment at the time she received the injury.

Actually there is no valid distinction between the case at bar and the leading case on the subject, Cudahy Packing Co. v. Parramore, 263 U. S. 418, 44 S. Ct. 148, 68 L. Ed. 366, 30 A. L. R. 532. There, as in the case at bar, Parramore was killed when he was struck by a train while he was crossing a track in close proximity to his place of work. The Court pointed out that whether a given accident is so related or incident to the business as to be considered within the course of the employment of the one injured must depend on its own particular circumstances and that no exact formula can be laid down that will automatically solve every case. The Court said: “The fact that the accident happens upon a public road or at a railroad crossing and that the danger is one to which the general public is likewise exposed is not conclusive against the existence of such causal relationship, if the danger be one to which the employee, by reason of and in connection with his employment, is subjected peculiarly or to an abnormal degree.” In addition the Court said: “An accident arises out of the employment where it results from a risk incidental to the employment, as distinguished from a risk common to all mankind, although the risk incidental to the employment may include a risk common to all mankind.” The Court further stated: “But the contention here, shortly stated, is that the accident was one which occurred off the premises of the employer on a public road, outside the hours of employment and while the employee was not engaged in any business of the employer; that it was not the result of any industrial risk but arose from a common peril to which the public generally was exposed; and that consequently liability is imposed arbitrarily and capriciously. ’ ’ An award was sustained in the Parramore case.

The Parramore case was followed by Bountiful Brick Co. v. Giles, 276 U. S. 154, 48 S. Ct. 221, 72 L. Ed. 507, 66 A. L. R. 1402. In that case Giles was killed while crossing the railroad tracks not at a regular crossing, and in fact it was not even necessary to cross the railroad tracks to get to his employment. But the tracks were in the immediate vicinity of the place of employment, although not on the employer’s property. There the Court said: ‘ ‘ And employment includes not only the actual doing of the work, but a reasonable margin of time and space necessary to be used in passing to and from the place where the work is to be done. If the employee be injured while passing, with the express or implied consent of the employer, to or from his work by a way over the employer’s premises, or over those of another in such proximity and relation as to be in practical effect a part of the employer’s premises, the injury is one arising out of and in the course of the employment as much as though it had happened while the employee was engaged in his work at the place of its performance. In other words, the employment may begin in point of time before the work is entered upon and in point of space before the place where the work is to be done is reached. Probably, as a general rule, employment may be said to begin when the employee reaches the entrance to the employer’s premises where the work is to be done; but it is clear that in some cases the rule extends to include adjacent premises used by the employee as a means of ingress and egress with the express or implied consent of the employer. . . . There [speaking of the Parramore case], as here, it was necessary for the employees, in order to get to the place of work, to cross the tracks, and they were in effect invited by the employer to do so. The difference between the two cases is that in the former the crossing customarily used was entirely upon a public road, while here the way followed was in part along the railway tracks and by crossings within the railroad right of way wherever the employees upon their own volition might choose to go. The present case, though it comes nearer the border line, falls within the principle of the Parramore case. Since the only way of access to its brickyard from the east was across the railway tracks, the company necessarily contemplated the crossing of them by its employees.”

In Northwestern Fuel Co. v. Swanson, 197 Wis. 48, 221 N. W. 396, the employee was injured while riding a bicycle on a public road in close proximity to the place of work. Recovery was allowed.

In Guient v. Mathieson Chemical Corp., 41 So. 2d 493 (La. 1949), the court said: “The case involves the application of what has come to be known in our workmen’s compensation law as the ‘proximity rule.’ That rule relates to the right of an injured employee to recover compensation when he suffers a disability that results from an accident sustained by him which occurs at a public crossing which is in such close proximity to the premises of the plant at which he works as to constitute a necessary convenient passageway for the conduct of the employer’s business, and in principle therefore, may be said to be a part of the premises.” There the employee was crossing U. S. Highway 90, after having alighted from a bus. An award was allowed. The court said: “The highway afforded the only way of travel by which the employees reached the plant and since they are a necessary and integral part of the operation of the plant it is a logical deduction that, as a means of reaching their place of employment, it becomes a necessary convenient passageway for the conduct of the employer’s business, and this, notwithstanding the fact that the public generally is subjected to the same hazards as are the employees who have to cross it regularly in going to and coming from work. . . . The employment contemplated his entry upon and departure from the premises as much as it contemplated his working there, and must include a reasonable interval of time for that purpose.”

In Tinsman Manufacturing Co., Inc. v. Sparks, 211 Ark. 554, 201 S. W. 2d 573, the Court quoted with approval from an English case, as follows: “ ‘In one sense anything a man does in connection with his own body is done for his own purpose: eating and drinking are illustrations; but these are nonetheless things a workman is perfectly entitled to do in the course of his employment. . . . “I think an accident befalls a man ‘in the course of’ his employment if it occurs while he is doing what a man so employed may reasonably do within a time during which he is employed, and at a place where he may reasonably be during that time to do that thing.” ’ ”

Professor Larson at page 196 [§§ 15.12, 15.13] says: “Some courts have extended the ‘premises’ idea to areas which are not owned or even controlled by the employer, but which are so closely associated with it that they are in effect part of the premises. Such a test has been helpful in a number of cases, . . . The most striking illustration comes from Wisconsin, which interpreted the statutory phrase, ‘premises of the employer,’ to include the intersection of a railroad and a public highway. . . . The commonest ground of extension is that the off-premises point at which the injury occurred lies on the only route, or at least on the normal route, which employees must traverse to reach the plant, and that therefore the hazards of that route become the hazards of the employment. This general idea seems to have been accepted by the majority of jurisdictions in some degree.”

Professor Horovitz in his book on Workmen’s Compensation at page 161 says: “There is no reason in principle why states should not protect employees for a reasonable period of time prior to or after working hours and for a reasonable distance. . . .”

I think that according to the great weight of authority Beckerman was killed in such close proximity to his place of work that compensation should be awarded. In my opinion pictures of the scene of the accident reproduced herein sustain that view. The Compensation Commission specifically stated there was no dispute as to the facts. I believe if the Commissioners had felt that they could have found for the claimant under the law, they would have done so. But they erroneously construed the law to be such that when applied to the facts in the case no award could be made. The Commission fell into this same error in Bales, Admr’x. v. Service Club, 208 Ark. 692, 187 S. W. 2d 321, where there was no dispute as to the facts, and the Commission held there could be no recovery under the law. In reversing the Commission, Judge Prank Smith, speaking for the Court, said: “But in any and every case the sufficiency of the testimony to support the Commission’s finding, or for that matter the verdict of a jury, is not a question of fact, but one of law, which this court will review on appeal. We have, therefore, copied in extenso the lengthy statement of facts as agreed upon by counsel, in order that we may determine as a matter of law whether the ‘coming and going’ rule should be applied.” The Court held that the “coming and going” rule should not be applied in that case and reversed the order of the Commission denying compensation and ordered the Commission to make an award of compensation. I respectfully submit that the same thing should be done in the case at bar and I therefore dissent.

Johnson, J., joins in this dissent.


author: per curiam

text:
    Robberson v. Steele Canning Co.
    5-2594
    349 S. W. 2d 814
    Opinion delivered October 9, 1961.

      Parker <& Mobley, for appellant.

      Scott & Davidson and Grouch, Jones, Blair & Gypert, for appellee.
   per curiam

Appellees have filed a motion to dismiss the appeal in this case, alleging that there has been no final order from which an appeal will lie. This action was filed by-appellant, Delano Robberson. Appellees filed motions to quash service. The motions were granted and Robberson has appealed to this Court from the order of the circuit court quashing service of summons. The trial court made no order except that of quashing the service of summons on the various defendants. The plaintiff then appealed to this Court without announcing to the trial court that he elected to stand on the service he had obtained.

The case is still pending in the circuit court and would still be pending if appellant failed to prevail here on this appeal. The correct procedure was pointed out in Harlow v. Mason, 117 Ark. 360, 174 S. W. 1163. There the Court said: “So, here, appellant had the right to stand upon the proposition that his service was sufficient, in which event a final judgment would have been pronounced; and we think the better practice is to require him either to stand upon the sufficiency of his service and permit a final order to be entered, or to have the return amended to conform to the rulings of the court.” See also Yocum v. Oklahoma Tire & Supply Co., 191 Ark. 1126, 89 S. W. 2d 919.

The motion to dismiss the appeal is granted.


author: Carleton Harris, Chief Justice.

text:
    Moore v. Rommel.
    5-2443
    350 S. W. 2d 190
    Opinion delivered October 16, 1961.

      Rose, Meek, House, Barron, Nash & Williamson, for appellant.
    No brief filed for appellee.
   Carleton Harris, Chief Justice.

Spring Creek Baptist Church of Benton contracted for certain work to be done by Benton Plumbing, Inc., on November 4, 1959. The total contract price was $18,105.95. According to the stipulation between the parties, the work was abandoned by Benton Plumbing, and it became necessary for the church to subsequently make other arrangements to have the job completed. Benton Plumbing* obtained the materials used in the project from Crane Supply Company at a cost of $6,182.89, for which Crane was not paid. Crane instituted suit against Benton Plumbing, Inc., and the Trustees of the Spring Creek Baptist Church on September 16, 1960, praying judgment against both defendants for such sum, and asking a lien upon the church property. Four days later, Crane amended its complaint, alleging that Benton Plumbing, Inc., had been dissolved as a corporation; that Morris W. Rommel, Lucile Rommel, and A. Gr. Hockersmith, Jr., were trustees of Benton Plumbing, Inc.; that they should be made party defendants, and judgment was prayed against them. The trustees of the church filed an answer, and a counterclaim against the Rommels, alleging that the charter of Benton Plumbing, Inc., had been revoked on February 1, 1959, and that Hockersmith and the Rommels had operated the plumbing business as partners; that the payments made by the church to the Rommels had been made for the purpose of discharging any indebtedness due for materials delivered to the job site, and that the Rommels, and Benton Plumbing Company.“are liable in damages to the counter-claimants for the mis-application of said funds and for their failure to pay any or all of the statements of Crane Supply Company for materials furnished to the job site.” On December 22, 1960, the cause came on for hearing, and all parties, Crane Supply Company, the trustees of the Spring Creek Baptist Church, and Morris W. Rommel and Lucile Rommel, appeared by their respective attorneys. All then entered into a stipulation, wherein it was stipulated that Crane furnished the materials as alleged, and that same were placed upon the property owned by Spring Creek; that the materials were invoiced to Benton Plumbing, Inc.; that Crane was due the amount of $6,182.89, for which it was entitled to a lien on the land and improvements belonging to the church; that the church paid Crane said amount in open conrt, satisfying the lien in full. Judgment was entered in favor of the trustees of the Spring Creek Baptist Church against Benton Plumbing Company, Inc., in the amount of $4,051.85, but the court retained jurisdiction to decide at a later date whether the church was entitled to a judgment against the Rommels in their individual capacities. On February 2, 1961, the parties (Spring Creek Baptist Church and Morris W. Rommel and Lucile Rommel), through counsel, entered into a further stipulation, and after argument, the court dismissed the trustees’ counterclaim against the Rommels. From the decree so entered, appellants bring this appeal. For reversal, appellants rely upon a single point, viz.:

“Since Benton Plumbing, Inc.’s authority as an Arkansas corporation was revoked on February 1, 1959, pursuant to Section 84-1841, Ark. Stats. (1960 Replacement), the Court erred in holding that Morris W. Rommel and Lucile Rommel were not liable as partners for indebtedness incurred in the name of Benton Plumbing, Inc., subsequent to February 1, 1959, and prior to the date when the delinquent franchise tax was paid.”

The following facts, as reflected by the stipulation, are pertinent to the determination of the issue herein.

1. Benton Plumbing, Inc., was organized as an Arkansas Corporation on August 16, 1954, the incorporators being Morris W. Rommel, Lucile Rommel, and A. G-. Hooker smith, Jr. At the time the work was performed for Spring Creek Baptist Church, the original incorporators were the sole owners of stock in the corporation.

2. On February 1, 1959, under the authority of Act 304 of the General Assembly of 1953, the Governor issued his proclamation proclaiming all corporations which had been certified as delinquent in payment of the Franchise Tax “to have forfeited all rights to do business in this State, and to be dissolved or withdrawn, as the case may be.” This included Benton Plumbing, Inc.

3. The contract between the Spring Creek Baptist Church and Benton Plumbing, Inc., was entered into on November 4, 1959.

4. Suit was instituted against Benton Plumbing and Spring Creek by Crane on September 16, 1960, and against the Rommels on September 20, 1960. Spring Creek filed its counterclaim against the Rommels on September 28, 1960.

5. The franchise tax for the years 1958, 1959, and 1960, in the amount of $41.25, was paid to the State of Arkansas on December 19, 1960, the receipt showing that said sum was received from “Benton Plumbing, Inc.”

Let us first consider the status of the corporation after paying its delinquent tax. Relative thereto, Section 84-1841, Ark. Stats. (1960 Replacement), provides:

“Provided, any corporation which has had its charter or authority to do business in the State declared forfeited by proclamation of the Governor may be reinstated to all its rights, powers and property upon filing with the Commissioner all delinquent franchise tax reports and payment of all taxes and penalties due for each year of delinquency, such taxes and penalties to be computed in the same manner as though such corporate charter or authority had not been declared forfeited.

Upon filing with the Secretary of State, or other official who issued original corporate charter or authority, the receipt of the Commissioner, or the Attorney General, showing the payment by the corporation of all amounts due, as hereinabove provided, the Secretary of State, or such other official, shall strike the name of such corporation from the list of corporations whose charters or authorities have been declared forfeited in any proclamation of the Governor. Thereafter, such corporation shall stand in all respects as though its name had never been included in any such proclamation, and the corporation and the Commissioner shall be advised of such reinstatement by the reinstating official or agency. ’ ’

We think the key word is the italicized one appearing therein. In other words, Benton Plumbing, Inc., was restored to its former corporate status as of December 19, 1960. Since the Governor’s proclamation was issued on February 1, 1959, Benton Plumbing Company did not enjoy corporate status at the time it entered into the contract with the Spring Creek Baptist Church (November 4, 1959). Incidentally, the tax not being paid until after the complaints had been filed, it would appear that the payment was made as a matter of defense to personal liability. In Clarke Estate Co. v. Gentry, et al, 362 Mo. 80, 240 S. W. 2d 124 (1951), the issues were the right of a corporation, the charter of which had been forfeited, to file and maintain a suit in its own name and as a corporation, and the effect of rescission of the forfeiture. The company’s charter had been forfeited by the Secretary of State for failure to file the annual registration report, financial statement, anti-trust affidavit, and failure to pay the annual registration fee. Some years later, the Secretary of State issued his ‘ Certificate of Rescission of Forfeiture” certifying that the forfeiture entered was “this day rescinded, and said corporation restored to good standing on the records of this department.” From the opinion:

“It is the company’s position that the rescission ‘vested plaintiff with a continuing existence from the origin of the corporation to the day of the rescission;’ that ‘plaintiff has but one charter and one continuous life;’ and that the rescission ‘extinguished and obliterated the forfeiture as effectively as if it had never been made and automatically restored the corporation ab initio to the same position as it was prior to the forfeiture ; it wiped out the dissolution completely.’ The company says that the rescission ‘vested the plaintiff with continuing existence from the date of its origin, and validated all corporate action as effectively as if there had been no forfeiture. All effects and sequalae of the temporary cessation were erased. There has been but one corporation, in whose existence there has been no legal hiatus.’

“We do not agree. The words ‘rescission,’ ‘rescind’ and ‘rescinded’ in the statutes above referred to cannot be so interpreted. The rule is that, .in the absence of clear legislative intent to the contrary, the effect of statutes is prospective only. * * *

“We rule here that the rescission was prospective only and that the company’s revived right to sue did not relate back to the time of the forfeiture, * *

We hold in the case before us, that the payment of the tax did not restore Benton Plumbing Company to its corporate status as of the time it first became delinquent, but only restored it to that status as of December 19, 1960, the time of payment of the tax.

It is true that appellants thought they were dealing with a corporation, but estoppel was not pleaded. The defense of estoppel is one that must be especially pleaded. See Gerard B. Lambert Co. v. Rogers, 161 Ark. 307, 255 S. W. 1089.

. We have concluded that appellees are personally liable to appellants. According to the stipulation, Morris Rommel and wife were two of the three incorporators of Benton Plumbing, and at the time the work was performed, the original incorporators were the sole owners of stock in such corporation. In Fletcher, Cyclopedia Corporations, Yol. 13A, § 6650, in a discussion of the liability of members of a non-exsiting corporation, we find:

“There is a conflict in the decisions as to the liability of members who have not actively participated in the business. Some courts hold that the members of the purported corporation are not individually liable as partners, because of their membership merely, on a contract made by its officers or agents, since no such relation or liability is contemplated by them, and that, in the absence of a statute imposing individual liability upon them, the only remedy is against the officers or agents who, made the contract. ’ ’

It is not necessary, in the present instance, that we discuss the possible liability of ordinary stockholders not participating in the business, since appellees do not come within that category; nor is any such defense raised by pleadings filed in response to the counterclaim of appellees, nor the stipulation entered into through their counsel. No contention is made that the Rommels did not make the contract or receive the money; they rely solely upon the alleged corporate standing of Benton Plumbing.

For the reasons herein set out, the decree of the Saline Chancery Court is reversed and the cause remanded with directions to enter judgment in favor of appellants, the trustees of Spring Creek Baptist Church, against appellees, Morris ~W. Rommel and Lucile Rommel, jointly and severally.

It is so ordered.

       A. G. Hockersmith, Jr., died on or about July 23, 1960. The court subsequently, in its decree, found that Hockersmith (here, the initials used were “H. E.”) had not been served with summons prior to his death, and his Personal Representative had not been made a party to the action.

       This figure is explained by a stipulation, entered into at a subsequent hearing on February 2, 1961, Such stipulation provides as follows : “The total contract price was $18,105.95. Thereafter, the trustees of the church paid to the Benton Plumbing, Inc., $13,262.02, leaving a balance of $4,843.93. (It is understood that the Spring Creek Church is not stipulating that the Benton Plumbing was operating as a corporation under the authority of the State of Arkansas.) At the time the work was abandoned, other work had to be completed on the job totaling $2,712.00. In other words, it cost the church $2,712.00 to finish the job that was to be performed by Benton Plumbing, Inc. Thus, of the amount withheld by the church ($4,843.93)) the church spent $2,712.00 in completing the job, leaving a balance of $2,131.93, which the church retained to apply against the lien. After deducting the $2,131.93 retained by the church from the amount of the lien, there is a loss to the church of $4,051.89.”

       This Act provides for the forfeiture of the charter of all corporations, both foreign and domestic, that are delinquent in the payment of the annual franchise tax.

       Emphasis supplied.

       Nor is it raised here; in fact, no brief has been filed by appellees.

       Several Arkansas cases are then cited.


author: Ed. F. McFaddin, Associate Justice.

text:
    Alma Canning Co. v. Hanna.
    5-2452
    350 S. W. 2d 166
    Opinion delivered October 16, 1961.

      Shaw, Jones & Shaw, for appellant.

      David O. Partain, for appellee.
   Ed. F. McFaddin, Associate Justice.

This is a Workmen’s Compensation case. Tbe appellee, Mrs. Hanna, was employed by appellant, Alma Canning Company. Mrs. Hanna claimed an injury, but tbe employer resisted the claim. Tbe Referee found that Mrs. Hanna was entitled to compensation; tbe Full Commission agreed with tbe Referee; tbe Circuit Court affirmed tbe Commission; and tbe Alma Canning Company brings this appeal, claiming that Mrs. Hanna’s injury did not “arise out of and in tbe course of employment.” See § 81-1302 (d), Ark. Stats.

There is very little dispute as to tbe salient facts. Mrs. Hanna was working for tbe Alma Canning Company on April 27, 1960, the . day in question. She and several other ladies were working at tbe spinach table. Two ladies — one on each side of tbe long table — bad short wooden sticks to spread tbe spinach on tbe table, and tbe other ladies would then collect the spinach. Since spreading with tbe sticks was tbe more vigorous work, it was tbe custom for tbe spreading work to be rotated to others after fifteen minutes. Work bad commenced at eight o’clock. Some time about 9:30 a.m. Mrs. Hanna was engaged in spreading the spinach. It was a cool morning and Mrs. Hanna, still with tbe spreading stick in her hand, went to the end of the table to get her sweater from the accustomed place. As she was in the act of putting on her sweater, she experienced a sharp and excruciating pain just below her right shoulder blade. Other ladies came to her and found a lump or knot under her shoulder blade. She had never before suffered any similar mishap. Mrs. Hanna’s superior gave her an aspirin and sent her to a physician. Later, she was sent to a hospital, and an additional physician who treated her described her injury as follows:

“Mrs. Hanna reported to our office on May 10, 1960, being sent in by Dr. Jack Thicksten of Alma, Arkansas because of pain in her back on the right side and just below her scapula. Patient states she was reaching back with her arm getting into her sweater while on the job working and was suddenly seized by a severe sharp pain in her back. We examined patient and felt she had a muscle cramp or irritation or spasm in that area which seemed to be tender on pressure or palpation. This area was infiltrated with local anesthetics and gave patient considerable relief. We advised physical therapy, muscle relaxing medication and had patient return which she did two days later stating she was considerably better. Her shoulder area was reinjected again at that time and patient was next seen on the 30th day of May. At that time she stated she still had pain in the muscles of her back when attempting to move her right arm. . . . Patient’s injury seemed to be in the form of a muscle contusion or irritation causing muscle to cramp. ...”

Did the evidence establish that Mrs. Hanna’s injury arose “out of and in the course of employment?” The Referee and the Commission answered the question in the affirmative, and we agree with such answer. There are a number of cases in which we have held injuries under analogous circumstances to have arisen out of and in the course of the employment. Some of these are Tinsman Mfg. Co. v. Sparks, 211 Ark. 554, 201 S. W. 2d 573; Cox Bros. Lbr. Co. v. Jones, 220 Ark. 431, 248 S. W. 2d 91; and Williams v. Gifford Hill Co., 227 Ark. 341, 298 S. W. 2d 323.

Cases from other jurisdictions are in accord with our holdings. In 99 C. J. S. 722, “Workmen’s Compensation” § 220, the holdings are summarized: “Acts necessary to the life, comfort, or convenience of an employee while at work are incidental to the service and an injury occurring while in the performance of such acts may be compensable.” In sub-topic “d” of the same section (<§ 220) the text states: “The act of an employee in seeking warmth or shelter does not interrupt the continuity of his employment.” In Larson’s two-volume treatise on Workmen’s Compensation Law, it is stated in § 21.51: “ Getting warm. Employees seeking warmth have been held to remain in the course of employment in the following representative situations: . . .” And there are listed a score of cases involving various factual situations somewhat analogous to the case here before us.

Mrs. Hanna had not left the premises of her employer. While at work on that April morning, she became cool and chilled and wanted to put on her sweater; she went to the accustomed place to get the sweater; she still had the spreading stick with her. She had never left the place of employment; and, from all of the evidence, the Commission was amply justified in finding that her injury arose out of. and in the course of employment.

Affirmed.


author: George Rose Smith, J.

text:
    Walton v. State.
    5001
    350 S. W. 2d 302
    Opinion delivered October 16, 1961.
    [Rehearing denied November 13, 1961.]

      Cecil E. Johnson, Jr. and John C. Finley, Jr., for appellant.

      J. Frank Holt, Attorney General, by Thorp Thomas, Asst. Attorney General, for appellee.
   George Rose Smith, J.

An information was filed against the appellant, Edward Walton, Jr., charging him with murder committed in the perpetration of burglary. He originally pleaded guilty and was sentenced to death, but that conviction was set aside on appeal. Walton v. State, 232 Ark. 86, 334 S. W. 2d 657. Walton then changed his plea to not guilty. Upon a trial on the merits he was found guilty of first degree murder and was again sentenced to death. A number of points are urged for a reversal of the judgment.

I. We find the evidence to be amply sufficient to support the verdict. Chester Stewart’s filling station in Ashdown had been broken into at night several times over a period of three months. In an effort to catch the burglar the sheriff posted the decedent, Roy Hallman (or Hollman), as an armed nightwatchman on duty inside the station. Four days later, on the morning of June 20, 1959, it was discovered that the station had again been broken into and that Hallman had been brutally beaten and fatally shot in the back. Hallman’s pistol and wallet were missing, and the cash register in the station had been rifled.

Later that same morning Walton, a man of twenty-seven, was arrested in Texarkana when he tried to sell a pistol to the proprietor of a liquor store. The arresting officers recovered a pair of bloodstained trousers that Walton had left at a nearby residence earlier that day. The murdered man’s wallet and papers were found in a pocket in the trousers. The pistol that Walton had was identified as the one furnished by the sheriff to Hallman. The state proved that this weapon had fired the bullet found in Hallman’s body.

Walton elected to testify at the trial. He admitted that he had entered the filling station and scuffled with Hallman and that a gun had gone off. He testified, however, that he had been so drunk and things had happened so quickly that he could not remember the details.

The state introduced Walton’s signed confession. In this narrative Walton related the events in detail and with apparent clarity of memory. He said that he had broken into the station and was at the cash register when Hallman, whom he had not seen, ordered him to put up his hands. Hallman was holding a pistol, but Walton could see that he was shaking with fright. While carrying on a conversation Walton managed to get close enough to grab at the gun and grapple with Hallman. During the struggle Walton seized a tire tool and hit Hallman in the head two or three times. While the two men were fighting for the gun it went off and fatally wounded Hallman. After the shot Walton fled, but in a few minutes he changed his mind and returned to the station. There he took the pistol, the dead man’s wallet, and the money in the cash register. He then got in the service station’s pickup truck and drove to Texarkana, where he was arrested several hours later.

With much of the evidence undisputed a principal question for the jury was whether Walton was so intoxicated as to be unable to entertain the intent to commit burglary and to engage in the struggle that resulted in Hallman’s death. This issue was submitted to the jury under instructions that we find to be correct. It was shown without contradiction that Walton was sufficiently alert to enter the filling station, overpower his victim, take the gun, wallet, and money, and drive a truck to Texarkana. In view of these facts the jury were not required to believe Walton’s assertion that he had been too drunk to know what he was doing. It is true that Walton was intoxicated later in the day when he was arrested, but the undisputed proof shows that he bought beer and whiskey and drank heavily after reaching Texarkana.

II. The appellant asked for a change of venue, on the ground that he could not receive a fair trial in Little River county. On this issue the proof offered by the accused and by the state was in conflict. It was for the trial court to say whether the allegations of prejudice were well founded. Leggett v. State, 227 Ark. 393, 299 S. W. 2d 59. We do not find that the court abused its discretion in denying the motion.

III. Walton, a Negro, challenged the jury panel with an assertion that members of his race had been systematically excluded. There is no proof whatever to sustain this charge with respect to this particular panel. It is shown without dispute that the jury commissioners were instructed to select the panel without regard to race, creed, or color. Twelve Negroes were named upon a panel of about sixty-six persons, which indicates that a fair cross-section of the population was represented.

It happened that the twelve Negro veniremen were excused for cause, as they were all opposed to capital punishment. Walton’s present contention is that the court should have summoned more Negro veniremen so that the .race would be represented upon the jury as finally selected. This contention is not sound. All that the accused is entitled to demand is that the panel be fairly chosen, without racial discrimination. He is not entitled as a matter of right to the presence of Negroes upon the petit jury that hears the case. Akins v. Texas, 325 U. S. 398. Where the initial panel is fairly selected, as in the case at bar, it has been held that the accused is not discriminated against merely because the members of his race are peremptorily challenged by the prosecution. Haraway v. State, 203 Ark. 912, 159 S. W. 2d 933, cert. den. 317 U. S. 648; Hall v. U. S., App. D. C., 168 F. 2d 161, 4 A. L. R. 2d 1193, cert. den. 334 U. S. 853; People v. Roxborough, 307 Mich. 575, 12 N. W. 2d 466, cert. den. 323 U. S. 749. The state’s position here is even stronger than in the cases cited, for in the court below the veniremen were properly excused for cause.

IY. After one of the jurors had been accepted by both sides it was discovered that he had signed an affidavit expressing the opinion that Walton could not get a fair trial in the county. The prosecution was then permitted to excuse the juror by a peremptory challenge. At that point the selection of the jury had not been completed, and of course the jurors had not been sworn. There was no error, especially as it was not shown that the defense had exhausted its peremptory challenges. Nail v. State, 231 Ark. 70, 328 S. W. 2d 836.

V. Although Walton has never directly denied the truth of his confession he insists that it should have been excluded as involuntary. The jury were justified in rejecting this contention, for the decided weight of the evidence supports the view that the confession was admissible. When Walton was arrested the officers thought that he was too intoxicated to be questioned. That afternoon or evening, however, he was confronted with the overwhelming evidence against him, and, according to the officers, he readily admitted his guilt. There is no suggestion that he was questioned for any length of time. All the officers present say that he was not mistreated in any way, and, in view of the almost conclusive proof that was already available, their statements are plainly credible. The confession was not reduced to writing until the following day, when a stenographer could be present.

The jury may well have been unimpressed by Walton’s assertion that he was abused by the officers. He said that he was taken to the basement of the courthouse, where the officers handcuffed his hands behind his back and beat him with a strap. He was unable to describe the basement, and other proof shows that the basement consists only of a hall and offices occupied by public employees. Walton was unable to positively identify the officer who allegedly mistreated him. He exhibited a scar on his back, but the state offered proof to show that the scar was the result of a fight some days earlier, and in any event the wound could hardly have been inflicted if Walton had been handcuffed in the manner he describes.

Finally, when Walton was arraigned on June 22 he stated in open court that his confession had been voluntary and freely given; the officers, he said, “were very nice.” This prior testimony was objected to, but it was plainly competent. Ellis v. State, 144 Ark. 504, 222 S. W. 1058; Dunham v. State, 207 Ark. 472, 181 S. W. 2d 242; Wharton’s Criminal Evidence (12th Ed.), § 735. Upon the record as a whole we are firmly convinced that the issue of the voluntary nature of the confession was correctly submitted to the jury.

VI. Over the defendant’s objection the court permitted the jury to view the scene of the murder. It is contended that the conditions on the day of trial were not exactly the same as they were on the night of the murder, since a few things had been moved, such as an oil rack and a five-gallon can. The jury Avere told of the changes, however, and we are unable to see how the accused could have been prejudiced in any manner by the slight differences in the situation.

The appellant also insists that he should have been permitted to accompany the jury instead of remaining in the judge’s chambers with his counsel, where a preliminary hearing upon the voluntary character of the confession was held while the members of the jury were gone. If the appellant or his counsel had requested that he be permitted to accompany the jury no doubt the court would have granted the request. No such request was made, however, and consequently the right to be present at the view was waived. Davidson v. State, 108 Ark. 191, 158 S. W. 1103, Ann. Cas. 1915B, 436; Whitley v. State, 114 Ark. 243, 169 S. W. 952.

VII. After the members of the jury had retired they sent word to the trial judge that they would like to ask a question. The judge, the attorneys, and the court reporter all went to the jury room, where a juror asked “if a life sentence is fixed on this boy, is there any guarantee that it will be a natural life sentence? Will he be there for the rest of his life, or is there a possibility of parole ? ’ ’

The judge replied: ‘ ‘ That is something neither you nor I have any control over whatsoever. We must all recognize that another branch of our government has pardoning power. I think you should feel, as far as the jury is concerned, that your verdict spoke the truth.” Another question and answer were to the same effect.

Back in the courtroom the judge’s remarks were objected to by defense counsel. This objection was not well founded. In two recent cases where the- death sentence was imposed we held that the court did not err, in a similar situation, in correctly telling the jury that the executive department of the government has the power to grant clemency. Scarber v. State, 226 Ark. 503, 291 S. W. 2d 241; Moore v. State, 231 Ark. 672, 331 S. W. 2d 841. In the case at bar the court in effect sustained the objection by later instructing the jury not to consider the statements previously made by the court. This additional admonition was unnecessary, as the court had not erred; but of course the appellant cannot now complain of action which he himself requested and to which he did not object.

We have examined all the other objections in the record and find them to be without merit. The case was ably defended by counsel appointed by the court. The proof of the appellant’s guilt was overwhelming, however, and we find no basis whatever for holding that he did not receive a fair trial.

Affirmed.


author: Paul Ward, Associate Justice.

text:
    Needham v. Garner, County Judge.
    5-2473
    350 S. W. 2d 194
    Opinion delivered October 16, 1961.

      Caldiuell T. Bennett and Glaucle A. Caldwell, for appellant.

      W. C. Wiley, for appellee.
   Paul Ward, Associate Justice.

This action was brought in chancery court by it. S. Needham (appellant), a resident and taxpayer of Izard County, against the County Judge of said county to enjoin him from using county road machinery in constructing dams, reservoirs, and terraces for private individuals.

In his answer the County Judge (appellee) admits he “has been contracting with private persons” for the use of county equipment for excavating and dirt moving projects, but says that all remuneration coming from such work has been deposited in the treasury of the county, that such operations have produced a profit (over and above all operation costs, including depreciation of machinery) to the taxpayers of the county, and that the taxpayers have not been injured or damaged.

The County Judge, further answering, in substance stated: The U. S. Soil Conservation Service has instituted a program in the county of constructing ponds and terraces; that such work constitutes an important internal county improvement; that the work he did was to help further the program; that the work complained of was only incidental to the main purpose of building roads; and that the machinery was never so used when it was needed for the said main purpose.

Decree. The trial court, after hearing the testimony of witnesses and arguments of counsel, made, in substance, the following findings and conclusions: The court has jurisdiction of the parties and the subject matter; there is no evidence of bad faith on the part of the County Judge; he has engaged in said work for the best interest of the county; a constitutional question is involved; the County Judge has no right to engage in private business primarily, but the work in question had been handled incidentally in a way to benefit Izard County.

Thereupon the trial court dismissed appellant’s petition.

Assuming that all the findings of fact of the trial court are correct, still we must disagree with the conclusion it reached. All the evidence shows that appellee, as an individual, entered into numerous contracts with private citizens of his county to construct ponds and terraces. Appellee’s testimony is to the same effect.

Q. “Judge, how many contracts have you had this year?

A. ‘ ‘ Off-hand, I couldn’t tell you.

Q. “ Can you rough it for me ?

A. “Well, no, I couldn’t.

Q. “ How many did you have last year ?

A. “Well, that, I wouldn’t know because, actually, I don’t keep a record of those. Now, usually from time to time the A. S. C. office sends me a carbon copy, but those I don’t keep around. I usually throw them in the waste basket because the money that I get I turn into the county treasurer, and I get a receipt for it and so forth; so, I don’t have to worry about those.”

It is our conclusion, based upon a study of numerous decisions of this court, that appellee, as county judge, has no power or authority to make the contracts in question, or to use county road machinery to construct ponds or terraces on private property for private use. But, before noting some of our former decisions and certain constitutional and statutory provisions bearing on the issue presented, we desire to eliminate three questions which are not before us.

One, there is no contention here by appellee that he was acting in the capacity of the County Court. The record shows that the parties stipulated “there have been no orders of the County Court made, entered or placed of record confirming or affirming any of the dirt moving project contracts”. Two, because of the above stipulation, we need not and do not affirm or deny the powers of the county court to enter into contracts such as here questioned. Three, there is no contention that the County Court ratified the contracts made by the County Judge.

Appellee relies on Art. 7, § 28 of onr Constitution, which, gives the county courts exclusive jurisdiction in all matters related to (among other things) internal improvements and local concern of the respective counties. Again we need not here decide whether improving private property could be classified as “internal improvements and local concern” of the county as a whole, because the jurisdiction of such matters is given to the county court and not to the county judge. The same answer can be given to appellee’s reliance on Ark. Stats. § 22-601, because there the “powers and jurisdictions” to control and manage real and personal property of the county (even for the use of the county) is granted by the legislature to the county court of each county and not to the county judge. There are numerous decisions of this court which interpret the above sections to mean just what they say. See: Rebsamen, Brown & Company v. Van Buren County, 177 Ark. 268, 6 S. W. 2d 288; Leathem & Co. v. Jackson County, 122 Ark. 114, 182 S. W. 570; Lyons Machinery Co. v. Pike County, 192 Ark. 531, 93 S. W. 2d 130; Watson and Smith v. Union County, 193 Ark. 559, 101 S. W. 2d 791; Johnson v. Donham, 191 Ark. 192, 84 S. W. 2d 374; Allen v. Barnett, 186 Ark. 494, 54 S. W. 2d 399; Benton v. Thompson, 187 Ark. 208, 58 S. W. 2d 924. Many similar cases could be cited. They are all uniform to the effect that the county court and not the county judge can exercise (only) such powers as are granted (or reasonably implied), and none of them holds that the county judge can exercise such powers.

Appellee contends appellant had no right to maintain this suit in chancery court for injunctive relief. This contention was not specifically made in the trial court, but even so we think it is not tenable in any event.

Our Constitution, Article 16 § 13 says:

“Any citizen of any county, city or town may institute suit in behalf of himself and all others interested, to protect the inhabitants thereof against the enforcement of any illegal exactions whatever.”

The above quoted section of the constitution has been interpreted in more than forty decisions of this Court. A casual reading of just a few of these decisions clearly indicates a liberal interpretation of said section not only for the protection of citizens against specific “illegal exactions” but for protection against unlawful official acts which could logically result in illegal exactions. We think there can be no doubt that if a county judge is given the right, limited only by his own discretion, to use county road machinery for private purposes, it could result in the need for more tax money to repair and replace the road machinery.

In Keenan v. Williams, Chancellor, 225 Ark. 556, 283 S. W. 2d 688, a writ of prohibition was sought by taxpayers against the commissioners of a drainage district, charging them with certain acts of mismanagement such as failure to select a depository, failure to require the district treasurer to give bond; failure to keep account books, etc. In upholding the relief granted the taxpayer we said: “It cannot be doubted that these matters are within the jurisdiction of equity.” The authority cited was Art. 16 § 13 of the Constitution. The effect of our decision in the case of Garner v. Greene County, 229 Ark. 174, 313 S. W. 2d 785, was that Art. 16 § 13 gave a citizen and taxpayer the right to intervene to contest an order of the county court establishing a county road. This Court in construing Art. 16 § 13 in the early case of Farrell v. Oliver, 146 Ark. 599, 226 S. W. 529, made this statement:

“There is eminent authority for holding, even in the absence of an express provision of the Constitution such as that referred to above, that a remedy is afforded in equity to tax payers to prevent misapplication of public funds on the theory that the tax payers are the equitable owners of public funds and that their liability to replenish the funds exhausted by the misapplication entitle them to relief against such misapplication.”

This same quotation was approved in McLellan v. Pledger, County Treasurer, 209 Ark. 159, 189 S. W. 2d 789, and in Ward v. Farrell, 221 Ark. 363, 253 S. W. 2d 353.

In addition to what we have already said, there is another reason why appellant should be allowed to maintain this action in chancery court. There being no orders of the County Court in connection with the questioned contracts, he was afforded no opportunity to prosecute an appeal to the circuit court, so his only remedy was the one here sought.

Beversed.


author: Sam Robinson, Associate Justice.

text:
    Southern Farm Bureau Cas. Ins. Co. v. Hardin.
    5-2480
    351 S. W. 2d 158
    Opinion delivered October 16, 1961.
    [Rehearing denied December 11, 1961.]

      Cockrill, Laser $ McGehee, for appellant.

      8. Hubert Mayes and 8. Hubert Mayes, Jr. and Hout S Tliaxton, for appellee.
   Sam Robinson, Associate Justice.

Appellee, Raymond Hardin, while driving his automobile along a public highway in Jackson County, observed a grass fire that was endangering a neighbor’s home. Hardin stopped his automobile, leaving it parked on the hard-surface portion of the highway, and went to help put out the fire, the smoke of which was blowing across the highway. Y. O. Calhoun, a resident of Woodruff County, traveling on the highway, drove his automobile into Hardin’s car. Calhoun was severely injured and his automobile was damaged in the sum of $1,190. Hardin had liability insurance with appellant, Southern Farm Bureau Casualty Insurance Company. The insurance company assumed control of the litigation, which it had a right to do under the terms of its policy, and retained the law firm of Yingling & Yingling at Searcy in White County to defend the action.

The policy of liability insurance issued by appellant insurance company to Hardin had the limit of $5,000 for injury to one person and $5,000' for property damage. Hardin realized that he did not have much insurance protection so far as personal injury was concerned. He further realized that the case was pending in Woodruff County, where Mr. Calhoun lived; that Calhoun was well liked and respected in that county and had received serious injuries. He also realized that Calhoun'had a good cause of action. He therefore sought to prevail on appellant insurance company to make an effort to settle the case within the policy limits, but he was unable to get the insurance company to take any action in that respect. Therefore for his own protection he engaged the services of Mr. W. J. Dungan, an attorney of Augusta, in Wood-ruff County. Mr. Dungan realized the danger of the case and discussed settlement with the attorneys for the plaintiff, who agreed to accept some amount within the policy limits if the insurance company would make a settlement of that kind. Mr. Dungan conveyed that information to the insurance company, but, although representatives of the company considered the case had a settlement value of about $2,500, they made no offer to the plaintiff at all to settle the case for any amount.

The case proceeded to trial; after the jury had been out for some time they returned for further instructions and at that time disclosed that they were divided 8 to 4. The jury again retired, and Mr. John Eldridge, attorney for the plaintiff, then told Mr. Ed Yingling that he would settle the entire case, personal injury and property damage, for $4,000. Mr. Yingling conveyed this information to Mr. Meacham, agent for the insurance company, who at the time was sitting in the court room. However, he had not been in the court room during the trial and had not heard the testimony. He declined the offer and made no counter offer. Soon thereafter the jury returned a verdict for the plaintiff in the sum of $25,000 for personal injuries, less 15% attributable to the negligence of Calhoun. The insurance company took the necessary steps to effect an appeal to the Supreme Court. In the meantime, Mr. Hardin, after conferring with counsel, reached the conclusion that there was not much chance of reversal. He therefore began strenuous negotiations in an attempt to settle the matter and save as much as possible. He succeeded in getting the plaintiff to accept $15,000 in settlement of the judgment. Appellant insurance company paid on the judgment the amount named in the policy for personal injury and property damage. Mr. Hardin paid the balance of $8,810. Later he filed suit against the insurance company for the amount that he was compelled to pay on the judgment, on the theory that the insurance company was negligent or did not act in good faith in failing to settle the case within the policy limits. This case was tried in the Pulaski Circuit Court, resulting in a verdict for Hardin against the company in the sum of $8,810. From this judgment the insurance company has appealed.

First, appellant contends there is no substantial evidence to support the jury verdict. At the trial of the case the plaintiff had proved severe injuries plus the property damage of $1,190. The case was being tried in his home county, where he was well respected, and he was represented by able lawyers of that community. He sought judgment in the sum of $33,000, and although the insurance company stood to lose only $5,000 on a personal injury judgment, the policyholder stood to lose over $25,000. There is sharp dispute in the testimony as to just what occurred when Mr. Ed Tingling told Mr. Meacham that Mr. Eldridge had offered to settle the case for $4,000 while the jury was out. Mr. Meacham testified: “When Mr. Ed [Tingling] mentioned that, I asked him what he thought and Mr. Ed said ‘Well it has gone better than I anticipated. The State police made a much better witness than I anticipated and I feel that there is a good possibility that we will get a defendant’s verdict’ and I asked him about what he thought about the four thousand and he said in his opinion he would not pay the four thousand.”

On the other hand, Mr. Hardin testified that at the time Mr. Tingling spoke to Mr. Meacham about the settlement, there were only three of them in the court room, and his version of what transpired is as follows: When the jury retired after receiving additional instructions by the court, “I immediately went back in the court room where Mr. Meacham was and sat down by hjs side and told him I thought we had lost the case because I recognized that juror to be one of the minority, and I told him if he does agree with the other jurors we were lost. I told him I thought we ought to settle and he said it was too late to settle now. While we were sitting there arguing the jury went back out and I would say fifteen minutes after the jury went out, Mr. Ed Tingling, the elder attorney . . . came over and sat down in the court room. The court room was vacant, only three of us, and lie sat down and Mr. G-erald Meacham was on the right and Mr. Yingling sat down on his right and that left him between ns, and he said ‘John said he would settle this case for $4,000 right now and dismiss the jury’ . . . Mr. Meacham said ‘No, we can’t do that’ so he [Yingling] got up and left and after he left I immediately began to argue. I gave the reason I thought he ought to settle that perhaps the fact I was out of the county and Mr. Calhoun was a native of Woodruff County and able represented by Mr. Eldridge and his brother and at one time he [Meacham] said ‘Well, we haven’t got anything to lose — go ahead and let the jury have it — we have got nothing to lose — any way it goes we can’t lose much more than the limits’. I got up and immediately left and in some hour or so the jury came out with their decision.”

According to the undisputed evidence plaintiff had made an offer to settle for $4,000 and although the insurance company had placed an evaluation on the case of around $2,500, they made no effort or counter offer whatever to bring about a settlement. Of course, Mr. Meacham thought that under the terms of the policy the insurance company could lose on account of the personal injury only $1,000 in addition to the $4,000 plaintiff was offering to accept in settlement. In the case at bar the jury could have found that the insurance company was willing to gamble the $1,000 against the $4,000 that the plaintiff had offered to accept in settlement, and wholly disregarded the damages that Hardin might sustain by reason of the failure to settle. Mr. Ed Yingling did not testify in the case because he had been in a terrible automobile accident, but it will be noticed from Mr. Meacham ’s testimony that Mr. Yingling did not say he would make no offer at all of a settlement; he merely said he would not recommend the payment of the $4,000. As to just what occurred in this conversation we have only the testimony of Meacham on the one hand and Hardin on the other. In these circumstances it was a jury question as to whether the insurance company was negligent or failed to act in good faith, by not attempting to reach a settlement within the limits of the policy.

Appellant complains of the plaintiff’s instruction No. 1, which told the jury, among other things, that it could consider whether the defendant, Southern Farm Bureau Casualty Insurance Company, failed to properly investigate the case. Whether the insurance company properly investigated the case was a question of fact and there is some evidence to the effect that a proper investigation was not made to determine the full extent of Calhoun’s injuries.

Appellant further argues that the trial court erred in giving plaintiff’s instruction No. 3, which, among other things, told the jury that it is the obligation of the defendant insurance company to exercise due care and strict performance and utmost good faith. This was a proper declaration of the law. Southern Farm Bureau Casualty Ins. Co. v. Parker, 232 Ark. 841, 341 S. W. 2d 36.

The jury returned a verdict in the sum of $8,810. To that amount the court added interest from the time that Hardin paid Calhoun a portion of the judgment. Appellant argues that this was error; that the action was one in tort, and that the interest should begin from the date of Hardin’s judgment against the insurance company. We think appellant is correct in this contention; the action is one in tort and interest should be allowed only from the date of the judgment in the case at bar. Waters v. American Casualty Co. of Reading, Pa., 216 Ala. 252, 73 So. 2d 524. The judgment is therefore modified by reducing it by the amount allowed for interest, and as modified it is affirmed. Since the interest awarded by the trial court is being set aside, appellant is getting a substantial reduction in the judgment on appeal. Therefore appellee must pay the costs.

Affirmed as modified.


author: Jim Johnson, Associate Justice.

text:
    Oller v. Andrews.
    5-2468
    350 S. W. 2d 167
    Opinion delivered October 16, 1961.

      McMillan & McMillan and Otis H. Turner, for appellant.

      Howell, Price $ Worsham, by Dale Price, for appellee.
   Jim Johnson, Associate Justice.

Appellant commenced this suit in the Pulaski Chancery Court and invoked the jurisdiction of equity by praying for an injunction restraining the appellee from engaging in the sale of insurance policies in violation of the terms of a written contract between appellant and appellee. The contract provided in part that appellee would not compete with appellant for a period of one year after the termination of the contract. Having properly invoked the aid of a court of equity on purely equitable grounds, the appellant also prayed judgment against the appellee for moneys allegedly loaned by appellant to appellee. At the conclusion of proof on behalf of the appellant, the appellee filed a written demurrer to the evidence in accordance with Act 470 of 1949 (Ark. Stats. § 27-1729). This demurrer was sustained by the trial court and the issue presented to this Court is whether a prima facie case was made by the appellant.

It is conceded by all parties that the ordinary delays of appellate procedure have caused the issue on the injunctive feature of the suit to become moot and the appellant does not request a reversal upon this issue.

However, appellant strenuously insists that he did make a prima facie case under the rule of Werbe v. Holt, 217 Ark. 198, 229 S. W. 2d 225, on the issue of debt and that the trial court was in error in sustaining the demurrer.

The appellee, in effect, concedes that the appellant would have made a prima facie case upon this latter issue except for the fact that appellant gave certain answers in a written interrogatory which, it is said, precludes him from the benefit of his actual testimony at the trial upon this subject.

We cannot agree with appellee’s contention. Appellee apparently confuses the weight to be given to conflicting testimony with the issue of whether' such testimony is sufficient to support a judgment as a matter of law. The interrogatory in question was No. 4 of a series of interrogatories propounded to the appellant by the appellee by virtue of Ark. Stats., § 28-355-. The interrogatory and the answer read as follows:

“Q. Was any oral contract ever entered into between Oiler and Andrews, if so who was present and what were the provisions?

“A. No.”

It is insisted by the appellee that since the appellant testified that the loans in question were oral transactions wherein appellant loaned funds by check to appellee that the answer completely negated the oral testimony. An examination of all of the testimony reveals that the inconsistency is more apparent than real. The preceding question in the series of interrogatories had dealt with a contract of employment and it is possible that appellant could have been answering with reference to whether any oral contract of employment had ever been made. At no place in the interrogatories was appellant asked as to whether there was any written contract for the loans in question.

Beginning with the decision of this Court in Whitfield v. Browder, et al, 13 Ark. 143 (January term 1852), this Court has consistently held that it is a well established rule in evidence that it should be so construed as to reconcile apparent inconsistencies, if the language used will admit of it, so as to give credit and effect to the whole statement of the witness. By application of the rule of Whitfield, we believe the testimony in the case at bar can be so reconciled. Particularly is this true since our Court has gone even further and held in Gibson Oil Co. v. Bush, 175 Ark. 944, 1 S. W. 2d 88, that the trier of fact had a right to resolve inconsistencies in the testimony and to believe a part of such testimony and disbelieve other parts of such testimony. In that case it was said:

“But learned counsel for the appellant argue in effect that the testimony of Chaney is so conflicting and inconsistent in itself as to make it impossible to conclude from his testimony that gasoline could have been sold and delivered to the appellee instead of kerosene. In making this argument counsel have evidently overlooked the well established rule of law that the weight of the evidence and the credibility of the witnesses is solely within the province of the jury. It was solely the province of the jury to reconcile any conflicts in the testimony of Chaney. They might accept any portion of his testimony which they believe to be true or reject any which they believe to be untrue, or about which the witness was mistaken. . . .”

While the Gibson case was a law case, the Chancellor is governed by the same rules in determining whether an issue of fact bas been made when a demurrer to tbe evidenc is presented. As we bave said on many previous occasions, in testing tbe sufficiency of evidence upon a demurrer sucb evidence must be given its strongest probative effect in bebalf of tbe proponent. Werbe v. Holt, supra; Cunningham v. Chamblin, 227 Ark. 389, 299 S. W. 2d 89; Boland v. Bellis, 232 Ark. 644, 339 S. W. 2d 424.

Under all tbe circumstances and tbe rules heretofore announced, we are impelled to tbe conclusion that tbe trial court erred in sustaining tbe demurrer to tbe evidence. Tbe ease is accordingly reversed and remanded for a determination of tbe issue of debt.


author: Neill Bohlinger, Associate Justice.

text:
    Hardware Mutual Casualty Co. v. Crafton.
    5-2459
    350 S. W. 2d 506
    Opinion delivered October 16, 1961.
    [Rehearing denied November 20, 1961.]

      Barber, Henry, Thurman & McCashill, for appellant.

      Spitzberg, Bonner, Mitchell Hays, for appellee, Riverside Insurance Co.

      Guy H. Jones and Francis T. Donovan, for appellee, J. E. Crafton.
   Neill Bohlinger, Associate Justice.

On July 14, 1957 a man by the name of Anderson driving a car which was insured under a family automobile policy issued by the Riverside Insurance Company of America [which company will hereafter be referred to as Riverside] drove to some fishing facilities operated by appellee, J. E. Crafton. Crafton’s operation in the maintenance of a fishing dock and renting boats was covered by what is termed as an “Owners, Landlords and Tenants Liability Policy” issued by Hardware Mutual Casualty Company, appellant herein which will be referred to as Hardware Mutual.

Upon arriving at the boat dock, Anderson had parked his automobile in the driveway and had unloaded his fishing paraphernalia. From this point in the driveway, appellee got in the car and drove it to a parking area on the fishing premises and at that point Crafton alighted from the automobile and walked approximately thirty or forty feet. After Crafton had left the automobile, for reasons unknown the automobile rolled into the lake. The car was salvaged at a cost to Anderson of $651.83.

Anderson appears to have recovered this damage from his insurance carrier, Riverside, and thereafter Riverside and Anderson filed suit in the Pulaski Circuit Court against J. E. Crafton, the appellee herein. Appellee’s insurance carrier, Hardware Mutual, was notified of the pendency of this action but appears to have taken no action in the case nor was it a party. The action in the Pulaski Circuit Court resulted in a judgment in favor of Anderson and Riverside against Crafton for the sum of $975.33 representing the original debt, costs and attorney’s fees. Following the rendering of the Pulaski Circuit Court judgment against him, Crafton filed in the Faulkner Circuit Court this action against Hardware Mutual alleging that Hardware Mutual was obligated to pay the judgment against him obtained by Riverside and Anderson because of the Owners, Landlords and Tenants Policy issued to him by Hardware Mutual. Hardware Mutual then filed its answer denying liability and its third party action against Riverside asserting that Crafton was an omnibus insured under the policy issued by Riverside and that it was the duty of Riverside to defend and pay any judgment awarded against Crafton in the action.

The above stipulated facts and the record in the case were submitted to the judge of the Faulkner Circuit Court who filed his conclusions of law with the clerk. The conclusions of law represent much research and thought on the part of the judge and have been most helpful to us. We have further had the help of an able brief by the attorneys for the appellant and we leave the field of their logic and conclusions with reluctance.

The main issue in this case turns upon the construction to be given to a phrase contained in the “exclusions” embodied in the policy issued by Hardware Mutual to the appellee. While the policy provided for the payment by Hardware Mutual of sums which the insured should become legally obligated to pay as damages because of “* # * injury to or destruction of property caused by accident and arising out of accidents hereinafter defined,” exclusion paragraph “K” in the policy specifically provides that the policy does not apply to “property in the care, custody or control of the insured or property as to which the insured, for any purpose is exercising physical control.” It is the contention of the appellant that the exclusion paragraph cited above precludes the appellee from recovering as the vehicle that was damaged was in the “care, custody, or control” of the insured appellee, or was property as to which Crafton was exercising physical control.

The care, custody and control clause in liability policies, so far as our research has extended, appears to be almost universally used but its construction is, to a large extent, dependent upon circumstances of each case and we conclude that the phrase should be applied with common sense and practicality. In a general way the word “care” has reference to temporary charge; “custody” implies a keeping or guarding and a necessity for an accounting, and “control” refers to power or authority to manage, superintend, direct or oversee. The use of these terms has, from time to time, created some degree of confusion by reason of some factual dissimilarity. This has generally led to the inclusion of the words “property to which the insured for any purpose is exercising physical control.” [Emphasis ours.] Whether or not this addition clarifies or is merely tautological, we do not say, but certainly the addition of “for any purpose is” makes it clear that the application of the words in the exemption apply to the property at the time of the accident.

We have examined with great care the authorities cited by the parties hereto, as well as many others, and the law as outlined in them has been carefully considered by us in reaching the conclusion which is ours. Cohen & Powell v. Great American Ins. Co., 127 Conn. 261, 16 A. 2d 354, 131 A. L. R. 1102 (1940); P & M Stone Co. v. Hartford Acc. & Ind. Co., 251 Ia. 243, 100 N. W. 2d 28 (1959); Monroe County Motor Co. v. Tennessee Odin Ins. Co., 33 Tenn. App. 223, 231 S. W. 2d 386, 395 (1950); Jacobson v. Aetna Cas. & Sur. Co., 233 Minn. 383, 46 N. W. 2d 868, 871 (1951). We see nothing to be gained by pointing out the similarity, or lack thereof, between the citations to the case at bar and to point them out would unduly prolong this opinion.

One thing that becomes apparent in the vast majority of the eases involving construction of the care, custody and control exclusions is the fact that, with the exception of the Saltzman case, [Saltzman v. Great American Indemnity Co., 118 Fed. Supp. 944, which is frequently quoted] the insured was under a contract with the owner of the chattel to do some work upon the damaged article. The most that can be said for Saltzman is that he was a trespasser with an inquisitive mind which two conditions resulted in some damage to an airplane. We do not find the facts in that case applicable to the case at bar.

In the instant case the only contract that existed between Crafton and the car owner was that Crafton was to rent dock facilities and a boat to the car owner in order that the car owner might go ont on the lake and catch some fish, or endeavor so to do. The presence of the automobile on Crafton’s property was merely incidental and the only connection Crafton had with the car was access thereto.

We think the case of Maryland Casualty Company v. Jolly, 67 N. M. 101, 352 P. 2d 1013, is pertinent. In this case a bus was damaged by fire while on Jolly’s premises and while Jolly was doing repair work on the gas tank. The tank had been removed by an employee of the owner of the bus and that employee was to replace the tank when repaired. The court said that physical presence alone was not sufficient to bring the bus within the care, custody and control of the appellant and that the presence of the bus on the premises of appellant was merely incidental to repairing the tank and used this language:

“Where, however, the damaged property or premises were merely incidental or adjacent to the contracted object upon which work was being performed by the insured, such property is not within the care, custody or control of the insured even though he might be permitted access thereto during the performance of his contract.”

In the case of Thomas W. Hooley & Sons v. Zurich General Accident & Liability Ins. Co., Ltd., 235 La. 289, 103 So. 2d 449, 67 A. L. R. 2d 1078, there was a situation in which the insured had a contract for dismantling a portion of a statute of General Lee and in the course of the work, an ornamental urn at a corner of the base of the statue was accidentally damaged. In that case the court said:

“As the District Court held, the attempted first defense that the damaged property was within the ‘care, custody or control’ exclusion clause is clearly without factual or legal merit.

“Plaintiff’s dismantling contract concerned the Lee statute and its supporting column and did not include the base of the monument (upon which the column was situated) or the ornamental urns at the corners of the base, accidental damage to one of which urns is the subject of the present suit.

“The uniform jurisprudence holds that damaged property or premises merely incidental or adjacent to the contracted object upon which work is being performed by the insured is not within the ‘ care, custody or control’ of the insured for purposes of the exclusion clause in question, even though he might be permitted access thereto during the performance of his contract. Boswell v. Travelers Indem. Co., 1956, 38 N. J. Super. 599, 120 A. 2d 250; Maryland Cas. Co. v. Hopper, Tex. Civ. App. 1950, 237 S. W. 2d 411; Rex Roofing Co. v. Lumber Mut. Cas. Ins. Co., 1950, 280 App. Div. 665, 116 N. Y. S. 2d 876; A. T. Morris & Co. v. Lumber Mut. Cas. Ins. Co., 1937, 163 Misc. 715, 298 N. Y. S. 227; Cohen v. Keystone Mut. Cas. Co., 1943, 151 Pa. Super. 211, 30 A. 2d 203.”

The question as to whether or not Crafton was negligent when he parked the car and walked away from it, we are not concerned. The only question is, was the damaged car in the care, custody and control of Crafton at the time of the damage. As we stated above, Crafton’s only connection with the car was access to it. Whatever his purpose in moving the ear from the driveway to a parking area, that purpose had been completed and Orafton had left the car, turned his back upon it and walked some distance to engage in business of his own. He was some forty feet from the car but not directing it in any way, was not driving or steering it, and under the facts we are unwilling to say that he was exercising care, custody or control of the property or that he was physically controlling it at the time it was damaged. Therefore the exclusions under paragraph “K” of the exclusions do not apply and the trial court properly so found.

The appellant argues that the trial court erred in dismissing its third party complaint against Riverside. "We do not agree.

The only connection between Hardware Mutual and Riverside was through Crafton. The most that can be said is that Hardware Mutual was a privy of Crafton. A privy may be defined as a person having a mutual interest with another in the same action or thing, 72 C. J. S. 957. Any claim that Crafton might have had against Riverside was resolved in the case of Anderson and Riverside v. Crafton in the Pulaski Circuit Court. Appellant was advised of this action and declined to participate or become a party thereto. Hence, if Crafton had no cause against Riverside, those in privity with him can have none.

Reviewing the contract of Hardware' Mutual with the exclusions which it contains in the light of the proof presented to the trial court, we find the decision of the trial court proper and the cause in all things is affirmed.